Supreme Court of California Justia
Citation 44 Cal. 4th 758, 187 P.3d 1041, 80 Cal. Rptr. 3d 211

People v. Wilson

Filed 7/28/08



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S089623

v.

LESTER HARLAND WILSON,

Riverside

County

Defendant and Appellant.

Super. Ct. No. RIF 079858



A jury in Riverside County Superior Court convicted Lester Harland

Wilson in 2000 of the first degree murder of Uwe Durbin (Pen. Code, § 187; all

further statutory references are to this code unless otherwise indicated) and of

having personally used a firearm in the commission of the murder (§ 12022.5). It

also convicted him of two counts of forcible rape (§ 261, subd. (a)(2)) and

sustained two allegations that he used a firearm while committing these latter

crimes (§ 12022.5). The jury also sustained special circumstance allegations that

Wilson committed the murder while engaged in the commission of a kidnapping

(§ 190.2, subd. (a)(17)(B)) and that the murder involved the intentional infliction

of torture (id., subd. (a)(18)). On March 14, 2000, the jury set the penalty at death

under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic.

(§ 1239, subd. (b).)

1


We affirm the judgment of guilt but, as explained below, the erroneous

excusal during the penalty phase deliberations of the sole juror holding out for a

life sentence requires that we reverse the penalty judgment.

I. GUILT PHASE FACTS

A. Prelude

Defendant Lester Wilson lived in Riverside with his wife, codefendant

Barbara Phillips.1 On June 8, 1997, a realtor arrived at defendant’s home for a

prearranged visit and, noticing the back door was open, suspected a burglary had

been committed. He called defendant and Phillips to alert them. The pair arrived

home and found two televisions and a videocassette recorder (VCR) were missing.

A few weeks earlier, defendant had allowed Uwe Durbin, a recovering drug

addict, to stay with them. Defendant believed Durbin was responsible for the theft

because he had stolen from defendant before. Enraged by the thefts, defendant

grabbed a gun and left the house with Phillips and his two pit bulls. The realtor

was sufficiently disturbed by these events that he noted defendant’s license plate

number and called 911, informing the dispatcher that defendant had a gun and was

“a little irate.”

B. Kidnapping

In an attempt to find Uwe Durbin, defendant and Phillips went to the home

of Uwe’s brother, Michael Durbin. Michael lived with his girlfriend, L.R., and

their three young children. When Michael answered the front door around 10:00


1

Phillips was tried jointly with defendant, but with a separate jury, and

convicted of first degree murder with kidnapping and torture special circumstances
and a finding of personal gun use. The district attorney apparently did not seek the
death penalty for her, and she was sentenced to life imprisonment without
possibility of parole.

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a.m., he was met by defendant pointing a gun at his head. Defendant was

screaming about some missing property; he then pulled the telephone cord from

the wall and demanded to know where he could find Uwe. Although L.R. and her

children initially hid in the bedroom, Phillips found them. Defendant entered the

bedroom and told L.R. that she must follow his instructions or he would kill her

and her children. After 10 to 15 minutes, defendant told them they were all

leaving with him and Phillips to go look for Uwe. Michael drove his car with

defendant; Phillips drove her car with L.R. and the children.

As they left Michael’s apartment, they saw Uwe walking on the street

toward his brother’s house. Defendant forced him into one of the cars at gunpoint.

Defendant demanded his property, but Uwe professed ignorance about the theft.

The group drove to several houses looking for the missing property but were

unsuccessful. Phillips suggested to defendant that they take all six victims to their

home, and he agreed.

C. Wounding and Beating

Once they arrived at defendant and Phillips’ house, defendant continued to

wield the gun and demand his property. When he received no satisfactory

answers, he turned the radio to a very high volume and shot Uwe in the kneecap.

Uwe moaned, and Michael stood up to protest but sat down again when defendant

pointed the gun at him. Michael asked that L.R. and the children be released, but

defendant refused.

Defendant dragged Uwe downstairs and bound him to a chair with duct

tape and rope. Defendant placed two D-cell batteries inside a gardener’s glove

and beat Uwe with it, hitting him in the head about 10 times. During this beating,

defendant was yelling: “Where’s my TV and VCR?” In the meantime, Phillips

was in the living room demanding the return of their property from Michael, who

3

repeated his plea that L.R. and the children be freed. Phillips told him no one

would be leaving and that they were all going to die.

After this beating, Uwe asked for some paper to write down directions to a

location where defendant could find his property. Defendant and Michael left the

house with the directions, while Phillips guarded the others. Uwe’s directions

turned out to be bogus, and defendant and Michael returned to the house, although

defendant left again thereafter. At this time, Uwe was still bound to a chair, and

Phillips was guarding Michael, L.R. and the children.

D. Torture

Defendant went to Nicole Thompson’s house. Present at the house were

Thompson, Nathan McCullah, and codefendants Norman “Baby-G” Culpepper,

Charone “Ron-Ron” Parker and Michael “K-Mack” Woods. Defendant told them

he had shot someone, planned to kill him, and needed some gauze. They had

none, so defendant returned to his house, accompanied by Culpepper, Parker and

Woods. Michael was in the living room, holding a Bible. Parker said he had

better read the Bible because they were all going to die. The men laid some

plastic sheeting on the floor of the downstairs bedroom to prevent Uwe’s blood

from staining the carpet, rolled Uwe onto it, and began hitting and kicking him.

They also used the batteries in the glove to beat him. Uwe screamed each time he

was struck. This went on for about an hour; Michael and his family heard the

victim crying, screaming and moaning.

Eventually, defendant forced Michael into the bedroom where they had

been beating Uwe. There was blood all over the room. The men used duct tape to

bind Michael to a chair and forced him to view his brother’s body. Uwe’s eyes

were swollen shut. Defendant tried to have one of his pit bulls attack Uwe, but the

dog refused. Defendant struck the dog and then choked Uwe with a dog chain

4

until he gasped for air. When Uwe told defendant where his property could be

found, defendant, Culpepper and Parker left to find it. They returned about an

hour later having recovered a television and a VCR, which they put in the living

room.

E. The First Rape

During the time the men were beating Uwe, Phillips moved L.R. and her

children in and out of the house several times. Nicole Thompson, who by that

time had joined the others at defendant’s house, took L.R. and the children first to

a public park and then to her own house, where she intended to release them.

Shortly after she returned home, however, defendant arrived with some of the

others. Defendant told L.R. they were going to take a ride around the block.

Parker told him he did not “need to do that,” but defendant said he needed to make

L.R. “understand.”

Defendant drove L.R. to a park; her six-month-old baby was in the

backseat. He asked her how she could prove to him she would not speak to the

police if they let her go. She did not understand what he meant. He then told her

to take off her pants. She complied out of fear. He then had intercourse with her

against her will, believing the act would ensure she would not talk to the police.

They returned to Thompson’s house, picked up the others, and they all returned to

defendant’s house.

F. Resumption of Torture

Upon returning to his house, either defendant or one of the others untied

Michael and allowed him out of the bedroom. Michael asked defendant and

Phillips to release them, but they refused. Phillips said they were going to kill

Uwe. Michael heard the men beating Uwe again; defendant participated in this

beating. At one point Michael heard breaking glass. Uwe asked for something to

5

drink; Woods suggested they urinate into a cup and force Uwe to drink it.

Defendant and Woods emerged from the bathroom with a cup of urine; Uwe did

not drink it all so the men beat him for several minutes before forcing him to drink

a second cup of urine. Phillips was yelling: “He did this” and “We’re going to

kill him.”

Michael saw bottles of alcoholic beverages and believed the men were

drinking and enjoying themselves. At one point, Michael saw Culpepper emerge

from the bedroom with a weight from a barbell set. The weight, which was about

as wide as a dinner plate, had blood on it. Culpepper’s clothes were bloody and

soaked in sweat. L.R. heard the sound of a blowtorch coming out of the bedroom.

At one point, Michael believed someone poured bleach on Uwe’s wounds.

G. The Second Rape and Escape

Phillips took Michael out of the house on an errand. After they left,

defendant isolated L.R. in the dining room and told her he wanted to have sex

again. He bent her over the table and raped her. Defendant told her he was not

concerned about Phillips returning and surprising them because she did not have a

key to the house. L.R.’s fingerprints were found on the table in a location tending

to corroborate her account. L.R. testified she complied out of fear.

After this second rape, defendant forced L.R. to help him move Uwe out of

the bedroom. At this point, Uwe was wrapped in some plastic sheeting. L.R.

opted to carry Uwe by the feet because she did not want to look at his face, which

was “messed up,” but he was too heavy for her. When Phillips returned with

Michael, he took over for his girlfriend because she was crying. Michael helped

move Uwe to defendant’s car. Uwe was still alive at this time. Defendant and

Michael placed Uwe on a plastic sheet in the car; defendant threw an additional

sheet on top of him.

6

Meanwhile, Phillips forced L.R. to rub ice on the carpet in an attempt to

remove the bloodstains. Blood was evident on both the carpet and the walls.

Some of Uwe’s hair was also on the walls. Defendant gathered the various

implements used to beat Uwe and loaded them into the car as well. Michael saw

defendant carrying a case of chemical drain cleaner, which defendant said he

planned to pour on Uwe’s body in order to dissolve it.

Defendant announced he intended to release Michael, L.R. and their

children. Phillips strongly disagreed with his decision. Eventually, defendant

released the family after warning them that if they contacted the police, he would

have them killed. Defendant then left with Phillips in the car containing Uwe,

heading towards the Highway 91 freeway. Michael, L.R. and the children left the

house, eventually going to Michael’s mother’s home, where they called the police.

H. Murder

Defendant’s car broke down on the Highway 91 freeway, between the Tyler

Street and Van Buren Boulevard exits. Phillips called for a tow truck, which

arrived at 12:35 a.m. The truck operator testified that Phillips and an African-

American male were at the scene. The operator towed the car back to defendant’s

Riverside house.

Around 9:00 a.m. the next morning, Uwe’s body was discovered in a

drainage ditch adjacent to the Highway 91 freeway, between the Tyler Street and

Van Buren Boulevard exits. He had been shot several times in the head.

I. Forensic Evidence

Police searched the area where Uwe Durbin’s body was found and

discovered a length of rope, several projectiles and some spent shell casings. The

rope was stained with Uwe’s blood. The projectiles could not be linked positively

to a weapon but were consistent with the cartridges found at the scene.

7

Police proceeded to defendant’s home, and he consented to a police search.

In the downstairs bedroom, which looked as if a fight had occurred there, police

observed what appeared to be bloodstains on the floor and walls. A hole in the

wall appeared to contain human blood and was embedded with human hair. Police

also found a pair of gardener’s gloves, some surgical latex gloves, some rope and

some plastic sheeting, all with Uwe’s blood on them. Police also found a roll of

duct tape, some .380-caliber cartridges, two D-cell batteries (one with a dent in it),

some broken glass and six cans of Red Devil lye.

In defendant’s car, police found additional .380-caliber cartridges and some

broken glass. The cartridges were stamped by the same manufacturing tool as the

spent cartridges found near Uwe’s body. In addition, police found some bags,

clothing, plastic sheeting and newspapers, all stained with blood. The defense

stipulated that the blood on the plastic sheeting found in the car was Uwe’s.

The pants defendant was wearing on June 9 (the day after the beating and

torture of Uwe began) were confiscated and tested positive for human blood.

A forensic pathologist found Uwe had died from gunshot wounds and blunt

force trauma. His body bore five gunshot wounds to the head, all delivered when

the gun was only inches away. There was one gunshot wound to his hand, which

appeared to be a defensive wound, and one to his knee. In addition, Uwe’s body

exhibited evidence that blunt force trauma had been applied to his head, torso,

arms and legs. Footprints on his body suggested he had been stomped on. He had

a broken nose, jaw, ribs and tooth, and two black eyes. One laceration to his head

cut through to the cranial bone. His wrists bore evidence that he had been bound,

and his neck bore evidence that he had been strangled.

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J. Other Evidence

Ennise Marie Anthony, Phillips’s sister, told police that defendant had

called her from jail and told her he had shot someone six times in the head and

once in the knee and had left the body on the freeway. At trial, Anthony professed

not to remember making that statement, even when confronted with a tape

recording of her conversation with the police.

Jessica Lira testified that she and her boyfriend, Louie Sistos, bought a

television from someone for $40, but a few days later, a woman and a man, both

African-American, came to her house and explained that the television had been

stolen from them. Lira told them to return when Sistos was home. They returned

about an hour later with a large, stocky man Lira identified as Culpepper. He

leaned and whispered in her ear that “we know you have the television. We

already talked to the guy. He said your husband has it. This guy, you know, he’s

beat up pretty bad. He’s about to die.” The knuckles of one of the men were cut

and bloody, but by the time of trial Lira was unsure whether that man was

Culpepper. Sistos arrived home and gave the group the television, and they

returned the $40 he had paid for it.

K.K. testified that in 1992, she had been defendant’s fiancée. They

quarreled, and the incident escalated until he began to beat her up, throwing her

around the room and punching her in the head. He then forced her to orally

copulate him before he forcibly sodomized her. The next day, he committed

additional forcible sex crimes against her. Although she reported the crimes to the

police, she later decided not to press charges and left the country.

K. Defendant’s Statement

Defendant spoke with police the day after the crimes, and a recording of his

statement was played for the jury. Defendant confirmed he had been called by the

realtor, that he arrived home to find two televisions and a VCR were missing, and

9

that he believed that Uwe Durbin was the culprit because Uwe had previously

stolen from him. Defendant admitted driving to Michael Durbin’s house looking

for Uwe but denied kidnapping or raping anyone. He admitted grabbing Michael

by the shirt but denied pointing a gun at him. Defendant said he ended up buying

his television back with no problems. He denied he or his wife had killed anyone,

although he admitted there was an altercation in his house by two people whom he

knew only as “4-Trey” and “Forties.” He denied personally participating in the

fight and, in fact, claimed he never saw Uwe that day.

L. Defense at Trial

Prior to trial, the trial court granted a motion to sever the cases of Woods,

Parker and Culpepper from that of defendant and Phillips. The court later denied

Phillips’s motion for severance, but granted a motion to try her and defendant

jointly but with separate juries.

Defendant did not testify, and the defense rested without calling any

witnesses. Defense counsel argued there was little evidence that defendant had

personally committed the acts of torture and murder, emphasizing that Michael

Durbin was in the living room during most of the time his brother was beaten.

Instead, counsel argued, the other men present (Woods, Parker, Culpepper) were

the real culprits. Counsel argued that Ennise Marie Anthony, who recounted some

damaging admissions defendant had made from jail, should be disbelieved

because her credibility was suspect. In addition, counsel highlighted the

discrepancies in the evidence. For example, although L.R. recalled hearing a

blowtorch being used to torture Uwe, and Michael testified defendant poured

bleach on Uwe’s wounds, forensic scientists found no support for these claims.

There was also evidence that more than one weapon had been used to murder the

victim.

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II. PRETRIAL ISSUES

A. Excusal of Juror M.M. for Cause

Defendant contends the trial court violated his constitutional rights to a fair

trial, an impartial jury, and a reliable penalty verdict (U.S. Const., 5th, 6th, 8th &

14th Amends.), as well as corresponding rights under the state Constitution, by

sustaining the prosecutor’s challenge for cause to Prospective Juror M.M. As we

explain, the trial court did not err.

1. Facts

All prospective jurors were asked to fill out a written questionnaire. In a

section entitled “Opinions About the Death Penalty,” the jurors were asked about

their general feelings about capital punishment. Prospective Juror M.M. answered

this question by writing: “It hard to say to I hear the case. [Sic.]” Although the

questionnaire asked her to rate her support for the death penalty on a scale from

one to 10, and to state whether her opinions about the death penalty would make it

difficult for her to vote for either life or death, whether her views on the death

penalty had changed over time, and whether she had any religious affiliations that

would affect her ability to “take a stance on the death penalty,” she failed to

provide any answers to these questions.

Asked what she would do if defendant were convicted of a special

circumstances murder, she declined to check the options that she would always

vote for (a) death or (b) life imprisonment, and instead checked option (c), which

stated that she “would consider all of the evidence and the jury instructions . . .

and impose the penalty I personally feel is appropriate.” She also affirmed that

she would assume the penalty reached would be carried out. Asked whether death

or life imprisonment was the more severe punishment, she wrote: “It [is] hard to

say.”

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Following completion of the questionnaires, the trial court conducted voir

dire of some of the prospective jurors. When the court questioned Prospective

Juror M.M., she asserted there was nothing she wished to add to or subtract from

her questionnaire. In response to pointed questioning, she agreed that death was a

more severe penalty than life in prison, that she was neutral on the propriety of the

death penalty, that she would not treat defendant any differently because he was

African-American, that she could apply the law as instructed by the court, and that

she did not have any religious objection to the death penalty.

The discussion then took a surprising turn:

“THE COURT: I’m going to ask you the same questions I’ve been asking

the other jurors. Let’s assume for argument’s sake that you’ve heard all the

evidence in the guilt phase — phase one where you’re deciding did he or didn’t he

do the things he’s charged with. The district attorney has put on sufficient

evidence, and you believe that the defendant is guilty of murder in the first degree.

“Do you think you could convict him?

“PROSPECTIVE JUROR [M.]: Yes.

“THE COURT: Do you think you’d be tempted or would you refuse to find

the defendant guilty of first degree murder just to stop yourself from having to go

any further?

“PROSPECTIVE JUROR [M.]: No.

“THE COURT: Assume that there was sufficient evidence put on to show

that the special circumstance[s] were true in the guilt phase. Do you think you’d

be able to find that those were true?

“PROSPECTIVE JUROR [M.]: Yes.

“THE COURT: Or would you be tempted to vote that they were not true just

to avoid the responsibility of jumping off the bungee jump and going into the

penalty phase?

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“PROSPECTIVE JUROR [M.]: No.

“THE COURT: All right. Do you think you’d automatically vote for life

without possibility of parole in a penalty phase, if we got there, regardless of the

evidence?

“PROSPECTIVE JUROR [M.]: Yes.

“THE COURT: You do?

“PROSPECTIVE JUROR [M.]: Uh-huh.

“THE COURT: Automatically?

“PROSPECTIVE JUROR [M.]: Uh-huh.

“THE COURT: So you are sufficiently against the death penalty that if you

found him guilty of first degree murder with a special circumstance, we get to the

penalty phase, it’s basically over for you? You’ve already decided the penalty?

“PROSPECTIVE JUROR [M.]: Uh-huh.

“THE COURT: Uh-huh, yes?

“PROSPECTIVE JUROR [M.]: Yes.” (Italics added.)

The prosecutor later moved to exclude Prospective Juror M.M. for cause

and the court agreed, noting that she “said she’d automatically give life. As soon

as she reached the penalty phase, it would be over for her. I’m prepared to excuse

her.” Defense counsel said he would not stipulate to her exclusion, arguing that he

had not had a chance to question the juror and that he would like an opportunity to

himself conduct a “follow-up” voir dire.

When pressed by the trial court to explain what he would ask the juror,

counsel replied: “I’m not convinced that she understood exactly what the Court

had asked her. I’d like to follow up and make sure that she completely understood

that she has the option of making the decision, life or death. [¶] She was

somewhat inconsistent in her responses. Initially she said she didn’t have an

opinion, but she . . . did indicate . . . that she could participate.

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“THE COURT: No, she didn’t. I did ask her several times, and I said, in

other words, if we got to the penalty phase, and you had found him guilty of

murder with a special circumstance, murder in the first degree, it would be over

for you? She said it would be over, she’d always give life, she couldn’t give

death.” The court then excused Prospective Juror M.M. for cause.

2. Discussion

The United States Constitution guarantees a criminal defendant a trial by an

impartial jury. As we have explained in numerous recent decisions in capital

cases, “[t]o achieve the constitutional imperative of impartiality, the law permits a

prospective juror to be challenged for cause only if his or her views in favor of or

against capital punishment ‘would “prevent or substantially impair the

performance of his [or her] duties as a juror” ’ in accordance with the court’s

instructions and the juror’s oath.” (People v. Blair (2005) 36 Cal.4th 686, 741; see

Wainwright v. Witt (1985) 469 U.S. 412, 424.)

“ ‘In many cases, a prospective juror’s responses to questions on voir dire

will be halting, equivocal, or even conflicting. Given the juror’s probable

unfamiliarity with the complexity of the law, coupled with the stress and anxiety

of being a prospective juror in a capital case, such equivocation should be

expected. Under such circumstances, we defer to the trial court’s evaluation of a

prospective juror’s state of mind, and such evaluation is binding on appellate

courts.’ ” (People v. Roldan (2005) 35 Cal.4th 646, 696.)

“ ‘ “There is no requirement that a prospective juror’s bias against the death

penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient

that the trial judge is left with the definite impression that a prospective juror

would be unable to faithfully and impartially apply the law in the case before the

juror.” [Citation.] “Assessing the qualifications of jurors challenged for cause is a

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matter falling within the broad discretion of the trial court.” ’ ” (People v. Abilez

(2007) 41 Cal.4th 472, 497-498.)

The United States Supreme Court has recently expounded on the propriety

of deferring to a trial court’s ruling on a challenge for cause, explaining that “the

finding may be upheld even in the absence of clear statements from the juror that

he or she is impaired because ‘many veniremen simply cannot be asked enough

questions to reach the point where their bias has been made “unmistakably clear”;

these veniremen may not know how they will react when faced with imposing the

death sentence, or may be unable to articulate, or may wish to hide their true

feelings.’ [Citation.] Thus, when there is ambiguity in the prospective juror’s

statements, ‘the trial court, aided as it undoubtedly [is] by its assessment of [the

venireman’s] demeanor, [is] entitled to resolve it in favor of the State.’ ” (Uttecht

v. Brown (2007) 551 U.S. ___, ___ [127 S.Ct. 2218, 2223].) Accordingly, trial

courts must, before trial, engage in a conscientious attempt to determine a

prospective juror’s views regarding capital punishment to ensure that any juror

excused from jury service meets the constitutional standard, thus protecting an

accused’s right to a fair trial and an impartial jury. (People v. Heard (2003) 31

Cal.4th 946, 963-968.)

In arguing the trial court abused its discretion by excusing Prospective

Juror M.M., defendant focuses on the juror’s written questionnaire answers and

oral responses on voir dire, specifically that she rated her support for the death

penalty as only a five on a scale of one to 10, that she was capable of voting to

impose the death penalty if appropriate for the case, that she would not vote

against a guilt or special circumstance verdict warranted by the evidence merely to

avoid the penalty phase, and that she had no religious opposition to capital

punishment. When asked whether it would be difficult for her to vote for the

death penalty in a case such as the present one, she replied in the negative.

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We do not know how the juror appeared to the court when she made these

affirmations, whether her demeanor suggested sincerity, dissimulation or merely

confusion. We do know she appeared to change her mind during the course of the

court’s questioning, suddenly contradicting herself and informing the court that if

defendant was convicted of first degree murder, she would “automatically” vote

for a life sentence instead of the death penalty. The trial court, clearly surprised at

her change of direction, followed up to make sure she had not merely misspoken.

She had not. The court then asked her directly whether she was “sufficiently

against the death penalty” that if she found defendant guilty of murder with special

circumstances at the guilt phase, she would go no further, that the penalty

determination was “basically over” for her, and that she had “already decided the

penalty.” She agreed unequivocally.

The trial court was in the best position to assess the juror’s state of mind,

based on her conflicting responses, her demeanor, her vocal inflection and other

nonverbal cues. “Even when ‘[t]he precise wording of the question asked of [the

juror], and the answer [she] gave, do not by themselves compel the conclusion that

[she] could not under any circumstance recommend the death penalty,’ the need to

defer to the trial court remains because so much may turn on a potential juror’s

demeanor.” (Uttecht v. Brown, supra, 551 U.S. at p. ___ [127 S.Ct. at p. 2223].)

Faced with a conflict in the juror’s responses, the trial court pursued the matter

and the juror finally admitted she would not vote to impose the death penalty.

Although defendant argues the juror’s conflicting responses reflected simple

confusion rather than a fluid and evolving position that coalesced to produce an

anti-death-penalty epiphany, we are unable to resolve that point from the cold

record and leave it to the trial court in the first instance to ascertain the juror’s true

state of mind.

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Defendant argues the trial court erred by failing to permit defense counsel

to ask the juror additional clarifying questions, but we reject the point. One can

always argue further questioning might yield different and more favorable results,

but that is a matter committed to the discretion of the trial court. “A trial court has

the discretion to deny all questioning by counsel when a prospective juror gives

‘unequivocally disqualifying answer[s]’ [citation], and may subject to reasonable

limitation further voir dire of a juror who has expressed disqualifying answers

. . . .” (People v. Samayoa (1997) 15 Cal.4th 795, 823.) Sufficient evidence here

supports the trial court’s decision to terminate questioning, as the court had

already considered the juror’s questionnaire answers and her responses during voir

dire. Moreover, the court asked her pointed questions when she equivocated, and

it was within the court’s discretion to conclude that further questioning would

have been of little value. Certainly defense counsel did not identify any area of

inquiry not already covered by the trial court. We conclude the court did not

abuse its discretion, nor violate defendant’s constitutional rights, by excusing

Prospective Juror M.M. for cause.

B. Excusal of Jurors M.F. and C.T. for Cause

Defendant next contends the trial court violated his constitutional right to

an impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the

United States Constitution, by sustaining the prosecutor’s challenges for cause to

Prospective Jurors M.F. and C.T. Unlike the challenge to the excusal of

Prospective Juror M.M., the trial court excused M.F. and C.T. based solely on

their written responses in their juror questionnaires, with no oral, in-person

examination. Although defendant contends excusing these jurors without

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personally examining them was improper, as we explain, the trial court did not

err.2

1. Facts

As noted above, all prospective jurors were asked to complete a written

questionnaire in which several questions addressed the death penalty. Preceding

these questions was a long prefatory statement setting forth the basic procedure

applicable to capital cases.3 The questions then began:


2

Defendant also challenges, on the same ground, the trial court’s purported

granting of the prosecution’s challenge for cause to Prospective Juror A.W.
Although the prosecutor challenged her for cause based solely on her answers in
the jury questionnaire, the trial court deferred its decision at the time of the
challenge. The record does not indicate the court ever returned to the matter, or
that the court ever actually excused A.W. Accordingly, we reject the claim as to
this prospective juror.

3

“Questions concerning your views on the death penalty are required by law.

The asking of them is not meant to imply that a defendant is guilty or that you will
in fact ever be called upon to decide the penalty in this case. If you find the
defendant not guilty, the trial will end and your beliefs about the death penalty will
not be relevant. If you find the defendant guilty and a special circumstance to be
true, then there will be a second phase of the trial to determine whether the penalty
will be death or life in prison without the possibility of parole. (A special
circumstance is an allegation that relates to the charged murder, upon which the
jury is asked to make a finding. For instance, was the murder committed in the
commission of certain felonies such as burglary, robbery or rape?)


“Should there be a penalty phase, the jury will be asked to determine the

penalty. The choices are death or life without the possibility of parole.


“The jury determines the penalty by considering factors in aggravation and

mitigation. Evidence in aggravation may include the circumstances of the offense
charged, prior felony convictions, the presence of criminal activity other than for
which the defendant has been tried which involves the defendant’s use or
attempted use of force or violence or the express or implied threat to use force or
violence.


“Evidence in mitigation may include the defendant’s upbringing, mental

condition, education, age, drug/alcohol use, the circumstances of the offense, the
defendant’s role in the offense, etc.


(footnote continued on next page)

18

“40. Briefly

describe

your general feelings about the death penalty.

“________________

“a. On a scale of 1-10, with 10 being strongly in favor of the death penalty,

5 having no opinion, and 1 being strongly against the death penalty, how would

you rate yourself?

“strongly against

no opinion

strongly in favor

“ 1 2 3 4 5 6 7 8 9 10

“b. Is there a particular reason why you feel as you do about the death

penalty?

“___ Yes

___ No

“If yes, please explain: ________________

“c. If you are against the death penalty, would your opinion make it

difficult for you to vote for the death penalty in this case, regardless of what the

evidence was?

“___ Yes

___ No

“Please explain: ________________

“d. If you are in favor of the death penalty, would your opinion make it

difficult for you to vote for life without the possibility of parole regardless of what

the evidence was?

“___ Yes

___ No

“Please explain: ________________


(footnote continued from previous page)

“There is a wide spectrum of possible evidence that you may be asked to

consider if this case should go to a penalty phase. We cannot, of course, tell you
now what that evidence would be. Nor, can you be expected to tell us the weight,
if any, you might give particular evidence.”

19

“e. In what ways, if any, have your views about the death penalty changed

over time? ________________

“41. Do you have any religious affiliations that take a stance on the death

penalty?

“___ Yes

___ No

“If yes, please explain: ________________” (Underscoring in original.)

Question 42 is critical to our holding in this case because the trial court

used it as the basis for excusing both Prospective Jurors M.F. and C.T. That

question provided: “It is important that you have the ability to approach this case

with an open mind and a willingness to fairly consider whatever evidence is

presented as opposed to having such strongly held opinions that you would be

unable to fairly consider all the evidence presented during the possible penalty

phase. [¶] There are no circumstances under which a jury is instructed by the

court that they must return a verdict of death. No matter what the evidence shows,

the jury is always given the option in a penalty phase of choosing life without the

possibility of parole. Assuming a defendant was convicted of a special

circumstances murder, would you:

“___ a. No matter what the evidence was, ALWAYS vote for the death

penalty.

“___ b. No matter what the evidence was, ALWAYS vote for life without

possibility of parole.

“___ c. I would consider all the evidence and the jury instructions as

provided by the court and impose the penalty I personally feel is appropriate.”

(Italics added, underscoring and capitalization in original.)

The trial court explained its methodology, which was focused on question

42. After culling the jury pool for hardship excusals, the remaining jurors would

be asked to complete the questionnaire. If a juror reported that they would

20

“automatically vote for death or automatically vote for life at that point,” the

parties would be asked to stipulate to the juror’s excusal. According to the trial

court: “My view, if they checked question 42-a or 42-b, they’re gone . . .

[¶] [w]ithout any need for follow-up.” “There’s not much distinction between

[42]-a and [42]-b, and that’s why we’re excusing people at both ends of the

spectrum.”

Following receipt of the completed questionnaires, the trial court discussed

them with the attorneys for defendant and codefendant Phillips as well as with the

prosecution. The attorneys for all sides stipulated to the excusal for cause of

certain prospective jurors based solely on their written answers to these questions,

with no oral voir dire. For example, Prospective Jurors A.C. and D.S., who both

rated themselves a 10 in question 40-a (i.e., strongly in favor of the death penalty)

and stated they would “always” vote for the death penalty in question 42-a, were

excused with the consent of both sides. Similarly, Prospective Jurors D.K. and

F.M., who both rated themselves a one (i.e., strongly against the death penalty)

and stated they would “always” vote for life imprisonment, were excused by

stipulation.

Prospective Juror M.F. answered question 40 by saying: “I am a religious

person and do not feel that two wrongs make a right. However, I am unsure about

the death penalty in itself. I really don’t know.” She rated herself a four on the

scale of one to 10, meaning she was slightly against the death penalty. In

explanatory comments, she wrote: “I could not see myself punishing or

participating in the punishment dealing w/the death penalty,” and “It [the death

penalty] is not the answer to our problems.” In answering question 42, however,

she checked “b,” that is, that “[n]o matter what the evidence was, [she would]

ALWAYS vote for life without possibility of parole.”

21

Discussing this juror, the trial court noted: “She rated herself a four, but

she says no matter what the evidence was she’d always vote for life without

possibility of parole. She couldn’t see herself punishing or participating in the

punishment dealing with the death penalty. The media have made her very

unsure, however, once she puts herself in the shoes of the victim’s family. She has

a religious stance. It’s not the answer to our problem, the death penalty is not.

She’s a religious person. She doesn’t feel two wrongs make a right. She’s unsure

about the death penalty. She really doesn’t know. I think she’s substantially

impaired [within the meaning of Wainwright v. Witt, supra, 469 U.S. 412].”

Defense counsel requested that the trial court conduct a follow-up oral

examination of M.F., explaining that he was “not willing to stipulate [to her

excusal].” The court declined to examine the juror, explaining that “I’m going to

make a finding if you’re not willing to stipulate right now.”

Prospective Juror C.T. answered question 40 by saying: “I believe that if

the defendant gets to the penalty phase I would probably look at the life without

possibility of parole [option], more than the death penalty. That is because of my

religious background.” She rated herself a four on the scale of one to 10, meaning

she was slightly against the death penalty. Like Prospective Juror M.F., C.T.

answered question 42 by checking option “b,” proclaiming she would “always”

vote for life.

The trial court noted that “I think her views meet the substantial impairment

test.” “She said she’d never impose the death penalty, because she’s a Christian,

although she’s a four on the scale. I think she meets the substantial impairment

test.” Defense counsel requested that the court conduct a follow-up examination

of the juror, whereupon the prosecutor reminded the court that at that point, every

prospective juror who had checked option 42-b and indicated they would always

22

choose life imprisonment had been excluded. The court agreed and excused C.T.

based solely on her written answers in the questionnaire.

2. Discussion

We addressed the propriety of excusing prospective jurors during a capital

case voir dire, based solely on their written responses in a juror questionnaire, in

People v. Stewart (2004) 33 Cal.4th 425 (Stewart). In that case, the trial court

excused for cause five prospective jurors, finding their views as expressed in the

questionnaire were clearly and unambiguously against the death penalty. (Id. at

pp. 444-445.) Setting forth the applicable procedures, we explained that “[b]efore

granting a challenge for cause concerning a prospective juror, over the objection

of another party, a trial court must have sufficient information regarding the

prospective juror’s state of mind to permit a reliable determination as to whether

the juror’s views would ‘ “prevent or substantially impair” ’ the performance of

his or her duties (as defined by the court’s instructions and the juror’s oath) . . . .”

(Id. at p. 445.) “The prosecution, as the moving party, [bears] the burden of

demonstrating to the trial court that this standard was satisfied as to each of the

challenged jurors.” (Ibid.; see Wainwright v. Witt, supra, 469 U.S. at p. 423.)

We explained in Stewart that the mere fact a prospective juror, in a written

questionnaire, checked a box or otherwise expressed a personal opposition to the

death penalty does not permit the court to automatically disqualify him or her from

the jury. “Decisions of the United States Supreme Court and of this court make it

clear that a prospective juror’s personal conscientious objection to the death

penalty is not a sufficient basis for excluding that person from jury service in a

capital case under [Wainwright v.] Witt, supra, 469 U.S. 412. In Lockhart v.

McCree (1986) 476 U.S. 162, 176 . . . , the high court observed that ‘not all those

who oppose the death penalty are subject to removal for cause in capital cases;

23

those who firmly believe that the death penalty is unjust may nevertheless serve as

jurors in capital cases so long as they clearly state that they are willing to

temporarily set aside their own beliefs in deference to the rule of law.’ Similarly,

in People v. Kaurish (1990) 52 Cal.3d 648, 699 . . . , we observed: ‘Neither

Witherspoon [v. Illinois (1968) 391 U.S. 510] nor [Wainwright v.] Witt, . . . nor

any of our cases, requires that jurors be automatically excused if they merely

express personal opposition to the death penalty. The real question is whether the

juror’s attitude will “ ‘prevent or substantially impair the performance of his duties

as a juror in accordance with his instructions and his oath.’ ” (Wainwright v. Witt,

supra, 469 U.S. at p. 424, fn. omitted.) A prospective juror personally opposed to

the death penalty may nonetheless be capable of following his oath and the law. A

juror whose personal opposition toward the death penalty may predispose him to

assign greater than average weight to the mitigating factors presented at the

penalty phase may not be excluded, unless that predilection would actually

preclude him from engaging in the weighing process and returning a capital

verdict.’ (Italics added.)” (Stewart, supra, 33 Cal.4th at p. 446.)

The critical flaw in Stewart was the trial court’s reliance on that part of the

questionnaire that asked jurors whether they held views that would “ ‘prevent or

make it very difficult’ ” for the prospective juror “ ‘[t]o ever vote to impose the

death penalty.’ ” (Stewart, supra, 33 Cal.4th at pp. 442-443.) We explained: “In

light of the gravity of [the death penalty], for many members of society their

personal and conscientious views concerning the death penalty would make it

‘very difficult’ ever to vote to impose the death penalty. As explained below,

however, a prospective juror who simply would find it ‘very difficult’ ever to

impose the death penalty, is entitled — indeed, duty bound — to sit on a capital

jury, unless his or her personal views actually would prevent or substantially

impair the performance of his or her duties as a juror.” (Id. at p. 446.)

24

Although we concluded in Stewart that the trial court erred by excusing five

prospective jurors for cause based solely on the combination of their checked

answers and written comments in the questionnaire, we stopped short of

recognizing a bright-line rule, though we hinted that one might be justifiable.

“[W]e need not and do not hold that a trial court never may properly grant a

motion for excusal for cause over defense objection based solely upon a

prospective juror’s checked answers and written responses contained in a juror

questionnaire. We are, however, unaware of any authority upholding such a

practice.” (Stewart, supra, 33 Cal.4th at pp. 449-450, fn. omitted.)

More recently, however, we modulated any such suggestion. Addressing

the issue in People v. Avila (2006) 38 Cal.4th 491 (Avila), we opined: “The

question left undecided in Stewart is squarely presented here, and we now hold

that a prospective juror in a capital case may be discharged for cause based solely

on his or her answers to the written questionnaire if it is clear from the answers

that he or she is unwilling to temporarily set aside his or her own beliefs and

follow the law.” (Id. at p. 531, italics added.) In Avila, the trial court excused four

jurors without orally questioning them, based solely on their written answers to the

jury questionnaire. We found no error and distinguished Stewart on the ground

that the jury questionnaire in Stewart included a “material flaw” not present in the

questionnaire used in Avila. (Avila, at p. 530.) Thus, we explained that whereas

the questionnaire in Stewart asked whether a juror’s “conscientious opinion or

belief about the death penalty . . . ‘ “would prevent or make it very difficult” ’ ”

(Avila, at p. 530) for a juror to vote to convict of first degree murder, sustain a

special circumstance or impose the death penalty, the questionnaire in Avila

instead asked whether a juror would “automatically” so vote (id. at p. 528, fn. 23,

underscoring omitted). “[B]ecause mere difficulty in imposing the death penalty

does not, per se, prevent or substantially impair the performance of a juror’s

25

duties” (id. at p. 530), the decision in Stewart — that the trial court erred by

excusing prospective jurors based solely on their written questionnaire answers —

was correct. But “nothing in Stewart indicates that an excusal without oral voir

dire is improper where the prospective juror’s answers to a jury questionnaire

leave no doubt that his or her views on capital punishment would prevent or

substantially impair the performance of his or her duties in accordance with the

court’s instructions and the juror’s oath.” (Avila, at p. 531, italics added.)

From this discussion, the rule emerges that reliance on written responses

alone to excuse prospective jurors for cause is permissible if, from those

responses, it is clear (and “leave[s] no doubt”) that a prospective juror’s views

about the death penalty would satisfy the Witt standard (Wainwright v. Witt, supra,
469 U.S. 412) and that the juror is not willing or able to set aside his or her

personal views and follow the law. Applying this rule here, we conclude the trial

court did not err when it excused Prospective Jurors M.F. and C.T for cause.

Although the questionnaire used in this case did not, as in Avila, ask whether a

prospective juror would “automatically” vote for either life or death irrespective of

the evidence (Avila, supra, 38 Cal.4th at p. 528, fn. 23), questions 42-a and 42-b in

this case asked jurors whether, “[n]o matter what the evidence was,” would they

“ALWAYS vote for the death penalty” or “for life without possibility of parole.”

This phraseology is the equivalent of that which we approved in Avila; the

capitalization and underscoring of the word “always” must have made clear to all

prospective jurors that the question sought to determine if the juror would

automatically vote one way or the other irrespective of the evidence.

This reading of questions 42-a and 42-b is consistent with the import of the

questionnaire as a whole. The prefatory statement at the beginning of the section

of the questionnaire concerning the death penalty (see ante, pp. 18-19, fn. 3) gave

prospective jurors the basic outline of the penalty phase procedures involved,

26

including the need for a fair assessment and weighing of aggravating and

mitigating circumstances. This written outline reinforced the trial court’s oral

statement, delivered before the jurors were given the questionnaires, which

provided similar background information. For example, the court informed the

prospective jurors that “[f]actors in mitigation include good things about the

defendant for the purpose of showing that the appropriate sentence in the case is

life without possibility of parole. And within those guidelines, after a

consideration and weighing of all the factors, you have the discretion as to what

penalty to impose.” (Italics added.)

Then, at the beginning of question 42, the prospective jurors were informed

that “[t]here are no circumstances under which a jury is instructed by the court that

they must return a verdict of death. No matter what the evidence shows, the jury

is always given the option in a penalty phase of choosing life without the

possibility of parole.” This passage further reinforced the admonition that a juror

at the penalty phase need not automatically vote one way or the other. Absent

some evidence Prospective Jurors M.F. or C.T. did not read these statements or

misunderstood them, they must have been aware when they checked 42-b (i.e.,

that “[n]o matter what the evidence was, [they would] ALWAYS vote for life

without possibility of parole”) that they would have the option to vote for either

life or death in their discretion. This is especially true because — by checking 42-

b — M.F. and C.T necessarily chose not to check 42-c: “I would consider all the

evidence and the jury instructions as provided by the court and impose the penalty

I personally feel is appropriate.” In short, a fair reading of the questionnaire

demonstrates that M.F. and C.T. must have known the scope and nature of the

discretion they would wield in the penalty phase, but nonetheless checked 42-b,

27

indicating that they would always vote for life over death irrespective of the facts

and circumstances.4

Although the jury questionnaire used in this case, as in Stewart, admittedly

asked jurors whether their opinion about the death penalty “would . . . make it

difficult for you to vote for the death penalty in this case” (italics added), the

similarity with Stewart ends there, for the trial court did not excuse Prospective

Jurors M.F. and C.T. on that basis. Instead, the court was clear that if any

prospective juror checked 42-a or 42-b, the court would ask the parties to stipulate

to the juror’s excusal because, in the trial court’s opinion, such a response

indicated the juror would “automatically vote for death or automatically vote for

life at that point.” As the trial court explained: “My view, if they checked

question 42-a or 42-b, they’re gone . . . [¶] [w]ithout any need for follow-up.”

“There’s not much distinction between [42]-a and [42]-b, and that’s why we’re


4

We note that Prospective Juror C.T. answered “yes” to question 28, which

asked whether, “[i]f the judge gives you an instruction on the law that differs from
your beliefs or opinions, will you follow the law as the judge instructs you?” That
general question, however, preceded the section of the questionnaire devoted to
“Opinions About the Death Penalty,” immediately followed a question as to
whether the prospective juror’s religious or moral feelings would make it difficult
or impossible to sit in judgment of another person, and was grouped within a
section testing the prospective juror’s ability to follow the law concerning the
presumption of innocence, the privilege against compelled self-incrimination, and
other principles of law relating to the guilt phase of the trial. The prospective
juror’s affirmative response to question 28 was thus not necessarily inconsistent
with her subsequent response to question 42, which inquired into the juror’s
specific ability to consider all the evidence that would be presented at the penalty
phase before selecting the appropriate penalty. Indeed, Prospective Juror M.F.
stated that question 28 was “kind of vague” and said that she was “not sure what
this refers to.”

28

excusing people at both ends of the spectrum.” Thus, unlike in Stewart, use of the

“make it difficult” language here does not require reversal.5

Of course, a face-to-face assessment of the sincerity and understanding of a

prospective juror may, under particular circumstances, be preferable, and trial

courts retain discretion to examine jurors in person. (People v. Heard, supra, 31

Cal.4th at p. 965 [“If the trial court remained uncertain as to whether [a

prospective juror’s] views concerning the death penalty would impair his ability to

follow the law or to otherwise perform his duties as a juror, the court was free . . .

to follow up with additional questions”].) Even a person with a strongly held view

in favor of, or against, the death penalty could possibly set aside those views and

decide a case according to the law. (Avila, supra, 38 Cal.4th at p. 531; Lockhart v.

McCree, supra, 476 U.S. at p. 176.) Moreover, a trial court may have reason to

suspect a prospective juror is a poor reader or may simply have misunderstood the

questionnaire. Although reading the questionnaire in this case as a whole

convinces us the trial court did not err in concluding that prospective jurors who

checked option 42-b would not set aside their personal feelings about the death

penalty regardless of the evidence that might be presented at the penalty phase,

this important point could be clarified in future cases simply by including a

question asking this point directly in the context of questions concerning attitudes

towards the death penalty.. For example, question 91 in the questionnaire used in

Avila asked: “Do you honestly think that you could set aside your personal

feelings and follow the law as the Court explains it to you, even if you had strong

feelings to the contrary?” (Avila, at p. 528, fn. 23.)


5

Although we find use of the “make it difficult” language in the jury

questionnaire is not dispositive as it was in Stewart, future courts would be wise to
omit such language to avoid confusion.

29

We appreciate that trial courts may desire to streamline the death

qualification voir dire process in capital cases, for such jury selection procedures

can be a long and tedious business. Prudent use of written jury questionnaires can

be a valuable addition to the process, serving as a screening tool during death

qualifications of jurors. We need not emphasize, however, that those accused of

capital crimes have an important interest at stake, and because their right to a fair

and impartial jury is a vital constitutional concern, trial courts should err on the

side of caution when questionable or marginal cases arise. But because the jury

questionnaire used here, and especially questions 42-a, 42-b and 42-c, made it

sufficiently clear that Prospective Jurors M.F. and C.T., by checking 42-b, met the

standard set forth by the United States Supreme Court in Wainwright v. Witt,

supra, 469 U.S. 412, we conclude the trial court did not err by excluding them for

cause without personally examining them.

III. TRIAL ISSUES

A. Precluding Cross-examination on Witness’s Drug Use

Defendant contends the trial court’s exclusion of evidence of Michael

Durbin’s alleged long-term methamphetamine abuse, and its resultant effect on his

ability to “process and recall” details of the crimes, violated defendant’s right to

confront and cross-examine the witnesses against him, to a fair trial and a reliable

penalty determination in violation of the Fifth, Sixth, Eighth and Fourteenth

Amendments to the United States Constitution. We reject the claim for two

reasons: first, defendant failed to preserve this claim for appeal; and second, the

trial court’s ruling did not violate defendant’s constitutional rights.6


6

To the extent defendant further argues the court’s ruling violated his rights

under article I, section 28 of the California Constitution and Evidence Code


(footnote continued on next page)

30

1. Facts

The trial court considered at an in limine hearing whether any of Michael

Durbin’s several prior convictions could be introduced against him as

impeachment. The court ruled Durbin’s 1992 burglary conviction was admissible,

as was his 1997 conviction for spousal abuse, but excluded two other spousal

abuse incidents as both too trivial and cumulative to the felony conviction. The

court then considered the admissibility of Durbin’s 1996 convictions for

possession of drug paraphernalia and being under the influence of a controlled

substance, offenses for which he was diverted from the criminal justice system.

The court expressed its view that these crimes did not involve moral turpitude (see

People v. Castro (1985) 38 Cal.3d 301) and that it intended to exclude them for

that reason. When counsel for codefendant Phillips asserted that he intended to

impeach Durbin with his drug use, the court repeated that the crimes did not

involve moral turpitude but opined that it might change its mind if there was

evidence Durbin was actually under the influence at the time of the crimes.

The court then asked the parties whether Durbin was in fact under the

influence of drugs when the crimes were committed. Mr. Wyatt, counsel for

Phillips, said he did not know, but the prosecutor, Ms. Danville, spoke up,

revealing that she had spoken to Durbin and L.R. the previous week and had

learned, apparently for the first time, that they had each smoked some

methamphetamine the day before the crimes. The prosecutor opined that she

intended to question both witnesses on the topic before the jury. The following

colloquy then occurred:


(footnote continued from previous page)

section 352, these claims are forfeited because defendant failed to raise them
below.

31

“THE COURT: All right. I think prior drug use is not relevant unless

there’s a denial that they had taken methamphetamine on or near the date of the

events at issue.

“MR. WYATT: Well —

“THE COURT: If they deny it, then, of course, we have direct impeachment

potential there. But for the moment, simply credibility on other testimony, I’m

excluding it, all right?

“MR. WYATT: My — the reason I would want to go into [it] is, for

instance, I didn’t know about the methamphetamine until you just solicited it from

the district attorney just a few seconds ago.

“But we know that people that are using drugs, particularly like

methamphetamine or crack or PCP, the effect and the consequences are not just

for the moment, that they may have delayed reactions, and that would affect their

perceptions.

“THE COURT: That’s a whole different issue than straight credibility.

“MR. WYATT: Oh, correct.

“THE COURT: Do you intend to call an expert?

“MR. WYATT: No, I — I think I can get it from either of them. I think

they’re probably users and probably are experts on drugs, and I think we can elicit

that from their testimony.

“THE COURT: Miss Danville.

“MS. DANVILLE: I would highly object.

“The fact that they had used some [drugs] the day before [the murder] and

may have still been somewhat a little bit under the influence is relevant to their

ability to perceive the events about which they’re testifying, but beyond that it’s

extremely inflammatory, and it has no relevance to this case.

32

“THE COURT: All right. Mr. Wyatt, you can ask them what they took on

or around the date in question.

“MR. WYATT: Thank you.

“THE COURT: You can ask them the effects it had on them.

“MR. WYATT: Thank you.

“THE COURT: Beyond that I don’t want you to go without a further

[Evidence Code section] 402 [hearing] on the issue.

“MR. WYATT: Thank you. No, that’s fine. I understand.”

Mr. Belter, defense counsel for defendant, uttered no comment and made

no objection throughout this entire exchange.

On direct examination, Michael Durbin testified he had smoked some

methamphetamine the day before the crimes, that as a result he felt a bit tired the

next day, but that the drug use did not otherwise affect him. When asked on cross-

examination how much he had ingested, he testified he had smoked a quarter of a

gram with his girlfriend, L.R. When Mr. Wyatt asked him when he next used

drugs, the trial court sustained the prosecutor’s objection. During Mr. Belter’s

cross-examination, Durbin affirmed his earlier testimony that his use of

methamphetamine the day before the crimes had left him tired. He also stated that

a quarter of a gram of methamphetamine was not a lot to smoke in one sitting for

him. In her testimony, L.R. corroborated Durbin’s testimony in every respect; that

is, she testified she smoked a quarter of a gram of methamphetamine with Durbin

the day before the crimes and felt tired the next day as a result. Neither defendant

called an expert witness to describe the impact of long-term drug use on one’s

perception or memory.

33

2. Discussion

Before we determine whether defendant’s rights were violated, we must

decide whether he preserved this claim for appellate review. Although Mr. Wyatt,

counsel for codefendant Phillips, objected to the exclusion of evidence of Michael

Durbin’s drug use, defendant did not join in the objection or interpose his own.

“Generally, failure to join in the objection or motion of a codefendant constitutes a

waiver of the issue on appeal.” (People v. Santos (1994) 30 Cal.App.4th 169, 180,

fn. 8; see People v. Mitcham (1992) 1 Cal.4th 1027, 1048.)

A litigant need not object, however, if doing so would be futile. (People v.

Brown (2003) 31 Cal.4th 518, 553.) Defendant contends that having seen how the

trial court treated his codefendant’s motion, he reasonably believed making his

own motion would have been futile. We disagree. The trial court permitted

Phillips’s counsel to ask Durbin what drugs he took around the time of the crime

and their effect on him, but left the door open to eliciting additional information

provided counsel would call an expert witness and undergo an Evidence Code

section 402 hearing, presumably to determine the effect such drug use would have

on a person’s perception and recall ability. Defendant was thus on notice that an

objection would not have been futile provided he satisfied the court’s reasonable

prerequisites. The court also stated it would reconsider its ruling if a party could

present evidence that Durbin was under the influence at the time of the crimes.

Because an objection would not necessarily have been futile, defendant’s failure to

object or affirmatively join codefendant Phillips’s motion forfeited the issue for

appeal.

Even had the issue been preserved, we would find no error. “The Sixth

Amendment provides that ‘[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him.’ This federal

constitutional right to confront adverse witnesses in a criminal prosecution applies

34

to the states (Pointer v. Texas (1965) 380 U.S. 400) and is also guaranteed

independently by the California Constitution (Cal. Const., art. I, § 15) and by

statute (§ 686). The primary reason an accused is entitled to confront adverse

witnesses is to permit cross-examination. (Delaware v. Van Arsdall (1986) 475

U.S. 673, 678; Alvarado v. Superior Court (2000) 23 Cal.4th 1121.) ‘[T]he right

of confrontation and cross-examination is an essential and fundamental

requirement for the kind of fair trial which is this country’s constitutional goal.

Indeed, . . . to deprive an accused of the right to cross-examine the witnesses

against him is a denial of the Fourteenth Amendment’s guarantee of due process

of law.’ (Pointer v. Texas, supra, at p. 405.)” (People v. Brown, supra, 31 Cal.4th

at pp. 537-538.) “ ‘It does not follow, [however], that the Confrontation Clause of

the Sixth Amendment prevents a trial judge from imposing any limits on defense

counsel’s inquiry into the potential bias of a prosecution witness.’ ” (People v.

Williams (1997) 16 Cal.4th 153, 207.) “Generally speaking, the Confrontation

Clause guarantees an opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever extent, the defense

might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15, 20 (per curiam).)

The trial court’s treatment of this issue was correct and did not violate

defendant’s constitutional rights. There was no evidence Michael Durbin had

ingested any drugs on the day of the crimes, and neither counsel suggested they

had evidence he was an habitual user. Moreover, even if he was, neither defense

counsel accepted the trial court’s suggestion to call an expert to lay a foundation

regarding the effect of habitual methamphetamine use on one’s ability to perceive

and recall events. “Evidence of habitual narcotics . . . use is not admissible to

impeach perception or memory unless there is expert testimony on the probable

effect of such use on those faculties.” (People v. Balderas (1985) 41 Cal.3d 144,

191; see also People v. Pargo (1966) 241 Cal.App.2d 594, 600; 3 Witkin, Cal.

35

Evidence (4th ed. 2000) Presentation at Trial, § 266, pp. 337-338.) Defendant

does not persuasively explain how this long-standing evidentiary rule undermined

his ability to effectively cross-examine Michael Durbin or L.R.

Even if the court had erred, we would find any error was harmless.

Defendant was able to impeach Durbin with his two prior felony convictions and

was also able to place before the jury evidence that both Durbin and L.R. had

smoked methamphetamine the day before the crimes. There is no suggestion in

the record, however, that either Durbin or L.R., as a result of their drug use,

misperceived or misrecollected the details of the crimes. They were well

acquainted with defendant, and their account, including details about seeing

defendant choke the victim with a dog chain and beat him with D-cell batteries

placed inside some gardener’s gloves, was amply corroborated by independent

evidence. Moreover, the testimony of both witnesses was clear and direct and

betrayed no suggestion their recall of the night in question was at all impaired by

their previous drug use. In sum, defendant failed to preserve this issue for appeal,

and the trial court did not commit constitutional error, prejudicial or otherwise, in

excluding the evidence of Michael Durbin’s habitual drug use.

B. Admission of Evidence of Uncharged Rape

Defendant raises a number of arguments related to the trial court’s

admission of evidence that five years before the crimes against Uwe Durbin and

L.R., defendant had committed a number of forcible sex crimes against his then

girlfriend, K.K. As we explain, we reject all of these claims.

1. Facts

Prior to trial, the prosecution moved to admit evidence of defendant’s

uncharged sex crimes against K.K. pursuant to Evidence Code section 1108.

Defendant opposed the motion, relying largely on Evidence Code section 1101.

36

The matter was discussed at a hearing, and the trial court made a tentative ruling

admitting the evidence. The court noted the crimes against K.K. were not remote;

the degree of similarity between the past and present crimes, while not “great,”

was sufficient to permit admission of the evidence; and it was “highly relevant on

the issue of disposition to commit sexual offenses.” Although the court was

concerned that proof of the prior uncharged crimes would consume an undue

amount of time and distract the jury, it noted the burden was on the defense to

show that, and it reserved the right to change its ruling if defendant could make an

offer of proof that he intended to call several witnesses to refute the victim. The

court specifically referenced Evidence Code section 352 in its ruling. Defendant’s

request that he be allowed to testify and refute K.K.’s expected testimony without

subjecting himself to cross-examination on other topics was denied because,

according to the trial court, a waiver of one’s Fifth Amendment right was a waiver

for all purposes.7

K.K., a Finnish national, testified she was 22 years old when she met

defendant in February 1992. She began an intimate relationship with him, and

they planned to marry. They had been living with defendant’s mother but were

asked to leave, so they went to defendant’s mother’s place of business, a bail bond

office, to sleep in the back room. Once there, defendant left and did not answer

his telephone or pager for several hours, enraging K.K. When he finally returned,

he and K.K. quarreled, and she broke first his pager and then a telephone.

Defendant began beating her with his fists, throwing her around the office.

According to K.K., defendant then forced her to orally copulate him, before

forcibly sodomizing her. She tried to fight him off but was unsuccessful.


7

As the trial court opined: “A waiver is a waiver is a waiver.”

37

Afterwards, defendant removed a gun from a box in the office and handled it in

her presence, although he did not overtly threaten her with it. She fell asleep, but

the next morning defendant again forcibly raped her and forced her to orally

copulate him. He covered her mouth during the rape to keep her quiet.

A friend came and picked K.K. up and took her to a hospital where she

spoke to a police officer. She did not tell the officer about the gun because she

knew defendant was on parole and “would have gone to jail for a long time.” She

still loved him and even visited him both in jail and in prison. (The jury was not

told why defendant was in jail and prison during that time.) K.K. returned to

Finland in January 1993, explaining that although they still planned to marry, she

was having doubts and was afraid defendant would kill her when he was released

from prison.

Defendant did not object to any of K.K.’s references to jail, prison or her

expressed belief that he might attempt to kill her. In fact, on cross-examination,

defense counsel referred to defendant’s time in Corcoran State Prison and how far

the prison was from Los Angeles, apparently attempting to underscore the depth of

K.K.’s affection for defendant. In response to defense counsel’s question that

defendant “seemed to wander around a lot; is that right?,” K.K. replied: “Yes. He

was pimping women.” Counsel did not ask that the answer be stricken or the jury

admonished.

Defendant did not call any witnesses to refute K.K.’s account.

Following K.K.’s testimony, the trial court, the jury not being present,

noted: “I was not aware when I made the [Evidence Code section] 352 ruling, I

don’t believe, of the fact that you intended to bring out the visits to Corcoran, the

fact that the defendant was on parole or that there was any gun issue in this. [¶] I

assume from your cross-examination that you were aware of this, Mr. Belter.”

Defense counsel explained he had learned of the gun use the day before. The

38

prosecutor then explained: “I found out yesterday, and I told Mr. Belter yesterday

about the gun. I didn’t intend to bring out the Corcoran visits, but Mr. Belter

indicated he was going to bring them out. So they just kind of came out.”

Defendant’s counsel explained that he intended to characterize the crimes against

K.K. as “more of a date-rape” situation in an attempt to minimize their

seriousness. The trial court responded: “Well, I had no idea that either of you

were going to bring out his parole status or imprisonment in Corcoran, which I

think is problematic. But, I mean, there are ways to impeach without bringing that

out, saying you went a long way to see him. I take it it was a tactical decision.”

Following the close of the guilt phase evidence, the trial court reiterated its

concern that the jury had learned of defendant’s parole status and prior

incarceration. The court stated its intention to instruct the jury to consider that

evidence solely for assessing K.K.’s credibility and not to show defendant’s bad

character. The court later so instructed the jury.

2. Discussion

Defendant raises a number of related arguments challenging the admission

of evidence of his uncharged crimes against K.K., but we find none availing

because the evidence was admissible under Evidence Code section 1108. At the

time of defendant’s trial, that section provided in pertinent part: “(a) In a criminal

action in which the defendant is accused of a sexual offense, evidence of the

defendant’s commission of another sexual offense or offenses is not made

inadmissible by Section 1101, if the evidence is not inadmissible pursuant to

Section 352.” (Added by Stats. 1995, ch. 439, § 2, p. 3429.) Defendant first

argues that Evidence Code section 1108 is unconstitutional because it violates his

constitutional right to due process of law. We rejected that precise argument in

People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), certiorari denied sub nomine

39

Falsetta v. California (2000) 529 U.S. 1089, where we explained that although

evidence of a criminal’s propensity had long been excluded in this state, such

“long-standing practice does not necessarily reflect a fundamental, unalterable

principle embodied in the Constitution” (Falsetta, at p. 914), that a rule permitting

admission of such evidence does not offend those fundamental due process

principles (id. at p. 915), and that “the trial court’s discretion to exclude propensity

evidence under section 352 saves section 1108 from [the] defendant’s due process

challenge” (id. at p. 917). We have recently endorsed and applied Falsetta

(People v. Abilez, supra, 41 Cal.4th at pp. 501-502; see also People v. Reliford

(2003) 29 Cal.4th 1007 [assuming Falsetta’s correctness]), as have the Courts of

Appeal (People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704, and cases

cited). In addition, the federal courts follow an analogous rule. (See U.S. v.

LeMay (9th Cir. 2001) 260 F.3d 1018, 1022 [upholding constitutionality of Fed.

Rules Evid., rule 414, 28 U.S.C.].)

Although defendant invites this court to reconsider the correctness of

Falsetta, he proffers no persuasive reason to do so. We thus reject his claim that

Evidence Code section 1108 violates due process.

Defendant next argues that even if Evidence Code section 1108 is

constitutional, the trial court abused its discretion in admitting evidence of his

1992 crimes against K.K. But as respondent argues, Evidence Code section 1108

expressly reserves the trial court’s power to exclude evidence as more prejudicial

than probative under Evidence Code section 352, a matter over which the trial

court exercises broad discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1197;

People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) On balance, we cannot say the

trial court abused its discretion, as the crimes against K.K. occurred only five

years before the L.R. rapes and were relevant to proving the charge that defendant

twice raped L.R. Significantly, the crimes against K.K. were quickly proven, thus

40

supporting the trial court’s decision that, under Evidence Code section 352,

presentation of the evidence would not consume an undue amount of time or

distract the jury from the present charges.8

Defendant argues the trial court’s decision to admit the evidence was made

before the court knew the evidence would include a showing defendant was on

parole, had been incarcerated, and had handled a gun right after the first set of sex

crimes against K.K. He notes the court itself found this additional evidence

“problematic” and argues the court “failed to ‘exclude irrelevant though

inflammatory details surrounding the offense.’ ” But defendant never moved to

exclude those details and in fact elicited some of them himself. When the trial

court opined that it assumed defense counsel’s decision to elicit such evidence was

a tactical one, counsel did not disagree. We conclude the revelation of defendant’s

prior incarceration and parole, and his handling of a firearm, was not so significant

that we may conclude the trial court abused its discretion in admitting it, especially

considering that the defense did not object and the court later instructed the jury

the evidence was admitted for a limited purpose. We assume the jury followed

this instruction. (People v. Romo (1975) 14 Cal.3d 189, 194-195.)

Defendant’s remaining four subclaims are less substantial. (1) That K.K.

declined to press charges and defendant was never convicted of the crimes against

her is irrelevant to the question of admissibility, for Evidence Code section 1108

authorizes the admission of evidence not just of convictions but of a defendant’s

“commission” of prior sex crimes.

(2) Although K.K.’s assertion that she moved back to Finland because she

was afraid defendant might kill her was undoubtedly detrimental to his defense, he


8

K.K.’s testimony consumed less than an hour.

41

did not object or request that the answer be stricken or the jury admonished.

Accordingly, the matter was forfeited. Moreover, any prejudice was minimized

when counsel elicited from K.K. that she had to leave the country in any event

because both her airplane ticket and her visa were expiring.

(3) Although defendant contends the trial court erred by refusing to permit

him to testify and refute K.K.’s testimony without subjecting himself to cross-

examination on other topics, it does not appear the court ever made a final ruling

in this regard, emphasizing that its ruling was tentative. Because defendant never

sought a final ruling, we conclude the present claim was abandoned. (See People

v. Bolin (1998) 18 Cal.4th 297, 312-313 [change of venue motion].) In any event,

the court did not violate defendant’s constitutional rights because he remained free

to testify and defend himself against K.K.’s charges. “A defendant who elects to

testify does not give up his Fifth Amendment rights nor his corresponding

California privilege against self-incrimination (Cal. Const., art. I, § 15) except as

to matters within the scope of relevant cross-examination.” (People v. Tealer

(1975) 48 Cal.App.3d 598, 604; see also People v. Thornton (1974) 11 Cal.3d 738,

760, overruled on another ground in People v. Martinez (1999) 20 Cal.4th 225;

People v. Ing (1967) 65 Cal.2d 603, 611; 3 Witkin, Cal. Evidence, supra,

Presentation at Trial, § 233, p. 302.) Though tactically dangerous, because he

would still have been subject to cross-examination for bias, interest or motive

(People v. Munoz (1984) 157 Cal.App.3d 999, 1026; Simons, Cal. Evidence

Manual (2007) § 3.18, p. 215), defendant could have taken the stand and refuted

K.K.’s testimony, carefully limiting the scope of his testimony, and then objected

to any cross-examination that sought information beyond the scope of his direct

testimony.

(4) Defendant contends that even if the introduction of K.K.’s testimony

was permissible under Evidence Code section 1108, the evidence of his propensity

42

was sufficiently unreliable that it contravened the need for heightened reliability in

capital cases and thus violated his right to due process. (See, e.g., In re Sakarias

(2005) 35 Cal.4th 140, 160 [noting the need for heightened reliability in capital

cases].) But the evidence was relevant to the noncapital part of the case (his rapes

of L.R.), not the capital part (his torture and murder of Uwe Durbin). Although

K.K.’s evidence was also admitted against him at the penalty phase, the jury was

instructed that it must find the crimes against K.K. true beyond a reasonable doubt

before considering them as aggravating evidence, thus satisfying any concerns

about reliability.

In sum, we find the trial court correctly admitted the evidence of

defendant’s prior sex crimes against K.K.

C. Alleged Prosecutorial Misconduct

During trial, Michael Durbin testified that defendant had applied bleach to

Uwe’s wounds, and L.R. testified that she “believed” defendant had applied a

blowtorch to Uwe’s skin. Defendant contends both points were false and the

prosecutor committed misconduct by eliciting the allegedly false testimony, failing

to correct it, and emphasizing both points in closing argument. We conclude

defendant’s failure to object forfeited these claims and that, in any case, the

prosecutor did not commit misconduct.

Michael Durbin identified a picture showing a bottle of bleach at the crime

scene and stated: “I believe they poured it over my brother, over his cuts.” The

medical examiner, however, could not confirm whether bleach had been applied to

the victim’s body, explaining: “I can’t tell for sure. There was nothing — bleach

is somewhat caustic, but I didn’t see anything specific for chemical burns

necessarily. But bleach is not necessarily that caustic, so bleach could have been

applied and I may not have seen it.” In her closing statement, the prosecutor

43

argued that defendant had poured bleach on the victim’s wounds to increase the

pain. In response, defense counsel reminded the jury that this fact could not be

confirmed by the medical examiner, whereupon the prosecutor, in rebuttal,

emphasized Michael Durbin’s testimony and the fact that an uncapped bottle of

bleach had been found at the crime scene.

L.R. testified that when she was in the room next to the victim, “I swear I

heard something that sounded like a torch, and I remember thinking to myself, it

sounds like he [defendant] was melting the plastic on [the victim’s] skin. And I

remember hearing Uwe say ‘Stop, I’ll stop, I’ll be quiet, I’ll stop.’ ” On cross-

examination, she confirmed she heard a blowtorch but admitted she never saw

one. Nor did she actually observe any burn marks on the victim. The medical

examiner testified he found no marks on the victim’s body that were consistent

with injuries from a blowtorch. In closing argument, the prosecutor mentioned

L.R.’s testimony about the blowtorch and defense counsel reminded the jury her

testimony could not be confirmed by the medical evidence.

To preserve a claim of prosecutorial misconduct, a defendant must make a

timely and specific objection. Failure to do so forfeits the issue for appeal.

(People v. Gray (2005) 37 Cal.4th 168, 215.) “Because we do not expect the trial

court to recognize and correct all possible or arguable misconduct on its own

motion [citations], defendant bears the responsibility to seek an admonition if he

believes the prosecutor has overstepped the bounds of proper comment, argument,

or inquiry.” (People v. Visciotti (1992) 2 Cal.4th 1, 79.)

Because defendant failed to object both to the introduction of the now

challenged evidence and also to the prosecutor’s closing argument, he forfeited

these claims. Defendant contends he was relieved from objecting because any

objection would have been futile (People v. Hill (1998) 17 Cal.4th 800, 820), but

we disagree. If the evidence was impermissible, defendant should have raised the

44

issue with the trial court, and he presents no reason why an objection would have

been futile. His further argument — that objecting would simply have

“reinforc[ed] the highly inflammatory details” — would constitute an exception

that would swallow the rule, for that could be true in nearly every case in which a

defendant fails to object. We conclude the issue was not properly preserved for

appeal.

Nor would we find reversible error even were we to assume the issue was

properly before us. Although “a prosecutor’s knowing use of false evidence or

argument to obtain a criminal conviction or sentence deprives the defendant of due

process” (People v. Sakarias (2000) 22 Cal.4th 596, 633), defendant identifies

nothing more than a difference of opinion regarding whether the victim’s assailant

used bleach or a blowtorch. Perhaps Michael Durbin, L.R., or both were

mistaken, but that is not the same as false testimony. Perhaps defendant used a

blowtorch merely to scare the victim. Perhaps defendant used bleach in a way that

would not be detected later, a possibility the medical examiner mentioned. These

matters were properly left to the trier of fact to assess.9 In short, we find no

prosecutorial misconduct.

D. Allegedly Improper Unanimity Instruction

The prosecution presented to the jury two theories of criminal liability for

murder: defendant was either a direct perpetrator (i.e., he killed Uwe Durbin) or

an aider and abettor (i.e., he helped one of the codefendants kill him). The trial

court instructed the jury that “[y]ou need not unanimously agree whether a

defendant is an aider and abettor or a direct perpetrator, so long as you’re

9

The trial court was apparently convinced, for it mentioned that defendant

poured bleach on the victim when it explained why it was denying defendant’s
motion for a reduced sentence.

45

convinced beyond a reasonable doubt that he or she was one or the other.”

Defendant contends this instruction violated his right to heightened reliability of

jury decisionmaking in capital cases as required by the Eighth Amendment to the

United States Constitution and article I, section 17 of the California Constitution.

We disagree.

“It is well settled that, to properly convict, a jury must unanimously agree

that the defendant is guilty of the statutory offense of first degree murder beyond a

reasonable doubt, but it need not decide which of several proffered theories of first

degree murder liability governs the case.” (People v. Lewis (2001) 25 Cal.4th 610,

654.) Thus, the jury need not decide unanimously whether a defendant was a

direct perpetrator or an aider and abettor, so long as it is unanimous that he was

one or the other. (People v. Russo (2001) 25 Cal.4th 1124, 1133; People v.

Jenkins (2000) 22 Cal.4th 900, 1025; People v. Santamaria (1994) 8 Cal.4th 903,

918-919.) Nor is such jury unanimity required as a matter of federal due process.

(Schad v. Arizona (1991) 501 U.S. 624 (plur. opn.).)

Although defendant recognizes the force of these precedents, he argues

these cases addressed the issue of due process only and asserts we should reach a

different result under Eighth Amendment principles “[d]ue to the ‘uniqueness’ of

the death penalty” and the oft-mentioned requirement that capital cases require

heightened reliability. (See, e.g., People v. Bloom (1989) 48 Cal.3d 1194, 1228

[“the United States Supreme Court has frequently stated that the Eighth

Amendment and evolving standards of societal decency impose a high

requirement of reliability on the determination that death is the appropriate penalty

in a particular case”].) We are unpersuaded that the absence of a unanimity

requirement produces a verdict that satisfies fundamental fairness under the due

process clause, yet violates “evolving standards of decency that mark the progress

of a maturing society.” (Trop v. Dulles (1958) 356 U.S. 86, 101; see People v.

46

Moon (2005) 37 Cal.4th 1, 47.) In any event, undisputed evidence showed the

victim died of multiple gunshot wounds and was last seen alive when defendant

loaded him into his car and drove away with Phillips in the direction of the

Highway 91 freeway, where the body was eventually found. Because the jury

sustained the section 12022.5 allegation, it necessarily found beyond a reasonable

doubt that defendant personally used a firearm during the commission of the

murder. Accordingly, we are confident the jury unanimously found defendant was

the direct perpetrator of the killing. Any possible instructional error regarding

unanimity was thus harmless under any standard.

E. Allegedly Improper Instruction on Torture

Defendant was charged with a torture-murder special circumstance, that is,

that “[t]he murder was intentional and involved the infliction of torture.” (§ 190.2,

subd. (a)(18).) Although the jury sustained this allegation, defendant contends we

must vacate this finding because a small discrepancy between the written

instructions provided the jury and the instructions read orally to it may have led

the jury to sustain the allegation without finding he intended personally to inflict

torture.

The jury was provided a written version of CALJIC No. 8.81.18, which

provided: “To find that the special circumstance, referred to in these instructions

as murder involving infliction of torture, is true, each of the following facts must

be proved: [¶] 1. The murder was intentional; and [¶] 2. [The] [A] defendant

intended to inflict extreme cruel physical pain and suffering upon a living human

being for the purpose of revenge, extortion, persuasion or for any sadistic

purpose[.] [; and [¶] 3. The defendant did in fact inflict extreme cruel physical pain

47

and suffering upon a living human being no matter how long its duration.][10]

[¶] Awareness of pain by the deceased is not a necessary element of torture.”

(Italics added.) On this written form, the word “The” in part 2 is crossed out.

When the trial court instructed the jury orally, however, it told the jury that

to sustain the special circumstance allegation, it must find “[t]he defendant

intended to inflict extreme cruel physical pain and suffering . . . .” (Italics added.)

Defendant thus observes the jury was presented with slightly discordant

versions of the instruction: The written instruction required it to find “a

defendant” intended to torture, whereas the oral instruction required it to find “the

defendant” did so. This small discrepancy is critical, he claims, because he and

codefendant Phillips were tried together and also because the jury heard that

Charone Parker, Norman Culpepper and Michael Woods were active participants

in the events that culminated in Uwe Durbin’s death. Without a specific finding

that he personally intended to torture the victim, defendant claims, the jury may

have believed that although he may have participated in the acts of torture, only

Phillips, Parker, Culpepper or Woods (or some combination of those four) actually

harbored the requisite intent to torture the victim. (See People v. Petznick (2003)

114 Cal.App.4th 663, 686 [held the phrase “a defendant” could have referred to

“any one of the four participants” in the crime].)

We of course presume “that jurors understand and follow the court’s

instructions.” (People v. Gray, supra, 37 Cal.4th at p. 231.) This presumption

includes the written instructions. (People v. Davis (1995) 10 Cal.4th 463, 542.)

To the extent a discrepancy exists between the written and oral versions of jury


10

This third prong was eliminated by Proposition 115 in 1990. (See People v.

Bemore (2000) 22 Cal.4th 809, 839, fn. 17.)

48

instructions, the written instructions provided to the jury will control. (People v.

Osband (1996) 13 Cal.4th 622, 717; People v. Crittenden (1994) 9 Cal.4th 83,

138.) When an appellate court addresses a claim of jury misinstruction, it must

assess the instructions as a whole, viewing the challenged instruction in context

with other instructions, in order to determine if there was a reasonable likelihood

the jury applied the challenged instruction in an impermissible manner. (People v.

Jablonski (2006) 37 Cal.4th 774, 831; People v. Slaughter (2002) 27 Cal.4th 1187,

1216.)

We agree the written (but not the oral) instruction defining torture in this

case was technically erroneous, for the torture-murder special circumstance

requires proof that the defendant himself intended to torture the victim. (People v.

Davenport (1985) 41 Cal.3d 247, 271.) We explained in Davenport that although

the express words of the special circumstance set forth in section 190.2,

subdivision (a)(18) do not require either the intent to kill or to torture, we interpret

the statutory language to require such dual intent, both because such meaning is

most consistent with the electorate’s probable intent in enacting the provision and

to ensure the constitutionality of the law. (Davenport, at pp. 260-271; People v.

Bemore, supra, 22 Cal.4th at p. 839.) Thus, to sustain a special circumstance that

a killing was committed with torture, it must be proved that “the defendant

intended to . . . torture the victim.” (Davenport, at p. 271, italics added.) The

written instructions did not require the jury to make such a finding.

Although the written instructions contained a technical error, the error was

harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,

24.) First, the court orally instructed the jury with the correct instruction.

Although this court gives priority to the written version of an instruction when a

conflict exists between the written and oral versions, the jury is not informed of

this rule. It is thus possible the jury followed the oral instruction. Second, there is

49

no indication the jury was aware of the slight difference between the written and

oral versions of the instructions, as it asked no questions about this point. Third,

the evidence was overwhelming that defendant beat, tortured and killed Uwe

Durbin. Two eyewitnesses (Michael Durbin and L.R.), who knew both defendant

and the victim, identified defendant and testified, describing his activities the night

of the crimes. Their accounts of how defendant beat the victim with the batteries

inside the gardener’s gloves were largely consistent with the injuries the victim

sustained. The jury betrayed no confusion, convicting defendant of all charges.

“[T]he trier of fact may find intent to torture based on all the circumstances

surrounding the charged crime.” (People v. Bemore, supra, 22 Cal.4th at p. 841.)

Finally, considering the other elements of the torture instruction, which the jury

necessarily found true — that the murder was intentional and defendant did in fact

inflict cruel physical pain and suffering — it would have been impossible on these

facts for the jury to have found defendant did not intend to torture the victim.

Considering all these factors, we conclude the instructional error was harmless

beyond a reasonable doubt.

People v. Petznick, supra, 114 Cal.App.4th 663, cited by defendant in

support, is inapposite. Petznick, as here, involved a murder in which several

defendants were alleged to have participated. As here, the trial court incorrectly

used the indefinite article (“a defendant” rather than “the defendant”) in

instructing the jury on the torture-murder special circumstance. The similarity

between the two cases, however, ends there. Unlike in this case, the court in

Petznick did not correctly instruct the jury orally from the bench. Nor, unlike in

this case, was there strong evidence in Petznick showing the defendant in that case

personally intended to torture his victim. The Petznick court noted these factors in

concluding the error could not be found harmless. (E.g., id. at p. 686 [evidence

the defendant intended torture not “so overwhelming as to convince us the error

50

was harmless”].) Petznick thus does not support a finding the error here was

prejudicial.

Although defendant contends the instructional error violated both state

law11 and his constitutional rights to due process and a jury trial under the Fifth,

Sixth and Fourteenth Amendments to the United States Constitution, we find the

constitutional error was harmless beyond a reasonable doubt (Neder v. United

States (1999) 527 U.S. 1, 8-12, 15-16; Chapman v. California, supra, 386 U.S. at

p. 24) and, a fortiori, the state law error was harmless under People v. Watson

(1956) 46 Cal.2d 818, 836.

F. Allegedly Improper Use of CALJIC No. 17.41.1

Defense counsel, together with the prosecutor, jointly requested the trial

court to instruct the jury at the guilt phase with CALJIC No. 17.41.1. The court

accordingly instructed the jury that “[t]he integrity of a trial requires that jurors, at

all times during their deliberations, conduct themselves as required by these

instructions. Accordingly, should it occur that any juror refuses to deliberate or

expresses an intention to disregard the law or to decide the case based on penalty

or punishment, or any other improper basis, it is the obligation of the other jurors

to immediately advise the Court of the situation.”

Defendant contends this instruction violated his state and federal

constitutional rights. He acknowledges, however, that although in People v.

Engelman (2002) 28 Cal.4th 436, decided after the trial in this case, we


11

Although defendant does not elaborate on the state law point, we assume he

means to argue the trial court failed in its duty to instruct on the “general
principles of law relevant to the issues raised by the evidence and necessary for the
jury’s understanding of the case.” (People v. Coddington (2000) 23 Cal.4th 529,
592-593, overruled on another ground in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069, fn. 13.)

51

disapproved its use in future trials (id. at p. 449), we held that giving the

instruction in that case did not violate the defendant’s constitutional or statutory

rights. Defendant presents no reason why Engelman should not control here.

IV. NONCAPITAL SENTENCING ISSUES

A. Firearm-use Enhancement for Rape

In addition to the death penalty, defendant was sentenced to serve the upper

term of eight years for each of his two convictions for forcibly raping L.R. (§ 261,

subd. (a)(2)), plus an enhancement term of four years each for his use of a firearm

(§ 12022.5, subd. (a)). He contends both enhancements must be vacated for lack

of sufficient evidence he used a firearm in connection with the rapes. We

disagree.

The standard of appellate review for determining the sufficiency of the

evidence is settled. “ ‘On appeal we review the whole record in the light most

favorable to the judgment to determine whether it discloses substantial evidence

— that is, evidence that is reasonable, credible, and of solid value — from which a

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

(People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979)
443 U.S. 307, 317-320.)’ ” (People v. Abilez, supra, 41 Cal.4th at p. 504.)

“Whether a defendant used a firearm in the commission of an enumerated offense

is for the trier of fact to decide. (People v. Masbruch (1996) 13 Cal.4th 1001,

1007.) We review the sufficiency of the evidence to support an enhancement

using the same standard we apply to a conviction. (People v. Olguin (1994) 31

Cal.App.4th 1355, 1382.) Thus, we presume every fact in support of the judgment

the trier of fact could have reasonably deduced from the evidence.” (People v.

Carrasco (2006) 137 Cal.App.4th 1050, 1058.)

52

Proof of firearm use during a felony does not require a showing the

defendant ever fired a weapon. “Although the use of a firearm connotes

something more than a bare potential for use, there need not be conduct which

actually produces harm but only conduct which produces a fear of harm or force

by means or display of a firearm in aiding the commission of one of the specified

felonies. ‘Use’ means, among other things, ‘to carry out a purpose or action by

means of,’ to ‘make instrumental to an end or process,’ and to ‘apply to

advantage.’ (Webster’s New Internat. Dict. (3d ed. 1961).) The obvious

legislative intent to deter the use of firearms in the commission of the specified

felonies requires that ‘uses’ be broadly construed.” (People v. Chambers (1972)

7 Cal.3d 666, 672, italics added.) “Thus when a defendant deliberately shows a

gun, or otherwise makes its presence known, and there is no evidence to suggest

any purpose other than intimidating the victim (or others) so as to successfully

complete the underlying offense, the jury is entitled to find a facilitative use rather

than an incidental or inadvertent exposure. The defense may freely urge the jury

not to draw such an inference, but a failure to actually point the gun, or to issue

explicit threats of harm, does not entitle the defendant to a judicial exemption from

section 12022.5[, subdivision] (a).” (People v. Granado (1996) 49 Cal.App.4th

317, 325; see People v. Carrasco, supra, 137 Cal.App.4th at pp. 1059-1060.)

Nor must the firearm “use” be strictly contemporaneous with the base

felony. “In considering whether a gun use occurred, the jury may consider a

‘video’ of the entire encounter; it is not limited to a ‘snapshot’ of the moments

immediately preceding a sex offense. Thus, a jury could reasonably conclude that

although defendant’s presence with the victims was sporadic, the control and fear

created by his initial firearm display continued throughout the encounter.”

(People v. Masbruch, supra, 13 Cal.4th at p. 1011.) Accordingly, defendant’s jury

was instructed that “[a] gun need not be continually displayed during the course of

53

a crime in order for it to be personally used within the meaning of Penal Code

section 12022.5, [s]ubdivision (a).”

Masbruch is applicable here. Defendant kidnapped L.R. and her family at

gunpoint and threatened that if they did not comply with his commands, he would

not “hesitate to blow you and your kids away.” L.R. was afraid for herself, her

boyfriend and her three children, because defendant had a gun. At defendant’s

house, she heard a gunshot when defendant shot Uwe Durbin in the knee,

establishing that defendant’s threats were not idle ones. When her boyfriend

Michael Durbin protested, she heard defendant tell him to “[s]it down or you’re

next.” Defendant told her his gun contained 16 or 17 bullets. Although the gun

was passed around among the codefendants, defendant apparently retained control

and access to it, at one point brandishing it. When defendant first raped L.R., in

the park, he told her Michael would live if he cooperated, but that Uwe was going

to be killed. When he instructed her to take down her pants, she “kept telling him

[she] didn’t want to die.” The second rape occurred in the house where defendant

and his confederates were using the gun to hold L.R. and her family. Under these

circumstances, the entire “video” of the lengthy criminal encounter between

defendant and L.R., beginning with his initial display of the firearm to terrorize

her and her family, his threats to use the gun on all of them, and his actual use of it

to injure Uwe, are sufficient to prove he used the firearm when he raped L.R. on

both occasions.

Defendant argues there was no evidence that at the actual time of either

rape he was in actual possession of the gun, but this compartmentalization of the

ongoing criminal event improperly attempts to take a “snapshot” of the crime.

(People v. Masbruch, supra, 13 Cal.4th at p. 1011.) He contends Masbruch is

distinguishable because, in that case, the defendant used a firearm, bound the two

victims, committed other crimes in the house, and then committed sex acts against

54

the victims. “This scenario,” defendant claims, “is qualitatively different from the

present case where the gun was shared by other people in a location different from

the place where the rapes were committed.” We agree the fact situation here,

where the sex crimes occurred in a location remote from the weapon, is different

from that posed in Masbruch, but we disagree the jury must necessarily reach a

different result. Because there was evidence from which a reasonable jury could

find that “the control and fear created by [defendant’s] initial firearm display

continued throughout the encounter” (Masbruch, at p. 1011), we conclude

substantial evidence supports the two section 12022.5 firearm enhancements.

B. Right to a Jury Determination of Aggravating Sentencing Factors

For his crimes against L.R., defendant was convicted of two counts of

forcible rape with firearm use. (§§ 261, subd. (a)(2), 12022.5.) The trial court

sentenced defendant to the upper term of eight years for each count and the middle

term of four years for each firearm-use enhancement, and ordered all terms to be

served consecutively. Defendant contends the imposition of the upper term for

both counts, as well as the court’s decision to impose consecutive sentences,

violated his right under the Sixth Amendment to the United States Constitution to

a jury determination of all critical facts supporting a greater potential sentence.

(Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]; People v. Black

(2007) 41 Cal.4th 799.) As we explain, even if the trial court erred in imposing

the upper term for one of the rape counts, any error was harmless beyond a

reasonable doubt.

1. Facts

The indictment filed March 24, 1998, charged defendant with two counts of

having “wilfully and unlawfully, by means of force, violence and fear of

immediate and unlawful bodily injury to a person, . . . accomplish[ed] an act of

55

sexual intercourse with and against the will of [L.R.], a female person not his

wife” in violation of section 261, subdivision (a)(2). The indictment further

charged that in the commission of these crimes, defendant “personally used a

firearm, to wit, a HANDGUN, within the meaning of Penal Code sections

12022.5(a) and 1192.7(c)(8).” The jury’s verdict stated it found defendant had

committed these crimes “as charged” in the indictment and that defendant “did

personally use a firearm” in committing those crimes.

At sentencing, the trial court explained its decision to impose the upper

term for both rape counts and to have defendant serve the sentences consecutively

rather than concurrently: “I do find that the two [rape] counts were committed at

separate times and places, one on the kitchen table at the defendant’s house and

one several hours apart in a vehicle, in a car, with the victim’s six-month-old child

in the back seat. Between those times, the defendant had ample time to reflect and

to cease his behavior, which he did not.

“I, therefore, find that the two rapes were committed on separate occasions,

for separate purposes, within the meaning of Penal Code Section 667.6,

subdivision (d), and [former rule 426(a)(2) of the California Rules of Court].

There were also separate threats of violence.

“I also make the further finding that as to each separate count of rape, the

victim was not raped for sexual reasons, but for purposes of control and abuse to

prevent her retaliation or reporting of the events and to intimidate and to

sadistically brutalize her.

“While these two rapes did occur during a continuous course of conduct

amounting to the kidnapping, which is a special circumstance attached to Count I,

they were separate acts with separate intents. Therefore, the Court chooses to

impose sentence under [section 667.6, subdivision (d) which, at the time of

56

sentencing, permitted full-term consecutive sentencing for enumerated sex

crimes].[12]

“As to [the rape in the kitchen13], the Court chooses to impose the upper

term of eight years for these reasons:

“The victim was vulnerable. She was in fear for her life. She was unable

to resist. She had been accompanied by and separated from her husband [sic] and

her three children.

“Secondly, the defendant’s criminal background is appalling and shows a

history and pattern of increasingly serious and violent conduct.

“Third, the acts showed planning and premeditation. The defendant took

the trouble to isolate the victim from her husband [sic] and children, and he took

her from behind to demean and debase her.

“I find absolutely no mitigating circumstances, and for that reason, I will

impose the upper term of eight years.

“To that term, I will add the mid term of four years for the use of the gun. I

don’t think the use of the gun in connection with this rape was particularly

aggravated, although it was used as a means of coercion and control.”

The trial court’s reasons for sentencing defendant to an upper, consecutive

term for count II, the rape in the car, were almost identical: the vulnerability of


12

The trial court apparently misspoke and identified subdivision “(e)” as the

controlling provision. But the court’s reference to “separate acts with separate
intents” makes clear it was relying on section 667.6, subdivision (d), which
permits full-term consecutive sentences for certain sex crimes “if the crimes
involve . . . the same victim on separate occasions.”

13

The trial court mistakenly referred to this count as “Count II.” The record

shows, however, that the prosecution elected that count II refer to the rape that
occurred first in time, i.e., the one in the car.

57

the victim, her fear that he would hurt her or her child, defendant’s planning and

premeditation, and his acts to isolate his victim. For this count, however, the court

did not mention defendant’s criminal history.

2. Discussion

The United States Supreme Court recently found California’s determinate

sentencing law (DSL) failed in some respects to accord criminal defendants their

Sixth Amendment right to a jury determination of all critical facts supporting an

enhanced sentence. As the high court explained: “Under California’s DSL, an

upper term sentence may be imposed only when the trial judge finds an

aggravating circumstance. [Citation.] An element of the charged offense,

essential to a jury’s determination of guilt, or admitted in a defendant’s guilty plea,

does not qualify as such a circumstance. [Citation.] Instead, aggravating

circumstances depend on facts found discretely and solely by the judge. In accord

with Blakely [v. Washington (2004) 542 U.S. 296], therefore, the middle term

prescribed in California’s statutes, not the upper term, is the relevant statutory

maximum. 542 U.S., at 303, 124 S.Ct. 2531 (‘[T]he “statutory maximum” for

Apprendi purposes is the maximum sentence a judge may impose solely on the

basis of the facts reflected in the jury verdict or admitted by the defendant

(emphasis in original)). Because circumstances in aggravation are found by the

judge, not the jury, and need only be established by a preponderance of the

evidence, not beyond a reasonable doubt, [citation], the DSL violates Apprendi’s

bright-line rule: Except for a prior conviction, ‘any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.’ ” (Cunningham v. California, supra, 549

U.S. at p. ___ [127 S.Ct. at p. 868], quoting Apprendi v. New Jersey (2000) 530

U.S. 466, 490, second italics added.)

58

In People v. Black, supra, 41 Cal.4th 799, we determined that — even

under Cunningham — “so long as a defendant is eligible for the upper term by

virtue of facts that have been established consistently with Sixth Amendment

principles, the federal Constitution permits the trial court to rely upon any number

of aggravating circumstances in exercising its discretion to select the appropriate

term by balancing aggravating and mitigating circumstances, regardless of

whether the facts underlying those circumstances have been found to be true by a

jury. ‘Judicial factfinding in the course of selecting a sentence within the

authorized range does not implicate the indictment, jury-trial, and reasonable-

doubt components of the Fifth and Sixth Amendments.’ (Harris v. United States

(2002) 536 U.S. 545, 558.) Facts considered by trial courts in exercising their

discretion within the statutory range of punishment authorized for a crime ‘have

been the traditional domain of judges; they have not been alleged in the indictment

or proved beyond a reasonable doubt. There is no reason to believe that those who

framed the Fifth and Sixth Amendments would have thought of them as the

elements of the crime.’ ” (Id. at p. 813.) We also reiterated that prior convictions

were excepted from the rule of Apprendi/Blakely/Cunningham (Black, at p. 818;

Blakely v. Washington, supra, 542 U.S. at p. 301) and in fact found the sentencing

court in Black did not err by relying in part on the defendant’s prior felony

convictions to sentence him to the upper term.

We note at the outset that the rules set forth in Cunningham v. California,

supra, 549 U.S. ___ [127 S.Ct. 856], and People v. Black, supra, 41 Cal.4th 799,

apply to this case because it was pending on appeal when those decisions were

made. (People v. Amons (2005) 125 Cal.App.4th 855, 863.)

The sentences for the two rape counts require different analyses. Taking

the second crime first — count III, the rape of L.R. in the kitchen — the trial court

justified its sentence choice of the upper term in part by mentioning that “the

59

defendant’s criminal background is appalling and shows a history and pattern of

increasingly serious and violent conduct.” This evidence was presented in the

penalty phase as aggravating evidence and was also available to the trial court

from the probation report, which it had read. That report indicated that defendant

suffered an uninterrupted history of criminal behavior beginning in 1985, when at

the age of 19 he was convicted of receiving stolen property. (§ 496.) Paroled in

March 1987, he was convicted less than one year later, in August 1988, of

misdemeanor false imprisonment (§ 236) and sentenced to one year in jail. In July

1989, having apparently been released from county jail, he was convicted again,

this time of felony possession of a controlled substance while armed with a

firearm (Health & Saf. Code, § 11350, subd. (a); Pen. Code, § 12020, subd. (a)).

In February 1990, he was convicted of forgery (§ 470), a felony, and sentenced to

four years in prison. He was paroled approximately two years later in 1992, but

had his parole revoked at least four times in the next four years before finally

being discharged from parole in 1997, just a few months before he tortured and

murdered Uwe Durbin and raped L.R.

As in People v. Black, we conclude this evidence of defendant’s criminal

history establishes an aggravating circumstance that independently satisfies the

Sixth Amendment to the United States Constitution. “The United States Supreme

Court consistently has stated that the right to a jury trial does not apply to the fact

of a prior conviction. [Citations.] ‘[R]ecidivism . . . is a traditional, if not the

most traditional, basis for a sentencing court’s increasing an offender’s

sentence.’ ” (People v. Black, supra, 41 Cal.4th at p. 818.) As we explained in

Black, rule 4.421(b)(2) of the California Rules of Court provides that it is a

circumstance in aggravation if a “defendant’s prior convictions as an adult . . . are

numerous or of increasing seriousness.” Defendant’s criminal history adequately

proves this point: He began his young adult life with a felony conviction for

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receiving stolen property, followed immediately by a misdemeanor false

imprisonment, then a drug case with a firearm, then a felony forgery with multiple

parole violations. It appears that never during all this time did defendant avoid

contact with the criminal justice system for more than one year. We conclude the

evidence of his criminal history, including his recidivism, satisfies the Sixth

Amendment. (Black, at pp. 818-820.) The trial court thus did not err in

sentencing him to the upper term for count III.

The trial court’s decision to sentence defendant to the upper term for count

II, the rape in the car, requires a somewhat different analysis because in choosing

the upper term the court did not state it was relying on defendant’s criminal

history. The sentencing court’s failure expressly to cite defendant’s criminal

history as an aggravating factor when sentencing for this crime arguably should

make no difference, for his criminal history was the same for both rapes. We need

not reach the question of error, however, because even assuming the court erred in

sentencing defendant to the upper term on this count, the error was harmless

beyond a reasonable doubt. (People v. Sandoval (2007) 41 Cal.4th 825, 838;

Chapman v. California, supra, 386 U.S. at p. 24.) To determine whether such

error is harmless, we ask “whether, if the question of the existence of an

aggravating circumstance or circumstances had been submitted to the jury, the

jury’s verdict would have authorized the upper term sentence.” (Sandoval, at

p. 838.) More precisely, we must ask whether we can conclude, “beyond a

reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard,

unquestionably would have found true at least a single aggravating circumstance

had it been submitted to the jury.” (Id. at p. 839.)

Applying that standard here, we conclude any possible Cunningham/Black

error was harmless beyond a reasonable doubt. In sentencing defendant to an

upper term for count II, the trial court mentioned the vulnerability of the victim,

61

her fear that he would hurt her or her child, defendant’s planning and

premeditation, and his acts to isolate his victim. The first of these factors — the

victim’s vulnerability — corresponds to rule 4.421(a)(3) of the California Rules of

Court. L.R. testified defendant took her by car to an isolated place with her six-

month-old baby in the car. Her other two children and their father, Michael

Durbin, were being held at gunpoint in defendant’s house. L.R. knew defendant

had already shot Uwe Durbin and that his confederates were torturing and would

probably kill him. She understandably testified she was afraid for her life.

Defendant had every incentive to dispute this evidence, but his only

evidence was his own pretrial statement to police denying that he raped L.R.

Other than this out-of-court statement, he presented no evidence suggesting L.R.

testified untruthfully. Indeed, the evidence that defendant had, more than once,

sexually assaulted his previous fiancée, K.K., tended to support L.R.’s credibility.

The jury was thus presented with a stark choice, and it chose to believe

L.R., convicting defendant of rape. Indeed, it convicted defendant of all charges,

disbelieving his every denial. Under these circumstances, had the issue of L.R.’s

vulnerability or her isolation been tendered to the jury, we conclude beyond a

reasonable doubt that the jury, applying the same standard, would have sustained

the allegation. Accordingly, the Cunningham/Black error with respect to count II

was harmless beyond a reasonable doubt.

Finally, defendant contends the trial court violated his Sixth Amendment

rights by sentencing him to serve his sentences consecutively, relying on factors

that he neither admitted nor were found true by the jury beyond a reasonable

doubt. Because the Cunningham/Black rule does not apply to the sentencing

choice to impose consecutive rather than concurrent sentences (People v. Black,

supra, 41 Cal.4th at pp. 820-823), we reject this contention.

62

V. PENALTY PHASE

A. Discharge of Juror No. 5

1. Introduction

Defendant is African-American. One African-American served on his jury:

Juror No. 5. That juror joined the other 11 jurors to convict defendant on all

counts at the guilt phase of the trial. Following the presentation of evidence at the

penalty phase, the jury retired to deliberate the question of penalty. In the middle

of these penalty phase deliberations, Juror No. 1 sent the court a complaint about

Juror No. 5. As discussed fully below, a lengthy investigation into the complaint

ensued. This investigation, which involved questioning each of the jurors

individually, revealed that Juror No. 5, although he had initially voted for death,

changed his mind and was the only juror holding out for a life sentence. He

explained his decision, both to the other jurors and to the trial court, as being

based on his assessment of the strength of the mitigating evidence showing that

defendant had been raised in an extremely dysfunctional family. Juror No. 5

asserted he ultimately found those mitigating circumstances predominated

because, being African-American himself and having raised a son, he believed he

had some insight into the negative family dynamics and harsh circumstances in

which defendant was raised. After its investigation, the trial court — citing

multiple reasons — removed Juror No. 5 and replaced him with an alternate juror.

The court later removed that juror as well and appointed a second alternate juror.

The jury as finally reconstituted eventually sentenced defendant to death.

Defendant contends the trial court’s removal of Juror No. 5 violated his

right to a fair and impartial jury, as well as a unanimous jury, under the Sixth and

Fourteenth Amendments to the United States Constitution. He also contends the

court’s action violated his rights under section 1089. As we explain, because it

63

was not shown to a demonstrable reality that Juror No. 5 was unable to perform

his duty as a juror, the trial court erred under section 1089 in removing him from

the jury. This conclusion, based on state law, obviates the need to decide whether

removal of Juror No. 5 also violated defendant’s constitutional rights. (See People

v. Brown, supra, 31 Cal.4th at p. 534 [well-established rule requires the resolution

of statutory claims before constitutional ones].)

2. Facts

a. Introduction

The jury began penalty deliberations on March 8, 2000, but did not reach a

verdict that day. When the jury retired for the evening, it was split, with two

jurors voting for life. At that time, Juror No. 5 had joined nine others in voting for

the death penalty. When the jury reconvened the next day, March 9, 2000, the two

jurors who had favored a life sentence announced they had changed their minds

and would now join the other jurors to return a death verdict. Juror No. 5

announced, however, that he had also changed his mind and now favored life

imprisonment. The jury continued deliberations but could not reach a decision by

the end of the day, a Thursday. Because the trial court had not usually held trial

on Fridays, some of the jurors had made personal plans for that Friday, so the

court instructed the jury to return on Monday.

After the other jurors had departed, Juror No. 1 called the clerk and

informed her that he had information about possible juror misconduct. The court

advised the juror to write down his concerns and submit them to the court the next

day.

b. The Letter

The following day, Juror No. 1 submitted the following typewritten note to

the trial court: “I am a member of [defendant’s jury]. I have serious issues of

64

potential jury misconduct, these issues are as follows: One particular juror is

basing his conclusions on facts that were not in evidence [i.e.,] coming to his own

independent conclusions, because he knows. The same juror has now decided that

he is not able to sentence the defendant to death because he just can’t do it and

when confronted by the other 11 jurors on his reason, because he was asked at the

beginning, he has suddenly changed his mind an[d] only offers the fact that we are

not ‘Black’ and would not understand. Correct me if I am wrong but was [B]lack

ever an issue.

“The same juror stated that in his opinion life was worse than the death

[penalty], again forgive me if I’m wrong but did you not explain things to the

contrary[?] This same juror also stated to me something during a couple of

breaks, for which we were not suppose[d] to be discussing this info[rmation], and

up until now did not make any sense to me until such time as our deliberations

began but that this is what you expect when you have no authority figure, this type

of behavior and how can you hold someone responsible for their actions, leading

me to believe that his mind was made up at the beginning instead of at the end.

“He has been asked if he could consider relevant information and continues

with the ‘I do not expect you to understand[.’] We are trying your honor but at the

present time see no end, sadly enough it is becoming a great source [of]

aggravation for all those concerned.”

The note was unsigned and contained these handwritten notations: “The

juror was also noted to state ‘If this guy came from a good family + had a college

ed[ucation] then I’d say “burn him[.]” ’ But Black people don’t admit being

abused[.] ‘It’s a father + son thing. You can’t understand — you[’re] not Black.’

THIS IS IRRELEVANT! + not an issue in deliberations.”

Eight additional handwritten notations on the letter, each preceded by a

check mark, stated:

65

“Conclusion not based on fact

“Own ideas of what[’]s worse death/life

“Ignoring admonishments

“Using own opinions

“[not] considering of evidence

“[not] following instruc[tions]

“Using Black cultural opinions

“Ignoring Judge[’]s instructions.”

The trial court summarized the potential problems raised by Juror No. 1’s

allegations: First, that Juror No. 5 may be relying on facts not in evidence to reach

a decision. Second, that Juror No. 5, contrary to his voir dire statements, may not

be able to sentence someone to suffer the death penalty. Third, that Juror No. 5

may have been relying on race or racial stereotypes to render a verdict. Fourth,

that Juror No. 5 may believe that life imprisonment was a more severe penalty

than death. Fifth, that Juror No. 5 may have discussed the case outside the jury

room. Sixth, that Juror No. 5 may not be deliberating because he did not expect

the other jurors to understand.

After summarizing these concerns, the court opined that it would not

investigate the first issue — relying on facts not in evidence — because what Juror

No. 5 was accused of doing is “entirely appropriate for discussion in the jury

room. There’s no misconduct there.” Moreover, regarding the handwritten list of

eight items, the court stated it did not intend to investigate those either, explaining

those were Juror No. 1’s conclusions and “That’s for us to decide.” The parties

agreed with the court that the most immediate concern was the discussion of the

case outside the jury room.

After discussing the issues with the attorneys, the trial court opined: “I

think we narrowed it down really to [these] particular areas: The comments made

66

outside the jury room, the apparent forming of opinions in the guilt phase after

only one witness and the attempted transmission of these opinions to other jurors,

potentially considering facts not in evidence, and the concern that he believes life

is worse than death, which may need an instruction.” The court then examined all

the jurors individually, beginning with Juror No. 1 and finishing up with Juror

No. 5, before deciding to excuse Juror No. 5.

c. The Trial Court’s Ruling

The trial court’s ruling was extensive, and we quote it here verbatim: “Let

me make some factual findings first, because we had a fairly extensive hearing

both today and last week.

“First of all, on voir dire [Juror No. 5] said under direct questioning that he

would ignore race, and I recall specifically his body language and demeanor and

his questionnaire were somewhat evasive. I remember him crossing his arms and

glaring under follow-up questioning quite clearly, particularly the issues

concerning race and the portions of the questionnaire that he actually failed to

complete, and we had to follow up, asking for how he rated himself and so forth.

He was extremely evasive, and I do recall that specifically.[14]

14

The record does not suggest Juror No. 5 was being evasive so much as he

misunderstood the nature of the question the court was asking him:
“THE COURT: . . . you didn’t tell me [in your questionnaire] what your
score was on the scale of one to 10.
“[]

JUROR NO. 5: No, because . . . the case itself will determine. I have no

way of knowing the evidence. I have no way of knowing anything about the case,
so how could I possibly give a score of one to 10 not knowing anything about the
case?
“THE COURT: Absolutely. I totally agree with you. But the question asked
you to rate how you feel about the death penalty now, not knowing anything about
the case in the abstract.


“Is it something you think is a good thing for society? A bad thing? Do

you favor it in the appropriate case, or do you not?


(footnote continued on next page)

67

“I’m attempting to try and put this into more than one dimension for any

court that may look at this subsequently.

“He, nevertheless, did answer the questions, and he did state he would

ignore race on voir dire, and the parties didn’t challenge or excuse him.

“Second, at the beginning of the guilt phase, according to [Juror No. 1], and

largely confirmed by [Juror No. 5] this morning, after the first witness at the guilt

phase, on the way out of the courtroom, [Juror No. 5], according to [Juror No. 1],

said, ‘How can you hold someone responsible for their actions?’ [Juror No. 5]

doesn’t recall that clearly at the moment.

“But then when asked if he said, as [Juror No. 1] said he said, ‘This is what

you expect when you have no authority figure,’ he said he may have said that and

he can see himself saying it.

“I find [Juror No. 1] completely credible, and he’s largely confirmed by

[Juror No. 5]. So there is no doubt in my mind that between the first and second


(footnote continued from previous page)

“[]

JUROR NO. 5: Perhaps it could. Again, it’s the nature of the case that

will determine it. I could go along with whatever decisions that are made.
“THE COURT: Well, you’re going to be the one making them. That’s why
we’re asking you these questions.
“[]

JUROR NO. 5: Yes.

“THE COURT: And we don’t want you to go along with anybody else if
you disagree.
“[]

JUROR NO. 5: No, not anyone else’s decision, but the evidence of the

case will determine what I do. That’s what I’m trying to say.
“THE COURT: Oh, absolutely for everybody. But forget about this case, all
right. I’ve met you at a cocktail party, we’re discussing the death penalty. How
do you feel about it . . . .
“[]

JUROR NO. 5: I think I’m in favor of the death penalty. I am.

“THE COURT: Okay. On a scale of one to 10, how much in favor of it are
you?
“[]

JUROR NO. 5: I would put it around a seven.”

68

witnesses in the guilt phase, that is between Mr. Michael Durbin’s testimony and

[L.R.’s] testimony, or thereabouts, that on the way out of the courtroom, and

apparently unheard by other jurors, he made those comments. So that is my

factual finding on that issue.

“With respect to the questions that I asked the individual jurors this

morning, we had some splits, but [Juror No. 5] largely confirmed that he made the

statements that were attributed to him by [Juror No. 1]. So I do make factual

findings that during the relatively brief six hours of deliberations [Juror No. 5] did

make the following statements.

“ ‘You don’t understand because you’re not black.’ ‘You can’t understand

because you’re not black.’ And when asked if he could consider relevant

information, he said, ‘I don’t expect you to understand; you’re not black.’ ‘Black

people don’t admit being abused.’ ‘Black kids have a different relationship with

their fathers.’ He discussed the fact that a black father, in the context — a racial

context, is an authority figure in the black family. Again, in a racial context.

“He said, ‘This is a cultural thing,’ with respect to race and behavior. He

said, ‘I know more went on, more went on than we were shown,’ in the context of

the discussions about abuse of the defendant as a child or a young man.

“When asked to give reasons for his decision, possibly his sentencing

decision, he said to the other jurors that they are not black and would not

understand. And when asked by the other jurors to show them proof based on the

facts they heard in court, I do find despite his denial that he said words to the

effect of, ‘Because I know; this is a black thing.’ He denied saying that, but five

jurors said he said it, four said he did not, and two were unsure. I find that he did

say that or something similar in that context.

“With respect to the statements that he denied saying about life without

possibility of parole, I’m satisfied that he understands and can follow an

69

instruction that death is worse. In the context of the statements he’s alleged to

have made, I think he probably did make those statements. I don’t believe he

thinks that at this point, based on his statements and all the other evidence I’ve

heard, or that he’s unable to follow that kind of an instruction.

“I’m not unmindful of the facts that [defense counsel] has brought up, that

both [Juror No. 5 and No. 1] confirmed that [Juror No. 5] said in essence . . . that

if the defendant was privileged and educated and came from a good family he

might make a different decision.

“My problem, quite frankly, at this point is that these statements apparently

are so entangled with race-based assumptions, which [Juror No. 5] himself doesn’t

appear to recognize, that I fear it’s too much to ask him to attempt, to disentangle

the permissible, the entirely permissible from the totally impermissible. I don’t

think he’s capable of doing it. I think it’s a shame, because I think he’s otherwise

a good juror, but I don’t think he’s able to disentangle his race-based assumptions

from those that are not race based.

“The law is basically that jurors at the penalty phase are required to

exercise their discretion based on the evidence heard in court. They’re guided by

their instructions, as delineated by [section 190.3] factors (a) through (k).

Nowhere in the law, even under factor (k), is a juror permitted to base his decision

on previously undisclosed prejudgments, preconceptions about human behavior,

which further are classified by racial category, particularly in a trial where race has

not been an issue in any way, shape or form. And we have heard no evidence

whatsoever about race-based differences in behavior, in character or otherwise,

other than adoption practices in the [19]40’s . . . .

“[Juror No. 5], I find, concealed his racial biases and fundamental belief in

racial stereotypes on voir dire. He did say he would not base his decision on or

consider race, but I find that he’s unable to do that.

70

“Second, by attempting to communicate with [Juror No. 1] after the first

guilt phase witness, Michael Durbin, I find that he began to reveal his fundamental

biases and prejudices, because I find that he made unfounded assumptions about

the defendant and authority figures when at that time he had absolutely no

evidence of such. He — as I said before, he didn’t even have the benefit of the

defense’s opening statement in which they referenced such things.

“He then repeated those phrases, or something similar, in the penalty phase

deliberations, which indicates that he was just carrying through his prejudgment of

whatever he was going to do in the penalty phase.

“Taken together with his generalizations and other expressions of racial

stereotyping, which are too numerous to repeat at this time, I think the inescapable

conclusion is that [Juror No. 5] is exhibiting a fundamental racial bias and

improperly considering race in contradiction of his instructions and statements on

voir dire.

“I don’t think [Juror No. 5] is capable of dealing with this or setting aside

— setting it aside because he doesn’t appear to recognize it. He made statements

indicating that he considered life without possibility of parole worse than death,

although the credibility of such statements in this context is open to question, and

he says he can follow the law in this respect. I believe he will.

“[Juror No. 5] did make numerous statements about race-based stereotypes

and behavior that weren’t based in any evidence presented to the jury. As I said,

this is indicative of a fundamental bias that he’s unable to set aside. He admitted

most of them, and he doesn’t appear to recognize that these are expressions of

stereotyping and bias and prejudice.

“So I find he’s committed misconduct in that he’s failed to follow his oath

as a juror, he failed to disclose his biases, including race-based biases on voir dire,

he failed to follow his instructions in stating that he considered life without

71

possibility of parole as worse than death and by engaging in speculation that there

was more evidence that the jury wasn’t told, by utilizing race-based biases which

find no basis in the evidence, by prejudging the appropriate penalty, apparently

beginning to do that after only the first guilt phase witness, in clear contradiction

of his instructions, and by using sweeping generalizations and stereotypes about

human behavior that are based on racial assumptions and not on the evidence.

“And let me conclude by saying that to permit jurors to base their decision

as to whether a person should live or die on biases and prejudices that are based on

race, as I said previously, contravenes everything that we know and everything

that our Constitution is about. It’s unconstitutional. It violates the equal

protection clause of both the State and Federal Constitution, and it invades due

process for this reason, because if jurors were permitted to vote for life or death

based on racial stereotyping not found in the evidence presented to them,

imposition of life or death would depend on the racial composition of the jury and

the race of the defendant, and it would, therefore, be arbitrary and capricious.

“And so, for all of these reasons, I am going to excuse [Juror No. 5].”

3. Section 1089

Section 1089, at the time of defendant’s trial, stated in pertinent part: “If at

any time, whether before or after the final submission of the case to the jury, a

juror dies or becomes ill, or upon other good cause shown to the court is found to

be unable to perform his duty, . . . the court may order him to be discharged and

draw the name of an alternate, who shall then take his place in the jury box, and be

subject to the same rules and regulations as though he had been selected as one of

72

the original jurors.” (Stats. 1963, ch. 721, § 2, p. 1729, italics added.)15 The

substitution of a juror for good cause pursuant to section 1089, even after

deliberations have commenced, “ ‘does not offend constitutional proscriptions.’ ”

(People v. Leonard (2007) 40 Cal.4th 1370, 1410.)

Although we have previously indicated that a trial court’s decision to

remove a juror pursuant to section 1089 is reviewed on appeal for abuse of

discretion (see, e.g., People v. Leonard, supra, 40 Cal.4th at p. 1409), we have

since clarified that a somewhat stronger showing than what is ordinarily implied

by that standard of review is required. Thus, a juror’s inability to perform as a

juror must be shown as a “demonstrable reality” (People v. Cleveland (2001) 25

Cal.4th 466, 474), which requires a “stronger evidentiary showing than mere

substantial evidence” (id. at p. 488 (conc. opn. of Werdegar, J.)). As we recently

explained in People v. Barnwell (2007) 41 Cal.4th 1038, 1052: “To dispel any

lingering uncertainty, we explicitly hold that the more stringent demonstrable

reality standard is to be applied in review of juror removal cases. That heightened

standard more fully reflects an appellate court’s obligation to protect a defendant’s

fundamental rights to due process and to a fair trial by an unbiased jury.”

4. Concealment on Voir Dire

We address first the trial court’s conclusion that Juror No. 5 concealed his

racial bias on voir dire. As we explain, any concealment was unintentional and

was insufficient to justify excusing him from the jury in the middle of penalty

phase deliberations.


15

The statute is substantively identical today, although it has been amended

twice since defendant’s trial. The Legislature made the quoted passage gender
neutral in 2002. (Stats. 2002, ch. 784, § 545.)

73

a. Facts

Juror No. 5 filled out his written jury questionnaire; it did not ask him

whether he would treat defendant differently because of their shared racial

heritage, although the juror did indicate there was nothing about defendant’s

“appearance” that would bias him one way or the other. On voir dire, the

following took place:

“THE COURT: Okay. Obviously the defendant is African-American. So

are you. Do you think that’s going to affect you in any way?”

“[] JUROR NO. 5: No.

“THE COURT: Are you going to cut him — as one juror said to me when I

was struggling to find words to express this thought, ‘She means are you going to

cut him slack.’ Are you going to cut him slack?

“[] JUROR NO. 5: No.

“THE COURT: Okay. Are you going to be harder on him because he’s

African-American?

“[] JUROR NO. 5: No.

“THE COURT: You’ll treat him the same as anyone else?

“[] JUROR NO. 5: That is correct.”

It was during this interaction that the trial court, when it later excused Juror

No. 5, said that the juror’s “body language and demeanor and his questionnaire

were somewhat evasive. I remember him crossing his arms and glaring under

follow-up questioning quite clearly.”

During the investigation the trial court undertook in the middle of the

penalty phase deliberations, the court asked Juror No. 5 to recall the questioning

on voir dire before trial when he had been asked “whether the fact that the

defendant was African-American, black, would affect [him] in any way,” and he

had answered in the negative. He affirmed that he had not changed his mind since

74

that time. He explained his position: “My son has had everything that an

individual would need to . . . come up in this society. He’s had a mom and a dad,

the — all the schools provided, all of the nurturing that a person should have, and

if he would make the kind of mistake that was made, I would have no idea as to

what decision I would make.” He affirmed that he had promised before trial that

he would not treat defendant differently due to his race and had not made any

statements in the jury room indicating he had gone back on that promise. He

agreed that he could follow an instruction that he must “set aside bias and

prejudice based on race, racial stereotypes and generalizations based on

conjecture.”

b. Discussion

A criminal defendant has a constitutional right to an impartial jury, and the

pretrial voir dire process is important because it enables the trial court and the

parties to determine whether a prospective juror is unbiased and both can and will

follow the law. But the voir dire process works only if jurors answer questions

truthfully. “As the United States Supreme Court has stated, ‘Voir dire

examination serves to protect [a criminal defendant’s right to a fair trial] by

exposing possible biases, both known and unknown, on the part of potential jurors.

Demonstrated bias in the responses to questions on voir dire may result in a juror’s

being excused for cause; hints of bias not sufficient to warrant challenge for cause

may assist parties in exercising their peremptory challenges. The necessity of

truthful answers by prospective jurors if this process is to serve its purpose is

obvious.’ [Citation.] [¶] A juror who conceals relevant facts or gives false

answers during the voir dire examination thus undermines the jury selection

process and commits misconduct.” (In re Hitchings (1993) 6 Cal.4th 97, 110-111,

fn. omitted.)

75

“Although intentional concealment of material information by a potential

juror may constitute implied bias justifying his or her disqualification or removal

[citations], mere inadvertent or unintentional failures to disclose are not accorded

the same effect. ‘[T]he proper test to be applied to unintentional “concealment” is

whether the juror is sufficiently biased to constitute good cause for the court to

find under Penal Code sections 1089 and [former] 1123 that he is unable to

perform his duty.’ ” (People v. McPeters (1992) 2 Cal.4th 1148, 1175; see People

v. San Nicolas (2004) 34 Cal.4th 614, 644 [quoting McPeters with approval].)

The record fails to demonstrate that Juror No. 5 concealed anything. He

was never asked whether he would interpret evidence of any abuse defendant may

have suffered as a child through the prism of his own experiences; indeed, we

expect jurors to use their own life experiences when evaluating the evidence. (See

People v. Bell (1989) 49 Cal.3d 502, 564 [“ ‘[I]n our heterogeneous society jurors

will inevitably belong to diverse and often overlapping groups defined by race,

religion, ethnic or national origin, sex, age, education, occupation, economic

condition, place of residence, and political affiliation; . . . it is unrealistic to expect

jurors to be devoid of opinions, preconceptions, or even deep-rooted biases

derived from their life experiences in such groups’ ”].)

Juror No. 5 affirmed during voir dire that he would not consider

defendant’s race to benefit or disadvantage him and that he would treat him like he

would anyone else. When questioned during the penalty phase, he affirmed his

views, explaining that he viewed the mitigating evidence favorably because

defendant came from a broken, disadvantaged family, not simply because he was

African-American. He suggested that had defendant enjoyed the benefits his own

son had growing up, he would consider death as a possible penalty for defendant’s

crimes. Under these circumstances, it is difficult to see what Juror No. 5

concealed.

76

The trial court apparently concluded that Juror No. 5 had concealed certain

race-based assumptions regarding the nature of family dynamics in African-

American families, especially with regard to young men who grow up without

strong positive male role models. But Juror No. 5 was never asked about that

subject. Moreover, failure to express his views about African-American family

dynamics is not the kind of concealment that would justify Juror No. 5’s removal

from the jury under section 1089, i.e., something showing “good cause” he was

unable to perform his . . . duty [as a juror].” (Italics added.) To conclude

otherwise would require accepting the notion that the other jurors were unable to

perform their duty because they concealed their unstated assumption that the

family dynamics in African-American families were no different from those

occurring in non-African-American families, or that young males who grow up

fatherless in Black families have exactly the same problems as young men raised

without fathers in White, Hispanic or Asian families. We do not purport to resolve

these questions, which are more in the realm of sociology and psychology, but we

can and do conclude that Juror No. 5 did not conceal his views on the subject

because he was never asked about them.

Even were we to assume Juror No. 5 concealed his intention to consider his

own personal knowledge and experience of African-American families when

evaluating the mitigating evidence, any such concealment was clearly

unintentional. The trial court plainly found Juror No. 5 was himself unaware of

his own allegedly race-based assumptions and thus would be unable to

“disentangle” those allegedly impermissible views from those that he could

properly consider. If Juror No. 5 was unaware of his own views, he certainly

cannot be held to have intentionally concealed them.

Would such unintentional concealment constitute good cause to believe

Juror No. 5 was unable to perform his duty under section 1089? (People v.

77

McPeters, supra, 2 Cal.4th at p. 1175.) We conclude not. Although the decision

to remove a juror on such grounds is committed to the discretion of trial courts in

the first instance, as noted, we review such decisions by asking whether the

grounds for such removal appear in the record as a demonstrable reality. (People

v. Barnwell, supra, 41 Cal.4th at p. 1052.)

Considering all the circumstances, any unintentional concealment here does

not establish a demonstrable reality that Juror No. 5 was unable to perform his

duty as a juror. “The circumstance that a juror does not deliberate well or relies

upon faulty logic or analysis does not constitute a refusal to deliberate and is not a

ground for discharge. Similarly, the circumstance that a juror disagrees with the

majority of the jury as to what the evidence shows, or how the law should be

applied to the facts . . . does not constitute a refusal to deliberate and is not a

ground for discharge.” (People v. Cleveland, supra, 25 Cal.4th at p. 485.) It

appears that Juror No. 5 “simply viewed the evidence differently from the way the

rest of the jury viewed it.” (Id. at p. 486.) Juror No. 5’s particular view of the

evidence, refracted through the prism of his own experience as an African-

American man who had raised a son, showed neither a refusal to deliberate nor an

inability to perform his duty as a juror to a demonstrable reality. (People v.

Barnwell, supra, 41 Cal.4th at p. 1052.) Accordingly, to the extent the trial court

relied on an alleged unintentional concealment during voir dire as a ground to

dismiss Juror No. 5 in the middle of the penalty phase deliberations, it erred.

5. Reliance on Facts Not in Evidence

In excusing Juror No. 5, the trial court also cited his reliance on facts not in

evidence. As we explain, the trial court erred because Juror No. 5 was merely

relying on his life experiences to interpret the evidence presented.

78

a. Facts

Although the court had indicated initially that it would not investigate this

topic, it asked Juror No. 1 about the issue. Juror No. 1 replied: “We all feel that

he has [discussed facts not in evidence]. We asked him, ‘Show us proof,’ for

which he couldn’t do that. He said, ‘I know what all goes on, because . . . this is a

black thing.’ ” The court asked Juror No. 1 what particular facts he believed Juror

No. 5 was relying on that were outside the record.16 Juror No. 1 answered that

Juror No. 5 did not “produce” any facts outside the record but that Juror No. 5

believed that defendant must have suffered more abuse than was shown at the

penalty phase. When the other jurors asked the basis of his belief, Juror No. 5

said: “ ‘I know more went on’ ” and “ ‘I don’t expect you all to understand.’ ”

Asked whether Juror No. 5’s beliefs were based on defendant’s race, Juror

No. 1 responded that Juror No. 5 did not rely on race “in so many words” but said

it was “a cultural thing, and that black kids have a different relationship with their

fathers, and you have to understand all of this, and he’s not responsible for what

he’s done. [¶] It was just going off in some sort of nonsensical tangent, and there

was no control over trying to get him to veer from veering off into it. He was

confusing everyone, and everybody was getting extremely frustrated.”

Juror No. 12, the jury’s foreperson, told a slightly different story. Asked

whether she had heard statements suggesting Juror No. 5 was relying on racial

considerations rather than the evidence, Juror No. 12 replied: “That’s not the way

it was stated. Yet, speaking on behalf of several of us that have discussed it, we

feel that [Juror No. 5’s position] wasn’t based on the law. The decision that was


16

At this point, the prosecutor suggested at sidebar that the court’s

questioning was straying into an impermissible inquiry about the jury’s thought
processes, but the court disagreed.

79

made wasn’t based on the law or the evidence.” Asked to elaborate, the

foreperson said that Juror No. 5 was giving defendant the benefit of a doubt that to

the other jurors did not appear to be based on the evidence. Juror No. 2 and Juror

No. 11 also remembered Juror No. 5 saying he was giving defendant the benefit of

the doubt, but that his view was not based on race but on the fact that defendant

“had grown up in circumstances that were less than ideal.”

Juror No. 12 said that the other jurors tried to get Juror No. 5 to explain his

vote, but they did not understand his reasons. His reasons did not appear racial,

but neither did they seem, to Juror No. 12, to be based “on the law.” “We . . . tried

to reason with him in other ways, but he just kept going back to [defendant’s]

background. Not the black issue, but background. It wasn’t the race that kept

coming up like that.” (Italics added.)

Juror No. 2 reported that two of the female jurors stated during

deliberations that perhaps Juror No. 5’s reasoning was based on race but that he

“refuted the comment,” saying “it had nothing to do with race.” Juror No. 2 did

not hear Juror No. 5 make any comments that indicated he was relying on racial

considerations.

Juror No. 12 recalled that, speaking of the absence of a role model in

defendant’s life, Juror No. 5 had said at one point that “ ‘You don’t understand

because you’re not black,’ ” and he had pointed out that the other jurors had not

been “raised in a black family, and that in a black family you look up to the male.”

Juror No. 11 corroborated this account, reporting that Juror No. 5 had emphasized

the absence of a “strong father figure” in defendant’s life and had asserted the

other jurors would not understand, and that he would not expect them to

understand, because they were not African-American. Juror No. 9 confirmed that

Juror No. 5 had said that the other jurors did not understand “how it was for black

kids” and that they could not understand. Juror No. 3 agreed. Juror Nos. 2, 3, 7

80

and 8 all reported that Juror No. 5 had said that the other jurors would not

understand because they were not African-American. Juror No. 7 qualified her

answer, saying that she did not see Juror No. 5’s comment “as being racial-based,

per se, just more of what he felt inside of him.” Juror No. 5 himself acknowledged

he “may have said that.”

By contrast, neither Juror No. 4 nor Juror No. 10 heard Juror No. 5 make

any such comments.

The trial court asked all the jurors whether Juror No. 5 had said that

“ ‘Black kids have a different relationship with their fathers.’ ” Juror No. 12

agreed that he had said that, as did several other jurors. Juror No. 5 himself

admitted saying it. The relative value of one’s family in various minority cultures

was discussed by other jurors, according to Juror No. 12; for example, they

discussed how “Mexican families are close and everybody looks up to their

parents. So culture came into it, but I don’t know if it was from [Juror No. 5].”

Juror Nos. 7, 8 and 9 confirmed that Juror No. 5 asserted that it was not so much a

racial as a cultural point he was making, but Juror Nos. 2, 3 and 4 did not hear that

comment. Juror No. 7 recalled that Juror No. 5 had said that African-American

men do not show their feelings so easily. Juror No. 5 agreed that “with respect to

racial issues and behavior,” he had said “ ‘This is a cultural thing.’ ”

Asked whether Juror No. 5 had “[made] the statement, ‘Black people don’t

admit being abused,’ ” Juror No. 12 said that he “might” have made such a

comment, while Juror Nos. 2, 3, 7, 8 and 11 all reported that Juror No. 5 had made

the statement. Juror No. 5 agreed he had done so.

By contrast, neither Juror No. 4 nor Juror No. 9 recalled Juror No. 5 making

such a statement.

Asked whether Juror No. 5 had said that “ ‘I know more [abuse] went on;

more went on than we were shown,’ ” Juror No. 12 replied that she thought “that

81

was said and not just by him.” “[E]verybody was speculating about all kinds of

things,” and she considered contacting the trial court to report that some jurors

were relying on facts that had not been presented in evidence. Ultimately,

however, Juror No. 12 just tried to focus the jury on the issues at hand. By

contrast, Juror Nos. 3, 4, 7, 9 and 11 did not hear Juror No. 5 say he believed more

abuse had occurred than was shown. Juror No. 8 was not sure, whereas Juror

No. 2 heard the comment but did not know whether Juror No. 5 or some other

juror had made it. Juror No. 5 did not remember making such a statement, but

admitted that he “could have.”

Asked to address whether Juror No. 5 had said he believed defendant had

suffered more abuse than was shown by the evidence, Juror No. 10 had a more

complicated response: “I remember me saying, ‘A lot of kids from abused homes

are not so easy to come forward with that information.’ I remember myself saying

that. It didn’t have anything to do with race. That’s everybody. And I’m trying to

think of what [Juror No. 5] might have said. [¶] I think we were talking about the

point that he had made about how black kids look up to their dads, he might have

said something to the effect, and they don’t like to — let me think. I can’t really

remember him saying anything like that, I’ll be honest with you.” She later

admitted that Juror No. 5 had said “ ‘Black kids have a different relationship with

their fathers’ ” and that more abuse probably occurred than was documented at

trial.

Asked whether Juror No. 5 gave as his reason for voting for life “that the

other jurors are not black and would not understand,” Juror No. 12 answered in the

negative: “I don’t think that was his reason necessarily.” Instead, his reasoning

was opaque to her. Juror No. 3 thought that was the gist of Juror No. 5’s

reasoning, but could not recall the exact words used. Juror No. 4 reported that

Juror No. 5 had said “something like that.” Juror No. 5 himself stated that he did

82

not recall making that statement but, when pressed by the trial court, admitted he

could have made it.

Asked whether, when asked to show proof of his vote for life

imprisonment, Juror No. 5 had told the jury, “ ‘Because I know; this is a black

thing,’ ” Juror Nos. 4, 7, 8, 10 and 12 did not recall him making such a statement.

Juror No. 5 himself denied doing so. By contrast, both Juror Nos. 2 and 11 heard

Juror No. 5 justify his vote for life by saying, “Because I know; this is a black

thing,” and Juror No. 3 recalled that Juror No. 5 had made comments to that effect.

Juror No. 12 reiterated that Juror No. 5 had mentioned race when

discussing defendant’s background, but not in connection with other aspects of the

case. Juror No. 10 also opined that she did not take Juror No. 5’s comments to be

racial.

Asked whether Juror No. 5 was relying on defendant’s race during penalty

phase deliberations, Juror No. 6 replied that “[h]e did not come right out and say it

in that manner. He was talking about family and that we did not understand how

important the father figure was in a black family. And then he went on to talk

about his own [family], and that in any situation, if you do not have a good family,

and especially a man with that, have a good family, that that was very important in

how he leaned toward his verdict.” She agreed that Juror No. 5 had made the

statements “ ‘You don’t understand because you’re not black,’ ” “ ‘Black people

don’t admit being abused,’ ” and “ ‘Black kids have a different relationship with

their fathers,’ ” but also agreed with the court’s suggestion that he had made these

statements in the context of his “perspective on black culture rather than basing his

decision on the fact that the defendant is black.”

Juror No. 6 did not recall Juror No. 5 saying he knew there was more

evidence of abuse than was shown to the jury, nor that the other jurors would not

understand his reasons for voting for life because they were not Black.

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Juror No. 9 agreed that Juror No. 5 had “participate[d] in deliberations by

discussing the evidence without reference to race.” Juror Nos. 2 and 4 also

agreed, as did Juror No. 7, who explained that although the issue of race came up,

“[m]ost of the time” Juror No. 5 deliberated without reference to race. She

elaborated: “I never got the feeling that [Juror No. 5] was necessarily more biased

if it would have been a white man than a black man. I believe that he feels that he

can identify more with [defendant] than he thinks we can. That was my

impression.” Juror No. 1, who made the initial complaint, agreed that Juror No. 5

had deliberated during the penalty phase without reference to race some of the

time. Juror No. 1 believed that it was inappropriate to consider “social/economic”

beliefs, the factual basis for which “weren’t even introduced as evidence.”

By contrast, Juror No. 8 said that Juror No. 5 always referred back to race

during deliberations. Juror No. 3 affirmed that Juror No. 5 referred to race “quite

frequently in his comments.” Juror No. 5 was the only juror who brought up the

issue of race.

b. Discussion

Courts should exercise caution when undertaking inquiries that threaten to

trench on the sanctity of jury deliberations, for the preservation of secrecy during

deliberations fosters an atmosphere conducive to a frank and open discussion of

the issues among jurors. Ensuring such secrecy also insulates the jury from

improper influence that could be brought to bear by outside forces and supports

the stability of jury verdicts. (People v. Cleveland, supra, 25 Cal.4th at pp. 475-

476.) These important concerns do not, however, preclude the trial court from

conducting a reasonable inquiry when faced with allegations of jury misconduct.

(Id. at p. 476.)

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“A jury’s verdict in a criminal case must be based on the evidence

presented at trial, not on extrinsic matters.” (People v. Leonard, supra, 40 Cal.4th

at p. 1414.) A juror commits misconduct if the juror conducts an independent

investigation of the facts (Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678

[measuring something at stores similar to the scene of the accident]), brings

outside evidence into the jury room (Glage v. Hawes Firearms Co. (1990) 226

Cal.App.3d 314 [consulting a dictionary]), injects the juror’s own expertise into

the deliberations (In re Stankewitz (1985) 40 Cal.3d 391 [former police officer

telling other jurors he knew the law]), or engages in an experiment that produces

new evidence (Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co.

(1991) 234 Cal.App.3d 1724, 1746 [conducting an experiment regarding the

pouring of concrete]). “Juror misconduct, such as the receipt of information about

a party or the case that was not part of the evidence received at trial, leads to a

presumption that the defendant was prejudiced thereby and may establish juror

bias. [Citations.] ‘The requirement that a jury’s verdict “must be based upon the

evidence developed at the trial” goes to the fundamental integrity of all that is

embraced in the constitutional concept of trial by jury. . . . [¶] In the constitutional

sense, trial by jury in a criminal case necessarily implies at the very least that the

“evidence developed” against a defendant shall come from the witness stand in a

public courtroom where there is full judicial protection of the defendant’s right of

confrontation, of cross-examination, and of counsel.’ (Turner v. Louisiana (1965)
379 U.S. 466, 472-473, citations and fn. omitted.) As the United States Supreme

Court has explained: ‘Due process means a jury capable and willing to decide the

case solely on the evidence before it . . . .’ (Smith v. Phillips (1982) 455 U.S. 209,

217, italics added . . . .)” (People v. Nesler (1997) 16 Cal.4th 561, 578.)

That the alleged problems with Juror No. 5 arose during deliberations at the

penalty phase rather than the guilt phase is significant. Rather than the factfinding

85

function undertaken by the jury at the guilt phase, “the sentencing function [at the

penalty phase] is inherently moral and normative, not factual; the sentencer’s

power and discretion . . . is to decide the appropriate penalty for the particular

offense and offender under all the relevant circumstances.” (People v. Rodriguez

(1986) 42 Cal.3d 730, 779.) Given the jury’s function at the penalty phase under

our capital sentencing scheme, for a juror to interpret evidence based on his or her

own life experiences is not misconduct. “Jurors’ views of the evidence . . . are

necessarily informed by their life experiences, including their education and

professional work.” (In re Malone (1996) 12 Cal.4th 935, 963.) “[D]uring the

give and take of deliberations, it is virtually impossible to divorce completely

one’s background from one’s analysis of the evidence. We cannot demand that

jurors, especially lay jurors not versed in the subtle distinctions that attorneys

draw, never refer to their background during deliberations. . . . [¶] A fine line

exists between using one’s background in analyzing the evidence, which is

appropriate, even inevitable, and injecting ‘an opinion explicitly based on

specialized information obtained from outside sources,’ which we have described

as misconduct.” (People v. Steele (2002) 27 Cal.4th 1230, 1266.) “[T]he jury is a

‘fundamentally human’ institution; the unavoidable fact that jurors bring diverse

backgrounds, philosophies, and personalities into the jury room is both the

strength and the weakness of the institution.” (In re Hamilton (1999) 20 Cal.4th

273, 296.)

Applying these rules to the facts of this case, while giving full deference to

the trial court’s factual findings, we conclude the evidence does not show to a

demonstrable reality that Juror No. 5 was relying on facts not in evidence or that

he was otherwise unable to fulfill his oath and duty as a juror. (§ 1089.) As is

apparent, Juror No. 5 mentioned defendant’s race during penalty phase

deliberations, and the jurors discussed a variety of issues connected to defendant’s

86

family background. This was understandable, inasmuch as the defense case in

mitigation consisted entirely of evidence of defendant’s shockingly frequent

physical abuse as a child growing up. It is not the typical American family in

which a child is conceived by his father’s rape of his mother when she was a

preteen, the child’s father is convicted of rape and attempted murder and sent to

prison, the child’s stepfather is similarly tried for murder, and the child’s

stepfather beats the child to the point where the child suffers convulsions.

As an African-American man who had raised a son, Juror No. 5 believed he

had some insight into these family dynamics, and those insights led him to

conclude that because the circumstances of defendant’s childhood sufficiently

outweighed the aggravating evidence, defendant did not deserve the death penalty.

In other words, based on the juror’s life experiences, he weighed the mitigating

evidence more heavily than did the other jurors. Juror No. 5’s personal

assessment concerning what constituted mitigation, what was worthy of sympathy

or compassion, and the weight such evidence deserved, is exactly what was at

stake in the penalty phase.

The record does not demonstrate Juror No. 5’s personal evaluation of the

evidence was the product of improper racial considerations any more than the non-

Black jurors’ rejection of his evaluation was influenced by their personal racial

views regarding the dynamics of an African-American family. Indeed, that the

jurors themselves perceived the issue was not solely one of race is indicated by the

reports of some that Juror No. 5’s reasoning was based not on race but on cultural

differences, leading the jury to undertake a discussion about the family dynamics

they believed typical of other racial and ethnic groups. A juror whose personal

view was that African-American defendants never should, or always should,

receive the death penalty commits clear misconduct, both by not considering the

particular facts of the case and by making the penalty decision based on racial

87

bias. It would be equally objectionable were a juror to conclude a particular

defendant deserved the death penalty or life imprisonment because of his or her

race. But relying on an understanding, based on personal experience, of the

effects of certain social environments and family dynamics on a young person

growing up, when this understanding illuminates the significance or weight an

individual juror would accord to related evidence in a particular case, is not

misconduct.

Nor was Juror No. 5’s statement that he “knows” more abuse occurred than

was presented to the jury an instance of relying on facts not in evidence. Juror

No. 5 did not conduct an improper experiment, visit the crime scene by himself, or

consult a dictionary. He merely drew an inference from the evidence presented,

drawn from his own life experiences, that more abuse probably occurred than was

shown. That inference was permissible. People v. Yeoman (2003) 31 Cal.4th 93

is illustrative. In that case, jurors used their own life experiences with drug abuse

to evaluate trial evidence from a defense expert regarding the defendant’s drug use

and its alleged effect on his behavior. We found no misconduct, explaining that

“ ‘[j]urors cannot be expected to shed their backgrounds and experiences at the

door of the deliberation room.’ ” (Id. at p. 162.) If jurors can properly draw on

their personal and family experiences with drug abuse, it follows they can draw on

their personal and family experiences within their own minority communities.

Seen in this light, Juror No. 5’s statement that the other jurors would not

understand because they were not Black merely meant that they did not share his

personal experiences growing up in an African-American family. No juror

presented evidence that Juror No. 5 failed or declined to deliberate, and the

evidence was in fact the opposite: he tried to explain his position on this issue and

to describe to the other jurors his own experiences in an African-American family.

Although the other jurors did not always understand or agree with his arguments, a

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juror’s reliance on “ ‘faulty logic or analysis does not constitute a refusal to

deliberate and is not a ground for discharge.’ ” (People v. Barnwell, supra, 41

Cal.4th at p. 1051, quoting People v. Cleveland, supra, 25 Cal.4th at p. 485.)

We conclude that, even giving full deference to the trial court’s factual

findings, the evidence does not show to a demonstrable reality that Juror No. 5

relied on facts not in evidence. Accordingly, there is no basis on which to

conclude he was unable or unwilling to fulfill his oath and duty as a juror,

justifying his removal from the jury. (§ 1089.) The trial court thus erred to the

extent it relied on this ground to discharge Juror No. 5 from the jury.

6. Refusal to Follow Instruction That Death Is Worse Than Life

As an additional reason justifying its decision to excuse Juror No. 5, the

trial court opined that the juror “committed misconduct in that he’s failed to

follow . . . his instructions in stating that he considered life without possibility of

parole as worse than death.” As we explain, the record fails to show as a

“demonstrable reality” (People v. Cleveland, supra, 25 Cal.4th at p. 474) that

Juror No. 5 was “unable to perform his . . . duty” (§ 1089) on this ground.

a. Facts

Following Juror No. 1’s written complaint, the trial court asked him to

address his allegation that Juror No. 5 had said he believed life imprisonment was

worse than death. Juror No. 1 replied: “His exact comment was, ‘Who are we to

say what’s worse?’ And the foreman of the jury said, ‘The judge instructed you

by law which one was considered worse.’ And he said, ‘It all comes down to just

your matter of opinion.’ ” Juror No. 1 continued: “Everybody was under the

impression [Juror No. 5] was changing his direction, because he now thinks that

[life imprisonment] was worse. His exact comment was, ‘I want this guy to sit in

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jail for the rest of his life and think about what he’s done, because I think that’s the

worse of the two.’ ”

Regarding whether Juror No. 5 could impose the death penalty, Juror No. 1

stated: “[H]e ‘just can’t do it.’ He can’t see within himself to do it. And the other

jurors asked him, ‘You were asked at the beginning of this trial,’ and he basically

said, ‘I don’t expect you all to see where I’m coming from.’ We said, ‘This is not

a matter of making us understand. You have to show us something.’ ” Juror No. 5

did not feel this way about all defendants, but just this defendant.

Both Juror No. 2 and Juror No. 12 agreed that Juror No. 5 had said he

wanted defendant to sit in jail for the rest of his life and think about his crimes.

Juror No. 12 did not, however, recall that Juror No. 5 had said life imprisonment

was worse than death and in fact concluded, “I think he knows that one is harsher

than the other.” Juror No. 2 thought it was possible Juror No. 5 had said that life

was worse than death, but could not recall. Juror No. 3 was more definite,

reporting that Juror No. 5 “absolutely” said that defendant should be imprisoned

for life because life was the more severe penalty. By contrast, Juror No. 9 never

heard Juror No. 5 say that life was worse than death. Juror No. 8 suggested that he

heard something to that effect, but ultimately concluded that Juror No. 5 never

made such a comment.

Juror No. 4’s recollection of the issue was inconsistent. When first asked

whether Juror No. 5 had stated that life imprisonment was “a worse punishment

than death,” he replied that Juror No. 5 “didn’t say that.” But when asked whether

Juror No. 5 had said, “ ‘Who are we to say what’s worse?’ ” and that defendant

should “ ‘sit in jail for the rest of his life and think about it because that’s the

worse of the two,’ ” Juror No. 4 agreed that Juror No. 5 had said “[s]omething like

that.”

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Juror No. 6 reported that Juror No. 5 had said that life imprisonment was

worse than death, but qualified the statement, saying that his belief went beyond

defendant’s individual case, “but that it has to do with family. If [defendant] came

from a good family, then, in [Juror No. 5’s] words, he would ‘burn him.’ But he

came from a bad family. . . . [B]ecause [defendant] came from a bad family, he

could not [vote for the death penalty].” Juror No. 6 initially thought this was a

race-based opinion, but by the second day, although race might have been a

consideration, “I really think, by his [own] admission, that it would not matter if it

was a white person sitting there, a hispanic, or, you know, whatever; that what he

looked at was family only, period, end of discussion, end of thought.” She

affirmed that Juror No. 5 had said that race did not matter.

Juror No. 11 told the court that Juror No. 5 did not say, “Who are we to say

what’s worse,” but agreed he had said defendant should sit in jail for the rest of his

life and think about his crime. Juror No. 7 told the court that Juror No. 5 had

made such comments, but was speaking of his own personal opinion and not

necessarily the state of the law.

Addressing the same issue, Juror No. 10 said: “What was going on in there

was that, the deliberations — he felt that because of the background that was put

forward on the abuse during his childhood, that there was — he said, ‘It’s not an

excuse,’ but he said, ‘it’s a reason why I won’t give the death penalty.’ So I think

in his mind he does believe that the death penalty is the worse penalty, okay.”

Juror No. 9 reported that Juror No. 5 had never said he believed life was a

more severe penalty than death.

Juror No. 5 himself denied saying he thought life was a more severe penalty

than death and explained the context of the discussion: “I think my statement was

. . . relative to what was told to me [by the other jurors], they said, ‘Well, you’re

letting him get away,’ [and] I say, ‘Do you call life in prison getting away?’ ”

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Asked whether he understood the law that “death is considered to be the worse of

the two penalties,” he answered that he understood. Asked whether he was

applying that law, he answered in the affirmative.

The trial court initially stated it found Juror No. 5 credible on this point:

“With respect to the statements that he denied saying about life without possibility

of parole, I’m satisfied that he understands and can follow an instruction that

death is worse. In the context of the statements he’s alleged to have made, I think

he probably did make those statements. I don’t believe he thinks that at this point,

based on his statements and all the other evidence I’ve heard, or that he’s unable to

follow that kind of an instruction.” (Italics added.) Later, when explaining its

decision to remove Juror No. 5, the court inexplicably stated it found that he had

committed misconduct by failing to follow the instruction that death was the more

severe penalty.

b. Discussion

The jury was instructed to return a verdict of death if it found the evidence

in aggravation was so substantial in comparison to that in mitigation that

defendant warranted the death penalty instead of life in prison. We presume the

jury followed this instruction. (People v. Gray, supra, 37 Cal.4th at p. 231.) A

juror’s failure to do so is misconduct, and “[i]n appropriate circumstances a trial

judge may conclude, based on a juror’s willful failure to follow an instruction, that

the juror will not follow other instructions and is therefore unable to perform his or

her duty as a juror.” (People v. Ledesma (2006) 39 Cal.4th 641, 738.) Did Juror

No. 5 fail to follow the instruction that death was a more severe penalty than life

in prison?

In evaluating the testimony of the 12 jurors, the trial court necessarily had

to assess their credibility. (See People v. Coffman and Marlow (2004) 34 Cal.4th

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1, 78 [because the trial court can observe the demeanor of a witness, it is in the

best position to assess credibility].) In doing so, the court expressly found Juror

No. 1, who opined that Juror No. 5 had stated that life was a more severe penalty

than death, generally credible. A few jurors also heard Juror No. 5 say that

defendant should sit in jail for the rest of his life and think about his crimes

because that would be the more severe penalty, but some did not. Others

presented a more nuanced explanation. In any event, even assuming Juror No. 5

made the disputed comment, its mere utterance was insufficient to satisfy the

“more stringent demonstrable reality standard [that] is to be applied in review of

juror removal cases.” (People v. Barnwell, supra, 41 Cal.4th at p. 1052.) This

much is clear when we consider four factors: First, the trial court did not

expressly find that Juror No. 5 was prevaricating when he explained the context of

his statement and affirmed that he understood death was worse than life and that

he was applying that rule. Although the trial court noted that Juror No. 5’s

demeanor during pretrial voir dire suggested he was less than truthful at that time,

the court made no such finding with regard to whether Juror No. 5 was credible

when questioned during the penalty phase deliberations following Juror No. 1’s

complaint. The record of that inquiry suggests Juror No. 5 was completely honest,

open and straightforward in his responses to the court’s questions.

Second, when explaining its ruling, the trial court stated initially that it was

“satisfied that [Juror No. 5] understands and can follow an instruction that death is

worse.” Later in its explanation, the court contradicted itself. The court did not

explain this inconsistency, which tends to undermine the validity of the court’s

ruling on this point.

Third, Juror No. 5 was one of the 10 jurors who initially voted for the death

penalty. It was only when the two jurors holding out for life changed their minds

that Juror No. 5 informed the jury that he too had changed his vote. This latter

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fact is undisputed and, contrary to the implication raised by Juror No. 1’s

complaint, belies the suggestion that Juror No. 5 was not following the instruction

that death was the more severe penalty.

Finally, Juror No. 5 suggested that had defendant been raised in a

supportive, intact family, he would consider death as a possible penalty.17 The

trial court did not indicate it believed Juror No. 5 was less than truthful in making

this assertion. This expressed view demonstrates clearly that Juror No. 5

understood which penalty the law considers the more severe.

After considering these factors, we conclude that to the extent the trial court

excused Juror No. 5 on the ground that he was not following the instruction to

consider death a more severe penalty than life imprisonment, the court erred

because the record does not establish a demonstrable reality that he was failing to

follow the instruction.

7. Prejudging the Appropriate Penalty

The fourth and final ground the trial court cited in support of its decision to

remove Juror No. 5 was that he had commented on the question of penalty with

Juror No. 1 during the guilt phase and had thereby prejudged the penalty. As with

the other three alleged grounds for excusing the juror, we conclude the record does

not establish a demonstrable reality that Juror No. 5 had prejudged the issue of

penalty.


17

Indeed, Juror No. 6 recalled that Juror No. 5 had said that if defendant came

from a good family, “he would ‘burn him.’ ” Significantly, Juror No. 1, in his
note to the trial court, used the same colorful turn of phrase when reporting Juror
No. 5’s statements (“ ‘If this guy came from a good family + had a college
ed[ucation] then I’d say “burn him” ’ ”), giving added support to the notion that
Juror No. 5 understood that death was the more severe penalty.

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a. Facts

The only evidence Juror No. 5 had prejudged the issue of penalty came

from Juror No. 1, who informed the court that during a break in the guilt phase

proceedings, between the testimony of Michael Durbin and L.R., Juror No. 5 told

him: “The whole thing is a problem with authority, and this is what happens when

you have no authority figure.” According to Juror No. 1, Juror No. 5 made such

comments on one or two occasions. Juror No. 1 said he thought nothing of the

comments until the jury began deliberating penalty, that he did not respond to the

comments, did not know if other jurors had overheard them, and did not know if

Juror No. 5 made the same comment to other jurors. He recalled the comments

when Juror No. 5 repeated them during the penalty phase deliberations.

None of the other jurors heard Juror No. 5 make these comments, either

outside the courtroom, outside the jury room or during the guilt phase

deliberations.

Several jurors, however, recalled Juror No. 5’s discussing during penalty

phase deliberations the absence in defendant’s life of a role model and a traditional

father/son relationship. For example, Juror No. 6 reported that on the second day

of penalty phase deliberations, Juror No. 5 informed the jury that “it didn’t matter

what [defendant] had done or who he was; that he could not [vote for] the death

penalty if he came from a bad family.” Juror No. 6 believed that Juror No. 5 had

made up his mind at the outset of the penalty phase deliberations, but then

retracted that statement, explaining that on the first day, Juror No. 5 had said

nothing to suggest prejudgment and only discussed his experiences as an African-

American man growing up and the importance of having a good family.

During the trial court’s examination of Juror No. 5 in the middle of penalty

phase deliberations, the following colloquy occurred:

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“THE COURT: . . . [¶] Did you say to another juror on your way out of the

courtroom after Michael Durbin, or perhaps even during his testimony, but

sometime in that time frame, ‘How can you hold someone responsible for their

actions?’

“JUROR NO. 5: I don’t recall that, no.

“THE COURT: Okay. Does it sound like something you could have said?

“JUROR NO. 5: I don’t think so.

“THE COURT: ‘No’? Okay.

“Did you also comment on the lack of an authority figure and say, ‘This is

what you expect when you have no authority figure, this type of behavior,’ way

back at that stage?

“JUROR NO. 5: I may have.

“THE COURT: You may have?

“JUROR NO. 5: Yes.

“THE COURT: All right. That’s something you can see yourself saying

back at that stage?

“JUROR NO. 5: Sure.

“THE COURT: All right. But you don’t recall specifically who you might

have said it to or what exactly you said?

“JUROR NO. 5: No. No, no.”

Although none of the other jurors heard the alleged out-of-court comments,

and Juror No. 5 himself expressly denied any mention of not holding defendant

responsible, the trial court credited Juror No. 1’s account, concluding “there is no

doubt in my mind that between the first and second witnesses in the guilt phase,

. . . that on the way out of the courtroom, and apparently unheard by other jurors,

he made those comments. So that is my factual finding on that issue.” The court

later held that “by attempting to communicate with [Juror No. 1] after the first

96

guilt phase witness, . . . I find that he began to reveal his fundamental biases and

prejudices, because I find that he made unfounded assumptions about the

defendant and authority figures when at that time he had absolutely no evidence of

such. He — as I said before, he didn’t even have the benefit of the defense’s

opening statement in which they referenced such things. [¶] He then repeated

those phrases, or something similar, in the penalty phase deliberations, which

indicates that he was just carrying through his prejudgment of whatever he was

going to do in the penalty phase.”

b. Discussion

Jurors are prohibited by law from discussing the case until all the evidence

has been presented, the trial court instructs the jury, and the jury has retired to

deliberate. Section 1122, subdivision (a) provides in pertinent part that “[a]fter the

jury has been sworn and before the people’s opening address, the court shall

instruct the jury generally concerning its basic functions, duties, and conduct. The

instructions shall include, among other matters, admonitions that the jurors shall

not converse among themselves, or with anyone else, on any subject connected

with the trial.” Defendant’s jury was so instructed.18 (See CALJIC No. 0.50

[pretrial admonition], CALCRIM No. 101 [same].) Violation of this duty, in the

form of discussing the case with a nonjuror, is serious misconduct. (In re

Hitchings, supra, 6 Cal.4th at p. 118.)


18

Before presentation of the first witness at the guilt phase, the jury was

instructed: “You must not converse among yourselves or with anyone else on any
subject connected with the trial except when all the following conditions exist:


“First, the case has been submitted to you for your decision by the Court

following arguments by counsel and jury instructions; second, you’re discussing
the case with a fellow juror; and third, all 12 jurors, and no other persons, are
present in the jury deliberating room.”

97

The issue sometimes arises after a verdict has been rendered, when a

criminal defendant attempts to undermine the validity of the verdict by claiming a

juror violated the court’s admonition not to speak to anyone connected with the

case. In such circumstances, we have held that trivial violations of this rule do not

require reversal because no prejudice to the defendant resulted. For example, in

Stewart, supra, 33 Cal.4th 425, a sitting juror approached the defendant’s

girlfriend during a break in the trial and told her she was a very attractive woman.

(Id. at p. 509.) We affirmed the trial court’s conclusion that the misconduct was of

a “ ‘trifling nature’ ” and did not warrant a new trial. (Id. at p. 510.)

The issue also arises before a verdict has been returned, when one party, as

here, argues a juror should be removed for violating the court’s admonition. In

such circumstances, the same rule applies: Trivial violations that do not prejudice

the parties do not require removal of a sitting juror. For example, in People v.

Loot (1998) 63 Cal.App.4th 694, a sitting juror encountered a deputy public

defender in an elevator during a break in the trial. The juror asked her whether the

prosecutor was “available,” that is, whether the juror could see the prosecutor

socially. The appellate court agreed with the trial court that this brief conversation

was a technical breach and constituted juror misconduct, but that it did not

establish as a demonstrable reality that the juror was unable to perform her duty as

a juror, and that any presumption of prejudice was rebutted. (Id. at p. 698.)

“Among the factors to be considered when determining whether the presumption

of prejudice has been rebutted are ‘the nature and seriousness of the misconduct,

and the probability that actual prejudice may have ensued.’ ” (Ibid., italics added.)

While the juror’s questions were “a technical violation of Penal Code section

1122, they were certainly not as serious as questions designed to obtain extrinsic

evidence regarding the case itself. [Citation.] We see little possibility actual

prejudice may have ensued. All 12 jurors voted defendant guilty. There is no

98

evidence to suggest [the offending juror] would have been the lone holdout for

acquittal but for her possible amorous interest in the prosecutor or that based

solely on the prosecutor’s attractiveness she was able to sway the other 11 jurors

to a guilty verdict on each count. On the other hand, there is unrefuted evidence

the juror did not discuss the incident on the elevator with the other jurors and her

interest in [the prosecutor] did not affect her deliberations.” (Ibid.)

As were the comments to a nonjuror in People v. Loot, supra, 63

Cal.App.4th 694, Juror No. 5’s solitary and fleeting comments to a fellow juror,

made during a break early in the guilt phase portion of the trial, were a technical

violation of both section 1122 and the court’s admonition to the jury not to discuss

the case. But the violation was a trivial one: one, possibly two sentences, spoken

in rhetorical fashion and not in an obvious attempt to persuade anyone. Juror

No. 1 averred that he did not respond, and none of the other jurors reported

hearing the comments. “No trials are perfect — evidentiary or procedural errors

are bound to occur” (People v. Garcia (2005) 36 Cal.4th 777, 808 (conc. & dis.

opn. of Chin, J.)), and while jurors are told not to discuss the case until all the

evidence has been presented and instructions given, they are not precluded from

thinking about the case, nor would that be humanly possible. The situation in this

case is even less serious than in Loot, for Juror No. 5 made his comments to

another juror, not a witness, a party, an attorney or some other nonjuror.

In any event, even deferring as we do to the trial court’s factual conclusion

that Juror No. 5 actually made the challenged comments at a break in the guilt

phase proceedings, its further conclusion the comments demonstrated Juror

No. 5’s prejudgment of the penalty issue cannot withstand scrutiny. While we rely

on our trial courts to assess a juror’s state of mind in such circumstances, we have

explained that such decisions are not subject to the substantial deference afforded

other factual decisions. Instead, a court’s decision to remove a juror must be

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supported by evidence showing a demonstrable reality that the juror is unable to

perform the duties of a juror. (People v. Barnwell, supra, 41 Cal.4th at p. 1052.)

This is a “heightened standard” (ibid.) and requires a “stronger evidentiary

showing than mere substantial evidence” (People v. Cleveland, supra, 25 Cal.4th

at p. 488 (conc. opn. of Werdegar, J.)).

We conclude the evidence does not establish to a demonstrable reality that

Juror No. 5 prejudged the question of penalty. That Juror No. 5 voted with the

other 11 jurors to reach a unanimous guilt phase verdict, convicting defendant of

murdering and torturing Uwe Durbin is undisputed. This fact of itself is

inconsistent with the trial court’s conclusion that Juror No. 5 harbored

“fundamental biases and prejudices” and “unfounded assumptions about the

defendant and authority figures,” to wit, that those who are raised without stable

families and proper role models cannot be blamed for their antisocial behavior.

Thereafter, at the beginning of the penalty phase deliberations, Juror No. 5

joined nine other jurors in a tentative, initial vote to impose the death penalty.

Only four days later, after the two holdout jurors changed their minds, did he too

change his mind and vote for life. These facts further indicate that Juror No. 5,

when he uttered the challenged comments during a break in the guilt phase

proceedings, had not firmly prejudged the case, that the issue was fluid in his

mind, and that he was open to imposing the death penalty on defendant. It merely

appears that, during the guilt phase, Juror No. 5 was entertaining various concerns

about the case in his mind and improperly blurted out one of his thoughts at an

inappropriate moment. Contrary to the trial court’s ruling, such thoughts did not

show Juror No. 5 had prejudged the case, for he voted to convict and initially

voted for the death penalty.

Under such circumstances, we cannot conclude the mere utterance of one or

two short sentences establishes to a demonstrable reality that Juror No. 5 had

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prejudged the question of penalty. To the extent the trial court ruled otherwise in

removing him from the jury in the middle of penalty phase deliberations, it erred.

In sum, the trial court cited four grounds for removing Juror No. 5: that he

concealed bias on voir dire, that he relied on facts not in evidence when

deliberating the penalty question, that he refused to follow the instruction that

death was a more severe penalty than life in prison, and that he prejudged the

question of penalty. Finding none of these grounds have been established to a

demonstrable reality (People v. Barnwell, supra, 41 Cal.4th at p. 1052), we have

no choice but to reverse the penalty verdict.19

8. Effect of Discharge on the Guilt Phase

Defendant finally contends that to the extent Juror No. 5 is found to have

been biased based on his comments outside the courtroom during the guilt phase,

we must reverse the guilt judgment. In support, he argues that if there was a

“substantial likelihood” the juror was biased, the guilt phase verdict is tainted “no

matter how convinced we might be that an unbiased jury would have reached the

same verdict, because a biased adjudicator is one of the few structural trial defects

that compel reversal without application of a harmless error standard.” (People v.

Nesler, supra, 16 Cal.4th at pp. 578-579.) Respondent replies that, if anything,

Juror No. 5 was biased in defendant’s favor and thus the rule requiring automatic

reversal is not required.

Because we find that Juror No. 5’s fleeting and solitary comments do not

establish to a demonstrable reality that he had prejudged the case, we also

conclude there was insubstantial evidence indicating that he was a biased juror.


19

Our conclusion makes it unnecessary to consider defendant’s further

contention that the trial court thereafter erred by removing the first alternate juror
assigned to replace Juror No. 5.

101

Indeed, he affirmed he could follow the law and that he in fact was following the

law. His fellow jurors reported that he was an active participant in deliberations.

Accordingly, we conclude he was not a biased juror and thus reject defendant’s

argument that we must reverse the guilt phase judgment.

VI. CONCLUSION

The judgment of guilt is affirmed. Because the trial court improperly

discharged Juror No. 5 during penalty phase deliberations, we reverse the penalty

phase judgment.

WERDEGAR, J.



WE CONCUR:

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




102




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

Name of Opinion People v. Wilson
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S089623
Date Filed: July 28, 2008
__________________________________________________________________________________

Court:
Superior
County: Riverside
Judge: Vilia G. Sherman

__________________________________________________________________________________

Attorneys for Appellant:

Patrick Morgan Ford, 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, Gary W. Schons, Assistant Attorney General, William M. Wood and Alana Cohen Butler, Deputy
Attorneys General, for Plaintiff and Respondent.









Counsel who argued in Supreme Court (not intended for publication with opinion):

Patrick Morgan Ford
1901 First Avenue, Suite 400
San Diego, CA 92101
(619) 236-0679

Alana Cohen Butler
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2534


Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 07/28/200844 Cal. 4th 758, 187 P.3d 1041, 80 Cal. Rptr. 3d 211S089623Automatic Appealclosed; remittitur issued

WILSON (LESTER HARLAND) ON H.C. (S152074)


Parties
1The People (Respondent)
Represented by Attorney General - San Diego Office
Alana Cohen Butler, Deputy Attorney General
P.O. Box 85266
San Diego, CA

2Wilson, Lester Harland (Appellant)
San Quentin State Prison
Represented by Patrick Morgan Ford
Attorney At Law
1901 First Avenue, Suite 400
San Diego, CA

3Wilson, Lester Harland (Appellant)
San Quentin State Prison
Represented by Michael Meaney
Attorney at Law
501 W. Broadway, Suite 1220
San Diego, CA


Disposition
Jul 28 2008Opinion: Conviction & specials aff., penalty rev.

Dockets
Jun 29 2000Judgment of death
 
Jul 5 2000Filed certified copy of Judgment of Death Rendered
  6-29-2000.
Jul 5 2000Penal Code sections 190.6 et seq. apply to this case
 
Sep 5 2000Filed:
  Application for appointment of counsel (IFP form)
Sep 12 2000Record certified for completeness
 
Jun 20 2002Counsel appointment order filed
  appointing Patrick Morgan Ford to represent applt for the direct appeal.
Jul 29 2002Date trial court delivered record to appellant's counsel
  6,946 pp. record.
Aug 6 2002Appellant's opening brief letter sent, due:
  March 3, 2003 (pursuant to Calif. Rules of Court, rule 39.57(b))
Sep 19 2002Counsel's status report received (confidential)
  from atty Ford.
Oct 16 2002Compensation awarded counsel
  Atty Ford
Nov 21 2002Counsel's status report received (confidential)
  from atty Ford.
Jan 3 2003Received copy of appellant's record correction motion
  Request to Complete and Correct the Record on Appeal. (22 pp.)
Jan 21 2003Counsel's status report received (confidential)
  from atty Ford.
Jan 24 2003Compensation awarded counsel
  Atty Ford
Feb 21 2003Request for extension of time filed
  to file appellant's opening brief. (1st request)
Feb 28 2003Filed:
  Supplemental declaration in support of application for extension of time to file appellant's opening brief.
Mar 17 2003Filed:
  Second supplemental declaration in support of application for extension of time to file appellant's opening brief.
Mar 18 2003Request for extension of time filed
  to 5/2/2003 to file appellant's opening brief.
Mar 25 2003Counsel's status report received (confidential)
  from atty Ford.
Apr 1 2003Record certified for accuracy
 
Apr 15 2003Counsel appointment order filed
  appointing Michael Meaney to represent appellant for habeas corpus/executive clemency proceedings related to the automatic appeal.
May 15 2003Request for extension of time filed
  to file appellant's opening brief. (2nd request)
May 16 2003Extension of time granted
  to 7/1/2003 to file appellant's opening brief.
May 22 2003Counsel's status report received (confidential)
  from atty Ford.
May 22 2003Record on appeal filed
  Clerk's transcript 17 volumes (3917 pp.) and reporter's transcript 36 volumes (3391 pp.) including material under seal; ASCII disks. Clerk's transcript includes 2466 pp. of juror questionnaires.
May 22 2003Letter sent to:
  Counsel advising record filed this date.
Jun 9 2003Compensation awarded counsel
  Atty Ford
Jul 7 2003Request for extension of time filed
  to file appellant's opening brief. (3rd request)
Jul 9 2003Extension of time granted
  to 9-2-2003 to file AOB.
Jul 18 2003Counsel's status report received (confidential)
  from atty Ford.
Sep 10 2003Request for extension of time filed
  to file appellant's opening brief. (4th request)
Sep 12 2003Extension of time granted
  to 11/3/2003 to file appellant's opening brief.
Sep 17 2003Counsel's status report received (confidential)
  from atty Meaney.
Sep 19 2003Counsel's status report received (confidential)
  from atty Ford.
Oct 21 2003Compensation awarded counsel
  Atty Meaney
Oct 29 2003Compensation awarded counsel
  Atty Meaney
Nov 3 2003Request for extension of time filed
  to file appellant's opening brief. (5th request)
Nov 12 2003Extension of time granted
  to 1/5/2004 to file appellant's opening brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Patrick Morgan Ford's representation that he anticipates filing that brief by 1/3/2004.
Nov 14 2003Counsel's status report received (confidential)
  from atty Meaney.
Jan 2 2004Request for extension of time filed
  to file AOB. (6th request)
Jan 8 2004Extension of time granted
  to 3/5/2004 to file appellant's opening brief. After that date, only one further extension totaling about 35 additional days will be granted. Extension is granted based upon counsel Patrick M. Ford's representation that he anticipates filing that brief by 4/10/2004. 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 14 2004Counsel's status report received (confidential)
  from atty Meaney.
Mar 8 2004Request for extension of time filed
  to file appellant's opening brief. (7th request)
Mar 12 2004Extension of time granted
  to 5/3/2004 to file appellant's opening brief. After that date, only one further extension totaling about 40 additional days will be granted. Extension is granted ased upon counsel Patrick Morgan Ford's representation that he anticipates filing that brief by 6/10/2004.
Mar 15 2004Counsel's status report received (confidential)
  from atty Ford.
Mar 22 2004Counsel's status report received (confidential)
  from atty Meaney.
May 7 2004Request for extension of time filed
  to file appellant's opening brief. (8th request)
May 12 2004Extension of time granted
  to 7/6/2004 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Patrick Morgan Ford's representation that he anticipates filing that brief by 7/3/2004.
Jun 17 2004Counsel's status report received (confidential)
  from atty Meaney.
Jul 6 2004Request for extension of time filed
  to file appellant's opening brief. (9th request)
Jul 9 2004Counsel's status report received (confidential)
  (supplemental) from atty Meaney.
Jul 9 2004Extension of time granted
  to 7-20-2004 to file AOB. After that date, no further extension will be granted. Extension granted based upon counsel Patrick Morgan Ford's representation that he anticipates filing the brief by 7-20-204.
Jul 19 2004Appellant's opening brief filed
  (81,158 words - 318 pp.)
Jul 20 2004Respondent's brief letter sent; due:
  November 16, 2004.
Aug 11 2004Compensation awarded counsel
  Atty Meaney
Aug 16 2004Counsel's status report received (confidential)
  from atty Meaney.
Sep 27 2004Motion filed (AA)
  by appellant for leave to file supplemental opening brief and to exceed word count limitation. (brief submitted under separate cover.)
Sep 30 2004Counsel's status report received (confidential)
  from atty Ford.
Oct 5 2004Order filed
  appellant's "Motion for Leave to File Supplemental Opening Brief and to Exceed Word Count Limitation" is granted.
Oct 5 2004Supplemental brief filed
  appellant's opening brief. (5708 words; 23 pp.)
Oct 18 2004Counsel's status report received (confidential)
  from atty Meaney.
Nov 9 2004Request for extension of time filed
  to file respondent's brief. (1st request)
Nov 12 2004Extension of time granted
  to 1-18-2005 to file respondent's brief.
Dec 1 2004Compensation awarded counsel
  Atty Ford
Dec 16 2004Counsel's status report received (confidential)
  from atty Meaney.
Jan 10 2005Request for extension of time filed
  to file respondent's brief. (2nd request)
Jan 14 2005Extension of time granted
  to 3/21/2005 to file respondent's brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy Attorney General Alana Cohen Butler's representation that she anticipates filing that brief by 5/20/2005.
Feb 18 2005Counsel's status report received (confidential)
  from atty Meaney.
Mar 14 2005Request for extension of time filed
  to file respondent's brief. (3rd request)
Mar 21 2005Extension of time granted
  to 5/20/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Alana Cohen Butler's representation that she anticipates filing that brief by 5/20/2005. After that date, no further extension is contemplated.
Apr 18 2005Compensation awarded counsel
  Atty Meaney
Apr 21 2005Counsel's status report received (confidential)
  from atty Meaney.
May 11 2005Compensation awarded counsel
  Atty Meaney
May 16 2005Received:
  Application for extension of time to file respondent's brief, to be resubmitted under penalty of perjury.
May 23 2005Request for extension of time filed
  to file respondent's brief. (4th request)
May 25 2005Extension of time granted
  to 6/20/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Alana Cohen Butler's representation that she anticipates filing that brief by 6/20/2005. After that date, no further extension will be granted.
Jun 20 2005Counsel's status report received (confidential)
  from atty Meaney
Jun 20 2005Respondent's brief filed
  (56799 words; 183 pp.)
Aug 17 2005Counsel's status report received (confidential)
  from atty Meaney.
Aug 19 2005Request for extension of time filed
  to file appellant's reply brief. (1st request)
Aug 22 2005Extension of time granted
  to 10-20-2005 to file reply brief.
Oct 19 2005Counsel's status report received (confidential)
  from atty Meaney.
Oct 21 2005Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Oct 25 2005Extension of time granted
  to 12/20/2005 to file appellant's reply brief.
Dec 19 2005Counsel's status report received (confidential)
  from atty Meaney.
Dec 21 2005Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Dec 30 2005Extension of time granted
  to 2/21/2006 to file the appellant's reply brief.
Feb 8 2006Compensation awarded counsel
  Atty Ford
Feb 17 2006Request for extension of time filed
  to file appellant's reply brief. (4th request)
Feb 23 2006Counsel's status report received (confidential)
  from atty Meaney.
Feb 27 2006Extension of time granted
  to April 21, 2006 to file the appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Patrick Morgan Ford's representation that he anticipates filing that brief by April 21, 2006.
Apr 10 2006Request for extension of time filed
  to file appellant's reply brief. (5th request)
Apr 17 2006Counsel's status report received (confidential)
  from atty Meaney.
Apr 17 2006Extension of time granted
  to June 21, 2006 to file the appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Patrick Morgan Ford's representation that he anticipates filing that brief by June 21, 2006.
Jun 1 2006Compensation awarded counsel
  Atty Meaney
Jun 14 2006Compensation awarded counsel
  Atty Meaney
Jun 19 2006Counsel's status report received (confidential)
  from atty Meaney.
Jun 19 2006Request for extension of time filed
  to file appellant's reply brief. (6th request)
Jun 21 2006Extension of time granted
  to August 21, 2006 to file the appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Patrick Morgan Ford's representation that he anticipates filing that brief by August 21, 2006.
Aug 9 2006Change of contact information filed for:
  applt counsel Michael Meaney.
Aug 21 2006Request for extension of time filed
  to file appellant's reply brief. (7th request)
Aug 23 2006Counsel's status report received (confidential)
  from atty Meaney.
Aug 24 2006Extension of time granted
  to October 23, 2006 to file appellant's reply brief . After that date, no further extension will be granted. Extension is granted based upon counsel Patrick Morgan Ford's representation that he anticipates filing that brief by October 23, 2006.
Sep 8 2006Appellant's reply brief filed
  (19,306 words; 78 pp.)
Sep 8 2006Request for judicial notice filed (AA)
  by appellant's counsel Patrick Morgan Ford.
Sep 21 2006Opposition filed
  by respondent to "Appellant's Request for Judicial Notice."
Oct 20 2006Counsel's status report received (confidential)
  from atty Meaney.
Dec 18 2006Counsel's status report received (confidential)
  from atty Meaney.
Feb 9 2007Compensation awarded counsel
  Atty Meaney
Feb 14 2007Compensation awarded counsel
  Atty Meaney
Apr 20 2007Related habeas corpus petition filed (concurrent)
  No. S152074.
Jun 27 2007Compensation awarded counsel
  Atty Meaney
Mar 7 2008Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the May 2008 calendars, to be held the weeks of May 5 and May 26, 2008, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Apr 9 2008Case ordered on calendar
  to be argued on Wednesday, May 7, 2008, at 1:30 p.m. in San Francisco
Apr 16 2008Filed:
  respondent's focus issues letter, dated April 14, 2008.
Apr 18 2008Received:
  appearance sheet from Deputy Attorney General, Alana Cohen Butler, indicating 30 minutes for oral argument for respondent.
Apr 21 2008Filed:
  appellant's focus issues letter, dated April 17, 2008.
Apr 21 2008Received:
  appearance sheet from Attorney Patrick M. Ford, indicating 30 minutes for oral argument for appellant.
Apr 24 2008Received:
  respondent's additional authorities letter, dated April 24, 2008.
May 7 2008Cause argued and submitted
 
May 29 2008Compensation awarded counsel
  Atty Ford
Jul 25 2008Notice of forthcoming opinion posted
 
Jul 28 2008Opinion filed: Conviction & specials aff., penalty reversed
  The judgment of guilt is affirmed. Because the trial court improperly discharged Juror No. 5 during penalty phase deliberations, we reverse the penalty phase judgment. Opinion by Werdegar, J. -----joined by George, C.J., Kennard, Baxter, Chin, Moreno, and Corrigan, JJ.
Aug 29 2008Remittitur issued (AA)
 
Sep 8 2008Received:
  receipt for remittitur.
Jul 29 2009Compensation awarded counsel
  Atty Meaney
Oct 29 2009Compensation awarded counsel
  Atty Meaney

Briefs
Jul 19 2004Appellant's opening brief filed
 
Jun 20 2005Respondent's brief filed
 
Sep 8 2006Appellant's reply brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website