IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
DEXTER WINFRED WILLIAMS,
Super. Ct. No. 440924
Defendant and Appellant.
Following the guilt phase of defendant’s murder trial, a Fresno County jury found
defendant Dexter Winfred Williams guilty of the first degree murder of Miguel Gonzalez
(Pen. Code, §§ 187, subd. (a), 189)1 and determined that in the commission of the
offense, he used a deadly weapon. (§ 12022, subd. (b).) The jury found true the special
circumstance allegations that the murder was committed in the course of a robbery and in
the course of a kidnapping. (§ 190.2, subd. (a)(17)(A), (B).)
The jury also found defendant guilty of the robbery and kidnapping for the
purpose of robbery of Miguel Gonzalez and David Bush (§§ 209, subd. (b), 211), and
further found that in the commission of these offenses, defendant used a deadly weapon
(§ 12022, subd. (b)) and inflicted great bodily injury. (§ 12022.7.) The jury also found
defendant guilty of the false imprisonment of Michael and Rosanna Beckham (§ 236) and
not guilty of the rape of Rosanna Beckham (§ 261). At the conclusion of the guilt phase,
All further statutory references are to the Penal Code unless otherwise indicated.
the court determined that defendant had served two prior prison terms. (§ 667.5, subd.
Following the penalty phase of the trial, the jury returned a verdict of death. The
trial court denied defendant’s motion for new trial and motion to reduce the penalty
pursuant to section 190.4, subdivision (e), and imposed a judgment of death as well as
sentence on the noncapital offenses. This appeal is automatic. (Cal. Const., art. VI, § 11;
§ 1239, subd. (b).)
We affirm the judgment in its entirety.
A. GUILT PHASE EVIDENCE
1. The Prosecution’s Case
a. The events of February 16-18, 1991
On February 16, 1991, defendant, then 29 years of age, and his cousin, Jerry
Franklin, arrived in Fresno by Greyhound bus from Northern California. Defendant
telephoned the residence of his former wife, Cora Drake, to request transportation to her
residence. Cora shared her home, located on North Roosevelt Street in the City of
Fresno, with her sons David, then 18 years of age, and James, then 4 years of age.
David Drake answered defendant’s telephone call and agreed to give defendant a
ride from the bus station to the Drakes’ residence. David invited a friend, Michael
Beckham, then 21 years of age (who, together with his 19-year-old wife, Rosanna
Beckham, was staying at the Drakes’ residence), to join him.
David Drake and Michael Beckham took a cab to the bus station, where they met
defendant and Franklin and returned with them to the Drakes’ residence.
On the afternoon of February 17, 1991, defendant and Franklin began shaping
pieces of wax to resemble cocaine rocks so they could sell them as counterfeit drugs.
Franklin thereafter suggested that defendant, Michael Beckham, David Drake, and
another houseguest, Steve Elias, lure victims into an alley behind the Drakes’ residence
for the purpose of robbing them.
Michael Beckham offered to pose as a hitchhiker in order to lure homosexual men
to drive into the alley, where the others could rob them. Michael Beckham lured one
victim as planned and defendant, Franklin, David Drake, and Elias beat him into
unconsciousness. Defendant took the victim’s wallet, then retrieved various articles from
the man’s vehicle, including spiked bracelets, two sets of handcuffs, and a hydraulic jack
for a vehicle. Defendant distributed the cash from the victim’s wallet and gave Michael
Beckham $10. Another victim was approached in the same way but drove off when
defendant emerged from the bushes and displayed his genitals.
A third incident occurred at approximately 11:00 p.m. on February 17, 1991, when
Michael Beckham lured David Bush into the alley and convinced him to remain there for
several minutes. Michael left the vehicle and returned with defendant, who opened the
door of Bush’s vehicle and began striking Bush on the head with a crescent wrench.
Entering the vehicle, defendant pushed Bush onto the passenger seat and continued to
strike him with the wrench. Defendant demanded Bush’s wallet but was angered to see it
contained less than $10.
While continuing to strike Bush with the wrench and threatening to shoot him if he
tried to escape, defendant backed the vehicle toward the entrance of the alley, a distance
Bush estimated to be approximately 100 feet. Bush escaped from the vehicle and waved
down a passing automobile, which initially gave chase to defendant, then turned away.
Eventually a neighborhood resident telephoned for emergency assistance for Bush.
Bush suffered a broken nose and facial lacerations. At trial, he identified Michael
Beckham as the hitchhiker who initially flagged him down, but in police photo lineups
and at trial Bush was unable to identify defendant as his assailant. He testified that the
assault on him had dislodged his glasses, leaving him unable to see clearly.2
That same evening, David Drake spoke on the telephone with an acquaintance,
Kenny Dustin, 18 years of age. David Drake asked Dustin to come to the Drakes’
residence because defendant had “[taken] over [the] house.” David said he and his
younger brother, James, were afraid of defendant.
At Dustin’s request, Sara Lowmiller drove Dustin to the Drakes’ residence. As
she subsequently departed from the residence, Lowmiller saw an African-American man
and a White man “scuffling” in the street. The White man, his face bloodied, came to
Lowmiller’s car window and asked for help. Remaining in her vehicle, Lowmiller
followed the African-American man into the alley, thought better of continuing her
pursuit, then drove away, returning to the Drakes’ residence. There, she summoned
Dustin from the residence with her automobile horn. As she waited for Dustin, she
observed the African-American man, whom she previously had seen face her, enter the
Lowmiller told Dustin that a person who appeared to be bleeding was being
chased in the alley, and asked Dustin to explain what had occurred. Dustin responded
that he would explain later, directing her to depart. Lowmiller did not identify defendant
as the African-American man she observed that evening. Dustin, however, testified that
the African-American man seen by Lowmiller was defendant.3
Michael Beckham was arrested in connection with his participation in the robbery
of David Bush. He ultimately pleaded guilty to grand theft for his role as an accessory in
the robbery, and was incarcerated at the time of defendant’s trial. He denied that he had
been offered any deal in exchange for giving testimony that implicated defendant in the
charged offenses. As part of the defense case-in-chief, defendant impeached Beckham’s
testimony regarding this latter point.
Dustin’s testimony was given at the preliminary hearing. Immediately prior to
taking the witness stand at trial, Dustin invoked his Fifth Amendment privilege against
(footnote continued on next page)
Michael Beckham testified that defendant entered the Drakes’ residence late on
the evening of February 17, 1991, and gave Michael $10 with instructions to go to a store
to purchase alcohol. Angry because defendant had not given him a larger share of the
robbery proceeds, Michael ― accompanied by Dustin and David Drake ― instead used
the $10 to purchase rock cocaine, which Michael Beckham and Dustin smoked.
In the early morning hours of February 18, 1991, while Michael Beckham, Dustin,
and David Drake were away from the residence, defendant “corner[ed]” Michael’s wife,
Rosanna Beckham, in the kitchen and attempted to touch and kiss her, then backed her
into an empty bedroom, where he removed their clothes. Rosanna, a slight, short young
woman, was fearful of defendant, who was much larger and who she knew had served a
prison term. She testified that he initiated sexual intercourse with her over her tearful
objections, but was interrupted by the ringing of the telephone. Franklin entered the
room and told defendant the call was for him. Defendant left the bedroom, and Rosanna
ran to the bathroom and dressed.
When Rosanna heard that Michael Beckham, Dustin, and David Drake had
returned to the residence, she emerged from the bathroom, entered the bedroom where
the others were watching television, and sat down on the bed near defendant. Michael
Beckham testified: “I could see [defendant] laying back and my old lady was sitting
nervous like this . . . and [defendant’s] hands were rubbing on her, and I asked him, I
said, ‘what are you doing rubbing on my wife?’ And my old lady got up and he says, ‘I
ain’t rubbing on your wife.’ ” Defendant told Michael, “Go fuck yourself.” Rosanna,
(footnote continued from preceding page)
self-incrimination. Over defendant’s objection on grounds discussed, post, the trial court
ruled that Dustin’s invocation of his privilege against self-incrimination rendered him
unavailable as a witness at trial. Pursuant to Evidence Code section 1291, the trial court
thereafter allowed the prosecution to read into evidence the testimony given by Dustin at
the preliminary hearing.
with tears in her eyes, walked into the dining room, followed by Michael; she informed
him that she wanted to leave. Michael asked, “what’s wrong, what’s going on? . . .
[W]hat did he do, rape you? And she says ― she didn’t say nothing.”
A few moments later, defendant, accompanied by Franklin, began yelling at
Michael Beckham, demanding the $10 Michael had received earlier in the evening.
Defendant thereafter struck Michael to the ground and started kicking him. Defendant
continued hitting Michael while Rosanna screamed. Defendant told Franklin to silence
Rosanna, and each time Rosanna screamed Franklin struck her.
Defendant produced a set of handcuffs (procured during the first robbery),
handcuffed Michael Beckham’s hands behind his back, and dragged him to the back of
the residence. There, in Rosanna Beckham’s presence, the beating continued; demanding
money, defendant broke one of Michael’s ribs and caused other injuries.
Defendant thereafter handcuffed Rosanna’s wrists behind her back, and at
defendant’s request, Franklin tore off her clothes. Defendant grabbed her by the throat
and lifted her from the floor. Defendant placed a knife to Michael Beckham’s neck and
directed him to call his (Michael’s) mother for the purpose of obtaining $100. Crying,
and bleeding from his mouth and nose, Michael telephoned his parents, begging them for
the money. At one point, defendant grabbed the telephone and said Michael owed him
$100 for drugs and that he wanted his money. Michael did not know why defendant had
increased the debt from $10 to $100. Michael’s parents refused the request. When
Franklin suggested that defendant desist, defendant replied: “Shut up. I’m in charge of
Betty Hills, who also was residing with her son in the Drakes’ home at the time,
heard Rosanna screaming, initially believing the screams to have emanated from a
television horror film. Hills asked defendant why he was hitting Rosanna, to which he
replied that she had stolen $40. Hills asked, “if I give you $40, will you stop hitting her
and he said yep. So he quit hitting her. . . . I told him I would go prostitute and get him
his $40. It would take 20 minutes to get it. I would be right back. . . . He told me that I
hadn’t stole from him, let that bitch go make the money, she’s the one that stole. Talking
about [Rosanna]. . . . That I hadn’t done nothing to him. So he said [Rosanna] could go
make the money.”
Rosanna eventually was freed from her handcuffs and directed to dress.
Defendant informed her that she would be required to “stand out on the street and pick up
guys” in order to obtain money for him, and that if she refused, her husband would be
killed. Although she had never engaged in prostitution, Rosanna agreed. Defendant
informed Rosanna that she was to stand in the street, attract customers, and direct them to
an alley where she would prostitute herself and thereafter give defendant the money.
According to Dustin, Rosanna silently mouthed the words “help me” to him.
Still in the early morning hours of February 18, 1991, defendant, accompanied by
Dustin, took Rosanna to Belmont Street, an area known for prostitution. As the two men
watched, an automobile pulled over and Rosanna entered it. The driver gave her $5,
shortly after which defendant appeared and attempted to kick out the driver’s side
window. The driver sped away, stopping briefly to release Rosanna. Rosanna gave
defendant the $5, and in response defendant informed her that she “only had 95 more to
Defendant and Dustin thereafter walked Rosanna back to Belmont Street,
whereupon a driver picked her up, took her to his apartment, gave her “a handful of
change,” and then returned her to Belmont Street a short time later.4
Rosanna testified she did not engage in a sexual act at the man’s apartment. Her
testimony on this point was impeached on cross-examination when defense counsel read
her testimony given at the preliminary hearing, during which Rosanna acknowledged
having sex at the man’s apartment in exchange for $7.
Near the conclusion of the prosecution’s case-in-chief, the parties stipulated that
during a police interview conducted on February 18, 1991, Rosanna told the investigating
(footnote continued on next page)
Returning to the Drakes’ residence, Rosanna saw Michael sitting on the floor, his
hands still in handcuffs behind his back. At defendant’s command, Rosanna thereafter
returned to Belmont Street, where a white Chevrolet Monte Carlo driven by Miguel
Gonzalez stopped, and she agreed to perform oral sex for $4. Rosanna directed Gonzalez
to the alley, where he parked the automobile. Rosanna exited the vehicle and spoke
briefly with defendant. At his direction, she returned to the vehicle to “take care of”
Gonzalez. As she began to remove her jacket, defendant threw a hydraulic jack ― stolen
during the first robbery ― through the driver’s side window, shattering it and hitting
Rosanna in the head. Her head bleeding profusely, Rosanna exited from the vehicle and
returned to the Drakes’ residence.
Gonzalez emerged from his vehicle and attempted to flee, but defendant tackled
him and, according to Dustin’s preliminary hearing testimony, defendant then “stomped
on the guy’s head.” Franklin joined in and “[s]tomped on him a couple more times.”
Gonzalez pleaded for his assailants simply to take his money and leave him alone, and
then lapsed into unconsciousness. Defendant took Gonzalez’s wallet (eventually giving
Dustin $5) and dragged the victim to the trunk of the car, which Dustin opened with a
screwdriver. Defendant and Franklin placed the victim inside the trunk and closed it.
Defendant drove the vehicle back to the Drakes’ residence, which Dustin and Franklin
entered through a back window.
Because Rosanna was bleeding profusely from a cut above her eye, Franklin,
Dustin, and David Drake suggested she be taken to a hospital. Defendant initially
indicated such a trip was unnecessary, but changed his mind, telling Franklin and Dustin
to accompany him and Rosanna to the hospital. While they were driving, Gonzalez
(footnote continued from preceding page)
police officer that she had sex with the man at his apartment for the prearranged price of
began banging the inside of the trunk, pleading to be released. Defendant told Gonzalez
to “shut up,” then asked the others where they could take him. Dustin testified that,
believing defendant simply intended to leave Gonzalez somewhere and not kill him, he
(Dustin) suggested they drive to a walnut orchard located behind a residence where
Dustin once had resided.
Defendant drove outside of town to the orchard and exited the vehicle with Dustin
and Franklin. Rosanna remained in the car. Defendant opened the trunk, hit Gonzalez on
the head repeatedly with the hydraulic jack, and then told Dustin to help lift the victim
out of the trunk. Dustin did so, dropping Gonzalez to the ground. Defendant resumed
beating Gonzalez’s head with the hydraulic jack, hitting him at least five or six times.
Gonzalez attempted to crawl away, but moved only a few feet before defendant beat his
head repeatedly, with a tire rim. Rosanna heard one of the men say, “I think he’s dead,”
and then another voice say, “well, make sure.” Dustin watched defendant roll the body
over the edge of a five-foot slope.
The three men rejoined Rosanna in the automobile. Dustin asked defendant
whether Gonzalez was dead. Defendant replied: “No. He’s going to wake up in the
morning with a bad headache.” Defendant thereafter unsuccessfully attempted to start
the car, prompting Dustin to request assistance from a friend who lived nearby. The
friend helped start the vehicle, but apparently did not notice Gonzalez’s body lying
nearby. Franklin suggested they take Rosanna to the hospital, but defendant refused,
instead asking Dustin whether he knew where there was a party. Eventually the group
drove back to the Drakes’ residence, arriving there at approximately dawn on
February 18, 1991.
Once inside the house, defendant told Rosanna that the police would arrive soon,
so the two of them “had to go back to the bedroom and finish,” a comment that Rosanna
understood to refer to the sexual assault defendant had commenced earlier. Defendant
took Rosanna to a bedroom, removed their clothes, and had sexual intercourse while
Rosanna cried and told him that it hurt.5
After speaking by telephone with her son, David, Cora Drake met David and
Michael Beckham and called 911 from a nearby convenience store, meeting the
responding police officers there.
The police arrived at the residence shortly thereafter. Defendant directed Dustin
to stall the police while he climbed out of the back bedroom window. The police had
surrounded the residence, however, and defendant immediately was detained. Asked by
the police to provide his name, defendant replied it was Ramon Williams. In the ensuing
pat-down search, the police recovered from defendant’s pants pocket a wallet containing
a California identification card bearing the name Miguel Gonzalez. The white Chevrolet
Monte Carlo parked in front of the Drakes’ residence was registered to Gonzalez; the
driver’s door window was shattered, and both the outside and the inside of the trunk were
stained with blood.
Michael Beckham testified that during a break in the testimony he gave at trial, he
made eye contact with defendant, and that defendant mouthed the words, “You’re dead,
fool,” a warning defendant repeated in a subsequent courtroom encounter, informing
Michael, “You’re dead.”
b. The police investigation
Fresno Police Department Sergeant Gary Snow testified he encountered Kenny
Dustin handcuffed inside a police vehicle parked near the Drakes’ residence on
February 18, 1991, the morning of defendant’s arrest. After advising Dustin of his
In an effort to establish that defendant committed the offense of raping Rosanna
Beckham, the prosecution presented additional sexual assault evidence at trial. In view
of the jury’s determination that defendant was not guilty of raping Rosanna, such
additional evidence need not be summarized here.
Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), Snow informed him that a
person may have been transported in the bloodstained Monte Carlo automobile, and
mentioned that the individual possibly still was alive. Dustin initially informed the
officer that he knew nothing about a body inside the trunk of the Monte Carlo. After
receiving assurances from Snow that his statement would not be repeated to defendant
and Franklin, however, Dustin implicated them. He offered to show Snow where the
deceased victim was located, and thereafter accompanied Snow to the walnut orchard.
There, Snow found the body of Miguel Gonzalez.
Snow testified that Gonzalez’s head “was very distorted because of massive . . .
injuries. . . . [I]t was difficult making out facial features because of the extent of the
injuries. . . . There were blood spatters. . . . [H]e had brain matter on the ground a short
distance from his head. I noticed other blood in the near vicinity of where the victim’s
body was lying. The victim . . . appeared to have been either rolled or [dragged] down an
embankment . . . [and] it looked like a trail of blood where he had either been rolled or
[dragged]. . . . I didn’t do a detailed crime scene sketch or take detailed notes but I do
remember that there was a tire jack near the victim’s head and there was a tire rim,
chrome rim that was lying a few feet away from the victim’s body.” Snow requested that
homicide investigators be dispatched to the crime scene.
Defendant, Franklin, and Dustin were arrested that morning in connection with the
killing of Gonzales, although Dustin was released shortly thereafter. Defendant had
incurred recent injuries to both hands, and dried blood was visible on the palm of his left
hand. His shoes appeared to have dried blood on them, as well as dirt embedded in the
c. Forensic evidence
Stephen O’Clair, a senior criminalist employed by the California Department of
Justice, testified that blood of a type consistent with that of Miguel Gonzalez (and
inconsistent with that of defendant, Jerry Franklin, David Bush, Michael Beckham, and
Rosanna Beckham) was found on the tire jack and tire rim discovered at the crime scene,
on the rear bumper of the Monte Carlo, on a cardboard carton inscribed “Miller Highlife”
recovered from the trunk of the Monte Carlo, in the alley behind the Drakes’ residence, at
the orchard where Gonzalez’s body was found, and on defendant’s gloves, pants, and
shoes. The blood spatter found on defendant’s pants was consistent with having been
caused by blows inflicted on the victim with the tire jack.6
Dr. Jerry Nelson performed an autopsy on the body of Miguel Gonzalez. Nelson
testified that as result of “multiple blows applied to the face and head,” the victim
experienced “multiple skull fractures with the bones being pushed into the cranial cast
inflicting the lacerations on the brain,” and the cause of death was “multiple lacerations
or tears of his brain.” The victim’s face “had a very crushed, inward, flattened
appearance. The nose was very flat, as the nasal bones and cartilage were extensively
fractured.” The victim also suffered “multiple fractures in each of the cheek bones,” and
at least eight lacerations to the face and head area. Asked to opine whether Gonzalez had
experienced a painful death, Nelson testified, “before he lost consciousness, I’m sure that
it was very painful.”
Nelson equated the injuries suffered by Gonzalez to those suffered by an
individual involved in a head-on automobile collision. He further testified that the
injuries suffered by Gonzalez caused him to bleed so profusely “that he bled almost all of
his blood out of his body.” Nelson added that the victim’s injuries were not inconsistent
with those that would result from a hydraulic tire jack “forcefully applied,” or a tire rim
“dropped on somebody.”
Defendant’s body and clothing also bore blood consistent with that of Rosanna
d. Defendant’s interviews with the police
After reading defendant his Miranda rights (Miranda v. Arizona, supra, 384 U.S.
436), Fresno Police Department Detective Tom Sanchez conducted a taped interview of
defendant shortly after the latter’s arrest on February 18, 1991, and, at defendant’s
request, conducted a second taped interview on the following day. The prosecution
played the audiotape recordings of these interviews for the jury, which also was provided
with transcripts of the interviews. Copies of these transcripts are included in the record
During the first interview, Sanchez informed defendant that he was under arrest
for murder and that other individuals had placed defendant at the scene of the murder.
Although defendant initially declined to provide a statement, and Sanchez terminated the
interview, defendant volunteered to speak a few moments later. He thereafter
acknowledged having “slapped the shit out of” Michael Beckham and having consensual
sex with Michael’s wife, Rosanna, but denied coercing her into prostitution or robbing,
beating, or murdering anyone. He claimed the other witnesses falsely had accused him
and Franklin, attempting to make scapegoats of them, and characterized their allegations
concerning his involvement in the robberies as a “fucking lie.” Defendant asserted the
injuries to his hands were “old injuries” incurred at a party in Vallejo when “some fool
pull[ed] out his knife and I grabbed it.”7
Defendant acknowledged knowing that Miguel Gonzalez was in the trunk of the
Monte Carlo, but denied knowledge of what had happened to Gonzalez thereafter,
stating: “I don’t know what the fuck happened. . . . I’m going to tell you [the] straight up
truth. I don’t remember dumping nobody off period.” He characterized the interrogating
During defendant’s interview the next day, he explained it was his cousin, Jerry
Franklin, who had pulled out the knife; defendant added that he also had injured himself
when he “got mad at my Mom’s one day and I punched a wall and . . . missed the wall
and hit a clock.”
officer’s version of the events as “some crazy shit,” adding that “I know damn well I
didn’t do a goddamn thing.” Defendant asserted: “I didn’t harm anybody. I didn’t dump
anybody off neither. . . . Me and Jerry are being used for scapegoats, fuck that.”
Defendant denied touching the hydraulic jack, knowing anything about the tire rim, or
driving the vehicle to the orchard. He subsequently recanted the latter denial, stating that
when he did exit the vehicle at the orchard, it was only to urinate. He claimed “the only
fucking thing I ought to be charged with is joy riding, cause that’s the only fucking crime
Asked to explain how the victim’s wallet came to be located in the pants defendant
was wearing when apprehended by the police, defendant denied the pants were his own.
He claimed to have been shocked when the police discovered the wallet, adding:
“Because, I don’t really know if the bitch gave it to me after she got her money from it or
not, okay, and see, . . . I am foggy on that right now. . . .” Defendant asserted that the
bloodstains on the pants he wore were “[f]rom getting the . . . battery cables.”
During the second interview, conducted at defendant’s request on February 19,
1991, defendant again generally attempted to deny or minimize his involvement in the
crimes. For example, he denied speaking with Michael Beckham’s mother on the
telephone in an effort to obtain money, denied knowing how Rosanna Beckham received
the wound to her forehead, denied wearing gloves on the night the crimes occurred, and
again denied knowing how Miguel Gonzalez’s wallet appeared in the pants defendant
was wearing when the police arrested him.
Defendant portrayed Dustin as a key actor in the crimes: “I don’t know if Kenny
[Dustin] is trying to turn State’s evidence or whatever, you know, I really don’t give a
fuck because he’s implicated worse than anybody else . . . .” Defendant asserted that
Dustin took the tire rim from Gonzalez’s vehicle, and added that Dustin “was beating the
shit out of the guy” with “that fucking mag wheel, you know. And that’s where I was
saying, man, you know, that’s unnecessary.”
Defendant asserted that he had been content to leave Gonzalez alive in the orchard
and let the victim “walk back to Sacramento,” but that Dustin “wanted to knock the man
unconscious again and I didn’t think all that was necessary. You know, I mean, the
man’s out there. He’s already bleeding. Leave him alone.” Defendant described
scuffling with Dustin, because the latter was “fucking with the dude [Gonzalez]. I didn’t
think it was warranted. . . .”
Defendant added, “I didn’t commit no motherfucking murder, you know, I may
have been there.” He called Dustin a liar who was seeking to exonerate himself by
blaming defendant, describing him as “a goddamned liar, you know. He wants to keep it
off himself, fine. . . . Really can’t blame the motherfucker [Dustin] but I know damn well
I’m not getting ready to let him just send me down the drain for something I didn’t do.”
Contradicting the statement he gave during the previous day’s interview,
defendant acknowledged participating in the robbery of Gonzalez. When Sanchez stated,
“what you’re telling me is that you’re guilty of everything that’s gone on, except for
murder,” defendant agreed, saying, “I didn’t do anything harmful to that man [Gonzalez]
other than pulling him out of the car.” Defendant added, “okay, yes. I was there. Fuck
it. I’m accessory to every one of those fucking robberies.”8
e. Defendant’s admissions in his letter to Franklin
Over defendant’s objection, the prosecution read into evidence a letter defendant
wrote to Jerry Franklin, seized from the latter’s Fresno County jail cell on September 23,
1993. The letter read as follows:
Echoing defendant’s statements to the police, defense counsel in summation
acknowledged defendant was guilty of all the charged offenses except the murder and the
“I just got your letter and your words and thoughts made me immediately get back
to you. Listen to what I am saying because I’m coming at you with the real. Do not
think that you won’t see daylight because you will and reassure your woman of this fact.
“From the beginning I was never going to let you go down on this case. I know
what needs to be done and the both of us don’t need to get stretched out. On my end I’m
praying for life without parole. If I get the death penalty I’m hoping that the appeal will
give me action. I am not faking myself out, that way I know how to deal with this.
“Jay, you have to testify in order to free yourself. This is how it goes. In the long
run you cop to the robbery, I’ll take the kidnap, robbery, rape, and murder. Now listen.
You really won’t be copping to the actual robbery. All you be admitting to is helping
Kenny [Dustin] in the alley because he couldn’t handle [the] dude. Your testimony pins
Kenny for the robbery. I helped and knocked [the] dude out because he was fighting both
of you. We helped Kenny put him in the trunk and at first Kenny was going to take us to
go party but you and I was scared because the dude was beating on the trunk. Kenny
took us out to the field and when me and him was pulling [the] dude out the trunk he got
mad, because I dropped [the] dude and he started beating [the] dude with the rim because
[the] dude made him look bad in the alley and we had to help him.
“That bitch went with us cause she wanted to. The robberies before David
[Drake], Mike [Beckham], and Elias did, we just watched. . . . [T]hat bitch remember
that she was at me from the moment we got there and then the next night when her
husband was gone and it was me, you, her and David, she told you that she liked me but
she had never been with a Black man before. But later on you saw us kissing in the
kitchen and the bedroom and then when David [Drake] put the handcuffs on you, you
walked in the room and saw us and when her husband called, David knocked on the door
to warn us that he was coming. There is a whole lot more but as we are going to court,
I’ll tell you.
“So you see to show that you wasn’t involved, you have to testify. Robbery
carries three, six, and eight, and you would probably get the six but you’ll have almost
three in and you won’t do no more than a year.
“It is good, that Mary Lou found out the real. Jay, go ahead and marry her now
that she knows what time it is[.] [I]f she still wants to be down for you give her what she
wants. Tell her to come visit me. I want to let her know that it ain’t going to be easy and
that she is going to have to be strong during trial and I want to let her know what it will
be like being married to someone in the pen. I want to tell her to her face that I ain’t
going to let you go down on this. I also want to tell her a little about the case so she can
understand a little better, plus if she is going to be my cousin, I want to meet her, explain
to her why I want her to come up. I need her full name too.
“Jay, I haven’t told the lawyers none of the plans and . . . you must remember it’s
me and you and I know you want to help but I need you out there on the streets. Russ
and Cecil aren’t looking out for moms and them the way they should so you can’t be here
with me. If I tell you to roll over on me, don’t question what I say, just do it. We won’t
have time to do a lot of talking.
“Tell Mary Lou to come visit and rush me her name back so I can put her on the
list. Stay up. Dex.”
2. The Defense Case
The gravamen of the defense case was to discredit Kenny Dustin’s testimony
naming defendant as the actual killer of Miguel Gonzalez. Toward this end, the defense
presented the testimony of several witnesses who provided evidence that Dustin was
dishonest, a white supremacist, a thief, an alcohol and drug abuser, physically and
emotionally abusive to his former girlfriend (who testified that she observed Dustin
smoke rock cocaine one evening at the time the preliminary hearing was ongoing), and
had made out-of-court statements implicating himself in the Gonzalez murder.
With regard to the latter point, Dustin’s former girlfriend, Kristi Daffron (who,
later in 1991, gave birth to their son when she was 17 years of age), testified that Dustin
admitted to her that he kicked Gonzalez “a couple of times, then . . . smashed his head in
because the guy kept spitting on his foot.”9 Daffron testified Dustin told her on at least
two dozen occasions that he smashed Gonzalez’s head and had used “a tire jack and a tire
rim” to accomplish the beating. Daffron further testified Dustin “told me when he threw
me through a wall that he got away with two murders, he can get away with a third
one.”10 Daffron recounted various instances of violent assaults and threats Dustin had
At the time the charged offenses were committed in 1991, this witness was named
Kristi Smith. For the sake of clarity, we refer to her by the married name she used four
years later at trial, Kristi Daffron.
Daffron elaborated: “[Kenny Dustin] said it didn’t matter what he said in court
because he wasn’t a snitch and he wasn’t a rat and he wasn’t taking the fall for it because
two niggers were going to go to prison for something he did. And he thought that was
really funny. . . . [¶] . . . [¶] I asked him what happened. And he told me that some
Mexican got killed. It didn’t matter, it was a Mexican that wasn’t no longer walking
around, and there was two niggers that were going to prison for it.” Daffron explained
that Dustin also referred to African-American persons as “toads and cockroaches,” and
that every time he referred to defendant (and defendant’s cousin, Jerry Franklin), “he
referred to him as a nigger.”
Daffron acknowledged that her relationship with Dustin had been a tumultuous
one, punctuated with numerous arguments and separations, and that Dustin once had
kidnapped their child at gunpoint. In response to Dustin’s conduct, Daffron contacted the
police “[p]robably at least 45 times” and obtained a restraining order. She denied that her
testimony at trial was motivated by a desire to retaliate against him. She acknowledged,
however, that at the time she gave her testimony at trial, she was angry at the Fresno
County District Attorney’s Office, “[b]ecause every time that Kenny beat me up, every
time I made a police report, nothing was done about it. Nothing.”
Daffron further testified that Dustin repeatedly informed her that because he was
the “star witness” in the present case, the Fresno County District Attorney’s Office was
protecting him from going to jail for the beatings and other abuse he administered to
Daffron, and for an incident in which he assertedly abducted their son at gunpoint.
Daffron’s father, Allen Smith, corroborated his daughter’s testimony, recalling that
Dustin told him “my butt is covered,” referring to the protection from prosecution Dustin
assertedly received from that office. Sanford Glickman, a private investigator retained by
(footnote continued on next page)
inflicted on her, including when she was three months pregnant and residing with him in
a hotel room paid for by the Fresno County District Attorney’s Office. Daffron
recounted two occasions on which she was present when Dustin met with Fresno County
prosecutor Polacek, then assigned to prosecute defendant in the present case, and
received money from him. She testified that subsequent to the preliminary hearing,
Polacek gave Dustin a bus ticket to the Sacramento area, but Dustin secured a refund for
the value of the ticket. Another incident of abuse occurred when Daffron was seven
months pregnant. “He threatened to tie me up in the closet and leave me for dead. He
said nobody would ever find me in there.” Dustin thereafter was admitted to a hospital
Daffron’s father, Allen Smith, testified that after Dustin “accepted the Lord, Jesus
Christ, as his savior,” Dustin admitted to Smith that he “had struck the victim several
times himself . . . [on] or about the head. And he was bleeding all over and Kenny didn’t
know if he was dying or dead or what, when he was beating him.” Smith recalled that
Dustin had used “[a] real heavy hubcap or a tire rim or something . . . he always talked
about a heavy hubcap because he couldn’t find anything else or they couldn’t find
anything else or something like that.” Smith also recalled Dustin informing him on four
or five occasions that “I’ve already killed twice and I can take you out just as easy.”
Polacek testified that he had interviewed Dustin, but considered him “strictly a
witness” who had “committed no crime as far [as] I was concerned.” Polacek
acknowledged he had received 30 to 40 telephone calls from Dustin, including some
lengthy calls two or three weeks prior to Polacek’s trial testimony in which Dustin
mentioned he had been arrested. Polacek denied that Dustin had asked for help in
(footnote continued from preceding page)
Jerry Franklin’s counsel, testified regarding that office’s assertedly favorable treatment of
Dustin in connection with an alleged burglary.
pending prosecutions and denied Dustin had received any deal in return for his testimony.
Polacek added: “The only thing I ever told him . . . [was] . . . if the statements you’ve
given previously are all the truth, you won’t be charged.” “In my view,” Polacek
testified, “from 1991 to the present, Mr. Dustin has no criminal culpability. And there is
no point in giving somebody a deal when no deal is needed.” He acknowledged that
Daffron and her parents had met with him and accused Dustin of having had a “more
active role” in the homicide than previous evidence had suggested. Polacek was
uncertain but believed he had not discussed with Dustin the allegations against him.
Polacek did not take steps to investigate the allegations, believing them to have been
motivated by animus against Dustin.
At trial, the defense also presented evidence indicating that approximately three
weeks prior to the preliminary hearing, Dustin had obtained financial assistance from the
Fresno County District Attorney’s Office following an incident in which Dustin was
robbed, his stomach slashed with a knife, and his assailants allegedly declared, “let’s see
if you testify now.” Fearful, Dustin thereafter sought protection from the Fresno County
District Attorney’s Office, which in response provided him with modest sums of money
for groceries, lodging, and relocation expenses including a one-way bus ticket to
A defense investigator testified that the prosecution had not provided Daffron’s
name to the defense in the early phases of discovery; rather, the investigator discovered
her identity when he searched court records disclosing restraining orders that had been
entered against Dustin. The investigator added that the prosecution did not provide
Daffron testified that she saw Dustin use the expense money he had received from
the Fresno County District Attorney’s Office to purchase drugs.
records of payments made to Dustin by the district attorney’s office prior to being served
with a subpoena duces tecum.
The defense further presented evidence indicating that a few weeks prior to the
commencement of trial, Dustin was in custody on a matter unrelated to defendant’s case
and so informed the Fresno County District Attorney’s Office. The defense attempted to
establish that the prosecution offered Dustin a deal in order to reduce his period of
incarceration for crimes unrelated to those charged in the present case, in exchange for
his testimony implicating defendant in the present case. The defense established that the
prosecution struck such a bargain with the witness Michael Beckham.
Sergeant Snow testified for the defense that Dustin had stated during interrogation
that he had gone along with defendant’s plan to rob Gonzalez and that Dustin told Snow
that “the game plan was to beat the victim and rob him.” Dustin acknowledged that he
knew the plan in advance and was working with defendant.
The defense presented the testimony of private investigator Sanford Glickman,
who, in the connection with the defense of Jerry Franklin, interviewed prosecution
witness Michael Beckham. Glickman recalled that Beckham had used several derogatory
racial epithets when referring to defendant.
Defendant did not testify.
3. The Prosecution’s Case in Rebuttal
In rebuttal, the prosecution called several witnesses, primarily to demonstrate that
Dustin had not been offered a deal in exchange for his testimony, and that the expenses
Dustin received from the Fresno County District Attorney’s Office were not significant or
unusual. The prosecution presented evidence indicating that Daffron herself was an
abuser of illegal substances. Several prosecutors recounted their prosecution of Dustin
for various offenses during the period preceding defendant’s trial and asserted they had
handled the cases in the usual manner and had no contact with Polacek concerning these
prosecutions. Polacek directed the deputy prosecutor to handle the prosecution of
Dustin as he would any other case.
Over defense objection, the prosecution read into the record Rosanna Beckham’s
preliminary hearing testimony, in which she recalled that while sitting in the automobile
at the orchard on the night of the murder, “[s]omebody had said that he [Gonzalez] was
dead and somebody else said, well, make sure,” and that she did not believe either one of
the voices was that of Kenny Dustin.
On cross-examination, defense counsel elicited testimony that Dustin had bragged
about his involvement in a murder, had a history of suffering from paranoid
schizophrenic depression, and had been hospitalized for “irrational behavior.”
B. PENALTY PHASE EVIDENCE
1. The Prosecution’s Case
The prosecution presented evidence indicating that in 1987, when defendant’s
former girlfriend informed him she was returning a videocassette recorder (VCR) to a
coworker from whom she had borrowed the device, defendant responded by punching her
in the ribs.
The prosecution also presented evidence establishing that in 1989, defendant had
approached a high school student, Jennifer Wimberly, on the sidewalk in front of a
delicatessen, and committed a battery with serious bodily injury upon her. The attack
caused Wimberly to suffer three chipped teeth in addition to a laceration under her left
eye that required six sutures to close. Wimberly testified she had never seen her assailant
prior to the incident.
Finally, the parties stipulated that defendant had been convicted of and served
prison terms for assault with a deadly weapon in 1981 (§ 245, subd. (a)), auto theft in
1989 (Veh. Code, § 10851), and the above referenced battery with serious bodily injury
upon Wimberly in 1989. (§ 243, subd. (d).)
2. The Defense Case
The defense presented the testimony of several Fresno County Sheriff’s
Department officers, who described defendant as having been a good prisoner who did
not present discipline or security problems. One officer described defendant as “a fairly
nice fellow,” another described him as “very courteous” and “quick to respond when
asked or told to do something,” and a third described defendant as “[v]ery respectful. . . .
He’s different — there’s some bad inmates and good inmates. He was a good one. He
never gave me any problems at all.”12
The defense also presented the testimony of defendant’s mother, stepfather, and
several other family members, who described the severe emotional impact they would
suffer if defendant were executed.
Finally, the defense presented the testimony of Ted Dunlap who, at the time of
trial, was serving a nine-year state prison sentence for burglary. Dunlap was the victim
of defendant’s assault with a deadly weapon — one of the charges to which the parties
had stipulated at the close of the prosecution’s case in aggravation. Dunlap explained
that he and defendant “started fighting and a gun went off and everybody ran in different
ways.” Shortly after the firearm discharged, Dunlap discovered that he had been shot,
although he did not know who had shot him. On cross-examination, Dunlap
The defense also presented the testimony of other correctional officers explaining
the circumstances of two altercations involving defendant while he was incarcerated
awaiting trial. In the first incident, which took place on June 22, 1992, defendant
attempted to strike another inmate; each inmate was restrained by correctional officers
before he could make contact with the other, and each subsequently was disciplined.
Defendant later regained his status as a trustee and was not considered a danger to staff.
In the second incident, which occurred on August 4, 1992, correctional officers during a
period of jail overcrowding, in an effort to make room for incoming inmates, attempted to
move defendant from the cell he occupied alone, to one already housing two other
inmates and containing only two beds; defendant resisted the move, leading officers to
handcuff and shackle him, and when the officers moved him into the other cell, defendant
attempted to strike one of them.
acknowledged that on the date of the incident, October 26, 1980, defendant was angry at
him for having taken an unduly large share of the proceeds from a prior robbery they had
committed together. In response to a question how the execution of defendant would
impact him, Dunlap replied, “I would feel sad and hurt.”
3. The Prosecution’s Case in Rebuttal
The prosecution in rebuttal presented the testimony of two Fresno County
Sheriff’s Department deputies, each of whom described an incident in which defendant’s
cellmate during the time of trial refused to return his dinner trays, prompting officers to
shut off the water to that cell, an act that angered defendant. The two cellmates
ultimately were removed from the cell, separated, and placed in other cells. One officer
described defendant as initially being “a little uncooperative with the move,” but that
defendant ultimately “complied with the officers’ instructions.” The other officer
testified that defendant declared, “as of Monday, anybody entering my cell, it’s on.” The
latter officer interpreted defendant’s statement as a threat to correctional staff.
The prosecution also read into the record the testimony of Ted Dunlap, given at
the preliminary hearing in the proceedings that ultimately concluded with defendant’s
conviction for assault with a deadly weapon. During that hearing, Dunlap testified that
defendant “had the gun. That’s the only gun I seen. . . . Yes, I seen him with the gun.”
4. The Defense Case in Surrebuttal
The defense read into the record additional testimony given by Ted Dunlap at the
preliminary hearing noted immediately above. This testimony more fully described the
shooting incident, including Dunlap’s subsequent trip to a hospital while accompanied by
defendant until he let Dunlap out at a location near the facility.
A. GUILT PHASE ISSUES
1. Whether the Trial Court Properly Admitted the Preliminary
Hearing Testimony of Kenny Dustin
Defendant contends the trial court erred in determining that prosecution witness
Kenny Dustin was entitled to exercise his privilege against self-incrimination (U.S.
Const., 5th Amend.; Cal. Const., art. I, § 15), thereby rendering Dustin unavailable as a
witness at the trial and leading to the introduction of Dustin’s preliminary hearing
testimony into evidence. Defendant contends the alleged error constituted a violation of
his right to confront and cross-examine witnesses and to a fair trial, and also undermined
the reliability of the jury’s penalty determination. He claims violations of the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and parallel
provisions of the California Constitution.
Two statutory provisions are particularly significant to defendant’s claim,
Evidence Code sections 1291 and 240. Pursuant to Evidence Code section 1291, under
various circumstances prior testimony by an unavailable witness is admissible despite the
general rule excluding hearsay evidence.13 Evidence Code section 240, subdivision (a)
defines the circumstances under which a witness may be considered unavailable for the
purpose of admitting the witness’s prior testimony in evidence.14 One such circumstance
Evidence Code section 1291, subdivision (a) provides in pertinent part: “Evidence
of former testimony is not made inadmissible by the hearsay rule if the declarant is
unavailable as a witness and: [¶] . . . [¶] (2) The party against whom the former
testimony is offered was a party to the action or proceeding in which the testimony was
given and had the right and opportunity to cross-examine the declarant with an interest
and motive similar to that which he has at the hearing.”
Evidence Code section 240, subdivision (a) provides in pertinent part: “Except as
otherwise provided in subdivision (b), ‘unavailable as a witness’ means that the declarant
is any of the following: [¶] (1) Exempted or precluded on the ground of privilege from
testifying concerning the matter to which his or her statement is relevant. [¶] . . . [¶]
(footnote continued on next page)
occurs when the witness properly invokes the privilege against self-incrimination at trial.
(Evid. Code, § 240, subd. (a)(1).)
Defendant claims first that Dustin’s preliminary hearing testimony was
inadmissible pursuant to Evidence Code sections 240 and 1291, because Dustin was not
entitled to exercise his privilege against self-incrimination. Specifically, defendant
claims, Dustin waived the privilege against self-incrimination as to all the circumstances
surrounding the charged crimes. Defendant rests this claim upon the circumstance that
during the in limine hearing on the admissibility of Dustin’s preliminary hearing
testimony and the propriety of his invocation of the privilege, Dustin, without asserting
the privilege, answered questions inquiring whether his preliminary hearing testimony
Second, defendant contends that the prosecution should have afforded Dustin
immunity from prosecution at trial, thereby permitting Dustin to testify and forcing him
to submit to defendant’s cross-examination in the presence of the jury. Defendant argues
that the prosecution procured Dustin’s unavailability at trial by withholding immunity,
and that for this reason, Dustin was not unavailable within the terms of Evidence Code
sections 240, subdivision (a), and 1291.15 Defendant also contends the trial court on its
own motion should have afforded Dustin immunity from prosecution.
(footnote continued from preceding page)
(5) Absent from the hearing and the proponent of his or her statement has exercised
reasonable diligence but has been unable to procure his or her attendance by the court’s
Evidence Code section 240, subdivision (b) provides: “A declarant is not
unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or
absence of the declarant was brought about by the procurement or wrongdoing of the
proponent of his or her statement for the purpose of preventing the declarant from
attending or testifying.”
a. Factual background
Dustin testified for the prosecution at the preliminary hearing without consulting
an attorney concerning potential self-incrimination. The People were represented by
Fresno County Deputy District Attorney Steven Polacek. At trial, represented by another
deputy district attorney, the prosecution intended to call Dustin to testify during its case-
in-chief. The trial court, however, appointed counsel to advise Dustin, because in its
view Dustin could be viewed as a potential suspect in the murder of Miguel Gonzalez and
in other crimes committed on February 17-18, 1991. After conferring with counsel,
Dustin decided to assert his privilege against self-incrimination and to refuse to answer
any questions relating to the crimes. The prosecution then announced its intention to
offer into evidence the testimony given by Dustin at the preliminary hearing, under the
former-testimony exception to the hearsay rule. (See Evid. Code, §§ 1200, 1291.)
The court conducted a hearing outside the presence of the jury in order to
determine whether Dustin properly could invoke the privilege against self-incrimination,
rendering him unavailable as a witness under the pertinent Evidence Code provisions.
After Dustin was sworn, the prosecutor asked him several questions, including whether
Dustin recalled the events of February 17-18, 1991, whether Dustin recalled seeing
defendant at the Drakes’ residence during that period, whether Dustin recalled seeing the
white Chevrolet Monte Carlo parked near the residence, whether Dustin recalled
defendant beating Miguel Gonzalez with a tire jack, and whether Dustin recalled
traveling to the area where the victim’s body was dumped. Dustin refused to answer each
question, expressly grounding his refusal on the privilege against self-incrimination. In
response to the prosecutor’s inquiry whether he had testified truthfully at the preliminary
hearing, Dustin responded affirmatively.
On cross-examination, when defense counsel inquired of Dustin whether he
intended to respond to any questions regarding the period February 17-18, 1991, Dustin
replied, “No. I plead the Fifth.” Defense counsel asked Dustin whether he intended to
invoke his Fifth Amendment privilege “with respect to any questions that are asked of
you about . . . those dates.” Dustin responded, “Yes.” In response to additional questions
posed by defense counsel to Dustin regarding specific crimes committed against Miguel
Gonzalez, Dustin repeatedly invoked the privilege. In response to defense counsel’s
question, Dustin again asserted that the testimony he gave at the preliminary hearing had
been complete and truthful.
The defense objected to the admission of Dustin’s preliminary hearing testimony,
claiming that defendant’s right to representation by counsel free of conflict of interest had
been violated at the preliminary hearing. Specifically, defendant alleged that his own
counsel at the preliminary hearing had a conflict of interest, because she was a member of
the public defender’s office and another deputy from the same office had represented
Dustin on a prior occasion when Dustin had been charged with a battery in violation of
section 242. Initially, defendant contended that because of the conflict, he did not have
an appropriate opportunity to cross-examine Dustin at the preliminary hearing.
The defense also contended that, when Dustin testified at the in limine hearing at
trial that he had testified truthfully at the preliminary hearing, he thereby waived his
privilege against self-incrimination, and that as a consequence he was available as a
witness and his prior testimony was inadmissible.
At a hearing held in response to the claim of conflict, the deputy public defender
who had represented defendant at the preliminary hearing testified that she had been
unaware at the time of the hearing that her office ever had represented Dustin and that her
representation of defendant had been as vigorous as it would have been had her office
never represented Dustin. Defendant’s trial counsel conceded that any conflict of interest
on the part of defendant’s preliminary hearing counsel had not caused defendant
prejudice.16 Trial counsel acknowledged that prior counsel’s cross-examination of
Dustin at the preliminary hearing had been “excellent,” “robust and uninhibited,” and that
“there was the same motive and incentive to cross-examine [Dustin] at [the] preliminary
hearing as there is at . . . trial.”
The trial court found that Dustin was unavailable as a witness within the meaning
of Evidence Code section 240, subdivision (a)(1), and, pursuant to the former-testimony
exception to the hearsay rule codified in Evidence Code section 1291, permitted the
prosecution to introduce the testimony given by Dustin at the preliminary hearing. The
trial court concluded that the conflict of interest claimed by defendant did not adversely
affect the cross-examination of Dustin at the preliminary hearing.
The transcript of Dustin’s preliminary hearing testimony was read to the jury. In
his testimony, Dustin recounted his observation of the events of February 17-18, 1991.
Dustin’s testimony implicated defendant in the robbery, kidnapping, and fatal beating of
b. Dustin’s asserted waiver of the privilege against self-incrimination
Defendant claims the prosecution failed to carry its burden of demonstrating that
Dustin was unavailable within the meaning of Evidence Code section 240, subdivision
(a)(1). But if the trial court properly determined Dustin was entitled to assert his
privilege against self-incrimination, the prosecution necessarily carried its burden,
Trial counsel commented: “Now I’ve inspected and read probably three times
now Mr. Dustin’s preliminary hearing testimony. I was the one that was going to cross-
examine him at trial, so I was prepared to do that. And I cannot argue that there is
prejudice [arising from the asserted conflict of interest] because Ms. O’Neill did an
excellent job of cross-examination. And I’m, you know, admitting that and conceding
that.” Trial counsel then argued that Dustin’s preliminary hearing testimony should be
excluded as a sanction against the prosecution for its failure to inform the defense prior to
the preliminary hearing that Dustin had a prior misdemeanor battery charge, information
that would have alerted defense counsel to the potential conflict.
because a witness is unavailable if he or she is entitled to invoke the privilege. (Evid.
Code, §§ 240, subd. (a)(1), 1291.) In substance, defendant’s claim is that the trial court
erred in concluding Dustin properly asserted rather than waived his privilege.
It is a fundamental principle of our law that witnesses may not be compelled to
incriminate themselves, and the scope of a witness’s privilege is liberally construed.
(Hoffman v. United States (1951) 341 U.S. 479, 486; People v. Seijas (2005) 36 Cal.4th
291, 304; see Evid. Code, § 940.) “To invoke the privilege, a witness need not be guilty
of any offense; rather, the privilege is properly invoked whenever the witness’s answers
‘would furnish a link in the chain of evidence needed to prosecute’ the witness for a
criminal offense.” (People v. Cudjo (1993) 6 Cal.4th 585, 617, quoting Hoffman v.
United States, supra, 341 U.S. at p. 486; see also People v. Seijas, supra, 36 Cal.4th at
“A witness may assert the privilege who has ‘reasonable cause to apprehend
danger from a direct answer.’ ” (People v. Seijas, supra, 36 Cal.4th at p. 304.)
Moreover, “ ‘[t]o sustain the privilege, it need only be evident from the implications of
the question, in the setting in which it is asked, that a responsive answer to the question
or an explanation of why it cannot be answered might be dangerous because injurious
disclosure could result.’ [Citation.] To deny an assertion of privilege, ‘the judge must be
“ ‘perfectly clear, from a careful consideration of all the circumstances in the case, that
the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ ” to
incriminate.’ ” (Id. at pp. 304-305; see Evid. Code, § 404 [such evidence “is inadmissible
unless it clearly appears to the court that the proffered evidence cannot possibly have a
tendency to incriminate the person claiming the privilege”].) Given the broad protective
scope of the privilege, waiver of a nonparty witness’s privilege “is not to be lightly
inferred.” (Klein v. Harris (2d Cir. 1981) 667 F.2d 274, 287; see also U.S. v. Seifert (9th
Cir. 1980) 648 F.2d 557, 561.)
Under the circumstances of the present case, we independently review the question
whether the court properly permitted Dustin to invoke the privilege against self-
incrimination. (People v. Seijas, supra, 36 Cal.4th at p. 304.)
Defendant does not dispute that Dustin had reasonable cause to apprehend danger
from answering questions concerning his activities and observations on the night of the
murder, or that he properly invoked his privilege as to the bulk of the questions posed to
him at the in limine hearing. Indeed, defendant claims the police and the prosecution
should have treated Dustin as a suspect from the outset of their investigation and
Defendant claims, nonetheless, that, for the purpose of the trial, Dustin waived his
privilege against self-incrimination as to the entire subject matter of his activities and
observations during the period related to the murder. According to defendant, the waiver
occurred during the in limine hearing when Dustin, after repeatedly invoking the
privilege, failed to invoke it when he testified that his testimony at the preliminary
hearing was truthful. Defendant reasons that Dustin’s claim that he testified truthfully at
the earlier hearing constituted a ratification of his preliminary hearing testimony, and that
it essentially repeated his testimony at that hearing concerning his activities during the
period surrounding the crimes. Defendant claims Dustin waived or failed to assert the
privilege as to the entire subject matter of his preliminary hearing testimony and that as a
consequence, he was not unavailable within the meaning of Evidence Code sections 240,
subdivision (a)(1) and 1291.
A nonparty witness may elect to waive his or her privilege against self-
incrimination. In addition, in some instances a waiver may be implied when a witness
has made a partial disclosure of incriminating facts. “It is well established that a witness,
in a single proceeding, may not testify voluntarily about a subject and then invoke the
privilege against self-incrimination when questioned about the details. [Citation.] The
privilege is waived for the matters to which the witness testifies, and the scope of the
‘waiver is determined by the scope of relevant cross-examination.’ [Citation.]” (Mitchell
v. United States (1999) 526 U.S. 314, 321 (Mitchell); see Rogers v. United States (1951)
340 U.S. 367, 374 (Rogers) [a witness may not invoke the privilege as to details after
voluntarily disclosing incriminating facts].)
On the other hand, a witness’s failure to invoke the privilege against self-
incrimination during one hearing within a proceeding does not necessarily constitute a
waiver for the purpose of subsequent hearings. Thus the failure of a witness to claim the
privilege at a preliminary hearing does not prevent the witness from refusing to testify
regarding the same incriminating material at the trial. (People v. Seijas, supra, 36 Cal.4th
at p. 303; People v. Malone (1988) 47 Cal.3d 1, 23, citing Overend v. Superior Court
(1900) 131 Cal. 280, 284; People v. Maxwell (1979) 94 Cal.App.3d 562, 570-571.)
Similarly, a witness’s incriminating admission at an in limine hearing concerning the
admissibility of evidence ordinarily does not prevent the witness from invoking the
privilege against being compelled to give testimony regarding the matter at the trial.
(People v. Lawrence (1959) 168 Cal.App.2d 510, 517; see also 2 Witkin, Cal. Evidence
(4th ed. 2000) Witnesses, § 500, p. 808; 31A Cal.Jur.3d (2002 ed.) Evidence § 574,
Applying these principles, we observe that any waiver of the privilege that
occurred by virtue of Dustin’s statement that he had told the truth at the preliminary
hearing ordinarily would be binding upon Dustin only within the context of the in limine
hearing. Even if we assume without deciding that Dustin essentially ratified his
preliminary hearing testimony when he asserted he had been truthful at that hearing, he
did so only after he clearly and justifiably had asserted his privilege as to his conduct and
observations during the period related to the crimes. And even if his asserted ratification
could have opened him to further questioning during the in limine hearing despite his
assertion of the privilege, it does not follow that the asserted ratification constituted a
waiver of his privilege for the purpose of trial. Dustin’s statement did not occur at trial,
nor did it occur when the trial court was acting in a factfinding capacity. As noted,
waiver of the privilege is not lightly inferred (Klein v. Harris, supra, 667 F.2d at p. 287),
and there can be little justification for compelling a witness to incriminate himself
concerning a whole series of events as to which he has invoked the privilege, when there
is no need to do so to ensure the integrity of the factfinding process.
Significantly, application of the waiver doctrine depends upon the purpose of the
hearing at which the statements are made and the impact upon the integrity of the
factfinding process if assertion of the privilege is permitted. “The justifications for the
rule of waiver in the testimonial context are evident: A witness may not pick and choose
what aspects of a particular subject to discuss without casting doubt on the
trustworthiness of the statements and diminishing the integrity of the factual inquiry. As
noted in Rogers, [supra, 340 U.S. 367] a contrary rule ‘would open the way to distortion
of facts by permitting a witness to select any stopping place in the testimony,’ [citation]
. . . [and] ‘make of the Fifth Amendment not only a humane safeguard against judicially
coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.’
[Citation.]” (Mitchell, supra, 526 U.S. at p. 322; see also 1 McCormick on Evidence (6th
ed. 2006) § 133, p. 562 [the waiver rule “rests primarily . . . on the need to avoid leaving
triers of fact with the limited version of relevant information that would be before them if
a witness was permitted to at will pick a point at which to invoke the privilege”].)
In the context of a claim that a statement made by a defendant at a proceeding in
which a guilty plea was entered constituted a waiver of the privilege at the ensuing
sentencing hearing, the United States Supreme Court in Mitchell, supra, 526 U.S. 314,
examined the nature of the two proceedings and determined that the defendant’s guilty
plea and concession that she did “some of it,” during discussion of the factual basis for
her plea, did not constitute a waiver of the privilege against self-incrimination for the
purpose of the sentencing hearing.
The high court in Mitchell explained that had the petitioner testified at a trial that
she did “some of it,” she would have subjected herself to cross-examination at sentencing
on related subject matter. (Mitchell, supra, 526 U.S. at p. 322.) On the other hand, “[t]he
concerns which justify the cross-examination when the defendant testifies are absent at a
plea colloquy” — a hearing the high court characterized as one protecting the defendant
from an involuntary or unintelligent plea. (Ibid.) “There is no convincing reason why
the narrow inquiry at the plea colloquy should entail such an extensive waiver of the
privilege. Unlike the defendant taking the stand, who ‘cannot reasonably claim that the
Fifth Amendment gives him . . . an immunity from cross-examination on the matters he
has himself put in dispute,’ [citation] the defendant who pleads guilty puts nothing in
dispute regarding the essentials of the offense. Rather, the defendant takes those matters
out of dispute, often by making a joint statement with the prosecution or confirming the
prosecution’s version of the facts. Under these circumstances, there is little danger that
the court will be misled by selective disclosure. In this respect a guilty plea is more like
an offer to stipulate than a decision to take the stand. Here, petitioner’s statement that she
had done ‘some of’ the proffered conduct did not pose a threat to the integrity of fact-
finding proceedings, for the purpose of the District Court’s inquiry was simply to ensure
that petitioner understood the charges and that there was a factual basis for the
Government’s case.” (Id. at pp. 322-323.)
As the high court suggested in the Mitchell decision, we consider the purpose of
the hearing at which it is claimed Dustin waived his privilege against self-incrimination.
The purpose of the in limine hearing in the present case was to permit the trial court to
determine whether the witness was entitled to invoke the privilege during testimony at
the trial, thereby rendering him unavailable as a witness for the purpose of Evidence
Code sections 240 and 1291. Dustin’s testimony, at the conclusion of his direct and
cross-examination at the in limine hearing, that he told the truth at the preliminary
hearing did not cast doubt on the trustworthiness of his other statements at the in limine
hearing. The concerns that would justify application of the waiver doctrine to permit
cross-examination at a trial were absent at the in limine hearing, at which Dustin
consistently invoked his privilege as to specific questions and merely concluded with a
general assertion that he had told the truth at the prior hearing. In view of the broad
protection afforded to potential witnesses by the privilege against self-incrimination, we
cannot conclude that Dustin’s general ratification caused this nonparty witness to lose the
protection of the Fifth Amendment privilege he just had invoked repeatedly. Moreover,
as in the Mitchell case, in which the defendant had made incriminating statements at a
plea colloquy rather than at trial in the presence of the jury, when Dustin assertedly
ratified his prior testimony at the in limine hearing, the trier of fact was not present and
the testimony had no impact upon the factfinding process at trial. Accordingly, even if
Dustin had made an incriminating admission at the in limine hearing, his asserted
“waiver” of the privilege would be effective solely for the purpose of that hearing.
Contrary to defendant’s assertion, neither U.S. v. Rosario Fuentez (10th Cir. 2000)
231 F.3d 700, 707, nor U.S. v. Seifert, supra, 648 F.2d 557, 561, assists him. Both cases
are distinguishable, because they concern a witness’s partial disclosure of incriminating
matter during testimony at trial — a forum in which a party cannot be permitted to distort
the factfinding process by allowing witnesses to give some testimony on a topic but to
assert the privilege against self-incrimination to bar related questioning. We are not
presented with a case in which a witness testifies to the jury that his prior testimony was
truthful, and then invokes the privilege concerning the subject matter of the former
testimony, which is then read to the jury. Such testimony would implicate confrontation
rights that simply are not at stake when a witness testifies before the court at an in limine
We conclude that the trial court properly determined it was not “perfectly clear”
that Dustin’s answers could not possibly have a tendency to incriminate him (People v.
Seijas, supra, 36 Cal.4th at p. 304), and that the witness’s asserted ratification of his
preliminary hearing testimony at the in limine hearing did not constitute a waiver of his
right to invoke the privilege for the purpose of testifying at trial. The trial court did not
err in finding Dustin was entitled to invoke his privilege against self-incrimination, and as
a consequence the court correctly determined that Dustin was unavailable as a witness
within the terms of Evidence Code sections 240, subdivision (a)(1) and 1291.17
Defendant nonetheless complains that his constitutionally guaranteed right to
confront the witnesses against him was violated because Dustin was permitted to invoke
his privilege against self-incrimination, thereby avoiding cross-examination at trial. (See
U.S. Const., 6th & 14th Amends.; Pointer v. Texas (1965) 380 U.S. 400, 403-405.)
Although defendants have the general right to confront the witnesses against them,
this right is not absolute and properly gives way when a witness is entitled to the
protection of the Fifth Amendment privilege against self-incrimination and the defendant
had an appropriate prior opportunity to cross-examine the witness. (People v. Seijas,
supra, 36 Cal.4th at p. 303, citing Crawford v. Washington (2004) 541 U.S. 36, 59.)
“The defendant ‘must not only have had the opportunity to cross-examine the witness at
the previous hearing, he must also have had “an interest and motive similar to that which
he has at the [subsequent] hearing.” ’ [Citation.] . . . The recent [Crawford] decision . . .
Defendant contends Dustin’s asserted ratification of his preliminary hearing
testimony meant that “[j]ust as a testifying defendant’s bare denial of complicity . . .
opens up the whole subject matter of the charged crime,” the ratification meant that
defendant was “entitled to cross-examine [the] witness about any and all matters about
which the witness claims to have testified truthfully.” In his briefs, he discusses the
scope of permissible cross-examination after a defendant or witness makes a general
denial, relying upon this court’s decision in People v. Earp (1999) 20 Cal.4th 826, 883-
884, in which we concluded that a witness’s general denial of complicity in a crime can
broaden the scope of permissible redirect examination. Because defense counsel
apparently had no complaint about the scope of cross-examination allowed at the in
limine hearing and because the jury was not present when Dustin ratified his prior
testimony, the question of the scope of proper cross-examination is not before us.
although changing the law of confrontation in some respects, left these principles intact.”
(People v. Seijas, supra, 36 Cal.4th at p. 303, italics omitted.) Significantly, “[a] witness
who successfully asserts the privilege against self-incrimination is unavailable to testify
for these purposes.” (Ibid.)
Within the context of the in limine hearing, defendant was permitted to cross-
examine Dustin, and defense counsel elicited the same ratification that Dustin provided
on direct examination. Defendant cannot establish a violation of his confrontation rights
at trial simply because a witness at an in limine hearing, after repeatedly invoking his
privilege as to incriminating questions that clearly called for incriminating answers,
answered a general question calling for his ratification of his preliminary hearing
testimony. This answer had no impact on defendant’s countervailing constitutional right
to confront witnesses.
Defendant claims a confrontation-clause violation on the ground that he did not
have an adequate opportunity to cross-examine Dustin at the preliminary hearing. But
defendant’s trial counsel conceded the opportunity for cross-examination had been
exploited fully at the preliminary hearing, and that defense counsel’s examination at that
hearing had been “excellent.”
Defendant counters that he lacked an adequate opportunity to cross-examine
Dustin at the preliminary hearing, because the prosecutor failed to disclose to the defense,
prior to the preliminary hearing, contacts the prosecution had had with the witness,
particularly the prosecution’s agreement to pay approximately $200 toward Dustin’s
living expenses and the prosecution’s asserted secret or implicit promise to Dustin that he
would not be prosecuted. 18 In defendant’s view, defendant consequently did not have an
The record supports the claim that the prosecutor did not disclose the fact of
payments to Dustin prior to the preliminary hearing. Subsequent to the preliminary
hearing, the prosecutor resisted a defense motion to compel discovery of the payments,
(footnote continued on next page)
interest and motive for cross-examination at the preliminary hearing similar to his interest
and motive for cross-examination at trial.
At trial, the defense did not object to the admission of Dustin’s preliminary
hearing testimony on this ground and did not bring to the court’s attention the
circumstance that the prosecution had paid Dustin’s living expenses while assertedly
failing to disclose this or other information to the defense prior to the preliminary
hearing. Rather, although by this time the defense had been made aware of the payments,
defense counsel ultimately conceded that the cross-examination had been thorough and
vigorous. Nor did the defense argue that Dustin’s testimony should be excluded because
there had been a secret or implied immunity agreement prior to the preliminary hearing.
Under the circumstances, defendant failed to preserve the claim that Dustin’s
testimony should have been excluded at trial because the prosecution’s asserted
withholding of evidence prior to the preliminary hearing substantially impaired his ability
to cross-examine Dustin at that hearing. We reach this conclusion because “ ‘questions
relating to the admissibility of evidence will not be reviewed on appeal in the absence of
a specific and timely objection in the trial court on the ground sought to be urged on
appeal. [Citation.]’ ” (People v. Seijas, supra, 36 Cal.4th at p. 301; see People v. Partida
(2005) 37 Cal.4th 428, 434-435.) In light of defendant’s failure to object on this ground
at trial, the trial court did not hold a hearing on defendant’s factual assertion that the
(footnote continued from preceding page)
claiming payments to Dustin were not discoverable because, if made, they had been made
in connection with a witness protection program. Defendant’s claim that the prosecution
offered secret or implicit immunity to Dustin prior to the preliminary hearing is based
upon nothing more than speculation (see fns. 19, 20, post); when the defense questioned
Dustin on this subject at the preliminary hearing, the prosecutor (Polacek) and Dustin
denied there was any immunity agreement. At trial, too, Polacek denied having promised
People improperly delayed discovery or failed to disclose potentially inculpatory
evidence prior to the preliminary hearing, nor did the court consider any argument
concerning the specific impact any omission may have had on the prior hearing. “The
objection requirement is necessary in criminal cases because a ‘contrary rule would
deprive the People of the opportunity to cure the defect at trial and would “permit the
defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction
would be reversed on appeal.” ’ [Citation.]” (People v. Partida, supra, 37 Cal.4th at
p. 434; see also id. at p. 435 [recognizing a narrow exception inapplicable to the present
As noted, defendant contends Dustin was not unavailable within the terms of
Evidence Code section 240, subdivision (a). His theory, in essence, is that, instead of
employing reasonable diligence to secure the witness’s presence at trial as assertedly
required by Evidence Code section 240, subdivision (a)(5) and due process principles, the
prosecution actually procured the witness’s absence by failing to offer him formal
immunity or to extend the de facto immunity assertedly received by Dustin at the
Defendant raises a number of interrelated claims, but they can be reduced to the
claim that when Dustin asserted his privilege against self-incrimination at trial, the
prosecutor or the court should have offered him immunity from prosecution in order to
afford defendant the opportunity to cross-examine him fully in the presence of the jury.
Defendant’s claim is based upon various inferences he draws from the record that suggest
to him that at the preliminary hearing, the prosecutor had either a secret arrangement or
an implicit understanding with Dustin that Dustin would not be prosecuted in connection
with the crimes for which defendant stood trial.19 Defendant claims that the prosecutor
secured Dustin’s preliminary hearing testimony with the intent of later withdrawing his
secret or implicit promise of immunity, forcing Dustin to assert the privilege against self-
The preliminary hearing transcript supports a contrary view. At that hearing, the
following colloquy occurred:
“[Defense counsel]: Your honor, I have a further concern. I’d like to know at this
time what agreement [there] is between the DA’s office and this witness [Kenny Dustin
regarding] immunity. I’d like to voir dire on the subject after I’ve heard [the
is no agreement.
“[Defense counsel]: I’d like to voir dire on that issue. [¶] . . . [¶]
“The Court: Inasmuch as there is no agreement as to immunity — there certainly
is nothing in writing. [The prosecutor] has not submitted any immunity papers to the
court. I think that the witness must understand that also, and I don’t think it would be
appropriate as to voir dire; perhaps on cross-examination, if you wish to take it up.”
In her cross-examination of Kenny Dustin later at the preliminary hearing, defense
counsel initiated the following exchange:
“[Defense counsel]: I believe you testified earlier that no one has made you any
promises in this case, is that right?
“[Defense counsel]: Yesterday, when we took a break, did you talk to [the
“[Defense counsel]: And that was when we brought up the issue of maybe you
having an attorney, is that correct?
“[Defense counsel]: Did [the prosecutor] at that time indicate to you that no
charge would be filed against you?
“[Dustin]: He said it’s up to me if I wanted an attorney or not.
“[Defense counsel]: Did he tell you . . . whether any charges were going to be
filed against you?
“[Defense counsel]: Did he tell you they wouldn’t be?
“[Defense counsel]: “So that’s the only thing he told you, that it was up to you
whether or not you wanted an attorney or not, is that right?
incrimination at trial and thereby avoiding cross-examination in the presence of the jury.
Accusing the prosecutor of willfully procuring the unavailability of Dustin for trial, or at
the least of failing to make reasonable efforts to secure his availability by offering
immunity, defendant contends the prosecutor distorted the factfinding process in a
manner that violated defendant’s right to a fair trial. 20
In support of the inferences he wishes us to draw, defendant notes that at the
preliminary hearing, Steven Polacek, the assigned deputy district attorney, denied defense
counsel’s suggestion that Dustin might incriminate himself through his testimony and
argued that Dustin had no need to consult an attorney. (When defense counsel asked
whether the prosecutor had granted Dustin immunity, the prosecutor responded, “I am
not, but this has been discussed thoroughly with this witness.”)
In addition, defendant cites testimony from the investigating officer who arrested
Dustin (“I would have to say that he was involved in the situation . . . having knowledge
and having gone with them and having provided certain information to them about [the]
location . . . where they wanted to dispose of the body”); the circumstance that the officer
arrested Dustin; trial testimony from a subsequent investigating officer that he never
treated Dustin as a suspect and released him from custody without seizing any evidence
from him; and Polacek’s testimony at trial that Dustin “has no criminal culpability.”
Defendant also points to trial evidence indicating that the prosecution gave Dustin
money for living expenses and a bus ticket prior to the preliminary hearing, but did not
give him money thereafter, arrangements the prosecutor testified were for the purpose of
“keeping him safe until the preliminary hearing,” and that there was continuing telephone
contact between Dustin and the prosecutor prior to trial.
Defendant further cites trial testimony indicating that the prosecutor informed a
defense investigator that when Dustin faced unrelated burglary charges, the prosecutor
had “made some communication with law enforcement and I believe his words were he
took care of it and as a result Mr. Dustin was not arrested for the burglary.” Defendant
refers to Daffron’s testimony that Dustin told her the district attorney would not
prosecute him for any crimes he committed against her because Dustin was the
prosecution’s star witness in the present case. Defendant claims the payments from the
prosecution to Dustin were kept secret from the defense until a defense investigator
stumbled upon them.
testimony by Daffron and her father that Dustin informed
Daffron he had delivered the fatal blows but that the prosecutor did not investigate
Defendant further points out that although Polacek objected to the appointment of
an attorney for Dustin at the preliminary hearing, the prosecutor at trial did not object,
(footnote continued on next page)
The grant of immunity is an executive function, and prosecutors are not under a
general obligation to provide immunity to witnesses in order to assist a defendant.
(People v. Samuels (2005) 36 Cal.4th 96, 127; People v. Stewart (2004) 33 Cal.4th 425,
468; In re Williams (1994) 7 Cal.4th 572, 609; People v. Cudjo, supra, 6 Cal.4th at
p. 619; In re Weber (1974) 11 Cal.3d 703, 720.) Similarly, we have expressed
reservations concerning claims that trial courts possess inherent authority to grant
immunity (see People v. Samuels, supra, 36 Cal.4th at p. 127), and even assuming the
court possesses such authority, it has been recognized only when the defense has made a
showing that a defense witness should be afforded immunity in order to provide clearly
exculpatory testimony. (See People v. Stewart, supra, 33 Cal.4th at pp. 469-470.)21
Contrary to defendant’s contention, neither Ohio v. Roberts (1980) 448 U.S. 56,
74, disapproved in part by Crawford v. Washington, supra, 541 U.S. 36, 62-63, nor
(footnote continued from preceding page)
nor did the prosecutor inform the court that her office did not consider Dustin to be a
suspect or to have potential criminal liability. Defendant concludes: “From the
foregoing, it is painfully obvious that not only did the prosecution extend de facto
immunity protection to Kenny Dustin for his testimony at the preliminary hearing, the
prosecution did its utmost to conceal the arrangements that it made and violated its most
basic ethical obligation to the trial court by not informing the court of both of the
arrangement and the prosecutorial position that Kenny Dustin would never be prosecuted
for his role in the robbery-homicide of [the victim].”
As for defendant’s reliance upon judicial estoppel, we have recognized a limited
application of the doctrine to criminal trials that is of little apparent relevance to the
present case. (See In re Sakarias (2005) 35 Cal.4th 140, 155-156 [“fundamental fairness
does not permit the People, without a good faith justification, to attribute to two
defendants, in separate trials, a criminal act only one defendant could have committed”];
see also Russell v. Rolfs (9th Cir. 1990) 893 F.2d 1033, 1037-1039 [the People were
estopped from advocating that a federal habeas corpus remedy be procedurally barred
because of the existence of a state remedy and then, when defendant sought the benefit of
the state remedy, arguing that defendant was procedurally barred from pursuing the state
Barber v. Page (1968) 390 U.S. 719, 724-725, assists his claim that the prosecution was
under an obligation to make reasonable efforts to persuade Dustin to testify at trial. He
cites Ohio v. Roberts, supra, 448 U.S. 56, for the following proposition: “The basic
litmus of Sixth Amendment unavailability is established: ‘[A] witness is not
“unavailable” for purposes of . . . the exception to the confrontation requirement unless
the prosecutorial authorities have made a good-faith effort to obtain his presence at
trial.’ ” (Id. at p. 74; see also Barber v. Page, supra, 390 U.S. at pp. 724-725.) This
language does not imply, however, that a witness who appropriately invokes the privilege
against self-incrimination is not “unavailable” without a showing that the prosecution
made a “good-faith effort” to persuade him or her to testify, either through discussion or
through the offer of a grant of immunity. Nor is defendant’s claim assisted by his
reliance upon very general pronouncements that “the constitution . . . strongly favor[s]
live testimony” (U.S. v. Kehm (7th Cir. 1986) 799 F.2d 354, 360-361), or upon cases
discussing the prosecution’s failure to employ reasonable diligence to secure a witness’s
attendance at the trial. (See, e.g., People v. Cromer (2001) 24 Cal.4th 889, 904-905;
Whelchel v. Washington (9th Cir. 2000) 232 F.3d 1197, 1209.)22 As noted, it is settled
that the preference for live testimony gives way when the witness properly invokes the
privilege against self-incrimination and a prior appropriate opportunity for cross-
Indeed, defendant’s claim that the prosecution must exercise diligence not only to
secure the witness’s presence, but also to convince a witness who wishes to assert a
privilege to testify, has been rejected in one of the very cases he cites in support of his
claim. (U.S. v. Reed (7th Cir. 2000) 227 F.3d 763, 767 [in the context of a witness’s
exercise of a testimonial privilege, “the rule is not that the government must do
everything it can to get a witness to testify, only that it make a reasonable, good faith
effort to get the witness into court”].)
Defendant also refers to federal authority that characterizes as a due process
violation a prosecutor’s refusal to grant immunity to a defense witness when the refusal
was undertaken “with the deliberate intention of distorting the fact-finding process.”
(Williams v. Woodford (9th Cir. 2004) 384 F.3d 567, 600; see also In re Williams, supra,
7 Cal.4th at pp. 602-609.) We note that these authorities discuss prosecutorial
interference with defense witnesses, whereas Dustin was a prosecution witness.
We need not resolve defendant’s claims on the merits, however, because he failed
to raise any of them in the trial court when Dustin’s preliminary hearing testimony was
offered into evidence. Yet each of the permutations of defendant’s argument depends
upon factual assertions concerning the prosecutor’s credibility and intent. These claims
are forfeited on appeal. (People v. Lucas (1995) 12 Cal.4th 415, 459-460; People v.
Cudjo, supra, 6 Cal.4th at p. 619; People v. Sutter (1982) 134 Cal.App.3d 806, 813.)
This case constitutes a classic illustration of the basis for rules requiring that
objections to the introduction of evidence and claims respecting the extension of
prosecutorial or judicial immunity must be made in the first instance in the trial court.
These objections and claims must be initiated in the trial court so that the court can take
steps to prevent error from infecting the remainder of the trial, so that an adequate record
may be developed, and so that the court, acting as a finder of fact that has observed the
participants, may reach conclusions on matters such as credibility and intent. Equally
important as a basis for forfeiture rules is the need to afford the prosecution the
opportunity to rebut the defendant’s claims of misconduct, provide additional foundation
for the admission of evidence, or cure the error. As we explained in applying the
forfeiture rule to a claim that a prosecution witness testified under a coercive grant of
immunity: “In requiring an objection at trial, the forfeiture rule ensures that the opposing
party is given an opportunity to address the objection, and it prevents a party from
engaging in gamesmanship by choosing not to object, awaiting the outcome, and then
claiming error.” (People v. Kennedy (2005) 36 Cal.4th 595, 612.)
Defendant contends his claim should not be forfeited, because it represents a pure
question of law based upon undisputed facts. He relies upon a doctrine discussed in civil
cases (see, e.g., Hale v. Morgan (1978) 22 Cal.3d 388, 394 [“We have held that a litigant
may raise for the first time on appeal a pure question of law which is presented by
undisputed facts”]; Panopulos v. Maderis (1956) 47 Cal.2d 337, 341; see also Yeap v.
Leake (1997) 60 Cal.App.4th 591, 599, fn. 6) but, as noted, we have concluded
specifically that a defendant forfeits a claim that the court or the prosecutor should have
granted immunity to a witness when the defendant has failed to raise that claim in the
trial court. (People v. Lucas, supra, 12 Cal.4th at pp. 461-462; People v. Cudjo, supra, 6
Cal.4th at p. 619.) Furthermore, even assuming the general applicability of the doctrine
cited by defendant, the predicate for his claim is absent. He does not ask us to resolve a
pure question of law based upon undisputed facts. Instead he asks that we interpret and
apply the law to the facts despite the circumstance that there is a critical factual dispute
that the trial court never was asked to explore or resolve, namely whether the prosecution
informally promised Dustin immunity from prosecution prior to the preliminary hearing
and whether it withdrew that immunity at trial, intending to profit by eliminating
defendant’s live cross-examination of the witness. (See, e.g., Panopulos v. Maderis,
supra, 47 Cal.2d at p. 341 [“if the new theory contemplates a factual situation the
consequences of which are open to controversy and were not put in issue or presented at
the trial the opposing party should not be required to defend against it on appeal”].)
Defendant also claims that his failure to request immunity for Dustin at trial
should not bar consideration of his claim because, apart from the immunity issue, the
prosecution failed to establish that it had employed reasonable diligence to procure
Dustin’s presence at trial within the meaning of Evidence Code section 240,
This claim also was not raised in the trial court and is forfeited. (See People v.
Smith (2007) 40 Cal.4th 483, 517 [“A defendant may not challenge, for the first time on
appeal, the procedure used by the trial court to find a witness unavailable”].)
In any event, Evidence Code section 1291 provides that former testimony is not
made inadmissible by the hearsay rule if the declarant is unavailable as a witness, subject
to certain qualifications such as the party’s right and opportunity to cross-examine the
witness at the prior hearing. Evidence Code section 240, subdivision (a) defines
unavailable witnesses as any of five types of witnesses. A witness who is exempted from
testifying on the ground of privilege is defined as one type. (Evid. Code, § 240, subd.
(a)(1).) This provision does not contain a “reasonable diligence” requirement, so
defendant’s claim must fail.
2. Whether the Trial Court Erred in Admitting the Preliminary
Hearing Testimony of Kenny Dustin in Light of the Circumstance
That Some of the Witness’s Cross-examination Was Performed by
Counsel Representing Defendant’s Codefendant
Initially, defendant’s case was joined with the prosecution of Jerry Franklin, and
the preliminary hearing was conducted jointly. When Dustin testified at the preliminary
hearing, he was subject to cross-examination by Franklin’s counsel as well as by
defendant’s counsel. As we have discussed, in light of the court’s finding that Kenny
Dustin was unavailable as a witness at trial, the trial court permitted the prosecution to
introduce Dustin’s testimony at the preliminary hearing, including the portion that was
responsive to his codefendant’s cross-examination.
On appeal, defendant contends that the portions of Dustin’s testimony elicited by
Franklin’s counsel should not have been admitted, because Franklin’s motive and interest
in cross-examining Dustin at the preliminary hearing were not the same as that of
defendant. In light of this asserted dissimilarity, defendant argues that the introduction of
this testimony violated his rights to due process of law, a fair trial, to confront witnesses,
and to a reliable penalty determination. As we shall explain, defendant’s position is
At the outset, because at trial defendant did not raise the claim that the portions of
Dustin’s preliminary hearing testimony elicited by defendant’s codefendant should have
been excluded from evidence, the claim is forfeited on appeal. (See Evid. Code, § 353;
People v. Seijas, supra, 36 Cal.4th at p. 301; see also People v. Smith, supra, 40 Cal.4th
at p. 517.)
Even if defendant had preserved his claim, it lacks merit. What was significant for
the purpose of meeting the requirements of Evidence Code section 1291 and preserving
defendant’s right of confrontation was defendant’s opportunity for cross-examination.
Defendant’s opportunity for cross-examination at the prior hearing was adequate, without
regard to his codefendant’s opportunity and motive for examining Dustin. To the extent
Franklin’s attorney may have questioned Dustin for the purpose of casting suspicion upon
defendant, such examination was no more improper than similar examination by the
prosecutor. Franklin’s attorney was not representing defendant.
Evidence Code section 1291, subdivision (a)(2) focuses on whether the party
against whom the former testimony is offered “had the right and opportunity to cross-
examine . . . with an interest and motive similar” to that at trial. Similarly, what is
significant for the purpose of analyzing whether prior testimony is admissible under the
Sixth Amendment to the United States Constitution is whether the party against whom
the prior testimony is offered had an appropriate opportunity for cross-examination at the
prior hearing. (See People v. Carter (2005) 36 Cal.4th 1114, 1172-1174.) Defendant
was the party against whom Dustin’s former testimony was offered, and as far as the
present record discloses, he had the right and opportunity to cross-examine Dustin with
an interest and motive similar to the interest and motive he had at trial. Defendant was
able to cross-examine Dustin on any relevant question — regardless whether such cross-
examination related to testimony elicited by questions posed by the prosecution or by
Franklin’s attorney on cross-examination. Evidence Code section 1291 and the command
of the confrontation clause were satisfied. (See People v. Zapien (1993) 4 Cal.4th 929,
975; see also People v. Carter, supra, 36 Cal.4th at pp. 1171-1174.)
Defendant cites three federal decisions in support of his position that testimony
elicited by cross-examination performed by a codefendant’s counsel at a former hearing
does not suffice to render the testimony admissible under the former-testimony exception
to the hearsay rule when the evidence is offered against a defendant who ultimately is
tried separately. His reliance upon U.S. v. Shaw (4th Cir. 1995) 69 F.3d 1249, 1252, U.S.
v. Deeb (11th Cir. 1994) 13 F.3d 1532, 1535, and U.S. v. Clarke (4th Cir. 1993) 2 F.3d
81, 83, is unavailing, because in each instance the ground for the court’s decision was
that the defendant — the party against whom the prior testimony was offered at trial —
had not been present or represented at the prior hearing.
In contrast with the cited federal decisions, defendant was present at the prior
hearing and was represented by counsel. He had the right and opportunity to cross-
examine Dustin, with an interest and motive similar to that at trial. As noted, this was
sufficient to fulfill the requirements of Evidence Code section 1291 and the confrontation
clause. Indeed, as noted earlier, not only was his opportunity for confrontation adequate,
but defense counsel conceded at the trial that the examination of Dustin had been
excellent from the defense point of view. (See fn. 16, ante.)
3. Whether the Trial Court Properly Refused to Inform the Jury
That Kenny Dustin Had Exercised His Privilege Against Self-
On the day the prosecution intended to call Kenny Dustin to testify at trial and
prior to conducting the in limine hearing relating to Dustin’s invocation of the privilege
against self-incrimination, the court informed counsel that any assertion of the privilege
should, in its view, take place outside the presence of the jury.23 On the following day,
the court reiterated its preference that invocation of the privilege be “taken outside the
presence of the jury.”
Defense counsel responded: “Well, I realize that the court has to make a
determination out of the presence of the jury as to whether the witness will take the Fifth.
My client is strenuously opposed to not having him called in front of the jury to take the
Fifth in front of the jury. My client wants to have him invoke the Fifth in front of the
jury so that the jury will understand why he is not available as a witness. . . . [¶] . . . I
would not ask question after question after question to invoke the Fifth, but just . . . ask
him and have him say that he invokes the Fifth Amendment so the jury will understand
why he is not here as a witness.”24
The trial court rejected defense counsel’s position: “I don’t think it’s the proper
procedure to take any person who’s claimed the Fifth of which the Court has found to be
a valid claim and parade that in front of the jury. . . . [¶] My thought is that it’s not just
prejudicial to the defense but prejudicial to the People’s case that [the jury is] speculating
here is a person who’s claimed the Fifth who could give testimony . . . but can’t because
of his claim so he must or she must know something. . . . You’re sending the jury on a
wild speculation as to what this person might have said had they not claimed that Fifth.”
In support of its ruling, the trial court cited People v. Ford (1988) 45 Cal.3d 431, in
On the date Dustin was scheduled to testify at defendant’s trial, Dustin was in
custody on drug charges unrelated to the crimes committed in the present case.
Although defense counsel’s argument immediately preceded the in limine hearing
pertaining to David Drake’s invocation of the Fifth Amendment privilege against self-
incrimination, the court’s observations and counsel’s argument in response appear to
pertain to both Drake and Kenny Dustin; on appeal, the parties treat the relevant passages
in the record as embracing Dustin’s invocation of the privilege and, although the record is
not completely clear on this point, we believe the record can be so read.
which we observed: “Some courts have approved a procedure whereby the claim may be
asserted in a pretestimonial hearing out of the presence of the jury. We commend that
approach as a means by which to avoid the potentially prejudicial impact of the witness
asserting the privilege before the jury.” (Id. at p. 441, fn. 6.)
Prior to the introduction of Dustin’s preliminary hearing testimony at trial,
however, defense counsel revised her argument, informing the court: “I was not
requesting that the court inform the jury that [Dustin] has invoked the Fifth Amendment.
I can find no case authority supporting the jury be told that. But I think that it needs to be
explained to the jury as to why somebody’s transcript is being read. And I would request
that the Court inform the jury that Kenneth Dustin is unavailable for testimony and
therefore his preliminary hearing testimony will be read.” The trial court agreed with the
revised defense position, and so informed the jury.25 The court similarly instructed the
jury at the conclusion of the guilt phase.26
On appeal, defendant contends Dustin’s invocation of the privilege against self-
incrimination constituted relevant evidence of Dustin’s belief in his own culpability and
also was evidence of the existence of an arrangement between the prosecution and Dustin
that expired subsequent to the preliminary hearing. According to defendant, this
arrangement was relevant to the issue of Dustin’s credibility. Defendant claims the trial
court’s refusal to grant defense counsel’s initial request that Dustin invoke his privilege
The court stated: “Ladies and gentlemen, . . . Mr. Dustin is unavailable to testify
. . . at this trial. So . . . the prosecution is going to be reading from the reporter’s
transcript of [Dustin’s testimony given at] the preliminary hearing. You must consider
that testimony as if it had been given before you in this trial.”
The court instructed the jury: “Testimony given by a witness at a prior proceeding
who was unavailable at this trial has been read to you from the reporter’s transcript of
that proceeding. You must consider such testimony as if it had been given before you in
in the presence of the jury (or otherwise inform the jury regarding why Dustin was not
testifying at trial) violated his constitutional rights to due process of law, confrontation,
and a reliable penalty determination. As we shall explain, this argument lacks merit.
Because the defense withdrew its request that Dustin be forced to invoke the
privilege in the presence of the jury, in favor of requesting the court to inform the jury
that the testimony given by Dustin at the preliminary hearing would be introduced due to
his unavailability to testify at trial, defendant has forfeited any such claim, regardless of
its merit. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 [“ ‘[i]f defense
counsel intentionally caused the trial court to err,’ ” acting for tactical reasons and not out
of mistake, the claim is barred on appeal as invited error]; People v. Prieto (2003) 30
Cal.4th 226, 264-265 [defense counsel’s deliberate tactical choice to request an
instruction bars consideration of error in the giving of the instruction on appeal]; see also
People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [“Inasmuch as defendant both
suggested and consented to the responses given by the court, the claim of error has been
Even if we were to assume that the claim is not procedurally barred, we repeatedly
have rejected the argument that a trial court commits error in denying a request that a
witness who intends to invoke the privilege against self-incrimination be compelled to do
so in the presence of the jury. (See Evid. Code, § 913, subd. (a) [the trier of fact should
not draw inferences concerning witness credibility or “as to any matter at issue in the
proceeding” from a witness’s invocation of privilege]; People v. Holloway (2004) 33
Cal.4th 96, 130-132; People v. Mincey (1992) 2 Cal.4th 408, 440-442; People v. Frierson
(1991) 53 Cal.3d 730, 743 [“Allowing a witness to be put on the stand to have the
witness exercise the privilege before the jury would only invite the jury to make an
improper inference”].) We decline to reconsider our previous holdings.27
Defendant argues that the defense was entitled to require Dustin to invoke his
privilege in the presence of the jury as a form of evidence that would support the
inference that Dustin received immunity at the preliminary hearing. But Evidence Code
section 913 provides that the jury should not draw inferences “as to any matter at issue in
the proceeding” from a witness’s invocation of a privilege. The invocation of privilege
no more supports the proposition that Dustin testified under a grant of immunity at the
preliminary hearing than it establishes that Dustin was culpable in the crimes or lacked
credibility as a witness.
4. Whether the Trial Court Properly Refused Defendant’s Request
to Ask Leading Questions of Defendant’s Original Prosecutor
During his case-in-chief, defendant called to the witness stand Steven Polacek,
who, as noted, was the prosecutor assigned to defendant’s case prior to trial. Defendant’s
purpose was to elicit testimony concerning inducements or benefits that may have been
promised to Kenny Dustin in exchange for Dustin’s testimony against defendant.28
As we have declared, “[a] defendant’s rights to due process and to present a
defense do not include a right to present to the jury a speculative, factually unfounded
inference” on the issue of guilt based upon a witness’s invocation of his or her privilege
against self-incrimination. (People v. Mincey, supra, 2 Cal.4th at p. 442.) Defendant
adds nothing to his claim by relying upon Chambers v. Mississippi (1973) 410 U.S. 284
and Green v. Georgia (1979) 442 U.S. 95. “As we have done in similar cases, ‘[w]e . . .
reject defendant’s various claims that the trial court’s exclusion of the proffered evidence
violated his federal constitutional rights to present a defense, to confront and cross-
examine witnesses, and to receive a reliable determination on the charged capital offense.
There was no error under state law, and we have long observed that, “[a]s a general
matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s
[state or federal constitutional] right to present a defense.” ’ ” (People v. Prince (2007) 40
Cal.4th 1179, 1243.)
Polacek was elevated to a supervisory position prior to trial and for that reason
was relieved of the responsibility of thereafter representing the People in this matter.
Shortly after the examination commenced, defense counsel’s inquiries prompted the trial
prosecutor to interpose objections that defense counsel improperly was asking leading
questions on direct examination.29 Defense counsel countered the objections with a
request that the court designate Polacek — in light of his previous role as defendant’s
prosecutor — as a hostile witness and on that basis permit the asking of leading
questions. (See Evid. Code, § 767, subd. (a).)30 Outside the jury’s presence, defense
counsel argued: “. . . I can’t think of a witness [who] would be more hostile than the
former attorney representing the party that is prosecuting us or trying [to] kill us.” The
trial court sustained the prosecution’s objections and denied defense counsel’s request.
On appeal, defendant contends the trial court abused its discretion in refusing to
designate Polacek as a hostile witness. At trial, defendant’s request was based primarily
upon Polacek’s position as his former prosecutor. On appeal, defendant adds reference to
heated exchanges between defense counsel and Polacek prior to the preliminary hearing,
instances of asserted prosecutorial misconduct when Polacek failed to provide discovery
in a manner deemed timely by defendant, and claims by defendant that Polacek refused to
follow evidentiary leads associating Dustin with the murder. According to defendant, the
trial court’s ruling violated his right to due process of law, to a fair trial, to call and
Defense counsel asked the witness: “Once the [case] assignment was made to you
in February of 1991[,] would it be fair to say that the first thing you do is review all of the
police reports that you have available to you at that point in time?” The trial prosecutor
objected: “Your Honor, this is direct examination and counsel is leading the witness.”
Defense counsel shortly thereafter inquired: “You had a statement from Rosanne
Beckham; correct? . . . . And as to some of those statements[,] she basically said she was
sitting in a car in the orchard. . . .” Again the trial prosecutor objected on the ground that
counsel was leading the witness.
Evidence Code section 767, subdivision (a) provides: “Except under special
circumstances where the interests of justice otherwise require: [¶] (1) A leading question
may not be asked of a witness on direct or redirect examination. [¶] (2) A leading
question may be asked of a witness on cross-examination or recross-examination.”
confront witnesses, and to a reliable penalty determination. We reject defendant’s
position. Evidence Code section 767 vests a trial court with broad discretion to decide
when to permit the use of leading questions on direct examination. (People v. Williams
(1997) 16 Cal.4th 635, 672; see also In re Burton (2006) 40 Cal.4th 205, 227; People v.
Spain (1984) 154 Cal.App.3d 845, 853-854 [the issue is not one of constitutional
dimension but instead concerns the trial court’s discretion].) In any event, regardless
whether we restrict our consideration to defendant’s claim at trial that Polacek’s position
as his prosecutor rendered him a hostile witness, or additionally consider instances of
hostility between Polacek and the defense relied upon by defendant for the first time on
appeal, defendant was not prejudiced by the court’s requirement that he examine Polacek
without employing leading questions.
Defendant contends that because his counsel was required to ask open-ended
questions on direct examination, Polacek improperly volunteered “irrelevant,
inadmissible and prejudicial testimony” that was intended to “sabotage” defendant. But
the sole example of a damaging reply from Polacek is as follows: When defense counsel
inquired why Polacek gave Dustin money, the witness responded: “[T]his crime occurred
February 18th of 1991. . . . On May 5, 1991, one of the reports that you have, there is a
report of Kenny Dustin being attacked by some black individuals. His stomach was
slashed and with a statement from one of those people saying let’s see if you testify now,
and he was robbed at the same time. He did call me following that and was scared. You
know, I need some protection.” Defendant claims the prosecutor improperly interjected
the information that the attack was committed by African-American persons. Defendant
does not explain why Polacek, a witness he claims was hostile to him, would not have
taken the opportunity to interject the same reference to the assailants’ race under
examination as a hostile witness or under cross-examination by the prosecutor.
Defendant does not contend, moreover, that he moved to strike any portion of Polacek’s
answers as irrelevant. Defendant essentially concedes his inability to establish prejudice.
He acknowledges that “[w]hile there are other examples of open-ended questions leading
to volunteered, nonresponsive testimony, the point is not that appellant was prejudiced by
those specifics, but that his counsel was hamstrung from conducting proper examination
of a hostile witness by being forced to use open-ended questions.”
5. Whether the Trial Court Properly Allowed Evidence of Bias to Be
Admitted Against Kristi Daffron on the Issue of Her Credibility
The defense presented the testimony of Kristi Daffron, Dustin’s former girlfriend
and the mother of their son. Daffron testified concerning several of Dustin’s attributes,
including his dishonesty, racism, and drug abuse, as well as his physical and emotional
abuse of her. In calling Daffron, the defense not only sought to diminish Dustin’s
credibility in the eyes of the jury, but also sought to blame him for his participation in the
crimes. Thus, Daffron testified that Dustin admitted to her on several occasions that he
smashed Gonzalez’s head and had used “a tire jack and a tire rim” to accomplish the
beating. She testified that she repeatedly had complained to Steven Polacek, defendant’s
original prosecutor, regarding Dustin’s incriminating statements and abusive treatment of
her, but that Polacek did not respond.
On cross-examination, the prosecution sought to establish that Daffron harbored a
bias against the prosecution based upon Polacek’s alleged insensitivity toward her
concerns and the circumstance that the Fresno County District Attorney’s Office
successfully had prosecuted Daffron’s husband, Ronald, leading to his incarceration for
various crimes. Responding to defense objection, the prosecutor explained to the court
that the evidence was relevant to explain Daffron’s demeanor on the witness stand, noting
it was “pretty clear how she feels about the People’s representative in this case. And I
think that has something to do with the fact that it was my very same office that sent her
current husband to state prison.” Defense counsel disagreed, claiming the question called
for “inadmissible character evidence in an attempt to taint her with a brush of slime
because she happens to be married to somebody who is in state prison and I would
remind the Court that — which is abundantly clear that she made these complaints to Mr.
Polacek [concerning Dustin’s mistreatment of her] before she ever met her current
husband.” The trial court responded that the evidence reflecting that the local district
attorney’s office had prosecuted Daffron’s husband might constitute inadmissible
character evidence if Ronald Daffron had been the witness, but did not constitute such
evidence when the issue was Kristi Daffron’s credibility — specifically, her bias against
the prosecution. The trial court permitted the prosecution to elicit evidence establishing
that Daffron’s husband then resided in state prison, having been convicted of three
offenses when the Fresno County District Attorney’s Office prosecuted him some two or
three years after Daffron’s contact with Polacek.
On appeal, defendant contends the trial court erred in permitting the prosecutor to
impeach Kristi Daffron’s credibility with her husband’s felony convictions. He asserts
that the prosecution sought the introduction of such “irrelevant” evidence “for no higher
purpose than to smear Kristi’s character in the eyes of the jurors”; that is, to impeach her
testimony by suggesting it should not be credited because of her husband’s status as a
felon. First, he asserts Kristi’s bias was no longer in dispute. Second, defendant claims
the evidence was not relevant to bias, because of the interval of two and one-half years
between Daffron’s contact with the prosecutor and the purported source of the bias,
namely, her current husband’s incarceration. Finally, he denies the evidence had any
tendency to demonstrate her bias against the prosecution. According to defendant, the
trial court’s ruling in this regard violated defendant’s rights to due process of law, a fair
trial, and a reliable penalty determination.
As we shall explain, defendant’s position is without merit.
Subject to certain limitations inapplicable to the present discussion, all relevant
evidence is admissible (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d)),
and relevant evidence is defined as evidence “having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) Evidence is relevant if it tends “ ‘logically, naturally, and by
reasonable inference’ to establish material facts such as identity, intent, or motive.
[Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 177, disapproved on other
grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117.) The trial court has considerable
discretion in determining the relevance of evidence. (People v. Garceau, supra, 6 Cal.4th
at p. 177; see People v. Carter, supra, 36 Cal.4th at pp. 1166-1167.) The “existence or
nonexistence of a bias, interest, or other motive” on the part of a witness ordinarily is
relevant to the truthfulness of the witness’s testimony (Evid. Code, § 780, subd. (f)), and
“ ‘[t]he credibility of an adverse witness may be assailed by proof that he cherishes a
feeling of hostility towards the party against whom he is called . . . .’ ” (3 Witkin, Cal.
Evidence, supra, Presentation at Trial, § 277, p. 349.)
Contrary to defendant’s contention, the issue of Daffron’s bias was far from
conceded; rather, it was the focus of the prosecutor’s cross-examination of the witness.
Defendant claims the jury already had heard evidence that Daffron harbored a bias
against the prosecution, but that circumstance did not render the evidence irrelevant. The
circumstance that the Fresno County District Attorney’s Office (whose representative
was examining Daffron as a witness) prosecuted the witness’s husband, leading to his
incarceration in state prison at the time of trial, had an obvious “tendency in reason” to
bias Kristi Daffron against that office and explain her hostile demeanor on the witness
stand toward the prosecutor. Such a tendency is apparent even though the husband’s
prosecution occurred some years subsequent to Daffron’s contact with Polacek, in view
of the circumstance that the result of the husband’s prosecution (his incarceration)
persisted at the time of trial. Defendant’s reference to Evidence Code section 1101 is
unavailing. That provision establishes a general rule, subject to exceptions defined by
statute, that evidence of character is inadmissible to prove the witness’s conduct on a
specific occasion. The challenged evidence did not constitute character evidence
concerning the witness, however. Defendant’s assertion that the circumstance Daffron’s
husband was in prison would have been understood as constituting shameful evidence of
the witness’s character is farfetched and speculative.
Nor do we find that the trial court abused its discretion under Evidence Code
section 352. Under that statute, the trial court retains broad discretion to assess whether
the probative value of certain evidence “is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create danger of
undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352;
see People v. Rodrigues, supra, 8 Cal.4th at p. 1124.) A trial court’s discretionary ruling
under this statute “ ‘must not be disturbed on appeal except on a showing that the court
exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice. [Citations.]’ ” (People v. Rodrigues, supra,
8 Cal.4th at pp. 1124-1125, italics omitted.) Under this standard, we perceive no flaw in
the court’s reasoning. Kristi Daffron’s testimony regarding her husband was brief and
presented no risk of confusing the issues or misleading the jury. As Daffron herself made
clear during the prosecution’s cross-examination of her: “[W]hat my husband did is what
my husband did and it has nothing to do with this case. My husband knows nothing
about this case.”
As we have noted, the principal focus of the defense case was to discredit Kenny
Dustin’s testimony; toward this end, Kristi Daffron was merely one of several witnesses
who portrayed Dustin in a decidedly negative light. Even if Daffron’s testimony were
understood by the jury in the sense claimed by defendant, there would be no prejudice.
The jury was made aware of Daffron’s deep disapproval of Polacek through other
evidence, illustrating her bias against the prosecution and rendering negligible the impact
of the challenged evidence. In addition, any error in permitting the question and answer
could not have detracted meaningfully from the impeachment of Kenny Dustin’s
testimony that the defense elicited through the testimony of other witnesses.
6. Instructional Issues
a. Whether the trial court was required to instruct the jury that
Kenny Dustin was an accomplice as a matter of law
The trial court instructed the jury that they were required to determine whether
Kenny Dustin, Michael Beckham, and Rosanna Beckham were accomplices, as the court
defined that term, and that an accomplice’s testimony required corroboration and should
be viewed with distrust.
At trial, when defense counsel raised the question whether the court would instruct
the jury that Dustin was an accomplice as a matter of law, the court responded that it
would not, because there was some contrary evidence — for example, evidence that
Dustin denied he had been directly involved. According to the court, “It’s really a
question of fact, so I left it [at] that.”
On appeal, defendant claims that the trial court’s failure to instruct the jury that
Dustin was an accomplice as a matter of law constituted a violation of defendant’s right
to due process of law, a fair trial, trial by jury, and a reliable penalty determination. We
Section 1111 prohibits a defendant from being convicted on the uncorroborated
testimony of an accomplice. Accomplice testimony must be corroborated by “other
evidence as shall tend to connect the defendant with the commission of the offense . . . .
[¶] An accomplice is . . . defined as one who is liable to prosecution for the identical
offense charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.” (§ 1111.) In other words, “[t]o be so chargeable, the witness must
be a principal under section 31. That section defines principals as ‘[a]ll persons
concerned in the commission of a crime, whether . . . they directly commit the act
constituting the offense, or aid and abet in its commission . . . .’ (§ 31.) An aider and
abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the
intent of encouraging or facilitating commission of the offense. Like a conspirator, an
aider and abettor is guilty not only of the offense he intended to encourage or facilitate,
but also of any reasonably foreseeable offense committed by the perpetrator he aids and
abets.” (People v. Avila (2006) 38 Cal.4th 491, 564.)
Unless there can be no dispute concerning the evidence or the inferences to be
drawn from the evidence, whether a witness is an accomplice is a question for the jury.
On the other hand, the court should instruct the jury that a witness is an accomplice as a
matter of law when the facts establishing the witness’s status as an accomplice are
“ ‘clear and undisputed.’ ” (People v. Avila, supra, 38 Cal.4th at p. 565; see also People
v. Hayes (1999) 21 Cal.4th 1211, 1270-1271; People v. Fauber (1992) 2 Cal.4th 792,
In addition, even if Dustin had been an accomplice as a matter of law, “[f]ailure to
instruct pursuant to section 1111 is harmless if there is sufficient corroborating evidence.
Corroborating evidence may be slight, may be entirely circumstantial, and need not be
sufficient to establish every element of the charged offense.” (People v. Hayes, supra, 21
Cal.4th at p. 1271.)
The record makes plain, and respondent concedes, that Dustin was present at the
crime scene and was involved in a number of events that could have constituted aiding
and abetting the robbery and murder of Miguel Gonzalez: Dustin acted as a lookout
when Rosanna Beckham lured the victim into the alley where he was assaulted, and there
was evidence Dustin knew the plan involved robbing the victim. Dustin was present
during the robbery and helped open the vehicle trunk where Gonzalez was placed. In
response to defendant’s inquiry concerning where to take Gonzalez, Dustin suggested the
walnut orchard in which Gonzalez ultimately was beaten to death, and there was evidence
Dustin removed the victim from the trunk of the vehicle. Dustin’s acts, however, do not
establish he was an accomplice to robbery as a matter of law, because the record contains
conflicting evidence on the issue of his intent.
As noted, an accomplice is one who aids or promotes the perpetrator’s crime with
knowledge of the perpetrator’s unlawful purpose and an intent to assist in the
commission of the target crime, and an accomplice may be guilty of the target crime and
also of other crimes that are considered the natural and probable consequence of the
target crime. (People v. Avila, supra, 38 Cal.4th at p. 564; People v. Prettyman (1996) 14
Cal.4th 248, 260; People v. Beeman (1984) 35 Cal.3d 547, 560.)
Dustin’s status as an accomplice turned on whether he rendered aid with the intent
to further the perpetrator’s criminal purpose. Although there was evidence in support of
the conclusion that Dustin had the requisite intent with respect to both the robbery and
the murder, the evidence was not uncontradicted. Defendant focuses upon Dustin’s
liability as an aider and abettor of the robbery of the victim, reasoning that Dustin’s
liability for the victim’s murder under a felony-murder theory would follow once his
liability for the victim’s robbery was established. But Dustin denied he had the intent to
further defendant’s criminal purpose, claiming he was present with defendant on Belmont
Street, knowing of defendant’s intent to rob but being present solely to oversee Rosanna’s
safety. In addition, there was evidence that Dustin, then 18 years of age, was present at
the Drakes’ home while defendant, then 29 years of age, was dominating those inside
through a reign of terror, and that Dustin had been asked for assistance by Rosanna and
Defendant contends Dustin admitted he went with defendant and Rosanna to
Belmont Street while she was used to lure prospective robbery victims, but contrary to
defendant’s claim, Dustin’s statement that his purpose was “[t]o make sure [Rosanna]
was okay” does not necessarily constitute an admission he intended to serve as a lookout
or otherwise facilitate her participation in the commission of a robbery. Defendant
claims other evidence established Dustin’s status as an accomplice as a matter of law,
referring to Dustin’s “participation in the loading of the still-alive [victim] into the trunk,
his acceptance of part of the loot, his suggestion of the orchard as a fine place to head off
to, his participation in unloading [the victim] from the truck, and his facilitation of the
departure from the orchard by prevailing upon and paying for a friend to give the car a
jump start.” Again, although there was evidence in support of the conclusion that Dustin,
possessing a mental state that would render him an accomplice, aided in the commission
of the crimes, we cannot say there is no reasonable dispute concerning the relevant facts.
Moreover, even if we were to assume the trial court erred in refraining from
instructing the jury to view Dustin as an accomplice as a matter of law, such error was
harmless because there was sufficient corroborating evidence. “Corroborating evidence
may be slight [and] may be entirely circumstantial” (People v. Hayes, supra, 21 Cal.4th
at p. 1271), and although that evidence must implicate the defendant in the crime and
relate to proof of an element of the crime, it need not be sufficient to establish all the
elements of the crime. (People v. Slaughter (2002) 27 Cal.4th 1187, 1204.) Testimony
given by witnesses other than Dustin clearly was sufficient to corroborate key aspects of
his testimony and to connect defendant to the crimes. Rosanna Beckham described how
defendant used her to lure Gonzalez to the alley for the purpose of robbery, and, like
Dustin, testified that defendant, Franklin, Dustin, and she transported the victim against
his will to the orchard where he was fatally beaten. The responding law enforcement
officers testified that when the police arrived subsequent to the murder and surrounded
the residence where the victim’s damaged, bloodstained vehicle was parked, defendant
tried to depart from the residence through a back window. Upon defendant’s arrest, the
officers removed Gonzalez’s California identification card from the pants defendant was
wearing. Stephen O’Clair, the prosecution’s criminologist, testified that defendant’s
gloves, pants, and shoes bore dried blood consistent with that of the victim. Although
defendant did not testify at trial, the prosecution introduced the statement he gave to
Fresno Police Department Detective Tom Sanchez, in which defendant implicated
himself in the robbery and other offenses, and also introduced defendant’s letter to Jerry
Franklin, in which he also implicated himself in the crimes. In light of this
overwhelming corroborating evidence, we discern no prejudice related to the trial court’s
decision not to instruct the jury to view Dustin as an accomplice as a matter of law and
“[f]or the same reason, we reject defendant’s further contention that the trial court’s
failure to instruct . . . violated his federal constitutional right to due process of law.”
(People v. Frye (1998) 18 Cal.4th 894, 966.) The same may be said of defendant’s claim
that any error rendered the penalty determination unreliable in violation of the Eighth
Amendment to the United States Constitution.
b. Whether the trial court prejudicially erred in instructing
the jury to view defendant’s confession and admissions with
As noted above, the prosecution introduced two tape-recorded statements made by
defendant to Fresno Police Department Detective Tom Sanchez shortly after defendant
was arrested. Although defendant initially denied or attempted to minimize his
involvement in the crimes that occurred on February 17-18, 1991, he eventually
acknowledged participating in all of them except for the murder of Miguel Gonzalez and
the alleged rapes of Rosanna Beckham. The tapes were played for the jury.
At the conclusion of the guilt phase, the trial court instructed the jury that
“[e]vidence of an oral confession or an oral admission of the defendant should be viewed
Defendant contends the trial court erred in instructing the jury to view his oral
confession and admissions with caution, because reasonable jurors would have
interpreted the instruction as directing them to view defendant’s version of the relevant
events with skepticism, notwithstanding the circumstance that defendant’s statements
“included both inculpatory admissions, exculpatory statements, and admissions of
culpability that mitigated the extent of [defendant’s] involvement in the crime.” He relies
upon our determination that such an instruction should not be given when the defendant’s
statements were tape-recorded and the tape recording was played for the jury. (See
People v. Slaughter, supra, 27 Cal.4th at p. 1200.) He claims a violation of his right to
due process of law, a fair trial, and a reliable penalty determination.
“When evidence is admitted establishing that the defendant made oral admissions,
the trial court ordinarily has a sua sponte duty to instruct the jury that such evidence must
be viewed with caution. [Citation.] We have explained, however, that ‘the purpose of
the cautionary instruction is to assist the jury in determining if the statement was in fact
made. [Citation.]’ [Citation.] Accordingly, we also have held that this cautionary
instruction should not be given if the oral admission was tape-recorded and the tape
recording was played for the jury.” (People v. Slaughter, supra, 27 Cal.4th at p. 1200.)
Although defendant is correct that the trial court should not have so instructed the
jury for the reasons he has asserted, the error was harmless.
Defendant’s contention that he was prejudiced because the jury would have
understood the instruction as a basis for discounting the exculpatory elements of his
statements is unavailing. As we have explained under similar circumstances: “To the
extent that defendant’s admissions were inculpatory, it is clear that defendant could not
have been prejudiced by the giving of an instruction that the jury should view this
evidence with caution. Defendant contends, however, that he suffered prejudice because
there is a reasonable likelihood that the instruction caused the jury to view with suspicion
the exculpatory portions of defendant’s statements. The instruction, however, defined an
admission as an out-of-court statement by defendant ‘which tends to prove guilt.’ ‘In
light of the definition of “admission,” if the jury determines a statement does not tend to
prove guilt when considered with the other evidence, it is not an admission. The
cautionary language instructs the jury to view evidence of an admission with caution. By
its terms, the language applies only to statements which tend to prove guilt and not to
statements which do not.’ [Citation.] ‘Juries understand that this instruction by its terms
applies only to statements tending to prove guilt, not to exculpatory ones. To the extent a
statement is exculpatory it is not an admission to be viewed with caution. [Citation.]’ ”
(People v. Slaughter, supra, 27 Cal.4th at p. 1200.)
Defendant contends our holding in People v. Slaughter, supra, 27 Cal.4th 1187, is
distinguishable because the defendant’s statements in that case primarily were
exculpatory. Defendant claims his own statements comprised a mosaic of inculpatory,
exculpatory, and explanatory material. We reject his argument. Neither our reasoning
nor our conclusion in the Slaughter decision turned on the proportion of the defendant’s
statements that was exculpatory. As in the Slaughter case, defendant’s statements to
Detective Sanchez included both inculpatory and exculpatory aspects and, as in our
Slaughter decision, we are confident the jury understood the instruction did not apply to
the exculpatory aspects of defendant’s statements. Defendant could not have been
prejudiced by the erroneous giving of the instruction to view his admissions with caution.
Nor are we persuaded that the trial court’s instruction to the jury to view
defendant’s oral confession and admissions with caution constituted improper comment
upon the evidence. Defendant relies upon Quercia v. United States (1933) 289 U.S. 466,
in which the high court found reversible error because the trial court gave its opinion of
the defendant’s testimony based upon the court’s personal experience. The trial court
stated that the defendant “wiped his hands during his testimony,” advising the jury that it
had been established as “fact” that such conduct “almost always [is] an indication of
lying.” (Id. at p. 468.) The high court concluded the trial court’s remarks did not
constitute a review of the evidence that would assist the jury in its task, but rather
constituted a statement that broadly denounced the defendant’s testimony as a lie. By
contrast, the court in the present case did not offer its opinion concerning the evidence or
rely on its personal experience to undermine the credibility of the defense case. The
court merely instructed the jury with a pattern instruction, and did not embellish that
instruction with the sort of improper, gratuitous remarks found objectionable in the
As we also concluded in People v. Slaughter, supra, 27 Cal.4th 1187, “the trial
court’s error in instructing the [guilt phase] jury to view with caution defendant’s tape-
recorded admissions was harmless. It is not reasonably probable the guilt phase jury
would have reached a result more favorable to defendant had the instruction not been
given [citation], and there is no reasonable possibility that the . . . penalty phase jury
would have rendered a different verdict in the absence of the error[.] [Citation.]” (Id. at
p. 1201.) Defendant advances no persuasive reason for this court to reach a different
result in the present case, nor does his reference to his right to due process of law or a fair
trial aid his position. Defendant contends also that his right to a reliable penalty
determination was impaired because the instruction did not permit full consideration of
mitigating evidence but, as explained, the instruction did not impede the jury’s
consideration of the exculpatory portions of the statements.
c. Instruction pursuant to CALJIC. No. 2.01
Defendant contends the trial court erred by instructing the jury pursuant to
CALJIC No. 2.01, which addresses the sufficiency of circumstantial evidence
generally.31 He asserts the instruction undermined the requirement that the prosecution
After instructing that facts may be proved by direct or circumstantial evidence, the
trial court instructed the jury as follows: “However, a finding of guilt as to any crime
may not be based on circumstantial evidence unless the proved circumstances are not
only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot
be reconciled with any other rational conclusion.
“Further, each fact which is essential to complete a set of circumstances necessary
to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other
words, before an inference essential to establish guilt may be found to have been proved
beyond a reasonable doubt, each fact or circumstance upon which such inference
necessarily rests must be proved beyond a reasonable doubt.
“Also, if the circumstantial evidence as to any particular count is susceptible of
two reasonable interpretations, one of which points to the defendant’s guilt and the other
to his innocence, you must adopt that interpretation which points to defendant’s
innocence, and reject that interpretation which points to his guilt.
(footnote continued on next page)
establish defendant’s guilt beyond a reasonable doubt by “not only allow[ing] but
actually compel[ling], the jury to find [defendant] guilty on all counts and to find the
special circumstances to be true using a standard lower than proof beyond a reasonable
doubt,” and by “shift[ing] the burden of proof to [defendant] by creating a mandatory
rebuttable presumption that the prosecution’s interpretation of the evidence was correct if
that interpretation appeared reasonable and [defendant] did not produce another
reasonable interpretation pointing toward his innocence.” Defendant asserts that the
instruction thus violated his constitutional rights to due process of law, trial by jury, and a
reliable penalty determination.
In support of his position, defendant cites the italicized language noted in the
margin (see ante, fn. 31), asserting that it allowed a finding of guilt (or the truth of a
special circumstance allegation) based upon a degree of proof lesser than proof beyond a
reasonable doubt, and that the instruction operated as an impermissible mandatory
presumption. We repeatedly have rejected substantially identical claims (see, e.g.,
People v. DePriest (2007) 42 Cal.4th 1, 52, and cases cited), and because defendant has
not presented any persuasive reason for us to reconsider those rulings, we decline to do
B. PENALTY PHASE ISSUES
1. Whether the Trial Court Improperly Limited Opinion Evidence
Regarding Imposition of the Death Penalty
Defendant’s former girlfriend, Tina Lott, with whom he resided for a period of
approximately one year, testified briefly on behalf of the prosecution regarding an
(footnote continued from preceding page)
“If, on the other hand, one interpretation of such evidence appears to you to be
reasonable and the other interpretation to be unreasonable, you must accept the
reasonable interpretation and reject the unreasonable.” (Italics added.)
incident that occurred in September 1987, approximately three years before she last saw
defendant (and approximately five years prior to trial). She recalled that defendant
became angry at her when she indicated she would return a borrowed VCR to a
coworker. The dispute escalated, and according to her testimony she and defendant “had
a confrontation inside the lobby [of Lott’s employer’s business] and he punched me to the
side of the ribs. . . .”
Over the prosecution’s objection that the defense was inviting error, defense
counsel on recross-examination inquired of Lott why she was testifying, asking her
whether “you would like to see [defendant] killed . . .” and “[w]hat type of man is Dexter
Williams?” Defense counsel argued that the sought-after testimony constituted
“character evidence at a penalty phase,” citing section 190.3, factor (k).32
The trial court rejected defense counsel’s position, describing as irrelevant Lott’s
opinion whether defendant should be executed. The trial court observed: “[Lott’s]
opinion is not relevant on that issue. Victim impact evidence is. The type of trauma she
had. How she dealt with the trauma . . . . [¶] She is not a juror in this case and her
opinion as to [whether defendant should be executed] is irrelevant. You can parade a
hundred witnesses up here all saying whether or not they feel [defendant] should get the
death penalty. I know of no case, and I have read a lot of them, that permits that
question.” The court further observed that counsel had not laid a foundation for
establishing that Lott was a family member, and in the absence of such a foundation,
eliciting her opinion would be improper.
Section 190.3 provides in pertinent part: “In determining the penalty, the trier of
fact shall take into account any of the following factors if relevant: [¶] . . . [¶] (k) Any
other circumstance which extenuates the gravity of the crime even though it is not a legal
excuse for the crime.”
On appeal, defendant contends that the trial court erred in limiting the testimony
that could be elicited from Lott, and that the asserted error violated defendant’s
constitutional rights to due process of law, trial by jury, and to a reliable penalty
determination. Specifically, defendant argues that the court’s limitations on the questions
that could be posed to Lott improperly limited his presentation of evidence in mitigation
and also precluded defendant’s friends and family from making pleas for mercy. In
support, he relies upon People v. Ervin (2000) 22 Cal.4th 48, in which we discussed a
claim that testimony from a witness “with whom [the] defendant assertedly had a
significant relationship, that [the] defendant deserves to live, is proper mitigating
evidence as ‘indirect evidence of the defendant’s character.’ ” (Id. at p. 102; see also
People v. Mickle (1991) 54 Cal.3d 140, 194; People v. Heishman (1988) 45 Cal.3d 147,
194.) On the other hand, the view that a crime victim takes of the defendant’s proper
punishment “has no bearing on the defendant’s character or record or any circumstance
of the offense. [Citation.] Hence, the Eighth Amendment to the United States
Constitution does not compel admission of those views.” (People v. Smith (2003) 30
Cal.4th 581, 622.)
In the present case, Lott was both a victim of defendant’s past criminal conduct
within the meaning of People v. Smith, supra, 30 Cal.4th 581, and, according to
defendant, someone with whom defendant had a significant relationship within the
meaning of People v. Ervin, supra, 22 Cal.4th 48. Emphasizing the former close
relationship between Lott and defendant, defendant contends the trial court erred in
limiting the scope of the questions posed by defense counsel to Lott.
We need not determine whether Lott — a former girlfriend who had not seen
defendant for several years prior to trial — in fact was someone whose relationship with
defendant was sufficiently close to permit her to testify regarding the impact defendant’s
execution might have upon her, or whether, by contrast, Lott should be viewed as one of
defendant’s victims. Nor do we need to determine whether the trial court erred in
directing counsel to lay a further foundation to establish the nature of Lott’s relationship
with defendant. Even if we were to assume error, defendant clearly suffered no
prejudice. Upon inquiring of Lott outside the jury’s presence whether the execution of
defendant would have any impact upon her, and learning that it would not, defense
counsel elected not to elicit further testimony from Lott. Had counsel asked such a
question of Lott and received the same response during the testimony she gave in the
presence of the jury, such testimony at best would have been of no help to defendant and
more likely would have harmed his case. 33
Defendant asserts that the trial court’s ruling reached beyond Lott’s testimony,
categorically barring the defense from presenting any plea for mercy from defendant’s
family and friends. As noted, prior cases establish that the defense may elicit testimony
from a defendant’s family member or close friend stating the witness’s opinion that the
defendant deserves to live, because such opinion evidence reflects indirectly upon the
defendant’s character. (People v. Smith, supra, 30 Cal.4th at pp. 622-623.)
We do not read the record as reflecting a broad ruling concerning all potential
mitigating testimony from defendant’s family and friends. The court was asked to
determine the relevance of Lott’s opinion, and its statement that “[y]ou can parade a
hundred witnesses up here all saying whether or not they feel [defendant] should get the
death penalty” did not constitute consideration of, or a ruling upon, the relevance of
testimony from defendant’s relatives or close friends, whose desire that defendant not be
executed would reflect upon his character. The court also invited defense counsel to
Outside the jury’s presence, defense counsel inquired of Lott whether “it would
have an impact on you if [defendant were] put to death, and if so what would that impact
be?” Lott responded that “[i]t would not have an impact on me.” Defense counsel
informed the court of the exchange, and shortly thereafter advised that after “rethinking
my position[,] I do not want to ask Miss Lott any more questions.” The court excused the
present additional evidence of Lott’s relationship with defendant. Moreover, contrary to
defendant’s contention that the court believed and instructed counsel that only relatives,
but not persons standing in a significant relationship with the defendant, could provide
the contested type of opinion testimony, defendant’s friend of 18 years was permitted to
testify that he would feel “sad and hurt” if defendant were executed. Nor is there any
suggestion in the record that, when defense counsel examined the defense character
witnesses, counsel felt constrained by the court’s remarks to avoid questions concerning
the witnesses’ opinion whether defendant should be given the death penalty.
Even assuming without deciding that the court’s ruling limiting counsel’s
questions was error, it clearly was harmless beyond a reasonable doubt. (See People v.
Lewis (2006) 39 Cal.4th 970, 1058 [setting forth standard of review]; People v. Stanley
(1995) 10 Cal.4th 764, 826 [same].) The defense in fact called defendant’s mother,
stepfather, aunt, uncle, and two cousins, all of whom testified concerning the grief
defendant’s execution would cause them — and all without objection from the
prosecution. As noted, a friend who was not a family member gave similar testimony.
The jury clearly would have inferred from the testimony of these witnesses that they did
not want defendant to be sentenced to death. (People v. Stanley, supra, 10 Cal.4th at p.
2. Failure to Instruct That a Sentence of Life Imprisonment
Without the Possibility of Parole Meant That Defendant Would
Remain in Prison for the Remainder of His Life
Prior to the voir dire examination of the prospective jurors, the defense moved in
limine for an instruction that would inform the panel that if defendant were sentenced to
life imprisonment without the possibility of parole, jurors should understand “that a
sentence of life without the possibility of parole means exactly what it says.”34
Prior to ruling on the written motion, the court inquired whether the defense would
be satisfied with an instruction given during voir dire, or “is that something that you
would like to instruct in the second phase [of trial] because it is somewhat irrelevant to
the first phase [of trial]?” Defense counsel responded that an instruction to be given “in
the voir dire script is fine. I know that the subject is going to come up in jury voir dire. It
always does. . . . I just want some assurance from the court when that comes up in the
jury voir dire, as I believe it will, that it won’t just be [defense counsel] telling them that
life without parole means life without parole, but that the judge can intervene at that point
and let them know that they are to assume for purposes of this case that life without
parole means what it says it means.”
During the ensuing voir dire examination, the trial court instructed potential jurors
that defendant was presumed innocent, that a penalty phase of the trial might never be
reached, and that if a penalty phase were reached, the jury’s choices of punishment would
Defendant’s motion in limine requested the instruction be given to “potential
jurors” on voir dire. The People contend here that the motion was limited to “only”
potential jurors and that defendant forfeited his claim that the instruction should have
been given prior to the penalty phase of the trial. The motion was ambiguous on this
point. Although it is true that defendant’s “Notice of Motion and Motion to Pre-Instruct
Jury on Parole Misconception” asked the court “to pre-instruct potential jurors on the
penalty of Life Without Possibility of Parole,” defendant’s moving papers prayed “that if
the case proceeds to a penalty phase this court preinstruct the jury that persons such as
Charles Manson were sentenced under a different scheme and that the current scheme
provides for a sentence of life without the possibility of parole. Should the jury reach the
point where they have to determine the appropriate punishment, they must make this
decision with the understanding that a sentence of life without the possibility of parole
means exactly what it says.” (Italics added.) In light of this ambiguity, we reject the
People’s characterization of defendant’s request and reach the merits of defendant’s
be limited to death or life imprisonment without the possibility of parole. In response to
the defense request noted above, and using an instruction authored by defense counsel,
the court instructed the potential jurors as follows: “In making your decision on this
matter, you must assume that if you vote for death that sentence will be carried out. Or if
you vote for life without parole, the defendant will remain in prison for the rest of his life.
To make a decision based upon an assumption that the penalty you select will not occur
would be a direct violation of your duty as jurors.”
Defendant now contends the trial court additionally should have instructed jurors
at the penalty phase of the trial that they should assume a sentence of life imprisonment
without the possibility of parole would mean defendant never would be released from
prison. Defendant asserts he requested the instruction be given at the penalty phase, that
the court’s pretrial instruction to prospective jurors was inadequate, that the instruction
would not have been remembered by the actual jurors nearly three months later, and that,
in any event, the court had a sua sponte duty to provide the instruction. He further argues
the court’s failure to so instruct violated his constitutional rights to due process of law,
trial by jury, and a reliable penalty determination. As we explain, defendant’s claims are
In response to the trial court’s inquiry whether defendant sought a pretrial
instruction or a penalty phase instruction, defense counsel made clear that the request
would be satisfied if potential jurors during the voir dire examination were informed that
they are to “assume for purposes of this case that life without parole means what it says it
means.” But even assuming the defense request encompassed a request for penalty phase
instructions (see fn. 34, ante), no error appears.
“Although it is not improper to instruct the jury to assume that whatever penalty it
selects will be carried out [citation], an instruction phrased in this qualified language [the
defendant claimed the court should have instructed the jury to assume, if it returned a
verdict of death, that the penalty of death would be carried out] may unnecessarily raise
questions in the jurors’ minds. Therefore, we have not required that trial courts so
instruct the jury in every penalty phase. The trial court may give the instruction at the
defendant’s request and should give this or a comparable instruction if there is a reason to
believe the jury may have some concerns or misunderstanding in this regard. [Citations.]
[¶] This court has noted that brief references to commutation and similar possibilities
during jury selection are generally insufficient to mandate clarifying instructions at the
penalty phase. [Citations.]” (People v. Kipp (1998) 18 Cal.4th 349, 378-379.)
In People v. Smith, supra, 30 Cal.4th 581, we rejected a claim that is substantially
similar to defendant’s. In that case, the defendant requested that the jury be instructed as
follows: “ ‘Life without the possibility of parole means exactly that and jurors are not to
assume anything other than death means death by execution in the gas chamber; life
without the possibility of parole means imprisonment for the rest of [the defendant’s]
natural life.’ ” (Id. at p. 635.) We concluded the court had not erred in refusing the
instruction, reasoning that the pattern instruction adequately informs the jury and that,
indeed, to instruct the jury that it must assume that a sentence of life without the
possibility of parole means the defendant will be imprisoned for the rest of his or her life
is inaccurate because it fails to acknowledge that the Governor retains the power of
Defendant’s claim of error is rejected on the same reasoning. We note, too, that
the record in the present case “does not demonstrate a plausible basis to infer jury
concerns or misunderstanding about the consequences of its penalty verdict.” (People v.
Kipp, supra, 18 Cal.4th at p. 379.)
Defendant contends the instruction he requested did not call upon the jury to
assume the punishment inexorably would be carried out, thereby distinguishing it from
our prior cases. The instruction defendant requested was basically identical to the one we
criticized in People v Smith, supra, 30 Cal.4th 581, however.
Defendant contends a court’s obligation to give such an instruction cannot depend
upon whether the jury has manifested confusion, citing Kelly v. South Carolina (2002)
534 U.S. 246. In that case, the United States Supreme Court applied its holding in Shafer
v. South Carolina (2001) 532 U.S. 36 — that South Carolina juries may not be instructed
simply that their sentencing choice lies between life imprisonment and death, but also
must be informed that, under state law, a life sentence entails life in prison without the
possibility of parole. In the Kelly decision, the court explained that the trial court’s
obligation to supply such an instruction does not depend upon whether the jury asked
questions or manifested confusion on the subject. In other words, the court had a duty to
so instruct the jury on its own motion. (Kelly v. South Carolina, supra, 534 U.S. at
p. 256.) The high court, however, certainly did not proclaim that courts have a duty to
instruct on their own motion as proposed by defendant when, reflecting state law, the
pattern instruction already informs the jury of the defendant’s ineligibility for parole. As
we have explained, unlike the situation in South Carolina, the California pattern
instruction itself adequately informs the jury. (People v. Prieto, supra, 30 Cal.4th at pp.
270-271.) We therefore reject defendant’s claim that the trial court erred in failing to
instruct the jury on the meaning of life imprisonment without the possibility of parole
and, for the reasons discussed in the cases cited above, we also reject his claim that
failure to so instruct the jury constituted a violation of his right to due process of law, to a
fair trial, and to a reliable penalty determination. (People v. Smithey (1999) 20 Cal.4th
936, 1010 [rejecting a similar claim based upon due process and 8th Amend. concerns];
People v. Roybal (1998) 19 Cal.4th 481, 525, fn. 16 [rejecting a similar claim that such
asserted instructional error violated the defendant’s rights under the U.S. Const., 5th, 8th,
& 14th Amends.].)
3. Challenges to the Death Penalty Law
Defendant contends that several features of California’s capital sentencing
scheme, alone or in combination, violate the federal Constitution. We previously have
rejected similar challenges, and because defendant has not presented a persuasive reason
for us to reconsider those rulings, we decline to do so.
The sentencing guidelines set forth in section 190.3 sufficiently narrow the class
of homicide offenders who are eligible for the death penalty. (People v. Tafoya (2007)
42 Cal.4th 147, 197; People v. Manriquez (2005) 37 Cal.4th 547, 589; People v. Michaels
(2002) 28 Cal.4th 486, 541.) Section 190.3, factor (a) is not overbroad on its face or as
applied (People v. Robinson (2005) 37 Cal.4th 592, 655), nor does it allow for the
arbitrary and capricious imposition of the death penalty. (Ibid.; People v. Manriquez,
supra, 37 Cal.4th at p. 589; People v. Carter, supra, 36 Cal.4th at p. 1278; People v.
Morrison (2004) 34 Cal.4th 698, 730-731; People v. Jenkins (2000) 22 Cal.4th 900,
California’s capital sentencing scheme as a whole provides adequate safeguards
against the imposition of arbitrary or unreliable death judgments (see People v. Ray
(1996) 13 Cal.4th 313, 360; People v. Rodriguez (1986) 42 Cal.3d 730, 777-779); nothing
in the federal Constitution requires the penalty phase jury to (1) make written findings of
the factors it finds in aggravation and mitigation (People v. Manriquez, supra, 37 Cal.4th
at p. 590; People v. Maury (2003) 30 Cal.4th 342, 440); (2) agree unanimously that a
particular aggravating circumstance exists (People v. Tafoya, supra, 42 Cal.4th at p. 197;
People v. Manriquez, supra, 37 Cal.4th at p. 590); (3) find all aggravating factors proved
beyond a reasonable doubt or by a preponderance of the evidence (People v. Tafoya,
supra, 42 Cal.4th at p. 197; People v. Manriquez, supra, 37 Cal.4th at p. 589; People v.
Welch (1999) 20 Cal.4th 701, 767); (4) find that aggravation outweighs mitigation
beyond a reasonable doubt (People v. Manriquez, supra, 37 Cal.4th at p. 589; People v.
Welch, supra, 20 Cal.4th at p. 767); or (5) conclude beyond a reasonable doubt that death
is the appropriate penalty. (People v. Manriquez, supra, 37 Cal.4th at p. 589; People v.
Holt (1997) 15 Cal.4th 619, 683.)
“Nor is the trial court required to instruct as to standard of proof. [Citations.]
Here, the jury was instructed that ‘[t]o 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 possibility of
parole.’ That is sufficient. [Citations.] ‘Unlike the guilt determination, “the sentencing
function is inherently moral and normative, not factual” [citation] and, hence, not
susceptible to a burden-of-proof quantification.’ [Citation.] The United States Supreme
Court decisions rendered in Ring v. Arizona (2002) 536 U.S. 584 and Apprendi v. New
Jersey (2000) 530 U.S. 466 do not compel a different conclusion. [Citations.]” (People
v. Manriquez, supra, 37 Cal.4th at p. 589 [discussing a jury instruction virtually identical
to that given here]; see also People v. Stevens (2007) 41 Cal.4th 182, 212 [rejecting
similar claim based upon Cunningham v. California (2007) 549 U.S. 270; People v.
Prince, supra, 40 Cal.4th at pp. 1297-1298 [same]; People v. Welch, supra, 20 Cal.4th at
Intercase proportionality review is not required. (People v. Tafoya, supra, 42
Cal.4th at p. 197; People v. Welch, supra, 20 Cal.4th 701.) Consideration during the
penalty phase of unadjudicated criminal activity is permissible. (People v. Manriquez,
supra, 37 Cal.4th at p. 590; People v. Brown (2004) 33 Cal.4th 382 402; People v. Prieto,
supra, 30 Cal.4th at p. 276; People v. Kipp, supra, 26 Cal.4th at p. 1138.)
Section 190.3, factors (d) (“extreme emotional disturbance”) and (g) (“extreme
duress or [acting] under the substantial domination of another person”) are not
impermissibly vague on the ground they require a subjective determination of the
meaning of the words “extreme” and “substantial,” nor do they act as a barrier to
consideration of evidence in mitigation. (People v. Tafoya, supra, 42 Cal.4th at pp. 197-
198; People v. Arias (1996) 13 Cal.4th 92, 188-189; People v. Stanley, supra, 10 Cal.4th
764, 842; People v. Clark (1992) 3 Cal.4th 41, 163.)
The trial court did not err in failing to label the sentencing factors as aggravating
or mitigating, and such factors are not unconstitutional simply because they do not
specify which are aggravating and which are mitigating. (People v. Carey (2007) 41
Cal.4th 109, 137; People v. Williams, supra, 16 Cal.4th at p. 269; People v. Bradford
(1997) 15 Cal.4th 1229, 1383; People v. Samayoa (1997) 15 Cal.4th 795, 862.)
California’s capital sentencing procedures do not violate principles of equal
protection of the law on the ground they provide safeguards different from those found in
noncapital cases. (People v. Stevens, supra, 41 Cal.4th at p. 212; People v. Carey, supra,
41 Cal.4th at p. 136; People v. Ramos (1997) 15 Cal.4th 1133; People v. Cox (1991) 53
Cal.3d 618, 691.)
Finally, “[w]e reject defendant’s argument that the death penalty statute is contrary
to international norms of humanity and decency . . . . Defendant points to no authority
that ‘prohibit[s] a sentence of death rendered in accordance with state and federal
constitutional and statutory requirements.’ ” (People v. Stevens, supra, 41 Cal.4th at
p. 213; see also People v. Moon (2005) 37 Cal.4th 1, 47-48.) In view of his failure to
establish that his trial was not conducted in accordance with state or federal constitutional
law, defendant also fails to establish a violation of international law. (People v.
Hillhouse (2002) 27 Cal.4th 469, 513.)
C. ASSERTED CUMULATIVE ERROR
Defendant contends the cumulative effect of the asserted errors committed at the
guilt and penalty phases of his trial led to a miscarriage of justice and constituted
structural error in the trial, requiring reversal of the guilt and penalty phase judgments.
He claims errors rendered the trial fundamentally unfair and deprived him of his rights to
due process of law, a fair jury trial, and a reliable penalty determination in violation of
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Having determined that defendant’s trial was virtually free of error, and that, to the extent
error was committed, it was harmless, we conclude there is no merit in his claims of
cumulative error, including his claim that the cumulative impact of error lightened the
prosecution’s burden of proof.
We affirm the judgment in its entirety.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Williams
Original Appeal XXX
Opinion No. S052520
Date Filed: May 5, 2008
Judge: Gary S. Austin
Attorneys for Appellant:
Barry L. Morris, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General,
Mary Jo Graves, Assistant Attorney General, Janis Shank McLean, Patrick J. Whalen and David A. Rhodes, Deputy
Attorney General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Barry L. Morris
1260 B Street, Suite 240
Hayward, CA 94541
David A. Rhodes
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
Automatic appeal from a judgment of death.
|Date:||Citation:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Mon, 05/05/2008||43 Cal. 4th 584, 181 P.3d 1035, 75 Cal. Rptr. 3d 691||S052520||Automatic Appeal||closed; remittitur issued|| |
WILLIAMS (DEXTER W.) ON H.C. (S128008)
|1||The People (Respondent)|
Represented by Attorney General - Sacramento Office
David A. Rhodes, Deputy Attorney General
P.O. Box 944255
|2||Williams, Dexter Winfred (Appellant)|
San Quentin State Prison
Represented by Barry L. Morris
Attorney at Law
1220 Oakland Blvd., Suite 200
Walnut Creek, CA
|3||Williams, Dexter Winfred (Appellant)|
San Quentin State Prison
Represented by Chuck Nacsin
Attorney at Law
350 W. Fifth Street, Suite 101
San Bernardino, CA
|May 5 2008||Opinion: Affirmed|
|Feb 28 1996||Judgment of death|
|Mar 22 1996||Filed certified copy of Judgment of Death Rendered|
|Apr 1 1996||Application for Extension of Time filed|
By CSR Lisa Tow to Complete R.T.
|Apr 1 1996||Application for Extension of Time filed|
By CSR Leslie Bjerke to Complete R.T.
|Apr 3 1996||Extension of Time application Granted|
To Court Reporters To 5-20-96 To Complete R.T.
|Apr 5 1996||Application for Extension of Time filed|
By Court Reporter Renee Torres to Complete R.T.
|Apr 8 1996||Extension of Time application Granted|
To Court Reporter To 4-26-96 To Complete R.T.
|Apr 8 1996||Application for Extension of Time filed|
By Court Reporter Rudy Garcia to Complete R.T.
|Apr 9 1996||Extension of Time application Granted|
To Court Reporter To 4-26-96 To Complete R.T.
|Apr 30 1996||Application for Extension of Time filed|
By Court Reporter Rudy Garcia to Complete R.T.
|May 1 1996||Extension of Time application Granted|
To Court Reporter To 5-26-96 To Complete R.T.
|Dec 15 1999||Counsel appointment order filed|
Upon request of Applt for appointment of Counsel, Barry L. Morris Is Hereby appointed to represent Applt Dexter Winfred Williams for the direct Appeal in the Above Automatic Appeal now Pending in this Court.
|Mar 14 2000||Application for Extension of Time filed|
By Applt to request Corr. of the Record.
|Mar 22 2000||Filed:|
Suppl Proof of Service of request for Eot to request correction of the Record.
|Mar 23 2000||Extension of Time application Granted|
To 5/30/2000 To Applt To request Corr. of the Record.
|Mar 27 2000||Received letter from:|
Superior Court; dated 3/22/2000; Re Advising Record Was sent to Applt Counsel on 12/27/99.
|Apr 20 2000||Compensation awarded counsel|
|Jun 30 2000||Received:|
Copy of Applt's request for Add. Record on Appeal, to Examine Sealed Transcripts and Exhibits and to correct the Record on Appeal
|Aug 7 2000||Counsel's status report received (confidential)|
from atty Morris.
|Oct 16 2000||Counsel's status report received (confidential)|
from atty Morris.
|Nov 3 2000||Record on appeal filed|
C-31 (8,275 pps.) & R-85 (8,421) including material under seal; Clerk's Transcript includes 5,042 pages of Juror Questionnaires.
|Nov 3 2000||Appellant's opening brief letter sent, due:|
|Nov 14 2000||Compensation awarded counsel|
|Dec 15 2000||Application for Extension of Time filed|
To file AOB. (1st request)
|Dec 20 2000||Extension of Time application Granted|
To 2/13/2001 to file AOB.
|Feb 13 2001||Application for Extension of Time filed|
To file AOB. (2nd request)
|Feb 16 2001||Extension of Time application Granted|
To 3/15/2001 to file AOB.
|Mar 1 2001||Counsel's status report received (confidential)|
from atty Morris.
|Mar 15 2001||Application for Extension of Time filed|
To file AOB. (3rd request)
|Mar 16 2001||Extension of Time application Granted|
To 4/16/2001 to file AOB.
|Apr 17 2001||Application for Extension of Time filed|
To file AOB. (4th request)
|Apr 30 2001||Extension of Time application Granted|
To 5/16/2001 to file AOB.
|Apr 30 2001||Filed:|
Supplement to request for extension of time.
|May 11 2001||Counsel's status report received (confidential)|
from atty Morris.
|May 21 2001||Application for Extension of Time filed|
to file AOB. (5th request)
|May 22 2001||Extension of Time application Granted|
To 6/15/2001 to file AOB.
|Jun 19 2001||Counsel's status report received (confidential)|
from atty Morris.
|Jun 19 2001||Application for Extension of Time filed|
To file AOB. (6th request)
|Jun 21 2001||Extension of Time application Granted|
to 8-14-2001 to file AOB.
|Aug 14 2001||Application for Extension of Time filed|
To file AOB. (7th request)
|Aug 15 2001||Extension of Time application Granted|
To 10/15/2001 to file AOB.
|Aug 31 2001||Counsel's status report received (confidential)|
from atty Morris.
|Oct 16 2001||Application for Extension of Time filed|
To file AOB. (8th request)
|Oct 29 2001||Filed:|
Supplemental declaration in support of application for extension of time to file AOB.
|Nov 1 2001||Extension of Time application Granted|
To 12/12/2001 to file AOB. No further extension of time is contemplated.
|Nov 6 2001||Filed:|
Suppl. declaration of service of request for extension of time to file AOB.
|Dec 18 2001||Request for extension of time filed|
To file AOB. (9th request)
|Dec 28 2001||Filed:|
Suppl. declaration in support of application for extension of time to file AOB.
|Jan 2 2002||Extension of time granted|
To 2/11/2002 to file AOB. Only one futher extension totaling 60 additional days will be granted. Counsel to infom CAP of this schedule and take all steps necessary to meet this schedule.
|Feb 14 2002||Request for extension of time filed|
To file AOB. (10th request)
|Feb 19 2002||Extension of time granted|
To 4/12/2002 to file AOB. The court anticipates that after that date, no further extensions will be granted. Counsel is ordered to inform his assisting attorney or entity, if any, and any assisting attorney or entity of this schedule, and take all steps necessary to meet this schedule.
|Mar 8 2002||Counsel's status report received (confidential)|
from atty Morris.
|Apr 16 2002||Request for extension of time filed|
To file AOB. (11th request)
|Apr 18 2002||Extension of time denied|
To file AOB.
|May 7 2002||Counsel's status report received (confidential)|
from atty Morris.
|Jun 26 2002||Compensation awarded counsel|
|Jul 2 2002||Counsel's status report received (confidential)|
from atty Morris.
|Jul 31 2002||Counsel appointment order filed|
appointing Chuck Nacsin to represent applt for habeas corpus/executive clemency proceedings related to the automatic appeal.
|Aug 21 2002||Letter sent to:|
atty Morris regarding default for failure to file AOB. Counsel to respond by return mail indicating that he will submit brief, together with an application for relief from default, on or before 8-30-2002.
|Sep 4 2002||Counsel's status report received (confidential)|
from atty Morris.
|Sep 17 2002||Application for relief from default filed|
To file appellant's opening brief.
|Sep 17 2002||Application to file over-length brief filed|
To file appellant's opening brief. (283 pp. brief submitted under separate cover on 9/16/2002)
|Sep 17 2002||Order filed|
Appellant's motion for relief from defalut to file appellant's opening brief and request to file an oversized brief are granted.
|Sep 17 2002||Appellant's opening brief filed|
|Oct 4 2002||Compensation awarded counsel|
|Oct 15 2002||Counsel's status report received (confidential)|
from atty Nacsin.
|Oct 22 2002||Request for extension of time filed|
To file respondent's brief. (1st request)
|Oct 24 2002||Extension of time granted|
To 12/16/2002 to file respondent's brief.
|Dec 5 2002||Counsel's status report received (confidential)|
from atty Nacsin.
|Dec 16 2002||Request for extension of time filed|
To file respondent's brief. (2nd request)
|Dec 23 2002||Extension of time granted|
To 2/14/2003 to fle respondent's brief. After that date, only three further extensions totaling about 135 additional days are contemplated. Extension is granted based upon Deputy Attorney General David A. Rhodes's representation that he anticipates filng that brief by 6/30/2003.
|Feb 5 2003||Counsel's status report received (confidential)|
from atty Nacsin.
|Feb 13 2003||Compensation awarded counsel|
|Feb 19 2003||Request for extension of time filed|
to file respondent's brief. (3rd request)
|Feb 24 2003||Extension of time granted|
to 4-15-2003 to file respondent's brief. After that date, only two further extensions totaling about 75 additional days are contemplated. Extension granted based upon Deputy AG David Rhodes's representation that he anticipates filing the brief by 6-30-2003.
|Apr 9 2003||Counsel's status report received (confidential)|
from atty Nacsin.
|Apr 15 2003||Request for extension of time filed|
to file respondent's brief. (4th request)
|Apr 18 2003||Extension of time granted|
to 6/16/2003 to file respondent's brief. After that date, only one further extension totaling about 45 additional days will be granted. Extension is granted based upon Deputy Attorney General David A. Rhodes's representation that he anticipates filing that brief by 7/31/2003.
|Jun 9 2003||Counsel's status report received (confidential)|
from atty Nacsin.
|Jun 16 2003||Request for extension of time filed|
to file respondent's brief. (5th request)
|Jun 24 2003||Extension of time granted|
to 8/15/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General David A. Rhodes's representation that he anticipates filing that brief by 8/15/2003. After that date, no further extension will be granted.
|Aug 6 2003||Counsel's status report received (confidential)|
from atty Nacsin.
|Aug 15 2003||Respondent's brief filed|
|Sep 8 2003||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Sep 11 2003||Extension of time granted|
to 11/3/2003 to file appellant's reply brief. The court anticiaptes that after that date, only two further extensions totaling 90 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 fo any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Oct 9 2003||Counsel's status report received (confidential)|
from attorney Nacsin.
|Nov 6 2003||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Nov 10 2003||Compensation awarded counsel|
|Nov 12 2003||Extension of time granted|
to 1/6/2004 to file appellant's reply brief. After that date, only two further extensions totaling 90 additional days will be granted. Extension is granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 3/31/2004. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any separate counsel of record, of this schedule, and to take all steps necessary to meet it. Counsel is also ordered to submit confidential status reports monthly until the filing of the appellant's reply brief.
|Dec 8 2003||Counsel's status report received (confidential)|
from atty Nacsin.
|Dec 15 2003||Counsel's status report received (confidential)|
from atty Morris.
|Jan 13 2004||Request for extension of time filed|
to file appellant's reply and request for relief from default. (3rd request)
|Jan 16 2004||Extension of time granted|
to 03/08/04. Appellant's request for relief from default is granted. Good cause appearing, and based upon counsel Barry L. Morris's representation that he anticipates filing appellant's reply brief by March 31, 2004, counsel's request for an extension of time in which to file that brief is granted to March 8, 2004. After that date, only one further extension totaling about 30 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.
|Jan 21 2004||Counsel's status report received (confidential)|
from atty Morris.
|Feb 9 2004||Counsel's status report received (confidential)|
from atty Nacsin.
|Mar 1 2004||Counsel's status report received (confidential)|
(supplemental) from atty Nacsin.
|Mar 3 2004||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|Mar 3 2004||Counsel's status report received (confidential)|
from atty Morris.
|Mar 8 2004||Filed:|
Amended proof of service of application for extension of time to file appellant's reply brief.
|Mar 8 2004||Compensation awarded counsel|
|Mar 9 2004||Extension of time granted|
to 4/1/2004 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 3/31/2004.
|Mar 30 2004||Appellant's reply brief filed|
(29,435 words; 121 pp.)
|Apr 7 2004||Counsel's status report received (confidential)|
from atty Nacsin.
|Apr 14 2004||Compensation awarded counsel|
|Jun 17 2004||Counsel's status report received (confidential)|
from atty Nacsin.
|Jun 23 2004||Compensation awarded counsel|
|Aug 18 2004||Counsel's status report received (confidential)|
from atty Nacsin.
|Sep 24 2004||Related habeas corpus petition filed (concurrent)|
case no. S128008
|Oct 12 2004||Compensation awarded counsel|
|Jan 24 2005||Compensation awarded counsel|
|Jan 26 2005||Filed:|
Supplemental declaration of atty Nacsin pursuant to Penal Code Section 1241 (confidential).
|Mar 21 2005||Filed:|
letter from atty Morris, dated 3-16-2005, with attached missing pages (178-185) of AOB.
|Jul 27 2005||Compensation awarded counsel|
|Nov 8 2005||Compensation awarded counsel|
|Dec 27 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.
|Feb 6 2008||Case ordered on calendar|
to be argued Thursday, March 6, 2008, at 1:30 p.m., in San Francisco
|Feb 11 2008||Change of contact information filed for:|
attorney Barry L. Morris.
|Feb 25 2008||Received:|
appearance sheet from Barry L. Morris, indicating 45 minutes for oral argument for appellant.
|Feb 25 2008||Received:|
appearance sheet from Deputy Attorney General, David A. Rhodes, indicating 30 minutes for oral argument for respondent.
|Feb 25 2008||Filed:|
appellant's focus issues letter, dated February 21, 2008.
|Feb 25 2008||Filed:|
respondent's focus issues letter, dated February 22, 2008.
|Mar 6 2008||Cause argued and submitted|
|Mar 17 2008||Received:|
letter from appellant, dated March 12, 2008.
|Mar 21 2008||Received:|
letter from respondent, dated March 20, 2008, regarding record citations.
|Apr 23 2008||Compensation awarded counsel|
|May 2 2008||Notice of forthcoming opinion posted|
|May 5 2008||Opinion filed: Judgment affirmed in full|
opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
|May 21 2008||Rehearing petition filed|
by appellant. (588 words; 2 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 1, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
|May 30 2008||Related habeas corpus petition filed (post-judgment)|
case no. S163977.
|Jun 11 2008||Rehearing denied|
The petition for rehearing is denied.
|Jun 11 2008||Remittitur issued (AA)|
|Jun 19 2008||Received:|
acknowledgment of receipt for remittitur from superior court.
|Aug 27 2008||Change of contact information filed for:|
Barry L. Morris, Attorney at Law.
|Oct 20 2008||Received:|
letter from U.S.S.C. dated October 14, 2008, advising that petition for writ of certiorari was filed on September 9, 2008, and placed on its docket October 14, 2008 as No. 08-6752.
|Sep 30 2009||Order filed re habeas funds request (confidential)|
|Oct 2 2009||Compensation awarded counsel|
|Sep 17 2002||Appellant's opening brief filed|
|Aug 15 2003||Respondent's brief filed|
|Mar 30 2004||Appellant's reply brief filed|