Filed 6/30/05
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S019697
v.
CARMEN LEE WARD,
Los Angeles County
Super. Ct. No. A647633
Defendant and Appellant.
Defendant Carmen Lee Ward was charged in a single information with the
first degree murders of Ronald Stumpf and David Adkins (Pen. Code, § 187,
subd. (a); all undesignated statutory references are to the Penal Code) and the
attempted murder of Kenneth Shy (§§ 187, 664). The information further alleged
a multiple-murder special circumstance (§ 190.2, subd. (a)(3)) and enhancements
for the infliction of great bodily injury (§ 12922.7) and firearm use (§ 12022.5).
After the trial court granted defendant’s motion to sever the murder charges, a jury
convicted him of the second degree murder of Stumpf and found the firearm use
allegation to be true. A second jury then convicted him of the first degree murder
of Adkins and the attempted murder of Shy and returned true findings on the
1
enhancement allegations.1 After a separate proceeding, the jury found true the
special circumstance that defendant had been previously convicted of murder in
the second degree. (§ 190.2, subd. (a)(2).) When the jury was unable to agree on
the sentence, the court convened a second penalty phase jury, which returned a
verdict of death.
Following the verdict, the trial court denied defendant’s motion for a new
trial and his automatic motion for modification of the verdict. The court then
sentenced defendant to: (1) 15 years to life for the second degree murder of
Stumpf plus two consecutive years for the firearm enhancement; (2) death for the
first degree murder of Adkins plus two consecutive years for the firearm
enhancement; and (3) life without the possibility of parole (LWOP) for the
attempted murder of Shy plus two consecutive years for the firearm enhancement
and three consecutive years for the great bodily injury enhancement. The court
stayed the sentences for the murder of Stumpf, the attempted murder of Shy, and
the enhancements pending appeal, with the stays becoming permanent upon
execution of the death sentence.
This appeal is automatic. (§ 1239.) We find no reversible error as to guilt
or penalty and affirm the judgment in its entirety.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. Guilt Phase
1. Murder of Ronald Stumpf
In the late evening of October 3, 1987, Ronald Stumpf told his wife he was
going out to play pool. Driving his 1972 Toyota down Long Beach Boulevard
1
All of defendant’s convictions occurred under the same case number,
A647633.
2
about 30 minutes later, he spotted George Springer, an acquaintance who had
previously assisted him in buying rock cocaine. Springer approached Stumpf, and
Stumpf asked where he could “go score.” With Springer in the passenger seat
giving directions, Stumpf drove to Norton Avenue, where they saw defendant—
with whom Springer had had previous drug dealings—standing on the sidewalk
with another person.
They pulled up to defendant, and defendant, standing on the passenger side,
asked what they wanted. Springer indicated they needed a $20 piece of cocaine;
and defendant handed a rock to Stumpf, who was holding money in his hand.
According to Springer, Stumpf passed it back to defendant because the rock was
too small. Perceiving Stumpf had broken a piece of the rock, defendant said
something like, “You broke my shit.” He then pulled a gun, leaned in the
passenger side, and fired several times from close range at Stumpf’s chest.
Springer testified he crouched down and his ears began to ring as smoke and fire
came from the gun. When the shooting stopped, he saw Stumpf’s upper body
covered with blood.
Because Stumpf had left the engine running and the car in gear when they
had first approached defendant, the vehicle began to move along Norton Street.
Springer attempted to gain control and managed to steer the car toward a used car
lot, where it jumped the curb and hit a metal pipe. Springer got out and ran home.
He did not call the police and lied to his wife when she saw blood on him. The
next day, he went to church and spoke with an old friend, Reverend Tinson, about
what had happened. Tinson advised him to go to the police, which he eventually
did. Initially, however, Springer did not identify defendant for fear of reprisal.
Several months later, he also lied when shown defendant’s photograph, saying he
did not recognize anyone. Only when threatened with incarceration for
withholding evidence did he acknowledge defendant as the shooter.
3
At the time of the shooting, Jorge Castenada was outside his apartment on
Norton Avenue and saw Stumpf and Springer drive up to where three men were
standing. He heard shots, but did not see anyone with a gun. After the shots, he
saw the car take off and crash into a metal pole and Springer get out and run off.
Castenada went to the vehicle and saw blood, then called the police.
Stumpf died at the scene. The autopsy revealed four gunshot wounds, two
of which were the cause of death. The shots had been fired from close range. The
police also found two expended bullets in the Toyota. According to a ballistics
expert, the expended bullets and fragments recovered from the car and Stumpf’s
body were all either .38- or .357-caliber and had similar lands and grooves. The
expert could not, however, determine whether they had been fired from the same
weapon.
Defendant testified and offered an alibi defense. According to defendant,
on the evening of the shooting, he went with a friend, Betty Robinson, to
Hollywood to see a movie. They arrived about 11:00 p.m. and left about 12:15
a.m. Driving back on the freeway, defendant’s car’s engine cut out. Thirty or 45
minutes later, Louis Hansbrough pulled over and gave him assistance. At trial,
Hansbrough confirmed he had stopped to help defendant, but could not remember
the date. Despite the efforts of a private investigator, the defense was unable to
locate Robinson.
Defendant denied being at the scene of the shooting or killing Stumpf.
2. Murder of David Adkins; Attempted Murder of Kenneth Shy
On the evening of February 20, 1988, David Adkins and Kenneth Shy were
on the corner of Lilita Street and Benwell Drive in Lynwood when they were
joined by Roger Outley and Donald Jacobs. The area was associated with the
Lynwood Neighborhood Crips, a gang also known as “N-Hood” or
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“Neighborhood” whose members were rivals of the Ghost Town Crips. Defendant
and Anthony Bereal belonged to the Ghost Town Crips.
As Adkins, Shy, Outley, and Jacobs stood talking, they saw defendant,
wearing a black jacket, and Bereal, wearing a brown Pendleton shirt, walk up
Benwell Drive with their hands behind their backs. When they were about 100
yards away, Adkins said, “There’s some Ghost Town.” Outley had noticed both
defendant and Bereal in the area previously. As the two approached, Bereal said,
“What’s the neighborhood like?” Initially, no one replied, and Bereal repeated
“This is Neighborhood” several times. When defendant and Bereal began to walk
away, Adkins said, “This is Neighborhood,” as if he agreed with Bereal. At that
moment, defendant pulled a gun from his jacket and began shooting, hitting
Adkins from 10 to 12 feet away. He then went up to the wounded Adkins lying in
the street and shot him again at point-blank range. In the meantime, Shy had
started riding away on his bicycle, and defendant shot at him also, hitting him in
the upper thigh.
Outley testified he was positive defendant, not Bereal, had fired the gun and
did not tell the police otherwise. Although he had not seen defendant before that
night, Jacobs made the same positive identification. Shy was also certain
defendant was the person who shot him. In addition to these percipient witnesses,
several others gave corroborating versions of events. Adkins’s cousin, Chrishon
Tiffith, saw defendant and another individual approach Adkins, Shy, Outley, and
Jacobs and saw one of them, wearing a black jacket, shoot Adkins. Another
cousin, Kimbali Walker, was with Tiffith and similarly testified that the person
wearing a black jacket was the one who fired on Adkins. Others, including
Beverly Blanchard, Kenneth Sledge, Rose Marie Barner, and Blise Bostick, stated
that they had seen defendant and Bereal in the vicinity of the shooting and that
5
defendant matched the description of the shooter—shorter of the two with
Jheri-curled hair and wearing a black jacket.
Adkins later died from loss of blood from two gunshot wounds. Outley and
Shy identified defendant to the police as the shooter. Jacobs initially declined to
do so out of fear for his safety. The prosecution presented expert testimony
regarding gang culture, including reasons gang members would walk into rival
territory and their likely interpretation of gang references as challenges.
The defense was mistaken identity and alibi. According to one police
report, Bereal was listed as suspect No. 1, which generally indicated the suspect
who committed the crime. Mario Macias testified that on the evening of
February 20, 1988, he saw defendant and Bereal at a party on Norton Avenue. He
was with them the entire evening until he left about 1:00 a.m. The defense also
presented testimony from Aaron Belyeu suggesting the police wanted “to nail”
defendant even though they believed Bereal was the shooter.
B. Penalty Phase
Because the murder charges were tried separately, the prosecution
presented additional evidence of the Stumpf killing as one of the factors in
aggravation. (See Pen. Code, § 190.3, factor (b).) There was also evidence
defendant possessed sharpened toothbrushes in jail, had a physical altercation with
police during a traffic stop in October 1987, and participated in a melee involving
gang members at Lynwood Park in May 1987. The prosecution also introduced
defendant’s prior conviction in 1989 for possessing cocaine. (Health & Saf. Code,
§ 11350; see Pen. Code, § 190.3, factor (c).)
As part of the case in mitigation, the defense questioned Jorge Castenada
about the Stumpf killing and discrepancies in his testimony at the original trial.
The defense also challenged the prosecution’s version of the Lynwood Park melee
6
and offered testimony from defendant’s mother and stepfather as well as other
family members attesting to his love and respect for them and his helpfulness.
They all loved him and did not want him to be executed.
II.
DISCUSSION
A. Appointment of Counsel Issues
1. Discharge of Second Counsel Following Severance
The prosecution originally charged the murders of Stumpf and Adkins in
one information and alleged a multiple-murder special circumstance. (§ 190.2,
subd. (a)(3).) After determining defendant qualified for the appointment of
counsel, the trial court appointed Morris Jones. In light of the special
circumstances allegation and the prosecution’s announced intention to seek the
death penalty, the court also appointed Ronald Skyers as second counsel pursuant
to section 987, subdivision (d). After defendant successfully moved to sever the
murder charges, however, the court relieved Skyers for the initial trial of the
Stumpf killing. Defendant now contends this action deprived him of his rights
under the Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution because Skyers, who became lead counsel at the beginning of the
second trial, was deprived of the opportunity to evaluate the demeanor of
witnesses and to adequately prepare himself for the ultimate penalty phase.
We find no error. Section 987, subdivision (d) provides for additional
counsel only “[i]n a capital case,” i.e., one in which a special circumstance has
been alleged and the prosecution seeks the death penalty. Defendant’s trial for the
killing of Ronald Stumpf involved no special-circumstance allegations. Thus,
once the court granted defendant’s severance motion, the trial for the killing of
Stumpf was no longer a capital case but simply a first degree murder prosecution.
Indeed, following severance, defendant faced the specter of the death penalty only
7
if he were convicted of the first or second degree murder of Stumpf. (See § 190.2,
subd. (a)(2); cf. Williams v. Superior Court (1984) 36 Cal.3d 441, 454.) As such,
the court had no authority to maintain Skyers as second counsel until that time.
(See Sand v. Superior Court (1983) 34 Cal.3d 567, 575 [holding that the defendant
was not entitled to ancillary defense services under section 987.9 because he no
longer faced the death penalty].) The fact that defendant may not have had the
benefit of Skyers’s participation in the Stumpf trial during the Adkins-Shy trial,
resulted from defendant’s successful motion to sever the murder charges, not from
any error on the part of the trial court in relieving Skyers until the matter became a
capital case. Moreover, as the court noted when this point was raised at trial: “[I]t
would be no different than having a prior conviction [for first or second degree
murder] and having to do it again.”
2. Withdrawal of Lead Counsel at Commencement of Second Trial
On the morning the Adkins-Shy trial was about to commence, Morris Jones
told the court that he would not be able to participate as defendant’s counsel
because the day before he had been appointed to the bench and was therefore no
longer a practitioner of law. He also indicated that he had explained this to
defendant. The court relieved Jones as counsel, designated Skyers as lead counsel,
and appointed Ronald Higgins as second counsel. Defendant now contends the
court erred in permitting Jones to withdraw under the circumstances in violation of
the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution.
We find no error. Under the California Constitution, “[a] judge of a court
of record may not practice law . . . .” (Cal. Const., art. VI, § 17; see In re Craig
(1938) 12 Cal.2d 93, 96.) Since the trial court had no viable alternative, it had no
obligation to conduct a hearing prior to relieving Jones. The contrary authorities
8
cited by defendant all involved attorneys who were authorized to practice law but
sought to withdraw for some collateral reason.
Defendant speculates from the record that the court and counsel had some
off-the-record discussion in his absence regarding Jones’s judicial appointment
and need to withdraw, and that his exclusion from this discussion violated his
rights. Even assuming that such a discussion occurred, we find no prejudice
because, as noted, the trial court was constitutionally foreclosed from requiring
Jones to continue his participation.
B. Wheeler/Batson Issues
During jury selection, the prosecutor exercised his first two peremptory
challenges against Juanita D., an African-American woman, and Lawrence H., an
African-American man. Defense counsel objected and made a motion pursuant to
People v. Wheeler (1978) 22 Cal.3d 258. The trial court declined to find a prima
facie violation and denied the motion. After the prosecutor exercised his fourth
peremptory challenge against Charlotte B., an African-American woman, defense
counsel made a second Wheeler motion. Although the trial court did not at that
point “feel there [was] a conscious exclusion,” it observed that the prosecutor had
excused a total of three out of the eight African-American jurors—two out of the
seven African-American women—on the panel and invited an explanation.
Following the prosecutor’s explanation, the court denied the motion. Defense
counsel made his third Wheeler motion after the prosecutor exercised his next
peremptory challenge against Mary E., an African-American woman. Without
prompting, the prosecutor offered an explanation, and the trial court denied the
motion.
Following voir dire of a second group of jurors, the prosecutor exercised
his sixth peremptory challenge against Rose B., an African-American woman.
9
Defense counsel then made his fourth Wheeler motion. After the trial court
prompted the prosecutor, he offered a lengthy explanation for this latest challenge.
The trial court accepted the explanation and denied the motion. The prosecutor
exercised one more peremptory challenge against a Caucasian man, and the
prosecutor and defense counsel then accepted the jury as constituted.
During selection of the alternate jurors, the prosecutor exercised his first
peremptory challenge against Harriette V., an African-American woman. Defense
counsel made another Wheeler motion. Although the trial court apparently
declined to find a pattern of impermissible exclusion because selection of the
alternate jurors had just begun, it invited an explanation from the prosecutor. The
prosecutor offered an explanation for this challenge, and his next challenge to
Carolyn P., an African-American woman. At this point, defense counsel indicated
that he would also object to the prosecutor’s proposed challenge to Carolyn P.
Again, the trial court denied the motions. The prosecutor exercised one more
peremptory challenge before the parties accepted the alternates as constituted.
On appeal, defendant renews these Wheeler claims and contends the
prosecutor violated his rights under the state and federal Constitutions.
Assuming without deciding that defendant preserved the federal claim, we deny
his claims.
“The use of peremptory challenges to remove prospective jurors on the sole
ground of group bias violates the right to trial by a jury drawn from a
representative cross-section of the community under article I, section 16 of the
California Constitution (People v. Wheeler[, supra, 22 Cal.3d at pp. 276-277]) as
well as the equal protection clause of the Fourteenth Amendment to the United
States Constitution. (Batson v. Kentucky [(1986) 476 U.S. 79, 89].)” (People v.
Burgener (2003) 29 Cal.4th 833, 863.) “A party who suspects improper use of
peremptory challenges must raise a timely objection and make a prima facie
10
showing that one or more jurors has been excluded on the basis of group or racial
identity. . . . Once a prima facie showing has been made, the prosecutor then must
carry the burden of showing that he or she had genuine nondiscriminatory reasons
for the challenge at issue.” (People v. Jenkins (2000) 22 Cal.4th 900, 993.)
“ ‘[T]he trial court must then decide . . . whether the opponent of the strike has
proved purposeful . . . discrimination.’ ” (People v. McDermott (2002) 28 Cal.4th
946, 971.)
“The trial court’s ruling on this issue is reviewed for substantial evidence.”
(People v. McDermott, supra, 28 Cal.4th at p. 971.) “We review a trial court’s
determination regarding the sufficiency of a prosecutor’s justifications for
exercising peremptory challenges ‘ “with great restraint.” ’ [Citation.] We
presume that a prosecutor uses peremptory challenges in a constitutional manner
and give great deference to the trial court’s ability to distinguish bona fide reasons
from sham excuses. [Citation.] So long as the trial court makes a sincere and
reasoned effort to evaluate the nondiscriminatory justifications offered, its
conclusions are entitled to deference on appeal. [Citation.]” (People v. Burgener,
supra, 29 Cal.4th at p. 864.) “[I]n fulfilling [this] obligation, the trial court is not
required to make specific or detailed comments for the record to justify every
instance in which a prosecutor’s [nondiscriminatory] reason for exercising a
peremptory challenge is being accepted by the court as genuine. This is
particularly true where the prosecutor’s [nondiscriminatory] reason for exercising
a peremptory challenge is based on the prospective juror’s demeanor, or similar
intangible factors, while in the courtroom.” (People v. Reynoso (2003) 31 Cal.4th
903, 919.)
In this case, the People concede that, with respect to defendant’s fourth
Wheeler motion, “the preliminary issue of whether the defendant [has] made a
prima facie showing” is moot, and this court must therefore examine the adequacy
11
of the prosecutor’s explanation. (See Hernandez v. New York (1991) 500 U.S.
352, 359.) Although the parties apparently disagree over whether this concession
is sufficient to require an examination of the adequacy of all of the prosecutor’s
explanations or whether a prima facie showing with respect to the other Wheeler
challenges had been or should have been found by the trial court, we find it
unnecessary to resolve these questions here. Even assuming a prima facie
showing as to all the challenged jurors, we find substantial evidence to support the
trial court’s denial of defendant’s claim under either People v. Wheeler, supra, 22
Cal.3d 258, or Batson v. Kentucky, supra, 476 U.S. at page 79.2
In justifying his challenges to Juanita D., Charlotte B., Mary E., Harriette
V., and Carolyn P., the prosecutor cited their responses to Hovey questioning
(Hovey v. Superior Court (1980) 28 Cal.3d 1) and his perception that these jurors
were likely to be hesitant to impose the death penalty. With respect to Juanita D.
and Carolyn P., defendant concedes that the prosecutor’s “stated reason is
supported by the record,” and our review of the record confirms that the
prosecutor could reasonably view Juanita D. and Carolyn P. as unfavorable on the
death penalty issue. We therefore see no basis for reversing the trial court’s denial
of defendant’s Wheeler motion as to either prospective juror. (See People v.
McDermott, supra, 28 Cal.4th at pp. 972-973 [finding that substantial evidence of
a juror’s hesitance to impose the death penalty supported the trial court’s denial of
the Wheeler motion].)
2
In Johnson v. California (2005) ___ U.S. ___ (125 S.Ct. 2410, 2419)
(Johnson), the United States Supreme Court recently reversed our decision in
People v. Johnson (2003) 30 Cal.4th 1302, and held that “California’s ‘more likely
than not’ standard is at odds with the prima facie inquiry mandated by Batson.”
Because we assume that defendant made a prima facie showing, Johnson does not
affect our holding here.
12
We reach the same conclusion as to Charlotte B. and Mary E. Our review
of the record reveals substantial evidence supporting the prosecutor’s explanation
that both of these jurors expressed some reluctance in imposing the death penalty
during Hovey questioning. For example, Charlotte B., in response to a question
from the prosecutor asking whether she could impose the death penalty if the
evidence made it appropriate, stated that: “I can do that, but I would rather not.”
She also stated that she was “not strongly” in favor of the death penalty.
Similarly, Mary E., in response to a question asking whether she would
automatically vote for life without parole in every case, answered with some
apparent hesitancy: “I don’t think I would, no. I wouldn’t.” She also
acknowledged that she “might” find it “difficult” to vote for the death penalty and
noted that “extenuating circumstances,” such as the person’s “particular
environment,” may lessen that person’s responsibility for his actions.
Accordingly, we find substantial evidence to support the trial court’s denial of
defendant’s Wheeler motion as to both Charlotte B. and Mary E. (See People v.
Burgener, supra, 29 Cal.4th at p. 864 [“A prosecutor legitimately may exercise a
peremptory challenge against a juror who is skeptical about imposing the death
penalty”].)
In addition, we find substantial evidence to support the challenge to
Harriette V. based on “her demeanor” during questioning—which, according to
the prosecutor, suggested that she was a “death skeptic.” Specifically, the trial
court expressly confirmed that it had also observed that Harriette V.’s “manner”
during Hovey questioning suggested a reluctance to impose the death penalty.
Because we give “ ‘great deference’ on appeal” to the trial court’s observations
regarding a “prospective juror’s demeanor” and nothing in the record contradicts
these observations, we see no grounds for reversing the court’s decision to deny
13
defendant’s Wheeler motion as to Harriette V. (People v. Reynoso, supra, 31
Cal.4th at p. 926.)
The record also provides substantial evidence to support the trial court’s
finding that the prosecutor’s reasons for challenging Lawrence H. and Rose B.
were nondiscriminatory. With respect to Lawrence H., the prosecutor cited
Lawrence H.’s apparent antagonism toward him during questioning. The record
reveals that Lawrence H. expressed some hostility toward the prosecutor in
response to the prosecutor’s questioning regarding his knowledge of gangs, and
the trial court expressly confirmed its recollection of this hostility. Defendant
contends the prosecutor intentionally provoked this hostility but cites nothing in
the record to support his contention. Indeed, our review of the record reveals that
the prosecutor’s questions appeared innocuous and, in any event, were
appropriate. Where, as here, the record supports a finding that a prospective juror
evinced “a degree of hostility toward the prosecutor,” we find that substantial
evidence supports the trial court’s denial of defendant’s Wheeler claim. (People v.
Farnam (2002) 28 Cal.4th 107, 138.)
With respect to Rose B., the prosecutor cited a number of reasons for
challenging her, including (1) her responses in her juror questionnaire; (2) her
unconventional appearance—i.e., wearing 30 silver chains around her neck and
rings on every one of her fingers—which suggested that she might not fit in with
the other jurors; and (3) her “body language” during questioning suggesting that
she was “uptight with” the prosecutor. The first cited reason is supported by the
record which establishes that Rose B. described the death penalty as a “horrible
thing” in her juror questionnaire. This alone supports the denial of defendant’s
Wheeler motion. (See People v. Burgener, supra, 29 Cal.4th at p. 864.)
Moreover, the trial court’s implied finding that the prosecutor’s stated reasons
were sincere and genuine is entitled to great deference where, as here, the reasons
14
are based on the prospective juror’s appearance and demeanor. (See People v.
Reynoso, supra, 31 Cal.4th at p. 926.) Because nothing in the record contradicts
this finding, we see no basis for defendant’s Wheeler claim as to Rose B. (See
People v. Wheeler, supra, 22 Cal.3d at p. 275 [holding that a party may
legitimately challenge a prospective juror based on the juror’s appearance or a
subjective mistrust of the juror’s objectivity].)
We further note that five out of the 12 sitting jurors were African-
Americans, and four out of those five jurors were women. “While the fact that the
jury included members of a group allegedly discriminated against is not
conclusive, it is an indication of good faith in exercising peremptories, and an
appropriate factor for the trial judge to consider in ruling on a Wheeler objection.”
(People v. Turner (1994) 8 Cal.4th 137, 168.) Considering the jury’s composition
in conjunction with our analysis of the prosecutor’s proffered reasons for excusing
each prospective juror, we conclude defendant has not demonstrated that the
prosecutor employed an impermissible group bias.
Even assuming that we must conduct a comparative juror analysis for the
first time on appeal (See Miller-El v. Dretke (2005) ___ U.S. ___ [125 S.Ct. 2317,
2316, fn. 2]), such an analysis casts no doubt on this conclusion. According to
defendant, a side-by-side comparison of two non-African-American jurors who
were allowed to serve—Dianne G. and Maria G.—and the prospective jurors
struck by the prosecutor establish purposeful discrimination. We disagree.
Contrary to plaintiff’s assertions, Dianne G. is not similarly situated to any
of the prospective African-American jurors struck by the prosecutor. For
example, the prosecutor’s decision to question Lawrence H.—but not Dianne G.—
about gangs is understandable given the material differences in their background.
Lawrence H. worked in the probation department and was a group supervisor for
40 to 50 juvenile delinquents. Given Lawrence H.’s job, the prosecutor
15
reasonably asked him if he had any experience with gangs. In fact, Lawrence H.
was very familiar with gangs and even noted that he used to be a gang member.
By contrast, nothing in Dianne G.’s jury questionnaire or her answers during voir
dire suggested that she had any familiarity with gangs. While her son had been
arrested for drug possession and had been involved in a fight where he suffered
stab wounds, there was no evidence in the record of gang involvement. As such,
the prosecutor’s failure to ask Dianne G. about gangs does not cast the
prosecutor’s reasons for striking prospective jurors “in an implausible light.”
(Miller-El v. Dretke, supra, 125 S.Ct. at p. 2332.)
Likewise, the fact that Dianne G. had served on a prior criminal jury that
was unable to reach a verdict does not demonstrate that one of the prosecutor’s
reasons for striking Rose B.—that she would not fit in—was pretextual. The
prosecutor stated that he thought that Rose B. would not fit in with the other jurors
because of her unconventional appearance, i.e., her excessive use of jewelry.
There is nothing in the record to suggest that Dianne G.’s appearance was
unconventional, and defendant does not make any such claim. Moreover, nothing
in the record suggests that Dianne G.’s previous stint as a juror resulted in a hung
jury because of her. As such, the prosecutor had no reason to think that she would
not fit in with the other jurors.
And Dianne G.’s statement in her jury questionnaire that she believed that
LWOP was a more severe punishment than the death penalty does not establish
that the prosecutor’s proffered reasons for striking other prospective jurors were
implausible. In striking prospective jurors because of their perceived hesitancy to
impose the death penalty, the prosecutor, with the exception of Rose B., relied
solely on that juror’s answers or demeanor during Hovey questioning—and not on
their answers on the jury questionnaires. And unlike the prospective jurors struck
by the prosecutor because of their apparent hesitance during Hovey questioning to
16
impose the death penalty, Dianne G. expressed, and the record reveals, no such
reluctance during Hovey questioning. Moreover, aside from the single answer
cited by defendant, the rest of Dianne G.’s answers in her questionnaire evinced
no apparent reluctance to impose the death penalty. By contrast, Rose B.—the
only prospective juror ostensibly struck by the prosecutor because of her answers
in her jury questionnaire—wrote that she thought the death penalty was a “horrible
thing.” As such, Dianne G. is not similarly situated to the African-American
jurors struck by the prosecutor and a side-by-side comparison reveals no pretext in
the prosecutor’s proffered reasons.
Similarly, and contrary to defendant’s assertions, Maria G. is not similarly
situated to the prospective jurors struck by the prosecutor. According to
defendant, Maria G.’s answers in her jury questionnaire show that she was just as
much of a death skeptic as the jurors struck by the prosecutor. But unlike most of
those jurors, Maria G. expressed no reluctance to impose the death penalty during
Hovey questioning, and the record reveals no evidence of any such reluctance.
Moreover, a careful perusal of Maria G.’s jury questionnaire demonstrates that she
did not have the same personal distaste for the death penalty evidenced by Rose
B.’s jury questionnaire. For example, while Maria G. did disagree somewhat with
the proposition that “[a]nyone who intentionally kills another person without legal
justification and not in self defense, should receive the death penalty,” her
disagreement did not appear to result from a personal distaste for the death
penalty. Rather, she reasonably recognized that “every case is different and it has
to be looked in its content entirely, death penalty is not for everyone!” Likewise,
her uncertainty regarding whether she would vote for LWOP regardless of the
evidence and her belief that LWOP was a more severe punishment than death did
not appear to result from any visceral reaction to the death penalty. Indeed,
17
Maria G.’s answers to her jury questionnaire also indicated that she believed that
“the death penalty should always be considered” in certain circumstances.
And the fact that Maria G. stated in her jury questionnaire that she thought
her son had been unfairly treated by the criminal justice system does not
demonstrate that the prosecutor’s reasons were pretextual. The prosecutor struck
no jurors based on their experiences with the criminal justice system. In any
event, Maria G. explained that she felt that her son was treated unfairly because of
the victim’s links to law enforcement. Because the victim in this case had no
apparent relationship to law enforcement, the prosecutor could reasonably believe
that Maria G. would be a suitable juror. Thus, a side-by side comparison of
Maria G. and the struck jurors casts no doubt on the prosecutor’s proffered reasons
for striking these jurors.
Finally, we reject defendant’s contention that the trial court failed to
“conduct a sincere and genuine inquiry into the prosecutor’s stated reasons for his
challenges.” Indeed, this contention is belied by the record. In discussing
defendant’s last two Wheeler objections, the court noted that “I went back and
checked my notes on the Hovey question, and I have a lot of these jurors marked
as potential peremptory because of their manner of responding during the Hovey.
This is the reason I have been very reluctant to find any type of prima facie
violation of the Wheeler because I did notice that they were very reluctant. They
tried to give an answer that would follow the instructions of the court but they did
have problems.” The court further explained that: “I certainly in making my little
notes as I took this, it wasn’t because they were Black but I gauged it all on their
responses and their demeanor, that I sat here and I made my little notes for myself,
just for my own information, and I certainly didn’t do it because they were Black.”
As such, the record establishes that the court did make a “sincere and reasoned
18
effort” to evaluate the prosecutor’s “nondiscriminatory justifications.” (People v.
Burgener, supra, 29 Cal.4th at p. 864.)
In any event, no detailed trial court findings regarding the reasons for each
peremptory challenge are necessary here. The prosecutor’s stated reasons for
exercising each peremptory challenge are neither contradicted by the record nor
inherently implausible. (See People v. Reynoso, supra, 31 Cal.4th at p. 929.)3
Accordingly, we find no Batson/Wheeler error.
C. Shackling of Defendant
Defendant contends the trial court committed numerous errors in relation to
his being shackled during the Adkins-Shy trial. Specifically, he alleges the court
failed to hold a hearing to determine the necessity of shackling, did not give an
appropriate admonition to the jury when defendant’s leg brace became visible
during a witness’s testimony regarding his tattoos, and failed to hold a hearing
when jurors viewed him being taken into court in chains. He contends these
various errors deprived him of his right to due process and other constitutional
guarantees under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution.
With respect to the initial shackling of defendant, it is well settled “ ‘that 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. . . .’ [Citation; fn. omitted.]” (People v. Cox (1991) 53 Cal.3d 618,
651.) It is equally well settled, however, “that the use of physical restraints in the
3
Defendant contends our recent decision in People v. Reynoso, supra, 31
Cal.4th 903, violates his rights under the equal protection and due process clauses
of the federal Constitution and urges us to reconsider it. Because he presents
nothing new, we decline to do so.
19
trial court cannot be challenged for the first time on appeal . . . .” (People
v. Tuilaepa (1992) 4 Cal.4th 569, 583.) Defendant failed to make an appropriate
and timely objection regarding his shackling on constitutional or any other
grounds. In the absence of an objection, the trial court had no opportunity to set
forth the reasons it was deemed necessary for defendant to wear leg braces in the
courtroom. For all we can determine, had the matter been brought to the court’s
attention, it would have been fully justified. Having failed to preserve the record,
defendant has forfeited this claim on appeal. (Ibid.) Moreover, it does not appear
that any jurors were aware of the shackling, thus minimizing any possible
prejudice. (Cf. People v. Pride (1992) 3 Cal.4th 195, 233 [rejecting the
defendant’s claim that his shackling violated his constitutional rights because his
assertion that the jury saw his shackles was “speculative”].)
Defendant contends to the contrary that the jurors did see the leg braces
during the testimony of a prosecution witness, Sergeant Holmes, who was asked to
identify defendant’s tattoos. When the prosecutor sought to show the jury the
tattoos, defense counsel objected to having defendant “stand up and parade” in
front of them. The court indicated defendant would only need to stand at counsel
table and remove his shirt, while Holmes came down from the witness stand.
Defendant agreed to this procedure, and the matter proceeded accordingly.
Although defendant now contends “[t]here can be no doubt that the jurors saw
[his] shackles” at this time, the record fails to support such an assertion; and we
will not assume this occurred in the absence of affirmative evidence. (See People
v. Pride, supra, 3 Cal.4th at p. 233.)
Since the record fails to support defendant’s premise that the jurors saw his
leg braces, we find no error in the trial court’s failure to instruct sua sponte that
they should disregard the shackling in their deliberations. (People v. Medina
(1995) 11 Cal.4th 694, 732.)
20
Finally, defendant contends the trial court erred in failing to hold a hearing
when he was brought in chains down a courtroom hallway in the presence of
jurors. Defense counsel moved for a mistrial, alleging that, according to
defendant, three “or maybe more” jurors had seen him chained and handcuffed.
The trial court asked the bailiff about the incident. The bailiff explained that the
custody elevator usually used to transport defendant to the courtroom had
developed mechanical difficulties. Thus, they had to take a different elevator and
then come across the hall. He did not think there had been any jurors at the side of
the hall they had used. From this explanation, the court concluded “that
precautions were taken to bring [defendant] up and not paraded in front of this
courtroom” and denied the motion for a mistrial. Although defense counsel
reiterated defendant’s representation that at least three jurors had seen him, the
court reaffirmed its ruling, noting that there had been no other way to get
defendant to the courtroom, the jury was aware he was in custody, and precautions
had been taken to minimize any exposure. When the court offered to caution the
jury not to consider the fact defendant had been brought through the hallway in
chains, counsel requested a “more general” admonition not to consider the fact he
was in custody, which the court gave.
Defendant
now
contends
the trial court had a sua sponte duty to conduct a
hearing to determine what, if any, effect the shackling had on the jurors. We are
not persuaded that defendant preserved the issue for review. Indeed, he failed to
object or request a further inquiry, and we can well conceive of tactical reasons for
not making such a request. However, even if we assume the court had a duty to
act on its own initiative, we find no error. On the record before us, any exposure
of the jurors to defendant’s shackled condition could only have been extremely
brief. “Such brief observations have generally been recognized as not constituting
21
prejudicial error. [Citations.]” (People v. Duran (1976) 16 Cal.3d 282, 287, fn. 2;
People v. Tuilaepa, supra, 4 Cal.4th at p. 584.)
D. Admission of Evidence
Defendant challenges the admissibility of two categories of evidence—
eyewitness identification and gang expert testimony—both of which were properly
admitted.
1. Eyewitness Testimony
At the Adkins-Shy trial, defendant moved to exclude certain eyewitness
testimony on the basis of unduly suggestive pretrial identification procedures. At
a hearing on the motion, Deputy Sheriff Danoff testified that he prepared two
show-up folders each containing six photographs. He placed Anthony Bereal’s
photo in the first folder (position 6), and defendant’s in the second (position 4).
Prior to viewing either of the folders, the witnesses were directed to read an
admonition advising them that the suspect may or may not be depicted and they
were not obligated to pick any photo.
When the folders were displayed to Donald Jacobs, he was unable to make
any identification. Roger Outley identified Bereal’s photo, indicating “That’s the
guy that was doing the talking.” Looking at the second folder, Outley stated that
the person in position 4 (defendant) looked the most like the one who shot Adkins.
Kenneth Sledge, who previously told Danoff that individuals named Carmen and
Ant Bug were involved in the shooting, identified defendant’s picture as Carmen
and Bereal’s picture as Ant Bug. He did not indicate whether either was the
shooter. Kenneth Shy could not identify Bereal, but stated defendant was the
person who shot at him and Adkins.
Several months later and prior to the initial preliminary hearing, the
prosecutor again showed the folders to Jacobs, Outley, and Shy and asked them to
22
pick out the assailant. Outley and Shy repeated their identifications; and Jacobs
now said he could identify defendant as well. Although the three had been
brought to the sheriff’s station together to review the photographs, they were
interviewed separately.
The trial court denied the motion to exclude the eyewitness identifications,
stating that it did “not find anything impermissibly suggestive or anything that
might lead to a misidentification . . . .”4 Defendant now contends the denial of his
motion deprived him of his rights under the federal Constitution. We disagree.
Defendant bases his argument on speculation that these three witnesses conferred
or colluded before and after they made their second identifications and that having
them review the folders prior to the preliminary hearing was unduly suggestive as
to their subsequent testimony. None of this speculation is supported by the record.
Nor were the circumstances in any other respect “so impermissibly suggestive as
to give rise to a very substantial likelihood of irreparable misidentification.”
(Simmons v. United States (1968) 390 U.S. 377, 384.) Moreover, in view of the
witnesses’ original identifications, the likelihood of any undue suggestiveness was
minimal.
2. Testimony of “gang experts”
Defendant contends the trial court erroneously permitted the testimony of
two gang experts, Compton Police Commander Hourie Taylor and Deputy Sheriff
Joe Holmes.
Initially, defendant contends the prosecutor impermissibly used fact-
specific hypothetical questions to elicit testimony from these experts that a gang
4
As a result, Jacobs, Outley, and Shy all testified and identified defendant as
Adkins’s shooter.
23
member going into rival gang territory—like defendant—would do so as a
challenge and would protect himself with a weapon. According to defendant, the
specificity of the hypothetical questions converted the answers by the experts into
improper opinions on his state of mind and intent at the time of the shooting. As
such, the experts were not merely explaining “gang practices or methods
generally” but “opining that” defendant “premeditated the crimes.” Defendant,
however, misconstrues the substance of the testimony. The experts did not render
an impermissible opinion as to defendant’s actual intent; rather, they properly
testified as to defendant’s motivations for his actions.
In
People v. Gardeley (1996) 14 Cal.4th 605, 617, this court recognized
that “[t]he subject matter of the culture and habits of criminal street gangs . . .
meets [the] criterion [of Evidence Code section 801 defining the admissibility of
expert testimony]. [Citations.]” As in Gardeley, that matter is “of particular
relevance here” (Gardeley, at p. 617) considering the circumstances leading to the
shooting of Adkins and Shy. Nevertheless, defendant argues that expert testimony
as to his being armed with the intention of shooting anyone who issued any form
of gang challenge did more than embrace an ultimate issue in the case; it allowed
the prosecutor to solicit the experts’ opinions as to his mental state through
impermissible hypothetical questions. “Generally, an expert may render opinion
testimony on the basis of facts given ‘in a hypothetical question that asks the
expert to assume their truth.’ [Citation.] Such a hypothetical question must be
rooted in facts shown by the evidence, however. [Citations.]” (Id. at p. 618.)
Defendant
relies
on
People v. Killebrew (2002) 103 Cal.App.4th 644, in
support of his contention the hypothetical questions in this case exceeded
permissible limits. In Killebrew, the defendant was convicted of conspiracy to
possess a handgun after police found a handgun in one of three vehicles occupied
by seven gang members and another handgun in the dumpster of a taco stand
24
where the members had stopped. Killebrew was seen in the area of one of the
vehicles, and two unidentified men were seen walking away from his location.
(Id. at p. 648.) “The prosecution theorized that the threat of [rival gang] retaliation
compelled the occupants of the three vehicles to conspire to possess the
handgun[s] . . . .” (Id. at p. 649.) The prosecution attempted to establish that the
defendant had been a passenger in one of the vehicles. “[A] police officer testified
as an expert on gangs to establish not only Killebrew’s membership in a criminal
street gang, but his subjective knowledge and intent to possess [a] handgun.” (Id.
at p. 647.)
On appeal, the defendant challenged the admissibility of the expert’s
testimony “that when one gang member in a car possesses a gun, every other gang
member in the car knows of the gun and will constructively possess the gun,”
arguing “that these opinions on the subjective knowledge and intent of each
occupant in the car were improperly admitted.” (People v. Killebrew, supra, 103
Cal.App.4th at p. 652, fn. omitted.) The Court of Appeal agreed, finding the
“testimony is not the type of culture and habit testimony found in the reported
cases. Gardeley addressed testimony about the primary purpose of the gang, and
whether the attack was gang-related activity.” (Id. at p. 654.) On this basis, the
court distinguished cases such as People v. McDaniels (1980) 107 Cal.App.3d
898, in which the expert “testified that a person who lived in a gang’s territory was
automatically associated with that gang by rival gangs, fistfights between gangs
normally occur at neutral sites, if a gang traveled to another gang’s territory,
normally more than a fistfight would occur, and it was unusual for various Crip
factions to band together when taking retaliatory action.” (Killebrew, at p. 656;
see also, e.g., People v. Olguin (1994) 31 Cal.App.4th 1355, 1367.)
We conclude that the expert opinions in this case fall within the gang
culture and habit evidence approved in People v. Gardeley, supra, 14 Cal.4th at
25
page 617. The substance of the experts’ testimony, as given through their
responses to hypothetical questions, related to defendant’s motivation for entering
rival gang territory and his likely reaction to language or actions he perceived as
gang challenges. (See People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208-1209;
see also Gardeley, at p. 619; People v. Valdez (1997) 58 Cal.App.4th 494,
508-509; People v. Olguin, supra, 31 Cal.App.4th at p. 1371.) This testimony was
not tantamount to expressing an opinion as to defendant’s guilt. (See People
v. Torres (1995) 33 Cal.App.4th 37, 47-48.) Accordingly, we find no abuse of the
trial court’s discretion in admitting it.
Defendant further contends the prosecutor improperly used expert
testimony to enhance witness credibility. Even assuming such testimony is
impermissible after Proposition 8 (see People v. Padilla (1995) 11 Cal.4th 891,
946-947 [questioning whether such rules for crimes committed after the June 1982
effective date of Cal. Const., art. I, § 28, subd. (d), known as Prop. 8’s Truth-in-
Evidence provision, were still in effect], overruled on another ground by People v.
Hill (1998) 17 Cal.4th 800, 823, fn. 1), we find nothing in the record supporting
his assertion that Taylor testified Donald Jacobs was credible or truthful. Taylor
was never questioned about Jacobs and never mentioned him. In arguing for the
admissibility of the expert testimony, the prosecutor stated he was “trying to
bolster the credibility of Donald Jacobs in terms of the truthfulness of his
statement as to why he would feel fear in not making the identification . . . .”
Defendant now contends this was not the proper subject of expert testimony
because the prosecutor failed to identify any misconceptions the jurors might have
in this regard that the testimony would dispel. (Cf. People v. McAlpin (1991) 53
Cal.3d 1289, 1300-1302.) Since he failed to object on this basis, the prosecutor
had no chance to respond, and the trial court had no chance to consider whether
26
the evidence should have been excluded for that reason. Accordingly, the claim is
forfeited. (See People v. Wash (1993) 6 Cal.4th 215, 244.)
In any event, it is meritless because under the circumstances the trial court
would not have abused its discretion in overruling such an objection. Initially,
Jacobs had not identified defendant as the shooter when questioned by law
enforcement, explaining he was concerned for his safety since he lived in gang
territory and his cousin had recently been killed walking home from football
practice. Taylor testified that witnesses, even those from rival gangs, are often
reluctant to identify or testify against gang members out of fear for their safety.
This court has frequently permitted the use of expert testimony to explain to lay
jurors conduct that may appear counterintuitive in the absence of such insight.
(See People v. Brown (2004) 33 Cal.4th 892, 904-908; People v. McAlpin, supra,
53 Cal.3d at pp. 1300-1302; People v. Bledsoe (1984) 36 Cal.3d 236, 247-248.)
Invariably, the point of such an explanation is to support another witness’s
credibility. Assuming a proper foundation for the expert’s qualifications, we see
no reason to exclude such testimony as it relates to gang activities. A juror
unfamiliar with the particulars of gang intimidation may well consider it abnormal
for a witness not to want to testify against an individual who committed a violent
crime against himself or a family member or friend. If an expert can shed light on
such reluctance, the testimony is admissible.
Defendant
also
raises
constitutional
objections to the testimony. Assuming
the objections were properly preserved for appeal (see People v. Yeoman (2003)
31 Cal.4th 93, 117, 133), they are without merit for the same reasons.
27
E. Instructional Issues
1. Failure to Instruct Regarding Accomplice Liability and
Credibility Assessment of Prosecution Witness Springer
Defendant contends that at the Stumpf trial the court had a sua sponte
obligation to give accomplice liability instructions regarding the testimony of
George Springer in light of evidence “it was Springer and not [defendant] who
shot Stumpf.” As an alternate theory, defendant argues Springer aided and abetted
his sale of drugs to Stumpf and was therefore liable for the murder as a natural and
probable consequence of that crime. According to defendant, the failure to give
this instruction deprived him of his right to due process and other constitutional
guarantees. We find no error.
As to the first theory—that Springer was the direct perpetrator of Stumpf’s
murder—defendant’s contention is legally unsound. Although section 1111
defines an accomplice as “one who is liable to prosecution for the identical offense
charged against the defendant on trial in the cause in which the testimony of the
accomplice is given,” the law further requires a relationship between the defendant
and accomplice, either by virtue of a conspiracy or by acts aiding and abetting the
crime. (See People v. Garceau (1993) 6 Cal.4th 140, 183.) The record, however,
contains no evidence of a conspiracy between Springer and defendant or that
Springer somehow aided and abetted defendant in the commission of any crime.
As such, the standard instruction on witness credibility (see CALJIC No. 2.20)—
including “[t]he existence or nonexistence of a bias, interest, or other motive”—
was sufficient to apprise the jury on its consideration of Springer’s testimony.
People v. Gordon (1973) 10 Cal.3d 460, relied on by defendant, is
distinguishable and does not undermine this conclusion. In that case, the
defendant’s testimony established a preexisting involvement between him and the
prosecution witness he asserted was an accomplice. (Id. at pp. 465-466.) The
28
prosecutor also indicated the witness was involved in the crime. (Id. at p. 467.)
On that basis, this court concluded that the question of whether the witness was an
accomplice should have been submitted to the jury along with cautionary
instructions on accomplice credibility. (Id. at pp. 468-469.) Here, defendant
denied being at the scene of the murder, much less having some connection with
Springer in its perpetration. The prosecution also never suggested anyone but
defendant killed Stumpf.
Defendant’s second theory of accomplice liability—that murder is a natural
and probable consequence of any drug sale—fails for similar reasons. There is no
evidence in the record even suggesting that Springer was associated in any way
with defendant in the selling of drugs. Indeed, Springer accompanied the unarmed
victim who wanted to purchase drugs—and not defendant who was armed while
selling drugs. As such, there was no evidence to support an accomplice
instruction under a natural and probable consequence theory.
2. CALJIC No. 2.92
At the Adkins-Shy trial, defendant asked the court to modify the standard
eyewitness instruction, CALJIC No. 2.92, “to add whether the witness’s first
identification occurred in court as one addition; and, next, the lack of any in-court
identification; next, the existence or non-existence of any bias in the identification;
next, the existence or non-existence of any suggestiveness in the identification.”
Defendant based the request for this modification on the testimony of his
eyewitness identification expert, Kathy Pedzdek, who testified generally regarding
the reliability of eyewitness testimony and who also reviewed the out-of-court
statements and in-court prosecution witnesses for factors that would raise a doubt
as to the reliability of their identifications of defendant. The court declined the
request and gave the standard instruction, which in part directed the jury to
29
“consider the believability of the eye witness as well as other factors which bear
upon the accuracy of the witness’ identification,” including “[t]he extent to which
the witness is either certain or uncertain of the identification.” (CALJIC No. 2.92
(5th ed. 1988).)
Defendant contends the trial court erroneously included the “level of
certainty” factor and should have modified CALJIC No. 2.92 by adding “(1) when
a person makes an out-of-court identification he is more likely to repeat the
identification in-court and to do so with a greater level of certainty (whether or not
the original identification is accurate) because he will now remember the accused
from the prior lineup and his identification has been ‘validated’ by the fact the
person whom he identified has been formally accused by the government and is on
trial; and, (2) when a witness is asked to make a one-person show-up
(identification of the accused) in the court room, the situation is highly
suggestive.” According to defendant, the instruction and its omissions deprived
him of his rights under the Eighth and Fourteenth Amendments of the federal
Constitution. We find no error.
With respect to the proposed modification, defendant never requested the
additions he now asserts should have been given; and we find no basis for
imposing a sua sponte duty to modify CALJIC No. 2.92 as now asserted.
(Cf. People v. Alcala (1992) 4 Cal.4th 742, 802-803 [no sua sponte duty to give
CALJIC No. 2.92].) And even assuming the wording of the standard instruction
regarding an eyewitness’s level of certainty was erroneous, the error was harmless.
Numerous witnesses identified defendant at the scene of the crime and as Adkins’s
shooter. Moreover, defendant’s expert testified that there was no correlation
between an eyewitness’s level of certainty and the accuracy of his or her
identification, and CALJIC No. 2.92 expressly permitted consideration of this
testimony. Finally, defendant strongly attacked the accuracy of the eyewitness
30
identifications. Under these facts, it is not reasonably probable that defendant
would have obtained a more favorable result absent the alleged error. (See People
v. Wright (1988) 45 Cal.3d 1126, 1144.)
3. Failure to Instruct Regarding the Effect of Provocation on a
Finding of Premeditation and Deliberation
Defendant contends in light of testimony that the murder of David Adkins
and the attempted murder of Kenneth Shy may have been precipitated by one or
more gang challenges, the trial court’s failure to instruct sua sponte that evidence
of provocation may reduce a murder from first to second degree violated various
constitutional rights. Specifically, he argues the court should have given CALJIC
No. 8.73 (5th ed. 1988), which provides: “When the evidence shows the existence
of provocation that played a part in inducing the unlawful killing of a human
being, but also shows that such provocation was not such as to reduce the
homicide to manslaughter, and you find that the killing was murder, you may
consider the evidence of provocation for such bearing as it may have on the
question of whether the murder was of the first or second degree.”5 According to
defendant, unlike CALJIC No. 8.42, which the court gave, CALJIC No. 8.73
“serves to alert the jury that a lesser provocation, not measured by an ‘objective’
standard, has legal significance and may suffice to vitiate a finding of
premeditation.” As such, defendant contends the failure to give this instruction
deprived him of his rights under the Sixth, Eighth, and Fourteenth Amendments of
the United States Constitution.
On this record, we find that CALJIC No. 8.73 amounted to a pinpoint
instruction on the effect of provocation, a refinement of the basic principles set
5
Defendant actually requested the instruction, and the court agreed to give it
but for some reason failed to do so.
31
forth in CALJIC No. 8.42. A pinpoint instruction “relate[s] particular facts to a
legal issue in the case or ‘pinpoint[s]’ the crux of a defendant’s case, such as
mistaken identification or alibi.” (People v. Saille (1991) 54 Cal.3d 1103, 1119.)
A trial court must give a pinpoint instruction, even when requested, only if it is
supported by substantial evidence. (People v. Marshall (1997) 15 Cal.4th 1, 39.)
The evidentiary premise of a provocation defense is the defendant’s emotional
reaction to the conduct of another, which emotion may negate a requisite mental
state. Here, defendant argues gang challenges by Adkins—eventually responding
“Neighborhood” to Anthony Bereal’s goading—may have emotionally aroused
and provoked his assault on the victims. However, the record contains no
evidence of what, if any, response defendant had to the purported challenges,
assuming Adkins’s response was so interpreted. Absent an evidentiary basis, there
was no error in the failure to give CALJIC No. 8.73.
F. Alleged Prosecutorial Misconduct
Defendant
contends
the
prosecutor, in violation of his rights under the
federal Constitution, engaged in multiple instances of misconduct during closing
argument in the Adkins-Shy guilt trial by improperly vouching for the credibility
of prosecution witnesses Jacobs and Outley and expressing his belief that defense
witness Belyeu was not believable. Except for one comment, defendant failed to
object to any of the statements or seek a curative admonition; and thus the claim is
forfeited. (People v. Prieto (2003) 30 Cal.4th 226, 259-260.) Even disregarding
this procedural default, we would find no error.
“ ‘[A] prosecutor is given wide latitude during argument. The argument
may be vigorous as long as it amounts to fair comment on the evidence, which can
include reasonable inferences, or deductions to be drawn therefrom. [Citations.]
It is also clear that counsel during summation may state matters not in evidence,
32
but which are common knowledge or are illustrations drawn from common
experience, history or literature.’ [Citation.] ‘A prosecutor may “vigorously argue
his case and is not limited to ‘Chesterfieldian politeness’ ” [citation] . . . .’ ”
(People v. Wharton (1991) 53 Cal.3d 522, 567-568.) Nevertheless, “[a] prosecutor
is prohibited from vouching for the credibility of witnesses or otherwise bolstering
the veracity of their testimony by referring to evidence outside the record.
[Citation.] Nor is a prosecutor permitted to place the prestige of [his] office
behind a witness by offering the impression that [he] has taken steps to assure a
witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s
assurances regarding the apparent honesty or reliability of prosecution witnesses
are based on the ‘facts of [the] record and the inferences reasonably drawn
therefrom, rather than any purported personal knowledge or belief,’ [his]
comments cannot be characterized as improper vouching. [Citations.]” (People
v. Frye (1998) 18 Cal.4th 894, 971.)
Considering each of the complained-of comments in context, we find
nothing that exceeded these limitations. For example, in telling the jury that in
seeking the death penalty, “I’m going to give you as much reliable, believable and
credible evidence as I can” and “[y]ou want truthful testimony to convince a jury,”
the prosecutor was not attesting to a particular witness’s credibility but essentially
explaining his assessment of the burden the People must carry to convince 12
jurors of defendant’s guilt beyond a reasonable doubt. In referring to Jacobs’s
testimony—“The only thing I have ever told him is to tell the truth, nothing but the
truth, and that’s what he did for you”—he was no more than expressing his view
of and reasonable inferences from the totality of the evidence. (See, e.g., People
v. Thomas (1992) 2 Cal.4th 489, 526.) “The fact that comments upon the
testimony of certain witnesses made in an argument have been couched in the first
person does not of itself render them improper.” (People v. Katz (1965) 234
33
Cal.App.2d 413, 419.) The same analysis applies to the prosecutor’s remark that
Outley’s testimony “is the type of evidence I’m talking about that I am relying on
in terms of being truthful, believable and credible evidence.” Considered in
context, this was no more than a comment on the relative quality and strength of
this witness in light of his identification of defendant as the shooter.
Nor did the prosecutor improperly attack the credibility of defense witness
Belyeu by reference to anything outside the record. The evidence established that
Belyeu originally made a statement to the police that Anthony Bereal was the
shooter but at trial said it was defendant. In light of this and other inconsistencies,
the prosecutor’s complained-of remarks are reasonably read as a reminder that the
jury must ultimately decide the truth of what it heard.
G. Cumulative Guilt Phase Error
To the extent there were any errors in the guilt phase, they are minimal.
We therefore reject defendant’s claim of cumulative error.
H. Constitutionality of Multiple-Murder Special Circumstance
Defendant
contends
the
multiple-murder special circumstance for a prior
second degree murder (§ 190.2, subd. (a)(2)) is irrational and deprives him of due
process, equal protection, and other guarantees under the federal Constitution,
because it depends on the fortuity of the order in which the murder convictions
occur. If the first murder conviction is for first degree murder—rather than as
here, for second degree murder—the special circumstance is inapplicable.
In this case, defendant was initially charged with the Adkins murder; the
Stumpf murder was charged eight months later and the charges were consolidated.
When he successfully moved to sever the murder counts, the Stumpf prosecution
proceeded first. Defendant now argues that he would not have been death eligible
34
had the murders been tried separately in the order charged, because the Stumpf
jury found him guilty of only second degree murder.
Disregarding the fact defendant’s argument attempts to take advantage of
his successful motion to sever otherwise properly consolidated murder charges, no
constitutional violation appears. The Legislature is vested with broad discretion in
the classification of punishments, and underinclusiveness rarely justifies
invalidating its determination in that regard. “Normally, the widest discretion is
allowed the legislative judgment in determining whether to attack some, rather
than all, of the manifestations of the evil aimed at; and normally that judgment is
given the benefit of every conceivable circumstance which might suffice to
characterize the classification as reasonable rather than arbitrary and invidious.”
(McLaughlin v. Florida (1964) 379 U.S. 184, 191; see Warden v. State Bar of
California (1999) 21 Cal.4th 628, 649.) This principle applies equally to the
classifications for purpose of death eligibility. (See In re Anderson (1968) 69
Cal.2d 613, 632; see also Gregg v. Georgia (1976) 428 U.S. 153, 186.)
With respect to the multiple-murder special circumstance, the Legislature
could reasonably conclude that death eligibility must necessarily be predicated on
a conviction for first degree murder with some further qualification such as a prior
conviction for either first or second degree murder. We find nothing arbitrary or
irrational in this determination simply because in this case, by virtue of
defendant’s successful severance motion, the order of conviction subjected him to
the death penalty. Defendant’s argument also depends on the fortuity that
although committed first, the Stumpf murder was charged later and consolidated.
Had the prosecution on that count proceeded in the order of the crimes, defendant
would have been in the same position as actually occurred here. And to the extent
defendant contends the multiple-murder special circumstance violates our federal
and state Constitutions because it does not require the earlier murder conviction be
35
based on the crime that was committed first, it is meritless under the facts of this
case. Here, defendant’s earlier murder conviction was based on the crime that he
committed first. Thus, he suffered no violation of any constitutional guarantee.
Defendant contends, nevertheless, that we must subject the death-eligible
classifications to strict scrutiny in light of certain language in People v. Olivas
(1976) 17 Cal.3d 236. As an initial matter, we question whether defendant has
adequately identified a group of which he is a member that has been treated
differently than a similarly situated group. Defendant is similarly situated to other
defendants charged with a multiple-murder special circumstance and has received
the same treatment as those defendants at each stage of the proceedings.
In any event, Olivas is inapposite here. That case involved the commitment
of a juvenile convicted in adult court to the Youth Authority for a period longer
than the applicable prison sentence and the question whether that disparity
violated equal protection. In analyzing that question, the court stated that the
juvenile had a “ ‘personal liberty interest’ ” in being free from incarceration as
well as other restraints and controls by the Youth Authority. (People v. Olivas,
supra, 17 Cal.3d at p. 245; see id. at p. 251.) We have recently explained that
Olivas “ ‘requires only that the boundaries between the adult and juvenile criminal
systems be rigorously maintained’ ” and does not require “ ‘the courts to subject
all criminal classifications to strict scrutiny requiring the showing of a compelling
state therefor.’ ” (People v. Wilkinson (2004) 33 Cal.4th 821, 837-838, quoting
People v. Davis (1979) 92 Cal.App.3d 250, 258.) In any event, we do not consider
Olivas controlling here given our prior determination in In re Anderson, supra, 69
Cal.2d at page 632, with regard to the former death penalty statute, that “the fixing
of penalties for a crime is a legislative function [citations], and we will not nullify
the legislative judgment as to the appropriate penalties for the heinous crime of
first degree murder. It is for the Legislature and not this court to decide whether it
36
is sound public policy to empower the imposing of the death penalty. [Citation.]”
This determination fully accords with the United States Supreme Court’s
pronouncements as well. (See Gregg v. Georgia, supra, 428 U.S. at pp. 186-187.)
Defendant also contends the special-circumstance finding must be set aside
in light of the United States Supreme Court’s recent decision in Blakely v.
Washington (2004) 542 U.S. ___ [124 S.Ct. 2531]. According to defendant, the
information, which was never amended, charged defendant with the multiple-
murder special circumstance codified in section 190.2, subdivision (a)(3)—which
requires “multiple murder when all the offenses in question are tried in the same
proceeding” (People v. Anderson (1987) 43 Cal.3d 1104, 1148). Because the
murder charges were severed, however, defendant’s two murder convictions did
not occur in the same proceeding. As such, section 190.2, subdivision (a)(3) did
not apply. Thus, defendant contends the special-circumstance finding must be
reversed because the jury was not and could not be required to make such a
finding in violation of Blakely.
Defendant, however, ignores the actual findings of the jury. As defendant
correctly observes, once the trial court severed the murder charges against
defendant, section 190.2, subdivision (a)(2)—which requires a prior conviction of
“murder in the first or second degree”—applied. The trial court recognized this
and correctly instructed the jury on the elements of the multiple-murder special
circumstance found in section 190.2, subdivision (a)(2). And, based on this
instruction, the jury found as true the special circumstance codified in section
190.2, subdivision (a)(2). As such, the special-circumstance finding underlying
defendant’s judgment of death was made by a jury as required by Blakely.
To the extent defendant contends his judgment of death must be reversed
because the prosecutor failed to amend the information, his contention fails. As an
initial matter, no such amendment was arguably necessary because section 190.2,
37
subdivision (a)(2) and section 190.2, subdivision (a)(3) “are plainly
complementary, and were evidently intended to define a single basic special
circumstance—multiple murder—which can be satisfied by convictions in a single
proceeding or in more than one proceeding.” (People v. Anderson, supra, 43
Cal.3d at p. 1149, italics added.) In any event, defendant, by accepting the jury
instruction and the jury’s finding on the allegedly uncharged special circumstance,
acquiesced in the special-circumstance finding. Indeed, defendant expressly
acknowledged that severance of his murder charges would result in the application
of section 190.2, subdivision (a)(2). As such, no amendment of the information
was necessary, and we reject defendant’s Blakely challenge. (See People v. Toro
(1989) 47 Cal.3d 966, 973, fn. 4 [“ ‘when the defendant acquiesces in conviction
of an uncharged offense . . . no amendment of the indictment or information is
necessary’ ”], disapproved on another ground by People v. Guiuan (1998) 18
Cal.4th 558, 568, fn. 3.)
I. Refusal of Defense Instructions
Defendant requested the following instruction on lingering doubt: “Each
individual juror may consider as a mitigating factor residual or lingering doubt as
to whether the defendant intentionally killed the victim. Lingering or residual
doubt is defined as the state of mind between beyond a reasonable doubt and
beyond all possible doubt.” Finding no authority for such an instruction, the trial
court declined to give it, but indicated counsel were not precluded from arguing
lingering doubt in mitigation. Defendant now contends the failure to give the
instruction violated his rights under the federal Constitution. We disagree.
This court has consistently held that neither federal nor state constitutional
law imposes an obligation to give the requested instruction. (People v. Lawley
38
(2002) 27 Cal.4th 102, 166; People v. Staten (2000) 24 Cal.4th 434, 464; see
People v. Cox, supra, 53 Cal.3d at pp. 675-679.)
Defendant nevertheless claims error under state law based on language in
People v. Cox, supra, 53 Cal.3d at page 678, footnote 20, that in compliance with
the trial court’s statutory mandate to “charge the jury ‘on any points of law
pertinent to the issue, if requested’ [citations] . . . it may be required to give a
properly formulated lingering doubt instruction when warranted by the evidence.
[Citations.]” We have since held, however, that such an instruction is generally
unnecessary where, as here, the court instructs in the standard terms of section
190.3, factors (a) and (k). (People v. Hines (1997) 15 Cal.4th 997, 1068.)
Accordingly, in making its penalty determination, the jury may consider “ ‘the
circumstances of the crime of which defendant was convicted in the present
proceeding and the existence of any special circumstance found to be true’
[citation] and ‘any other circumstance which extenuates the gravity of the crime,
even though it is not a legal excuse for the crime, and any sympathetic or other
aspect of the defendant’s character or record that the defendant offers as a basis for
a sentence less than death, whether or not related to the offense for which he is on
trial’ [citation]. These instructions sufficiently encompass[] the concept of
lingering doubt, and the trial court [is] under no duty to give a more specific
instruction. [Citations.]” (Hines, at p. 1068; see also People v. Sanchez (1995) 12
Cal.4th 1, 77-78.)
Moreover, nothing in the court’s ruling precluded counsel from arguing
lingering doubt in mitigation, which is precisely what he did. Indeed, counsel
even used language paraphrased from the proffered instruction: “You may
consider lingering doubt in deciding between whether or not he [defendant] lives
in prison without the possibility of parole or if he dies in the gas chamber. That’s
39
what it is for.” We thus find no error in the refusal to instruct specifically on the
point.
Defendant also faults the trial court for refusing to instruct that “[a]
sentence of life without possibility of parole means that the defendant will remain
in state prison for the rest of his life and will not be paroled at any time.”
According to defendant, this refusal violated his rights under the federal
Constitution. “The omission[, however,] was entirely proper under California law,
since the proffered instruction is inaccurate. The Governor may ameliorate any
sentence by use of the commutation or pardon power, and it is thus ‘ “incorrect to
tell the jury the penalty of . . . life without possibility of parole will inexorably be
carried out” [citation].’ [Citation.]” (People v. Arias (1996) 13 Cal.4th 92, 172.)
We have further determined that refusal to so instruct does not contravene any
constitutional requirement. (Id. at pp. 172-173.) In any event, the proffered
instruction adequately informed the jury that defendant “would not be eligible for
parole.” (People v. Snow (2003) 30 Cal.4th 43, 123-124.)
J. Constitutionality of California’s Death Penalty Law
Defendant
raises
several
contentions regarding the constitutionality of
California’s death penalty statute. Initially, he argues that the holdings in
Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S.
584, Sattazahn v. Pennsylvania (2003) 537 U.S. 101, and Blakely v. Washington,
supra, 542 U.S. ___ [124 S.Ct. 2531], constitutionally mandate instructing a
capital jury to (1) find proof beyond a reasonable doubt of aggravating factors, (2)
find beyond a reasonable doubt that the aggravating factors outweigh the
mitigating factors, (3) find beyond a reasonable doubt the appropriateness of
death, (4) reach unanimity as to the aggravating factors, and (5) presume that life
imprisonment without the possibility of parole is the appropriate sentence.
40
As to each of these considerations, we have previously determined our
death penalty statute withstands constitutional scrutiny. (See People v. Prieto,
supra, 30 Cal.4th at pp. 262-263, 271; People v. Jenkins, supra, 22 Cal.4th at
p. 1054.) We have also reexamined these conclusions in light of Apprendi v. New
Jersey, supra, 530 U.S. 466, Ring v. Arizona, supra, 536 U.S. 584, and Blakely v.
Washington, supra, 542 U.S. ___ [124 S.Ct. 2531], and determined their holdings
have not altered our conclusions. (See People v. Morrison (2004) 34 Cal.4th 698,
730-731; Prieto, at p. 275.) We reach the same conclusion with respect to the
effect of Sattazahn v. Pennsylvania, supra, 537 U.S. 101. In Sattazahn, the United
States Supreme Court simply reiterated, in the context of a double jeopardy
analysis, the basic principle of Apprendi we have found inapplicable to
California’s death penalty scheme—that “if the existence of any fact (other than a
prior conviction) increases the maximum punishment that may be imposed on a
defendant, that fact . . . constitutes an element, and must be found by a jury
beyond a reasonable doubt.” (Sattazahn, at p. 111.) As we have explained,
“ ‘[U]nder the California death penalty scheme, once the defendant has been
convicted of first degree murder and one or more special circumstances has been
found true beyond a reasonable doubt, death is no more than the prescribed
statutory maximum for the offense; the only alternative is life imprisonment
without the possibility of parole.’ [Citation.]” (Prieto, at p. 263.)
For the same reason, none of the cited cases—Apprendi, Ring, Sattazahn,
or Blakely—affects our prior determination that the jury “may properly consider
evidence of unadjudicated criminal activity involving force or violence under
factor (b) of section 190.3 and need not make a unanimous finding on factor (b)
evidence. [Citations.] Contrary to defendant’s implication, ‘the court must
instruct, on its own motion, that no juror may consider any alleged other violent
crime in aggravation of penalty unless satisfied beyond a reasonable doubt that the
41
defendant committed it [citations]. [Citation.]” (People v. Brown (2004) 33
Cal.4th 382, 402.)
We also decline to reexamine our determination, consistently reaffirmed,
that the death penalty law adequately narrows the class of death-eligible offenders.
(People v. Brown, supra, 33 Cal.4th at p. 401; People v. Prieto, supra, 30 Cal.4th
at p. 276.)
K. Violation of International Law
Defendant contends California’s death penalty statute is unconstitutional
because the use of the death penalty as a regular form of punishment falls short of
international norms of humanity and decency and fails to reflect the overwhelming
international consensus disfavoring capital punishment. “[W]e have previously
considered and rejected the various permutations of defendant’s arguments.
[Citations.] As succinctly stated in People v. Hillhouse [(2002) 27 Cal.4th 469,]
511: ‘International law does not prohibit a sentence of death rendered in
accordance with state and federal constitutional and statutory requirements.
[Citations.]’ Since we find no other defect in imposing the death penalty against
defendant, we decline to find the law defective based on any provision of
international law.” (People v. Brown, supra, 33 Cal.4th at p. 404.)
L. Delay in Carrying Out the Death Penalty
Defendant argues that his death sentence, confinement, and eventual
execution all violate various federal and state constitutional guarantees as well as
international law because he “has been on death row for nearly more than twelve
years waiting for his automatic appeal to go forward . . . .” He submits no reason
for reexamining our consistent determination “that delay inherent in the automatic
appeal process is not a basis for concluding that either the death penalty itself, or
the process leading to its execution, is cruel and unusual punishment. [Citations.]”
42
(People v. Anderson (2001) 25 Cal.4th 543, 606.) Additionally, any reliance on
international law or extraterritorial decisional law has no bearing on the validity of
a death sentence that satisfies federal and state constitutional mandates. (People
v. Brown, supra, 33 Cal.4th at pp. 403-404; see ante, at p. 37.)
III.
DISPOSITION
We affirm the judgment.
BROWN, J.
WE CONCUR:
GEORGE,
C.J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
MORENO,
J.
43
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Ward
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S019697
Date Filed: June 30, 2005
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Madge S. Watai
__________________________________________________________________________________
Attorneys for Appellant:
Robert Franklin Howell, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey, Sharlene A. Honnaka and Kenneth N. Sokoler,
Deputy Attorneys General, for Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Robert Franklin Howell
980 Ninth Street, 16th Floor
Sacramento, CA 95814
(916) 442-1999
Kenneth N. Sokoler
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 620-6064
2
Opinion Information
| Date: | Docket Number: |
| Thu, 06/30/2005 | S019697 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Kenneth N. Sokoler, Deputy Attorney General 300 South Spring St., Suite 500 Los Angeles, CA |
| 2 | Ward, Carmen Lee (Appellant) Represented by Habeas Corpus Resource Center Michael Laurence, Executive Director 303 Second Street, Suite 400 South San Francisco, CA |
| 3 | Ward, Carmen Lee (Appellant) Represented by Robert Franklin Howell Attorney At Law 2100 Garden Road, Suite C-301 Monterey, CA |
| Disposition | |
| Jun 30 2005 | Opinion: Affirmed |
| Dockets | |
| Jan 25 1991 | Judgment of death |
| Feb 25 1991 | Filed certified copy of Judgment of Death Rendered 1-25-91. |
| Sep 15 1994 | Counsel appointment order filed Robert F. Howell Is appointed to represent Applt on His A.A., Including Any Related Habeas Proceedings. |
| Oct 13 1994 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Oct 14 1994 | Extension of Time application Granted To Applt To 12-19-94 To request Corr. of Record. |
| Dec 19 1994 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Dec 20 1994 | Extension of Time application Granted To Applt To 1-18-95 To request Corr. of Record. |
| Jan 13 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jan 13 1995 | Extension of Time application Granted To Applt To 2-17-95 To request Corr. of Record. |
| Feb 17 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Feb 27 1995 | Extension of Time application Granted To Applt To 3-20-95 To request Corr. of Record. no further Extensions of time Are Contemplated. |
| Mar 13 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Mar 16 1995 | Extension of Time application Granted To Applt To 4-19-95 To request Corr. of Record. |
| Mar 23 1995 | Compensation awarded counsel |
| Apr 19 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Apr 19 1995 | Change of Address filed for: Atty Robert Howell. |
| Apr 24 1995 | Extension of Time application Granted To Applt To 5-19-95 To request Corr. of Record. |
| May 15 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| May 19 1995 | Extension of Time application Granted To Applt To 6-19-95 To request Corr. of Record. no further Extensions of time will be Granted. |
| Jun 19 1995 | Change of Address filed for: Atty Robert Howell. |
| Jun 19 1995 | Received: Copy of Applt's request to correct, Settle & Augment Record on Appeal (18 Pp.) |
| Jun 28 1995 | Compensation awarded counsel |
| Jan 11 1996 | Filed: Applt's request to correct, Settle & Augment the Record (19 Pp. Excluding attachments) |
| Feb 2 1996 | Filed: Response to request to correct, Settle and Augment the Record |
| Mar 14 1996 | Order filed: Applt's request to correct the Record Is denied Due to Insufficient Showing of Need.Applt's request to Augment the Record Is Granted,with the Exception of His request to Include the "Juror Indoctrination Book".as to that Matter,Applt has Provided an Insufficient Showing of Need,and the Request Is denied. with Respect to the Request to to Augment the Record with Jury Questionnaire Responses,the Clerk of the Los Angeles Superior Court Is directed to Compile the Questionnaires, Indexed and Bound in Transcript Form, to Transmit the Original to this Court, & to Provide copies to the Applt and to the People. Applt's request that We Order the Preparation of A Settled Statement as to the Contents of the Unreported Bench Conference of December 5, 1989 Referred to in His request for Settled Statement, Is granted (Rule 36, Calif. Rules of Court). |
| Jan 8 1997 | Change of Address filed for: Atty Robert Howell. |
| Oct 28 1998 | Compensation awarded counsel |
| Apr 26 1999 | Compensation awarded counsel |
| Mar 22 2000 | Change of Address filed for: Atty Robert Howell |
| Jun 14 2000 | Compensation awarded counsel Atty Howell |
| Aug 8 2000 | Counsel's status report received (confidential) from atty Howell. |
| Oct 16 2000 | Counsel's status report received (confidential) |
| Jan 25 2001 | Counsel's status report received (confidential) |
| Mar 28 2001 | Counsel's status report received (confidential) |
| Apr 23 2001 | Record on appeal filed C-36 vol. (9347 Pp.) - R-39 vol. (3671 Pp.) including material under seal. (Note: CT includes 8,487 pp. of juror questionnaires.) |
| Apr 23 2001 | Appellant's opening brief letter sent, due: 6/4/2001. |
| May 21 2001 | Counsel's status report received (confidential) |
| Jun 4 2001 | Application for Extension of Time filed To file AOB. (1st request) |
| Jun 6 2001 | Extension of Time application Granted To 8/3/2001 to file AOB. |
| Jul 26 2001 | Application for Extension of Time filed To file AOB. (2nd request) |
| Jul 27 2001 | Counsel's status report received (confidential) |
| Jul 30 2001 | Extension of Time application Granted to 10/2/2001 to file AOB. |
| Sep 24 2001 | Counsel's status report received (confidential) |
| Oct 1 2001 | Application for Extension of Time filed To file AOB. (3rd request) |
| Oct 10 2001 | Filed: Suppl. application for extension of time to file AOB. |
| Oct 18 2001 | Filed: Second suppl. applicaton to request extension of time to file AOB. |
| Oct 24 2001 | Extension of Time application Granted To 12/3/2001 to file AOB. No further extensions of time are contemplated. |
| Nov 30 2001 | Counsel's status report received (confidential) |
| Dec 3 2001 | Request for extension of time filed To file AOB. (4th request) |
| Dec 13 2001 | Extension of time granted To 2/2/2002 to file AOB. Atty. Howell anticipates filing the brief by 6/1/2002. Only two further extensions totaling 120 additional days are contemplated. |
| Dec 17 2001 | Order filed The order filed 12/13/2001 is amended to read as follows: Good cause appearing, and based upon counsel Robert Howell's representation that he anticipates filing appellant's opening brief by 6/1/2002, counsel's request for an extension of time in which to file that brief is granted to 2/1/2002. After that date, only two further extensions totaling 120 days are contemplated. |
| Jan 18 2002 | Counsel's status report received (confidential) |
| Jan 18 2002 | Change of Address filed for: attorney Robert Howell. |
| Feb 4 2002 | Request for extension of time filed To file AOB. (5th request) |
| Feb 13 2002 | Extension of time granted To 4/2/2002 to file AOB. Counsel anticipates filing the brief by 6/1/2002. Only one further extension totaling 60 additional days is contemplated. |
| Mar 22 2002 | Counsel's status report received (confidential) from atty Howell. |
| Apr 2 2002 | Request for extension of time filed To file AOB. (6th request) |
| Apr 4 2002 | Extension of time granted To 6/3/2002 to file AOB. Counsel anticipates filing the brief by 8/1/2002. Only one further extension totaling 59 additional days is contemplated. |
| May 20 2002 | Counsel's status report received (confidential) |
| Jun 3 2002 | Request for extension of time filed To file AOB. (7th request) |
| Jun 10 2002 | Extension of time granted To 8/1/2002 to file AOB. Counsel anticiaptes filing that brief by 9/1/2002. One further extension totaling 31 additional days will be granted. |
| Jul 19 2002 | Request for extension of time filed To file AOB. (8th request) |
| Jul 23 2002 | Counsel's status report received (confidential) |
| Jul 24 2002 | Extension of time granted To 10/1/2002 to file AOB. Counsel anticipates filing that brief by 10/1/2002. No further extension will be granted. |
| Oct 1 2002 | Request for extension of time filed To file appellant's opening brief. (9th request) |
| Oct 3 2002 | Counsel's status report received (confidential) |
| Oct 11 2002 | Extension of time granted To 11/1/2002 file appellant's opening brief. Extension is granted based upon counsel Robert Franklin Howell's representation that he anticipates filing that brief by 11/1/2002. After that date, no further extension will be granted. |
| Nov 1 2002 | Request for extension of time filed to file AOB. (10th request) |
| Nov 8 2002 | Extension of time denied The application of appellant for an extension of time to file AOB is denied. Counsel is directed to submit weekly confidential status reports until the brief is submitted for filing with the court. |
| Nov 19 2002 | Counsel's status report received (confidential) |
| Dec 4 2002 | Counsel's status report received (confidential) |
| Dec 6 2002 | Change of Address filed for: atty Howell. |
| Dec 12 2002 | Counsel's status report received (confidential) from atty Howell. |
| Dec 18 2002 | Counsel's status report received (confidential) |
| Dec 26 2002 | Counsel's status report received (confidential) |
| Jan 9 2003 | Counsel's status report received (confidential) |
| Jan 16 2003 | Counsel's status report received (confidential) |
| Jan 23 2003 | Counsel's status report received (confidential) |
| Jan 31 2003 | Counsel's status report received (confidential) |
| Feb 5 2003 | Counsel's status report received (confidential) |
| Feb 13 2003 | Counsel's status report received (confidential) |
| Feb 21 2003 | Counsel's status report received (confidential) |
| Feb 26 2003 | Counsel's status report received (confidential) |
| Mar 6 2003 | Counsel's status report received (confidential) |
| Mar 12 2003 | Counsel's status report received (confidential) |
| Mar 19 2003 | Counsel's status report received (confidential) |
| Mar 28 2003 | Counsel's status report received (confidential) |
| Apr 4 2003 | Counsel's status report received (confidential) |
| Apr 14 2003 | Counsel's status report received (confidential) |
| Apr 21 2003 | Counsel's status report received (confidential) |
| Apr 25 2003 | Counsel's status report received (confidential) |
| May 1 2003 | Counsel's status report received (confidential) |
| May 9 2003 | Counsel's status report received (confidential) |
| May 20 2003 | Counsel's status report received (confidential) |
| May 30 2003 | Counsel's status report received (confidential) |
| Jun 5 2003 | Counsel's status report received (confidential) |
| Jun 11 2003 | Counsel's status report received (confidential) |
| Jun 19 2003 | Counsel's status report received (confidential) |
| Jun 26 2003 | Counsel's status report received (confidential) |
| Jul 2 2003 | Counsel's status report received (confidential) |
| Jul 2 2003 | Counsel's status report received (confidential) |
| Jul 7 2003 | Counsel's status report received (confidential) |
| Jul 11 2003 | Counsel's status report received (confidential) |
| Jul 15 2003 | Change of Address filed for: attorney Robert Howell. |
| Jul 16 2003 | Counsel's status report received (confidential) |
| Jul 23 2003 | Counsel's status report received (confidential) |
| Jul 30 2003 | Counsel's status report received (confidential) |
| Aug 6 2003 | Counsel's status report received (confidential) |
| Aug 7 2003 | Filed: motion by appellant for permission to file late and oversize AOB. (brief submitted under separate cover) |
| Aug 8 2003 | Order filed Appellant's "Motion for Permissionto File Late and Oversize AOB," treated here as an application for relief from default and application to file an oversize appellant's opening brief, is granted. |
| Aug 8 2003 | Appellant's opening brief filed (445 pp.) |
| Aug 28 2003 | Request for extension of time filed to file respondent's brief. (1st request) |
| Sep 2 2003 | Extension of time granted to 11-6-2003 to file respondent's brief. |
| Sep 18 2003 | Counsel's status report received (confidential) |
| Oct 2 2003 | Compensation awarded counsel Atty Howell |
| Oct 30 2003 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Nov 12 2003 | Extension of time granted to 1/5/2004 to file respondent's brief. After that date, only one further extension totalng 20 additional days will be granted. Extension is gratned based upon Deputy Attorney General Kenneth N. Sokoler's representation that he anticiaptes filing that brief by 1/25/2004. |
| Dec 26 2003 | Respondent's brief filed (197 pages) |
| Jan 15 2004 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Jan 20 2004 | Filed: Amended motion and declaration for extension of time to tile appellant's reply brief. |
| Jan 22 2004 | Extension of time granted to 3/15/2004 to file appellant's reply brief. |
| Mar 15 2004 | Extension of time granted to file appellant's reply brief. (2nd request) |
| Mar 15 2004 | Counsel's status report received (confidential) |
| Mar 17 2004 | Extension of time granted to 5/14/2004 to file appellant's reply brief. After that date, only one further extension totaling about 40 additional days will be granted. Extension is granted based upon counsel Robert Franklin Howell's representation that he anticipates filing that brief by 6/25/2004. |
| May 13 2004 | Counsel's status report received (confidential) |
| May 14 2004 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| May 19 2004 | Extension of time granted to 7/14/2004 to file appellant's reply brief. After that date, only one further extension totaling about ten additional days will be granted. Extension is granted based upon counsel Robert Franklin Franklin Howell's representation that he anticipates filing that brief by 7/24/2004. |
| Jul 9 2004 | Request for extension of time filed to file reply brief. (4th request) |
| Jul 9 2004 | Counsel's status report received (confidential) |
| Jul 13 2004 | Extension of time granted to 8/13/2004 to file appellant's reply brief. Extension is granted based upon counsel Robert Howell's representation that he anticipates filing that brieg by 8/13/2004. After that date, no further extension is contemplated. |
| Aug 10 2004 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Aug 10 2004 | Change of contact information filed for: attorney Robert Franklin Howell. |
| Aug 13 2004 | Extension of time granted to 9-13-2004 to file reply brief. After that date, no further extension will be granted. Extension granted based upon counsel Robert Franklin Howell's representation that he anticipates filing the brief by 9-12-2004. |
| Sep 14 2004 | Motion filed (AA) by appellant for permission to file oversize reply brief. (received reply brief under separate cover.) |
| Sep 16 2004 | Order filed Appellant's "Motion for Permission to File Oversize Reply Brief" is granted. |
| Sep 16 2004 | Appellant's reply brief filed (50,860 words; 207 pp.) |
| Sep 30 2004 | Counsel's status report received (confidential) |
| Oct 15 2004 | Letter sent to: respondent requesting response, on or before 10/29/2004, to appellant's argument re Blakely v. Washington (2004) ___U.S. ___ [124.S.Ct. 2531] |
| Oct 26 2004 | Letter sent to: appellant requesting a reply, on or before 11/5/2004, to respondent's response to appellant's argument re Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct. 2531]. |
| Oct 29 2004 | Filed: respondent's supplemental brief in response to appellant's argument re Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct. 2531]. (2788 words; 11 pp.) |
| Nov 1 2004 | Note: received telephone call from attorney Robert Howell requesting a seven-day extension of time to file applt's reply to respondent's response to Blakely argument. Permission granted, without order filed. New due date: 11-12-2004. |
| Nov 12 2004 | Filed: appellant's response to respondent's reply re: Blakely v. Washington. (8,912 words; 30 pp.) |
| Nov 22 2004 | Counsel's status report received (confidential) |
| Nov 29 2004 | Filed: Declaration of attorney Howell prusuant to Penal Code Section 1241 ((confidential) amended 2nd submission). |
| Dec 1 2004 | Compensation awarded counsel Atty Howell |
| Dec 27 2004 | Received: letter from appellant, dated 12-23-2004, requesting that the presumptive timeliness date for Ward's habeas corpus petition be calculated from the completion of briefing. |
| Jan 6 2005 | Order filed In light of the requested supplemental briefing filed in the above automatic appeal now pending in this court, a petition for writ of habeas corpus submitted on appellant's behalf will be presumed to be filed without substantial delay if it is filed by March 28, 2005. (See Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-4 [standard adopted eff. Nov. 20, 2002].) |
| Jan 26 2005 | Counsel's status report received (confidential) |
| Feb 3 2005 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the March calendar, to be held the week of March 7, 2005 in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Feb 7 2005 | Filed letter from: attorney Robert Howell, dated 2/4/2005, requesting that oral argument be set 30 or more days after the presumptive due date for appellant's habeas petition, which is 3/28/2005. |
| Apr 1 2005 | Case ordered on calendar 5/3/05 @1:30pm, S.F. |
| Apr 7 2005 | Argument rescheduled 5/5/05 @ 1:30pm, S.F. |
| Apr 11 2005 | Counsel's status report received (confidential) |
| Apr 12 2005 | Change of contact information filed for: attorney Robert Franklin Howell. |
| Apr 14 2005 | Filed letter from: respondent, dated 4/11/2005, re focus issues for oral argument and request for 45 minutes for argument. |
| Apr 15 2005 | Filed letter from: appellant, dated 4/14/2005, re focus issues for oral argument. Appellant requested 45 minutes for arugment on case information sheet filed on 4/12/2005. |
| May 5 2005 | Cause argued and submitted |
| Jun 6 2005 | Counsel's status report received (confidential) |
| Jun 29 2005 | Compensation awarded counsel Atty Howell |
| Jun 30 2005 | Opinion filed: Judgment affirmed in full Majority Opinion By: Brown, J. Joined By: George, C.J.; Kennard, Baxter, Werdegar, Chin and Moreno, JJ. |
| Jul 15 2005 | Rehearing petition filed by appellant (6,917 words; 21 pp.) |
| Jul 19 2005 | Time extended to consider modification or rehearing to 9/28/2005, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Jul 21 2005 | Request for modification of opinion filed by respondent |
| Aug 1 2005 | Counsel's status report received (confidential) |
| Sep 7 2005 | Rehearing denied Opinion modified. |
| Sep 7 2005 | Opinion modified - change in judgment |
| Sep 23 2005 | Rehearing petition filed by appellant. (1958 words; 7 pp. - per rule 40.1(b)(3)(A)) |
| Sep 23 2005 | Change of contact information filed for: atty Robert Franklin Howell. |
| Sep 27 2005 | Time extended to consider modification or rehearing to 12/23/2005 or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Oct 5 2005 | Counsel's status report received (confidential) |
| Oct 12 2005 | Filed: atty Howell's confidential declaration. |
| Oct 26 2005 | Rehearing denied |
| Oct 26 2005 | Compensation awarded counsel Atty Howell |
| Oct 26 2005 | Remittitur issued (AA) |
| Nov 1 2005 | Counsel's status report received (confidential) |
| Nov 2 2005 | Received: acknowledgment of receipt of remittitur. |
| Dec 2 2005 | Counsel's status report received (confidential) |
| Jan 3 2006 | Counsel's status report received (confidential) |
| Jan 24 2006 | Received: copy of appellant's petition for writ of certiorari. (18 pp. - excluding attachments) |
| Jan 31 2006 | Received: letter from U.S.S.C. dated 1/25/2006, advising cert petn. filed on 1/23/2006 as No. 05-8815. |
| Feb 2 2006 | Counsel's status report received (confidential) |
| Mar 3 2006 | Counsel's status report received (confidential) |
| Mar 9 2006 | Habeas funds request filed (confidential) by attorney Robert Howell. |
| Apr 3 2006 | Certiorari denied by U.S. Supreme Court |
| Apr 4 2006 | Counsel's status report received (confidential) |
| Apr 12 2006 | Order appointing Habeas Corpus Resource Center filed On the court's own motion, the order appointing Robert F. Howell as appellate and habeas corpus counsel of record for condemned prisoner Carmen Lee Ward, filed September 15, 1994, is hereby vacated as to all further habeas corpus/executive clemency representation. Howell continues to be responsible for all remaining appellate duties set forth in Supreme Court Policies Regarding Cases Arising From Judgments of Death, policy 3, standards 1-1 and 2-1. The Habeas Corpus Resource Center is hereby appointed to represent condemned prisoner Carmen Lee Ward for all habeas corpus/executive clemency proceedings related to the above automatic appeal now final in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of prior habeas corpus counsel's failure to discharge his duty to investigate and, if appropriate, present a habeas corpus petition on behalf of condemned prisoner Carmen Lee Ward. Howell is directed to deliver to the Habeas Corpus Resource Center, within 30 days from the filing of this order, all clerk's and reporter's transcripts in People v. Ward (S019697), all habeas corpus investigation work product and trial files, and all investigation reports and related materials obtained from condemned prisoner Carmen Lee Ward's trial counsel, paralegals, experts and investigators, or from any other source. Werdegar, J., was absent and did not participate. |
| Apr 12 2006 | Order filed In conjunction with the order filed this day vacating the habeas corpus/executive clemency appointment of Robert F. Howell as counsel of record on behalf of condemned prisoner Carmen Lee Ward in the above automatic appeal now final in this court, Howell is hereby ordered to reimburse this court the sum of $8,500. (See Guidelines for Fixed Fee Appointments, on Optional Basis, to Automatic Appeals and Related Habeas Corpus Proceedings in Cal. Supreme Ct., guideline 11 ["Court Action Upon Nonperformance of Work, and Reimbursement of Fees Upon Authorized Withdrawal of Appointed Counsel"], subpt. B.) Werdegar, J., was absent and did not participate. |
| Apr 18 2006 | Related habeas corpus petition filed (post-judgment) No. S142694 |
| Apr 26 2006 | Order filed re habeas funds request (confidential) Petitioner's "Ex Parte Application for Additional Funds for Investigation," filed on March 9, 2006, is denied as moot. |
| May 3 2006 | Compensation awarded counsel Atty Howell |
| May 30 2007 | Order filed (150 day statement) |
| Briefs | |
| Aug 8 2003 | Appellant's opening brief filed |
| Dec 26 2003 | Respondent's brief filed |
| Sep 16 2004 | Appellant's reply brief filed |
