Filed 7/11/05
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S039632
v.
ROBERT PAUL WILSON,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. A029492
In 1988, a jury convicted defendant Robert Paul Wilson of the first degree
murder (Pen. Code,1 §§ 187, 189) and robbery (§ 211) of Roy Swader, found that
defendant used a firearm in the commission of each offense (§ 12022.5, subd. (a)),
and found true a special circumstance allegation that he committed the murder
during the course of a robbery. (§ 190.2, former subd. (a)(17)(i), now subd.
(a)(17)(A).) The jury returned a verdict of death.
On petition for writ of habeas corpus, we concluded defense counsel
provided ineffective assistance by failing to object to certain testimony and tape
recordings rendered inadmissible under Massiah v. United States (1964) 377 U.S.
201, 206. (In re Wilson (1992) 3 Cal.4th 945.) We vacated the judgment in its
1
All further statutory references are to the Penal Code unless otherwise
noted.
1
entirety. (Id. at p. 958.) We also dismissed the companion automatic appeal as
moot. (People v. Wilson (1992) 3 Cal.4th 926.) However, “in an attempt to avoid
the recurrence of error on retrial, we discuss[ed] certain issues for the guidance of
the parties and the trial court on remand.” (Id. at p. 930.)
On retrial in 1994, a jury again convicted defendant of first degree murder
(§§ 187, 189) and second degree robbery (§ 211), and found true the robbery
special-circumstance allegation. (§ 190.2, subd. (a)(17).) It also found true the
enhancement allegations that defendant personally used a firearm in the
commission of the murder and robbery (§ 12022.5, subd. (a)), and that he was
armed with a firearm in the commission of the offenses. (§ 12022, subd. (a)(1).)
The second jury also returned a verdict of death.
The trial court denied the automatic motion to reduce the penalty to life
imprisonment without the possibility of parole (§ 190.4), and sentenced defendant
to death. This appeal is automatic. (§ 1239.) For reasons that follow, we affirm
the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Guilt Phase
1. Prosecution
Evidence
On September 5, 1984, Long Beach police found Roy Swader’s body inside
a van in a parking lot. All the van’s windows were rolled up and the doors were
locked. There was no evidence of a struggle.
The cause of death was two gunshot wounds to his head. Either shot could
have been fatal. Swader’s left front pocket was pulled outwards and his belt was
undone. A receipt from a Shell gas station in Indio was found in Swader’s shirt
pocket. No wallet was found, although Swader was known to carry a “trucker’s
wallet” in his left pocket secured to his belt by a chain.
2
The prosecution presented evidence that Swader lived in Tucson, Arizona
with his two young daughters. He made a living buying tools in Paramount,
California, and then selling them at a swap meet in Tucson. Normally taking one
adult with him on his trips to California, Swader bought the tools with cash and
would often carry between $1,500 to $3,000 in his trucker’s wallet. He also
carried a revolver for protection.
In the summer of 1984, defendant2 worked for Swader at the Tucson swap
meet. He often accompanied Swader to California and helped him load and
unload the tools. Defendant moved in with Swader for a month between July and
August 1984, and afterwards moved in to the Tucson home of Sonya Cravens3 and
Wayne Anderson.4
More than a week before the murder, Kimberlee Jost, who worked at the
swap meet and knew Swader, was at Cravens’s and Anderson’s home when
defendant was there. Defendant stated he was at Swader’s apartment while
Swader was counting money on the kitchen table. Defendant said “there was four
fucking thousand dollars on the table” and that he “was tempted to knock
[Swader] off because he could live good on four fucking thousand dollars.” Jost
also testified that after Swader’s death, defendant came up to Jost at the swap meet
and told her “for no reason” that he had not gone with Swader to California, but
instead had been partying with a friend in Sabino Canyon, Arizona.
2
Defendant was also known as “City,” and “Blake Richards.”
3
Cravens changed her name to Niemi after she got married. For
convenience, we will refer to her as Cravens.
4
Anderson’s real name was Harold Wayne Wilson. He was also known as
“Richard Dume,” “Rick Wilson,” “Rick Anderson,” and “Wayne Williams.” For
convenience, we will refer to him as Anderson.
3
On September 4, 1984 (one day before he was found dead), Swader left
Tucson for California in his van and trailer. He stopped for gas in Indio later that
day. Robert Berrie, the gas station attendant, testified that he recognized Swader
because he would stop at the station each week. That day, Swader was driving the
van and defendant was the only other occupant. Berrie positively identified
defendant in a photographic lineup and in court. Swader paid for the gas with
cash, which he carried in his trucker’s wallet, and obtained a receipt.
When Long Beach police discovered Swader’s body in his van, they also
found a black T-shirt and a pair of jeans, which were later identified as similar to
clothing that defendant usually wore. A fingerprint lifted from the van matched
the middle finger of defendant’s left hand.
After defendant was arrested in October in Las Vegas, Detectives Collette
and Miller traveled there to speak to him. Defendant stated he was glad to see
them because he was arrested for murder and did not know who was dead. After
detectives told him that it was Swader and that his body was found in his van in
Long Beach, defendant said that he made several trips to California with Swader
to purchase tools, and that the last trip he took with him was on or about August
13. Defendant also mentioned that on these trips Swader carried large amounts of
cash and a revolver, and that he would often stop at an Indio gas station on the
way.
After Detective Collette accused defendant of lying and said that he had
been “identified as being in Indio,” defendant bowed his head and said, “I just
can’t handle it.” Detective Collette testified that defendant said “he was sorry for
what he had done, and he was sorry that he left [Swader’s] girls without a father.”
Defendant started to cry after stating that Swader “got me off the streets and gave
me a place to stay.”
4
Defendant then gave detectives his version of the events. He said that he
accompanied Swader on the trip to California and arrived at the Paramount
Theater in Paramount at night. Swader went to the back of the van to sleep.
About 2:30 a.m., defendant began thinking about using Swader’s money to pay off
a $13,000 debt he owed in Kansas. He took Swader’s gun out of the console and
shot Swader twice in the head while he was sleeping. Swader started “gurgling,”
and defendant got into the driver’s seat and drove away. Defendant drove on the
freeway and, by a bridge, he threw the gun out the window. Stopping at a park,
defendant took Swader’s wallet and $2,300 in cash, and left. He took a taxi to the
Los Angeles airport and flew back to Tucson. Asked what he did with the money,
defendant replied he “blew it all partying.” Defendant said he “did it for the
money. Money is the root of all evil.”
Detective Collette asked defendant whether Wayne Anderson was involved.
He was silent for 30 to 40 seconds, and then answered, “Yes.” Defendant then
said that “he and Wayne had a pact. The first one caught would take the rap.”
Defendant explained that “there was no point in the both of us frying over this.”
Defendant said that on September 3, he and Anderson talked about robbing
Swader and dividing the money equally. Defendant said they decided to kill
Swader “[b]ecause he was big, and he would kick their ass if they tried to rob
him.”
Explaining what happened, defendant said that he was in the driver’s seat
and that Anderson was in the passenger seat, and “all of a sudden, there was a
boom, and it was over with. [Anderson] shot the victim twice in the head.”
Defendant admitted the idea to rob and kill Swader was both his and Anderson’s;
“they shared the idea 50-50.”
When Detective Collette asked defendant if he wanted to have his statement
tape-recorded, he said “he’d rather not.” Defendant looked over the interview
5
notes Detective Collette had taken. Defendant signed the last page, where he also
wrote that the notes reflected an accurate account of his statement.
2. Defense
Evidence
Defendant testified on his own behalf. On the day after Labor Day,
defendant, Swader, and Anderson left Tucson for California. On the way, they
stopped in Indio. Anderson was asleep and did not leave the van. They arrived in
Paramount after dark. Around midnight, defendant went to the back of the trailer
to sleep. Defendant woke up to a loud noise which sounded like a backfire from a
car. He climbed out of the trailer to urinate. He then heard a second loud noise,
which he thought was a gunshot. He believed the sound came from the van.
When defendant opened the driver’s door, he saw Anderson standing over
Swader and pulling at Swader’s belt. Anderson turned around, pointed a gun at
defendant, and told him to get in and drive. Defendant later said he did not
actually see Anderson with a gun, but believed that Anderson was armed with one.
Defendant drove on the freeway, exited in Long Beach, and stopped in a
park. Defendant and Anderson left the van and trailer, which defendant locked out
of habit. Anderson started walking off and defendant followed him. Anderson
stopped at a phone booth and called a taxi. Defendant and Anderson left in the
taxi and went to the airport. Anderson paid for the taxi from “a big, old wad” of
money. They flew to Phoenix, Arizona, bought a used van, and drove back to
Tucson. A few days later, defendant, Anderson, and Cravens moved to Las
Vegas.
Defendant was arrested in Las Vegas. During the four-hour police
interview, defendant initially lied to Long Beach detectives about having no
knowledge of Swader’s death. Defendant told detectives he shot and robbed
Swader because he owed $13,000, but later he said that Anderson did it and that
6
the two of them had planned to kill Swader. Defendant said that his trial
testimony, and not his statement to the police, was true. Defendant testified that
he did not plan with Anderson to rob or kill Swader, that he had no intention to kill
Swader, and that he did not shoot Swader that night.
Defendant testified about his conversation with Donald Loar, also known as
“David Grundy,” defendant’s cellmate in the Los Angeles County jail in 1987.
Defendant and Loar discussed having a witness in Indio, i.e., Robert Berrie,
“eliminated” because the witness could tie defendant and the victim together
before the murder. However, defendant claimed he did not want that to actually
happen. He only wanted to appear like a “heavy” to protect himself in jail.
Defendant denied telling another inmate, Farrell Lee Torregano, that he personally
shot Swader twice in the head.
Cravens testified that she and Anderson lived together and hung around the
Tucson swap meet where they met defendant. During the 1984 Labor Day
weekend, defendant and Anderson told Cravens they were going to work for
Swader and accompany him to Los Angeles. Defendant and Anderson had gone
with Swader to Los Angeles once before.
When they returned from the trip, Anderson and defendant were driving a
green van, which Cravens had never seen before. Anderson gave Cravens a large
amount of money to hold. A week after they returned from Los Angeles,
defendant and Anderson, along with Cravens, moved to Las Vegas. In October
1984, Cravens received a call from defendant who told her he had been arrested
for vagrancy. After that call, Cravens and Anderson left Las Vegas and traveled to
Oklahoma and Texas.
After defendant’s arrest, Anderson told Cravens that “he hoped they didn’t
lay it too hard on [defendant] because he didn’t deserve it because he did not pull
the trigger, that [Anderson] himself had done it.” He said, “I pulled the trigger.”
7
In an initial interview in 1993 with defense investigator Cynthia Castro, Cravens
did not tell her what Anderson said or reveal his true name. However, in a
subsequent telephone conversation she decided to tell Castro the truth—10 years
after the events—because Cravens said Castro told her that Anderson would not
find out that Cravens was the source of this information.
The parties stipulated that a print expert for the Long Beach Police
Department lifted a fingerprint from a Pepsi soda can found in Swader’s van,
which matched the right ring finger of an individual named Harold Wayne Wilson,
which was Anderson’s real name. The parties also stipulated that the “age of the
prints cannot be determined and that touching of items does not necessarily leave
fingerprints.”
3. Prosecution Rebuttal Evidence
Detective Collette testified that when he arrived at the crime scene, the two
padlocks on Swader’s trailer were locked and that a bungee cord was secured
across the trailer door.
Probation Officer Jack Pionke, who conducted an interview with defendant
on July 8, 1988, testified that defendant denied killing Swader. Defendant told
Pionke that he did not go with Swader on the September trip because he had food
poisoning. Instead, he went “partying.”
Defense investigator Cynthia Castro testified about her October 26, 1993
interview with Cravens. Castro testified that Cravens stated Anderson had
“actually pulled the trigger” and that money was the reason for the murder. Castro
said she did not say anything in order to urge her to come forward with this
information. Castro did not assure Cravens that Anderson would not find out what
Cravens said.
8
B. Penalty
Phase
1. Prosecution
Evidence
The prosecution called Rose Wigley, the younger sister of victim Swader.
She testified that she grew up with Swader in a small town in Alabama, and that
he served in the military for 22 years. Swader had custody of his two young
daughters, who were six and four years old when he died, after their mother had
abandoned them. After Swader’s death, Wigley obtained custody of the girls.
Wigley testified that their father’s death “devastated” the girls.
The prosecution presented the prior testimony of Donald Loar. At the first
trial, Loar testified that defendant told him that he was in custody because he
murdered his boss. Loar also testified that defendant, who believed Loar had
“Mafia ties,” asked Loar to get a hit man to eliminate a witness who was “a thorn
in [defendant’s] side, that could do him a lot of harm if he testified, that could put
him and the murder victim together.” Defendant told Loar “he should have taken
the gas receipt.”
Farrell Lee Torregano, an inmate who met defendant in the Los Angeles
County jail, testified that defendant told him “he was working for a guy that was in
Tucson that ran a swap meet, and they come to California to buy tools to go back
up there and sell.” Defendant asked the guy to borrow money but he refused.
Torregano testified: “So when [defendant] got here in Long Beach, in King’s
Park, the guy was sleeping. He got the gun. He shot him twice in the head, took
the money off the guy, left, and went to Tucson.”
The parties stipulated that defendant suffered a 1983 prior conviction for
felony theft in Kansas.
2. Defense
Evidence
The defense called James Park, a consultant and former associate warden
for the Department of Corrections. He testified that based on his review of
9
defendant’s prison file, he believed that if defendant received a life without
possibility of parole sentence, defendant would “be [a] well above average
prisoner.” Park testified that based on defendant’s “age and his background, his
skills that he has, the other measures of stability, that stability in terms of prison
adjustment, there is no doubt that he will be sought after by supervisors.”
Defendant’s then 23-year-old daughter, Vicki Howell, also testified. She
said that she and her sister Valerie did not have many memories of defendant
because her mother “didn’t want us to have any relationship” with defendant.
However, two years prior to the trial, after their mother stopped “interfering,”
Howell began communicating with defendant through letters and phone calls and
their relationship became closer. She thought that defendant was a positive
influence on her and believed that he tried to fulfill his role as a father.
Deeanna Owen, who first met defendant in Kansas in 1979, testified she
considered defendant a “close and valued friend.” Before defendant got in trouble,
Owen never knew him to be violent in any way. Owen recalled one time when
defendant broke up a fight at a bar.
Reverend Lynn Schubert, a jail chaplain, testified that he met defendant at
the Hall of Justice. After defendant was incarcerated in San Quentin, he would
often write or call Reverend Schubert. Reverend Schubert testified: “Of all of the
men that we’ve come in contact with, he’s been the most faithful of any of them,
and he’s very sincere. I believe that with my heart, that he really wants God to
make something of his life.” He considered defendant a friend.
Dr. Michael Maloney, a forensic psychologist, testified he first met
defendant in 1985 to administer psychological tests. Dr. Maloney interviewed
defendant’s adoptive father and reviewed defendant’s “life chronology”
documents. Defendant’s biological mother was “fairly consistently described as
having an alcohol abuse problem and being neglectful of him, and I think that’s
10
what led to the adoption.” Defendant’s adoptive parents, especially his adoptive
mother, also had alcohol problems. Defendant, at age 13, was placed in a
psychiatric hospital for “bizarre behavior.” As a teenager, he was hospitalized
three different times in psychiatric facilities, until he was emancipated at age 18.
Dr. Maloney testified that defendant was given an electroencephalogram
(EEG) twice in his childhood. Both times the EEG results were abnormal,
indicating a “mild organic brain dysfunction or brain damage.” Dr. Maloney
believed defendant displayed psychological symptoms consistent with fetal
alcohol syndrome. Defendant also displayed learning disabilities when he was in
school.
In 1985, Dr. Maloney gave defendant a number of tests to determine if he
suffered from any possible organic brain syndrome. In the verbal areas, Dr.
Maloney believed defendant’s “intelligence is probably bright average, above
average.” There was no evidence that defendant suffered from a psychotic mental
illness. But there was evidence of defendant’s “personality disorder with features
of underlying hostility and anger and difficulty adjusting.”
When Dr. Maloney reinterviewed defendant in 1993, he “did not notice
anything remarkably different.” The results of the Minnesota Multiphasic
Personality Inventory (MMPI) test on defendant did not suggest a specific
diagnosis. Dr. Maloney believed it was “clear” there was no “major mental
disturbance such as psychosis.” He also thought that defendant would not be a
“high risk” for violence in a custody situation.
II. DISCUSSION
A. Pretrial Issue—Excusal of a Juror
Defendant contends that the trial court improperly excused one prospective
juror, Rachel F., because of her views on the death penalty. In determining
11
whether to excuse a juror based on her views regarding the death penalty, a trial
court must determine whether the juror’s views would “ ‘prevent or substantially
impair the performance of his duties as a juror in accordance with his instructions
and his oath.’ ” (Wainwright v. Witt (1985) 469 U.S. 412, 424; People v. Griffin
(2004) 33 Cal.4th 536, 558.) “Substantial evidence is the standard of review
applicable to a finding on the potential effect of a prospective juror’s views related
to capital punishment. [Citations.]” (People v. Griffin, supra, 33 Cal.4th at p.
558.) The same standard applies for determining the nature of such views. (Ibid.)
We conclude substantial evidence supports the trial court’s finding that the
prospective juror’s views against the death penalty prevented or substantially
impaired her ability to perform her duties.
During voir dire, the trial court excused Rachel F. for cause. On her juror
questionnaire, Rachel F. originally answered “no,” but changed her answer to
“yes,” to the question whether she would “always vote against death, no matter
what evidence might be presented or argument made during a penalty trial.”
When the trial court questioned her about her changed response, it asked whether
she had a conscientious objection to the death penalty such that she “would
automatically and absolutely refuse to consider or vote for a verdict of death in a
case involving these charges and special circumstance.” Rachel F. answered, “I
would not be able to consider the death penalty.”
When defense counsel also asked her, “Can you conjure up a set of facts in
your mind that you can consider that [death] would be an appropriate penalty,”
Rachel F. responded, “No, I can’t conjure that up.” The court also asked, “And so
under no circumstances would you ever consider voting for the death penalty?”
She replied, “I don’t think I could send somebody to his death. Ever.” Contrary
to defendant’s contention, the fact that Rachel F. qualified her answers with “I
think,” does not undercut the trial court’s finding that she was substantially
12
impaired from performing her duties. (People v. Mitcham (1992) 1 Cal.4th 1027,
1062.)
Also, the trial court was not required to determine whether the prospective
juror might be able to consider the death penalty under different circumstances.
“The impact the juror’s views might have in actual or hypothetical cases that are
not before the juror are irrelevant” to the determination whether the juror’s ability
to return the death penalty was impaired. (People v. Visciotti (1992) 2 Cal.4th 1,
45, fn. 16.)
B. Guilt Phase Issues
As a preliminary matter, throughout his briefs defendant contends that
transcripts of conferences between the trial court and counsel, which included
discussions on jury instructions at both the guilt and penalty phases, are missing.
He argues these missing transcripts “prejudiced [his] ability to prosecute his
appeal because comments, discussions, and (possibly) rulings regarding improper
and inadequate instructions are missing.”
“An incomplete record is a violation of section 190.9, which requires that
all proceedings in a capital case be conducted on the record with a reporter present
and transcriptions prepared. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894,
941.) Notwithstanding section 190.9’s mandatory requirement, “[n]o presumption
of prejudice arises from the absence of materials from the appellate record
[citation], and defendant bears the burden of demonstrating that the record is
inadequate to permit meaningful appellate review [citations].” (People v.
Samayoa (1997) 15 Cal.4th 795, 820.)
Defendant maintains the appellate record in this case does not include the
February 24, 1994 conference regarding jury instructions; the March 1, 1994
instructional conference at which the parties discussed CALJIC No. 2.50 and other
13
guilt phase instructions; a discussion on the preliminary ruling on the Loar
transcript; a discussion of the victim impact evidence and other penalty phase
evidence; and a discussion regarding the penalty phase instructions.
Even assuming such transcripts are missing, we conclude that they do not
preclude adequate review of the issues. As will be seen, to the extent the missing
transcripts bear on his claims of instructional error, we will give defendant the
benefit of the doubt as to the substance of these missing transcripts. (People v.
Young (2005) 34 Cal.4th 1149, 1203, 1225.) As such, we reject his claim that the
record is inadequate to permit meaningful review. (Id. at p. 1170.)
1. CALJIC No. 2.50
The trial court instructed the jury with CALJIC No. 2.50, permitting jurors
to consider evidence of defendant’s other crimes for the limited purpose of
proving the identity of the perpetrator. The trial court also gave corresponding
instructions regarding the burden of proof on other crimes evidence, and the
definition of preponderance of the evidence. (CALJIC Nos. 2.50.1, 2.50.2.) As
defendant points out, it is unclear who requested CALJIC No. 2.50 because the
instructional conference is not included in the appellate record.
As given, CALJIC No. 2.50 provided as follows: “Evidence has been
introduced for the purpose of showing that the defendant committed a crime other
than for which he is on trial. [¶] Such evidence, if believed, was not received and
may not be considered by you to prove that defendant is a person of bad character
or that he has a disposition to commit crimes. [¶] Such evidence was received and
may be considered by you only for the limited purpose of determining if it tends to
show: [¶] The identity of the person who committed the crime, if any, of which
the defendant is accused. [¶] For the limited purpose for which you may consider
such evidence, you must weigh it in the same manner as you do all other evidence
14
in the case. [¶] You are not permitted to consider such evidence for any other
purpose.”
Defendant asserts the instruction “invited” the jury to use his prior
conviction for grand theft, his marijuana use, and a jailhouse solicitation of murder
as evidence of other crimes, as propensity evidence. This evidence was adduced
through defendant’s testimony in the guilt phase; the prosecution did not introduce
any specific uncharged criminal conduct during its case-in-chief. On direct
examination, defendant admitted a prior conviction for grand theft in Kansas, and
conceded he violated a condition of probation for the conviction by leaving that
state. The parties did not discuss the details underlying this conviction. Also,
defendant revealed he and Wayne Anderson smoked “a joint” on the evening of
the Swader murder, and that they were smoking “a lot” of marijuana during those
days.
Regarding the solicitation for murder, defendant on direct and cross-
examination testified to his 1987 conversation with Donald Loar, while both were
incarcerated in the Los Angeles County jail. Though not denying he talked to
Loar about eliminating prosecution witness Robert Berrie, defendant maintained
that it was Loar who offered to eliminate Berrie, that defendant “never wanted it to
happen,” and that he simply wanted to appear like a “heavy” to protect himself in
jail.
On appeal, defendant does not contend the trial court or the prosecution
highlighted this other crimes evidence to the jury. Indeed, the record shows the
trial court confirmed that both defense counsel and the prosecution “agree[d] that
there is no need to define the crime referred to in CALJIC 2.50.” Claiming error,
defendant asserts the instruction failed to identify the other crimes evidence and
failed to provide the jury with sufficient guidance, and that there was insufficient
evidence to support giving the instruction. He argues that giving this instruction
15
violated his various constitutional rights. For reasons that follow, we find no
error.
As noted above, defense counsel agreed it was unnecessary to define the
other crimes evidence. Thus, defendant has forfeited this claim on appeal.
(People v. Lewis (2001) 25 Cal.4th 610, 638.) In any event, we fail to see how
identifying the other crimes evidence with respect to CALJIC No. 2.50 would
have benefited defendant here. Delineating the other crimes might have caused
the jury to focus on the crimes, and a defendant may want to avoid any such focus.
(See People v. Phillips (1985) 41 Cal.3d 29, 73, fn. 25 [“tactical considerations” to
avoid defining elements of other crimes at penalty phase; “such instructions could
result in the jury placing undue significance on such other crimes rather than on
the central question of whether he should live or die”].) Moreover, although it is
unclear who requested the instruction, CALJIC No. 2.50 as given was arguably
beneficial to defendant—it instructed the jury not to consider defendant’s other
crimes for a variety of purposes (i.e., to prove that defendant “is a person of bad
character or that he has a disposition to commit crimes”), while limiting the jury’s
use of the evidence solely to decide the issue of identity. Based on the foregoing,
we conclude that defendant suffered no prejudice from the failure to define the
other crimes evidence.
Defendant also argues that because CALJIC No. 2.50 was “silent as to how
the unspecified evidence might be used to show identity other than by showing
predisposition or bad character, it is both confusing and contradictory.” We
disagree. Contrary to defendant’s suggestion, CALJIC No. 2.50 “was and is a
correct statement of the law.” (People v. Linkenauger (1995) 32 Cal.App.4th
1603, 1615; see Evid. Code, § 1101, subd. (b) [evidence of crime admissible to
prove identity].)
16
As we discussed in the first appeal, defendant’s act of soliciting the murder
of key prosecution witness Berrie “was highly probative of defendant’s
consciousness of guilt, which in turn was probative of his identity as the
perpetrator of the charged offenses.” (People v. Wilson, supra, 3 Cal.4th at p. 940,
citing People v. Edelbacher (1989) 47 Cal.3d 983, 1006-1007.) Here, CALJIC
No. 2.50 limited the jury’s use of the other crimes evidence to the issue of identity
and emphasized that the jury was “not permitted to consider such evidence for any
other purpose.” We conclude that the evidence of solicitation here was “so highly
relevant to the central issue, . . . that there was little, if any, danger that the jury
would consider such evidence for any of the improper purposes proposed by
defendant, including general criminal disposition.” (People v. Bunyard (1988) 45
Cal.3d 1189, 1226.)
As noted above, neither the trial court nor the prosecution suggested that
defendant committed the crime of solicitation of murder. The court’s instruction
did not mention any particular crime. In any event, contrary to defendant’s
contention, there was sufficient evidence that defendant committed the offense of
soliciting Berrie’s murder.
“Solicitation is defined as an offer or invitation to another to commit a
crime, with the intent that the crime be committed. The crime of solicitation,
which is restricted to the solicitation of particular serious felony offenses, is
complete once the verbal request is made with the requisite criminal intent; the
harm is in asking, and it is punishable irrespective of the reaction of the person
solicited. Thus, solicitation does not require the defendant to undertake any direct,
equivocal act towards committing the target crime; it is completed by the
solicitation itself, whether or not the object of the solicitation is ever achieved, any
steps are even taken towards accomplishing it, or the person solicited immediately
rejects it. [Citations.]” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1377-1378;
17
see § 653f, subd. (b) [soliciting commission of murder]; see also, e.g., People v.
Gordon (1975) 47 Cal.App.3d 465, 472 [“The intent may be inferred from the
circumstances of the asking”].)
Although defendant maintains he only wanted to appear like a “heavy” and
did not actually want to kill Berrie, a trier of fact could reasonably have concluded
otherwise in light of the circumstances. Believing that Loar had connections to
make a hit, defendant testified that he told Loar that he wanted to eliminate Berrie,
a key witness who could place defendant and the victim together before the
murder. A trier of fact could have reasonably rejected portions of defendant’s
self-serving testimony that he did not want to kill Berrie and that it was Loar who
offered to eliminate Berrie. Accordingly, we conclude the trial court did not err in
giving CALJIC No. 2.50.
In a related argument, defendant claims that there was insufficient evidence
of criminal solicitation (§ 653f) because the evidence consisted only of
defendant’s testimony without corroborating circumstances. Under section 653f,
subdivision (f), the “offense charged . . . shall be proven by the testimony of two
witnesses, or of one witness and corroborating circumstances.” (Italics added.)
As the Attorney General argues, the evidentiary requirement under section 653f,
subdivision (f), is inapplicable here. (People v. McDermott (2002) 28 Cal.4th 946,
1000 [§ 653f, subd. (f)’s proof requirement not applicable if evidence is not used
to “prove a violation of section 653f”].) The offense of solicitation was not
charged, and evidence of such would have gone solely to prove identity of the
perpetrator. (Evid. Code, § 1101; CALJIC No. 2.50.)
Finally, contrary to defendant’s suggestion, there is no reasonable
likelihood that, in addition to considering defendant’s prior grand theft conviction
for impeachment purposes (CALJIC No. 2.23), the jury used the conviction to
prove identity under CALJIC No. 2.50. (People v. Farnam (2002) 28 Cal.4th 107,
18
173 [challenged “matters were properly admitted and involved little, if any,
potential for improper use by the jury”]; see People v. Catlin (2001) 26 Cal.4th 81,
147 [assuming Chapman standard applied, no “reasonable possibility” jury
considered prior forgery conviction admitted for impeachment purposes for
CALJIC No. 2.50].) There is also no reasonable likelihood that the jury
considered defendant’s marijuana use for an improper purpose. (People v.
Farnam, supra, 28 Cal.4th at p. 173.) Defendant’s two references to smoking a
joint with Wayne Anderson on the night of the murder were brief, and neither the
prosecution nor defense mentioned defendant’s marijuana use during closing
argument.
Based on the foregoing, we find no error based on CALJIC No. 2.50.5
2. CALJIC No. 2.06
Defendant argues that the trial court erred by instructing the jury with
CALJIC No. 2.06 regarding the suppression of evidence. The instruction provided
as follows: “If you find that a defendant attempted to suppress evidence against
him in any manner, such as by the intimidation of a witness or by destroying
evidence, such attempt may be considered by you as a circumstance tending to
show a consciousness of guilt. However, such conduct is not sufficient by itself to
prove guilt, and its weight and significance, if any, are matters for your
consideration.”
5
“With regard both to this claim and to every other claim raised in his brief,
defendant asserts that each alleged error violates not only state law but multiple
provisions of the federal and California Constitutions. In addressing each claim
discussed in this opinion, we have considered defendant’s contention that the
alleged error violates the federal and California Constitutions, and our rejection of
each claim of reversible error includes a determination that the alleged error does
not warrant reversal under the state or federal Constitution.” (People v. Slaughter
(2002) 27 Cal.4th 1187, 1199, fn. 2.)
19
Because the March 1, 1994 instructional conference is not part of the
record, defendant argues that “the intentions behind the court’s modifications to
and giving of CALJIC 2.06 are unknown.” Both defendant and the Attorney
General, however, agree the conduct CALJIC No. 2.06 referred to was defendant’s
solicitation of murder of prosecution witness Berrie, and of defendant’s throwing
away the gun used to shoot victim Swader.
Defendant maintains this instruction improperly lessened the prosecution’s
burden of proof and was unsupported by the evidence. Based on this alleged error,
he claims various constitutional violations. For reasons that follow, we find no
error.
We have consistently rejected the claim that CALJIC No. 2.06 lessens the
prosecution’s burden of proof. (People v. Coffman and Marlow (2004) 34 Cal.4th
1, 103; People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224.) We also find
sufficient evidence to support the instruction.
“ ‘[I]n order for a jury to be instructed that it can infer a consciousness of
guilt from suppression of adverse evidence by a defendant, there must be some
evidence in the record which, if believed by the jury, will sufficiently support the
suggested inference.’ [Citation.]” (People v. Hart (1999) 20 Cal.4th 546, 620.)
As discussed above, there was evidence from which the jury could infer that
defendant solicited Berrie’s murder. (See ante, at pp. 17-18.) This evidence
suffices for purposes of CALJIC No. 2.06. (People v. Williams (1997) 16 Cal.4th
153, 200-201 [evidence that defendant authorized a third party to suppress a
witness’s testimony is admissible pursuant to CALJIC No. 2.06].)
There was also evidence defendant attempted to destroy the murder
weapon. In his confession to the police, defendant stated that after he shot Swader
with his own gun, defendant threw the gun out the car window as he drove on the
freeway.
20
3. Failure to Instruct on the Defense of Duress
Defendant argues that the trial court erred by failing to instruct the jury sua
sponte on the defense of duress. (See § 26; CALJIC No. 4.40.) He contends there
was substantial evidence that he acted out of fear that Anderson, whom defendant
maintained committed the criminal acts, would kill him. Specifically, defendant
testified that he heard two gunshots, that he saw Anderson standing over Swader’s
body holding a gun, that Anderson pointed the gun at defendant and told him to
drive, and that defendant “figure[d] he was going to kill me, too.” Defendant
asserts that he simply interrupted, then aided, a robbery that was in progress.
The defense of duress is available to defendants who commit crimes, except
murder, “under threats or menaces sufficient to show that they had reasonable
cause to and did believe their lives would be endangered if they refused.” (§ 26;
see People v. Anderson (2002) 28 Cal.4th 767, 780.) Although “duress is not a
defense to any form of murder,” (People v. Anderson, supra, 28 Cal.4th at p. 780)
“duress can, in effect, provide a defense to murder on a felony-murder theory by
negating the underlying felony. [Citations.] If one is not guilty of the underlying
felony due to duress, one cannot be guilty of felony murder based on that felony.”
(Id. at p. 784.) A trial court is required to instruct sua sponte on a duress defense
if there is substantial evidence of the defense and if it is not inconsistent with the
defendant’s theory of the case. (See People v. Breverman (1998) 19 Cal.4th 142,
157.)
Defendant claims there was substantial evidence of duress as a defense to
the robbery charge (§ 211), the underlying offense of felony murder, and the
robbery-murder special-circumstance allegation (§ 190.2, subd. (a)(17)(A)). The
trial court here instructed the jury as to both deliberate and premeditated first
degree murder (CALJIC No. 8.20), and first degree felony murder (CALJIC No.
8.21). Because it is unclear whether the jury relied on the premeditation theory or
21
the felony-murder theory, defendant argues we must reverse the murder
conviction, in addition to the penalty judgment and the robbery conviction.
We conclude the trial court did not err in failing to give the duress
instruction because defendant failed to present substantial evidence of the defense.
“Substantial evidence is ‘evidence sufficient “to deserve consideration by the
jury,” not “whenever any evidence is presented, no matter how weak.” ’ ” (People
v. Lewis (2001) 26 Cal.4th 334, 369, quoting People v. Williams (1992) 4 Cal.4th
354, 361.) Although defendant testified Anderson pointed a gun at him and told
him to drive, defendant conceded that he did not actually see Anderson with a gun.
Moreover, in his pretrial statement, defendant admitted to detectives that he and
Anderson planned Swader’s robbery and murder, that he and Anderson shared the
idea to commit these crimes “50-50,” and that he had the motive to rob Swader in
order to pay off a $13,000 debt.
In any event, any error based on the failure to instruct on duress was
harmless. The jury clearly rejected defendant’s theory that he had no involvement
in the murder and that he aided the robbery only after Anderson had already shot
and killed Swader. As the trial court instructed the jury, the robbery-murder
special-circumstance allegation required the jury to find that “defendant acted with
specific intent to kill” and that the “murder was committed while [defendant] was
engaged in the commission of a robbery.” By finding this special circumstance
allegation to be true, the jury necessarily rejected any factual basis underlying
defendant’s duress defense. (See People v. Pulido (1997) 15 Cal.4th 713, 726-727
[true finding on robbery-murder special circumstance shows jury rejected the
defendant’s theory that he was involved in the robbery only after the killing].)
Moreover, the jury found that defendant personally used a handgun in the
commission of the murder and robbery. (§ 12022.5, subd. (a).) This finding also
22
shows the jury rejected defendant’s testimony that his involvement in the crimes
was minor and that Anderson was the armed robber and actual killer.
4. Alleged
Prosecutorial
Misconduct
Defendant
contends
the
prosecution committed multiple acts of misconduct
during the guilt phase. We discuss each claim in turn.
a. Discovery
violations
During her direct examination, defense witness Sonya Cravens testified that
Wayne Anderson told her that he, and not defendant, shot Swader. Cravens said
Anderson told her: “I hope they don’t get [defendant] too hard. He doesn’t
deserve it because I pulled the trigger.” The prosecution objected on hearsay
grounds and contended the statement did not fall within the hearsay exception of
declaration against interest (Evid. Code, § 1230). Noting it was a “close call,” the
trial court ruled that “subject to a showing of unavailability,” the statement “does
meet the criteria set forth in Evidence Code section 1230 and is admissible.”
The trial court held a hearing to determine the availability of Anderson.
Defendant called investigator Cynthia Castro who testified she traveled to Kansas
and Oklahoma to try to locate Anderson. Castro subsequently discovered that
Anderson used various aliases. Although Castro traveled to Oklahoma and spoke
with Cravens, Castro was unable to find Anderson. To show that defendant did
not use due diligence, the prosecution called Detective Collette to testify about his
own efforts to locate Anderson. Detective Collette testified that in December
1993, he searched for Anderson through a driver’s license check in Oklahoma.
Detective Collette stated that he located Anderson, who was living under the name
Richard Dume, in Grove, Oklahoma. Defense counsel responded he was “totally
shocked” that the prosecution did not give them any investigative reports on the
23
search in Oklahoma, despite previously representing that “everything the People
have had has long since been turned over.”
Defendant maintains that investigating officers had “an ongoing secretive
inquiry into the whereabouts” of Anderson. On appeal, defendant claims that the
prosecution’s failure to disclose information about Anderson violated sections
1054.1, 1054.7 and 190.3, along with constitutional provisions. For reasons that
follow, we disagree.
Significantly, defendant fails to show any conceivable prejudice based on
any alleged discovery violation. The trial court ultimately found that defendant
used due diligence to try to locate Anderson, and as such, determined Anderson
was “unavailable.” (Evid. Code, § 1230.) Accordingly, it permitted the defense to
call Cravens as a witness to testify about Anderson’s self-inculpatory statements
that he, and not defendant, shot Swader. Indeed, as the prosecution pointed out, it
was to defendant’s advantage that he not locate Anderson, because then
Anderson’s self-inculpatory statements would come in through Cravens’s
undisputed testimony.
Moreover, the prosecution did not commit misconduct. Defendant fails to
show how the prosecution violated section 1054.1’s discovery obligations by not
disclosing information on a witness the defense intended to present. Also, given
that Detective Collette used reports provided by the defense to direct his search to
Oklahoma, defendant’s claim that he could not find Anderson without information
from Detective Collette’s investigation is meritless. Finally, we agree with the
Attorney General that Detective Collette’s search efforts did not constitute
“evidence favorable to an accused” within the meaning of Brady v. Maryland
(1963) 373 U.S. 83, 87.
24
b. Inconsistent
theories
Defendant
claims
the
prosecution committed misconduct by arguing
inconsistent theories. At a hearing outside the presence of the jury to determine
the admissibility of Wayne Anderson’s self-inculpatory statements (Evid. Code §
402), Detective Collette testified to his attempt to find Anderson. The prosecution
stated that from “Detective Collette’s perspective, [Wayne Anderson] is, as is
Sonya Cravens from the evidence we have, a suspect in this case.” However, at
the conclusion of the guilt phase, the prosecution told the jury: “Let’s bear in
mind that Wayne and Sonya, when this case was initiated and, as far as I know, to
this point are not suspects in the murder.” Based on these statements, defendant
asserts that the prosecution “manipulat[ed]” the theory of its case. We disagree.
First, defendant failed to object on this ground at trial; therefore, he has
forfeited this claim on appeal. (People v. Farnam, supra, 28 Cal.4th at p. 167.)
Second, this claim lacks merit. The prosecution’s statement that Detective
Collette believed Anderson was a “suspect in the case” simply challenged why the
defense made no genuine attempt to locate this material witness. Even assuming
this statement, which was made outside the presence of the jury, contradicted the
prosecution’s closing argument that Anderson was not a suspect “in the murder,”
the prosecution did not pursue inconsistent theories of its case. (Cf. In re Sakarias
(2005) 35 Cal.4th 140, 171 [death judgment vacated where prosecution
inconsistently argued in two trials that two defendants inflicted the same fatal
blows].)
c. Cross-examination of Sonya Cravens
During its cross-examination of Sonya Cravens, the prosecution asked her,
“Did you not inquire of your attorney whether or not you had to speak to
[Detective Collette and his partner]?” Defense counsel objected that he was not
Cravens’s attorney: “I represent Mr. Wilson.” The prosecution apologized and
25
rephrased its question. On appeal, defendant claims that the prosecution’s
question “improperly hinted that Cravens was part and parcel of the defense
team.” We disagree. The prosecution’s brief misstatement, which was quickly
withdrawn, did not improperly suggest Cravens was part of the defense team,
much less constitute a deceptive or reprehensible method used to persuade the
jury. (See People v. Monterroso (2005) 34 Cal.4th 743, 785.)
Defendant also claims that the prosecution attempted to intimidate Cravens
by “affirmatively exploiting her fears of reprisal from Wayne” through personal
questions on her address and the cars she had, and by asking her “sharp,
argumentative, and even threatening” questions. We disagree.
First, defendant failed to object that the questions were argumentative;
therefore, he has forfeited this claim on appeal. (People v. Farnam, supra, 28
Cal.4th at p. 167.) Second, the prosecution’s cross-examination was proper.
Cravens testified that Anderson told her that defendant did not murder Swader, but
that he himself had “pulled the trigger.” However, she came forward with this
information almost 10 years later because she said the defense investigator
reassured her that Anderson “would not find out that I was the one who gave the
information, and I was tired of hiding it.” In light of her decade-long silence, the
prosecution was entitled to ask her pointed questions on her credibility and her
change of heart. The prosecution’s question whether she knew that this was a
public trial and that anybody could attend was not intended to frighten Cravens,
but sought to undermine her assertion that she only came forward now because she
would not have to worry about Anderson coming after her.
Also, the prosecution’s questions on her current home address and the year,
make, and license plate numbers of her cars were intended to contradict her
testimony that she did not know that Detective Collette had knocked on her door
in February 1994. The trial court overruled defendant’s relevance objection after
26
the prosecution explained it would tie the information to Detective Collette’s visit
to Cravens’s home.
d. Cross-examination of defendant
Defendant argues the prosecution committed misconduct by suggesting that
defendant’s exercise of the right of counsel was somehow improper and showed
his consciousness of guilt. For example, the prosecution pointed out that
defendant knew the police could not talk to him once he was represented by
counsel, that defendant has read all the reports in this case, and that defendant has
had a number of attorneys over the years. Because defendant did not object on
this ground at trial, he has forfeited the claim on appeal. (People v. Farnam,
supra, 28 Cal.4th at p. 167.)
Moreover, contrary to defendant’s assertion, this cross-examination was not
improper. “A prosecutor is permitted wide scope in the cross-examination of a
criminal defendant who elects to take the stand. [Citation.]” (People v. Gutierrez
(2002) 28 Cal.4th 1083, 1147.) The prosecution here did not suggest that
defendant’s discussions with counsel or his review of discovery material were
“nefarious.” Instead, the prosecution’s questions sought to undermine defendant’s
trial testimony denying liability for the murder, which differed from defendant’s
inculpatory statements to the police. The Attorney General argues the prosecution
properly wanted to show that defendant had an opportunity to conform and falsify
his trial testimony given his knowledge of the law. We agree with the Attorney
General that the prosecution’s questions were within the wide scope of permissible
cross-examination. (See ibid.)
Also, by asking defendant whether he “remembered anything else” after
speaking to his attorney, the prosecution did not commit misconduct. Given
defendant’s inconsistent testimony regarding whether he and Anderson had
27
discussions after fleeing the murder scene, the prosecution was entitled to question
his ability to recall the events.
Nor did the prosecution invade privileged attorney-client communications.
The prosecution pointed out that defendant told his prior attorneys at least four
different versions of what happened. In its questioning, the prosecution also noted
that defendant had “been advised by your attorneys of what was going to happen
when you came into court,” that he “had a chance over all these years, particularly
the last six, to prepare and anticipate that,” and that he “certainly talked to your
present attorneys about this case at length.”
Defendant failed to object based on attorney-client privilege, and as such,
he has forfeited this claim on appeal. (Evid. Code, § 912, subd. (a) [“Consent to
disclosure is manifested by . . . failure to claim the privilege in any proceeding in
which the holder has the legal standing and opportunity to claim the privilege”].)
Moreover, because defendant testified previously at the 1988 proceedings to these
communications with counsel, he has waived the privilege. The attorney-client
privilege “is waived with respect to a communication protected by the privilege if
any holder of the privilege, without coercion, has disclosed a significant part of the
communication . . . .” (Ibid.; see People v. Barnett (1998) 17 Cal.4th 1044, 1124.)
Contrary to defendant’s contention, People v. Flores (1977) 71 Cal.App.3d
559, does not help him. In People v. Flores, the Court of Appeal concluded the
trial court had a duty to inform the witness of his right to assert the attorney-client
privilege because, unlike the situation here, the witness was “without advice of
counsel and uninformed.” (Id. at p. 564.)
e. Guilt phase argument
Defendant claims that the prosecution made a number of improper
statements during closing argument at the guilt phase. The prosecution made an
28
oblique reference to the first trial: “We know there have been other court
proceedings. Obviously we’re not telling you about those for a reason. You’re
not going to know about those.” According to defendant, the prosecution also
improperly referred to other criminal trials, like the Menendez brothers’ trial, by
stating, “In terms of that suggested lesser offense of accessory, actually I would
find that humorous were it not for some of the things that we’ve all read about in
the paper lately about the things that other juries have done.”
Defendant also protests that the prosecution misleadingly told the jury that
they would have heard evidence that Wayne Anderson was a “dangerous person”
or threatened Sonya Cravens or defendant if there was any such evidence, because
defendant points out there was evidence—which the jury did not hear—that
Anderson shot his cousin in 1985. He also claims the prosecution attempted to
appeal to the jury’s sympathy by stating “what little we hear about the victim is
brushed under, swept under the rug.” Defendant complains the prosecution
questioned the integrity of defense counsel and witnesses by stating defendant was
“missing his lines there” during his testimony, and that the defense had a
“strategy” and used Cravens’s testimony as a “calculated” attempt to “serve the
interests of the defense as best as possible.” Finally, defendant asserts the
prosecution “sandbagg[ed]” the defense and engaged in “gamesmanship” by not
revealing its theory of its case until after defense closing argument, thus
precluding the defense from responding. Defendant failed to object to any of these
comments; as such, he has forfeited the claim on appeal.6 (People v. Farnam,
6
Defendant points out that the trial court made the following comment
before closing argument at both the guilt and penalty phases: “I’m going to ask
the lawyers to try and avoid interrupting one another during the argument, and if
either attorney should misstate the evidence or the law, and I know that neither
would do that intentionally, you are to rely on the evidence as it was presented in
(footnote continued on next page)
29
supra, 28 Cal.4th at p. 167.) Moreover, for reasons that follow, we conclude none
of the prosecution’s comments constituted misconduct.
“To prevail on a claim of prosecutorial misconduct based on remarks to the
jury, the defendant must show a reasonable likelihood the jury understood or
applied the complained-of comments in an improper or erroneous manner.”
(People v. Frye, supra, 18 Cal.4th at p. 970.) “Prosecutors have wide latitude to
discuss and draw inferences from the evidence at trial. [Citation.] Whether the
inferences the prosecutor draws are reasonable is for the jury to decide.
[Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 522.) In order to preserve
an appellate claim of prosecutorial misconduct, a defendant must make a timely
objection at trial and request an admonition; otherwise, a claim is reviewable only
if an admonition would not have cured the harm caused by the misconduct.
(People v. Farnam, supra, 28 Cal.4th at p. 167.)
We conclude the prosecution’s reference to the first trial was fair comment
on the evidence in that defendant himself testified he had prior attorneys.
Although defendant claims the prosecution invited jurors to speculate on the
(footnote continued from previous page)
the trial and the law as I will be giving it to you.” Defendant claims that given this
admonition, his counsel’s failure to object at all during closing argument at the
guilt and penalty phases was understandable and excusable. We disagree.
Contrary to defendant’s contention, the trial court did not prohibit counsel
from raising objections or asking for admonitions, but requested that they “try and
avoid” interruptions. The trial court mainly emphasized that the jury should
ultimately rely on the court’s instructions on the evidence and the law. We
conclude that because the atmosphere of the trial was “not poisonous” (People v.
Hillhouse (2002) 27 Cal.4th 469, 502), defendant failed to object at all (even after
the arguments), and the record fails to show that objections would have been
futile, the normal rule requiring an objection to preserve a claim on appeal applies.
(Ibid. [“extreme circumstances” may justify an “unusual” rule].)
30
reason why they were not told about the first trial, “we ‘do not lightly infer’ that
the jury drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements. [Citation.]” (People v. Frye, supra, 18 Cal.4th at p. 970.)
Also, not only does the record not disclose that the prosecution was referring to
the Menendez trial when it referred to “things other juries have done,” it is unclear
how this reference constituted misconduct. The prosecution made this brief
comment in the context of urging the jury not to find defendant guilty of the lesser
offense of being an accessory.
Contrary to defendant’s contention, we disagree that the prosecution
“improperly exploited” the “suppression” of evidence that Anderson shot
someone. Defense counsel himself told the trial court that he “did not intend for
that information to come before the jury, recognizing the hearsay nature of it.”
Moreover, the prosecution’s argument was fair comment on the evidence. Given
defendant’s argument he committed the crimes out of fear that Anderson would
kill him, it was reasonable for the prosecution to point out that defendant did not
present any evidence that Anderson threatened defendant or Cravens.
“[P]rosecutorial comment upon a defendant’s failure ‘to introduce material
evidence or to call logical witnesses’ is not improper. [Citations.]” (People v.
Wash (1993) 6 Cal.4th 215, 263.)
The prosecution’s statement that victim Swader was being “swept under the
rug” was also fair comment on the evidence. The jury heard that Swader had
given defendant a job and a place to stay, and that defendant had taken advantage
of Swader’s generosity and trust. “A prosecutor may properly identify the traits
that made the victim vulnerable to attack when such characteristics are relevant to
the charged crimes, and has no obligation ‘to shield the jury from all favorable
inferences about the victim’s life or to describe relevant events in artificially drab
or clinical terms.’ [Citation.]” (People v. Frye, supra, 18 Cal.4th at p. 975.)
31
Moreover, the prosecution’s assertion that defendant was lying and its
description of the defense strategy were not misconduct. The prosecution may
properly refer to a defendant as a “liar” if it is a “reasonable inference based on the
evidence. [Citation.]” (People v. Coddington (2000) 23 Cal.4th 529, 613.)
Defendant testified he gave numerous, different accounts of the events. Nor was
the prosecution’s description of Cravens’s “calculated” testimony improper. The
“prosecutor is entitled to comment on the credibility of witnesses based on the
evidence adduced at trial.” (People v. Thomas (1992) 2 Cal.4th 489, 529.) Also,
defendant’s claim that the prosecution maligned the integrity of defense counsel is
meritless. “ ‘To observe that an experienced defense counsel will attempt to
“twist” and “poke” at the prosecution’s case does not amount to a personal attack
on counsel's integrity.’ [Citation.] Here, each side was simply urging the jury to
draw different inferences from the evidence. As such, the prosecutor’s comments
were a fair response to defense counsel’s remarks.” (People v. Young, supra, 34
Cal.4th at p. 1191.) Finally, even assuming the prosecution is required to present
its theory of the case at the beginning of its opening argument, the prosecution
here did not fail to do so.
C. Penalty Phase Issues
1. Admission of the Prior Testimony of Donald Loar
In setting aside the first death judgment, we concluded defense counsel in
the first trial gave ineffective assistance for failing to object to, among other
things, certain testimony by informant Donald Loar, defendant’s cellmate in 1987.
(In re Wilson, supra, 3 Cal.4th at p. 955.) Loar’s testimony included statements
defendant made (and his descriptions of defendant’s demeanor) following tape-
recorded telephone conversations between defendant and Frank Kovacevich, a
government agent posing as a “hit man.” Loar arranged the telephone call
32
between defendant and Kovacevich after Loar contacted the district attorney’s
office. (People v. Wilson, supra, 3 Cal.4th at p. 933.) Because “both the
government and the informant took some action, beyond merely listening, that was
designed deliberately to elicit incriminating remarks” (In re Wilson, supra, 3
Cal.4th at p. 950), this part of Loar’s testimony was inadmissible under Massiah v.
United States, supra, 377 U.S. 201. (In re Wilson, supra, 3 Cal.4th at p. 950.)
However, we also concluded that Loar’s jailhouse conversations with
defendant before Loar contacted the district attorney’s office did not violate
defendant’s federal or state constitutional right to counsel. (In re Wilson, supra, 3
Cal.4th at p. 952.) “Accordingly, petitioner’s statements to Loar, concerning
petitioner’s desire to find a ‘hit man’ to eliminate a possibly troublesome witness
in his murder case, were not elicited improperly from him by a government agent.
[Citation.]” (Ibid.)
At the penalty phase of the retrial, the prosecution requested to read into the
record as section 190.3 evidence a portion of Loar’s prior testimony we concluded
was admissible.7 (See In re Wilson, supra, 3 Cal.4th at p. 952.) The prosecution
7
At the pretrial proceedings, the prosecution first indicated that it intended to
introduce Loar’s prior testimony. Objecting on “Sixth Amendment grounds of no
confrontation,” defendant claimed that he was unable to cross-examine Loar on
recently disclosed information regarding benefits purportedly given to Loar in
exchange for his testimony. The trial court concluded, assuming the prosecution
could establish due diligence in trying to locate Loar, that “absent any evidence of
a promise from the district attorney, testimony of Mr. Loar in the first Wilson trial
may be read to the jury without reference to any subsequent reduction in Mr.
Loar’s sentence.” The trial court determined that there was “no evidence that Mr.
Loar was offered a promise of leniency if he testified in the Wilson trial.” It
implicitly rejected defendant’s related claim that the prosecution was required to
file a written statement regarding in-custody informant testimony (§ 1127a, subd.
(c)), and his claim that he had a Sixth Amendment right to cross-examine Loar on
this purported promise. The prosecution, “for strategic reasons,” did not present
Loar’s prior testimony during the guilt phase.
33
said it could not locate Loar, and argued that he should be deemed “unavailable.”
(Evid. Code, §§ 1291, 240.) Defendant objected that the prosecution’s notice did
not comply with section 190.3 because it was not given in writing within a
reasonable time before trial. Defense counsel requested a continuance in the
alternative. Overruling the notice objection, the trial court held a due diligence
hearing to determine whether Loar was unavailable. It concluded that the
prosecution established due diligence. A portion of Loar’s testimony on direct
examination was read into evidence before the jury. This testimony included
statements that defendant told him “to get somebody from back east or a hit man,
so to speak, to get rid of the witness so [defendant] wouldn’t have to worry about
– about that guy in court. He would beat his murder case.”
On appeal, defendant contends admitting Loar’s prior testimony violated
his state and federal constitutional right of confrontation, Evidence Code section
1291, his Sixth Amendment right to counsel under Massiah v. United States,
supra, 377 U.S. 201, and Maine v. Moulton (1985) 474 U.S. 159, his right to
proper notice (§ 190.3), and other various constitutional rights.
a. Right of confrontation
A criminal defendant has the right under both the federal and state
Constitutions to confront the witnesses against him. (U.S. Const., 6th Amend.;
Cal. Const., art. I, § 15.) This right, however, is not absolute. The high court
recently reaffirmed the long-standing exception that “[t]estimonial statements of
witnesses absent from trial have been admitted only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to cross-
examine.” (Crawford v. Washington (2004) 541 U.S. 36, 59; see People v.
Cromer (2001) 24 Cal.4th 889, 892.) Evidence Code section 1291 codifies this
traditional exception. (People v. Alcala (1992) 4 Cal.4th 742, 784-785.) When
34
the requirements of Evidence Code section 1291 are met, “admitting former
testimony in evidence does not violate a defendant’s right of confrontation under
the federal Constitution. [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668,
742.)
Evidence Code section 1291, subdivision (a)(2), provides that former
testimony is not rendered inadmissible as hearsay if the declarant is “unavailable
as a witness,” and “[t]he party against whom the former testimony is offered was a
party to the action or proceeding in which the testimony was given and had the
right and opportunity to cross-examine the declarant with an interest and motive
similar to that which he has at the hearing.” In turn, Evidence Code section 240,
subdivision (a)(5), states a declarant is “unavailable as a witness” if the declarant
is “[a]bsent from the hearing and the proponent of his or her statement has
exercised reasonable diligence but has been unable to procure his or her
attendance by the court’s process.”
Loar’s former testimony was offered against defendant, who was a party in
the first trial, and defendant’s “interest and motive” in examining Loar in the first
trial was identical to that in this retrial. (Evid. Code, § 1291, subd. (a)(2).)
Defendant does not contend otherwise. However, defendant claims that the
prosecution failed to show it used reasonable diligence trying to locate Loar; thus,
the trial court erroneously deemed Loar “unavailable as a witness.” (Evid. Code,
§§ 240, subd. (a)(5), 1291, subd. (a)(2).) For reasons that follow, we disagree.
(1) “Unavailable as a witness”
The term “reasonable diligence” or “due diligence” under Evidence Code
section 240, subdivision (a)(5) “connotes persevering application, untiring efforts
in good earnest, efforts of a substantial character. [Citations.]” (People v.
Cromer, supra, 24 Cal.4th at p. 904; id. at p. 898 [reasonable diligence same as
35
due diligence].) Considerations relevant to this inquiry include the timeliness of
the search, the importance of the proffered testimony, and whether leads of the
witness’s possible location were competently explored. (Id. at p. 904.) We
independently review a trial court’s due diligence determination. (Id. at p. 901.)
At a March 11, 1994, due diligence hearing, Detective William Collette
testified that in November 1993, he made efforts over two days to locate Loar,
including visiting his last known address, attempting to locate his known
associates, and checking police, county, and state records with the 15 different
names Loar had used. However, Detective Collette was unsuccessful in finding
him.
Defendant argues that once this court reversed the judgment in 1992, the
prosecution should have contacted and monitored Loar, who was still in prison or
recently released at that time. He reiterates his claim at trial that Detective
Collette should have attempted to locate Loar’s family, checked with the post
office for Loar’s forwarding address, followed up with his visitors in prison, and
determined whether he was a party in any civil actions. As a result, defendant
argues, the prosecution did not use reasonable diligence to locate Loar. Under our
independent review, we conclude that the prosecution exercised due diligence.
The prosecution is not required “to keep ‘periodic tabs’ on every material
witness in a criminal case . . . .” (People v. Hovey (1988) 44 Cal.3d 543, 564.)
Also, the prosecution is not required, absent knowledge of a “substantial risk that
this important witness would flee,” to “take adequate preventative measures” to
stop the witness from disappearing. (Ibid., citing People v. Louis (1986) 42 Cal.3d
969.) Except for describing Loar as “unreliable and of suspect credibility,”
defendant does not point to any evidence that the prosecution knew of a
substantial risk that Loar would disappear. Moreover, Detective Collette checked
police, county, and state records using Loar’s 15 aliases. He checked the records
36
again on the day before the due diligence hearing. He also visited Loar’s last
known address and one of his known associates. Based on the foregoing, we
conclude the prosecution used reasonable diligence in trying to locate Loar.
Although defendant criticizes the prosecution for starting the search a year
after we reversed the judgment in November 1992, such delay was not
unreasonable. Both defense counsel and the prosecution believed the retrial could
not realistically begin any earlier than September 1993, and after several
continuances, the first witness testified on February 22, 1994. “[I]t is unclear what
effective and reasonable controls the People could impose upon a witness who
plans to leave the state, or simply ‘disappear,’ long before a trial date is set.”
(People v. Hovey, supra, 44 Cal.3d at p. 564 [due diligence found where
investigators began search for witness one month before trial testimony was
needed].)
Defendant’s claim that Detective Collette should have made additional
efforts to find Loar, e.g., checking the post office, locating Loar’s family,
contacting Loar’s prison visitors, does not change our conclusion that the
prosecution exercised reasonable diligence. “That additional efforts might have
been made or other lines of inquiry pursued does not affect this conclusion.
[Citation.] It is enough that the People used reasonable efforts to locate the
witness.” (People v. Cummings (1993) 4 Cal.4th 1233, 1298.) Thus, the trial
court did not err in determining that Loar was “unavailable as a witness.” (Evid.
Code, § 240.)
(2) “Opportunity to cross-examine”
Both the United States Supreme Court and this court have concluded that
“when a defendant has had an opportunity to cross-examine a witness at the time
of his or her prior testimony, that testimony is deemed sufficiently reliable to
37
satisfy the confrontation requirement [citation], regardless whether subsequent
circumstances bring into question the accuracy or the completeness of the earlier
testimony. [Citation.]” (People v. Samayoa, supra, 15 Cal.4th at pp. 851-852,
citing California v. Green (1970) 399 U.S. 149.) In Crawford v. Washington, the
high court stated that a prior opportunity to cross-examine a witness was
“dispositive” of the admissibility of his testimonial statements, “and not merely
one of several ways to establish reliability.” (Crawford v. Washington, supra, 541
U.S. at pp. 55-56.) Because defendant had an opportunity to cross-examine Loar
at the first trial, this satisfied the confrontation clause.
However, relying mainly on Ohio v. Roberts (1980) 448 U.S. 56, defendant
contends that Loar’s prior testimony should have been excluded under the
confrontation clause because his testimony was unreliable. Specifically, he claims
Loar’s prior testimony was unreliable because (1) at the time he cross-examined
Loar in the first trial, defense counsel did not have information that Loar met with
detectives in May 1987 before Loar had the jailhouse conversation with defendant;
(2) the jury did not hear about Loar’s reduced sentence purportedly given in
exchange for his testimony; (3) defense counsel ineffectively cross-examined Loar
at the first trial; and (4) Loar was an informant in, what defendant contends is, “the
now-notorious Los Angeles informant ring, a fact that renders the credibility of his
testimony non-existent.” We note that the high court has since overruled Ohio v.
Roberts. (Crawford v. Washington, supra, 541 U.S. at p. 68.)
Crawford v. Washington made clear that reliability is not part of the inquiry
under the confrontation clause: “To be sure, the Clause’s ultimate goal is to
ensure reliability of evidence, but it is a procedural rather than a substantive
guarantee. It commands, not that evidence be reliable, but that reliability be
assessed in a particular manner: by testing in the crucible of cross-examination.
38
The Clause thus reflects a judgment, not only about the desirability of reliable
evidence (a point on which there could be little dissent), but about how reliability
can best be determined.” (Crawford v. Washington, supra, 541 U.S. at p. 61.) In
other words, “[w]here testimonial statements are at issue, the only indicium of
reliability sufficient to satisfy constitutional demands is the one the Constitution
actually prescribes: confrontation.” (Id. at pp. 68-69.)
In any event, for reasons stated below, we reject defendant’s claim that
Loar’s testimony was unreliable.
(a) New information about May 6, 1987 meeting
Asserting that Loar was “more of a police agent than was suspected,”
defendant emphasizes that his original trial counsel did not know that Loar met
with Detectives Collette and Miller8 on May 6, 1987. Defendant points to a
declaration by Forest Elliott, Jr., an attorney who represented both defendant and
Loar at some point. The parties discussed the contents of this declaration in the
retrial.
In his declaration, Elliott claimed that on May 6, 1987 he was representing
Loar in a matter at a Long Beach courthouse. Detectives Collette and Miller were
at the courthouse on that date, waiting for Loar. Loar voluntarily spoke to the
detectives alone. Elliott’s declaration did not assert he heard what Loar and the
detectives talked about, or that Loar or anyone else told him what was discussed in
that conversation. However, Elliott stated he “now understands why” Loar wanted
8
Defendant points out that Detectives Collette and Miller were implicated in
another capital appeal for offering assistance to a key prosecution witness.
(People v. Morris (1988) 46 Cal.3d 1, 24-34 [on witness’s behalf, Detective
Collette wrote letters outlining witness’s cooperation in murder investigation].)
However, “we cannot consider on appeal evidence that is not in the record.
[Citation.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1249.)
39
to talk to the detectives; Elliott posited that Loar testified against defendant and
“collud[ed]” with Prosecutor Hodgman and Judge Sheldon to obtain “an illegal
reduction in sentence to ‘time served’ (none of which was served in a state
prison).”
Defendant argues it is significant that Loar met with these detectives at this
time because Loar had testified he had the jailhouse conversation with defendant
in the late summer to early fall of 1987. He asserts that Loar should have been
questioned about this earlier meeting with detectives because “an inquiry into this
area was crucial to assessing credibility, for it brings up the question of whether
Mr. Loar was attempting to elicit information as a police agent.” Even if the
prosecution or detectives did not promise Loar anything in exchange for his
testimony, defendant claims the issue is Loar’s expectation of what benefits he
would receive. We disagree.
Contrary to defendant’s contention, this information of a May 6, 1987
meeting between Loar and detectives, which was not disclosed at the first trial,
does not undermine the reliability of Loar’s testimony. As the Attorney General
points out, Elliott’s declaration only shows that Loar may have met with
Detectives Collette and Miller on May 6, 1987. Nothing suggests that this
conversation between Loar and the detectives was about defendant, as opposed to
any other matter. Moreover, Loar’s testimony revealed that he previously
cooperated as an informant with at least two district attorney’s offices over the
years. Finally, Loar’s prior testimony revealed that he was—at the time he
testified—in the custody of the Los Angeles County Sheriff for violating probation
arising from a fraud conviction, and that he had previously been convicted of
burglary and possession of heroin with the intent to sell. The evidence of Loar’s
prior convictions would have already exposed his credibility to impeachment.
40
(People v. Morris, supra, 46 Cal.3d at p. 34; see Evid. Code, § 788; CALJIC No.
2.20.)
Given the evidence of Loar’s prior cooperation with law enforcement, the
evidence of Loar’s prior convictions, and the lack of any evidence that the May 6,
1987 meeting was about defendant, we conclude that had the first jury known
about the meeting, this would not have significantly altered the jury’s view of
Loar’s credibility.
(b) Subsequent reduction in Loar’s sentence
Next, defendant claims that the trial court “exacerbated the unfair
prejudice” by ordering that Loar’s prior testimony be read without reference to any
subsequent reduction in Loar’s sentence. Defendant asserts that after Loar
testified in the 1988 trial, the original prosecutor, Mr. Hodgman, asked a superior
court “in secret” to modify Loar’s previously imposed sentence in another case
based on his assistance in the Wilson case.
In the retrial, the prosecution conceded Loar received a reduced sentence,
but maintained there was no prior deal made in exchange for Loar’s testimony.
The prosecution explained that Hodgman assisted Loar in reducing his sentence
because Loar spent time in jail awaiting his trial testimony and lost credits he
would have otherwise earned in state prison. The trial court here concluded that
from its “reading of all the documents, it may be that Mr. Loar hoped for a
reduction in his sentence, but there is no evidence that there was any agreement or
promise from the district attorney.” However, the court suggested that defendant
could subpoena Hodgman to question him about any prior deal Loar had in
exchange for his testimony. There is no evidence in the record that defendant did
so.
41
As noted above, the prosecution explained the reason why Hodgman
subsequently requested leniency for Loar. Because substantial evidence supports
the trial court’s finding that there was no agreement, we must defer to it. (See
People v. Fairbank, supra, 16 Cal.4th at p. 1249.) Indeed, on appeal, defendant
mainly asserts that Loar was “hoping to gain” special treatment in exchange for
his testimony; he does not argue that there was a “ ‘preexisting arrangement,’ ”
either explicit or implicit, between Loar and the prosecution.9 (Id. at p. 1247.)
Thus, defendant’s claim that the trial court improperly failed tell the jury about
Loar’s subsequent sentence reduction is without merit.
(c)
Ineffective
cross-examination
Defendant also contends that defense counsel’s allegedly ineffective cross-
examination of Loar rendered this testimony unreliable. He complains that prior
defense counsel never asked Loar, among other things, how many times he
testified in other cases, whether he expected any leniency or benefit for his
testimony, about his ability to remember, and about his meetings with detectives
or prosecutors. Defendant argues “the cross-examination of Mr. Loar in the first
trial failed to adequately and zealously confront his testimony, and failed to test
Mr. Loar’s credibility in any meaningful way.” For reasons that follow, we
disagree.
Contrary to defendant’s contention, defense counsel’s failure to explore
certain areas on cross-examination does not render Loar’s testimony inadmissible
under Evidence Code section 1291. “As long as defendant was given the
9
To the extent defendant claims there was a preexisting agreement between
Loar and Detectives Collette and Miller, he does not present any evidence of such
agreement. Loar’s contact with the detectives “did not by itself make him a police
agent. [Citation.]” (People v. Fairbank, supra, 16 Cal.4th at p. 1248.)
42
opportunity for effective cross-examination, the statutory requirements were
satisfied; the admissibility of this evidence did not depend on whether defendant
availed himself fully of that opportunity. [Citations.]” (People v. Zapien (1993) 4
Cal.4th 929, 975, italics added; People v. Smith (2003) 30 Cal.4th 581, 611 [“it is
the opportunity and motive to cross-examine that matters, not the actual cross-
examination”].) Moreover, “the admission of . . . testimony under Evidence Code
section 1291 does not offend the confrontation clause of the federal Constitution
simply because the defendant did not conduct a particular form of cross-
examination that in hindsight might have been more effective.” (People v.
Samayoa, supra, 15 Cal.4th at p. 851, citing People v. Zapien, supra, 4 Cal.4th at
p. 975.)
We reject defendant’s claim that we must nonetheless examine the
effectiveness of the cross-examination under Ohio v. Roberts, supra, 448 U.S. 56,
and Mancusi v. Stubbs (1972) 408 U.S. 204. In Ohio v. Roberts, the high court
explained that in an “extraordinary” case, for example, where a court had already
determined that a defendant received ineffective representation from counsel
appointed only four days before trial (see Mancusi v. Stubbs, supra, 408 U.S. at p.
209), “it was necessary to explore the character of the actual cross-examination to
ensure that an adequate opportunity for full cross-examination had been afforded
to the defendant. [Citation.]” (Ohio v. Roberts, supra, 448 U.S. at p. 73, fn. 12.)
Absent such “unusual circumstances,” no inquiry into effectiveness is required.
(Ibid.) We conclude that no such unusual circumstances are present here.
For instance, unlike in Mancusi v. Stubbs, the record does not indicate, and
defendant does not suggest, that his prior defense counsel had minimal time for
trial preparation and therefore could not effectively cross-examine Loar.
Moreover, as the Attorney General contends, defense counsel’s ineffective
assistance in the first trial, which was based on his failure to object to certain
43
testimony under Massiah v. United States, supra, 377 U.S. 201, did not bear
directly on his actual questioning of Loar. Defense counsel’s failure to identify a
meritorious Massiah claim does not necessarily indicate an inability to effectively
cross-examine a witness.
(d) Nature of informant testimony
We also reject defendant’s unsubstantiated assertion that Loar was an
informant in, what defendant describes as, “the now-notorious Los Angeles
informant ring.” We have consistently rejected claims that informant testimony
must be excluded because it is “inherently unreliable.” (People v. Ramos (1997)
15 Cal.4th 1133, 1165.)
In sum, because we conclude defendant was given an opportunity to cross-
examine Loar in the first trial, and Loar was “unavailable” under Evidence Code
section 240, Loar’s former testimony was admissible pursuant to Evidence Code
section 1291. As such, admitting this testimony did not violate defendant’s right
of confrontation under the federal Constitution. (Crawford v. Washington, supra,
541 U.S. at p. 59; People v. Mayfield, supra, 14 Cal.4th at p. 742.) Moreover,
even assuming that the reliability of Loar’s testimony is pertinent to the issue of
confrontation, defendant fails to show that Loar’s former testimony was unreliable
to justify its exclusion at the retrial. Significantly, defendant himself testified that
he and Loar discussed eliminating a witness, i.e., Robert Berrie, who could tie
defendant and the victim together before the murder. Although in contrast to
Loar’s prior testimony defendant denied actually wanting to eliminate Berrie, it
was up to the jury as trier of fact to determine what weight to assign each person’s
testimony and to resolve any conflicts in testimony. (See People v. Ramos, supra,
15 Cal.4th at pp. 1164-1165.)
44
b.
Massiah error
In reversing the original judgment, we concluded that Loar’s initial
jailhouse conversation with defendant, before Loar contacted the district attorney’s
office, did not violate defendant’s Sixth Amendment’s right to counsel under
Massiah v. United States, supra, 377 U.S. 201. (In re Wilson, supra, 3 Cal.4th at
pp. 952-953.) However, defendant maintains that new information of the May 6,
1987 meeting Loar had with detectives, along with Loar’s reduced sentence,
undermine the “assumption” that the jailhouse conversation occurred before Loar
had contact with the district attorney’s office. As such, he asserts that the use of
Loar’s prior testimony constituted Massiah error. (See People v. Frye, supra, 18
Cal.4th at pp. 991-992.) Defendant forfeited this Massiah claim because he failed
to object on this ground at the retrial. Moreover, the claim lacks evidentiary
support on this record.
“To prove a violation of the Sixth Amendment, a defendant ‘must establish
that the informant . . . was acting as a government agent, i.e., under the direction
of the government pursuant to a preexisting arrangement, with the expectation of
some resulting benefit or advantage.’ [Citation.]” (People v. Fairbank, supra, 16
Cal.4th at p. 1247.) A witness’s reduced sentence, without “more specific proof of
a deal,” has little probative value of the witness’s state of mind or improper
motive. (People v. Ramos, supra, 15 Cal.4th at p. 1165; People v. Williams,
supra, 16 Cal.4th at p. 204 [subsequent, favorable treatment of informant’s
sentence insufficient to show “informant was motivated to inform by prosecutorial
promises of leniency”].)
The trial court here found there was no evidence that Loar had a prior deal
with the prosecution to give his testimony in exchange for leniency. (See ante, at
p. 33, fn. 7.) Elliott’s declaration did not establish that the May 6, 1987
conversation Loar had with detectives was about defendant. The fact that Loar
45
met with detectives did not “by itself make him a police agent.” (People v.
Fairbank, supra, 16 Cal.4th at p. 1248.) Nor was Loar’s subsequent sentence
reduction evidence that Loar had a prior deal with the prosecution. (See ante, at
pp. 41-42; People v. Williams, supra, 16 Cal.4th at p. 204; People v. Ramos,
supra, 15 Cal.4th at p. 1165.) Based on the foregoing, we conclude there was no
Massiah violation.
c. Section
190.3
As relevant here, section 190.3 provides that “no evidence may be
presented by the prosecution in aggravation unless notice of the evidence to be
introduced has been given to the defendant within a reasonable period of time as
determined by the court, prior to trial.” (§ 190.3, 4th par.) During voir dire at the
beginning of the guilt phase, the prosecution listed Loar as a possible witness.
During the guilt phase, it again verbally informed the court and defense counsel
that it anticipated introducing the prior testimony of Loar.
Contrary to defendant’s suggestion, this notice was sufficient pursuant to
section 190.3. (See People v. Cunningham (2001) 25 Cal.4th 926, 1015-1016.)
2. Admission of the Testimony of Farrell Lee Torregano
In the first trial, Farrell Lee Torregano, an inmate in the Los Angeles
County jail at the same time defendant was there, testified that defendant admitted
to him that he shot Swader twice in the head. (People v. Wilson, supra, 3 Cal.4th
at p. 933.) At the start of the penalty phase in the retrial, the prosecution informed
the trial court it intended to call Torregano as a witness pursuant to section 190.3.
Over defendant’s objection that there was insufficient notice, the trial court
admitted Torregano’s testimony, concluding that “sufficient notice has been given
pursuant to Penal Code section 190.3.” On appeal, defendant again claims that the
prosecution did not give proper notice of Torregano’s testimony because it was not
46
in writing (§ 190.3), and that the prosecution did not satisfy the requirements for
the admission of informant testimony. (§ 1127a, subd. (c).) He also argues that
Torregano’s testimony was “troublingly unreliable” in violation of various
constitutional rights. For reasons that follow, we deny defendant’s claims, which
we discuss in turn.
a. Section
190.3
As discussed above, section 190.3 provides that “no evidence may be
presented by the prosecution in aggravation unless notice of the evidence to be
introduced has been given to the defendant within a reasonable period of time as
determined by the court, prior to trial.” (§ 190.3, 4th par.) Contrary to
defendant’s contention, “section 190.3 requires notice, not written notice.”
(People v. Smith, supra, 30 Cal.4th at p. 620.) During voir dire at the beginning of
the guilt phase, the prosecution listed Torregano as a possible witness. During the
guilt phase, it again verbally informed the court and defense counsel that it
anticipated calling Torregano. Although the prosecution did not call Torregano in
its case-in-chief, it reserved calling him as a rebuttal witness if necessary.
Ultimately, Torregano testified during the penalty phase only.
The purpose of section 190.3’s notice requirement “is to advise the accused
of the evidence against him so that he may have a reasonable opportunity to
prepare a defense at the penalty phase. [Citation.]” (People v. Hart, supra, 20
Cal.4th at p. 639.) Notwithstanding the verbal notice discussed above, defendant
claims that he “detrimentally relied” on the fact that the prosecution did not call
Torregano in the guilt phase; as such, he did not anticipate that Torregano would
be a witness in the penalty phase. Contrary to defendant’s contention, his reliance
on this fact does not help him.
47
Section 190.3 requires that a defendant be given a reasonable opportunity to
defend against the prosecution’s aggravating evidence. (People v. Hart, supra, 20
Cal.4th at p. 639.) Defendant here was given that opportunity after the
prosecution informed him, as early as voir dire, that it intended to call Torregano
as a witness. The prosecution was not required to provide separate pretrial notice
that it intended to call Torregano at the penalty phase. (See People v. Champion
(1995) 9 Cal.4th 879, 942 [notice of evidence used at guilt phase not required at
penalty phase]; see also People v. Superior Court (Mitchell) (1993) 5 Cal.4th
1229, 1233 [“penalty phase of a capital trial is merely a part of a single, unitary
criminal proceeding”].) Thus, we deny defendant’s claim based on section 190.3.
b. Section 1127a, subdivision (c)
Defendant
claims
that
the prosecution failed to comply with section 1127a,
subdivision (c). This subsection provides that “[w]hen the prosecution calls an in-
custody informant as a witness in any criminal trial, contemporaneous with the
calling of that witness, the prosecution shall file with the court a written statement
setting out any and all consideration promised to, or received by, the in-custody
informant.” (§ 1127a, subd. (c).) At trial, the prosecution denied giving
Torregano any consideration for his testimony: “I’m representing to the court that
I’ve spoken to Mr. Torregano, asked for his testimony, that he has asked for
nothing, and that I’ve promised him nothing. So to that extent, I have complied
with [section] 1127a. There is no deal here, nor, to the best of my knowledge, was
there ever any deal in terms of Mr. Torregano’s testimony in 1988 or Mr. Loar’s
testimony then.” The prosecution suggested defendant could impeach Torregano’s
testimony if he believed Torregano received any benefit.
Regarding defendant’s evidence of a possible benefit, the prosecution
explained that defense counsel “has pointed to two cases arising in 1987 and 1988,
48
prior to Mr. Torregano’s testimony in this trial – this Wilson trial in June of ’88, in
which [defense counsel] feels there was an inappropriate sentence and one that
suggests that there was a deal made.” Apart from this oblique reference to “an
inappropriate sentence,” defendant does not identify any credible evidence that
Torregano expected or received any consideration for his testimony. (People v.
Ramos, supra, 15 Cal.4th at p. 1165.) Furthermore, a witness’s reduced sentence,
without “more specific proof of a deal,” has little probative value of the witness’s
state of mind or improper motive. (Ibid.)
Assuming the prosecution was required to provide written notice under
section 1127a, subdivision (c), that there was no consideration, we conclude
defendant suffered no prejudice from the prosecution’s failure to do so. As the
Attorney General points out, the prosecution verbally notified the trial court and
defendant by providing information that would have been in any written statement,
i.e., that Torregano neither received, nor was promised, any consideration for his
testimony.
c. Reliability
Defendant argues that the admission of Torregano’s allegedly unreliable
testimony gave rise to constitutional violations. However, because defendant
objected at trial based only on statutory violations (§§ 190.3, 1127a), he has
forfeited his state and federal constitutional challenges by failing to object on these
grounds. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1155.)
Moreover, the claims lack merit. Without pointing to any specific evidence
in his case, defendant generally states that informant testimony is “evidence of the
most questionable reliability,” and that “Los Angeles County prosecutions in the
1980s were notorious for the misuse of this type of evidence.” We have
consistently rejected claims that informant testimony is “inherently unreliable.”
49
(People v. Ramos, supra, 15 Cal.4th at p. 1165.) Defendant was entitled to
challenge Torregano’s testimony in front of the jury, but he presents no reason for
its exclusion.
3. Denial of Motion for Continuance
During the penalty phase, the prosecution gave notice that it intended to
present witness Farrell Lee Torregano and witness Rose Wigley (the younger
sister of victim Swader), as well as evidence of Donald Loar’s prior testimony.
Claiming surprise, defense counsel objected to the proffered testimony and said he
was at a “severe handicap” and “disadvantage” because he did not have time to
subpoena unidentified witnesses to impeach the testimony of Loar and
Torregano.10 In the alternative, he asked for a continuance to subpoena the
witnesses. The trial court overruled defendant’s objection, and implicitly denied
his continuance motion.
On appeal, defendant claims the trial court abused its discretion in denying
a continuance. For reasons that follow, we disagree.
“A motion for continuance should be granted only on a showing of good
cause. (§ 1050, subd. (e).)” (People v. Seaton (2001) 26 Cal.4th 598, 660.) To
support a continuance motion to secure a witness’s attendance at trial, a showing
of good cause requires a demonstration, among other things, that the defendant
exercised due diligence to secure the witness’s attendance. (People v. Jenkins
(2000) 22 Cal.4th 900, 1037.) The standard of review for a trial court’s denial of a
continuance motion is abuse of discretion. (Ibid.) We conclude that defendant
10
Defendant did not indicate he intended to impeach the testimony of Rose
Wigley, who would later testify as to victim impact. (See post, at p. 55)
50
failed to show he exercised due diligence in securing the impeaching witnesses’
attendance. Thus, the trial court did not abuse its discretion.
As discussed above, defendant was aware—as early as jury selection—that
the prosecution intended to introduce the testimony of Torregano and the prior
testimony of Loar possibly during the guilt phase. Despite being informed of this
testimony long before the penalty phase, defense counsel admitted he “did not
subpoena or prepare to have those witnesses available to rebut the testimony.”
We conclude defendant failed to show he exercised any diligence in attempting to
obtain the impeaching witnesses. His constitutional challenges based on this claim
necessarily fail. As we have observed, “The trial court has substantial discretion
in ruling on midtrial motions to continue the case, and appellate challenges to a
trial court’s denial of such a motion are rarely successful. [Citations.]” (People v.
Seaton, supra, 26 Cal.4th at p. 660.)
4. Failure to Instruct on the Meaning of “Life Without the Possibility
of Parole”
On appeal, defendant contends the trial court had a sua sponte duty to
instruct on the meaning of the penalty “life without possibility of parole.” He
states that certain jurors’ responses indicated “there were serious doubts among
many of the potential jurors that a life without parole sentence meant parole
ineligibility.” Relying on Simmons v. South Carolina (1994) 512 U.S. 154, and its
progeny, defendant also asserts that because his future dangerousness was at issue,
the trial court was constitutionally required to inform the jury that such a sentence
meant defendant was statutorily ineligible for parole. We disagree.
Absent a request, a trial court is not required to instruct on the meaning of
“life imprisonment without possibility of parole.” (People v. Holt (1997) 15
Cal.4th 619, 688; People v. Sanders (1995) 11 Cal.4th 475, 561-562; People v.
Bonin (1988) 46 Cal.3d 659, 698.) This term does not have “a technical meaning
51
which requires a sua sponte definitional instruction.” (People v. Holt, supra, 15
Cal.4th at p. 688, citing People v. Bonin, supra, 46 Cal.3d at p. 698.) Contrary to
defendant’s contention, the record does not show that the jurors “share[d] a
‘common and widespread misconception’ ” that a sentence of life imprisonment
without possibility of parole does not mean what it says. (People v. Bonin, supra,
46 Cal.3d at p. 698.)
During voir dire, defense counsel questioned five prospective jurors, two of
whom eventually sat on the jury, about their responses to the following question
on the juror questionnaire: “When a jury votes that a person be sentenced to life in
prison without the possibility of parole, what does that mean to you?” Zara C.,
who sat on the jury, had written, “I wonder if that will happen.” After defense
counsel told her the judge will explain this type of sentence and said “we have to
assume” the sentence will be carried out, she replied: “As I’ve sat in this, I realize
that. I didn’t know that that was – let’s put it this way. If the judge says he’s
sentenced to life imprisonment without possibility of parole, I would believe that.”
Another sitting juror, Glenda L., said although she had “some reservations”
accepting as “fact” that a sentence of life imprisonment without the possibility of
parole is just that, she “would have to” accept it.
Prospective Juror Wilhelmina R. had written on her juror questionnaire she
thought this sentence meant that a defendant “may be out some day.” When
defense counsel asked Wilhelmina R., “If the judge told you that [life in prison
without possibility of parole is just that], would you accept it as a fact,” she
replied, “Yeah, of course.” She earlier stated that she would “have to hear” the
judge tell her that. Prospective Alternate Juror David G. wrote the following
answer regarding what his opinion was on life in prison without the possibility of
parole: “If found guilty – then the possibility of parole [sic].” During voir dire, he
explained that “there’s always some – somewhat changes along the line after the
52
fact. That can be possible, yes.” However, after defense counsel stated that “there
is no possibility of parole when that sentence is imposed,” David G. said he
understood. Moreover, on his juror questionnaire he wrote that he thought a
sentence of life in prison without possibility of parole was worse than death for a
defendant because “if guilty – person must remain behind bars for life.”
Another prospective alternate juror, Donald C., wrote on his questionnaire
that he “always doubted the phrase ‘without the possibility of parole.’ ” During
voir dire, he explained that he “wasn’t aware there was a law that made that
exactly the definition, that there was no possibility.” However, when defense
counsel asked Donald C. if the judge assured him, would he accept as a “fact” that
life imprisonment without possibility of parole was just that, he replied, “Yes, I
would.” On his juror questionnaire, Donald C. also wrote that this sentence meant
“that the person is put away from society, never to be allowed out of custody.”
Wilhelmina R., David G., and Donald C. were ultimately excused, and did not sit
on the jury.
Although defense counsel told the jury that the trial court would instruct on
the meaning of a “life without possibility of parole” sentence, defense counsel did
not request such an instruction and the trial court did not instruct sua sponte. The
trial court did, however, give both introductory and concluding jury instructions
on the two penalty alternatives, life without possibility of parole and death.
(CALJIC Nos. 8.84, 8.88.)
We conclude that these jurors’ responses do not reflect that jurors shared a
“ ‘common and widespread misconception’ ” about the meaning of life
imprisonment without possibility of parole. (People v. Bonin, supra, 46 Cal.3d at
p. 698.) Rather than indicating a misconception, Zara C.’s responses simply
showed that she previously did not know that the law provided for such a
sentence, and that if “the judge says he’s sentenced to life imprisonment without
53
possibility of parole,” she “would believe it.” Also, Glenda L.’s “reservations”
about the meaning of this type of sentence mainly reflected her view that
convicted defendants, including those who serve life in prison without possibility
of parole, “should lose all their rights.” She complained that instead, such
defendants “are allowed to go to school, they are allowed to appeal, they are
allowed to come back into court. Some of them have even made their way out of
prison for things like that. So I don’t think they’ve lost all their rights.” The
italicized language reasonably reflects that rather than thinking that defendants
who serve life without possibility of parole would somehow be released on parole,
Glenda L. was referring to defendants who are released due to appellate reversals.
Ultimately, she stated that she “would have to” accept the judge’s instruction on
this type of sentence. Despite what defense counsel described as her “strong
views about punishment and death penalty,” Glenda L. emphasized that she could
remain fair and impartial and would follow the law.
The responses of three prospective jurors who were excused do not
strengthen defendant’s claim that the jurors in general were laboring under a
misconception. (People v. Bonin, supra, 46 Cal.3d at p. 698.) Even assuming that
these three prospective jurors, and the two who sat on the jury, misunderstood
what life without possibility of parole meant, responses from five individuals do
not establish that such a misconception was “ ‘common and widespread.’ ” (Ibid.
[responses of 10 out of 204 prospective jurors do not establish misconception was
common and widespread]; People v. Sanders, supra, 11 Cal.4th at p. 562
[responses of eight prospective jurors “[o]ut of a large pool of prospective
jurors”].)
Contrary to defendant’s contention, Simmons v. South Carolina, supra, 512
U.S. 154, Shafer v. South Carolina (2001) 532 U.S. 36, and Kelly v. South
Carolina (2002) 534 U.S. 246, do not dictate otherwise. (People v. Turner (2004)
54
34 Cal.4th 406, 437-438; People v. Snow (2003) 30 Cal.4th 43, 123.) “Under
Simmons and its progeny, ‘whenever future dangerousness is at issue in a capital
sentencing proceeding . . . due process requires that the jury be informed that a life
sentence carries no possibility of parole.’ ” (People v. Turner, supra, 34 Cal.4th at
p. 438.) Defendant asserts the prosecutor here suggested defendant’s future
dangerousness by stating he “continues to be a threat” when presenting evidence
of defendant’s solicitation for murder.
Even assuming defendant’s future dangerousness was at issue, these high
court decisions “stemming from death sentences imposed under South Carolina
law are readily distinguishable, in that the juries in those cases were told that the
alternative to a death sentence was one of ‘life imprisonment’ without instruction
that a capital defendant given such a sentence would not be eligible for parole.
[Citations.]” (People v. Snow, supra, 30 Cal.4th at pp. 123-124.) Here, in
contrast, the jury was instructed it could sentence defendant to death or
“confinement in the state prison for life without possibility of parole.” (CALJIC
Nos. 8.84, 8.88.) As such, defendant’s claim based on Simmons and its progeny
fails.
5. Admission of Victim Impact Evidence
Just before the start of the penalty phase, the prosecution gave notice for the
first time that it intended to call witness Rose Wigley, the younger sister of victim
Swader, to testify as to victim impact. The prosecution explained that it “did not
specifically know that it would be calling” Wigley because it had only recently
learned her name; originally, the prosecution “had hoped to be able to call the
children of the victim, but they were not available and did not want to come.” The
prosecution maintained that “victim impact evidence was something that was at all
times intended to be called.” Defendant objected on the ground that the notice did
55
not meet the requirements of section 190.3, which provides that aggravating
evidence with certain exceptions be “given to the defendant within a reasonable
period of time as determined by the court, prior to trial.” (§ 190.3, 4th par.) He
alternatively requested a continuance. (See ante, at p. 50.) Overruling defendant’s
objection and implicitly denying his continuance motion, the trial court found
“from the totality of the circumstances, . . . sufficient notice has been given
pursuant to Penal Code section 190.3.” Wigley testified shortly thereafter.
On appeal, defendant again claims that the trial court improperly admitted
Wigley’s testimony because the prosecution failed to give adequate notice of its
intent to introduce this victim impact evidence, and that admitting this type of
evidence “renders the sentencing scheme unconstitutionally vague and improper.”
Defendant also objects that Wigley’s testimony “included some very improper
aspects” because, in addition to describing her relationship with Swader, Wigley
commented on defendant, whom she never met; she stated her own daughter tried
to commit suicide to get her attention after Swader’s two young daughters moved
in with their family; and she said that one of Swader’s daughters was afraid
defendant would “do something to them.”
“Under California law, victim impact evidence is admissible at the penalty
phase under section 190.3, factor (a), as a circumstance of the crime, provided the
evidence is not so inflammatory as to elicit from the jury an irrational or emotional
response untethered to the facts of the case. [Citations.]” (People v. Pollock
(2004) 32 Cal.4th 1153, 1180; People v. Edwards (1991) 54 Cal.3d 787, 834-836;
see also Payne v. Tennessee (1991) 501 U.S. 808, 827 [“if the State chooses to
permit the admission of victim impact evidence and prosecutorial argument on
that subject, the Eighth Amendment erects no per se bar”].) The admission of this
aggravating evidence is subject to the notice requirement under section 190.3:
“Except for evidence of proof of the offense or special circumstances which
56
subject a defendant to the death penalty, no evidence may be presented by the
prosecution in aggravation unless notice of the evidence to be introduced has been
given to the defendant within a reasonable period of time as determined by the
court, prior to trial.” (§ 190.3, 4th par.; see People v. Roldan (2005) 35 Cal.4th
646, 733.) This provision requires that the defendant be given notice of the
prosecution’s intended aggravating evidence before the cause is called for trial or
as soon thereafter as the prosecution learns of the existence of the evidence.
(People v. Roldan, supra, 35 Cal.4th at p. 733.)
Citing
People v. Clark (1993) 5 Cal.4th 950, 1033, the Attorney General,
however, argues that because the impact of the murder on the victim’s family is
one of the circumstances of the crime, the prosecution was not required to give
any notice of the victim impact testimony. We disagree. “Although we have
found ‘victim impact evidence admissible as a circumstance of the crime pursuant
to section 190.3, factor (a)’ [citation], generic, nonspecific notice that the
prosecution intends to rely, as an aggravating factor, on the circumstances of the
offense (see § 190.3, factor (a)) fails to give adequate notice that it also intends to
present victim impact evidence from surviving family members.” (People v.
Roldan, supra, 35 Cal.4th at p. 733.) Moreover, the notice exception for
“evidence in proof of the offense or special circumstances” (§ 190.3, 4th par.),
does not extend to victim impact evidence. (People v. Roldan, supra, 35 Cal.4th
at p. 733.)
The question whether the prosecution provided timely notice of the victim
impact evidence is close on this record. Apart from the prosecution’s assertions at
the penalty phase, the record does not clearly support that the parties discussed
that there would be victim impact evidence. It is also unclear whether the
prosecution gave notice of this evidence “as soon thereafter as [it] learned of the
existence of the evidence. [Citation.]” (People v. Roldan, supra, 35 Cal.4th at p.
57
733.) In any event, we need not decide whether the prosecution’s notice was
timely under section 190.3 because defendant suffered no prejudice.
“The purpose of the notice provision is to afford defendant an opportunity
to meet the prosecutor’s aggravating evidence.” (People v. Taylor (2001) 26
Cal.4th 1155, 1182.) Although in seeking a continuance defendant specifically
noted he intended to call witnesses to impeach the testimony of witnesses Loar
and Torregano, he made no mention of impeaching witnesses with regard to
Wigley. (See ante, at pp. 50-51 & fn. 10.) Because defendant fails to show how
he could have rebutted or impeached Wigley’s testimony had he received earlier
notice, he fails to show prejudice. (See People v. Taylor, supra, 26 Cal.4th at p.
1182.) To the extent defendant argues that the notice was otherwise inadequate
because the written notice did not state the content of Wigley’s testimony, but
simply stated that “Ms. Wigley, the victim’s sister, will testify as to victim
impact,” we reject this argument. (See People v. Hart, supra, 20 Cal.4th at pp.
638-639.)
With respect to the substance of Wigley’s testimony, we conclude that
defendant forfeited his claim because he failed to object to the testimony as
exceeding the scope of section 190.3, factor (a). (People v. Garceau (1993) 6
Cal.4th 140, 206.) Moreover, we conclude Wigley’s testimony constituted
permissible victim impact evidence.
For instance, Wigley testified that she could not understand why someone
whom Swader befriended and trusted would kill him. When detectives told her “it
was for money,” she said she “was angry someone would kill for that.” Contrary
to defendant’s suggestion, her statements permissibly concerned the “immediate
effects of the murder,” i.e., her “understandable human reactions” on hearing
someone had killed her brother for money. (People v. Brown (2004) 33 Cal.4th
382, 397-398.) Moreover, Wigley’s daughter’s attempted suicide, other
58
difficulties her family faced after Swader’s daughters moved in with them, and his
young daughter’s understandable fear of defendant, properly showed how the
victim’s death affected his surviving relatives. (Ibid.)
Finally, we have rejected the claim that admitting victim impact evidence
as a “circumstance[] of the crime” under section 190.3, factor (a), renders this
provision unconstitutionally vague. (People v. Boyette (2002) 29 Cal.4th 381,
445, fn. 12.)
6. Alleged
Prosecutorial
Misconduct
a. Failure to comply with notice requirements (§ 190.3)
Defendant claims that the prosecution committed misconduct by failing to
give timely notice that it intended to present the testimony of Torregano and
Wigley, and the prior testimony of Loar. We have rejected these claims regarding
the lack of timely notice. (See ante, at pp. 46-48, 57-58.) Characterizing these
claims as prosecutorial misconduct does not afford defendant relief.
b. References to inadmissible evidence
Defendant argues that the prosecution improperly asked defense expert Dr.
Maloney, a forensic psychologist who had reviewed defendant’s childhood
psychological evaluations, questions to elicit inadmissible, aggravating evidence.
Quoting People v. Visciotti, supra, 2 Cal.4th at page 81, defendant points out: “It
is proper to question an expert about matter on which the expert bases his or her
opinion and on the reasons for that opinion. A party attacking the credibility of
the expert may bring to the jury’s attention material that is relevant to the issue of
which the expert was unaware [citation], but that party may not by its questions
testify regarding the content of that material.” Defendant maintains that the
prosecution argued to the jury defendant’s unadjudicated acts of criminal conduct,
which were not introduced into evidence, or reviewed by the expert witness.
59
Defendant failed to object on this ground at trial; thus, he has forfeited this claim
on appeal. (People v. Dennis, supra, 17 Cal.4th at p. 519.) Moreover, for the
reasons that follow, we conclude the prosecution did not commit misconduct.
A party “may cross-examine an expert witness more extensively and
searchingly than a lay witness, and the prosecution was entitled to attempt to
discredit the expert’s opinion. [Citation.] In cross-examining a psychiatric expert
witness, the prosecutor’s good faith questions are proper even when they are, of
necessity, based on facts not in evidence. [Citation.]” (People v. Dennis, supra,
17 Cal.4th at p. 519.)
Dr. Maloney testified on direct examination that when defendant was about
13 years old, he was placed in a psychiatric hospital for “bizarre behavior,” and
later explained that defendant displayed “juvenile delinquency, acting out.”
Challenging Dr. Maloney’s assessment (which was based on records prepared by
defendant’s prior attorneys and on defendant’s own statements), the prosecution
asked Dr. Maloney whether he had read a 1964 letter describing defendant’s
burglaries and assault with a loaded gun, which conduct had led to defendant’s
hospitalization. Dr. Maloney stated he did not recognize the letter. Dr. Maloney
ultimately agreed with the prosecution that some of the “bizarre behavior” referred
to behavior that was “criminal.” The jury learned that several documents, none of
which Dr. Maloney recognized or were admitted into evidence, contained
information about defendant’s 1964 burglaries and assault with a loaded gun, and
his probation officer’s assessment of defendant’s parents’ care and concern for
him.
Contrary to defendant’s assertion, the prosecution’s cross-examination of
Dr. Maloney was proper. Because Dr. Maloney relied only on documents
provided by defense counsel and defendant’s own statements, the prosecution was
entitled to challenge Dr. Maloney on his assessment by asking whether he
60
considered other documents. Moreover, the prosecution’s reference to a letter
from defendant’s probation officer, which was not discussed during Dr. Maloney’s
cross-examination, was not prejudicial. (See People v. Dennis, supra, 17 Cal.4th
at p. 521.) This letter, which was used to challenge Dr. Maloney’s statement that
defendant’s parents were alcoholics, simply stated that defendant as an adolescent
did not commit criminal violations “until September 9th of 1964 . . . is largely due
to the excellent way in which Mr. and Mrs. Wilson have provided supervision,
guidance, and professional care for [defendant].”
c. Misstatement of the law
During closing argument, the prosecution explained its burden of proof at
the penalty phase: “It also changes the fact that normally when I get up and argue
I have the burden of proof. I have to prove beyond a reasonable doubt that the
offenses were committed and that the defendant is the person who committed that.
[¶] We don’t have that burden here. We have to, if you were to return a death
verdict, show that the aggravating factors that we’ll go through substantially
outweigh the mitigating ones. But there’s no burden one way or another.”
Defendant
claims
the
prosecution misstated the law in argument by
asserting, “We don’t have the burden here . . . [T]here’s no burden one way or
another.” He argues that this statement was incorrect as to the solicitation of
murder offense; the jury may only consider such offense as aggravating evidence
under section 190.3, factor (b) if the prosecution proves it beyond a reasonable
doubt. Defendant also asserts the prosecution misread CALJIC No. 8.88 by
stating, “In order to return that judgment of death, you have to find that the totality
of aggravating circumstances substantially outweighs the mitigating
circumstances.” Because defendant failed to object on these grounds at trial, he
61
has forfeited these prosecutorial misconduct claims on appeal.11 (People v.
Farnam, supra, 28 Cal.4th at p. 167.) In any event, the claims lack merit.
Taken in context, the prosecution’s statement referred to its overall burden
at the penalty phase; it did not suggest it did not have a burden of proof as to all
issues in the case, including proving unadjudicated criminal conduct under section
190.3, factor (b). The prosecution merely stated that if the jury returns a death
verdict, it must show that the aggravating factors outweigh the mitigating factors.
The trial court instructed that “[b]efore a juror may consider any of such criminal
act as an aggravating circumstance in this case, a juror must first be satisfied
beyond a reasonable doubt that the defendant did in fact commit such criminal
act.” The prosecution did not argue against this particular burden. Moreover, the
prosecution’s reading of CALJIC No. 8.88 did not differ materially from the
instruction the trial court read and the jury received in writing.12 As such, the
prosecution did not “water[] down” the necessary showing as defendant suggests.
7. Capital Sentencing Instructions Fail to Guide the Jury’s Discretion
Defendant asserts that the penalty instructions, namely CALJIC No. 8.85,
failed to sufficiently guide the jury’s discretion, failed to define the mitigating
factors, and were confusing. We disagree. Contrary to defendant’s assertions, the
instruction need not omit inapplicable sentencing factors (People v. Earp (1999)
20 Cal.4th 826, 899); it need not advise which factors are relevant as mitigating
11
As discussed previously with respect defendant’s claims of prosecutorial
misconduct at the guilt phase (see ante, at pp. 29-30, fn. 6), defendant’s failure to
object is not excused based on the trial court’s admonition to counsel “to try and
avoid interrupting one another during their arguments.”
12
The trial court stated: “To return a judgment of death, each of you must be
persuaded that the aggravating circumstances are so substantial in comparison
with the mitigating circumstances that it warrants death instead of life without
parole.”
62
circumstances and which factors are relevant as aggravating circumstances
(People v. Farnam, supra, 28 Cal.4th at pp. 191-192); the aggravating factors are
not vague and ill-defined (People v. Earp, supra, 20 Cal.4th at p. 899); the use of
the words “extreme” and “substantial” to describe potential mitigating evidence is
not impermissible (People v. Frye, supra,18 Cal.4th at p. 1029); and the jury need
not determine the existence of the aggravating circumstances or the
appropriateness of the death penalty beyond a reasonable doubt. (People v. Earp,
supra, 20 Cal.4th at p. 899.) “In short, CALJIC No. 8.85 is not unconstitutionally
vague and does not allow the penalty process to proceed arbitrarily . . . .
[Citations.]” (People v. Farnam, supra, 28 Cal.4th at p. 192.) Defendant provides
no basis for us to reconsider our decisions.
8. Defendant’s Sentence is Capricious, Arbitrary, Discriminatory,
and Disproportionate
The trial court denied defendant’s motion to reduce his death sentence to
life without the possibility of parole. Claiming the facts here do not rise to the
level of a “truly death-deserving case,” defendant insists that Anderson was as
much or more involved in the crimes than defendant (and yet Anderson was not
charged with any crime), and that this was simply a robbery-murder offense with
just one victim. Asking this court to compare this case to other capital appeals,
defendant claims his death sentence is capricious, arbitrary, discriminatory, and
disproportionate in violation of the Eighth and Fourteenth Amendments to the
United States Constitution. We disagree.
Intercase proportionality review is not required. (People v. Griffin, supra,
33 Cal.4th at p. 596.) Moreover, under intracase review, defendant’s death
sentence is not disproportionate to his individual culpability and moral guilt. (See
People v. Steele (2002) 27 Cal.4th 1230, 1269.) Defendant robbed and murdered
Swader, who trusted defendant by employing him and allowing him to live in his
63
home for a period of time. Defendant shot Swader twice in the head while he was
asleep in order to take his money. Later, while in custody, defendant solicited the
murder of a key prosecution witness who could place defendant and Swader
together before the crimes. Moreover, contrary to defendant’s suggestion, the
alleged greater culpability of another person is irrelevant for purposes of intracase
proportionality review. (See People v. Beardslee (1991) 53 Cal.3d 68, 111-112.)
In sum, these circumstances do not demonstrate that defendant’s death
sentence is disproportionate. (People v. Steele, supra, 27 Cal.4th at p. 1269;
People v. Seaton, supra, 26 Cal.4th at p. 690 [defendant “brutally beat to death an
aged, defenseless man so he could rob the victim of his meager possessions”].)
9. Challenge to Capital Sentencing Procedures
Defendant claims that California’s death penalty scheme violates the Eighth
and Fourteenth Amendments to the United States Constitution by not genuinely
narrowing the class of death-eligible defendants. (See Lowenfield v. Phelps
(1988) 484 U.S. 231, 244.) He also asserts that the sentencing scheme is
unconstitutional because it does not provide for intercase proportionality review,
and it gives prosecutors complete discretion to seek the death penalty. Finally, he
claims the scheme has “built-in capriciousness” based on the purportedly
confusing and ineffective penalty instruction, CALJIC No. 8.85.
We disagree. We have consistently rejected such constitutional challenges
to our death penalty scheme. (See, e.g., People v. Combs (2004) 34 Cal.4th 821,
868; People v. Kipp (2001) 26 Cal.4th 1100, 1137.) Defendant offers no basis for
us to reconsider our decisions. And we have rejected defendant’s claim based on
CALJIC No. 8.85. (See ante, at pp. 62-63.)
64
10. Death Penalty Law Violates International Law
Defendant maintains that California’s death penalty procedure violates the
International Covenant of Civil and Political Rights. We disagree. “International
law does not prohibit a sentence of death rendered in accordance with state and
federal constitutional and statutory requirements. [Citations.]” (People v.
Hillhouse, supra, 27 Cal.4th at p. 511; People v. Brown, supra, 33 Cal.4th at pp.
403-404.) Because we conclude that defendant’s trial did not involve any
violations of state or federal constitutional law, “we decline to find the law
defective based on any provision of international law.” (People v. Brown, supra,
33 Cal.4th at p. 404.)
11. Aggravating Circumstances—Requirement of Jury Unanimity or a
Substantial Majority of Jurors
Defendant claims the trial court should have instructed the jury to
unanimously agree that defendant solicited the murder of Berrie before it could
consider it in aggravation under section 190.3. Relying on recent high court
decisions, defendant claims the court’s failure to instruct on unanimity violated his
rights under the Sixth, Eighth and Fourteenth Amendments to the United States
Constitution and under parallel provisions of the California Constitution. We
disagree. Juries are not constitutionally required to agree unanimously on
aggravating factors. (People v. Hillhouse, supra, 27 Cal.4th at p. 511.) Contrary
to defendant’s assertion, Apprendi v. New Jersey (2000) 530 U.S. 466, and Ring v.
Arizona (2002) 536 U.S. 584, do not dictate otherwise. (People v. Brown, supra,
33 Cal.4th at p. 402; People v. Prieto (2003) 30 Cal.4th 226, 262-263 [Apprendi
and Ring do not apply to the penalty phase in a capital case].)
65
III. DISPOSITION
The judgment is affirmed.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
66
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. S039632
Date Filed: July 11, 2005
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Richard F. Charvat
__________________________________________________________________________________
Attorneys for Appellant:
Timothy J. Foley, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C
Hamanaka, Assistant Attorney General, John R. Gorey and Chung L. Mar, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Timothy J. Foley
2901 Webster street
San Francisco, CA 94123
(415) 922-0882
Chung L. Mar
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2368
Opinion Information
| Date: | Docket Number: |
| Mon, 07/11/2005 | S039632 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Chung Mar, Deputy Attorney General 300 South Spring Street, Suite 500 Los Angeles, CA |
| 2 | Wilson, Robert Paul (Appellant) San Quentin State Prison Represented by Timothy J. Foley Attorney At Law 3104 "O" Street, Number 357 Sacramento, CA |
| Disposition | |
| Jul 11 2005 | Opinion: Affirmed |
| Dockets | |
| Apr 8 1994 | Judgment of death |
| May 4 1994 | Filed cert. copy of Judgement of Death Rendered 4-8-94. |
| Aug 10 1998 | Filed: Request by Counsel for Dual representation. |
| Aug 10 1998 | Filed: Request by Inmate for Dual representation. |
| Aug 19 1998 | Compensation awarded counsel |
| Aug 19 1998 | Counsel appointment order filed Timothy J. Foley Is appointed to represent Applt for Both the direct Appeal & Related State Habeas Corpus/Executive Clemency Proceedings. |
| Sep 16 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Sep 22 1998 | Filed: Suppl Proof of Service of request for Eot. |
| Sep 22 1998 | Extension of Time application Granted To 11-20-98 To request Record correction |
| Nov 18 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Nov 19 1998 | Extension of Time application Granted To Applt To 1-19-99 To request Corr. of Record. |
| Feb 3 1999 | Compensation awarded counsel |
| Jul 27 2000 | Counsel's status report received (confidential) |
| Sep 19 2000 | Counsel's status report received (confidential) |
| Nov 22 2000 | Counsel's status report received (confidential) |
| Jan 25 2001 | Counsel's status report received (confidential) |
| Mar 23 2001 | Counsel's status report received (confidential) |
| Apr 4 2001 | Record on appeal filed C-8 (1770 pp.) R-17 (1692 pp.) including material under seal; Clerk's Transcript includes 924 pages of Juror Questionnaires. |
| Apr 4 2001 | Appellant's opening brief letter sent, due: May 14, 2001. |
| Apr 23 2001 | Compensation awarded counsel Atty Foley |
| May 8 2001 | Application for Extension of Time filed to file AOB. (1st request) |
| May 11 2001 | Extension of Time application Granted To 7/13/2001 to file AOB. |
| May 29 2001 | Counsel's status report received (confidential) |
| Jul 10 2001 | Application for Extension of Time filed To file AOB. (2nd request) |
| Jul 11 2001 | Extension of Time application Granted To 9/11/2001 to file AOB. |
| Jul 27 2001 | Counsel's status report received (confidential) |
| Sep 4 2001 | Application for Extension of Time filed To file AOB. (3rd request) |
| Sep 13 2001 | Extension of Time application Granted To 11/13/2001 to file AOB. |
| Oct 9 2001 | Counsel's status report received (confidential) |
| Oct 18 2001 | Counsel's status report received (confidential) from atty Foley. |
| Nov 7 2001 | Application for Extension of Time filed To file AOB. (4th request) |
| Nov 14 2001 | Extension of Time application Granted To 1/14/2002 to file AOB. |
| Dec 20 2001 | Counsel's status report received (confidential) |
| Jan 8 2002 | Request for extension of time filed To file AOB. (5th request) |
| Jan 15 2002 | Extension of time granted To 3/15/2002 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. |
| Feb 28 2002 | Counsel's status report received (confidential) |
| Mar 11 2002 | Request for extension of time filed To file AOB. (6th request) |
| Mar 20 2002 | Extension of time granted To 5/14/2002 to file AOB. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of this schedule, and take all steps necessary to meet this schedule. |
| Apr 29 2002 | Counsel's status report received (confidential) from atty Foley. |
| May 9 2002 | Request for extension of time filed To fie AOB. (7th request) |
| May 14 2002 | Extension of time granted To 7/15/2002 to file AOB. Counsel anticipates filing the brief by 9/1/2002. Only one further extension totaling 48 additional days is contemplated. |
| Jun 25 2002 | Counsel's status report received (confidential) |
| Jul 10 2002 | Request for extension of time filed To file AOB. (8th request) |
| Jul 16 2002 | Extension of time granted To 9/3/2002 to file AOB. Counsel anticipates filing that brief by 9/1/2002. No further extension is contemplated. |
| Aug 7 2002 | Compensation awarded counsel Atty Foley |
| Aug 30 2002 | Appellant's opening brief filed (221 pp.) |
| Sep 4 2002 | Counsel's status report received (confidential) |
| Sep 9 2002 | Filed: Confidential declaration re consultation about potential habeas corpus issues. |
| Sep 19 2002 | Compensation awarded counsel Atty Foley |
| Sep 25 2002 | Request for extension of time filed to file respondent's brief. (1st request) |
| Oct 4 2002 | Extension of time granted To 12/2/2002 to file respondent's brief. |
| Nov 5 2002 | Counsel's status report received (confidential) |
| Nov 22 2002 | Request for extension of time filed to file respondent's brief. (2nd. request) |
| Nov 27 2002 | Extension of time granted To 1/31/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General Chung L. Mar's representation that he anticipates filing that document by 1/31/2003. After that date, no further extension is contemplated. |
| Jan 8 2003 | Counsel's status report received (confidential) |
| Jan 31 2003 | Respondent's brief filed (127 pp.) |
| Feb 13 2003 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Feb 14 2003 | Extension of time granted to 4/21/2003 to file appellant's reply brief. |
| Mar 12 2003 | Counsel's status report received (confidential) |
| Apr 8 2003 | Compensation awarded counsel Atty Foley |
| Apr 15 2003 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Apr 18 2003 | Extension of time granted to 6/20/2003 to file appellant's reply brief. Extension is granted based upon counsel Timothy J. Foley's representation that he anticipates filing that brief by 6/20/2003. After that date, no further extension is contemplated. |
| May 16 2003 | Counsel's status report received (confidential) |
| May 23 2003 | Filed: Declaration of attorney Timothy J. Foley pursuant to penal code section 1241 (confidential). |
| May 29 2003 | Compensation awarded counsel Atty Foley |
| Jun 17 2003 | Appellant's reply brief filed (54 pp.) |
| Jul 16 2003 | Counsel's status report received (confidential) |
| Aug 15 2003 | Compensation awarded counsel Atty Foley |
| Sep 17 2003 | Counsel's status report received (confidential) |
| Sep 23 2003 | Change of Address filed for: counsel for appellant Timothy J. Foley. |
| Oct 23 2003 | Supplemental record/transcript filed Supplemental Clerk's Transcript (1 volume of confidential documents) |
| Oct 30 2003 | Filed: Declaration of attorney Foley pursuant to Penal Code Section 1241 (confidential). |
| Nov 4 2003 | Compensation awarded counsel Atty Foley |
| Nov 13 2003 | Habeas funds request filed (confidential) |
| Nov 19 2003 | Counsel's status report received (confidential) |
| Nov 19 2003 | Compensation awarded counsel Atty Foley |
| Dec 10 2003 | Related habeas corpus petition filed (concurrent) case no. S121061. |
| Dec 10 2003 | Motion filed (in AA proceeding) by appellant to consolidate appellate and habeas corpus proceedings. |
| Jan 14 2004 | Motion to consolidate denied The "Motion to Consolidate Appellate and Habeas Corpus Proceedings," filed on December 10, 2003, is denied. |
| Jan 14 2004 | Order filed re habeas funds request (confidential) |
| Feb 18 2004 | Compensation awarded counsel Atty Foley |
| Jun 23 2004 | Compensation awarded counsel Atty Foley |
| Aug 23 2004 | Change of contact information filed for: attorney Timothy J. Foley. |
| Mar 4 2005 | Oral argument letter sent advising counsel that court could schedule this case for argument as early as the first May calendar, to be held the week of May 2, 2005, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Apr 1 2005 | Case ordered on calendar 5/5/05 @1:30pm, S.F. |
| Apr 11 2005 | Filed letter from: appellant, dated 4/7/2005, re focus issues for oral argument. |
| Apr 11 2005 | Filed letter from: respondent, dated 4/7/2005, re focus issues for oral argument. |
| Apr 28 2005 | Received: letter from appellant, dated 4/22/2005, re supplemental authorities for oral argument. |
| May 5 2005 | Cause argued and submitted |
| Jun 21 2005 | Motion to consolidate filed (AA) appellant's second motion to consolidate appellate and habeas corpus proceedings. |
| Jun 29 2005 | Compensation awarded counsel Atty Foley |
| Jul 11 2005 | Opinion filed: Judgment affirmed in full Opinion by: Chin, J. -- joined by George, C.J., Kennard, Baxter, Werdegar, Morenio, JJ. |
| Jul 13 2005 | Motion to consolidate denied The "Second Motion to Consolidate Appellate and Habeas Corpus Proceedings," filed on June 21, 2005, is denied. George, C.J., was absent and did not participate. |
| Jul 22 2005 | Rehearing petition filed by appellant. (1415 words; 8 pp.) |
| Jul 26 2005 | Time extended to consider modification or rehearing The time for granting or denying rehearing is extended to and including 10-7-2005, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Aug 24 2005 | Rehearing denied Petition for rehearing DENIED. |
| Aug 24 2005 | Remittitur issued (AA) |
| Aug 25 2005 | Order filed (150 day statement) |
| Sep 2 2005 | Received: Acknowledgment of receipt of remittitur. |
| Nov 15 2005 | Received: Copy of appellant's cert petition (20 pp. - excluding appendix) |
| Nov 29 2005 | Received: letter from U.S.S.C., dated 11-25-2005, advising that petition for writ of certiorari was filed on 11-14-2005, and placed on the docket 11-25-2005 at No. 05-7714. |
| Jan 9 2006 | Compensation awarded counsel Atty Foley |
| Apr 3 2006 | Certiorari denied by U.S. Supreme Court |
| Briefs | |
| Aug 30 2002 | Appellant's opening brief filed |
| Jan 31 2003 | Respondent's brief filed |
| Jun 17 2003 | Appellant's reply brief filed |
