IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
PAUL GREGORY WATSON,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. A653246
Defendant Paul Gregory Watson was convicted of two counts of first degree
murder (Pen. Code, § 187, subd. (a))1 with multiple-murder special-circumstance
findings (§ 190.2, subd. (a)(3)). The jury found that defendant was armed with
and personally used a firearm in the commission of the offense. (§§ 12022, subd.
(a), 12022.5, subd. (a).) At the penalty phase, the jury returned a verdict of death.
The trial court denied defendant’s automatic application to modify the verdict
(§ 190.4, subd. (e)) and sentenced defendant to death. This appeal is automatic.
(§ 1239, subd. (b).) For the reasons that follow, we affirm the judgment.
1 All statutory references are to the Penal Code unless otherwise noted.
A. Guilt Phase
During early 1989 in Compton, California, the Atlantic Drive Crips were “at
war” with the Santana Block Crips. On the afternoon of Sunday, April 2, 1989, a
large group of people were passing the day at Compton’s Kelly Park.2 The
individuals in the park that day included members of the Atlantic Drive Crips and
their allies, the Kelly Park Crips and the In Hood Crips. By early evening,
between 100 and 150 people, most of whom were barbecuing, listening to music,
and playing basketball, remained in the park.
That evening, Timothy Martin was talking with a friend in front of the
Alondra Apartments when he noticed a white Cadillac, followed by another
vehicle, traveling westbound on Alondra Boulevard toward Castlegate Avenue.
The vehicles aroused his suspicion because there were “too many people in both
cars.” He was also alarmed because he believed the occupants to be members of
the Santana Block Crips. Martin rode his bicycle to the park to alert his brother to
the potential danger.
After talking to his brother, Martin rode to his house on Castlegate Avenue,
south of Caldwell Street. While Martin stood in his driveway talking to another
friend, he saw the same white Cadillac stop at the corner of Castlegate Avenue and
Caldwell Street. The front passenger, whom Martin identified as defendant in a
photo lineup and at trial, was seated on the door rail, holding an AK-47 rifle over
2 Kelly Park is bordered to the north by Alondra Boulevard, to the west by
Castlegate Avenue, to the south by Caldwell Street, and to the east by Harris
the roof of the car and aiming at Martin. The Cadillac then continued toward the
park, and five or six seconds later Martin heard about 20 gunshots. A reluctant
witness, Martin had received threats to his life from unidentified persons if he
Terry Fennell, who was associated with the Kelly Park Crips, was in the park
playing basketball about 6:00 that evening. After finishing a game, he walked to
his car on Butler Avenue to get a towel. As he returned to the park, he noticed
Tammy Eldridge and Ava Williams sitting in a black Toyota Celica parked in
front of the Compton Police Department substation on the north side of Caldwell
Street, with their three young children in the car. Eldridge and Williams were
talking with Earl Solomon, a member of the Atlantic Drive Crips. A white
Cadillac with three occupants was traveling westbound on Caldwell Street;
Fennell recognized the Cadillac as belonging to defendant. When Fennell reached
the sidewalk on the north side of Caldwell Street, 20 feet from the Cadillac, he
saw an AK-47, held by defendant, come out of the window. Defendant leaned out
of the front passenger window of the Cadillac and shot into the park. Fennell
ducked behind a parked car and continued to watch defendant. The Cadillac
passed Eldridge’s Celica; defendant turned back toward the Celica and continued
shooting, hitting Solomon in the head. Fennell could not remember if any cars
were following the Cadillac.
Fennell was standing about 35 to 40 feet from Solomon when Solomon was
shot. He went directly to Solomon’s body while Eldridge started her car and
drove away down Butler Avenue. Fennell was the first to arrive at Solomon’s
side, and left immediately after confirming he was dead. Fennell later returned to
the scene and spoke with police.
Fennell had been convicted of taking a vehicle and receiving stolen property.
Fennell’s friends in the neighborhood stopped talking with him because they did
not want him to come forward and testify. He and his family ultimately were
forced to move away from the neighborhood.
Gary Lomax, Fennell’s brother-in-law, was also playing basketball in the
park at the time of the shooting. His back was to Caldwell Street when he heard
the gunfire, and he turned to see what was happening. As he ran for cover, Lomax
saw two cars traveling westbound on Caldwell Street. Lomax had seen the two
cars pass the park 10 to 15 minutes before the shootings. Lomax testified
defendant was leaning out of, and trying to sit back down in, the passenger side of
one of the cars, holding what appeared to be a gun.
Between 6:00 and 6:35 p.m., Hermetta Harper, a security officer employed
by the City of Compton, was inside the police substation at Kelly Park when she
heard about 15 to 20 gunshots coming from the area of Castlegate Avenue and
Caldwell Street. Although she could not see what was going on outside, she heard
the gunfire moving westward along the south side of the park. When the firing
stopped, she saw an African-American male lying in front of the substation
bleeding profusely from a gunshot wound to the head. She approached him and
found he had no pulse. By this time, police officers were arriving at the park and
Harper returned to the substation to report a homicide.
Brian Owens, an associate of the Atlantic Drive Crips, was also in Kelly Park
that day. He saw Eldridge and Williams there in his Toyota Celica, which he had
loaned to Eldridge. Hearing gunfire, Owen looked up to see a white Cadillac
being driven westbound on Caldwell Street, with a person hanging out of the
passenger window. Owens saw the person shoot a rifle into the park, hitting
Solomon in the head. He later described the shooter as a light-skinned African-
American man wearing a white T-shirt.
After witnessing the shooting, Owens ran to his Chevrolet Cavalier, got in,
and chased the Cadillac, armed with a .45-caliber semiautomatic handgun. Some
cars that had been trailing the Cadillac moved behind Owens’s car and opened
fire. Owens could not recall whether he ever fired his weapon. He was hit in the
left shoulder and the head; at the time of trial a bullet remained in his head and he
was blind in his left eye. His memory of that day’s events was impaired. He
admitted he could not remember anything after seeing Solomon get shot and had
filled in the rest of the events by speaking to other individuals.
About 6:15 on the evening of the shootings, Officer Henry Johnson of the
Compton Police Department received a radio call directing him to go to Kelly
Park. As his partner drove down Alondra Boulevard, Johnson saw a late model
Chevrolet Cavalier traveling in the opposite direction, but he did not see anyone in
the driver’s seat. Johnson instructed his partner to make a U-turn and follow the
Cavalier, which went off the road and came to rest in a flowerbed near the corner
of Alondra Boulevard and Ward Avenue. Johnson ran to the Cavalier. Inside, an
African-American male (Owens) was lying unconscious across the front seats, his
arm extended toward the floor near a blue steel .45-caliber semiautomatic handgun
that smelled as if it recently had been fired. Johnson saw three large-caliber bullet
holes near the driver’s door, a large-caliber bullet hole at the left front fender, and
a similar hole at the left rear fender. The rear window was broken out, and in the
windshield was what appeared to be a bullet exit hole.
Irma Myricks and her daughter Latrice Nick lived near Kelly Park and were
at home on the evening of April 2, 1989. They both heard gunshots and looked
out their front door to see a white Cadillac traveling westbound on Caldwell
Street. Myricks saw someone hanging out of the car’s window firing a gun, and
then saw Solomon lying on the sidewalk.
Tammy Eldridge testified at trial that she and Williams were sitting in
Owens’s Celica parked in front of the police substation at Kelly Park while talking
with Earl Solomon, who was standing on the sidewalk on the north side of
Caldwell Street. As they talked, Eldridge heard gunshots coming from behind her
and saw people running and getting down on the ground. Eldridge tried to shield
herself and the children from the gunshots. When the shooting stopped, she
looked up to see a white Cadillac similar to one she previously had seen defendant
driving, followed by a dark blue or black car. A medium-complected African-
American man leaned out of the passenger window of the Cadillac with what
Eldridge believed to be a rifle in his hands. She then heard more shooting and
again ducked for protection. Williams’s head fell to Eldridge’s knee and, when
the firing ceased, Eldridge lifted Williams’s head, revealing a large bullet wound
to her face and causing one of her eyes to fall out of her head. Eldridge replaced
the eye and drove away to get help.
Eldridge stopped her car in front of some houses and rushed the children
inside someone’s home. Williams was not conscious or moving. Eldridge noticed
a bullet hole in the windshield of the Celica.
Alisha Dukes lived near Castlegate Avenue and Adana Street near Kelly Park
in Compton. On the evening of the shooting, she heard a car’s brakes screeching
and looked to find a car with broken glass on the passenger side stopped in the
street. A hysterical woman jumped from the car. Dukes took a baby from the car
and, after summoning help from neighbors, tried to calm the child and clean blood
and glass from its head. The adult passenger in the car appeared to be dead.
Henry Williams lived next door to Alisha Dukes. He too heard a car’s brakes
screeching and saw a woman get out yelling for help because her friend had been
shot. Williams called 911. His wife and neighbor cared for the children taken
from the car while he attended to the car’s passenger. The passenger was missing
part of her face and, believing her to be dead, Williams covered her with a blanket.
Compton Police Detective Marvin Branscomb responded to Kelly Park after
the shooting and cordoned off the area to protect the crime scene. Terry Fennell
identified defendant to Branscomb as the shooter and a member of the Santana
Block Crips, going by the moniker “Potato Head.” Branscomb obtained a “six
pack” photographic lineup containing a picture of Potato Head. Branscomb
admonished Fennell that persons involved in the shooting might or might not be
depicted in the six-pack and that he should identify only the person he believed to
be the shooter. Branscomb then had Fennell examine the photographs, and he
identified defendant as the shooter. No other witnesses came forward at the scene.
Branscomb and other officers searched Caldwell Street and located one
assault rifle casing and several .45-caliber shell casings.
Branscomb unsuccessfully tried to locate defendant. The next day,
Branscomb contacted defendant’s sister, Bridgette Norflee, but was still unable to
Before and After the Shooting
Sonya Stone, defendant’s former girlfriend, testified she saw defendant on
the day of the shooting driving his white Cadillac with several African-American
male passengers. Stone explained the Cadillac previously had been painted green.
Tony Carillo managed Color King Auto Painting in Compton, California. On
April 3, 1989, he generated a receipt for the painting of a Cadillac with the license
plate number 2JYC400. The receipt indicated the work was “exclusively for
Paul,” and a woman named Bridgette signed the receipt. Color King painted the
Hazel Adams, a Department of Motor Vehicles registration manager, testified
that ownership of a 1977 Cadillac coupe, license plate number 2JYC400, was
transferred from Paul Watson to Serita Hutchinson on June 6, 1989, in exchange
On August 31, 1989, Bakersfield Police Sergeant David Haskins, seeking to
locate defendant, executed a search warrant on a Bakersfield apartment. Haskins
arrested defendant inside the apartment. Outside, Haskins located and impounded
a black Cadillac, license plate number 2JYC400.
That afternoon, Detective Martin Branscomb traveled to the Kern County jail
in Bakersfield and took defendant into his custody. Branscomb also inspected the
black Cadillac. He took a paint sample from the vehicle and discovered three
layers of paint: green, white, and black. Inside the car, Branscomb located a shell
Branscomb advised defendant of his Miranda rights (Miranda v. Arizona
(1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), which he declined to
waive, and transported him to Los Angeles. During the drive, defendant, without
being informed of any specific details of his arrest, asked why he was being
charged with attempted murder3 and claimed he was not in Compton on the day of
Los Angeles Sheriff’s Department firearms identification specialist Edward
Robinson testified that a bullet fragment found in the Celica Eldridge was driving
was consistent with a bullet fired from an AK-47. The bullet recovered by the
coroner’s office from Williams’s brain likely was fired from an AK-47 or SKS
The reference to attempted murder evidently related to the shooting of
rifle. Robinson was unable to compare the bullet found in the Celica with the
bullet found in Williams’s brain because the bullets were damaged.
Cause of Death
Forensic pathologist and chief physician for the Los Angeles County
Department of Coroner Lakshmanan Sathyavagiswaran testified that Ava
Williams died of a gunshot wound to the head. The bullet traversed her left cheek
and entered her nose before coming to rest in the right front portion of her brain.
The bullet jacket was located in the base of her skull. Given the damage to
Williams’s face, the bullet might first have hit something else, such as the car’s
window. Williams’s wounds were consistent with a high powered rifle.
Dr. Sathyavagiswaran testified Earl Solomon died of a gunshot wound to the
head, suffering subarachnoid hemorrhage with massive laceration. The wound
was caused by a high velocity weapon, such as a rifle.
At the time of defendant’s trial, Compton Police Sergeant Reginald Wright
served in the department’s gang homicide unit. Wright described the structure of
Black street gangs in Los Angeles, the different categories of gang membership,
the rivalries between Crips and Bloods and between various Crip sets, and the
concept of “payback,” or retaliation, between gangs. Wright described the
Santana Block Crips as a violent street gang whose hardcore members wear the
letters “SBC” on their caps, belt buckles and jackets, or who may have tattoos
referring to the gang. Formerly allies with the Atlantic Drive Crips, the Santana
Block Crips became embroiled in warfare with them, involving retaliatory
shootings, over a bad narcotics deal. Wright knew defendant by his gang moniker
Potato Head and knew he was a member of the Santana Block Crips. In Wright’s
opinion, the murders were gang motivated. Wright also testified that gang
members are reluctant to testify against one another, even regarding a shooting of
the witness’s own “homeboy” by a member of an opposing gang, because they
generally prefer “handling their own business” to involving the police.
Curtis Jones was in Kelly Park at the time of the shootings. Jones was a
longtime member of the South Side Compton Crips, allies of the Atlantic Drive
Crips. Before the shooting, Jones saw a beige Cutlass and a black Regal being
driven past the park; a man Jones knew as Chico (Brian Owens), was chasing the
cars in another vehicle. Jones then heard seven or eight gunshots and hid behind a
tree for protection. He got only a quick glimpse of the cars as they passed and did
not see any of the occupants. Jones did not immediately inform police of his
observations and admitted having spoken to defendant while they were both
incarcerated in the Los Angeles County jail.
Jones acknowledged having previously been convicted of a felony (joy
James Randle, a “retired member” of the Compton Neighborhood Crips (also
known as In Hood) testified he saw the shooting in Kelly Park. He remembered
seeing a man in a white car apparently pulling an AK-47 back into the car through
the passenger window. The man had brown skin and a blue rag covering his face
from the nose down. Randle was friends with defendant and believed the person
in the white car had darker skin than defendant. Randle did not come forward
with this information until after speaking with defendant in jail.
Randle acknowledged having previously been convicted of felonies.
Unuva Miller also witnessed the shooting at Kelly Park. At the time of the
shooting, Miller was near the park on Caldwell Street. She saw a beige car and a
black car drive down Caldwell Street. She believed the cars might have been
Buicks, Monte Carlos, or Cutlasses. One of the individuals in the beige car was
carrying a rifle, but she could not identify the person other than to say he was
wearing a black hat. Although Miller had known defendant for five or six years,
she did not recognize him as the individual with the gun. Miller testified despite
having been threatened by the Atlantic Drive Crips, who accused her of setting up
the shooting because she had had a child with a Santana Block Crips member.
Miller admitted, however, she was so focused on getting her daughter out of the
park that she might not have observed all of the cars involved.
Private investigator Arthur Runnels testified Timothy Martin told him that a
person in the Cadillac shot through the driver’s side window and that he was
unable to identify the shooter.
Joseph Widby was a longtime member of the Atlantic Drive Crips and was
friends with Earl Solomon. Widby was in the park at the time of the shooting. He
heard gunshots and saw a person leaning out of the window of a white Cadillac
holding what appeared to be an AK-47. Widby saw that one of the other
passengers in the Cadillac was holding a .45-caliber gun and both individuals were
aiming their guns at the park. Widby saw Brian Owens driving a black car behind
the Cadillac. Widby had known defendant for several years and testified that he
was not the man holding the AK-47 ― his hair was longer than defendant’s and
he was skinnier and lighter skinned than defendant. Widby also denied there was
a gang war between the Atlantic Drive Crips and Santana Block Crips, instead
claiming the story of the feud had been fabricated by police.
Widby testified he would not lie for defendant and did not want an innocent
man to be charged with a crime. In addition, Widby testified he was concerned his
testimony might offend Solomon’s parents because he had been friends with
Solomon. Widby also admitted speaking with defendant while incarcerated.
Widby acknowledged he was, at the time he testified, serving a 10-year term
in a federal prison in Petersburg, Virginia, on a conviction of being a felon in
possession of a gun.
The defense sought to establish that the police investigation of the offenses
was marred by error.
Hermetta Harper, recalled by the defense, testified that Timothy Martin told
her what he had seen, but that she did not inform the police until two or three
weeks before trial.
Compton Police Officer Ronald Thrash testified he responded to Kelly Park
within five minutes of the shooting. Thrash spoke with Terry Fennell at the scene
and, according to Thrash, Fennell told him he was standing on the southwest
corner of Caldwell Street and Butler Avenue at the time of the shooting, contrary
to Fennell’s testimony that he crossed to the north side of the street when the
shooting occurred. Thrash also admitted he made a mistake in his report as to the
location of Earl Solomon’s body.
District Attorney investigator Adam Khan accompanied the prosecutor, Mark
Ashen, to Oregon to interview Gary Lomax. Lomax described to Khan and Ashen
a white or green Chevrolet as being involved in the shooting. Lomax’s signed
statement, drafted by Khan, stated the car was white. Khan admitted he had
mistakenly failed to indicate the car could have been green.
Los Angeles County Deputy Sheriff Michael Winter testified that while
working at the Los Angeles County Men’s Central Jail, he was assigned to
monitor the gang modules. For a period in 1991, defendant and Curtis Jones were
housed in the same module. Deputy Winter further testified that inmates housed
in the same modules have access to each other’s cells and can spend time together
in group areas. He was unsure whether defendant and Jones were ever released to
the common areas at the same time.
B. Penalty Phase
Bruce Bromley testified that, on January 28, 1990, he was incarcerated at Los
Angeles County’s Wayside Honor Ranch. On that date, Bromley placed a cup of
juice on the table where defendant was sitting, and defendant brushed the cup off
the table. Bromley told defendant he did not know defendant owned the table.
Defendant stood up and looked at Bromley, then sat down again. As Bromley
walked away, he was punched from behind. The blow landed on the right side of
his face and he was knocked almost unconscious and fell to the ground. As he
came to, defendant said, “Don’t you ever talk that way to me again,” then walked
away. The right side of Bromley’s face became swollen and he had a black eye.
Bromley acknowledged he had suffered two grand theft convictions.
Brett Hornick testified that, on February 19, 1990, he was incarcerated at
Wayside Honor Ranch. When Hornick walked behind the jail’s lunch area that
afternoon, a blanket was put over his head and he was beaten; five dollars was
stolen from his sock. After Hornick removed the blanket, he saw defendant
running away. Hornick sustained a broken nose, but did not report the assault.
Between 3:00 and 4:00 the next morning, Hornick saw defendant and three
other inmates attack a Caucasian inmate lying in the bunk next to Hornick. One of
defendant’s cohorts beat the victim’s head with a table squeegee and then, with the
help of defendant and the other inmate, pulled the victim off his top bunk and went
through his pockets, “taking what they could from him.” The victim was bleeding
from his head and face and was convulsing, and his eyes rolled back in his head.
About two minutes later, defendant and his cohorts pulled another Caucasian
inmate from his bunk by the hair, again beating the victim and going through his
Hornick acknowledged he had suffered felony convictions for possession of
stolen property, attempted robbery, burglary and sexual assault.
The prosecution introduced evidence of defendant’s January 28, 1990
conviction for misdemeanor battery upon Bromley. The prosecution also
introduced defendant’s March 11, 1985 and April 29, 1985 convictions for felony
possession for sale of cocaine and his December 3, 1986 conviction for possession
Defendant’s mother, Mary Louise Cooper, testified she never married
defendant’s father or the father of defendant’s sister. She provided for her family
with government assistance and her salary as a maid. She had a difficult time
caring for defendant because she had epileptic seizures and back problems.
Cooper’s boyfriend, Devon Williams, moved into the home when defendant was
three years old, but he did not make any significant financial contribution to the
household because he spent all his money on drugs.
Devon Williams died when defendant was 13 years old. Cooper then quit her
job and defendant tried to help support the family. According to Cooper, on some
days defendant would work instead of going to school. Cooper was aware that
defendant began selling drugs at the age of 14 and that he involved himself in
gangs after he returned from prison.
Cooper explained she sympathized with the parents of the victims, as
defendant had once been shot and nearly died. She pleaded, however, for the jury
not to sentence defendant to death.
Defendant’s uncle, James Walker, testified to his role in defendant’s life. He
visited with defendant regularly while he was growing up and never knew him to
do anything wrong. He described defendant as a nice boy. Walker never saw
defendant involved in any gang activity, and was surprised to hear defendant had
been convicted of murder because he was a nice and respectful boy. Walker
believed defendant should be spared the death penalty because of his potential to
grow and help other people.
Defendant’s aunt, Dorotheria Mitchell, testified defendant was a good boy.
Mitchell believed defendant was in the situation he was in because he was forced
to provide for his family at such an early age. She also explained that the
neighborhood where defendant was raised did not provide a good environment.
Ailine Jackson testified she had known defendant since he was 12 years old.
She described him as a happy and nice child who would help his mother and
neighbors with chores. Because defendant often complained of being bored at
home because his immediate family engaged in very little recreation, Jackson
would allow him to join her family’s activities.
Jackson described defendant’s chaotic family life. His stepfather Devon
Williams was an unemployed drug addict who used heroin in the house. When
defendant was 13 or 14, Williams would send him out late at night to buy his
drugs. Defendant’s mother gave her children very little supervision and it
appeared to Jackson she put Williams’s needs before the children’s. According to
Jackson, after defendant’s mother stopped working, defendant quit school so he
could work full time. Jackson saw a change in defendant at this time.
When defendant went to prison for selling drugs at the age of 19, Jackson
testified, he became “harder” and more arrogant. He explained to her he had to
join a gang in prison for protection. Jackson did not believe defendant committed
Anita Masterson, Jackson’s sister, testified she had known defendant from
the time he was 10 or 11 years old. Defendant often played at her house with her
two sons. She described defendant as being a “good boy” who was polite and
helpful. Masterson was surprised by defendant’s previous incarceration because
she had thought him to be such a nice boy.
Vincent Masterson, Anita Masterson’s son, testified he was a childhood
friend of defendant’s. Defendant seemed to care less about his education as he
entered high school and had to get a full-time job when he was in the ninth grade.
Vincent never saw defendant use drugs, and defendant never tried to sell drugs to
him. After getting out of prison, defendant appeared “harder” and “too grown up.”
Vincent felt defendant lacked a positive role model. He believed defendant should
not be sentenced to death because he had the potential for rehabilitation.
Sylvia Stanley, who lived in defendant’s neighborhood, described him as a
good child who was liked by everyone. Stanley testified defendant began selling
drugs at age 18 or 19, but she did not think he used them. Defendant returned
from prison with tattoos and a “thuggish” demeanor.
Forensic Psychologist Adrienne Davis interviewed defendant, his family
members, and his childhood neighbors, and reviewed probation, parole, and police
reports pertaining to the current and previous crimes in order to evaluate his
background, mental state, and personality and help explain to the jury how he
came to be the person he was at the time of trial.
Dr. Davis testified that during defendant’s early years, he was very dependent
upon his mother and demanded much of her attention; he did not know his father.
Defendant’s family was very poor. Devon Williams entered defendant’s life when
he was four or five years old and became his father figure. During this time, social
workers sometimes reported that defendant’s house was in disarray and the
children were dirty.
Devon Williams created inconsistency in defendant’s life. On one hand, he
helped defendant with his homework and encouraged him to work hard. But on
the other hand, he was a drug addict who sent defendant out to buy his drugs.
Defendant was upset by Williams’s death and thereafter his schoolwork suffered.
Ailine Jackson’s influence was also inconsistent. Defendant respected
Jackson and she had a very strong influence on him. But she also used drugs, even
in defendant’s home.
Defendant became the “man of the house” at age 16 or 17. He felt obligated
to care for his epileptic mother and quit school to work full time. When he lost his
job, he began selling drugs. Despite having been a nonaggressive child, he was
changed by Devon Williams’s death and his experiences in prison. According to
Dr. Davis, defendant’s involvement with drugs increased the possibility of his
becoming involved in violent behavior.
II. JURY SELECTION ISSUE
Defendant, an African-American, claims the prosecutor used peremptory
challenges in a racially discriminatory manner to excuse nine African-American
prospective jurors. He thus argues the trial court’s denial of his motion under
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) violated his state and federal
constitutional rights to equal protection and a representative jury. (Batson v.
Kentucky (1986) 476 U.S. 79, 86 (Batson); Wheeler, supra, 22 Cal.3d at pp. 271-
A. Legal Standard
Both the state and federal Constitutions prohibit the use of peremptory
challenges to remove prospective jurors based solely on group bias. (Batson,
supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) In Johnson v.
California (2005) 545 U.S. 162 (Johnson), “the United States Supreme Court
reaffirmed that Batson states the procedure and standard to be employed by trial
courts when challenges such as defendant’s are made. ‘First, the defendant must
make out a prima facie case “by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose.” [Citations.] Second, once
the defendant has made out a prima facie case, the “burden shifts to the State to
explain adequately the racial exclusion” by offering permissible race-neutral
justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is
tendered, the trial court must then decide . . . whether the opponent of the strike
has proved purposeful racial discrimination.” [Citation.]’ ” (People v. Cornwell
(2005) 37 Cal.4th 50, 66-67, quoting Johnson, supra, 545 U.S. at p. 168; see also
Snyder v. Louisiana (2008) 552 U.S. ___, ___ [128 S.Ct. 1203].)
Moreover, as Johnson explains, “a defendant satisfies the requirements of
Batson’s first step by producing evidence sufficient to permit the trial judge to
draw an inference that discrimination has occurred.” (Johnson, supra, 545 U.S. at
p. 170.) At step three, “the trial court ‘must make “a sincere and reasoned attempt
to evaluate the prosecutor’s explanation in light of the circumstances of the case as
then known, his knowledge of trial techniques, and his observations of the manner
in which the prosecutor has examined members of the venire and has exercised
challenges for cause or peremptorily . . . . ” [Citation.]’ ” (People v. Reynoso
(2003) 31 Cal.4th 903, 919.) A prosecutor’s reasons for exercising a peremptory
challenge “need not be sufficient to justify a challenge for cause.” (People v.
Turner (1994) 8 Cal.4th 137, 165.) “Jurors may be excused based on ‘hunches’
and even ‘arbitrary’ exclusion is permissible, so long as the reasons are not based
on impermissible group bias.” (Ibid.; see also People v. Box (2000) 23 Cal.4th
1153, 1186, fn. 6.) “[T]he trial court is not required to make specific or detailed
comments for the record to justify every instance in which a prosecutor’s race-
neutral reason for exercising a peremptory challenge is being accepted by the court
as genuine.” (People v. Reynoso, supra, 31 Cal.4th at p. 919.) Inquiry by the trial
court is not even required. (See People v. Reynoso, supra, at p. 920.) “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
(2003) 29 Cal.4th 833, 864.)
We review a trial court’s ruling at step three for substantial evidence.
(People v. McDermott (2002) 28 Cal.4th 946, 971.)
The prosecutor initially used four peremptory challenges, the second through
fourth of which were used against African-Americans. After the fourth challenge,
defendant made a Wheeler motion. The trial court found a prima facie showing
and asked the prosecutor to give his reasons for challenging the three African-
American prospective jurors.
The prosecutor explained he excused D.H. because of her substantial
exposure to gang members while growing up in Compton and her belief that a
driveby shooting does not warrant the death penalty. Next, the prosecutor stated
he challenged P.H. because she had been an identification witness to a crime and
thus might have preconceived notions about the identification issue in this case.
The prosecutor also based his excusal on the circumstance that she had a friend in
state prison who committed more than one murder, but did not believe her friend
deserved the death penalty. P.H. also indicated she would not vote for the death
penalty if it were on the ballot, and she previously had been disappointed with the
police. Finally, the prosecutor explained that he excused D.G. because she had
been unable to identify the perpetrator of a purse-snatching incident she had
witnessed, her brother was a counselor with the California Youth Authority who
told her stories about the wards and their troubles, and she expressed opposition to
the death penalty.
The trial court denied the Wheeler motion, concluding the prosecutor had
stated “a sufficient basis of concern as to the three jurors individually and
collectively” and finding no indication of “systematic exclusion” of the jurors
based on race.
The prosecutor then immediately challenged O.K., an African-American
woman, and defendant renewed his Wheeler motion. The prosecutor explained
that he was concerned O.K. would be overly sympathetic to defendant in light of
her employment as a social worker working with abused children. The prosecutor
also cited O.K.’s belief that the death penalty should only be applied when the
defendant’s guilt is “absolutely certain,” suggesting she would hold the
prosecution to a higher standard than the law requires. Finally, the prosecutor
suspected O.K. would be sympathetic to defendant in light of her son’s multiple
arrests for dealing drugs. The court concluded the prosecutor had stated
“legitimate prosecutorial concerns” on an objective basis aside from that of race,
and again denied defendant’s motion.
After excusing two other prospective jurors, the prosecutor challenged N.B.,
an African-American woman, and defendant again renewed his Wheeler motion.
The prosecutor explained he had challenged N.B. because of her opposition to the
death penalty and because her husband had been convicted of manufacturing
phencyclidine (PCP), which might render her overly sympathetic to persons in
custody. The trial court denied defendant’s motion, finding that a juror’s
reluctance to impose the death penalty was a proper basis for a peremptory
After excusing two more prospective jurors, the prosecutor exercised another
peremptory challenge against T.S., an African-American man. Again, the
defendant renewed his Wheeler motion. The prosecutor stated he excused T.S.
primarily because he had grown up in a gang neighborhood and counted many
members of the Bloods street gang among his friends. The prosecutor did not
want T.S. to substitute his own knowledge of gangs in place of the expected
testimony of the gang expert witness. The prosecutor also explained that he was
concerned about T.S. because he had been late twice, appeared to be generally
immature, and had suggested he might hold the prosecution to too strict a standard
of proof. The trial court denied the motion, finding the prosecutor had articulated
a nonracial basis for the peremptory challenge.
The prosecutor then excused two consecutive African-American jurors and
defendant renewed his Wheeler motion after each challenge. As to the first, T.J.,
an African-American man, the prosecutor explained that he appeared
noncommittal and indecisive and repeatedly expressed concern that a defendant
could be “set up” or evidence could be withheld, leading to the execution of an
innocent person. The trial court concluded the prosecutor’s reasons were race-
neutral and relevant to the proceedings, holding there had been no purposeful
As to the second, G.W., an African-American man, the prosecutor stated he
had excused G.W. because of his belief that an unintentional shooting of an
individual would merely constitute an accident and because he would not vote for
the death penalty in an election due to his religious beliefs. The prosecutor also
noted G.W. seemed strong-willed and “very, very” opinionated. The trial court
stated, “I am not at this point prepared to find that persons have been excluded
systematically on the basis of race and, therefore, the motion is denied.”
After excusing one other prospective juror and accepting the jury four times,
the prosecutor exercised a peremptory challenge to exclude S.B., an African-
American woman. In response to defendant’s renewed Wheeler motion, the
prosecutor explained he excused S.B. because she seemed confused, could not get
past guilt phase issues in answering voir dire questions, and appeared biased
against the death penalty. Finding the prosecutor had articulated “legitimate
concerns” regarding S.B., the trial court denied defendant’s motion.
The prosecutor excused three more prospective jurors without objection
before the jury was accepted by both parties.
As the trial court found, and as discussed below, the record supports a finding
that the prosecutor did not purposefully discriminate against any of the prospective
jurors, either individually or collectively. The record also reflects that the jurors
and alternate jurors selected and sworn in this case were a diverse group: Among
the seated jurors, four were White, six were Black, one was Hispanic, and one
described himself as “Filipino Afro”; among the alternates, three were White and
one was Black. These circumstances further support the inference that the
prosecutor acted in good faith and without discriminatory purpose in exercising
As stated above, the prosecutor justified his challenge to D.H. on the grounds
that she had substantial exposure to gang members and believed a driveby
shooting does not warrant the death penalty.
During Hovey voir dire,4 D.H. explained she believed in the death penalty in
certain circumstances and would have to hear all the evidence to determine
whether a death sentence was appropriate in this case. She also expressed her
understanding of the gravity of the sentencing decision and said she would not
“take it lightly.” She explained, however, that in the case of a gang-related
driveby shooting, she might be disinclined to vote for death because “being the
age that I am, I hear it. I’m around it. And it ― so it’s just different reasons. I
guess it could be different reasons why people could do it.”
During general voir dire, D.H. said she had gone to school with gang
members in Compton and South Central Los Angeles, specifically members of the
In Hood, Rolling 60’s, and Compton Crips. She did not, however, like to be
around gang activity.
D.H. thus had substantial exposure to gangs, resulting in her possible
reluctance to impose a death sentence in a case, such as this one, involving a gang-
related driveby shooting. This was a relevant, race-neutral reason for the
prosecutor to exercise a peremptory challenge against her.
A comparative juror analysis does not further defendant’s claim, as none of
the seated jurors had similar exposure to gang activity.5 Defendant compares D.H.
Hovey v. Superior Court (1980) 28 Cal.3d 1, 80 (Hovey).
Whether a court must perform a comparative juror analysis for the first time
on appeal to evaluate the prosecutor’s reasons for peremptorily challenging
prospective jurors is an issue that is currently pending in this court in People v.
Lenix (S148029), rev. granted January 24, 2007. For purposes of argument only,
(footnote continued on next page)
with seated juror M.P., an African-American man. Preliminarily, we question
whether the comparison of a prospective juror assertedly excused on account of
his race with a seated juror who was a member of the same race does anything to
further the Batson/Wheeler analysis. In any event, the comparison of D.H. with
M.P. does not assist defendant. Although M.P. had some exposure to gang
members and gang activity in his capacity as a plumber for the Los Angeles
Unified School District, for the prosecutor to afford this experience less weight
than he did D.H.’s upbringing in a gang-infested community would have been
reasonable. M.P., moreover, did not share D.H.’s apparent bias against imposing
the death penalty on facts similar to those in this case.
Thus, the trial court’s ruling as to D.H. is supported by substantial evidence.
The prosecutor asserted he challenged P.H. because she had been an
identification witness to a crime, she believed a friend of hers was appropriately
sentenced to life without the possibility of parole despite having committed
multiple murders, she would not vote for the death penalty if it were on the ballot,
and she had previously been disappointed with how the police investigated a
shooting she witnessed. The trial court’s denial of the Wheeler motion as to
prospective juror P.H. is supported by substantial evidence.
During Hovey voir dire, P.H. explained she had a childhood friend who was
serving a life sentence for murder. This friend had “committed murders on
numerous occasions” and “would take a life, you know, for any reason.” She did
(footnote continued from previous page)
we assume in this case that such an analysis is required. (See People v. Guerra
(2006) 37 Cal.4th 1067, 1106.)
not, however, feel he deserved the death penalty because of the neighborhood he
grew up in, the fact that he came from a single-parent family, and because “this
was a common way of life where he lived and where I lived.” She opined these
factors did not excuse her friend’s behavior, but contributed to his conduct.
During general voir dire, P.H. explained that, two years earlier, she had
witnessed a fatal shooting. She reported her observations to police but was never
called to testify as a witness. The fact she was never called as a witness indicated
to her that the police did not take the crime seriously and that it was “just no big
deal to them, you know, just another life.” After witnessing the shooting, she felt
sorry for both the victim and the shooter. She also could “relate” to prosecution
witnesses because she had been a witness to the shooting, but would not
“necessarily” assume prosecution witnesses had greater credibility.
P.H.’s voir dire answers thus suggested she might be overly sympathetic to
an individual with defendant’s background and might have developed certain
biases as a result of witnessing a fatal shooting.
Defendant argues the prosecutor’s explanation for his challenge of P.H. was a
pretext for racial discrimination, in that he did not challenge other jurors with
similar characteristics. Seated Jurors D.G. (a Caucasian woman), and M.P., A.C.,
and J.L., and seated Alternate Juror F.M. (all African-American men), each had
witnessed crimes in the past. Moreover, J.L. and F.M. had expressed complaints
about law enforcement. In fact, F.M. had a pending lawsuit against the Los
Angeles County Sheriff’s Department for breaking into his residence and holding
his family at gunpoint. Further, defendant claims P.H. held views on the death
penalty similar to those espoused by a number of non-African-American jurors
whom the prosecutor did not challenge. None of these jurors, however, had the
combined characteristics of being a witness to a crime and expressing anti-law-
enforcement sentiments. More importantly, unlike any of these seated jurors, P.H.
had a friend who was imprisoned for murder but she did not believe he deserved
the death penalty despite his having committed multiple murders.
The trial court’s ruling as to P.H. was supported by substantial evidence.
The prosecutor explained he challenged D.G. because she had witnessed a
crime but was unable to identify the perpetrator, her brother was a counselor with
the California Youth Authority, and she expressed anti-death-penalty-sentiments.
Importantly, the prosecutor indicated that “she is the one I’m really concerned
about with the identity issue because this happened basically so fast that she
couldn’t I.D. because of surprise element [sic]. She may feel that if there’s a
surprise element in any particular situation, that that may compromise a witness’s
I.D. . . .” Substantial evidence supports the trial court’s conclusion the prosecutor
articulated adequate race-neutral reasons for excusing D.G.
In her questionnaire, D.G. indicated that she had been a witness to a purse
snatching and that her brother worked for the Youth Authority. She also indicated
she generally did not support the death penalty, she believed the death penalty was
used too often, and she did not think California should have the death penalty
During Hovey voir dire, D.G. stated she was “not for the death penalty,” but
could impose a death sentence under the appropriate circumstances. She would
vote against the death penalty if it were on the ballot.
During general voir dire, D.G. explained that about eight years before
defendant’s trial, she was the victim of a purse snatching. She had reported the
crime to police but was unable to give an accurate description of the assailant. Her
brother was a security officer for the California Youth Authority and he sometimes
would tell D.G. “a sad story from an inmate’s point of view.”
D.G.’s questionnaire and voir dire answers suggested she would have
sympathy toward defendant as a result of the stories her brother had told her about
his work with the California Youth Authority, and she was unsupportive of the
death penalty. Moreover, D.G. had trouble describing her assailant when she was
the victim of a purse snatching, triggering the prosecutor’s valid concern that she
might reject the identification testimony in this case.
Again, a comparative juror analysis does little to further defendant’s claim.
Like D.G., seated Juror M.P. was unable to provide details about a driveby
shooting he had witnessed because it happened too fast. In addition, seated Juror
C.D.’s mother worked at the Federal Correctional Institution in Terminal Island
and seated Alternate Juror P.H. had worked as a jailer in Nevada. None of the
jurors, however, shared both characteristics relied upon by the prosecutor in
The trial court’s ruling as to D.G. was supported by substantial evidence.
The prosecutor justified his challenge to O.K. on the basis that O.K. might be
too sympathetic to defendant in light of her background in social work, her
concern for abused children, and her son’s history of legal problems. In addition,
the prosecutor cited O.K.’s unwillingness to impose the death penalty unless she
was “absolutely certain” of the defendant’s guilt.
In her questionnaire, O.K. stated she had worked for the Los Angeles County
Department of Children’s Services and in that capacity had made court
appearances on behalf of minor children. She had an associate degree in social
welfare and had taken courses in behavioral sciences, such as counseling,
psychology, and sociology. She also indicated her third son had been
incarcerated. This son had been arrested or charged with crimes many times and
had been apprehended for selling narcotics to an undercover police officer.
Finally, in her questionnaire, O.K. indicated that the purpose of the death penalty
was “to apply when absolutely certain.”
During Hovey voir dire, O.K. stated the death penalty is warranted in some
cases but not others, and was too seldom used. When asked about her answer in
the questionnaire that the death penalty should only be used when “absolutely
certain,” she explained she would not apply a standard of “no doubt whatsoever
about guilt,” but would apply the law as instructed by the judge.
In response to general voir dire questioning, O.K. said her son had been
caught several times trying to sell drugs to undercover police officers. She
believed her son was still involved in criminal activity but she did not often see
O.K. also explained that, in her capacity as a children’s service worker for
the Department of Children Services, she helped to protect children from abuse
and tried to find them compatible homes.
On this record, the prosecutor’s concern about O.K.’s ability to remain
objective in light of her background as a social worker was reasonable. The
prosecutor noted that, based on the defense’s Hovey voir dire, defendant
apparently would be presenting evidence of abuse and neglect during his
childhood, and O.K. might be overly sympathetic to him as a result. The
prosecutor also reasonably might have questioned O.K.’s ability to remain
objective in light of her son’s criminal history. The record also provides some
support for the prosecutor’s concern that O.K. might hold him to too strict a
burden of proof.
Moreover, a comparative juror analysis does not reveal purposeful
discrimination. Like O.K., seated Jurors A.R. and A.C. had loved ones who had
been incarcerated. None of those jurors, however, shared O.K.’s background in
social work or expressed a tendency to hold the prosecution to too strict a burden
Because the prosecutor’s reasons for excusing O.K. were race-neutral and
were borne out by the record, the trial court’s determination was supported by
The prosecutor assertedly challenged N.B. because of her anti-death-penalty
beliefs and because her ex-husband had been convicted of manufacturing PCP.
In her questionnaire, N.B. expressed the belief that the death penalty should
only be used in “extreme” cases, with the word “extreme” underscored. She also
said she believed the death penalty is used too randomly. N.B. disagreed
somewhat with the propositions that someone who intentionally kills one or two
people should receive the death penalty and that convicted murderers should be
swiftly executed. N.B. also revealed in her questionnaire that her ex-husband had
been incarcerated in 1982 for burglary and “manufacturing.”
During Hovey voir dire, defense counsel asked N.B. how she might sentence
a defendant who she was convinced beyond a reasonable doubt had intentionally
killed two people “in cold blood.” She explained that under such a scenario she
“would have a tendency to go with life without parole. It would have to be totally
extreme for me to go with death.” Upon questioning by the prosecutor, however,
N.B. explained that she would be “open” to either sentence in a case where the
defendant was convicted of intentionally and deliberately killing two people.
As with the other jurors, a comparative juror analysis does not reveal racial
discrimination by the prosecutor. Seated Juror D.G. answered questions regarding
the sentencing of a defendant who intentionally killed two people without legal
justification and not in self-defense by explaining that the issue was not “cut [and]
dried” and that she would have to know all of the circumstances. Seated Juror
C.D. disagreed somewhat that a person who intentionally kills two people should
be sentenced to death because her determination would have to be based on the
facts of the case. She also strongly disagreed that convicted murderers should be
swiftly executed because she did not “know any facts.” Seated Juror A.G. did not
believe all killers should receive the death penalty and disagreed somewhat that a
defendant who intentionally kills one or two people without legal justification
should be sentenced to death. A.G. also disagreed somewhat with the proposition
that convicted murders should be swiftly executed because he believed defendants
should be allowed to exhaust all appeals. Also, seated Alternate Jurors F.G. and
P.H. indicated in their questionnaires that they did not fully agree with the
proposition that anyone who kills one or two people without legal justification
should be sentenced to death because they believed the sentencing determination
should depend on the facts of the case.
While these jurors’ answers to the questionnaire contain similarities to N.B.’s
answers, none of them expressed in their voir dire testimony the degree of
opposition to the death penalty N.B. did. For example, N.B. explained during voir
dire that she would likely vote against the death penalty if it were on the ballot and
that her death penalty determination might be swayed by her religious beliefs.
N.B. also wavered when asked whether she could impose the death penalty on a
defendant who had been convicted of intentionally killing two people. None of
the comparable jurors held so steadfastly to their anti-death-penalty beliefs under
voir dire questioning.
In addition, although seated Jurors A.R. and A.C. had family members who
had been incarcerated, neither of these jurors also expressed anti-death-penalty
sentiments similar to those expressed by N.B.
Substantial evidence supports the trial court’s conclusion that the prosecutor
had bona fide, race-neutral reasons for excusing N.B.
The prosecutor stated he excused T.S. because he was young, inexperienced,
and had extensive exposure to gang members. The prosecutor also was concerned
about T.S. because he had been late twice, appeared to be generally immature, and
had suggested he might hold the prosecution to too strict a standard of proof.
In response to the questionnaire inquiry why crime rates were increasing,
T.S. stated it was because “Republicans [were] in the presidency,” an answer
deemed immature by the prosecutor. He also explained his belief that the death
penalty should be imposed when a defendant had been found guilty “without a
shadow of a doubt.”
During Hovey voir dire, T.S. was generally supportive of the death penalty,
but indicated it should be imposed only if the defendant was found guilty “without
T.S. acknowledged during general voir dire that he had had contact with
members of the Bloods street gang when he lived in Compton. He admitted to
being close friends with some gang members, but insisted he was not involved in
gang activity and that his exposure to gangs would not bias him. Neither the court
nor the defense challenged the prosecutor’s assertion that T.S. was late to the
proceedings twice on the day he was excused.
This record provides support for the prosecutor’s conclusion that T.S. was
too immature, irresponsible, and potentially biased to serve as a juror in this case.
Moreover, a comparative juror analysis is not helpful to defendant here, as none of
the jurors accepted by the prosecutor exhibited characteristics similar to those that
led him to excuse T.S. Notably, the prosecutor also challenged D.H. in part
because of her extensive exposure to gangs.
Thus, the record provides substantial evidence to support the trial court’s
determination as to T.S.
The prosecutor explained he challenged T.J. because he was noncommittal,
expressed some anti-death-penalty views, and was overly concerned about
condemning an innocent man.
During Hovey voir dire, T.J. expressed the opinion that the death penalty was
appropriate only in certain cases, such as the killing of a child. He later indicated
he strongly agreed that someone who kills an innocent person should receive the
death penalty. He was unsure, however, whether he could vote for death in a case
where one person was intentionally killed and another was an innocent bystander.
T.J. also stated that in order to vote for the death penalty, he would have to have
“no doubt” about the defendant’s guilt and that the defendant should have the right
to appeal to “whatever extent” necessary to ensure his guilt.6 He explained the
“no doubt” standard should be applied to the appeal process, but he would not
apply that standard at trial.
T.J.’s voir dire answers revealed his uncertainty about whether he could
impose the death penalty on the facts of this case. His answers were also
equivocal as to what standard of proof he believed appropriate in a death penalty
case. These answers gave rise to legitimate, race-neutral prosecutorial concerns.
T.J.’s juror questionnaire is not included in the record and has apparently
been lost or destroyed. During Hovey voir dire, however, counsel questioned T.J.
about his questionnaire answer that the death penalty should only be imposed
when there is no doubt about the defendant’s guilt. The questioning revealed that
T.J. had underlined the words “no doubt.”
Defendant’s claim fares no better under a comparative juror analysis. Seated
Juror A.G. expressed his belief that the death penalty should only be imposed
when there is no doubt about the defendant’s guilt, and seated Jurors J.P., M.P.,
and R.R., as well as seated Alternate Juror P.H., all believed in the importance of
the appellate process for defendants sentenced to death. None of these jurors,
however, exhibited the same equivocation with respect to crucial issues as did T.J.
On this record, substantial evidence supports the trial court’s ruling as to T.J.
The prosecutor explained he exercised a peremptory challenge against G.W.
because he expressed some opposition to the death penalty, he believed that the
unintentional shooting of a victim merely constituted an accident, and he appeared
to be too stubborn and opinionated to appropriately participate in jury
deliberations. The record supports these relevant, race-neutral concerns.
Based on his juror questionnaire and his voir dire testimony, G.W. seemed
more supportive of the death penalty than many of the seated jurors. According to
his questionnaire, he agreed that the intentional killing of one individual warranted
the death penalty, he strongly agreed that a defendant sentenced to death should be
swiftly executed, and he strongly believed in the adage “an eye for an eye.”
During Hovey voir dire, he explained he would have no problem imposing the
death penalty if the crime warranted such a sentence. He also stated he would
“probably” vote for the death penalty if the defendant were convicted of a
premeditated murder. When questioned, however, about a crime in which one
victim was the intentional target and another victim was an innocent bystander,
G.W. opined the killing of the bystander would constitute an accident. He also
asserted he would make his own penalty decision and would not be swayed by
other jurors. Finally, G.W. asserted he could impose the death penalty because it
is established law but, due in part to his religious beliefs, he would not vote for the
death penalty if it were on the ballot. These views legitimately could cause the
prosecutor to excuse G.W.
A comparative juror analysis also fails to provide support for defendant’s
claim of purposeful discrimination. Most significantly, no other juror accepted by
the prosecutor shared G.W.’s belief that the unintentional killing of an innocent
bystander would merely constitute an accident. This belief was understandably of
concern to the prosecutor in light of the circumstance that defendant would be
death eligible only if convicted of murdering both victims. G.W., moreover, was
unwilling to vote for the death penalty in an election and the prosecutor had the
impression G.W. was too strong willed to fairly serve as a juror.
The record therefore provides substantial support for the trial court’s
conclusion that the prosecutor did not engage in purposeful discrimination in
The prosecutor asserted he excused S.B. because she seemed confused, was
unable to conceptualize penalty phase issues in answering voir dire questions, and
appeared predisposed against the death penalty. These reasons are supported by
During Hovey voir dire, S.B. exhibited significant confusion about the death
penalty determination. First, she said the death penalty should be imposed in a
case where the defendant was found guilty and a death sentence was “his last
choice.” When informed that the penalty imposed was not the defendant’s choice,
she responded: “[B]ut he have [sic] to be found guilty by the twelve jurors first.”
S.B. then acknowledged the sentence was to be determined by the jury, but
insisted it did not have to recommend a sentence of death. She also stated that, in
her opinion, “the death penalty is for once you find a person guilty — once you
find a person guilty, the death penalty is for that reason.”
When asked by the prosecutor whether a crime would have to be as heinous
as those of Richard Ramirez and Charles Manson to deserve the death penalty,
S.B. answered, “that or worse, yes.” The prosecutor then attempted to clarify
whether S.B. could recommend the death penalty for a defendant who killed fewer
people than Ramirez and Manson. S.B. explained: “The case have [sic] to go to
trial and the defendant have [sic] to be found guilty before I believe that they
could go to the gas chamber.”
S.B.’s answers reflected substantial confusion regarding the penalty phase
process. In addition, they imply an unwillingness on her part to vote for death on
the facts of this case. Because none of the other jurors exhibited such confusion,
particularly not in addition to a potential unwillingness to impose the death penalty
on the facts of this case, a comparative juror analysis does not further defendant’s
claim of discrimination. Thus, the record provides substantial evidence to support
the trial court’s determination as to S.B.
III. ISSUES RELATING TO GUILT
A. Admission of Crime Scene and Autopsy Photographs
Defendant claims the trial court erred in admitting crime scene and autopsy
photographs of the victims over his objection because the photographs were more
prejudicial than probative and were cumulative of other evidence. (See Evid.
Code, § 352.) In addition, defendant asserts the trial court’s error in admitting the
photographs violated his rights to due process, a fair jury trial and a reliable capital
trial under the federal Constitution. 7
Before trial, the prosecutor sought a ruling on the admissibility of a number
of photographs, specifically People’s exhibits 6A-F, 9B, and 11.8 Exhibits 6A-F
are crime scene photographs of the body of Earl Solomon: 6A shows the victim’s
body from the waist up; 6B depicts the victim’s entire body outlined in chalk; 6C
shows the victim’s body from a distance, covered by a sheet; 6D is a closeup of
the victim’s tattooed arm; 6E focuses on blood splatters near the victim’s covered
body; and 6F depicts the victim’s entire covered body and the blood splatters on
the sidewalk. Exhibit 9B, an autopsy photograph, depicts a large exit wound in
the back of Earl Solomon’s head. Exhibit 11, also an autopsy photograph, shows a
large bullet wound to Ava Williams’s face.
Defendant here and in a number of other claims urges that the error or
misconduct he is asserting infringed various of his constitutional rights to due
process and a fair trial. What we stated in People v. Boyer (2006) 38 Cal.4th 412,
441, footnote 17, applies here: “[I]n most instances, insofar as defendant raised
the issue at all in the trial court, he failed explicitly to make some or all of the
constitutional arguments he now advances. In each instance, unless otherwise
indicated, it appears that either (1) the appellate claim is of a kind . . . that required
no trial court action by the defendant to preserve it, or (2) the new arguments do
not invoke facts or legal standards different from those the trial court itself was
asked to apply, but merely assert that the trial court’s act or omission, insofar as
wrong for the reasons actually presented to that court, had the additional legal
consequence of violating the Constitution. To that extent, defendant’s new
constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter
instance, of course, rejection, on the merits, of a claim that the trial court erred on
the issue actually before that court necessarily leads to rejection of the newly
applied constitutional ‘gloss’ as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.”
8 The prosecutor initially sought to introduce exhibits 6A-G, but conceded the
photograph originally identified as 6F was largely duplicative of 6E. He therefore
withdrew that photograph and renumbered the exhibits 6A-F.
The prosecutor argued the photographs were relevant to prove intent and the
cause of death. He also argued that exhibits 6A-F were relevant to corroborate
witness testimony, and that exhibit 6D was probative of motive. Defense counsel
objected under Evidence Code section 352, arguing that intent to kill and the cause
of death, as proven through exhibits 9B and 11, could be established by other, less
inflammatory evidence. The trial court overruled the objection.
“The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will . . . create
substantial danger of undue prejudice . . . .” (Evid. Code, § 352.) “The jury can,
and must, be shielded from depictions that sensationalize an alleged crime, or are
unnecessarily gruesome, but the jury cannot be shielded from an accurate
depiction of the charged crimes that does not unnecessarily play upon the
emotions of the jurors.” (People v. Ramirez (2006) 39 Cal.4th 398, 454.) We
review the trial court’s ruling under Evidence Code section 352 for abuse of
discretion (People v. Lucas (1995) 12 Cal.4th 415, 449), and a reviewing court
will reverse a trial court’s exercise of discretion to admit crime scene or autopsy
photographs only when “the probative value of the photographs clearly is
outweighed by their prejudicial effect.” (People v. Crittenden (1994) 9 Cal.4th 83,
We have viewed the photographs contained in exhibits 6A-F, 9B, and 11 and
conclude they are highly probative of motive, intent, and the cause and manner of
death. Although unpleasant, they depict the nature of the crime without
unnecessarily playing upon the jurors’ emotions. (People v. Ramirez, supra, 39
Cal.4th at p. 454.) The probative value of the photographs thus is not clearly
outweighed by their prejudicial effect.
In addition, the photographs were not made inadmissible by the prosecutor’s
ability to prove motive, intent, and cause of death through other evidence. (See
People v. Gurule (2002) 28 Cal.4th 557, 624 [“[P]rosecutors, it must be
remembered, are not obliged to prove their case with evidence solely from live
witnesses; the jury is entitled to see details of the victims’ bodies to determine if
the evidence supports the prosecutor’s theory of the case.”].) Furthermore,
autopsy and crime scene photographs are not made inadmissible because they are
offered to prove an issue not in dispute (People v. Stitely (2005) 35 Cal.4th 514,
545), and are admissible even if repetitive of other evidence, provided their
probative value is not substantially outweighed by their prejudicial effect, as we
have determined is true here (People v. Cole (2004) 33 Cal.4th 1158, 1199; People
v. Price (1991) 1 Cal.4th 324, 441).
B. Impeachment of Joseph Widby
Defendant next argues the trial court erred in allowing the prosecutor to
impeach defense witness Joseph Widby with the fact that at the time of his
testimony he was serving a 10-year federal prison sentence for a conviction of
being a felon in possession of a firearm.
Before Widby took the stand, the trial court ruled that neither Widby’s 1975
assault conviction nor his 1979 robbery conviction was subject to exclusion on the
ground of remoteness. In addition, defendant conceded Widby could be
impeached on the basis of his more recent federal firearm conviction. Defendant
moved the trial court, however, for a ruling that the fact and length of Widby’s
custody status was inadmissible under Evidence Code section 352. The prosecutor
argued the fact that Widby was then serving a 10-year prison sentence was
relevant to his credibility because it showed he did not have anything to lose by
committing perjury. The trial court ruled Widby’s custody status and the length of
his prison term were admissible under the prosecutor’s theory of relevance. On
cross-examination, the prosecutor elicited from Widby that he was “basically at
the beginning” of a 10-year term in federal prison.
Evidence Code section 788 provides in relevant part: “For the purpose of
attacking the credibility of a witness, it may be shown by the examination of the
witness . . . that he has been convicted of a felony . . . .” We have held that the
predecessor to Evidence Code section 788 did not permit the impeachment of a
witness with the length of the sentence imposed for the conviction at issue.
(People v. Smith (1966) 63 Cal.2d 779, 790; see also People v. Wynn (1941) 44
With the adoption of the so-called truth-in-evidence rule by the passage of
Proposition 8 in 1982, the California Constitution was amended to read: “Except
as provided by statute hereafter enacted by a two-thirds vote of the membership in
each house of the Legislature, relevant evidence shall not be excluded in any
criminal proceeding, including pretrial and post conviction motions and hearings,
or in any trial or hearing of a juvenile for a criminal offense, whether heard in
juvenile or adult court. Nothing in this section shall affect any existing statutory
rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352,
782 or 1103. Nothing in this section shall affect any existing statutory or
constitutional right of the press.” (Cal. Const., art. I, § 28, subd. (d).)
Respondent notes that in People v. Wheeler (1992) 4 Cal.4th 284, 291, we
concluded that the truth-in-evidence rule “supersedes all California restrictions on
the admission of relevant evidence except those preserved or permitted by the
express words of [California Constitution, article I,] section 28 [, subdivision] (d)
itself.” We continued: “The limitations on impeachment evidence contained in
Evidence Code sections 787 and 788 do not fall within any of section 28[,
subdivision] (d)’s stated exceptions to [the] general rule that relevant evidence is
admissible.” (People v. Wheeler, supra, 4 Cal.4th at p. 292.) Respondent thus
argues that our holding in Smith ― that a witness may not be impeached under
Evidence Code section 788 with the length of the prison sentence ― did not
survive the truth-in-evidence rule. Here, the prosecutor offered information about
Widby’s prison sentence to prove not the fact of the underlying conviction under
Evidence Code section 788, but rather that Widby had nothing to lose by lying.
(Evid. Code, § 780, subd. (f) [impeachment of witness with existence or
nonexistence of bias, interest, or motive].)
We have never considered whether a witness may be impeached with the
length of a prison sentence when offered not to prove the fact of the conviction,
but rather to prove the witness has some other motive or bias. We need not decide
that issue here, however, as any alleged error was harmless.
“Absent fundamental unfairness, state law error in admitting evidence is
subject to the traditional Watson test: The reviewing court must ask whether it is
reasonably probable the verdict would have been more favorable to the defendant
absent the error.” (People v. Partida (2005) 37 Cal.4th 428, 439, citing People v.
Watson (1956) 46 Cal.2d 818, 836.)
Even apart from the matter of Widby’s federal prison term, the prosecutor
thoroughly impeached Widby’s credibility. On cross-examination, Widby
admitted he had suffered three prior felony convictions and was friendly with the
Santana Block Crips, who had once been allied with Widby’s gang, the Atlantic
Drive Crips. In fact, Widby displayed for the jury Atlantic Drive Crips and
Santana Block Crips tattoos on his left wrist. Also, Widby testified he had spoken
to defendant while they were both incarcerated at the Los Angeles County jail,
thereby supporting the prosecutor’s argument that defendant solicited Widby’s
Moreover, although other defense witnesses called into question the
eyewitness identifications of defendant as the shooter, the jury clearly rejected
their testimony by returning a guilty verdict. It is not reasonably probable the
jury’s categorical rejection of their testimony was based solely on the fact that
Widby was serving a 10-year federal prison sentence.
Finally, the evidence against defendant was overwhelming. Multiple
eyewitnesses identified defendant as the shooter and defendant’s vehicle as the
vehicle involved. Defendant had a motive for the killings, given the active gang
war between defendant’s gang and Atlantic Drive Crips, Solomon’s gang.
Defendant himself had been shot by an Atlantic Drive Crips member several
months before he committed these offenses. In addition, defendant’s behavior
after the shootings reflected a consciousness of guilt: He had his car repainted and
fled to Bakersfield. Also telling of defendant’s state of mind was his spontaneous
statement to Detective Branscomb that he did not know why he was being charged
with attempted murder and that he was not in Compton on the day of the shooting,
before officers had informed him of the details of the charges on which he was
In light of all of the evidence, it is not reasonably probable the verdict
would have been more favorable to defendant had the trial court excluded
evidence of Widby’s federal prison term.
C. Guilt Phase Instructions
CALJIC No. 8.65
Defendant contends the trial court erred by instructing the jury with CALJIC
No. 8.65, which states: “When one attempts to kill a certain person, but by
mistake or inadvertence kills a different person, the crime, if any, so committed is
the same as though the person originally intended to be killed, had been killed.”
Citing People v. Birreuta (1984) 162 Cal.App.3d 454, defendant argues that at the
time of his offense in 1989, the doctrine of transferred intent could not be applied
where one killed his intended victim and also accidentally killed an unintended
victim. The impact of CALJIC No. 8.65 was crucial, defendant asserts, because of
the prosecutor’s theory at trial that defendant’s intended victim was Earl Solomon
and that Ava Williams was an innocent bystander. The prosecutor thus argued in
summation that defendant was guilty of murdering Ava Williams under a theory of
Although defendant did not object to this instruction at trial, he may
challenge it on appeal because it implicates his substantial rights. (§ 1259; see
People v. Gray (2005) 37 Cal.4th 168, 235.)
In People v. Carlson (1974) 37 Cal.App.3d 349, the defendant, who killed his
pregnant wife, was convicted of voluntary manslaughter of the wife and second
degree felony murder of the fetus. Carlson held “there can be no doubt that the
doctrine of ‘transferred intent’ applies even though the original object of the
assault is killed as well as the person whose death was the accidental or the
unintended result of the intent to kill the former” and in that case, “if defendant
was guilty of the killing of his wife without malice, i.e., voluntary manslaughter
[citation], he would normally be guilty of the voluntary manslaughter of the fetus.”
(Id. at p. 357.) Because California law precluded a conviction of manslaughter of
a fetus, the Carlson court reversed the murder conviction as to the fetus, finding
the felony murder rule inapplicable. (Id. at pp. 354-358.)
In Birreuta, the Court of Appeal disagreed with Carlson, reasoning the
doctrine of transferred intent was meant to “insure the adequate punishment of
those who accidentally kill innocent bystanders, while failing to kill their intended
victims.” (People v. Birreuta, supra, 162 Cal.App.3d at p. 460.) Birreuta
continued: “When the intended victim is killed, however, there is no need for such
an artificial doctrine. The defendant’s premeditation, deliberation, intent to kill
and malice aforethought are all directly employable in the prosecution for
murdering his intended victim. The accidental killing may thus be prosecuted as a
manslaughter or second degree murder without ignoring the most culpable mental
elements of the situation. There is no danger that a premeditated killing will go
unpunished or be treated as a manslaughter because the murder of the intended
victim will presumably be the subject of prosecution.” (Ibid.)
In 2002, we disapproved Birreuta on this point and adopted the reasoning in
Carlson, holding: “Whether one conceptualizes the matter by saying that the
intent to kill the intended target transfers to others also killed, or by saying that
intent to kill need not be directed at a specific person, the result is the same:
assuming legal causation, a person maliciously intending to kill is guilty of the
murder of all persons actually killed. If the intent is premeditated, the murder or
murders are first degree.” (People v. Bland (2002) 28 Cal.4th 313, 323-324.)
Defendant acknowledges Bland, but contends its reasoning cannot be applied
retroactively to justify the transferred intent instruction here. Thus, defendant
argues, under Birreuta he cannot be held liable for the murder of Ava Williams
under a theory of transferred intent.
“In determining whether a decision should be given retroactive effect, the
California courts undertake first a threshold inquiry, inquiring whether the
decision established new standards or a new rule of law. If it does not establish a
new rule or standards, but only elucidates and enforces prior law, no question of
retroactivity arises. [Citations.] Neither is there any issue of retroactivity when
we resolve a conflict between lower court decisions, or address an issue not
previously presented to the courts. In all such cases the ordinary assumption of
retrospective operation [citations] takes full effect.” (Donaldson v. Superior Court
(1983) 35 Cal.3d 24, 36-37, italics added; see also People v. Gallego (1990) 52
Cal.3d 115, 170 [“for questions of retroactivity concerning matters of state law we
adhere to the test employed in Donaldson”].)
Birreuta acknowledged its conflict with Carlson but explained that the
discussion in Carlson was dicta, “unsupported by any real analysis.” (People v.
Birreuta, supra, 162 Cal.App.3d at p. 458.) At least one other case decided prior
to defendant’s offense, however, acknowledged the conflict between Birreuta and
Carlson. (See People v. Czahara (1988) 203 Cal.App.3d 1468, 1472-1473.) The
conflict was acknowledged by this court in People v. Scott (1996) 14 Cal.4th 544.
In Scott, the defendant was convicted of the attempted murder of the intended
victim and murder of an unintended victim based upon transferred intent. We
concluded that applying the transferred intent doctrine to convict the defendant of
murdering the unintended victim did not preclude also convicting the defendant of
attempted murder of the intended victim. The defendant in Scott, citing Birreuta,
argued such liability treated him “as if he intended to kill two people rather than
one.” (Scott, supra, 14 Cal.4th at p. 551.) Scott noted that “in cases involving
crimes relating to both intended and unintended victims, reliance on the doctrine
[of transferred intent] to assign criminal liability has led to mixed results,” citing
Birreuta and Carlson among other cases. (Id. at p. 552.) Scott ultimately declined
to pass on the soundness of Birreuta, stating “the facts of the case presented here
do not involve the fatal shooting of both an intended and unintended victim.”
Although we declined to pass on Birreuta in Scott, we faced the issue directly
in Bland, and resolved the acknowledged conflict among the lower courts. While
defendant attempts to dismiss Carlson’s reasoning as “dicta,” there appears little
doubt Carlson’s reasoning conflicted with the later-decided Birreuta, a conflict
noted in several cases, including Scott, and created uncertainty in the law. In fact,
the first sentence in Bland reads: “We granted review to resolve issues involving
transferred intent and proximate causation.” (People v. Bland, supra, 28 Cal.4th at
p. 317, italics added.) Bland itself did not hesitate to apply its reasoning to the
defendant before that court. “Where, as here, the Supreme Court resolves a
conflict between lower court decisions, there is ‘no clear rule on which anyone
could have justifiably relied’ ” to bar retroactive application. (People v. Walsh
(1996) 49 Cal.App.4th 1096, 1106, fn. 10.)
Thus, the trial court did not err by instructing on transferred intent in a
manner consistent with Bland.
CALJIC No. 2.03
Defendant next argues that his state and federal constitutional rights to due
process, an impartial and properly instructed jury, and a fair and reliable trial were
violated by instructing the jury with CALJIC No. 2.03 as follows: “If you find
that before this trial the defendant made a willfully false or deliberately misleading
statement concerning the crimes for which he is now being tried, you may
consider such statement as a circumstance tending to prove a consciousness of
guilt. However, that conduct is not sufficient by itself to prove guilt, and its
weight and significance, if any, are matters for your determination.”
Specifically, defendant argues the instruction permitted irrational inferences
and was impermissibly argumentative, thereby undermining evidence supporting
his mistaken identity defense.
As defendant concedes, we have rejected identical arguments in other cases.
(E.g., People v. Nakahara (2003) 30 Cal.4th 705, 713.) He offers no persuasive
reason to reconsider these decisions.
IV. ISSUES RELATING TO PENALTY
A. Exclusion of Testimony by Criminologist
Defendant contends the trial court’s exclusion of the proffered testimony of
his penalty phase investigator Joel Sickler was erroneous under state evidentiary
law and violated his Eighth and Fourteenth Amendment rights to present
Defendant called Sickler, a criminologist, to testify about defendant’s
background and explain why people with similar backgrounds turn to gangs and
crime. Sickler was also to testify that a person with defendant’s background
would adjust well to prison life and, if sentenced to life without the possibility of
parole, would not be a management problem. Sickler began his testimony by
informing the jury that he had a bachelor’s degree in criminal justice and a
master’s degree in criminology. He explained that he had worked for seven years
for the National Center on Institutions and Alternatives, advising courts on
appropriate sentencing options for over 500 felony offenders. In private practice,
Sickler acted as a sentencing consultant, testifying in four penalty phase hearings
with respect to the defendant’s background and identifying mitigating factors.
At this point, the prosecutor objected to Sickler’s testimony, arguing that
Sickler could not testify as to the proper sentence for defendant and that he lacked
personal knowledge of defendant’s background. The prosecutor contended only
witnesses who actually knew defendant properly could present background
Defendant argued that Sickler would not render an opinion on the proper
sentence, but rather would testify to defendant’s character, background, and
history as mitigating evidence under section 190.3, factor (k). Defense counsel
informed the court that Sickler’s testimony would be based on a variety of records,
including Aid to Families with Dependent Children (AFDC) and prison records,
and interviews with family members. Defense counsel advised the court that
Sickler would “synthesize” the information in the records and give an “historical”
view of what happened in defendant’s life.
The trial court found no authority for an expert to “synthesize” information
already presented through other witnesses and no need for Sickler to testify to
defendant’s background in light of the other testimony presented. The court
questioned whether Sickler had the expertise to testify to defendant’s propensity
for violence or whether he would adjust well to prison life. Nevertheless, the trial
court decided to conduct a hearing under Evidence Code section 402.
Accordingly, in a hearing outside the jury’s presence, Sickler testified that as a
sentencing investigator, he analyzed criminal defendants’ backgrounds, including
personal history, character, and prior criminal record, and determined whether a
defendant was suitable for probation or other alternative sentencing. His role in
this case was to identify mitigating factors, which he did by interviewing
defendant’s friends and family members and reviewing social services, court,
prison, and police records.
According to Sickler, AFDC records were relevant to show that defendant’s
mother, as a teenager, gave birth to defendant and his sister and that the family had
been abandoned by defendant’s father. He explained it would not be sufficient for
the jurors simply to read the records without the help of his expert testimony
because they might not be able to make the correlation between delinquency and
being raised by a single mother, living in poverty, being abandoned by a father,
and having a negative male role model in the home.
Sickler also reviewed police and prison reports of defendant’s acts of
violence while incarcerated to determine whether defendant would be a
management problem if sentenced to life without the possibility of parole. Sickler
acknowledged he was not qualified to offer an opinion as to how defendant would
actually adjust to life in prison, and that his testimony would be limited to how a
hypothetical individual with defendant’s background would adjust to prison life.
Sickler further acknowledged he was not a psychologist and could not testify to
the psychological profile of someone with defendant’s history of poverty, but
rather could only testify regarding the general population.
Defense counsel argued Sickler’s testimony should be admitted because, he
asserted, the rules of evidence are relaxed at the penalty phase and Sickler could
provide relevant testimony based on the AFDC and prison records and his
interviews with witnesses. Counsel explained that it was insufficient simply to
provide the jury with the records themselves because Sickler would give an
overview of the mitigating evidence based on the records and interviews, which
would then be “corroborated” by the lay witnesses. The defense also argued that
the prosecution opened the door to evidence of defendant’s good behavior in
prison by putting on evidence of defendant’s violent acts while incarcerated, and
suggested that Sickler could describe pertinent differences between custodial
conditions in local facilities and state prison.
The trial court excluded Sickler’s testimony, finding that Sickler was not an
expert on any relevant issues, but ruled that the defense could present the reports
reviewed by Sickler through a duly qualified expert.
Expert opinion testimony is admissible only if it is “[r]elated to a subject that
is sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.” (Evid. Code, § 801, subd. (a).) “A person is qualified to
testify as an expert if he has special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the subject to which his
testimony relates. Against the objection of a party, such special knowledge, skill,
experience, training, or education must be shown before the witness may testify as
an expert.” (Evid. Code, § 720, subd. (a).) “ ‘The competency of an expert is
relative to the topic and fields of knowledge about which the person is asked to
make a statement.’ ” (People v. Kelly (1976) 17 Cal.3d 24, 39.) We review the
trial court’s ruling on the admissibility of expert testimony for abuse of discretion.
(People v. Smith (2003) 30 Cal.4th 581, 627.)
The trial court did not abuse its discretion in excluding Sickler’s proposed
testimony. As the court reasoned, Sickler characterized himself not as an expert,
but as a penalty phase investigator whose role was to collect and analyze records
and information from lay witnesses about a defendant’s background, and to
“synthesize” such data for the jury. Although the stresses of prison life and an
individual’s ability to adapt to such circumstances are subjects beyond common
experience and expert testimony thereon likely would have likely been helpful to
the jury (Evid. Code, § 801, subd. (a)), Sickler was not qualified to offer such
testimony. Sickler had a significant educational background in criminal justice
and was experienced in noncapital sentencing alternatives, but he was not a
psychologist and candidly acknowledged he was not qualified to offer an expert
opinion as to the psychological impact of defendant’s upbringing on his current
behavior or how defendant would actually adjust to life in prison.
Because the trial court did not abuse its discretion in excluding Sickler’s
testimony, defendant’s federal constitutional claim also lacks merit. A capital
defendant has a constitutional right to present all relevant mitigating evidence at
the penalty phase. (Skipper v. South Carolina (1986) 476 U.S. 1, 4.) But “the
United States Supreme Court never has suggested that this right precludes the state
from applying ordinary rules of evidence to determine whether such evidence is
admissible.” (People v. Smithey (1999) 20 Cal.4th 936, 995.)
Even if the trial court had abused its discretion in excluding Sickler’s
proposed testimony, however, any error would have been harmless under both the
state and federal standard. Penalty phase error is prejudicial under state law if
there is a “reasonable possibility” the error affected the verdict. (People v.
Gonzalez (2006) 38 Cal.4th 932, 961.) This standard is identical in substance and
effect to the federal harmless beyond a reasonable doubt standard enunciated in
Chapman v. California (1967) 386 U.S. 18, 24. (People v. Gonzalez, supra, 38
Cal.4th at p. 961.)
Defendant intentionally fired an AK-47 into a crowded park, at one point
aiming at a car containing two innocent women and their children. He shot and
killed a rival gang member and an innocent teenage mother of two. Further
testimony regarding defendant’s underprivileged background was largely
cumulative of testimony by defendant’s family members and friends that had been
presented to the jury and was unlikely to overcome the heinous nature of these
killings. In addition, evidence that a prisoner similar to defendant might adjust
well to prison life likely would have been outweighed by the evidence of
defendant’s continued violence while in custody, even taking into account possible
differences between local facilities and state prison. Based on these facts, there is
no reasonable possibility that the penalty verdict would have been different had
the jury been presented with Sickler’s testimony.
B. Removal of Juror J.L.
Defendant claims the trial court’s decision to inquire into potential juror
bias and remove, over defense objection, Juror J.L. violated state common law and
defendant’s state constitutional right to a unamimous jury verdict.
On the second day of penalty phase deliberations, D.G., the jury’s
foreperson, sent a note to the court, stating, “What do we do if we have a juror that
has admitted he does not believe in the death penalty, under any circumstances?”
The trial court consulted with counsel and determined that “the appropriate
procedure would be to have the foreperson come out and determine who the juror
is and if that is the position that that person has taken, then have that juror, once
identified, come out and make a determination whether or not that juror does take
that stance. If so, then that juror should be removed and an alternate selected at
random and the jury instructed to begin to deliberate from the inception.”
Defense counsel objected, arguing that the juror had survived extensive voir
dire questioning and should not be disqualified because, in the heat of
deliberations, he developed “grave reservations” about capital punishment.
Defense counsel suggested that the court question D.G. about the note and
admonish the entire jury that they had been qualified as capital jurors and should
deliberate to the best of their ability.
The trial court declined to admonish the entire jury, viewing such a procedure
as coercive. Instead the court concluded that it would inquire of D.G. and then,
rather than allowing counsel to question her directly, would invite counsel to raise
any lingering questions at sidebar. During the ensuing inquiry the foreperson
stated that Juror J.L. had spoken with his minister the previous evening and had
decided that he could not “bring himself to take another human life.”
Defense counsel suggested the court inquire of J.L., and the court agreed.9
The court then engaged in the following colloquy with J.L.:
“The Court: Is it your position that you could not vote for the death penalty
under any circumstances no matter what the evidence in the case is?”
“The Court: It’s without regard to what evidence is presented in the case?
9 The record is not entirely clear whether defendant later objected to questioning
J.L. After Defense Counsel John Johnson requested that J.L. be called, Cocounsel
John Doyle stated, “We would object as being brought out and inquired of.”
“The Court: That means that you would not consider the circumstances of
“The Court: You would not consider circumstances in aggravation?
“The Court: And would you not consider circumstances in mitigation?
“The Court: You would under no circumstances without regard to what the
evidence is vote for the death penalty?
Defense counsel then requested the court ask J.L. if he would be unable to
vote for the death penalty in any case, or if he was merely disinclined to impose
the death penalty on the facts of this case. The trial court concluded that J.L.’s
answers reflected an inability to vote for the death penalty in any case and thus
declined to question him further. The court then excused J.L. and randomly
selected an alternate to take his place on the jury.
Inquiry of D.G.
Defendant argues that the trial court erred by questioning D.G. regarding
“The need to protect the sanctity of jury deliberations . . . does not preclude
reasonable inquiry by the court into allegations of misconduct during
deliberations.” (People v. Cleveland (2001) 25 Cal.4th 466, 476.) In fact, a
hearing is required “ ‘where the court possesses information which, if proven to be
true, would constitute “good cause” to doubt a juror’s ability to perform his duties
and would justify his removal from the case.’ ” (Id. at p. 478.) In making such
inquiry, the trial court should focus on the juror’s conduct rather than the content
of the deliberations. (Id. at p. 485.) Ultimately, the decision whether to
investigate is within the discretion of the trial court. (People v. Burgener, supra,
29 Cal.4th 833, 878.)
As we explained in Cleveland: “[P]roper grounds for removing a
deliberating juror include refusal to deliberate. . . . Examples of refusal to
deliberate include, but are not limited to, expressing a fixed conclusion at the
beginning of deliberations and refusing to consider other points of view, refusing
to speak to other jurors, and attempting to separate oneself physically from the
remainder of the jury.” (People v. Cleveland, supra, 25 Cal.4th at p. 485.)
The foreperson’s note informed the court that a juror had decided after just
one afternoon of deliberations that he was unable to vote for the death penalty
under any circumstances. Thus, the note indicated to the court that the juror was
refusing to consider other points of view. Assuming the note accurately
characterized the juror’s attitude, the trial court was on notice that a juror was
refusing to deliberate and was subject to removal. (People v. Cleveland, supra, 25
Cal.4th at p. 485.) Under these circumstances, the trial court acted well within its
discretion in questioning D.G., and in fact was required to do so. (Id. at p. 478.)
Defendant argues, however, that rather than embarking on an investigation
of D.G.’s allegations, the trial court should first have reinstructed the jury
regarding their duties and allowed them to continue deliberations. We have held
that such a procedure might be appropriate in many cases, but have never
mandated it. In Cleveland, we noted that “it often is appropriate for a trial court
that questions whether all of the jurors are participating in deliberations to
reinstruct the jurors regarding their duty to deliberate and to permit the jury to
continue deliberations before making further inquiries that could intrude upon the
sanctity of deliberations.” (People v. Cleveland, supra, 25 Cal.4th at p. 480.) But,
as Cleveland suggests, this procedure may not be appropriate in every case.
Where, as here, the trial court is faced with allegations that a juror would refuse to
impose the death penalty under any circumstances, the court was obligated to
conduct an investigation. (Id. at p. 478.)
Discharge of J.L.
Defendant next argues that, assuming the trial court was justified in
questioning D.G., it erred in ultimately excusing J.L.
Section 1089 provides, in relevant part, “If at any time, whether before or
after the final submission of the case to the jury, a juror dies or becomes ill, or
upon other good cause shown to the court is found to be unable to perform his or
her duty . . . the court may order the juror to be discharged . . . .” As discussed
above, a juror’s refusal to deliberate constitutes proper grounds for removal.
(People v. Cleveland, supra, 25 Cal.4th at p. 485.) The determination of good
cause to excuse a juror rests within the sound discretion of the court and is upheld
if supported by substantial evidence. (Id. at p. 474.) The juror’s inability to
perform, however, must “ ‘ “ ‘appear in the record as a demonstrable reality.’ ” ’ ”
The record here meets the standard enunciated in section 1089 and
Cleveland. After a single afternoon of deliberations, J.L. consulted his minister
regarding the death penalty.10 The next day, J.L. announced to the rest of the jury
that he could not vote for the death penalty under any circumstances. When
questioned by the trial court, J.L. confirmed he could not vote for the death
penalty no matter what the evidence showed. J.L. “express[ed] a fixed conclusion
10 The record does not reflect the nature of J.L.’s conversation with his minister.
This conversation, standing alone, might have constituted juror misconduct, but
because defendant has not asserted a claim of juror misconduct in this appeal, we
do not address it.
at the beginning of deliberations and refus[ed] to consider other points of view,”
thereby refusing to deliberate. (People v. Cleveland, supra, 25 Cal.4th at p. 485.)
Thus, the trial court did not err in removing J.L. from the jury.
Defendant further argues the trial court erred in failing to clarify whether J.L.
was refusing to vote for death in this case or whether he would be unable to
impose a death sentence in any case. The trial court declined to question J.L.
further, finding it clear from his answers that he would not impose a death
sentence in any case. Its finding is supported by the record. The trial court asked
whether J.L. could impose the death penalty “under any circumstances” regardless
of the evidence presented in the case, and J.L. replied that under no circumstances,
regardless of the evidence, would he vote for the death penalty.
The same reasoning dictates rejection of defendant’s argument that the trial
court’s inquiry violated Evidence Code section 1150 by intruding on J.L.’s mental
processes in deliberations: J.L., in effect, was not deliberating.
Thus, the trial court did not err in removing J.L. from the jury.
C. Penalty Phase Instructions
Trial Court’s Rejection of Proposed Instructions
Defendant asserts the trial court erred in rejecting three penalty phase
instructions proposed by the defense.
First, defendant claims the trial court erred in refusing his proposed
instruction that “Whether or not you have a lingering doubt as to whether the
defendant committed the two homicides of which you have convicted him, you
may consider this as a factor in mitigation.” We repeatedly have rejected state and
federal law claims that a trial court must instruct the jury concerning lingering
doubt. (E.g., People v. Robinson (2005) 37 Cal.4th 592, 653-654.) Defendant
presents no reason to revisit that conclusion.
Next, defendant argues the trial court erred by refusing to instruct the jury
that “During the penalty phase of the trial testimony has been presented from the
defendant’s mother. She has testified to her love for the defendant and she does
not wish him to be put to death. You are instructed that you may consider and
take into account as mitigating factors these expressions of love and concern for
Paul Watson in determining whether he should be sentenced to death or life in
prison without parole. This evidence may be sufficient standing alone to warrant
the return of a verdict of life without the possibility of parole.”
The trial court properly denied this instruction as argumentative. (People v.
Sanders (1995) 11 Cal.4th 475, 559-561.) This instruction merely highlighted
evidence the defendant wished the jury to consider in mitigation and sought
sympathy for defendant’s mother, an impermissible consideration. (People v.
Ochoa (1998) 19 Cal.4th 353, 455-456.)
Finally, defendant argues the trial court erred in refusing a multipart
instruction that sought to guide the jury in its weighing of aggravating and
mitigating factors and its ultimate penalty determination. The proposed
instruction read as follows:
“You are instructed that you may return a verdict of life without the
possibility of parole, even though you should find the presence of one or more
aggravating circumstances. One mitigating circumstance may be sufficient for
you to return a verdict of life without the possibility of parole.
“If a mitigating circumstance or an aspect of the background, character or
your observation of the defendant arouses sympathy or compassion, so as to
persuade you that death is not an appropriate penalty, you may act in response
thereto and opt instead for life without the possibility of parole.
“The laws of the State of California express no preference as to which
punishment, death or life without the possibility of parole is appropriate.
Punishment is the sole province of the jury.”
The trial court properly rejected as argumentative the first part of the
proposed instruction because it states that any mitigating evidence may support a
sentence of life without the possibility of parole, without also stating that any
aggravating evidence may support a death sentence. (People v. Lenart (2004) 32
Cal.4th 1107, 1135.) Additionally, the point of the proposed instruction, to make
clear that one factor in mitigation was sufficient in and of itself to outweigh the
three factors in aggravation, was conveyed to the jury through CALJIC No. 8.88
(weight to be afforded any factor was within the discretion of the jury).
The second part of the proposed instruction was properly rejected as
duplicative in light of the trial court’s instruction that, in determining penalty, the
jury should consider pity and sympathy for the defendant. (People v. Carter
(2003) 30 Cal.4th 1166, 1226-1227.)
Finally, although it is not error for a trial court to instruct that the law has
no preference as to penalty and that the penalty decision is the sole province of the
jury (People v. Samayoa (1997) 15 Cal.4th 795, 852-853), neither was it error for
the trial court to refuse to so instruct defendant’s jury. The court clearly and
unambiguously instructed the jury that the decision between a sentence of death
and life without the possibility of parole was within their exclusive discretion.
Specifically, the trial court instructed the jury that it “must now determine which
of said penalties shall be imposed on the defendant” (CALJIC No. 8.84), that it
was to determine which penalty was to be imposed based on all the evidence
received during any part of the trial (CALJIC No. 8.85), that nothing the court did
or said should be taken as to “intimate or suggest what you should find to be the
facts” (CALJIC No. 17.30), and that “[e]ach of you must decide the case for
yourself” (CALJIC No. 17.40). Perhaps most significantly, the jury was instructed
pursuant to CALJIC No. 8.88 as follows:
“It is now your duty to determine which of the two penalties, death or
confinement in the state prison for life without the possibility of parole, shall be
imposed on the defendant.
“After having heard all of the evidence, and after having heard and
considered the arguments of counsel, you shall consider, take into account and be
guided by the applicable factors of aggravating and mitigating circumstances upon
which you have been instructed. [¶] . . . [¶]
“You are free to assign whatever moral or sympathetic value you deem
appropriate to each and all of the various factors you are permitted to consider. In
weighing the various circumstances you determine under the relevant evidence
which penalty is justified and appropriate by considering the totality of the
aggravating circumstances with the totality of the mitigating circumstances. To
return a judgment of death, each of you must be persuaded that the aggravating
circumstances are so substantial in comparison with the mitigating circumstances
that it warrants death instead of life without parole.”
In light of these instructions, there was no room for the jury to speculate
that the laws of the State of California had a preference as to penalty. Rather, the
jurors certainly must have understood that the decision was left to their sole
Definition of Life Without the Possibility of Parole
Defendant claims the trial court had a sua sponte duty to instruct the jury that
a sentence of life without possibility of parole meant that defendant would never
be considered for parole. We addressed this argument in People v. Holt (1997) 15
Cal.4th 619, 687-689, holding that a trial court does not have a sua sponte duty to
define “life without the possibility of parole” because the term has a plain meaning
that does not require further explanation. We further concluded such an
instruction would be erroneous given the gubernatorial powers of pardon and
commutation and the possibility that the death penalty statute could be invalidated
in the future. (Id. at p. 688.) Defendant presents no reason to reconsider our
CALJIC No. 8.85
Defendant next argues that his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution were violated when the trial
court instructed the jury with CALJIC No. 8.85.11
CALJIC No. 8.85 (5th ed. 1988) parallels the provisions of section
190.3, instructing: “In determining which penalty is to be imposed on defendant,
you shall consider all of the evidence which has been received during any part of
the trial of this case, except as you are otherwise instructed. You shall consider,
take into account and be guided by the following factors, if applicable:
“(a) The circumstances of the crime of which the defendant was convicted
in the present proceeding and the existence of any special circumstance found to
“(b) The presence or absence of criminal activity by the defendant, other
than the crime for which the defendant has been tried in the present proceedings,
which involved the use or attempted use of force or violence or the express or
implied threat to use force or violence;
“(c) The presence or absence of any prior felony conviction, other than the
crimes for which the defendant has been tried in the present proceedings;
“(d) Whether or not the offense was committed while the defendant was
under the influence of extreme mental or emotional disturbance;
“(e) Whether or not the victim was a participant in the defendant’s
homicidal conduct or consented to the homicidal act;
“(f) Whether or not the offense was committed under circumstances which
the defendant reasonably believed to be a moral justification or extenuation for his
“(g) Whether or not the defendant acted under extreme duress or under the
substantial domination of another person;
(footnote continued on next page)
Although defendant did not challenge this instruction at trial, this claim is
cognizable on appeal because it implicates his substantial rights. (§ 1259; see
People v. Gray, supra, 37 Cal.4th 168, 235.)
Defendant first argues that section 190.3, factor (b) (factor (b)) violates his
rights to due process and equal protection by failing to provide sufficient guidance
to the jury regarding their consideration of defendant’s past unadjudicated criminal
conduct. We previously have rejected this argument. (People v. Kipp (2001) 26
Cal.4th 1100, 1138.)
Next, defendant argues that factor (b) violated his rights to due process and
a reliable penalty determination under the Eighth and Fourteenth Amendments by
permitting the jury to consider unreliable evidence of his unadjudicated criminal
conduct. Thus, he appears to mount a broad attack on the consideration by the
jury of unadjudicated criminal conduct generally. We often have rejected this
contention. (E.g., People v. Anderson (2001) 25 Cal.4th 543, 584.)
(footnote continued from previous page)
“(h) Whether or not at the time of the offense the capacity of the defendant
to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was impaired as a result of mental disease or defect or the
effects of intoxication;
“(i) The age of the defendant at the time of the crime;
“(j) Whether or not the defendant was an accomplice to the offense and his
participation in the commission of the offense was relatively minor;
“(k) 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. You must disregard any jury instruction given to you in the guilt or
innocence phase of this trial which conflicts with this principle.”
Defendant also claims that factor (b) violates state and federal
constitutional rights to equal protection and due process because it allows the
consideration of unadjudicated criminal conduct in capital sentencing, while such
conduct may not be used in sentencing noncapital offenders. His claim fails
because “capital and noncapital defendants are not similarly situated and therefore
may be treated differently without violating constitutional guarantees of equal
protection of the laws or due process of law.” (People v. Manriquez (2005) 37
Cal.4th 547, 590.)
Finally, defendant argues the trial court violated his constitutional rights by
failing to delete inapplicable factors from CALJIC No. 8.85. We previously have
rejected this argument. (People v. Perry (2006) 38 Cal.4th 302, 319.) Defendant
presents no persuasive reason to reconsider our precedents.
Scope of Sentencing Discretion
Defendant asserts that CALJIC No. 8.88 violated his rights to due process,
a fair jury trial, and a reliable penalty determination.12 This claim is cognizable on
12 As modified at trial, CALJIC No. 8.88 (5th ed. 1988), reads as follows:
“It is now your duty to determine which of the two penalties, death or
confinement in the state prison for life without possibility of parole, shall be
imposed on the defendant.
“After having heard all of the evidence and after having heard and
considered the arguments of counsel, you shall consider, take into account and be
guided by the applicable factors or aggravating and mitigating circumstances upon
which you have been instructed.
“An aggravating factor is any fact, c[ondition] or event attending the
commission of a crime which increases its guilt or enormity, or adds to its
injurious consequences which is above and beyond the elements of the crime
“A mitigating circumstance is any fact, condition or event which, as such,
does not constitute a justification or excuse for the crime in question but may be
considered as an extenuating circumstance in determining the appropriateness of
the death penalty.
(footnote continued on next page)
appeal despite defendant’s failure to object at trial because it implicates his
substantial rights. (§ 1259; see People v. Gray, supra, 37 Cal.4th at p. 235.)
Contrary to defendant’s arguments, his constitutional rights were not
infringed by the reading of CALJIC No. 8.88. First, the language in CALJIC No.
8.88 directing the jury to determine whether the aggravating circumstances are “so
substantial” in comparison to the mitigating circumstances is not
unconstitutionally vague. (People v. Chatman (2006) 38 Cal.4th 344, 409.)
Moreover, CALJIC No. 8.88 is not defective in requiring the jury to determine
whether the death penalty is “warranted” rather than “appropriate.” (People v.
Perry, supra, 38 Cal.4th at p. 320; People v. Medina (1995) 11 Cal.4th 694, 781.)
Neither is it defective in failing to inform the jurors that defendant did not carry
the burden of persuading them that the death penalty was inappropriate. (People
v. Medina, supra, 11 Cal.4th at p. 782.) Finally, the trial court need not instruct
the jury that a life sentence is mandatory if circumstances in aggravation do not
outweigh those in mitigation, or that a life sentence could be imposed even if
aggravating evidence outweighed mitigating evidence. (Id. at pp. 781-782.)
(footnote continued from previous page)
“The weighing of aggravating and mitigating circumstances does not mean
a mere mechanical counting of factors on each side of an imaginary scale or the
arbitrary assignment of weights to any of them. You are free to assign whatever
moral or sympathetic value you deem appropriate to each and all of the various
factors you are permitted to consider.
“In weighing the various circumstances you determine under the relevant
evidence which penalty is justified and appropriate by considering the totality of
the aggravating circumstances with the totality of the mitigating circumstances.
“To return a judgment of death, each of you must be persuaded that the
aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole.”
D. Constitutionality of California’s Death Penalty Law
Defendant presents a number of familiar attacks on the constitutionality of
California’s death penalty statute. We previously have rejected these arguments,
and defendant presents no compelling reason for us to reconsider those holdings.
Below we briefly describe defendant’s arguments and the cases rejecting them.
California’s death penalty law is not unconstitutional for failing to
sufficiently narrow the class of death-eligible defendants to the most serious
offenders. (People v. Perry, supra, 38 Cal.4th at p. 322; People v. Demetrulias
(2006) 39 Cal.4th 1, 43-44.)
Allowing the jury to consider the circumstances of the crime under section
190.3, factor (a) does not lead to the arbitrary and capricious imposition of the
death penalty. (People v. Guerra, supra, 37 Cal.4th 1067, 1165; People v. Hinton
(2006) 37 Cal.4th 839, 913; People v. Kennedy (2005) 36 Cal.4th 595, 641.)
The death penalty statute is not unconstitutional for failing to impose a
proof-beyond-a-reasonable-doubt standard for finding the existence of aggravating
factors, finding aggravating factors outweigh mitigating factors, or finding that
death is the appropriate penalty. (People v. Snow (2003) 30 Cal.4th 43, 126;
People v. Box, supra, 23 Cal.4th 1153, 1216.)
California’s death penalty law is not unconstitutional for failing to impose a
burden of proof that death is appropriate, either beyond a reasonable doubt or by a
preponderance of the evidence. (People v. Perry, supra, 38 Cal.4th at p. 321;
People v. Box, supra, 23 Cal.4th at p. 1216.) Neither is the law invalid for not
requiring a jury instruction on the burden of proof. (People v. Box, supra, 23
Cal.4th at p. 1216; see also People v. Morrison (2004) 34 Cal.4th 698, 731
[neither Apprendi v. New Jersey (2000) 530 U.S. 466 nor Ring v. Arizona (2002)
536 U.S. 584 warrants reconsideration of our conclusion that the death penalty
statute is not unconstitutional for failing to provide the jury with instructions on
the burden of proof].)
A jury in a capital case need not make written findings or achieve
unanimity as to aggravating circumstances. (People v. Kennedy, supra, 36 Cal.4th
at p. 641; People v. Morrison, supra, 34 Cal.4th at p. 730.) California’s death
penalty statute does not violate equal protection by denying capital defendants
certain procedural safeguards, such as jury unanimity and written jury findings,
while affording such safeguards to noncapital defendants. (People v. Blair (2005)
36 Cal.4th 686, 754.)
The jury properly may consider a defendant’s unadjudicated criminal
activity at the penalty phase and need not agree unanimously that the defendant
committed those acts. (People v. Smith, supra, 30 Cal.4th 581, 642; People v.
Michaels (2002) 28 Cal.4th 486, 541-542.)
The use of restrictive adjectives, such as “extreme” and “substantial,” in the
sentencing statute and instructions do not render either unconstitutional. (People
v. Kennedy, supra, 36 Cal.4th at p. 641.)
California’s death penalty statute is not unconstitutional for failing to
require a jury instruction as to which factors are aggravating and which are
mitigating, or an instruction that the absence of mitigating factors does not
constitute aggravation. (People v. Cunningham (2001) 25 Cal.4th 926, 1041.)
Finally, the federal Constitution does not require intercase proportionality
review. (People v. Kennedy, supra, 36 Cal.4th at p. 641.)
E. Violation of International Law
Defendant contends that the use of capital punishment as an assertedly
“regular” form of punishment for substantial numbers of crimes, rather than as an
extraordinary punishment for extraordinary crimes, violates international norms of
human decency. He also argues that the use of the death penalty as a “regular”
form of punishment violates the law of nations and is therefore unconstitutional
“because international law is part of our law.” We have rejected both of these
arguments (see, e.g., People v. Blair, supra, 36 Cal.4th 686, 754-755), and
defendant presents no reason to reconsider our conclusion.
V. CUMULATIVE ERROR
Defendant argues that the cumulative effect of errors in both phases of his
trial undermined the fundamental fairness of his trial and the reliability of his
sentence. Whether considered independently or together, any errors or assumed
errors are nonprejudicial and do not undermine defendant’s conviction or
The judgment is affirmed.
WE CONCUR: GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Watson
Original Appeal XXX
Opinion No. S024471
Date Filed: May 8, 2008
County: Los Angeles
Judge: Donald F. Pitts
Attorneys for Appellant:
Lynn S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court,
and Peter R. Silten, Deputy State Public Defender, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, David P. Druliner and Robert R. Anderson,
Chief Assistant Attorneys General, Carol Wendelin Pollack and Pamela C. Hamanaka, Assistant Attorneys
General, William T. Harter, Susan Lee Frierson, April S. Rylaarsdam, John R. Gorey and Nancy G. James,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Peter R. Silten
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
Nancy G. James
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
Automatic appeal from a judgment of death.
|Date:||Citation:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Thu, 05/08/2008||43 Cal. 4th 652, 182 P.3d 543, 76 Cal. Rptr. 3d 208||S024471||Automatic Appeal||closed; remittitur issued|| |
WATSON (PAUL GREGORY) ON H.C. (S167108)
|1||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
Nancy G. James, Deputy Attorney General
300 S. Spring Street, 5th Floor
Los Angeles, CA
|2||Watson, Paul Gregory (Appellant)|
Represented by Office Of The State Public Defender-Sf
Peter R. Silten, Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA
|3||Watson, Paul Gregory (Appellant)|
Represented by Geraldine S. Russell
Attorney at Law
P.O. Box 2160
La Mesa, CA
|May 8 2008||Opinion: Affirmed|
|Dec 13 1991||Judgment of death|
|Dec 30 1991||Filed certified copy of Judgment of Death Rendered|
December 13, 1991.
|Nov 21 1995||Counsel appointment order filed|
appointing Francis Breidenbach, Esq. to represent appellant on his automatic appeal, including any related habeas proceedings.
|Dec 13 1995||Application for Extension of Time filed|
By Applt to request correction of Record.
|Dec 14 1995||Extension of Time application Granted|
To Applt To 2-20-96 To request Corr. of Record.
|Feb 16 1996||Application for Extension of Time filed|
By Aplnt to request correction of Record.
|Feb 22 1996||Extension of Time application Granted|
To March 22,1996 To request correction of the Record
|Mar 18 1996||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Mar 26 1996||Extension of Time application Granted|
To May 21,1996 To request correction of the Record
|May 21 1996||Motion filed|
By Applt for Order Allowing Ex Parte Inspection & Copying (of Pp. from Confidential C.T.).
|May 23 1996||Received:|
Copy of Applt's motion for Orders correcting, Augmenting & Settling the Record (filed in L.A. Supr. Crt.) (17 Pp. Excluding Exhibits).
|May 28 1996||Filed:|
Declaration of Francis Breidenbach in support of Applt's motion for Order Allowing Ex Parte Inspection & Copying.
|Jul 1 1996||Compensation awarded counsel|
|Jul 18 1996||Order filed:|
Appellant's "motion for Order Allowing Ex Parte Inspection and Copying" Is denied as Moot.
|Feb 25 1997||Compensation awarded counsel|
|Mar 21 1997||Motion filed|
By Applt for Transcription of Sound Recordings and Production of Transcripts (4 Pp. Excluding Exhibit.)
|Mar 24 1997||Motion filed|
By Applt for Modification and Reversal of Portions of Trial Court's Ruling on Applt's motion to Augment, correct & Settle Record.
|Mar 28 1997||Opposition filed|
By Resp to motion for Transcripts of Sound Recordings and Production Fo Transcripts.
|Mar 28 1997||Opposition filed|
By Resp for Modification & Reversal of Portions of Trial Court's Rulings Etc.
|Apr 7 1997||Response filed|
To Opposition To motion for Modification and Reversal of Portions of Trial Court's Ruling, Etc.
|Apr 7 1997||Filed:|
Appellant's reply to Opposition to motion for Transcription of Sound Recordings and Production of Transcript.
|May 14 1997||Order filed:|
Appellant's "motion for transcription of sound recordings & production of transcripts" is granted. The Los Angeles County Superior Court is hereby directed to cause a transcript of the electronic sound recording identified as People's Exhibit No. 26 to be prepared, and to cause such transcript to become part of the clerk's transcript.
|May 14 1997||Order filed:|
Appellant's "motion for modification & reversal of portions of trial court's ruling on appellant's motion to augment, correct, and settle the record on appeal" is grant in part and denied in part. To the extent that it concerns "trial exhibits" specified therein (Motion at pp. 1-2; Id., Exh. 1), the motion is granted as herein indicated. Los Angeles County Superior Court is directed to allow appellant's counsel to cause reproductions of the items in question to be made on such terms & conditions as the Superior Court deems reasonable. To the extent that it concerns "official reports and documents of law enforcement agencies used in support of [appellant's] arrest warrant" (Motion at p. 2), the motion is granted as herein indicated. The Superior Court is directed to determine whether any such "report" or "document" was "on file or lodged with the Superior or Municipal Court .... pertaining to the trial of the cause" (Pen. Code, sec. 190.7, subd. (a)(2); see Cal. Rules of Court, Rule 39.5(c)), & to cause each such "report" or "document" as was "on file or lodged" therewith to become part of the clerk's transcript. To the extent that it concerns the "exhibits used during [appellant's] ... preliminary hearing" (Motion at p. 2), the motion is granted as herein indicated. Superior Court is directed to order Municipal Court to allow appellant's counsel to cause reproductions of items in question to be made on such terms & conditions as Municipal Court deems reasonable. To the extent that it concerns the "Municipal Court transcripts, other than the preliminary hearing, concerning" appellant (Motion at p. 2), the motion is granted as herein indicated. Superior Court is directed to order Municipal Court to "order the transcription & preparation of the record of all proceedings" therein and to "certif[y]" the record so transcribed & prepared "to the Superior Court." (Pen. Code 190.9(a)(2); see CRC, Rule 39.5(C).) Superior Court is further directed to cause record so transcribed, prepared & certified to become part of the clerk's transcript. To the extent that it concerns the "search warrant and return for" appellant (Motion at p. 2), the motion is granted as herein indicated. Superior Court is directed to determine whether such "search warrant" or "return" was "on file or lodged with the Superior or Municipal Court ... pertaining to the trial of the cause" (Pen. Code 190.7(a)(2); see Cal. Rules of Ct., Rule 39.5(C)), & to cause such "search warrant" and/or "return" as was "on file or lodged" therewith to become part of the clerk's transcript. In all other respects, the motion is denied.
|Jun 11 1997||Compensation awarded counsel|
|Sep 9 1999||Compensation awarded counsel|
|Oct 26 1999||Change of Address filed for:|
|Mar 10 2000||Received:|
Counsel for Appellant: Objection to certification of the Record and Verified Application for time within which to Prepare A Settled Statement.
|May 1 2000||Compensation awarded counsel|
|May 31 2000||Filed:|
Applt's Application for an Order that the Record on Appeal be Augmented to Include the Preliminary Hg Transcript of C0-Defendant Johnny Newman
|Jun 7 2000||Opposition filed|
To Applt's Applic. for an Order that Record on Appeal be Augmented To Include Preliminary Hearing Transcript of Co-Defendant.
|Jun 15 2000||Received:|
Applt; dated 6/12/2000 Re no reply will be filed to the AG's Opposition to Applt's motion to Aug. Record, Matter Is Submitted.
|Jun 21 2000||Record augmentation granted|
Good Cause appearing Therefore, Applt's "Applic for an Order that the Record on Appeal be Aug. to Include the Preliminary Hearing Transcript of Co-Defendant Johnny Newman" Is Granted. the Superior Court of the County of LA Is Hereby directed to Cause the Reporter's Transcript of the Preliminary Examination in People V. Johnny Lane Newman, Municipal Court of the Compton Judicial District, County of La, No. Ta000359, to be Included in the Record on Appeal Herein.
|Nov 20 2000||Motion to withdraw as counsel filed|
Mtn. for an order to be relieved as counsel and declaration of Francis Breidenbach and Pts. and Auth.
|Feb 13 2001||Counsel's status report received (confidential)|
from atty Breidenbach.
|Feb 15 2001||Record on appeal filed|
C-25 (5,870 pps.) and R-42 (5,708 pps.) including material under seal
|Feb 15 2001||Appellant's opening brief letter sent, due:|
|Feb 28 2001||Withdrawal of counsel allowed by order|
Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for appellant Paul Gregory Watson, filed November 20, 2000, is granted. The order appointing Francis Breidenbach as counsel of record for appellant Paul Gregory Watson, filed November 21, 1995, is hereby vacated. The State Public Defender is hereby appointed as attorney of record for appellant Paul Gregory Watson for the direct appeal in the above automatic appeal now pending in this court. Michael G. Millman, as Executive Director of the California Appellate Project, is hereby appointed to serve as interim habeas corpus/executive clemency counsel of record for appellant Paul Gregory Watson. Francis Breidenbach is directed to deliver to the State Public Defender, within 30 days from the filing of this order, his copy of the record on appeal in People v. Watson and all transcript notes, appellate and habeas corpus "issues" lists, and all other appellate work product and habeas corpus investigation work product. Mr. Breidenbach also is directed to deliver to the State Public Defender, within 30 days from the filing of this order, all trial files, reports and related materials that he has obtained from appellant's trial counsel, paralegals, experts and investigators.
|Apr 5 2001||Order filed:|
Vacating the 3/27/2001 due date for filing AOB, due to appointment of replacement counsel on 2/28/2001.
|Apr 30 2001||Counsel's status report received (confidential)|
from State P.D.
|Jul 3 2001||Counsel's status report received (confidential)|
from State P.D.
|Sep 4 2001||Counsel's status report received (confidential)|
from State P.D.
|Nov 2 2001||Counsel's status report received (confidential)|
from State P.D.
|Jan 2 2002||Counsel's status report received (confidential)|
from State P.D.
|Jan 15 2002||Appellant's opening brief letter sent, due:|
|Feb 4 2002||Motion filed|
Applt.'s supplemental motion to correct, augment and settle the record on appeal.
|Feb 5 2002||Filed:|
Supplemental declaration of service of applt.'s motion to correct, augment and settle the record.
|Feb 14 2002||Filed document entitled:|
reply to appellant's supplemental motion to correct, augment, and settle the record on appeal.
|Feb 22 2002||Filed document entitled:|
Appellant's response to respondent's reply to appellant's supplemental motion to correct, augment and settle the record on appeal.
|Mar 4 2002||Counsel's status report received (confidential)|
from State P.D.
|Mar 15 2002||Request for extension of time filed|
To file AOB. (1st request)
|Mar 21 2002||Extension of time granted|
To 5/17/2002 to file AOB.
|May 6 2002||Counsel's status report received (confidential)|
from State P.D.
|May 17 2002||Request for extension of time filed|
To file AOB. (2nd request)
|May 22 2002||Extension of time granted|
To 7/16/2002 to file AOB.
|Jul 8 2002||Counsel's status report received (confidential)|
from State P.D.
|Jul 16 2002||Request for extension of time filed|
To file AOB. (3rd request)
|Jul 22 2002||Extension of time granted|
To 9/16/2002 to file AOB.
|Sep 9 2002||Counsel's status report received (confidential)|
from State P.D.
|Sep 12 2002||Counsel's status report received (confidential)|
(supplemental) from State P.D.
|Sep 20 2002||Request for extension of time filed|
To file appellant's opening brief. (4th request)
|Sep 25 2002||Extension of time granted|
To 11/15/2002 to file appellant's opening brief.
|Oct 2 2002||Record augmentation granted in part/denied in part|
Appellant's Supplemental Motion to Correct, Augment and Settle the Record on Appeal filed February 4, 2002, is granted in the following respects. In all others respects, the motion is denied. Appellant's request for "correction" of numerous alleged errors in the trial transcripts (Motion, Section III, pp. 5-12) is denied as appellant has not shown that these are more than "immaterial typographical errors that cannot conceivably cause confusion." (Pen. Code, Section 190.8, subd. (c).) Appellant's request that pages 45, 46, 148, 149, 160, and 162 of the clerk's transcript be recopied is granted. The clerk of the Los Angeles Superior Court is directed to send legible copies of the material on those pages to the court and the parties on or before November 25, 2002 Regarding appellant's request that pages 6, 11, 60, 65, 70, 75, 80, 90, 141, 861, and 5512 of the reporter's transcript be recopied because they are illegible, the clerk of this court is directed to send legible copies of those pages to appellant and the Attorney General. Appellant's request for copies of pages 1847, 1909, 2384, 2586, 2757, and 5613-5615 of the reporter's transcript is granted. The clerk of this court is directed to send copies of those pages to appellant and the Attorney General. Regarding appellant's request for copies of pages 1083-1088 and 5015 of the reporter's transcript, the superior court is directed to conduct proceedings to determine whether these pages are missing from the reporter's transcript and, if so, to direct preparation of the missing pages, certify the same as accurate, and transmit the material to this court on or before November 25, 2002. Appellant's request for additional records to be available to all parties (Motion, Section IV, subd. (A), pp. 12-13) is granted in part and denied in part as follows. 1. Appellant has withdrawn his request for a copy of the case index. 2. Appellant's motion to augment the record with "the juror questionnaire prepared by the defense" is denied without prejudice because appellant has failed to comply with the requirements of Rule 12(a)(2) & (a)(3) of the California Rules of Court. 3. & 4. Appellant's motion to augment the record to include Court's Exhibits 1, 2, and 3 is denied as unnecessary, because exhibits are "deemed part of the clerk's transcript" under Rule 5(a)(5) of the California Rules of Court. 5. Appellant's motion to augment the record to include "a reporter's transcript of the morning proceedings of July 12, 1991," is denied because appellant has failed to show that there were oral proceedings to report on the morning of July 12, 1991. 6. Regarding, appellant's motion to augment the record to include a "reporter's transcript of the proceedings of August 7, 1991," the superior court is directed to conduct proceedings to determine whether oral proceedings were conducted on August 7, 1991 and, if so, whether such proceedings were reported and, if so, whether they were transcribed. If the proceedings were reported but not transcribed, the superior court is directed to have the proceedings transcribed, certify the resulting transcript as accurate, and transmit the material to this court on or before November 25, 2002. 7. Appellant's motion to augment the record to include a "reporter's transcript of the proceedings of September 27, 1991," is denied, because a reporter's transcript of these proceedings already appears in the record on appeal. The clerk of this court is directed to provide a copy of this portion of the reporter's transcript to appellant. Appellant's request for additional confidential records (Motion, Section IV, subd. (B), pp. 13-14) is granted in part and denied in part as follows. 1. & 2. Appellant's request for copies of all pleadings, applications, orders and other documents filed pursuant to the provisions of Penal Code section 987.2 and 987.9 is denied without prejudice, because appellant does not show whether any or all of these documents are already in the record and does not adequately identify these documents as required by Rule 5 of the California Rules of Court. 3. - 12. Regarding appellant's request for reporter's transcripts of the in camera hearings held on March 26, 1991, May 15, 1991, and June 12, 1991, June 14, 1991 (2 hearings), June 17, 1991 (2 hearings), June 19, 1991, and June 28, 1991 (2 hearings), the superior court is directed to conduct proceedings to determine whether oral proceedings were conducted on those dates and, if so, whether such proceedings were reported and, if so, whether they were transcribed. If the proceedings were reported but not transcribed, the superior court is directed to have the proceedings transcribed, certify the resulting transcripts as accurate, and transmit the material to this court on or before November 25, 2002. Appellant's application for permission to settle the record on appeal (Motion, Section V, pp. 14-15) is denied without prejudice to appellant renewing this request in compliance with Rule 7(b)(1), California Rules of Court.
|Oct 4 2002||Note:|
Letter sent to the parties advising that pages 5613-5615 of the reporter's transcript appear to be the same as item number 7. the "reporter's transcript of proceedings of September 27, 1991" that was ordered provided to the parties pursuant to the court's order of 10/2/2002.
|Oct 10 2002||Filed:|
Appellant's motion for reconsideration of the court's order denying appellan'ts request for photocopies of the juror hardship forms and questionnaires.
|Nov 12 2002||Counsel's status report received (confidential)|
from State P.D.
|Nov 15 2002||Request for extension of time filed|
To file appellant's opening brief. (5th request)
|Nov 19 2002||Extension of time granted|
To 1/14/2003 to file appellant's opening brief. Extension is granted in light of the pendency of appellant's "Motion for Reconsideraton of the Court's Order Denying Appellant's Request for Photocopies of the Juror Hardship Forms and Questionnaires," filed on October 10/10/2002.
|Dec 2 2002||Request for extension of time filed|
by superior court to comply with Supreme Court's order of 10-2-2002.
|Dec 2 2002||Extension of time granted|
to superior court to 12-6-2002 to comply with this court's order of 10-2-2002.
|Dec 2 2002||Letter sent to:|
counsel: court is considering unsealing the juror questionnaires on its own motion. Counsel to advise the court by letter within 10 days whether parties object to the court doing so.
|Dec 11 2002||Filed:|
applt's response to court's letter of 12-2-2002.
|Dec 16 2002||Filed:|
respondent's response, dated 12-11-2002, to court's letter of 12-2-2002.
|Jan 9 2003||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|Jan 13 2003||Counsel's status report received (confidential)|
from State P.D.
|Jan 14 2003||Extension of time granted|
To 3/17/2003 to file appellant's opening brief. Extension is granted in light of the pendency of appellant's "Motion for Reconsideration of the Court's Order Denying Appellant's Request for Photocopies of the Juror Hardship Forms and Questionnaires," filed on 10/10/2002.
|Jan 15 2003||Record ordered unsealed|
Appellant's motion for reconsideration, filed on October 10, 2002, is denied. On the court's own motion, the clerk is directed to unseal the original of the clerk's transcript consisting of 16 volumes containing the juror questionnaires. The clerk is directed to provide copies of these documents to the parties.
|Mar 13 2003||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Mar 18 2003||Extension of time granted|
to 5/16/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity , if any, and any assisting attorney or entity of any separate counsel of record of this schedule, and to take all steps necessary to meet it.
|Mar 28 2003||Counsel's status report received (confidential)|
from State P.D.
|May 14 2003||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|May 16 2003||Extension of time granted|
to 7/15/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of this schedule, and to take all steps necessary to meet it.
|May 29 2003||Counsel's status report received (confidential)|
from State P.D.
|Jul 11 2003||Request for extension of time filed|
to file AOB. (9th request)
|Jul 17 2003||Extension of time granted|
to 9-15-2003 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Jul 28 2003||Counsel's status report received (confidential)|
from State P.D.
|Sep 10 2003||Request for extension of time filed|
to file appellant's opening brief. (10th request)
|Sep 17 2003||Extension of time granted|
to 11/14/2003 to file appellant's opening brief. After that date, only two further extensions totaling about 105 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by 3/1/2004.
|Sep 30 2003||Counsel's status report received (confidential)|
from State P.D.
|Nov 4 2003||Supplemental record/transcript filed|
Filed additional record on appeal, prepared and certified by the superior court in response to this court's order of 10/02/02. 3 vols. clerk's transcript (451 pp); 13 vols. of reporter's transcript (with 43 not included in page count when record was originally filed in Feb. 2001); and 10 CSR affidavits.
|Nov 4 2003||Letter sent to:|
counsel advising that additional record was filed this date.
|Nov 12 2003||Request for extension of time filed|
to file appellant's opening brief. (11th request)
|Nov 17 2003||Extension of time granted|
to 1/13/2004 to file appellant's opening brief. After that date, only one further extension totaling about 45 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by 3/1/2004.
|Dec 1 2003||Counsel's status report received (confidential)|
from State P.D.
|Jan 8 2004||Request for extension of time filed|
to file appellant's opening brief. (12th request)
|Jan 13 2004||Extension of time granted|
to 3/3/2004 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by 3/3/2004. After that date, no further extension will be granted.
|Jan 30 2004||Counsel's status report received (confidential)|
|Mar 3 2004||Appellant's opening brief filed|
(91,175 words - 301 pp.)
|Mar 29 2004||Request for extension of time filed|
to file respondent's brief. (1st request)
|Apr 2 2004||Extension of time granted|
to 6/1/2004 to file respondent's brief.
|May 25 2004||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Jun 8 2004||Extension of time granted|
to 8/2/2004 to file respondent's brief. After that date, only three further extensions totaling about 150 additional days will be granted. Extension is granted based upon Deputy Attorney General April Sylvester Rylaarsdam's representation that she anticipates filing that brief by 12/19/2004.
|Jul 26 2004||Request for extension of time filed|
to file respondent's brief. (3rd request)
|Aug 3 2004||Extension of time granted|
to 10-1-2004 to file respondent's brief. After that date, no further extension is contemplated. Extension granted based upon Deputy AG April Rylaarsdam's representation that she anticipates filing the brief by 9-29-2004.
|Sep 30 2004||Respondent's brief filed|
(53,642 words; 181 pp.)
|Oct 14 2004||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Oct 18 2004||Extension of time granted|
to 12/20/2004 to file appellant's reply brief.
|Dec 14 2004||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Dec 16 2004||Extension of time granted|
to 2/18/2005 to file appellant's reply brief. After that date, only two further extensions totaling about 100 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by late 5/2005.
|Feb 14 2005||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Feb 18 2005||Extension of time granted|
to 4/19/2005 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 Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by 5/2005.
|Apr 14 2005||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|Apr 20 2005||Extension of time granted|
to 6/20/2005 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that brief by 6/18/2005.
|Jun 20 2005||Appellant's reply brief filed|
(20,375 words; 77 pp.)
|Dec 1 2006||Exhibit(s) lodged|
- Peo. 6 - Posterboard w/ 6 photos (A-F); Peo. 9A &9B - two photos mounted on small board - Peo. 11 - Photo attached to a small board.
|Sep 11 2007||Filed:|
respondent's notice of change of counsel (case has been reassigned to Nancy G. James; Deputy AG April Rylaarsdam is no longer with the AG's Office.)
|Dec 24 2007||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the February 2008 calendar, to be held the week of February 4, 2008, in Sacramento. 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.
|Jan 3 2008||Received:|
letter from Supervising Deputy State Public Defender Peter Silten, dated January 2, 2008, requesting that the court schedule oral argument for either the March or April calendar.
|Feb 6 2008||Case ordered on calendar|
to be argued Wednesday, March 5, 2008, at 1:30 p.m., in San Francisco
|Feb 15 2008||Filed:|
appellant's focus issues letter, dated February 15, 2008.
|Feb 15 2008||Filed:|
respondent's focus issues letter, dated February 14, 2008.
|Feb 15 2008||Received:|
appearance sheet from Deputy AG Nancy G. James, indicating 45 minutes for oral argument for respondent.
|Feb 19 2008||Received:|
appearance sheet from Deputy S.P.D. Peter R. Silten, indicating 45 minutes for oral argument for appellant.
|Feb 22 2008||Received:|
respondent's letter of additional authorities for oral argument, dated February 21, 2008.
|Feb 26 2008||Received:|
appellant's letter of additional authorities for oral argument, dated February 25, 2008.
|Mar 5 2008||Cause argued and submitted|
|Mar 19 2008||Received:|
letter from appellant, dated March 19, 2008, regarding case recently decided by USSC (Snyder v. Louisiana (2008) 552 U.S.___, 2008 WL 723750, filed March 19, 2008.)
|Apr 16 2008||Compensation awarded counsel|
|Apr 16 2008||Order filed|
The order appointing Michael G. Millman, as Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for appellant Paul Gregory Watson, filed February 28, 2001, 2001, is hereby vacated. Geraldine S. Russell is hereby appointed to represent appellant Paul Gregory Watson for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending 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/executive clemency counsel Francis Breidenbach's declaration, in support of his motion to withdraw, to the effect that he was unable to discharge his duty to investigate and, if appropriate, present a habeas corpus petition on behalf of appellant Paul Gregory Watson, and this court's delay in appointing replacement habeas corpus/executive clemency counsel. George, C.J., was absent and did not participate.
|May 7 2008||Notice of forthcoming opinion posted|
|May 8 2008||Opinion filed: Judgment affirmed in full|
opinion by Moreno, J. ----joined by George C.J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ.
|May 20 2008||Counsel's status report received (confidential)|
from attorney Russell.
|May 20 2008||Received:|
Confidential declaration of Geraldine S. Russell.
|May 21 2008||Counsel's status report received (confidential)|
from attorney Russell.
|May 21 2008||Compensation awarded counsel|
|May 23 2008||Rehearing petition filed|
by appellant. (1,925 words; 9 pp.)
|May 28 2008||Time extended to consider modification or rehearing|
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including August 6, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Jun 18 2008||Rehearing denied|
The petition for rehearing is denied. George, C.J., was absent and did not participate. Werdegar and Corrigan, JJ., were absent and did not participate.
|Jun 18 2008||Remittitur issued (AA)|
|Jun 23 2008||Received:|
copy of appellant's petition of a writ of certiorari. (17 pp, excluding appendices)
|Jun 25 2008||Received:|
acknowledgment for receipt of remittitur from superior court.
|Jun 27 2008||Received:|
letter from U.S.S.C., dated June 24, 2008, advising that a petition for writ of certiorari was filed on June 20, 2008 and place on the docket June 24, 2008 as No. 07-11558.
|Jul 3 2008||Exhibit(s) returned|
to superior court through the Los Angeles Office of the Supreme Court.
|Jul 9 2008||Received:|
in l.a. office exhibits for return to superior court 9A, 9B, 11 + 1 large poster board (peo. 6)
|Jul 16 2008||Counsel's status report received (confidential)|
from attorney Russell.
|Jul 17 2008||Received:|
acknowledgment for receipt of exhibits returned to superior court.
|Aug 27 2008||Compensation awarded counsel|
|Sep 12 2008||Counsel's status report received (confidential)|
from attorney Russell.
|Sep 29 2008||Related habeas corpus petition filed (post-judgment)|
|Oct 6 2008||Certiorari denied by U.S. Supreme Court|
|Jan 20 2009||Filed:|
confidential declaration of attorney Russell.
|Jan 22 2009||Compensation awarded counsel|
|May 7 2009||Compensation awarded counsel|
|Sep 2 2009||Compensation awarded counsel|
|Mar 3 2004||Appellant's opening brief filed|
|Sep 30 2004||Respondent's brief filed|
|Jun 20 2005||Appellant's reply brief filed|