IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
RALPH MICHAEL YEOMAN,
Super. Ct. No. 86216
Defendant and Appellant.
A jury found defendant Ralph Michael Yeoman guilty of the first degree
murder of Doris Horrell and found true the special circumstance that the murder
occurred during the commission of a robbery. (Pen. Code, §§ 187, 190.2, subd.
(a)(17)(A).) 1 The jury also found defendant guilty of robbery and false
imprisonment (§§ 211, 236) and found true the allegation that, in each of these
crimes, defendant personally used a firearm (§ 12022.5). The jury found not true
the additional special circumstance that the murder occurred during the
commission of a kidnapping. (§ 190.2, subd. (a)(17)(B).) The jury imposed the
sentence of death. The trial court stayed the convictions for robbery and false
imprisonment under section 654, struck the enhancements under section 1385 and
entered judgment accordingly. This is the automatic appeal from that judgment.
(§ 1239, subd. (b).) We affirm.
All further citations to statutes are to the Penal Code, except as noted.
A. Guilt Phase
1. The Murder of Doris Horrell
Defendant robbed and murdered Doris Horrell, a 73-year-old resident of
Citrus Heights, on February 13, 1988. Sheriff’s deputies found her body about
9:40 p.m. in an open field west of Interstate 5 in Sacramento County, while setting
flares to direct traffic out of the Arco Arena. Horrell had left a Valentine’s Day
party earlier that evening in her car to pick up an acquaintance at the airport. She
was wearing a bright red dress, jewelry and designer eyeglasses. Police found no
jewelry, eyeglasses, keys or purse. Nor did they find a coat, but they did find
three lavender-colored buttons. Postmortem examination revealed the cause of
death as six gunshot wounds to the head and left side of the body, any of which
could have been fatal. The shots had been fired at close range from a .22-caliber
gun. Horrell’s inoperable car was later towed from the side of the freeway, about
four miles from the place where her body had been found. Investigators
determined that a palm print on the hood of Horrell’s car was defendant’s and that
the fatal bullets had the general characteristics of rounds fired from defendant’s
On February 16, 1988, Debra Stafford called the Sacramento County
Sheriff’s office and reported that defendant was Horrell’s killer. Stafford told the
following story, which she repeated at trial. On the evening Horrell died, Stafford
and defendant were visiting defendant’s friend Ron Kegg at his Sacramento
apartment. Defendant left the apartment alone in his pickup truck about 7:30 p.m.,
saying he needed “[t]o go get some money.” He returned about an hour later,
telling Stafford “[w]e have got to hurry, go.” Stafford left with him. On the road,
defendant explained the situation. “He told me,” Stafford testified, “that he
needed me to help him, that he murdered a lady and he wanted me to drive his
truck while he went to the car that was sitting on the side of the freeway and
needed to drive it off . . . .” Defendant said “he had fingerprints on the car” and
needed to “clean it up.” Defendant had stopped for Horrell “[b]ecause she was
dressed nice and she looked like she might have some money.” She “was broke
down on the freeway and he stopped to help her,” but “he couldn’t get her car
started so she got in the truck. He was going to give her a ride, and he killed her.”
Stafford perceived defendant as calm while he recounted these events.
Arriving at Horrell’s car, defendant found it still would not start. He used
Stafford’s shirt to wipe his fingerprints off the car, and cleaned the windows with
a fire extinguisher and squeegee from the trunk. Driving away, defendant pointed
a gun at Stafford and told her that he had shot Horrell “sitting where you are
sitting.” He said he had used a .22-caliber pistol and had “emptied the clip in her.”
Stafford noticed a very small amount of blood on the floor of the truck. Defendant
then took her to see Horrell’s body. Stafford did not want to go, but defendant
insisted, saying, “well, I want to go see it and see if they found it yet.” On the
way, Stafford looked through Horrell’s purse and noted her name. Defendant
stopped his truck near the Arco Arena, where flares had been set to guide traffic.
Horrell’s body had not yet been discovered. Defendant shone a light, and Stafford
saw the body of an older woman in a red dress with gray hair.
After seeing the body, defendant said he wanted to visit Horrell’s apartment
and try to withdraw money from her bank. Defendant showed Stafford rings and
earrings he had taken from Horrell, along with $20 and a light purple coat. After
stopping briefly at Kegg’s apartment, defendant drove to Horrell’s address in
Citrus Heights using information from her purse. Defendant threatened to kill
Stafford or have her killed if she turned him in. Arriving at Horrell’s apartment
complex, defendant explained that he wanted to “go in, grab the jewelry box and
TV and leave.” But the area was too brightly lit and too many people were about,
so he abandoned this plan. Next, the two attempted to withdraw money from an
ATM machine using Horrell’s bank card but failed for want of her PIN number.
Finally, they drove to Stafford’s home in Marysville where, after searching the
purse one last time for a PIN number or other useful information, they burned
most of Horrell’s effects. They kept her jewelry, coat and a few other items.
Defendant tried to give the coat to Stafford, but she would not take it. She noticed
bullet holes and powder burns under the left armpit. Buttons were missing.
A day or two later, defendant arrived at Stafford’s house with Kegg. The
two men attempted to persuade her to go with them to Sacramento, but she
refused. Afterwards, defendant called her repeatedly with the same request.
Scared, Stafford spoke with her father. At his suggestion she called the United
States Marshall, who put her in touch with Deputy Sheriff John Cabrera.
Searching Stafford’s house, Deputy Cabrera and other officers found Horrell’s fire
extinguisher, squeegee and lipstick holder, and a brochure for a recreational area
in South Dakota where Horrell’s family owned property. In Stafford’s fire pit,
officers found eyeglasses and documents that, while burned, could still be
identified as Horrell’s. That same day, police arrested defendant and Kegg.
Defendant had the parts of a .22-caliber revolver in his pocket. Kegg subsequently
turned over Horrell’s jewelry to the police.
Stafford, when called by the People as a witness at trial, was serving a 90-
day sentence for a misdemeanor drug offense; she had previously been convicted
of felony failure to appear. She testified that the People had offered no
consideration, promises or help in exchange for her testimony. So far as she
knew, she might still be prosecuted for her conduct with defendant. Kegg, also
called as a witness by the People, had suffered a felony conviction for burglary
and several felony convictions relating to drugs.
The defense endeavored to show that defendant was under the influence of
methamphetamine at the time he killed Horrell and did not form the intent to steal
until after killing her. On direct examination by the People, both Stafford and
Kegg denied seeing defendant use drugs on the day he killed Horrell. Stafford and
Kegg also testified on direct that defendant appeared to be calm, behaving
normally and apparently making sense. At the preliminary hearing, however,
Kegg had testified that both he and defendant were using methamphetamine
heavily during that general period of time. Kegg had also previously testified that
defendant arrived at his house seeming “wired,” frantic and confused. After
refreshing his memory with this prior testimony, Kegg explained that his own use
of drugs had probably impaired his perception of defendant.
Lorraine Andrews, R.N., called by the defense, described her routine
medical examination of defendant as an inmate at the Sacramento County jail.
Defendant reported to Andrews that he had been on a “drug run,” that he used
cocaine, heroin, methamphetamine, LSD and marijuana, and that he had recently
lost 50 pounds. Defendant had injection scars, or “tracks,” but Andrews could not
say how old they were. Andrews drew a sample of defendant’s blood, but tested it
only for communicable diseases and not for drugs.
A defense expert witness, Dr. Fred Rosenthal, M.D., Ph.D., opined that
defendant “very likely” was using methamphetamine at the time he killed Horrell.
Dr. Rosenthal, a psychologist and psychiatrist, had not interviewed defendant and
did not know his criminal history. Instead, Dr. Rosenthal based his opinion on
factual materials supplied by defense counsel, including the preliminary hearing
transcript, the statements of witnesses, and a videotaped interrogation of defendant
by police on February 16, 1988, three days after the crime occurred. The trial
court permitted the defense to play the videotape for the jury without sound to
show defendant’s demeanor, which Dr. Rosenthal described as sleepy and thus
indicating long-term methamphetamine use. The trial court also permitted Dr.
Rosenthal to repeat, as part of the basis of his opinion, defendant’s statement on
the tape that he was puzzled about what had happened. In Dr. Rosenthal’s
opinion, a person whose thinking was disorganized by methamphetamine would
not likely be able to form the plan to pose as a good Samaritan in order to rob and
kill a stranded motorist. Dr. Rosenthal acknowledged, however, the “unlikely”
possibility that a methamphetamine user could form the intent to kill and steal.
2. The Robbery and Attempted Kidnapping of Geraldine Ford
During the guilt phase, the People proved that defendant had previously
robbed and attempted to kidnap another female motorist, Geraldine Ford. The
trial court admitted this evidence under Evidence Code section 1101, subdivision
(b), to show defendant’s intent with respect to Doris Horrell.
The crime occurred on January 4, 1988, in the parking lot of a Target store
in Sacramento. Ford, an auditor for the California Highway Patrol, had been
shopping. While she was inside the store, the sun had gone down and the lights in
the parking lot had come on. Backing her car out of a parking slot, she realized
the car had a problem. Defendant approached, pointed out a flat tire and offered to
change it. Ford noted defendant’s general description and a flower tattoo on the
back of his hand. After finishing the job, defendant returned the tools to the trunk
of Ford’s car. Ford saw a gun tucked into the waistband of defendant’s pants and
asked whether he was in law enforcement. He replied that he worked for the
county. Ford thanked him, and he followed her to the open driver’s side door of
her car. He then held a gun and a knife to Ford’s stomach, told her to get into his
truck and said, “don’t run or I will shoot you. And don’t scream or I will stab
you.” Saying, “you’ve got to be kidding; I’m not getting into your truck,” Ford
backed away, ran and then hid behind another vehicle. Defendant grabbed her
purse from the driver’s seat of her car and fled in his pickup truck.
Ford’s purse contained, among other things, two distinctive rings and a
Sprint telephone card. Defendant gave the rings to Patricia Weers, who sold one
to Debbie Yoast. Defendant later asked Weers to return the ring she had kept,
explaining that it might incriminate him in an offense against a woman who
worked for the California Highway Patrol. Police eventually recovered the other
ring from Yoast. Defendant used Ford’s previously unused Sprint telephone card
to charge calls to his friend Ron Kegg. After police arrested defendant for the
murder of Doris Horrell, Detective Craig Trimble visited him in prison. When the
detective told defendant he was investigating a robbery at a Target store and had a
lead involving the victim’s Sprint card, defendant replied, “You are on the right
track.” That same day, Ford identified defendant as her assailant in a
photographic lineup. She later identified him in court, as well.
The People proved this incident through the testimony of Geraldine Ford,
Patricia Weers and the investigating officers. The defense focused on challenging
Ford’s identification of defendant.
B. Penalty Phase
1. The Aggravating Evidence
The People’s evidence in aggravation consisted of the circumstances of the
capital offense (§ 190.3, factor (a)), three prior felony convictions (id., factor (c))
and five incidents of criminal activity involving violence or a threat of violence
(id., factor (b)). One such incident was the robbery and attempted kidnapping of
Geraldine Ford, which the People had proved at the guilt phase and as to which
they offered no additional evidence at the penalty phase.
a. The robbery of James Jacobs
On March 2, 1976, defendant entered the home of his 91-year-old neighbor,
James Jacobs, on the ruse of needing to borrow a plunger. Inside, defendant cut
the telephone cord, slit Jacobs’s throat with a four-inch folding knife, ransacked
the house and stole a variety of pain medications and anticonvulsives. Defendant
reported these events to his brother Steve Yeoman, who informed the police over a
year later. Defendant subsequently admitted the crime and, in 1977, pled guilty to
robbery with great bodily harm. (§ 211.) The People proved the crime and its
violent circumstances through official records and the testimony of witnesses.
These included Steve Yeoman, the housekeeper who rendered first aid, the police
officers who responded to the call and investigated the crime scene, and the
detective who interviewed Steve Yeoman and heard defendant’s confession. The
court admitted this evidence as showing both violent criminal activity (§ 190.3,
factor (b)) and a prior felony conviction (§ 190.3, factor (c)).
On direct examination, Steve Yeoman made conflicting statements about
whether defendant had bragged of hurting Jacobs, ultimately acknowledging “[h]e
may have, but it was the drugs that was making him brag.” Defense cross-
examination focused on defendant’s heavy use of drugs and subsequent
expressions of remorse for the crime.
b. The molestation of Sharon C. and Duane C.
At the same time defendant pled guilty to the robbery of James Jacobs, he
also pled guilty to the crimes of lewd and lascivious conduct (§ 288) against his
stepdaughter Sharon C., and oral copulation of Sharon’s brother, Duane C.
(§ 288a). The People proved these prior felony convictions (§ 190.3, factor (c))
through official records. Because defendant’s crime against Sharon had involved
a threat of violence, the court also admitted evidence of its factual circumstances
as showing criminal activity. (§ 190.3, factor (b).) The People proved the
circumstances through the testimony of Sharon, herself, and of the investigating
Sharon testified that defendant molested her from the time she was 10 until
she was 13. She did not initially know defendant’s conduct was wrong. At the
age of 13, however, she confronted him. Defendant said that if she told anyone,
her mother would not believe her, the family would be broken up, and this would
be her fault. Defendant also threatened to kill her. Sharon believed him because
he had beaten both her mother and herself. On defense cross-examination, Sharon
acknowledged that she had not reported defendant’s threats to the investigating
officer. On redirect, she explained that she had not done so because the
investigating officer had guaranteed her that defendant would be out of the home
and in jail. The record does not reflect Duane C.’s precise age at the time
defendant molested him. Sharon testified he was four to five years younger than
c. The rape of Linda E.
In 1968, while defendant was in the United States Army, he forcibly raped
the wife of a friend and fellow soldier then serving in Vietnam. The court
admitted this evidence as showing prior violent criminal activity (§ 190.3, factor
(b)) but not a prior felony conviction (id., factor (c)), because the parties had
agreed that convictions in courts martial were not admissible for that purpose. The
People proved the rape through the testimony of the victim, Linda E., portions of
the transcript of the court martial and the stipulation that defendant had in that
proceeding admitted a forcible rape.
The relevant evidence showed that defendant was stationed at Fort Riley,
Kansas, in a special detachment for soldiers who had been absent without leave.
Linda’s husband, who was defendant’s friend, had left for Vietnam a week earlier.
On August 3, 1968, Linda, defendant and a soldier named Elliot drove Linda’s car
to a park on the base. As planned, the two men spent the afternoon there replacing
the car’s damaged door. The men drank wine as they worked, but Linda did not.
After finishing the work, all three drove to a more remote location on the base
where defendant and Elliot wanted to drink beer. Linda had planned to drop them
off and leave, but defendant would not relinquish her ignition key. She got out of
the car, started walking away and then ran, but defendant caught her. Defendant
threatened her with a hunting knife, and both men raped her. Afterwards,
defendant told Linda he would kill both her and her husband if she turned him in.
Cross-examining Linda, the defense attempted to suggest that the rape was
a ruse intended to support her effort to obtain a hardship discharge for her
husband. The defense also sought to prove that Linda earlier in the day had
implicitly offered defendant consensual sex by agreeing to his proposal that he
would fix the car’s door if she would “supply the beer and the company.” Linda
d. The killing of David Hill
On January 14, 1988, a month before killing Doris Horrell, defendant killed
David Hill. Although defendant was not charged with that crime in this
proceeding, the court admitted the evidence as showing criminal activity involving
force or violence. (§ 190.3, factor (b).)
Hill operated an automobile repair business out of his home in Roseville.
He also sold drugs. On January 15, Hill was found dead on his living room floor.
The house had been ransacked in a manner suggesting a search for drugs.
Postmortem examination of Hill’s body revealed two gunshot wounds, one to the
head and one to the neck and shoulder. The fatal slugs had fragmented and could
not be identified. A spent slug found in the wall, however, bore marks showing it
could have been fired from any Smith & Wesson .38-caliber weapon.
Hotel records and other evidence showed that defendant had stayed at the
Best Western Roseville Inn from January 14 to January 15, 1988. On January 14,
defendant called his friend Ron Kegg from the motel and asked for a ride. In
defendant’s room, Kegg saw an attaché case full of methamphetamine and a large
amount of cash. Defendant also had a distinctive short-barreled .38-caliber
revolver with custom fat grips and a shrouded hammer (i.e., no spur), similar to a
Smith & Wesson that defendant’s brother-in-law Michael Ayers later reported
stolen. Defendant and Kegg injected some of the methamphetamine and left in
Kegg’s car. Kegg dropped defendant off at a medical building in Roseville, less
than half a mile from Hill’s house. Hill was found dead the next day, January 15.
Hotel records showed that defendant checked out on January 15 at 10:49 a.m. A
blue Mercury Monarch that witnesses had seen at Hill’s house on the afternoon of
January 14, loaded with household goods, was found abandoned at the motel and
subsequently impounded by police.
Four months later, police recovered several items that had belonged to Hill
from the home of defendant’s stepmother, Roberta Yeoman. Roberta had
removed these items from defendant’s rented storage locker at his request. The
items were identified by Hill’s girlfriend, Monique Hubertus. Hubertus had lived
in Hill’s house with her children since 1985 and had moved out only recently,
after Hill developed problems with drugs and alcohol. The items Hubertus
identified included, among many other things, a distinctive handmade knapsack,
Hubertus’s own diaper bag, and a yellow ski vest she had bought for Hill and for
which she still had the receipt. Hubertus also identified as Hill’s several items
found on defendant’s person, including Hill’s San Francisco Forty-Niners wallet
and his black Uniroyal jacket. Keys found at Roberta Yeoman’s house, and other
keys found in defendant’s possession when he was arrested, fit automobiles that
had been seen on Hill’s property on the day he died. One of these was the blue
Mercury Monarch police had impounded at the Roseville Inn.
At some point before February 16, 1988, when he was arrested for the
murder of Doris Horrell, defendant admitted to his brother-in-law Michael Ayers
that he had shot Hill. Ayers, however, did not believe this. After he was arrested,
defendant twice again admitted the killing in telephone calls from jail to his sister
Linda Ayers. In those conversations, defendant described Hill as “a no good drug
The People proved these events through the testimony of Ron Kegg,
Michael Ayers, Linda Ayers, Roberta Yeoman, Monique Hubertus, other persons
who could identify Hill’s possessions, the manager of the Roseville Inn, the man
who discovered Hill’s body, the investigating officers, medical and firearms
experts, and other witnesses.
The defense focused on suggesting that various persons other than
defendant might have killed Hill. Jason Montgomery visited Hill’s home a few
days after Christmas 1987 and saw him arguing about money with two heavy-set
“Spanish looking” men. The men had driven a white Trans Am. Montgomery
saw the same Trans Am at Hill’s house again on January 13. He described the
driver, whom he could not positively identify, as “similar” to a photograph of
Michael Ayers. On January 14, the day Hill died, Carol Grabowsky saw a stocky,
well-dressed man leaving Hill’s house about 1:00 p.m. Sometime in the early
afternoon, Robert Connors saw a young man with unkempt clothes kneeling down
on the sidewalk across from Hill’s house looking extremely nervous and
frightened. Dawn Worley saw a two-toned blue car driving away from Hill’s
house between noon and 2:00 p.m. Arthur Bracco, a mailman, saw Hill alive at
3:00 p.m., speaking with another man who stepped into the shadows to avoid
being seen. Finally, Carla Nebeker saw a man with shoulder-length hair
staggering away from Hill’s house about 6:00 or 7:00 p.m. But other witnesses
testified that Hill’s automobile repair business had caused his property to look like
a used car lot, with much traffic during the day and someone working on cars at all
times, day and night.
The defense also called Lori Bakos, who testified that William Summers
and James Baxter had bragged of shooting Hill in the head and using their knives
to remove the bullets. The two men said this, Bakos claimed, on the evening of
January 14 in Bob Bragg’s upholstery shop. But Baxter and Summers, called by
the defense as witnesses, denied this. Bakos’s story also conflicted with the
physical evidence, which showed that the single slug entering Hill’s skull had
fragmented and remained in place until the autopsy. Bakos also claimed to be “an
undercover police officer” but retracted the claim on cross-examination,
describing herself instead as an “informant.” The officers for whom she claimed
to have worked, Officers Frederick Rockholm and Tod Call, described her as
unreliable and tending to fantasize. Bakos had once reported a homicide at a
specific location, but no body could be found and her information could not be
linked with any reported crime. Officer Rockholm had on a single occasion
unsuccessfully attempted to use Bakos to make a controlled buy of narcotics. He
had not, however, contrary to Bakos’s testimony, ever asked a judge to make her a
“legal informant,” a term with which he was unfamiliar.
On rebuttal, the People further challenged Bakos’s credibility. Lieutenant
Joel Neves, who investigated Hill’s death, testified that Bakos had earlier told a
different story. On February 16, 1988, two days after Hill died, Bakos told
Lieutenant Neves, Detective Brian Wilder and Officer Darrell Stump that the
killing had resulted from a drug war between rival organizations led by Bob Bragg
and Robert Welch, and that the actual killer was Kevin Ray Pool. Bakos did not
mention Summers or claim that he and Baxter had killed Hill. Later, Bakos said
that she had allowed Pool to move in with her in order to learn more about Hill’s
murder. After a week, she retracted her claim that Pool was responsible and said
she did not know who the murderer was.
2. The Mitigating Evidence
The defense mitigating evidence, in summary, showed that defendant had
suffered serious physical and sexual abuse in childhood that affected his
development and behavior and possibly caused brain damage. Correctional
personnel and former employers testified that defendant was a good worker.
Defendant’s stepdaughter testified that he had saved her daughter’s life.
More specifically, defendant’s family lived in Tyler, California, near
Nevada City. They were extremely poor. They had little to eat and took clothing
and toys from the dump. Defendant’s father, Ralph Yeoman, called defendant a
bastard and claimed his true father was Ralph’s brother, Cliff. Ralph beat his wife
and children, including defendant, frequently and brutally. Defendant’s brother
Terry Lumsdon once saw Ralph break a two-by-four over defendant’s back and
head, and various witnesses saw him kick defendant repeatedly in the head. Ralph
sexually molested both his daughters and defendant. When defendant was nine,
Ralph attempted to penetrate him sexually. Defendant’s uncle Richard gave him
alcohol and engaged him in oral copulation. When defendant was 14, his mother
had sexual intercourse with him after finding her husband in bed with another
Dr. Mindy Rosenberg, Ph.D., a psychologist, testified extensively about
defendant’s personal and family history and its effect on his personality and
psychological development. Dr. Rosenberg explained that persons who have
experienced very serious physical, sexual and psychological abuse as children are
at greater risk for experiencing a wide range of later problems, possibly including
violent behavior. While Dr. Rosenberg would not say that defendant’s abusive
childhood had caused his criminal behavior, she did opine that the severity and
brutality of the abuse he suffered had affected him significantly.
Correctional officers and employees who had supervised defendant in
various institutions consistently testified that he was a helpful, good worker who
did not cause trouble. While in custody as a mentally disordered sex offender at
Atascadero State Hospital, defendant held responsible jobs working in an office,
helping to process new arrivals, and assisting with building maintenance. In the
latter job, defendant was cleared for access to sharp tools. While imprisoned at
Soledad State Prison, defendant worked in the kitchen and was considered
sufficiently reliable to be released for work during lock-downs. Two private
employers, both in the roofing business, also testified that defendant was a good
worker. One of these employers, David Petrali, had discussed the Bible with
defendant and believed he had a deep interest in religion.
Dr. Arthur Kowell, M.D., a neurologist, interpreted the results of a BEAM
(brain electrical activity mapping) test performed on defendant. Dr. Kowell
opined that the test results showed a dysfunction in defendant’s temporal or left
parietal lobe consistent with childhood physical abuse.
Cynthia Witt, defendant’s stepdaughter, testified that defendant had helped
to care for her young daughter Brandy during a severe illness and had saved her
life with mouth-to-mouth resuscitation. Out of gratitude, Cynthia named her son
Derek Michael after defendant.
A. Guilt Phase Issues
1. Challenges for Cause
Defendant claims the trial court deprived him of due process and a fair trial
by denying his challenges of four prospective jurors for cause.2 None of the four
sat on defendant’s jury because he peremptorily challenged each. Defendant
eventually exhausted his peremptory challenges and expressed dissatisfaction with
the jury. While the claim is thus properly before us, we may reject it without
examining the merits of defendant’s challenges for cause because defendant
cannot show prejudice.
To prevail on such a claim, defendant must demonstrate that the court’s
rulings affected his right to a fair and impartial jury. (People v. Crittenden (1994)
9 Cal.4th 83, 121.) None of the four prospective jurors could possibly have
affected the jury’s fairness because none sat on the jury. (People v. Ramos (1997)
15 Cal.4th 1133, 1159; see Ross v. Oklahoma (1988) 487 U.S. 81, 85-86.) The
harm to defendant, if any, was in being required to use four peremptory challenges
to cure what he perceived as the trial court’s error. Yet peremptory challenges are
given to defendants subject to the requirement that they be used for this purpose.
(People v. Gordon (1990) 50 Cal.3d 1223, 1248, fn. 4.) While defendant’s
compliance with this requirement undoubtedly contributed to the exhaustion of his
peremptory challenges, from this alone it does not follow that reversible error
occurred. An erroneous ruling that forces a defendant to use a peremptory
challenge, and thus leaves him unable to exclude a juror who actually sits on his
case, provides grounds for reversal only if the defendant “can actually show that
Rollend F., Larry J., Deborah P. and Laura P.
his right to an impartial jury was affected . . . .” (People v. Bittaker (1989) 48
Cal.3d 1046, 1087-1088, italics added.) In other words, the loss of a peremptory
challenge in this manner “ ‘provides grounds for reversal only if the defendant
exhausts all peremptory challenges and an incompetent juror is forced upon
him.’ ” (People v. Hillhouse (2002) 27 Cal.4th 469, 487, italics added, quoting
Ross v. Oklahoma, supra, at p. 89; cf. United States v. Martinez-Salazar (2000)
528 U.S. 304, 315-317.) Here, defendant cannot show his right to an impartial
jury was affected because he did not challenge for cause any sitting juror. No
incompetent juror was forced upon him.
2. Wheeler Motion
Defendant claims the trial court erroneously denied his motion for a
mistrial under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). In the motion,
defendant asserted the People had peremptorily challenged four African-American
prospective jurors on account of their race. The motion would more properly have
been brought as a motion to dismiss the venire, but this procedural irregularity has
not prevented us from considering similar claims in other cases. (See People v.
Williams (1997) 16 Cal.4th 635, 662, fn. 9; People v. Mayfield (1997) 14 Cal.4th
668, 722, fn. 7.)
Defendant presented his motion orally, after the 12 trial jurors had been
selected but not yet sworn. Defendant’s entire presentation on the motion
consisted of naming the four prospective jurors in question, noting their juror
numbers, occupations and race, and citing our decision in Wheeler, supra, 22
Cal.3d 258. The court deferred its ruling in order to give the motion “more than
cursory attention” and to review the record. The court thereafter entered a written
order finding no prima facie case of group bias as to three of the four prospective
jurors and directing the prosecutor to explain his reasons for challenging one.
When the prosecutor offered his explanation, the court declared itself satisfied and
denied the motion. The jury as sworn included 11 jurors who identified
themselves as “White” or “Caucasian” and one who identified himself as “Black.”
In finding that defendant had failed to demonstrate a prima facie case of
group bias as to the first three prospective jurors, the trial court did not err. Such a
demonstration entails, at the least, making as complete a record as feasible of the
relevant circumstances, establishing that the excluded persons belong to a
cognizable group, and showing that the other party has more likely than not
exercised its peremptory challenges because of group association rather than any
specific bias. (People v. Johnson (June 30, 2003, S097600) __ Cal.4th __ [pp. 6,
15, 18]; see Wheeler, supra, 22 Cal.3d 258, 280.) Defense counsel’s cursory
reference to prospective jurors by name, number, occupation and race was
insufficient. It was no more helpful to the court than the similarly cursory
presentation we held insufficient in People v. Howard (1992) 1 Cal.4th 1132,
1154, where counsel relied exclusively on the fact that the prosecutor had
challenged the only two African-American prospective jurors without making
“any effort to set out the other relevant circumstances, such as the prospective
jurors’ individual characteristics, the nature of the prosecutor’s voir dire, or the
prospective jurors’ answers to questions.”
When a trial court denies a motion under Wheeler, supra, 22 Cal.3d 258,
after finding no prima facie case of group bias, we consider the entire record of
voir dire for evidence to support the trial court’s ruling. If the record suggests
grounds upon which the prosecutor might reasonably have challenged the
prospective jurors in question, we affirm. (People v. Johnson, supra, __ Cal.4th
__ [p. 28]; People v. Howard, supra, 1 Cal.4th 1132, 1155.)
Here, the record does indicate grounds on which the prosecutor might
reasonably have challenged each of the three prospective jurors as to which the
trial court found no prima facie case of group bias. While each of the three
prospective jurors gave appropriate answers to oral questions intended to confirm
his or her willingness to follow the court’s instructions and to vote for the death
penalty if appropriate, each prospective juror’s written responses to the jury
questionnaire might reasonably have caused the prosecutor to prefer other jurors.
For example, Prospective Juror Margaret B., a 42-year-old surgical nurse,
indicated on her questionnaire that she “would not like to sit as a juror,” “cannot
judge another,” and felt “frustrated” that “the Supreme Court is far to the right.”
Theresa H., a 32-year-old computer system administrator, indicated on her
questionnaire that she had not favored the 1978 initiative reinstating the death
penalty, and that the causes of and solution to “crime problems,” respectively,
were “haves and have nots” and the “possibility of socialism.” Vera Mae M., a
52-year-old seamstress, left blank several of the questions intended to explore her
attitudes towards crime and capital punishment, including the questions “What is
your attitude towards the death penalty?” and “Did you favor the 1978 Briggs
Initiative which reinstated the death penalty in California?” Because the record
suggests these race-neutral reasons why the prosecutor might reasonably have
preferred other jurors, the trial court’s decision not to find a prima facie case as to
these prospective jurors must be affirmed. (People v. Howard, supra, 1 Cal.4th
Defendant disputes this conclusion, asserting that jurors and prospective
jurors the prosecutor did not challenge gave responses comparable to those he did
challenge. Defendant did not, however, present a comparative juror analysis to the
trial court. We recently reaffirmed in People v. Johnson, supra, __ Cal.4th __
[pp. 19-27], our understanding that a reviewing court should not attempt its own
comparative juror analysis for the first time on appeal.
Turning to the single prospective juror as to whom the trial court did find a
prima facie case, we find no flaw in the trial court’s subsequent determination that
the People’s peremptory challenge was based on factors other than group bias.
The prospective juror in question was Isaac J., a 43-year-old correctional officer at
the California Medical Facility at Vacaville. Concerning Isaac J., the prosecutor
explained that he had “opted towards jurors, all twelve in that box, who have
stronger death penalty views.” Isaac J., the prosecutor explained, had not
answered written questions intended to explore his attitude toward the death
penalty and had testified on voir dire that he had not given the subject much
thought. For the trial court to accept this explanation was reasonable because the
record supported the prosecutor’s assertions about the prospective juror’s
responses, and because the prospective juror’s apparent ambivalence towards the
death penalty had been the exclusive subject of the prosecutor’s questions to him
on voir dire.
For the first time on appeal, defendant asserts a claim under Batson v.
Kentucky (1986) 476 U.S. 79 (Batson), in which the high court held that the equal
protection clause of the Fourteenth Amendment to the United States Constitution
forbids prosecutors to exclude prospective jurors on account of their race. In the
trial court, defendant cited only Wheeler, supra, 22 Cal.3d 258, which interprets
the representative cross-section requirement of article I, section 16 of the
California Constitution. (Wheeler, supra, at pp. 276-277.) The People contend
defendant waived his federal claim by failing to raise it below. The decisions in
People v. Garceau (1993) 6 Cal.4th 140, 173, and People v. Ashmus (1991) 54
Cal.3d 932, 987, support the People’s position. In more recent cases, however, we
have not held that defendants waived Batson claims by citing only Wheeler at
trial. Instead, we have simply observed that Wheeler and Batson articulate the
same standard and, after deciding the Wheeler claim on its merits, rejected the
Batson claim as moot. (People v. Farnham (2002) 28 Cal.4th 107, 139, fn. 11;
People v. Catlin (2001) 26 Cal.4th 81, 117, fn. 4.) More recently, in People v.
Johnson, supra, __ Cal.4th __, we reached the merits of the defendant’s Batson
claim without suggesting that he somehow forfeited that claim by failing to cite
Batson at trial.
Consistently with these recent cases, we believe that to consider
defendant’s claim under Batson, supra, 476 U.S. 79, is more consistent with
fairness and good appellate practice than to deny the claim as waived. As a
general matter, no useful purpose is served by declining to consider on appeal a
claim that merely restates, under alternative legal principles, a claim otherwise
identical to one that was properly preserved by a timely motion that called upon
the trial court to consider the same facts and to apply a legal standard similar to
that which would also determine the claim raised on appeal. Defendant’s Batson
claim is of that type. His motion under Wheeler, supra, 22 Cal.3d 258, required
the trial court to conduct the same factual inquiry required by Batson into the
possibly discriminatory use of peremptory challenges, and to apply a standard
identical to Batson’s for determining whether defendant had stated a prima facie
case. (See People v. Johnson, supra, __ Cal.4th __ [pp. 11-18].) Under these
circumstances, the Batson claim is properly cognizable on appeal by analogy to
the well-established principle that a reviewing court may consider a claim raising a
pure question of law on undisputed facts. (E.g., People v. Hines (1997) 15 Cal.4th
997, 1061; Hale v. Morgan (1978) 22 Cal.3d 388, 394; Ward v. Taggart (1959) 51
Cal.2d 736, 742.) While defendant does dispute the trial court’s resolution of the
factual issues underlying his Batson claim (i.e., whether he stated a prima facie
case and whether the prosecutor’s explanation was adequate), the same factual
issues are properly before us already because of defendant’s timely Wheeler
motion. Under these circumstances, to consider the Batson claim entails no
unfairness to the parties, who had an opportunity to litigate the relevant facts and
to apply the relevant legal standard in the trial court.3 Nor does it impose any
additional burden on us, as the reviewing court. Accordingly, we may properly
consider defendant’s Batson claim on the merits. Doing so, we conclude it fails
for the same reason his Wheeler claim fails.
Defendant’s unelaborated citations to the Fifth, Sixth and Eighth
Amendments to the United States Constitution add nothing to his argument.
Holland v. Illinois (1990) 493 U.S. 474, which defendant also cites, provides no
conceivable support for his objection to the People’s use of peremptory
challenges. In Holland, which has been applied retroactively (Bell v. Baker (6th
Cir. 1992) 954 F.2d 400, 401-402, cert. den. (1992) 506 U.S. 984), the high court
held that the Sixth Amendment does not preclude litigants from using their
peremptory challenges to exclude members of cognizable racial groups from petit
3. Motion for Additional Peremptory Challenges
Defendant moved at trial for additional peremptory challenges to replace
those he had used to dismiss the prospective jurors he unsuccessfully challenged
for cause. (See ante, at p. 16 et seq.) The trial court denied the motion. We
perceive no error. To be sure, we have observed that “an erroneous denial of a
challenge for cause can be cured by giving the defendant an additional peremptory
challenge.” (People v. Bittaker, supra, 48 Cal.3d 1046, 1088.) Yet, while a trial
“The general rule confining the parties upon appeal to the theory advanced
below is based on the rationale that the opposing party should not be required to
defend for the first time on appeal against a new theory that ‘contemplates a
factual situation the consequences of which are open to controversy and were not
put in issue or presented at the trial.’ [Citation.]” (Ward v. Taggart, supra, 51
Cal.2d 736, 742.)
court that was convinced it had erred might well grant additional peremptory
challenges, the mere claim of error cannot reasonably be thought sufficient to
compel the court to do so. Otherwise, the number of peremptory challenges a trial
court must allow would be limited only by the number of challenges for cause a
party was willing to assert, regardless of merit. In another context, we have held
that “to establish [a] constitutional entitlement to additional peremptory
challenges . . . , a criminal defendant must show at the very least that in the
absence of such additional challenges he is reasonably likely to receive an unfair
trial before a partial jury.” (People v. Bonin (1988) 46 Cal.3d 659, 679 [rejecting
a claim of error based on the trial court’s refusal to allow additional peremptory
challenges to redress the effects of pretrial publicity].) We see no reason the same
standard should not apply in this context. Applying that standard, we conclude
defendant cannot show the trial court’s failure to allow additional peremptory
challenges caused him to receive an unfair trial, because he did not challenge any
sitting juror for cause.
Defendant also claims the trial court should have granted him additional
peremptory challenges to redress what he describes as the court’s error under
Wheeler, supra, 22 Cal.3d 258, and Batson, supra, 476 U.S. 79. The claim lacks
merit, because the court did not err. (See ante, at p. 17 et seq.) Defendant’s
unelaborated citations to the Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution in support of this claim add nothing to his
4. Motion for Separate Guilt and Penalty Phase Juries
Before trial, defendant asked the court to empanel separate juries for the
guilt and penalty phases of his trial. The court exercised its discretion to deny the
request. (See People v. Rowland (1992) 4 Cal.4th 238, 268.) Defendant contends
the court thereby abused its discretion and prejudiced the defense by forcing it to
disclose information about his prior offenses in voir dire, thus biasing the jury
against him at the guilt phase.
The claim lacks merit. Certainly a court has the power to empanel separate
juries for the various phases of a capital case “for good cause shown.” (§ 190.4,
subd. (c).) Yet the Legislature has expressed a preference for a single jury (ibid.),
and we have repeatedly held that defense counsel’s desire to conduct voir dire one
way for the guilt phase and another for the penalty phase does not constitute good
cause for separate juries. (People v. Rowland, supra, 4 Cal.4th 238, 268; People v.
Nicolaus (1991) 54 Cal.3d 551, 573-574.) Contrary to defendant’s assertion,
California law does not force capital defendants to mention their criminal history
during voir dire. The decision whether to use voir dire to probe the prospective
jurors’ attitudes about other offenses that may be introduced at the penalty phase is
just one of the difficult tactical decisions counsel routinely faces. (People v.
Nicolaus, supra, at p. 573.)
Defendant distinguishes our prior decisions. (People v. Rowland, supra, 4
Cal.4th 238, 268; People v. Nicolaus, supra, 54 Cal.3d 551, 573-574.) In those
decisions, he contends, “defense counsel chose to forgo complete voir dire rather
than risk polluting the guilt phase jury with other crimes evidence.” Here, defense
counsel made the opposite decision. Thus, “for the first time,” defendant
continues, “this Court is in a position to assess the prejudice which flows from
defense counsel’s decision to conduct complete voir dire at the cost of polluting
the guilt phase jury.” The argument is not persuasive. The teaching of People v.
Nicolaus is simply that the decision whether to use voir dire to probe prospective
jurors’ attitudes towards a defendant’s other offenses is a tactical one entrusted to
counsel’s good judgment. Counsel’s decision to use voir dire in this way does not
transform into an abuse of discretion the court’s proper order denying separate
Defendant also contends that the trial court, by refusing to empanel separate
guilt and penalty phase juries, denied him due process and the right to a jury trial.
(See U.S. Const., 5th, 6th, 8th & 14th Amends.) Defendant relies on Leonard v.
United States (1964) 378 U.S. 544 (per curiam) and Johnson v. Armontrout (8th
Cir. 1992) 961 F.2d 748. But those cases involved jurors who had been exposed
to information about the defendants’ criminality outside of the proceedings in
which they were empanelled. In Leonard v. United States, the prospective jurors
had been permitted to observe a trial in which the defendant was convicted of a
related charge. The United States Supreme Court reversed the conviction in a
brief opinion based on the Solicitor General’s concession of error. (Leonard v.
United States, supra, at p. 545.) In Johnson v. Armontrout, 10 of the prospective
jurors and four of the trial jurors had recently rendered a verdict of guilt against
the defendant’s accomplice in another proceeding. The Eighth Circuit vacated the
conviction because the petitioner on habeas corpus proved, among other things,
that two jurors had harbored actual bias against him. (Johnson v. Armontrout,
supra, at pp. 754, 756.) These decisions suggest no basis for reversing a verdict
rendered by presumably impartial jurors whose knowledge of the facts of the case
Defendant does not claim that counsel’s tactical decision to inform the
prospective jurors of defendant’s prior offenses deviated from the standard of care
expected of criminal defense attorneys. To the contrary, he concedes that “[i]t was
necessary to pose the question in order to ferret out attitudes which would have
otherwise affected the penalty phase judgment.” He also concedes that the
exercise did succeed in producing information relevant to jury selection.
According to defendant, the prospective jurors’ answers to the question gave
reason to exclude many, and “[n]o person served on the jury who expressed a
prejudgment based on the defendant’s prior record.”
derived solely from information properly presented in the proceeding in which
they have been sworn.
5. Admission of Evidence Concerning the Robbery of Geraldine Ford
to Prove Identity and Intent
Defendant contends the court erred in admitting evidence that he robbed
and attempted to kidnap Geraldine Ford. We find no error.
The evidence relevant to this claim has already been summarized. (See
ante, at p. 6 et seq.) Very briefly, defendant approached Ford in the parking lot of
a department store, offering to change her car’s flat tire. The repair completed,
Ford thanked defendant and stood at the open door of her car. Defendant held a
gun and a knife to her stomach and ordered her into his truck. Ford fled, and
defendant took her purse from the driver’s seat of her car. The People offered this
evidence to show the intent and identity of Doris Horrell’s killer. (Evid. Code,
§ 1101, subd. (b).) The defense moved to exclude the evidence as inadmissible
character evidence (see id., § 1101, subd. (a)) and also as posing a danger of unfair
prejudice substantially outweighing any probative value (see id., § 352). The
court denied the motion.
Defendant’s identity as Horrell’s killer “was never seriously questioned,” as
defendant concedes. The defense did, however, earnestly challenge the People’s
theory that defendant formed the intent to rob Horrell before killing her. The
People were required to prove that defendant harbored such an intent in order to
establish the robbery-murder special circumstance. (People v. Musselwhite (1998)
17 Cal.4th 1216, 1263; § 190.2, subd. (a)(17)(A).) To rebut the People’s theory
was the purpose of the defense evidence that defendant was under the influence of
methamphetamine when he killed Horrell, and of the defense cross-examination of
Debra Stafford, who had testified on direct examination that defendant said he had
stopped for Horrell “[b]ecause she was dressed nice and she looked like she might
have some money.”
Recognizing the importance of the issue to both sides, we nevertheless
readily conclude the trial court properly exercised its discretion to admit
defendant’s conduct against Geraldine Ford in order to show his intent to rob
Doris Horrell. Defendant contends the crimes against Ford bore insufficient
common features to be probative of intent. To be admissible to show intent,
however, the prior conduct and the charged offense need only be sufficiently
similar to support the inference that defendant probably harbored the same intent
in each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) As the trial court
here explained, defendant’s use of a “good Samaritan ploy” to rob and attempt to
kidnap Ford, a stranded female motorist, was sufficiently similar to his later
conduct against Horrell to support the inference that he probably harbored a
similar intent to rob Horrell when he stopped for her on the freeway. The
probative value of defendant’s prior conduct against Ford was, moreover,
sufficient to outweigh any risk of unfair prejudice. (See Evid. Code, § 352.)
Challenging these conclusions, defendant argues that his conduct against
Ford shows only an intent to kidnap, not to rob. Although he took Ford’s purse,
defendant argues, he must have taken it from the driver’s seat of her car after she
fled and, thus, not from her immediate presence or while she still was under force
or fear, as required for robbery. His conduct and words before Ford fled,
defendant continues, show nothing more than an effort to force her into his truck,
leaving the purse on the front seat of her car. Assuming for the sake of argument
that defendant’s interpretation of the evidence is plausible, at least equally
plausible is the alternative inference that an assailant holding a gun and a knife to
his victim’s stomach may intend to control her while simultaneously reaching a
few feet for valuable property. Ford testified that the purse was within reach as
she stood at the car’s open door. Certainly the inference that one of defendant’s
reasons for approaching Ford was to take her property by force or fear was strong
enough to support the court’s discretionary decision to permit the jury to consider
The trial court also admitted the evidence of defendant’s attack on Ford to
show the identity of Doris Horrell’s killer. To be admissible to show identity, the
prior conduct and the charged offense must share common features that are
sufficiently distinctive to support the inference that the same person committed
both acts. (People v. Ewoldt, supra, 7 Cal.4th 380, 403.) The degree of similarity
required to show identity is thus higher than that required to show intent. (Id., at
pp. 402-403.) Here, the People argued that sufficient common features resided in
the evidence already mentioned (i.e., defendant’s use of a good Samaritan ploy to
attempt to kidnap female motorists with car trouble), together with the additional
evidence that defendant, on both occasions, used the same truck and gave to
female friends items of jewelry taken from the victims. We need not decide
whether these common features sufficed to show identity. The court’s ruling
admitting the evidence for that purpose, even if erroneous, could not have
prejudiced defendant because the same evidence was properly admitted to show
intent and because defendant concedes that his identity as Horrell’s killer “was
never seriously questioned.”
Turning to federal law, defendant contends that the trial court’s decision to
admit his prior bad acts against Ford was arbitrary and fundamentally unfair, and
thus violated due process. (See Terranova v. Kincheloe (9th Cir. 1988) 852 F.2d
424, 428-429.) 5 Defendant advanced essentially the same claim at trial, where he
Of tangential relevance only are the other authorities defendant cites. (In re
Winship (1970) 397 U.S. 358, 362-364 [due process requires proof beyond a
(footnote continued on next page)
argued that to admit the Ford incident would violate due process because it would
permit the jury to find him guilty on insufficient evidence, and that any such error
would affect the reliability of the penalty phase verdict. In support of his position
defendant repeats his previous citations to the Sixth, Eighth and Fourteenth
Amendments to the United States Constitution and adds an unelaborated citation
to the Fifth Amendment. We reject the argument because the trial court’s decision
to admit the evidence was correct under state law (Evid. Code, §§ 352, 1101, subd.
(b); see People v. Ewoldt, supra, 7 Cal.4th 380, 402-403), was neither arbitrary
nor fundamentally unfair, and did not render the death verdict unreliable.
6. Claims Based on Geraldine Ford’s Identification of Defendant
a. Suggestive lineup
Defendant asserts that a suggestive photographic lineup tainted Geraldine
Ford’s identification of him as her assailant. On this basis, he claims the trial
court erred in denying his motion in limine to exclude Ford’s out-of-court
identification and in permitting her to identify him in court. We perceive no error.
Due process requires the exclusion of identification testimony only if the
identification procedures used were unnecessarily suggestive and, if so, the
resulting identification was also unreliable. (Manson v. Brathwaite (1977) 432
U.S. 98, 106-114; Neil v. Biggers (1972) 409 U.S. 188, 196-199; see People v.
Cunningham (2001) 25 Cal.4th 926, 989.) Defendant has not shown that the
identification procedures used in this case were unnecessarily suggestive.
(footnote continued from previous page)
reasonable doubt of criminal charges]; Brinegar v. United States (1949) 338 U.S.
160, 174 [same]; People v. Alcala (1984) 36 Cal.3d 604, 630-636 [reversing a
criminal conviction because admission of other-crimes evidence was prejudicial
under the circumstances of the case].)
The following summary of the facts is drawn from the evidence presented
at the hearing on defendant’s motion in limine to exclude Ford’s identification
testimony. On January 4, 1988, the day Ford was robbed, she observed defendant
for 10 to 15 minutes while he changed her car’s flat tire and then confronted her
with weapons. It was just starting to get dark, and the lights in the parking lot
were on. Detective Craig Trimble met with Ford the next day, January 5, to
review her prior statement to the responding officer. At that time, Ford helped to
make a composite sketch of her assailant and mentioned that his left hand bore a
On January 8, Trimble showed Ford about 150 photographs in mug shot
books. She did not, however, identify any possible suspects. On February 3, Ford
called Trimble to say she had seen in the newspaper a photograph of a person who
was wanted by the Sacramento Police and who, she thought, might be the person
who had attacked her. The photograph was of Lowell Mugridge, also known as
Dan Bennett. On February 17, Trimble showed Ford a lineup of five color
photographs. The fourth photograph was of defendant and was at least a year, or a
year and a half, old. Ford did not identify anyone as a suspect. In preparing the
lineup, Trimble did not include a photograph of Mugridge because Ford had
already seen his picture in a mug book on January 8 but had not identified him.
On March 18, Trimble showed Ford a second lineup of five color photographs.
This lineup included, again in the fourth position, a different, more recent
photograph of defendant taken after his arrest for the murder of Doris Horrell on
February 16. After viewing this lineup, Ford identified defendant as her assailant.
In selecting the fourth image, Ford told Trimble, “[t]his person here looks just like
him except for the way his hair is combed. His facial features are the same and
color of the hair is the same.” Trimble did not tell Ford she had selected the right
person. Trimble also showed Ford a photograph of the back of defendant’s hands,
but Ford was unable positively to identify the flower tattoo in the photograph as
the one she had seen. Trimble did not tell Ford that the hands in the photograph
belonged to the same person she had selected in the lineup. Before each lineup,
Trimble admonished Ford that the suspect’s photograph might or might not be
included and that she should not feel obligated to choose one. Trimble never
suggested or intimated by word or gesture that Ford should pick a particular
We perceive nothing unduly suggestive in the identification procedures just
described. To determine whether a procedure is unduly suggestive, we ask
“whether anything caused defendant to ‘stand out’ from the others in a way that
would suggest the witness should select him.” (People v. Carpenter (1997) 15
Cal.4th 312, 367, quoting People v. Johnson (1992) 3 Cal.4th 1183, 1217.)
Defendant emphasizes that his image appeared in both lineups, each time in the
fourth position. To use a suspect’s image in successive lineups might be
suggestive if the same photograph were reused or if the lineups followed each
other quickly enough for the witness to retain a distinct memory of the prior
lineup. But here, different photographs of defendant appeared in each lineup, and
the two lineups were separated in time by a month. Under these circumstances we
see no reason to believe that the use or position of defendant’s image in both
lineups was unnecessarily suggestive.6 Defendant seems to argue that any further
We have inspected the two lineups, which were admitted as defendant’s
exhibits M-19-A and M-19-B-1 through 5. Each lineup consists of five identically
sized photographs of Caucasian males of apparently similar age and with similar
facial features. Four of the men depicted in the original color photographs that
comprise exhibits M-19-B-1 through 5 (the March 18 lineup) appear to have
similarly colored light red hair. One man has grey hair. Hair color is not evident
in exhibit M-19-A, which is a black-and-white photocopy of the February 17
(footnote continued on next page)
attempt to elicit a positive identification of a particular suspect from an eyewitness
who does not identify the suspect from the first photograph shown must be
considered unduly suggestive. But no such rule exists. Defendant also argues that
the lineups in this case were unnecessarily suggestive because Detective Trimble
did not include in them a photograph of Mugridge, whom Ford had named as a
possible suspect. But this omission has no apparent significance, since no
evidence suggests, and defendant has never claimed, that Mugridge actually
committed the crime against Ford.
Our determination that the identification procedures used here were not
unnecessarily suggestive disposes of defendant’s claim under due process. Only if
the challenged identification procedure is unnecessarily suggestive is it necessary
to determine the reliability of the resulting identification. (People v. Johnson,
supra, 3 Cal.4th 1183, 1216; People v. Gordon, supra, 50 Cal.3d 1223, 1242.)
Defendant also contends that Ford’s identification of him was tainted by
her attendance, in September 1988, at a portion of his preliminary hearing for the
murder of Doris Horrell. As the trial court below expressly found, however,
Ford’s attendance at the September hearing has no conceivable bearing on the
accuracy of her identification of defendant in the March lineup, six months earlier,
or on the dispositive question of whether the lineups were unduly suggestive.
(footnote continued from previous page)
lineup. The color photographs show their subjects against identical blue
During the motion in limine to exclude Ford’s identification testimony, the
trial court stated that the different photographs of defendant used in the two
lineups appeared to show “two different human beings.” In fact, the two
photographs are significantly different. In the February 17 lineup, defendant is
wearing different clothes than in the March 18 lineup, has a different facial
expression and appears to be looking down at the camera.
Ford’s attendance at the September hearing might conceivably have affected her
identification of defendant in court. But testimony at defendant’s motion in limine
revealed that Ford had not been called as a witness at the preliminary hearing, had
attended on her own volition and not at the direction of the People, and had seen
defendant’s back only. Ford’s unilateral decision to attend does not implicate the
rule of Manson v. Brathwaite, supra, 432 U.S. 98, and Neil v. Biggers, supra, 409
U.S. 188, which speaks only to suggestive identification procedures employed by
the People. Thus, Ford’s attendance at the hearing affects only the weight, rather
than the admissibility, of her testimony. Because the court properly permitted the
defense to cross-examine her on this matter before the jury, we see no plausible
claim of error.
b. Sanction for loss of original photographs
The People lost the original color photographs that formed the lineup of
February 17; only a black-and-white photocopy was available for trial. As a
sanction for the original photographs’ loss, defendant asked the trial court to
exclude Ford’s identification testimony. Defendant later changed his request to
one for an instruction that the missing original photograph from the first lineup,
which Ford did not identify, showed a likeness of defendant that was “as good or
better” than the photograph Ford subsequently identified on March 18. The trial
court rejected all of these proposed sanctions as unduly severe because no
evidence suggested the loss was intentional or showed bad faith, because the
People had conducted a search for the originals, and because a photocopy was
available. The trial court did, however, instruct the jury that the People would not
be permitted to suggest that Ford had failed to identify defendant from the lost
photograph because it was a poor likeness, and that it would be unfair for the jury
to draw any such conclusion.
In these rulings we find no error. “[C]ourts enjoy a large measure of
discretion in determining the appropriate sanction that should be imposed because
of the destruction of discoverable records and evidence. ‘[N]ot every suppression
of evidence requires dismissal of charges. . . . The remedies to be applied need be
only those required to assure the defendant a fair trial.’ ” (People v. Zamora
(1980) 28 Cal.3d 88, 99.) Despite the loss of the original photographs, the defense
successfully proved with the photocopy and through the testimony of Detective
Trimble that Ford had failed to identify defendant on February 17. The court’s
remedial rulings barred the People from attempting to rebut the defense evidence
by arguing that the original photograph was not a good likeness of defendant. On
this record, we see no reason to doubt that defendant received a fair trial.
Assuming for the sake of argument that the sanction actually imposed was
insufficient, the hypothetical error could not have caused prejudice. This is true
even if, as defendant argues, we must evaluate prejudice under the standard of
Chapman v. California (1967) 386 U.S. 18, based on the assumption that the
People’s loss of the original photographs implicated defendant’s due process
rights. (See U.S. Const., 14th Amend.) In support of this argument, defendant
cites Arizona v. Youngblood (1988) 488 U.S. 51 and California v. Trombetta
(1984) 467 U.S. 479, both of which recognize the People’s obligation to preserve
potentially exculpatory evidence.
The evidence identifying defendant as Ford’s attacker, even disregarding
Ford’s identification testimony, easily justifies the conclusion that the trial court’s
failure to impose the harsher sanctions proposed by the defense was harmless
beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18, 24.)
Patricia Weers, to whom defendant gave Ford’s distinctive diamond and pearl
ring, testified that defendant said he had gotten the ring from a woman who
worked for the California Highway Patrol and he wanted it back “because it could
incriminate him in a crime.” Police eventually recovered the ring from Debbie
Yoast, who had bought it from Weers. Ford’s telephone bill showed calls to
defendant’s friend Ron Kegg, made on a Sprint card Ford had never used. When
Detective Trimble told defendant he “was investigating a robbery that occurred at
the Target Store on Madison Avenue on or about January 4” and “had a lead
concerning the use of the victim’s Sprint card,” defendant replied, “[y]ou are on
the right track.” Finally, Ford identified a photograph of defendant’s camper as
the one on her assailant’s pickup truck. In view of this evidence, which left no
serious doubt that defendant was Ford’s assailant, the trial court’s failure to
impose the harsher sanctions proposed by the defense was harmless beyond a
7. Sufficiency of the Evidence
Defendant claims the People did not introduce sufficient evidence to prove
the robbery-murder special circumstance. (§ 190.2, subd. (a)(17)(A).) The claim
In order to prove the special circumstance, the People had to prove that
defendant formed the intent to steal before or while killing Doris Horrell. (People
v. Sakarias (2000) 22 Cal.4th 596, 618-619; People v. Green (1980) 27 Cal.3d 1,
52-53.) The relevant evidence showed that defendant left Ron Kegg’s apartment
shortly before the killing, telling Debra Stafford that he had to get some money.
Defendant then stopped on the highway for Horrell, a well-dressed, stranded
motorist, taking her purse, jewelry, coat, house keys and bank cards before
abandoning her body. Shortly thereafter, defendant explained to Stafford that he
had stopped for Horrell “[b]ecause she was dressed nice and looked like she might
have some money.”
This evidence sufficed. When “one kills another and takes substantial
property from the victim, it is ordinarily reasonable to presume the killing was for
purposes of robbery.” (People v. Turner (1990) 50 Cal.3d 668, 688.) Here,
defendant took valuable property from the victim and had no other apparent
reason for killing her. The defense attempted to supply another reason with Dr.
Rosenthal’s opinion testimony that the killing was an irrational act caused by
defendant’s use of methamphetamine. But the jury was not required to accept the
witness’s opinion. In any event, the defense theory that defendant killed
irrationally and only later decided to steal was contradicted by the evidence that he
intentionally selected a vulnerable, well-dressed victim, took valuable property
and immediately afterwards destroyed evidence linking himself to the crime. The
testimony that defendant had recently committed a similar crime against another
stranded motorist (Ford) provided additional circumstantial evidence that his
purpose in stopping for Horrell was to steal.
Although a jury must acquit if it finds the evidence susceptible of a
reasonable interpretation favoring innocence, it is the jury rather than the
reviewing court that weighs the evidence, resolves conflicting inferences and
determines whether the People have established guilt beyond a reasonable doubt.
(People v. Millwee (1988) 18 Cal.4th 96, 132.) When our examination of the
whole record discloses evidence that is sufficiently reasonable, credible and of
such solid value as to permit a reasonable trier of fact to find the defendant guilty
beyond a reasonable doubt, we must affirm. (People v. Johnson (1980) 26 Cal.3d
557, 578.) The record in this case does disclose sufficient evidence, as we have
The same conclusion disposes of defendant’s claim under the due process
clause of the United States Constitution, which bars criminal convictions except
on proof sufficient to establish guilt beyond a reasonable doubt. (In re Winship,
supra, 397 U.S. 358, 362-364; see U.S. Const., 14th Amend.) Defendant also
cites the Fifth, Sixth and Eighth Amendments in support of this claim, but he does
not explain how any of those provisions might support a conclusion different than
we now reach.
8. Failure to Instruct on Theft
Defendant contends the trial court erred in declining his request for an
instruction on theft from a dead human body (§ 642) and in failing to instruct the
jury sua sponte on theft (§ 484), a lesser included offense of robbery. The former
ruling does not support a claim of error. Assuming for the sake of argument the
latter does, we find no possibility of prejudice.
At the conclusion of the guilt phase, the trial court instructed the jury on
robbery (§ 211), murder (§ 187), the robbery-murder special circumstance (190.2,
subd. (a)(17)(A)), various lesser included offenses of murder and other matters not
relevant to this discussion. The court declined to instruct on theft from a dead
human body, explaining that nothing “in the evidence . . . suggests less than
robbery.” The court did, however, instruct the jury that “[r]obbery requires proof
of an intent to steal before or during the application of force, rather than merely
after the application of force. Further, there is no robbery if the intent to steal
arises only after the possessor of the property is dead; that is, the intent to steal did
not arise before or during the act of killing.” Applying these instructions, the jury
convicted defendant of robbery and murder, and found the robbery-murder special
The trial court’s failure to instruct on theft from a dead human body (§ 642)
does not support a claim of error. That offense is not included within robbery, and
a defendant has no unilateral right to an instruction on an uncharged offense that is
not necessarily included within a charged offense. (People v. Birks (1998) 19
Cal.4th 108, 136.) While theft from a dead human body might have been
sufficiently related to robbery to have permitted an instruction under the reasoning
of People v. Geiger (1984) 35 Cal.4th 510, we retroactively overruled Geiger in
People v. Birks, supra, at page 113.
Theft (§ 484), on the other hand, is a lesser offense necessarily included
within robbery. (People v. Ortega (1998) 19 Cal.4th 686, 693-694; People v.
Bradford (1997) 14 Cal.4th 1005, 1055.) Defendant did not, however, specifically
request an instruction on theft, as distinguished from theft from a dead human
body. A duty to instruct sua sponte on a lesser included offense arises only when
evidence exists that would justify a conviction on the lesser offense. (People v.
Bradford, supra, at p. 1055.) In defendant’s view, the record does contain
evidence showing he first formed the intent to take property from Doris Horrell
only after she had died and, thus, was guilty only of theft rather than robbery.
Defendant would find such evidence primarily in the testimony of defense expert
Dr. Rosenthal, who testified that defendant probably killed Horrell under the
influence of methamphetamine and that advanced levels of methamphetamine
intoxication can render a user unable to formulate so complex a plan as to pose as
a good Samaritan for the purpose of killing a stranded motorist and taking her
Assuming for the sake of argument this evidence sufficed to require an
instruction on theft, the trial court’s failure to give such an instruction could not
have caused prejudice. This is because the court instructed the jury that “[r]obbery
requires proof of an intent to steal before or during the application of force, rather
than merely after the application of force. Further, there is no robbery if the intent
to steal arises only after the possessor of the property is dead; that is, the intent to
steal did not arise before or during the act of killing.” By finding defendant guilty
of robbery despite this instruction, the jury must have resolved against him the
question whether he formed the intent to steal only after Horrell died. Therefore,
any hypothetical error was harmless. (See People v. Turner, supra, 50 Cal.3d 668,
690-691; see also People v. Sedeno (1974) 10 Cal.3d 703, 721.)
Even though the jury must have resolved the question of intent against him
under the proper instruction just quoted, defendant contends the trial court
nevertheless erred under Beck v. Alabama (1980) 447 U.S. 625. The decision in
Beck has nothing to do with this case. In Beck, the United States Supreme Court
held that an Alabama law barring instructions on lesser included offenses of
capital murder violated the Eighth and Fourteenth Amendments to the United
States Constitution. (Beck, supra, at pp. 627, 637-638.) California law is not
similar. Moreover, the trial court below did instruct on several lesser included
offenses of capital murder, including second degree murder, voluntary
manslaughter and involuntary manslaughter. Because the jury thus “was not faced
with an all-or-nothing choice between the offense of conviction (capital murder)
and innocence,” the “central concern of Beck simply is not implicated.” (Schad v.
Arizona (1991) 501 U.S. 624, 647; see also People v. Hawkins (1995) 10 Cal.4th
920, 953-954.) In any event, the high court in Beck did not purport to require
instructions on lesser included offenses of crimes other than capital murder. (See
Beck, supra, at p. 637.)
9. Instructions on Suppression of Evidence and Conscious Possession
of Recently Stolen Property
The trial court instructed the jury in the language of CALJIC No. 2.06 that
an attempt by defendant to suppress evidence tended to show consciousness of
guilt but was, by itself, insufficient to prove guilt.7 The court also instructed, in
The court instructed: “If you find the defendant attempted to suppress
evidence against himself in any manner such as by destroying evidence or
(footnote continued on next page)
language based on CALJIC No. 2.15, that conscious possession of recently stolen
property did not by itself permit the inference that defendant was guilty of
robbery, but did permit such an inference if corroborating evidence existed.8
Defendant objected to both instructions.
Defendant does not contend that these instructions lacked a sufficient
evidentiary basis. He does, however, argue they violated People v. Wright (1988)
45 Cal.3d 1126, 1137, in which we disapproved argumentative instructions that
imply certain conclusions from specified evidence. We rejected the same claim as
to CALJIC No. 2.06 in People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224, and
see no reason to reconsider the point. We have not previously considered the
claim that CALJIC No. 2.15 violates People v. Wright, supra, 45 Cal.3d 1126.
Considering the claim now, we find that the instruction has a proper purpose
rather than the argumentative purpose condemned in Wright. Among other things,
CALJIC No. 2.15 informs the jury that conscious possession of recently stolen
(footnote continued from previous page)
concealing evidence, such attempt may be considered by you as a circumstance
tending to show a consciousness of guilt. In other words, circumstantial evidence.
[¶] However, such conduct is not sufficient by itself to prove guilt, and its weight
and significance, if any, are matters for your consideration.”
The court instructed: “If you find that a defendant was in conscious
possession of recently stolen property, the fact of such possession is not by itself
sufficient to permit an inference that the defendant, in this case, Mr. Yeoman, is
guilty of the robbery of that recently stolen property. [¶] Before guilt of that
offense, of robbery may be inferred, there must be corroborating evidence tending
to prove the defendant’s guilt. However, this corroborating evidence need only be
slight and need not by itself be sufficient to warrant an inference of guilt of the
robbery. [¶] As corroboration, you may consider the attributes of the possession,
the time, place, manner of the possession, whether or not the defendant had an
opportunity to commit the crime charged, the defendant’s conduct, or any other
evidence which tends to connect the defendant with the crimes charged.”
property is insufficient, without corroboration, to sustain a conviction. “If the
court tells the jury that certain evidence is not alone sufficient to convict, it must
necessarily inform the jury, either expressly or impliedly, that it may at least
consider the evidence. Nothing in Wright affects such an instruction.” (People v.
Kelly (1992) 1 Cal.4th 495, 531-532.)
Defendant also contends that CALJIC Nos. 2.06 and 2.15 violate due
process because they create mandatory inferences or conclusive presumptions that
shift, in effect, the People’s burden of proof to the defense. (See generally
Sandstrom v. Montana (1979) 442 U.S. 510, 521-524.) We have previously
rejected the contention because the instructions in question permit, but clearly do
not require, the jury to draw the inferences described therein. (See People v.
Jackson, supra, 13 Cal.4th 1164, 1223-1224 [upholding CALJIC No. 2.03]; see
also People v. Holt (1997) 15 Cal.4th 619, 676-677 [upholding CALJIC No. 2.15];
People v. Johnson (1993) 6 Cal.4th 1, 37 [same].)
Defendant also claims that CALJIC Nos. 2.06 and 2.15 violate due process
even if seen as creating permissive inferences. But “[a] permissive inference
violates the Due Process Clause only if the suggested conclusion is not one that
reason and common sense justify in light of the proven facts before the jury.”
(Francis v. Franklin (1985) 471 U.S. 307, 314-315; see Ulster County v. Allen
(1979) 442 U.S. 140, 157-163.) Here, reason and common sense amply justified
the suggested conclusion that defendant’s suppression of evidence showed
consciousness of guilt. (See CALJIC No. 2.06.) Among other things, defendant’s
expressed desire to remove his fingerprints from Horrell’s car immediately
followed his admission to Stafford that he had murdered its driver. Reason and
common sense also justified the conclusion that defendant’s conscious possession
of Horrell’s recently stolen property tended to show he was guilty of robbery (see
CALJIC No. 2.15), in view of the corroborating evidence, which included most
notably the admission that he had stopped for the stranded motorist because she
was well dressed and seemed likely to have money.
B. Penalty Phase Issues
1. Failure to Conduct Foundational Hearing Before Admitting
Evidence of the Killing of David Hill
The People at the penalty phase presented evidence that defendant had
killed David Hill. (See ante, at p. 10 et seq.) The evidence was relevant to prove
an aggravating circumstance, namely, the presence of criminal activity by
defendant involving the use of force or violence. (§ 190.3, factor (b).) Defendant
contends the court abused its discretion by admitting the evidence without first
holding a foundational hearing under Evidence Code section 402 to determine
whether the evidence was sufficient to prove defendant guilty of the offense
beyond a reasonable doubt. For the reasons set out below, we find no abuse of
To admit evidence of unadjudicated crimes under section 190.3, factor (b)
necessarily entails a risk that the evidence may not be sufficient to convince all
jurors of the defendant’s guilt. Yet we have described this risk as acceptable in
view of the need to place before the jury all evidence properly bearing on its
capital sentencing decision, and in view of the rule that no juror may consider such
evidence unless first convinced of its truth beyond a reasonable doubt. (People v.
Caro (1988) 46 Cal.3d 1035, 1057.) The court must give such an instruction sua
sponte whenever it admits evidence under factor (b). (People v. Michaels (2002)
28 Cal.4th 486, 539; People v. Robertson (1982) 33 Cal.3d 21, 53-55.)
Foundational hearings, which can also help to mitigate the risk, “may be
advisable” (People v. Fauber (1992) 2 Cal.4th 792, 849; see People v. Phillips
(1985) 41 Cal.3d 29, 72, fn. 25) but are not required. The matter lies entirely
within the court’s discretion. (People v. Fauber, supra, at p. 849.)
In this case, defendant has failed to show either an abuse of discretion or
any possibility of prejudice. The evidence that defendant murdered Hill, which
we have already summarized (see ante, at p. 10 et seq.), was sufficient to prove his
guilt beyond a reasonable doubt. The court had no reason to believe otherwise at
the time it declined to hold a foundational hearing. Defendant’s various theories
of third party culpability did not compel the jurors to reject the prosecution’s
evidence. In any event, any hypothetical juror whom the prosecution’s evidence
might not have convinced beyond a reasonable doubt must be presumed to have
followed the court’s instruction to disregard the evidence.
Defendant argues that California law denies him equal protection (U.S.
Const., 14th Amend.) by requiring preliminary hearings for charged offenses but
not for uncharged criminal acts admitted under section 190.3, factor (b). But
equal protection does not require the procedures for proving uncharged crimes
admitted under factor (b) to be as stringent as the procedures for proving charged
offenses. (People v. Bacigalupo (1991) 1 Cal.4th 103, 136; People v. Medina
(1990) 51 Cal.3d 870, 906-907; cf. People v. Balderas (1985) 41 Cal.3d 144, 204-
205 [rejecting a similar claim under the due process clause].) The differing
treatment is justified by the need to allow the “jury to weigh and consider the
defendant’s prior criminal conduct in determining penalty, so long as reasonable
steps are taken to assure the defendant a fair and impartial penalty trial.” (People
v. Medina, supra, at p. 907.)
Restating this claim under the Eighth Amendment to the United States
Constitution, defendant argues that to admit evidence of the Hill killing under
section 190.3, factor (b), without first testing the strength of the evidence in a
foundational hearing, rendered the death sentence arbitrary and unreliable.9 The
People contend defendant waived the claim because he referred in the trial court
only to the due process and equal protection clauses of the federal and state
Constitutions. Defendant’s new claim, however, merely invites us to draw an
alternative legal conclusion (i.e., that the death sentence is arbitrary and
unreliable) from the same information he presented to the trial court (i.e., that the
evidence showing he killed Hill was untested and, thus, could not be presented to
the jury without causing unfair prejudice). We may therefore properly consider
the claim on appeal. (See ante, at p. 21 et seq.)
Considering the Eighth Amendment claim, we find it lacks merit.
Defendant argues that “[w]ithout a reasonable guarantee of certainty that the [Hill
killing] was committed by the defendant, there is no means to conclude that the
death penalty has been fairly imposed.” We have, however, already concluded
that the evidence defendant killed Hill was sufficient to prove his guilt beyond a
reasonable doubt. The United States Supreme Court has upheld section 190.3,
factor (b), which authorizes the admission of uncharged offenses, against an
Eighth Amendment challenge because the factor “is phrased in conventional and
understandable terms and rests in large part on a determination whether certain
events occurred, thus asking the jury to consider matters of historical fact.”
(Tuilaepa v. California (1994) 512 U.S. 967, 976.) The requirement that each
juror be convinced by such evidence beyond a reasonable doubt before
considering it enhances the reliability of the sentence. (People v. Michaels, supra,
28 Cal.4th 486, 539; People v. Robertson, supra, 33 Cal.3d 21, 53-55.)
Defendant also cites the Fifth and Sixth Amendments without, however,
articulating intelligible claims under those provisions.
2. Admission of Threats to Kill and Denial of a Continuance
The People proved that defendant had committed various sexual acts upon
his stepdaughter, Sharon C., when she was between 10 and 13 years old, and that
Sharon had submitted to defendant because she feared him. (See ante, at p. 8 et
seq.) The court permitted the jury to consider this evidence under section 190.3,
factor (b), as criminal activity involving a threat of violence. The court also
permitted the jury to consider under section 190.3, factor (c), as a prior felony
conviction, defendant’s 1977 guilty plea to a charge of lewd and lascivious
conduct (§ 288, subd. (a)) arising out of the same conduct. On appeal, defendant
claims the People did not give adequate notice of their intent to introduce the
violent circumstances of the molestation under factor (b), that the prosecutor
affirmatively misled the defense on this point, and that the court abused its
discretion in denying a continuance to investigate the evidence. These claims lack
The People must give notice of the aggravating evidence they plan to offer
“within a reasonable period of time as determined by the court, prior to trial.”
(§ 190.3.) The law permits the People to introduce, under section 190.3, factor
(b), the violent circumstances of a prior felony conviction introduced under
section 190.3, factor (c), even though the least adjudicated elements of the prior
conviction do not include violence. (People v. McDowell (1988) 46 Cal.3d 551,
566-568.) In this case, the People expressly declared in their timely pretrial notice
of aggravating evidence the intention to prove, among other things, “[t]he felony
convictions of Ralph Michael Yeoman for robbery with great bodily injury, oral
copulation with a child under 14 years, and child molestation . . . and the
circumstances underlying those convictions. Penal Code sections 190.3(b) and
(c).” (Italics added.) Neither violence nor the threat of violence is an element of
lewd and lascivious conduct. (§ 288, subd. (a).) Yet the defense still had reason
to believe the People would seek to admit the circumstances of that crime under
factor (b), because the notice had said precisely that and because the People had
disclosed in pretrial discovery the police reports on the molestation, which
mentioned Sharon’s statement that she feared defendant because he had beaten her
mother, Wilma. (See People v. Bradford (1997) 15 Cal.4th 1229, 1359 [police
reports can provide actual notice of aggravating evidence].) Taken as a whole,
this information was adequate to place defendant on notice and to give him a fair
opportunity to investigate the relevant facts.
Also without merit are defendant’s additional claims that the prosecutor
misled the defense and that the trial court abused its discretion by refusing to grant
a continuance. Before the penalty phase opening statements commenced, the
People requested a hearing under Evidence Code section 402 to clarify whether
the court would admit the circumstances of the molestation under Penal Code
section 190.3, factor (b). At the same time, the prosecutor stated that Sharon in a
recent interview had revealed additional facts previously unknown to the People.
Based on the interview, the prosecutor believed that Sharon “would say that from
the time she was about ten to twelve she submitted to these acts because she just
thought there was nothing wrong with it. [¶] At about the time, two years into this
program of the sexual acts being done on her, she, on her own, figured out it was
wrong and confronted the defendant about it. And at that time, he threatened to
kill her if she told on him, and from there on she submitted to him because she was
afraid of what he would do to her.” The prosecutor made these statements in court
on Tuesday, March 20, 1990. The last preceding court day had been Tuesday,
March 13. The prosecutor had interviewed Sharon on Thursday, March 15 and
disclosed her new statements to the defense on Monday, March 19, the day before
the trial resumed.
On Wednesday, March 21, 1990, the next day of trial, the court conducted a
foundational hearing on Sharon’s testimony outside the jury’s presence.
Consistently with the prosecutor’s representation, Sharon testified that when she
confronted defendant about his sexual conduct towards her, he told her the family
would be split up if she revealed what had happened, that this would be her fault,
and that he would kill her. After hearing this, Sharon submitted to further sexual
acts because she “couldn’t run away, other than on the streets,” and because she
“was scared to death of him.” On cross-examination, still outside the jury’s
presence, Sharon acknowledged she had not told the police officers who
investigated the molestations that defendant had threatened her. Sharon had not
mentioned the threats because the officers had told her that defendant “would be
out of the home” and because she was not, at that time, “thinking of the death
threat. [She] was thinking of a way out, whether it was suicide or what else.”
Based on this testimony, the court correctly ruled that the circumstances of
the 1977 conviction for lewd and lascivious conduct were admissible under factor
(b) because they entailed a “threat to use force or violence.” (§ 190.3, factor (b).)
Sharon’s ensuing testimony before the jury was consistent with her foundational
testimony, except that, when asked by the prosecutor why she feared defendant,
she added the new fact that defendant had actually beaten her. “I was scared for
my life as well as my mother and brother and sisters,” Sharon testified. “He told
me if I ever told anybody he would kill me. Numerous times I saw him beat my
mother, beat me.”
Defendant claims the prosecutor misled the defense concerning the nature
of Sharon’s testimony. The record, however, gives no reason to believe that the
prosecutor, at any time, obtained more detailed knowledge of Sharon’s possible
testimony than he promptly thereafter revealed to the defense. Nor did the court
err in denying a continuance to permit the defense to investigate. Both Sharon and
her mother had been designated as witnesses before trial. Moreover, the police
reports gave the defense notice that Sharon claimed to fear defendant because she
had seen him beat her mother. (See People v. Bradford, supra, 15 Cal.4th 1229,
1359.) Finally, in denying defendant’s request for a continuance, the court
expressly offered to reconsider the matter should the defense show that it was
unable to find a witness it was actually attempting to find. The defense never
offered to make such a showing. Under these circumstances, we see no basis for
concluding the trial court abused its discretion.
Citing the Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution, defendant contends the People’s failure to give notice of
Sharon’s testimony, and the court’s refusal to grant a continuance, denied him the
rights to due process, a fair trial, reasonable notice of the charges against him, the
effective assistance of counsel and a death judgment based on reliable evidence.
These claims fail because their factual predicate is false: Contrary to defendant’s
assertion, the People gave adequate notice of their intent to introduce the violent
circumstances of the molestations under section 190.3, factor (b).
3. Admission of Evidence of Rape
The People introduced evidence that defendant, while in the United States
Army, had forcibly raped Linda S., the wife of a friend and fellow soldier. (See
ante, at p. 9 et seq.) The court allowed the jury to consider the evidence under
section 190.3, factor (b), as showing prior violent criminal activity. Defendant
contends the admission of this evidence, which he describes as stale, violated his
rights to due process, a speedy trial and a reliable determination of penalty.
Defendant characterizes the claim as arising under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution. Defendant
unsuccessfully raised the same claim at trial.
The claim lacks merit. In People v. Rodrigues (1994) 8 Cal.4th 1060, we
concluded that the admission of violent criminal conduct occurring many years
before the penalty trial is not necessarily inconsistent with a defendant’s rights to
due process, a speedy trial and a reliable penalty determination. We reasoned that
“the state has a legitimate interest in allowing a jury to weigh and consider a
defendant’s prior criminal conduct in determining the appropriate penalty, so long
as reasonable steps are taken to assure a fair and impartial penalty trial.” (Id., at
p. 1161.) We identified those “reasonable steps” as including notice of the
evidence to be introduced, the opportunity to confront the available witnesses, and
the requirement of proof beyond a reasonable doubt. When these steps have been
taken, we concluded, the remoteness of the offense affects its weight, not its
Defendant argues for a different result in this case because certain witnesses
who might have been able to offer testimony about the 1968 rape were not
available. The record, however, does not make clear that such a claim was
adequately preserved. In his written motion to exclude evidence of the rape,
defendant identified several witnesses who testified at the court martial, or who
might have been called to testify had defendant not terminated that proceeding by
changing his plea to guilty. Arguing the motion later in court, however, the
defense identified only three assertedly unavailable witnesses whose prior
testimony they wished to offer: Sergeant Theopia James, who had investigated the
rape, Delbert Marshall, whom the defense did not further identify, and Sergeant
Fitzgerald, who had released defendant from duty on the day of the rape. The
court ruled that Sergeant Fitzgerald was unavailable but did not rule on the other
two proposed witnesses. Nevertheless, defense counsel immediately thereafter
stated that, “[b]asically, all we are introducing is Sergeant Fitzgerald,” and never
again mentioned the other witnesses or offered their prior testimony into evidence.
The defense had already cross-examined Linda and, in so doing, attempted to raise
the inference that she had consented to sex and fabricated the rape in order to
secure her husband’s return from Vietnam on a claim of hardship. The reading of
Sergeant Fitzgerald’s prior testimony provided a factual basis for the questions
about consent that the defense had posed to Linda on cross-examination.
On this record, we see no reason to believe that the age of the rape charge,
the unavailability of witnesses or the trial court’s rulings deprived defendant of a
fair opportunity to present a defense. The fair opportunity defendant did enjoy,
and the court’s instruction to the jury not to consider the rape unless convinced of
defendant’s guilt beyond a reasonable doubt, satisfied constitutional requirements.
(See People v. Rodriguez, supra, 8 Cal.4th 1060, 1161.) Defendant cites Johnson
v. Mississippi (1988) 486 U.S. 578 as holding that the procedures for considering
aggravating evidence of other crimes must conform in all respects to the
constitutional standards governing proof of charged offenses. But Johnson does
not so hold. In that decision, the high court reversed a death judgment because the
prosecution had been allowed to prove a prior conviction with nothing more than
the record of a judgment that had been reversed on appeal; “the prosecutor did not
introduce any evidence concerning the alleged assault itself . . . .” (Johnson v.
Mississippi, supra, at p. 585.) Here, in contrast, the People did not seek to prove a
prior conviction for rape. Instead, they merely proved other violent criminal
conduct by defendant (§ 190.3, factor (b)) through properly admitted evidence.
About this, Johnson has nothing to say.
4. Admission of Defendant’s Court-martial Guilty Plea
The trial court permitted the People to introduce, as part of their proof that
defendant had raped Linda E., defendant’s admission and plea of guilty to that
crime in a court-martial. The court instructed the jury to consider the plea as an
admission of prior violent criminal conduct under section 190.3, factor (b), but not
as a prior conviction under section 190.3, factor (c). Defendant contends that the
use of his plea for this purpose violated his rights to due process and to a reliable
sentencing determination. Defendant describes the claim as arising under the
Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
The claim lacks merit.
Defendant’s argument rests upon the following three propositions: First,
convictions rendered in courts-martial are not admissible as prior convictions
under section 190.3, factor (c) because the procedural rights of defendants in
military proceedings differ from those of defendants in civilian proceedings.
Second, although the jurors were told not to consider the plea as evidence of a
prior conviction, they probably did not grasp the fine distinction between evidence
of a prior conviction and evidence of guilt; thus, the jury could only have viewed
the plea as a prior conviction. Third, the prosecutor exacerbated the problem by
stressing in closing argument the evidentiary weight of defendant’s admission and
We need not consider defendant’s first proposition, i.e., that guilty pleas
offered in courts-martial are not admissible as evidence of prior convictions. The
People did not offer the plea as evidence of a prior conviction, and the jurors were
informed by stipulation not to consider the plea for that purpose.10 Defendant’s
The following stipulation was read to the jury:
“After August 3rd 1968, the United States Army charged the defendant
Ralph Michael Yeoman with the crime of forcible rape of Linda S. On or about
December 16, 1968, during the court-martial proceedings at Fort Riley, Kansas,
the defendant, Ralph Michael Yeoman, after advice of counsel, entered a plea of
guilty and admitted the forcible rape of Linda S[.] as charged against him. [¶] A
military court-martial adjudication does not constitute a prior felony conviction
under California Penal Code section 190.3, [factor] (b). This is because a court-
(footnote continued on next page)
second proposition—that the jurors probably did not grasp the distinction they
were asked to draw—does not readily command assent. Jurors are routinely
instructed to make similarly fine distinctions concerning the purposes for which
evidence may be considered, and we ordinarily presume they are able to
understand and follow such instructions. (E.g., People v. Williams (2000) 79
Cal.App.4th 1157, 1171 [jury presumed to understand and follow instruction not
to consider as evidence of guilt a statement taken in violation of Miranda v.
Arizona (1966) 384 U.S. 436 and offered only to impeach].) Indeed, we and
others have described the presumption that jurors understand and follow
instructions as “[t]he crucial assumption underlying our constitutional system of
trial by jury.” (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; see Francis v.
Franklin, supra, 471 U.S. 307, 324, fn. 9.) We see no reason to abandon the
presumption in this case, where the relevant instructional language seems clear
and easy to understand.
As mentioned, defendant also contends that the prosecutor in closing
argument incorrectly described the evidentiary weight to which defendant’s guilty
plea was entitled. This proposition may be considered either as part of
defendant’s more general argument that the jury must have misunderstood the
limited purpose for which defendant’s guilty plea was entered, or as a separate
(footnote continued from previous page)
martial proceeding has differences in procedures—as opposed to our state court
procedure in California—differences in proof and the rights of an accused.
[¶] Thus you may consider the fact of the defendant’s guilty plea in admission of
the crime of forcible rape only as it relates to the proof of other violent crimes
within the meaning of Penal Code [s]ection 190.3[, factor] (b), a different section
we have talked about. [¶] Before you may consider the crime of forcible rape
against Ralph Michael Yeoman as it pertains to Linda S[.], it must be proven
beyond a reasonable doubt.”
claim of prosecutorial misconduct. Considered either way, the argument lacks
merit. The record shows that the prosecutor appropriately described defendant’s
guilty plea as one of three evidentiary points supporting the People’s claim that
defendant had raped Linda S. Those three points were Linda S.’s own testimony,
the lack of significant impeaching evidence in the record of the court-martial or
elsewhere, and, finally, defendant’s guilty plea and admission to forcible rape.
The import of the prosecutor’s remarks about defendant’s plea and admission was
not that they were conclusive, but that they tended to negate the defense
suggestion that the victim might have consented.
In summary, because defendant’s guilty plea was admitted to prove violent
criminal conduct (§ 190.3, factor (b)) and not a prior felony conviction (id., factor
(c)), because there is no reason to believe the jury misunderstood or failed to
consider the limiting instruction, and because the prosecutor in closing argument
did not use the evidence for a purpose inconsistent with the limiting instruction,
we perceive no violation of due process and no risk that the judgment of death was
based on evidence that should have been excluded as unreliable.
5. Exclusion of Evidence that a Third Person Killed David Hill
The defense attempted to prove that David Hill was killed not by defendant
but instead by Michael Ayers, Williams Summers and/or James Baxter. (See ante,
at p. 12 et seq.) Defendant contends the court abused its discretion under
Evidence Code section 352 by sustaining the People’s objections to certain
questions apparently intended to suggest three additional possible killers—Jerry
Huebner and two unidentified persons. We find no abuse of discretion.
Monique Hubertus, called by the People at the penalty phase, identified as
having belonged to Hill several unique items found in defendant’s possession
shortly after the murder. (See ante, at p. 11.) On cross-examination, defense
counsel asked Hubertus whether she knew “a short time prior to David Hill’s
death that he had owned an automobile that was the subject of a car burglary” and
whether she had subsequently received “a telephone call from one of the suspects
of that car burglary.” The People objected, and the court excused the jury to
consider the matter in camera. After considering it, the court disallowed the
questions under People v. Hall (1986) 41 Cal.3d 826 (Hall), thus in effect
exercising its discretion to exclude evidence under Evidence Code section 352,
which Hall interpreted. We find no abuse of discretion.
In camera, the defense explained the theory on which their questions were
based: About a week before Hill was killed, Roseville police had charged two
men, including Jerry Huebner, with attempting to burglarize one of Hill’s
automobiles; the charges were dropped after Hill, the complaining witness, died.
According to defense counsel, Huebner had called Hubertus “looking for David
Hill, complaining about the fact that if [Hill] didn’t withdraw the charges they
were going to jail for twelve years.” Defense counsel theorized that Huebner, or
his unidentified accomplice, murdered Hill to suppress his testimony. Answering
the court’s question, however, the defense acknowledged that it had no other
foundation for this additional theory of third party culpability, such as evidence
that Huebner or his accomplice was seen in the vicinity of Hill’s house at or about
the time of the killing.
Based on this offer of proof, the trial court correctly exercised its discretion
to exclude the evidence. Evidence that a third person actually committed a crime
for which the defendant has been charged is relevant but, like all evidence, subject
to exclusion at the court’s discretion under Evidence Code section 352 if its
probative value is substantially outweighed by the risk of undue delay, prejudice
or confusion. (Hall, supra, 41 Cal.3d 826, 834.) The decision in Hall guides the
exercise of discretion in this context. “To be admissible, the third-party evidence
need not show ‘substantial proof of a probability’ that the third person committed
the act; it need only be capable of raising a reasonable doubt of defendant’s guilt.”
(Id., at p. 833.) However, “evidence of mere motive or opportunity to commit the
crime in another person, without more, will not suffice to raise a reasonable doubt
about a defendant’s guilt: there must be direct or circumstantial evidence linking
the third person to the actual perpetration of the crime.” (Ibid.) Here, defendant’s
offer of proof showed motive, only, and was thus insufficient. The court did not
abuse its discretion.
The trial court also sustained the People’s objection to a question asked by
defense counsel of witness Carla Nebeker. Called by the defense, Nebeker
testified that she had spoken to Hill at one or two o’clock in the afternoon in front
of his house about buying one of his trucks. Nebeker lived three houses down
from Hill. The People objected under Hall, supra, 41 Cal.3d 826, to the further
question why she had not returned to Hill’s house that evening to finish
negotiating. In camera, the defense offered to prove that Nebeker did not visit Hill
that evening because Hill had said he would have an important meeting and that
Nebeker saw someone walking out of Hill’s house about 6:00 p.m. The trial court
ruled that defense counsel could ask Nebeker about the unidentified man she had
seen leaving Hill’s house, but not about the meeting. (See ante, at pp. 12-13.)
In so ruling, the court did not abuse its discretion. Nebeker’s testimony that
an unidentified person unlike defendant in appearance had left the murder site
close to the time of the crime was highly relevant. The court thus properly
permitted the defense to present this matter to the jury. In contrast, the fact that
Hill had mentioned a meeting did not directly or circumstantially connect any
identifiable person with the crime. (See Hall, supra, 41 Cal.3d 826, 833.) On
appeal, counsel suggests that Hill may have planned to meet with Michael Ayers,
James Baxter and/or William Summers, some of the persons whom the defense
attempted to implicate in Hill’s killing. But the law does not require the admission
of evidence made relevant only by speculative hypothesis.
Here, as at trial, defendant argues the trial court violated due process by
applying Evidence Code section 352 and Hall, supra, 41 Cal.3d 826,
“mechanistically to defeat the ends of justice” (Chambers v. Mississippi (1973)
410 U.S. 284, 302) and, more specifically, to defeat his Eighth Amendment rights
to a sentencing determination of heightened reliability (e.g., Lankford v. Idaho
(1991) 500 U.S. 110, 125, fn. 21) and to present to the jury any relevant
circumstance that could cause it to decline to impose the death penalty (McCleskey
v. Kemp (1987) 481 U.S. 279, 306). The argument is not persuasive. We have
previously determined that due process does not bar the application of Evidence
Code section 352 at the penalty phase of capital trials. (People v. Babbitt (1988)
45 Cal.3d 660, 684-685.) We based this conclusion on the fact that neither due
process nor Chambers v. Mississippi has led the high court to “question the
power of States to exclude evidence through the application of evidentiary rules
that themselves serve the interests of fairness and reliability—even if the
defendant would prefer to see that evidence admitted.” (Crane v. Kentucky (1986)
476 U.S. 683, 690; see People v. Babbitt, supra, at pp. 684-685.) We see no
reason in defendant’s argument or the circumstances of this case to reconsider our
6. Refusal to Instruct on the Use of Circumstantial Evidence (CALJIC
No. 2.01) at the Penalty Phase
Defendant contends the court erred in declining to instruct the jury with
CALJIC No. 2.01 at the penalty phase. We find no error.
The purpose of CALJIC No. 2.01 is to clarify the proper use of
circumstantial evidence. The instruction explains, among other things, that a
finding of guilt “may not be based on circumstantial evidence unless the proved
circumstances are not only (1) consistent with the theory that the defendant is
guilty of the crime, but (2) cannot be reconciled with any other rational
conclusion.” (Ibid.) We have held that the court must give such an instruction on
its own motion when the proof of guilt rests substantially on circumstantial
evidence. (People v. Wright (1990) 52 Cal.3d 367, 406; People v. Yrigoyen
(1955) 45 Cal.2d 46, 49; see Use Note to CALJIC No. 2.01 (6th ed. 1996) p. 38.)
But the instruction need not be given when the circumstantial evidence merely
corroborates other evidence (People v. Wright, supra, at p. 406; People v.
Williams (1984) 162 Cal.App.3d 869, 874-876), because in such cases the
instruction may confuse the jury regarding the weight to which other evidence is
entitled (People v. Williams, supra, at p. 874). In this case, the instruction would
have created a risk of confusion by seeming to tell the jury, incorrectly, to reject
defendant’s extrajudicial admissions of guilt unless they could not be reconciled
with any rational conclusion other than guilt.
Defendant contends the People relied substantially on circumstantial
evidence to prove he killed David Hill. To be sure, the People introduced much
circumstantial evidence, including defendant’s presence near the scene of the
crime at the relevant time, his possession immediately before the crime of the type
of gun that fired the fatal bullets, and his possession after the crime of unique,
personal items that had belonged to the victim. (See ante, at p. 10 et seq.) Yet the
trial court nevertheless declined to give CALJIC No. 2.01 because it felt that the
People’s proof of this violent criminal act (§ 190.3, factor (b)) rested largely on
defendant’s extrajudicial admissions to his sister, Linda Ayers, and to her
husband, Michael Ayers. (See ante, at p. 12.) Specifically, Michael testified that
defendant said before his arrest that he had shot Hill. Linda testified that
defendant, in two postarrest calls from jail, admitted he had killed Hill and
described him as “a no good drug dealer.” In view of these admissions, the trial
court reasonably determined for purposes of instructing the jury that the People’s
case did not rest substantially or exclusively on circumstantial evidence. We have
not required an instruction on circumstantial evidence under similar
circumstances. (E.g., People v. Wright, supra, 52 Cal.3d 367, 406.)
Defendant argues the jury must have rejected the testimony of Michael and
Linda Ayers about defendant’s extrajudicial admissions as self-serving efforts on
their part to avoid suspicion, since Michael knew Hill and since defendant may
have used Michael’s gun to kill Hill. If the jury did reject the extrajudicial
admissions, defendant continues, any conclusion by the jury that defendant killed
Hill must have rested entirely on the circumstantial evidence to that effect. The
argument is too speculative to accept. In any event, the fact that some evidence
may impeach a defendant’s extrajudicial admissions does not logically affect the
court’s instructional responsibilities when the circumstantial evidence merely
corroborates those admissions.
In view of these conclusions, we see no reason to accept defendant’s further
claim that the trial court’s failure to give CALJIC No. 2.01 led to an erroneous
determination that defendant murdered Hill and thus tilted the balance unfairly
towards the death penalty. Nor do we perceive any violation of the federal
constitutional provisions defendant perfunctorily cites. (U.S. Const., 4th, 6th, 8th
& 14th Amends.)
7. Prosecutorial Misconduct During Closing Argument
Defendant contends the prosecutor during closing argument made various
statements amounting to misconduct. Defendant timely objected to each such
statement. While the claims are thus properly before us (People v. Hill (1988) 17
Cal.4th 800, 820; People v. Green, supra, 27 Cal.3d 1, 27), we find no misconduct
under state or federal law for the reasons set out below.
a. Death penalty “would be virtually meaningless” if not applied
After reviewing the circumstances of Doris Horrell’s murder, the
prosecutor offered the following argument: “[I]n this case, given these facts and
what we know about this defendant, the murder of Mrs. Horrell, I submit to you
that the proper measurement of the defendant’s crime and the defendant is the
death penalty. And, quite frankly, if it were not to be applied in this particular
case, to me it would be virtually a meaningless . . . .” At this point defense
counsel objected that the argument was “not proper . . . .” The court overruled the
objection, and the prosecutor continued: “It would be, the law would be virtually
meaningless. What would be the point of having it?”
On appeal, defendant unconvincingly compares the prosecutor’s argument
with the different argument we condemned in People v. Farmer (1989) 47 Cal.3d
888. There, the prosecutor incorrectly asserted that the jurors “do not decide life
or death. The law does that.” (Id., at p. 928.) This argument, we concluded,
violated Caldwell v. Mississippi (1985) 472 U.S. 320, 333, by inviting the jurors to
believe that the responsibility for choosing between life and death lay elsewhere.
(People v. Farmer, supra, at p. 928.) In contrast, the prosecutor here merely
argued that the penalty phase evidence strongly pointed to death. We described a
very similar statement by the prosecutor in People v. Jones (1997) 15 Cal.4th 119,
185, as “within the bounds of proper argument.” Certainly the prosecutor here did
not invite the jury “to minimize the importance of its role.” (Caldwell v.
Mississippi, supra, at p. 333.) Immediately after making the challenged remark,
the prosecutor strongly emphasized the jurors’ personal responsibility for doing
the “very difficult job” of choosing the “just punishment.”
b. Defendant “was literally the judge, the jury and the executioner
of Mrs. Horrell”
At one point in his closing argument, the prosecutor asked the jury to
remember “the punishment [defendant] inflicted on [Horrell] . . . no due process,
no judges, no jurors, no act of the courts. That is not what he did. He was literally
the judge, the jury . . . .” At this point the court “noted” but did not sustain
defense counsel’s objection “to this form of argument.” The prosecutor then
completed the sentence: “He was literally the judge, the jury and the executioner
of Mrs. Horrell.” On appeal, defendant acknowledges that the prosecutor’s
statement was “not meant to be taken literally” but nevertheless construes it as an
invitation to employ “frontier justice” “by giving little consideration to factors in
mitigation.” We find no misconduct.
The statements defendant challenges, read in the context of the prosecutor’s
entire closing argument, cannot fairly be construed as an invitation to take lightly
the sentencing decision or the mitigating evidence. Just before making those
statements, the prosecutor had described the sentencing decision as a “very
difficult job” that would require “courage” and “introspection.” After making that
remark, he acknowledged “how difficult it is for probably all twelve of you
[jurors] to arrive at what a just and true verdict ought to be in this case.” He then
correctly stated that “the lawful process to make this legally right and morally
right decision involves a weighing and a balancing of certain factors, or certain
circumstances commonly known or referred to in the law as factors in aggravation
and factors in mitigation.” Finally, the prosecutor concluded this segment of his
argument by reading the entire fourth paragraph of CALJIC No. 8.88, which
describes the weighing of aggravating and mitigating circumstances. He then
began the next segment of his argument, which constituted a detailed examination
of the mitigating evidence. Nowhere in his closing argument did the prosecutor
suggest, explicitly or implicitly, that the jurors should take lightly either the
mitigating evidence or their duty to determine the appropriate penalty according to
c. Section 190.3, factor (d) “means what it says”
Defendant contends the prosecutor’s argument about section 190.3, factor
(d) misstated the law and led the jury not to consider proper mitigating evidence.
Factor (d) directs the jury to take into account, if relevant, “[w]hether or not the
offense was committed while the defendant was under the influence of extreme
mental or emotional disturbance.” We find one misstatement of law, which the
prosecutor immediately corrected, but no misconduct.
Defendant’s argument has three parts. We may easily dispose of the first.
The prosecutor did not misstate the law by telling the jury that “the language [of
factor (d)] means what it says” and that, consequently, the mental or emotional
disturbance referred to therein “has to be extreme.” We have held that trial courts
should not omit the adjective “extreme” from the language of section 190.3, factor
(d) when instructing juries. (People v. Carpenter, supra, 15 Cal.4th 312, 416;
People v. Benson (1990) 52 Cal.3th 754, 803-804.) A fortiori, the prosecutor need
not do so in closing argument.
Defendant next claims the prosecutor misstated the effect of section 190.3,
factor (d) by saying, “[b]asically, that factor exists for people who are psychotic.”
Indeed, the statement was incorrect, and defense counsel properly objected on that
basis. Factor (d) permits the jury to consider any evidence of “extreme mental or
emotional disturbance” (§ 190.3, factor (d)), whether or not the result of
psychosis. Immediately after making this statement, however, the prosecutor
corrected it by characterizing factor (d) more expansively as describing “people
who are so badly disturbed that though they are legally responsible for their crime,
they have been found guilty and so forth, that they are so bad that you as a human
being and the law and your morality says maybe we ought to consider how
screwed up they were and give them a break. That is why that factor is there.”
Thereafter, the prosecutor discussed at length the same evidence the defense
contended was relevant under factor (d), namely, the disputed evidence that
defendant had killed Horrell under the influence of methamphetamine and that he
suffered from brain damage. The prosecutor’s argument on this point was not that
the evidence was irrelevant, but that it was unpersuasive because the
circumstances of the crime showed “planning,” the deliberate selection of a
vulnerable victim and consciousness of guilt.
Considering the prosecutor’s entire closing argument, his erroneous
statement that section 190.3, factor (d) was intended “for people who are
psychotic” did not amount to misconduct. There was no misconduct under federal
law because the statement was immediately corrected and did not infect the trial
with such unfairness as to violate due process. (People v. Morales (2001) 25
Cal.4th 34, 44; see Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643.)
Nor was there misconduct under state law because the prosecutor did not use
deceptive or reprehensible methods to attempt to persuade the jury, and because it
is not reasonably likely the jury construed or applied any of the challenged
remarks in an objectionable fashion. (People v. Morales, supra, at p. 44.)
Finally on this point, defendant contends that the same remarks by the
prosecutor set out above confused the jury about section 190.3, factor (k). To be
sure, defendant was entitled to have the jury consider under factor (k) “[a]ny other
circumstance which extenuates the gravity of the crime,” including, among other
things, evidence of nonextreme mental or emotional disturbance. (People v.
Welch (1999) 20 Cal.4th 701, 769.) Yet we find no reason to believe the
prosecutor’s closing argument confused the jury on this point. Indeed, the
prosecutor described the evidence of defendant’s drug use and brain damage as
matters implicated by factor (k).
d. Evidence of defendant’s childhood was a “ploy”
Defendant’s case in mitigation focused on evidence that he had been
abused as a child and had not received adequate help for psychological and
behavioral problems resulting from the abuse. The defense also introduced family
photographs of defendant taken when he was a child. Commenting on this
evidence in closing argument, the prosecutor told the jurors: “I’m not asking you
to punish some kid. That is not what we are doing here. And don’t be fooled by
that. Don’t be fooled by that ploy in factor (k).” Defense counsel objected to the
prosecutor’s “characterization” of the mitigating evidence and asked the court to
admonish the jury that the evidence was relevant. The court overruled the
objection, but did remind the jury of the “wide range of relevancy under [section
190.3,] factor (k) . . . .”
On appeal, defendant claims the prosecutor’s use of the word “ploy”
suggested to the jury that the mitigating evidence had not been properly admitted
and constituted a personal attack on the integrity of opposing counsel. The claim
lacks merit. We do not understand the prosecutor’s argument as challenging the
court’s ruling or defense counsel’s integrity. Immediately after the court overruled
defense counsel’s objection, the prosecutor clarified his position: “The point that I
was making in going through some of this evidence of poor upbringing, abusive—
abused child and its relevance, is that it ignores the obvious in this case,” namely,
that such evidence “is not an acceptable excuse for a lifetime of moral failure by
this defendant.” In short, the prosecutor simply argued that the evidence relating
to defendant’s childhood had little mitigating force and did not warrant sympathy.
This he was entitled to do. (People v. Dennis (1998) 17 Cal.4th 468, 547-548.)
e. Victim-impact argument
Defendant contends the prosecutor committed misconduct by referring in
closing argument to the impact of defendant’s capital offense on the victim and
her family. We find no misconduct.
The subject arose while the prosecutor was discussing the evidence that
defendant as a child had been abused by family members. Commenting on that
evidence, the prosecutor said: “And you have to kind of be a little careful here.
And what happens in these type [of] cases is the case goes along in this trial [and]
we first start with the victim, but you really don’t—other than the fact she was
killed, you don’t know anything about her life, her family, her dreams, her home.”
Defense counsel objected under Booth v. Maryland (1987) 482 U.S. 496. The
court noted but did not sustain the objection. The prosecutor continued: “But
what happens, you really never get that type [of] evidence in the case and instead
just what happens to her, real sterile here in this courtroom. I’m not eloquent
enough to tell you the pain, fear, agony she suffered.” The prosecutor concluded
this portion of his argument by asking the jury not to confuse their sympathy with
defendant’s testifying family members with sympathy for defendant himself.
Any claim that the prosecutor’s argument violated the Eighth Amendment
to the United States Constitution has been preempted by Payne v. Tennessee
(1991) 501 U.S. 808, in which the high court held that capital sentencing juries
may consider the specific harm a defendant has caused. As Payne explains,
“ ‘[t]he State has a legitimate interest in counteracting the mitigating evidence
which the defendant is entitled to put in, by reminding the sentencer that just as
the murderer should be considered as an individual, so too the victim is an
individual whose death represents a unique loss to society and in particular to his
family.’ ” (Id., at p. 825, quoting Booth v. Maryland, supra, 482 U.S. 496, 517
(dis. opn. of White, J.).) Payne thus overruled Booth v. Maryland and South
Carolina v. Gathers (1989) 490 U.S. 805, which had prohibited victim-impact
evidence and argument. (See Payne, supra, at p. 830; cf. People v. Edwards
(1991) 54 Cal.3d 787, 833 [evidence of the specific harm a defendant has caused
is admissible as a circumstance of the crime under section 190.3, factor (a)].)
Defendant argues the prosecutor’s remarks were improper under state and
federal law because they invited the jurors to speculate about facts not in the
record. (See, e.g., People v. Cunningham, supra, 25 Cal.4th 926, 1026; United
States v. Atcheson (9th Cir. 1996) 94 F.3d 1237, 1244-1245.) But defendant’s
argument is belied by his concession that the evidence incidentally showed that
Horrell was close to her daughter, granddaughter and friends, who had testified at
the guilt phase to establish the facts of the crime. That Horrell had suffered was a
fair inference from the evidence, which the prosecutor was entitled to argue.
(People v. Cunningham, supra, at p. 1026; United States v. Atcheson, supra, at
p. 1244.) Certainly there was no misconduct. Nothing the prosecutor said on this
subject was deceptive or reprehensible, or infected the trial with such unfairness as
to violate due process. Nor is it reasonably likely that the jury construed or
applied any of the challenged remarks in an objectionable fashion. (People v.
Morales, supra, 25 Cal.4th 34, 44.)
f. Reference to defendant as an “animal”
Several defense witnesses testified that defendant possessed good character
traits. Addressing this testimony, the prosecutor asked the jury not to judge
defendant by his quiet, benign appearance but instead by the evidence. “Don’t be
fooled by appearances,” the prosecutor argued. “Now that you know what this
evidence is, what this animal is like . . . . ” Defense counsel objected, the court
overruled the objection, and the prosecutor continued: “The point is, you can try a
million murder cases over the years and there is no special mark an individual has
when he does murders. He’s just like you and me. Sometimes he wears a coat
and a tie, sometimes cinched up, sometimes it is not. But there is no special mark
that is like a stigma. So don’t decide the facts of the case on that. Decide the facts
on the evidence.”
Based on these remarks, defendant asserts three claims of misconduct.
None has merit: (1) The prosecutor’s advice to look beyond defendant’s
appearance and demeanor and to decide the case based on the evidence was not
inappropriate. (People v. Stansbury (1993) 4 Cal.4th 1017, 1058-1059; People v.
Price (1991) 1 Cal.4th 324, 453-454.) (2) While prosecutors should not invoke
their personal beliefs or experiences as support for facts not in evidence (e.g.,
People v. Medina (1995) 11 Cal.4th 694, 776), the prosecutor here did not clearly
violate that rule. His words—“you can try a million murder cases over the years
and there is no special mark an individual has when he does murders”—merely
restated, albeit from the rhetorical stance of a trial lawyer, the common wisdom
that appearances can deceive. (3) The prosecutor’s reference to defendant as an
“animal,” even if arguably improper, does not amount to reversible misconduct.
While we do not condone the use of opprobrious terms in argument (People v.
McDermott (2002) 28 Cal.4th 946, 1002), the prosecutor’s single reference to
defendant as an “animal” during a closing argument otherwise free of intemperate
language cannot reasonably be considered prejudicial misconduct.
g. What might have happened to Mrs. Ford
In closing argument the prosecutor also discussed the robbery and
attempted kidnapping of Geraldine Ford, whom defendant had attempted at gun-
and knifepoint to force into his truck. During the course of this discussion, the
prosecutor observed: “Again, but for the grace of God, Mrs. Ford is a very, very,
lucky, lucky woman today to have been able to come into this courtroom and
testify to you. [¶] A gun and a knife used in that case. We can speculate, and I
don’t really want you to get into speculation, but you know what was going to
happen.” Here, the court overruled defense counsel’s objection that the prosecutor
was, indeed, asking the jury to speculate. The prosecutor continued: “Let me
change the word. We draw reasonable inferences of what was going to happen to
Mrs. Ford if he was successful in getting her into the truck. These are reasonable
inferences you guys can draw. In this case you don’t need it. The actual evidence
[of] a rob[bery] and attempted kidnapping, that should be enough.”
On appeal defendant renews his claim that the prosecutor improperly
invited the jury to speculate about crimes not actually committed. Certainly a
prosecutor should not invite the jury to speculate, but here the prosecutor
prudently amended his remarks to ask the jury to draw reasonable inferences about
defendant’s probable intent based on the evidence. This was proper. (People v.
Osband (1996) 13 Cal.4th 622, 723 [prosecutor in closing argument at the penalty
phase permissibly implied that a more serious crime might have occurred had
someone not interrupted the defendant’s molestation of a 14-year-old girl].)
Based on the evidence, the jury was entitled to draw the reasonable inference that
defendant had an unlawful purpose for attempting to force Ford into his truck.
h. Evidence that defendant would not be dangerous as a life
prisoner was “pure unadulterated speculation”
The defense called five witnesses to testify that defendant behaved well in
custody. Each was or had been employed at a correctional facility. (See ante, at
p. 15.) The general import of their testimony was that defendant was a reliable,
hard worker who avoided trouble. Two witnesses provided more specific grounds
for inferring that defendant would not pose a danger to correctional employees or
to other prisoners. Ed Dawson had supervised defendant’s work on building
maintenance projects at Atascadero State Hospital while defendant was confined
there as a mentally disordered sex offender. Dawson testified that defendant had
been cleared for access to sharp tools and had never had any problems, even
though his job was demanding and entailed pressure. Dave Roberts supervised the
culinary unit at the California Training Facility at Soledad. He testified that
defendant’s immediate supervisor gave him an unusually favorable work
evaluation, and that life prisoners tended to behave better than other inmates in
order to avoid restrictions on their freedom.
Addressing this evidence in closing argument, the prosecutor characterized
it as “essentially ask[ing] you to speculate on whether or not he will ever do
anything down the line, and who the hell knows? We know he has history. The
defense can stand up and say he’s been in a lot of institutions and never got in
trouble before, but as everybody sits here now, you will never know whether or
not you are mortgaging the lives of counselors, workers in the joint . . . .” Defense
counsel objected to the argument as “improper.” The court overruled the
objection, and the prosecutor continued: “That’s just pure unadulterated
speculation. So don’t fall for it. Don’t fall for it at all.”
On appeal, defendant claims the prosecutor committed misconduct by
addressing the subject of future dangerousness in closing argument when “[t]he
defense had introduced no testimony on future dangerousness . . . .” But this is
incorrect. The defense had introduced the testimony set out above. In any event,
when a defendant presents evidence of his capacity to adjust to life in prison, it is
permissible for the prosecutor to argue that the evidence is unpersuasive. (People
v. Osband, supra, 13 Cal.4th 622, 723.) The prosecutor here did no more than
8. Challenge to CALJIC Nos. 8.86 and 8.87
The trial court instructed the jury with CALJIC Nos. 8.86 and 8.87. Using
these standard instructions, the court enumerated the other violent criminal acts
(§ 190.3, factor (b)) and prior felony convictions (id., factor (c)) the People had
sought to prove as aggravating factors and informed the jury not to consider them
unless convinced beyond a reasonable doubt of their truth.
On appeal, defendant claims the instructions violated People v. Wright,
supra, 45 Cal.3d 1126, 1135-1138, because they argumentatively pinpointed the
evidence on which one side relied. In People v. Robertson, supra, 33 Cal.3d 21,
55, footnote 19, however, we encouraged the People to request instructions
enumerating the other crimes on which they rely as aggravating evidence.
Defendant contends that “Wright is in conflict with Robertson on this point.”
The argument lacks merit. The two decisions address different problems.
People v. Wright, supra, 45 Cal.3d 1126, addresses the problem of apparent bias
caused by argumentative instructions that seem to invite the jury to draw certain
conclusions from specified evidence. (Id., at p. 1137.) People v. Robertson,
supra, 33 Cal.3d 21, addresses the danger of confusion that arises from evidence
suggesting a defendant has committed crimes other than those of which the People
have given formal notice under section 190.3 and sought to prove beyond a
reasonable doubt. Absent instructions like CALJIC Nos. 8.86 and 8.87, there is no
assurance the jury will consider only proper aggravating evidence. (People v.
Robertson, supra, at p. 55, fn. 19.) Here, without such instructions, the jury might
have attributed incorrect significance to the evidence that defendant stole a firearm
from Michael Ayers, possessed methamphetamine, and possessed and attempted
to sell property stolen from David Hill’s residence. While courts need not give
CALJIC Nos. 8.86 and 8.87 sua sponte (People v. Pensinger (1991) 52 Cal.3d
1210, 1267), we find no error in their use here and no reason to find a violation of
the Fifth, Sixth, Eighth and/or Fourteenth Amendments to the United States
Constitution, as defendant perfunctorily claims.
9. Refusal to Give Instructions Proposed by Defense—Part 1
Defendant contends the trial court erred in refusing to give two jury
instructions proposed by the defense to highlight specific mitigating evidence.
Proposed instruction No. 47 would have noted defendant’s admission to police of
his guilt in the death of Doris Horrell. Proposed instruction No. 50 would have
noted various assertedly mitigating circumstances, including the admission noted
above, any lingering doubt concerning defendant’s guilt, and the fact that
defendant did not attempt to escape from custody or use force to avoid arrest. The
same instruction would also have restated section 190.3, factor (k).
Neither state nor federal law supports defendant’s claim. State law does
not require instructions highlighting specific mitigating evidence. (People v.
Musselwhite, supra, 17 Cal.4th 1216, 1269-1270.) Arguing to the contrary,
defendant relies on People v. Sears (1970) 2 Cal.3d 180, 190, in which we held
that “[a] defendant is entitled to an instruction relating particular facts to any legal
issue.” But Sears does not require argumentative instructions that merely
highlight specific evidence without further illuminating the relevant legal
standards. (People v. Musselwhite, supra, at pp. 1269-1270.) The only legal
standard plausibly illuminated by the instructions here at issue was section 190.3,
factor (k), which permits the jury to consider all mitigating evidence offered by the
defense. But the court adequately set forth that principle by giving CALJIC No.
8.85. Apart from repeating factor (k), the proposed instructions merely argued the
Nor does federal law support defendant’s claim. In Buchanan v. Angelone
(1998) 522 U.S. 269, 277, the United States Supreme Court held that a trial court
did not err by instructing a capital sentencing jury simply to consider “ ‘all of the
evidence.’ ” The trial court was not required to list Virginia’s statutory mitigating
circumstances or the specific mitigating evidence the defendant wished to
highlight. (Id., at pp. 273-274, 276-279.) If a defendant has properly been found
eligible for the death penalty, the high court reasoned, and if the jury has been
permitted to consider all constitutionally relevant mitigating evidence, the state
may, but need not, further structure the manner in which the jury considers the
mitigating evidence. (Id., at p. 276.) In this context, jury instructions violate the
Eighth Amendment to the United States Constitution only if there is a reasonable
likelihood the jury has understood them as barring consideration of
constitutionally relevant evidence. (Ibid.) We see no such likelihood here
because the trial court instructed the jury with the expanded version of CALJIC
No. 8.85 to consider “[a]ny other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime, and any sympathetic or
other aspect of the defendant’s character or record that the defendant offers as a
basis for a sentence less than death, whether or not related to the events for which
he is on trial.”
Defendant contends that the jurors likely believed the law did not permit
them to give any mitigating force to the circumstance that defendant admitted his
guilt in the killing of Horrell. We see no possibility the jurors labored under such a
misunderstanding. Defendant’s admissions came into evidence partly at the penalty
phase, through Linda Ayers’s testimony that he admitted the killing to her in a
telephone call from jail, and partly at the guilt phase, through the testimony of
defense expert Dr. Rosenthal. The court permitted the doctor, who opined that
defendant had killed Horrell under the influence of methamphetamine, briefly to
summarize defendant’s hearsay statements to police as part of the basis of his
opinion. Defendant, according to Dr. Rosenthal, “report[ed] his sense of being
puzzled by what happened” and “that he had actually been using drugs for a long
period of time . . . .” The court instructed the jury at the guilt phase not to consider
defendant’s statements to the police for the truth of the matters asserted therein.
Later, however, at the conclusion of the penalty phase, the court expressly gave
defense counsel “free rein” to argue the evidence, and counsel told the jury without
contradiction that the evidence was indeed relevant.11 For this reason, and because
the court properly instructed the jury with CALJIC No. 8.85, we see no reason to
believe the jury was confused on this point.
Defendant unsuccessfully attempts to compare his case with McDowell v.
Calderon (9th Cir. 1997) 130 F.3d 833. In McDowell, the Ninth Circuit held that
a trial court violated the Eighth Amendment to the United States Constitution by
failing to correct the erroneous stated belief of 11 jurors that the law did not permit
them to consider certain mitigating evidence related to the defendant’s personal
and family history. (McDowell v. Calderon, supra, at pp. 837-841.) The jurors
had communicated their misunderstanding during deliberations in a note to the
court seeking guidance on the matter. (Id., at p. 835.) In the case before us,
nothing in the record suggests any juror was similarly confused.
10. Refusal to Give Instructions Proposed by Defense—Part 2
As we have already explained, neither state nor federal law requires trial
courts to give jury instructions cataloging the mitigating evidence. (See ante, at
p. 70 et seq.; see also Buchanan v. Angelone, supra, 522 U.S. 269, 273-274, 276-
Defense counsel argued as follows: “you can consider the fact even after
his arrest, and Mike Yeoman admitted responsibility to the police for killing Mrs.
Horrell, and he expressed a general sense of puzzlement about what he had done.
[¶] And you can consider that he admitted his guilt to killing Mrs. Horrell to Linda
Ayers, and he expressed his remorse for having done that.”
279; People v. Musselwhite, supra, 17 Cal.4th 1216, 1269-1270.) Arguing to the
contrary once again, defendant contends the trial court erred in refusing to give his
proposed instruction No. 46. The proposed instruction would have enumerated 21
mitigating circumstances, including such things as defendant’s “lack of a sense of
self esteem and self-worth,” his “expressions of concern for others,” his “positive
contributions while in the state hospital and in prison, in his work and in his
poetry,” and the fact that he “tearfully admitted his guilt in killing [Horrell] to
[Linda Ayers] and expressed his remorse.” In declining to give so argumentative
an instruction, the court did not err.
Defendant also contends the court’s failure to give the proposed instruction
violated federal law in a number of respects. While he perfunctorily cites the
Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution,
he offers no specific arguments under any of those provisions except as noted
Relying on Hicks v. Oklahoma (1980) 447 U.S. 343, 346, defendant argues
that the court violated due process by arbitrarily refusing to give an instruction
pinpointing mitigating evidence at the penalty phase, when defendants are entitled
to analogous instructions pinpointing evidence at the guilt phase. The argument
fails because the premise is erroneous: In no context is a defendant entitled to an
argumentative instruction that simply highlights particular evidence without
further elucidating the relevant legal standards. (People v. Musselwhite, supra, 17
Cal.4th 1216, 1269-1270; see ante, at p. 70.)
Citing Hitchcock v. Duger (1987) 481 U.S. 393, defendant contends the
court’s failure to give the proposed instruction prevented the jury from
understanding the scope of the factors they might consider in mitigation.
Hitchcock is not apposite. In that case, a Florida trial court had instructed a jury to
consider only the mitigating evidence that fell within a restrictive set of statutory
mitigating factors; the trial court thus erroneously precluded the capital sentencing
jury from considering other constitutionally relevant mitigating evidence.
(Hitchcock v. Duger, supra, at pp. 398-399; see Skipper v. South Carolina (1986)
476 U.S. 1, 4.) In contrast, the jury in the case before us was properly instructed
with CALJIC No. 8.85 to consider “[a]ny other circumstance” proffered as
mitigating evidence. (See § 190.3, factor (k).)
Finally, citing Wardius v. Oregon (1973) 412 U.S. 470, 472, defendant
contends the trial court violated due process by refusing to give the proposed
instruction enumerating mitigating evidence while nevertheless giving CALJIC
Nos. 8.86 and 8.87, which enumerate the other violent criminal acts (§ 190.3,
factor (b)) and prior felony convictions (id., factor (c)) the People had sought to
prove. The decision in Wardius, however, merely requires that certain discovery
obligations be reciprocal. It does not support defendant’s argument. Perhaps
drawing a loose analogy to Wardius, defendant argues that the trial court
“impermissibly tilted the balance in the penalty trial in favor of the prosecution”
by refusing the proposed instruction. But CALJIC Nos. 8.86 and 8.87 have no
such effect. Instead, they serve the evenhanded goal of preventing the jury from
considering evidence suggesting a defendant has committed crimes other than
those of which the People have given formal notice under section 190.3 and
sought to prove beyond a reasonable doubt. (People v. Robertson, supra, 33
Cal.3d 21, 55, fn. 19.)
11. Refusal to Give Instructions Proposed by Defense—Part 3
Defendant argues the court erred in refusing to give instructions proposed
by the defense on sympathy and the benefit of the doubt. We find no error.
The proposed instruction on sympathy is set out in the margin.12 In
essence, the proposed instruction paraphrased the reasons this court gave in
People v. Lanphear (1984) 36 Cal.3d 163, 167, for concluding that juries must be
allowed to consider sympathy for the defendant as a mitigating circumstance. The
proposed instruction was necessary, defendant claims, because no instruction
given in this case informed the jury “that sympathy may be based independently
on the abuse which defendant suffered as a child, without a demonstrable
connection to the crimes committed as an adult.” In fact, such an instruction was
given. Through the language of CALJIC No. 8.85, the trial court directed the jury
to consider, among other things, “any sympathetic or other aspect of the
defendant’s character or record that the defendant offers as a basis for a sentence
less than death, whether or not related to the events for which he is on trial.”
(Italics added.) In any event, the United States Supreme Court has held that even
the unadorned language of section 190.3, factor (k) satisfies the requirements of
the Eighth Amendment to the United States Constitution in this context. (Boyde v.
California (1990) 494 U.S. 370, 377-382.) A fortiori, the expanded version of
factor (k) set out in CALJIC No. 8.85 must also be satisfactory.
As mentioned, the trial court also declined an instruction proposed by the
defense on the benefit of the doubt. The proposed instruction would have told the
jurors they “must,” if in doubt as to which penalty to impose, “give the defendant
Defendant’s proposed instruction No. 14 provided: “The jury is permitted
to consider mitigating evidence relating to the defendant’s character and
background precisely because that evidence may arouse sympathy or compassion
for the defendant. If a mitigating circumstance or an aspect of the defendant’s
background or his character called to the attention of the jury by the evidence or
its observation of the defendant arouses sympathy or compassion such as to
persuade the jury that death is not the appropriate penalty, the jury may act in
response thereto and opt instead for life without possibility of parole.”
the benefit of that doubt and return a verdict fixing the penalty at life without the
possibility of parole.” Defendant argues that California law requires such an
instruction, but we have previously held to the contrary. (People v. Cunningham,
supra, 25 Cal.4th 926, 1041-1042; People v. Musselwhite, supra, 17 Cal.4th 1216,
1270.) Defendant presents no adequate justification for reconsidering that
We find no merit in defendant’s conclusory assertions that the trial court,
by denying the proposed instructions discussed above, left the jury with open-
ended discretion to impose the death penalty, precluded the jury from giving the
defendant individualized sentencing discretion, rendered the death verdict
arbitrary, capricious and unreliable, or violated the Fifth, Eighth and Fourteenth
Amendments to the United States Constitution.
12. Refusal to Give Instructions Proposed by Defense—Part 4
Defendant contends the trial court committed three additional errors in
instructing the penalty phase jury. We find none.
First, the trial court did not err in refusing to instruct the jury that the
statutory aggravating factors were exclusive. Lacking such an instruction,
defendant contends, the prosecutor was free to rely on nonstatutory aggravating
factors in his closing argument. Defendant’s premise and conclusion are both
incorrect. Nothing in the instructions given by the court suggested the jury might
properly consider nonstatutory aggravating factors. In fact, the court strongly
suggested the contrary by directing the jury to “consider, and take into account
and be guided by the applicable factors of aggravating and mitigating
circumstances upon which you have been instructed.” (CALJIC No. 8.88.)
CALJIC No. 8.85 freed the jury to consider nonstatutory mitigating factors by
explaining section 190.3, factor (k), but no instruction did the same for
aggravating factors. Furthermore, defendant does not persuade us that the
prosecutor did in fact argue nonstatutory aggravating factors. The prosecutor’s
fleeting reference to the impact of defendant’s crimes on Horrell’s relatives was a
permissible reference to a statutory aggravating factor, namely, the circumstances
of the crime. (§ 190.3, factor (a); see People v. Edwards, supra, 54 Cal.3d 787,
833; see also ante, at p. 64 et seq.) Nor did the prosecutor argue future
dangerousness as a nonstatutory aggravating factor. As we have already
explained, he merely asked the jury to reject defense counsel’s speculation that
defendant would not be dangerous if sentenced to life without the possibility of
parole. (See ante, at p. 68.)
Second, the court did not err in instructing the jury to consider defendant’s
molestation of Sharon C. both as violent criminal conduct (§ 190.3, factor (b)) and
as a prior felony conviction (id., factor (c)). On appeal, defendant argues the court
erroneously directed the jury to double-count defendant’s prior offense. We have
rejected identical arguments many times before. (E.g., People v. Gutierrez (2002)
28 Cal.4th 1083, 1154; People v. Melton (1988) 44 Cal.3d 713, 764.) The
argument lacks merit because factors (b) and (c) serve the different purposes of
showing, respectively, a defendant’s propensity for violence and his failure to be
deterred by past criminal sanctions. (People v. Melton, supra, at p. 764.) In any
event, the concept of counting has no real significance in this context. Jurors are
directed not to count aggravating and mitigating factors in a mechanical way but,
instead, to assign to each whatever moral or sympathetic value they deem
appropriate. (CALJIC No. 8.88; see People v. Brown (1985) 40 Cal.3d 512, 541.)
Third, the court did not err in instructing the jurors that, to return a verdict
of death, they need not unanimously agree on the weight or significance to be
given each aggravating and mitigating circumstance. (People v. Bacigalupo,
supra, 1 Cal.4th 103, 147.) Nor do we see any flaw in the trial court’s
extemporaneous instruction on this point, which correctly described California law
as requiring a unanimous verdict but permitting the jurors to arrive at that verdict
“by twelve separate routes.” To be sure, as defendant argues, to require unanimity
on the treatment of each sentencing factor would increase the People’s burden and
thus offer defendants more protection. We said as much in People v. Jackson
(1980) 28 Cal.3d 264, 357. But it does not logically follow that the absence of
such a requirement biases the jury in favor of death when each juror must decide
for himself or herself “whether the aggravating circumstances are so substantial in
comparison with the mitigating circumstances that it warrants death instead of life
without parole.” (CALJIC No. 8.88.)
Briefly addressing federal law, defendant argues that the trial court’s
instructions to the jury on the three matters discussed above violated the Fifth,
Sixth, Eighth and Fourteenth Amendments to the United States Constitution. We
perceive no credible federal claim. In particular, we see no reason to believe the
trial court caused the death judgment to be unreliable or arbitrary for Eighth
Amendment purposes by failing to instruct the jury that the statutory aggravating
circumstances were exclusive. Other properly given instructions suggested as
much, and the prosecutor did not argue nonstatutory aggravating factors. (See
ante, at p. 76.) Nor are we persuaded that the jury was biased in favor of death
because the instructions referred twice to defendant’s molestation of Sharon C., or
because no instruction told the jurors they had to agree on the significance and
weight to be assigned to each sentencing factor. The jurors were instructed not to
count factors mechanically, and each juror was permitted to assign to each factor
whatever sympathetic or moral weight he or she deemed appropriate. (See ante, at
p. 77.) The decisions on which defendant relies (Zant v. Stephens (1983) 462 U.S.
862, 884-891; Godfrey v. Georgia (1980) 446 U.S. 420, 427-433) address the
constitutional ramifications of using vague factors to determine a defendant’s
eligibility for the death penalty. They are not apposite.
13. Juror Misconduct
Defendant unsuccessfully moved for a new trial on the ground of jury
misconduct. On appeal, defendant contends the trial court abused its discretion in
denying the motion, in failing to conduct an evidentiary hearing, and in failing to
issue subpoenas to compel the testimony of jurors who had declined to speak with
defense investigators. Defendant also contends the alleged misconduct, and the
trial court’s rulings, violated his rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution. All of these claims
Defendant raises four claims of misconduct. In each, he asserts that jurors
brought to their deliberations extraneous information derived from their personal
knowledge and experience rather than the evidence at trial. We review such
claims under the standards set out in In re Carpenter (1995) 9 Cal.4th 634, 653:
“To summarize, when misconduct involves the receipt of information from
extraneous sources, the effect of such receipt is judged by a review of the entire
record, and may be found to be nonprejudicial. The verdict will be set aside only
if there appears a substantial likelihood of juror bias. Such bias can appear in two
different ways. First, we will find bias if the extraneous material, judged
objectively, is inherently and substantially likely to have influenced the juror.
[Citations.] Second, we look to the nature of the misconduct and the surrounding
circumstances to determine whether it is substantially likely the juror was actually
biased against the defendant. [Citation.] The judgment must be set aside if the
court finds prejudice under either test.”
The evidence of misconduct consists of declarations prepared by the
defense for Jurors Mary Ann F., Karen H., Michael L., Carol M. and Peg P. The
declarations repeat, with fair consistency, remarks attributed to the various jurors
claimed to have committed misconduct. The defense submitted these declarations
in support of the motion for a new trial. The defense also submitted declarations
by defense investigators repeating statements by Jurors Robert A. and Franklin K.,
who had refused to sign declarations. The trial court did not expressly determine
the admissibility of these statements, but they are generally consistent with the
signed declarations and appear to add to them nothing of significance. Finally, the
defense submitted declarations by defense counsel naming jurors who had chosen
not to cooperate in their investigation of alleged misconduct.
a. Drug screening procedures
Defendant’s first claim concerns Juror Donald P., who apparently repeated
during the guilt phase deliberations second-hand information about drug screening
procedures at the Sacramento County jail. According to the declarations, Donald
P. told the other jurors that he was married to a nurse who was friendly with a
nurse currently working at the county jail, possibly defense witness Lorraine
Andrews, R.N. Donald P. also told the other jurors that, according to his wife, a
person who is arrested and brought to jail is carefully screened for drug use or
withdrawal and that, if either is noted, the matter is documented and therapy
begun. As a prospective juror, Donald P. had disclosed on his questionnaire the
information that his wife was a nurse formerly employed by the county health
department and that he, himself, was friendly with a prison physician. While all
the prospective jurors were asked to review a list of potential witnesses, the name
of defense witness Andrews did not appear on the list. No declarant asserts that
Juror Donald P. claimed to have spoken with his wife or any other person about
the case during the jury’s deliberations.
Juror Donald P.’s remarks might conceivably be viewed as extraneous
information of conceivable relevance to the case, and thus misconduct. The
defense had attempted to defeat the People’s robbery-murder special circumstance
allegation by showing that defendant did not form the intent to rob victim Doris
Horrell until after killing her because he was under the influence of methampheta-
mine. Defense witness Andrews, who as a nurse examined jail inmates for health
problems, testified that she did not test defendant’s blood for drugs, even though
he had reported recent drug use. Conceivably, Juror Donald P.’s information
about drug screening procedures might have caused him to believe, or suggested
to other jurors, that defendant must not have appeared to be under the influence of
drugs at the time he arrived at the county jail.
While Juror Donald P.’s remarks were arguably improper, we perceive no
substantial likelihood that the remarks indicated bias on his own part or caused
any other juror to become biased. (See In re Carpenter, supra, 9 Cal.4th 634,
653.) Defendant killed Doris Horrell on February 13, 1988. He was arrested on
February 16 and examined by Nurse Andrews on February 22. Whether or not
defendant appeared to be under the influence of drugs on February 22, or even on
February 16, had little apparent relevance to his mental state on February 13.
Whether defendant ever used drugs was not at issue; many witnesses testified that
he frequently did. Instead, the material, disputed fact was whether defendant on
February 13 formed the intent to rob Horrell before or while killing her. The
evidence properly admitted at trial on that issue included substantial evidence of
rational activity preceding and following the crime, in which defendant posed as a
good Samaritan to lure a stranded, vulnerable motorist into his car, killed her,
removed her jewelry and other valuable possessions, calmly admitted to Debra
Stafford what he had done, immediately returned to the scene of the crime to
destroy and conceal evidence, and surveyed the victim’s house but abandoned a
contemplated burglary as too risky in view of the good lighting and the presence
of neighbors. (See ante, at p. 2 et seq.)
Viewed thus in the light of the entire record, we cannot say that Juror
Donald P.’s extraneous information about drug screening procedures at the county
jail was inherently and substantially likely to have indicated bias on his own part
or caused any other juror to become biased. Nor does it appear substantially
likely, looking to the nature of the juror’s remarks and the surrounding
circumstances, that he or any other juror was, on account of the statements,
actually biased against defendant. (See In re Carpenter, supra, 9 Cal.4th 634,
In his second claim of misconduct, defendant asserts that Juror Mary Ann
F., a nurse, brought extraneous information to the jury’s deliberations by
explaining the term “sociopath” and how it might apply to defendant. The record
does not clearly show that any misconduct occurred. Nevertheless, assuming for
the sake of argument that misconduct did occur, we find no substantial likelihood
that any juror was biased. (In re Carpenter, supra, 9 Cal.4th 634, 653.)
The term “sociopath” was not used at trial, but the prosecutor did use the
similar term “antisocial personality disorder” in cross-examining two defense
expert witnesses. These witnesses were Dr. Fred Rosenthal, the psychiatrist and
psychologist who testified at the guilt phase that defendant probably was under the
influence of methamphetamine when he killed Doris Horrell, and Dr. Mindy
Rosenberg, the psychologist who testified at the penalty phase about defendant’s
social history and the effects of child abuse. To each expert, the prosecutor posed
questions apparently intended to explore whether the diagnostic label in question
might apply to defendant. The defense unsuccessfully objected to these questions
as beyond the scope of direct examination. Answering the questions, both experts
testified that they had not been asked to diagnose defendant. Neither opined that
the label “antisocial personality disorder” did, or did not, apply. During the guilt
phase, the court offered to instruct the jury, if necessary, that there was “no
evidence that [defendant] has or has not been diagnosed as having an antisocial
personality or is a so-called psychopath.” Ultimately, however, the court gave no
such instruction because the prosecutor did not refer to the concept in argument at
either phase of the trial. The defense briefly mentioned the concept in its guilt
phase closing argument, but only to say the concept was not relevant.
The testimony, objections and argument about “antisocial personality
disorder” and “psychopath[s]” apparently led to discussion among the jurors. In
her declaration, Juror Mary Ann F. stated: “During deliberations we discussed the
meaning of the term sociopath. We tried to describe what we felt sociopath was.
We also discussed why the defense objected to testimony about the subject.”13
The same juror also declared: “Because of my career as a nurse, the jurors fielded
medical type questions to me. Some of these questions were beyond my area of
expertise and I did not attempt to answer them.” Juror Carol M. similarly declared
that Juror Mary Ann F. “helped us in explaining psychological terms and
diagnoses. She told us some of what she learned in her nurse[’]s training; For
example she used the term sociopath and explained how it might apply to Michael
Because no attorney or witness had used the term “sociopath” at trial, we
assume the jurors used the term as a colloquial way of referring to a person with
antisocial personality disorder, in much the same way defense counsel used the
term “psychopath” in closing argument.
Yeoman.” Juror Michael L. declared more cryptically that Juror Mary Ann F.
“explained some medical terms to us.”
Certainly a juror commits misconduct by asserting a “claim to expertise or
specialized knowledge of a matter at issue.” (In re Malone (1996) 12 Cal.4th 935,
963.) Yet “it is not improper for a juror, regardless of his or her educational or
employment background, to express an opinion on a technical subject, so long as
the opinion is based on the evidence at trial. Jurors’ views of the evidence,
moreover, are necessarily informed by their life experiences, including their
education and professional work.” (Ibid.; see also People v. Steele (2002) 27
Cal.4th 1230, 1265-1267.) The evidence presented here does not show that Juror
Mary Ann F. offered the jurors any basis for deciding the case other than the
evidence and testimony presented at trial. No declaration suggests the juror made
any assertion inconsistent with the properly admitted evidence and testimony.
Moreover, defendant does not claim, and the declarations do not suggest, that the
juror brought reference materials to the jury room, consulted such materials
outside the jury room, or spoke with anyone other than jurors about the case. For
these reasons we doubt whether the evidence actually establishes that misconduct
occurred. “Indeed, lay jurors are expected to bring their individual backgrounds
and experiences to bear on the deliberative process.” (People v. Pride (1992) 3
Cal.4th 195, 268.) That they do so is both a strength of the jury system and a
weakness that must be tolerated. (Ibid.)
Nevertheless, assuming for the sake of argument that the juror’s remarks
did entail misconduct, reviewing the entire record we find no substantial
likelihood that any juror was biased. (In re Carpenter, supra, 9 Cal.4th 634, 653.)
Juror Mary Ann F.’s remarks about the term “sociopath,” as reported in the
various jurors’ declarations, are not inherently and substantially likely to indicate
bias on her part or to have influenced any juror. Nor, in view of the nature of the
juror’s remarks and the surrounding circumstances, is it substantially likely that
any juror was actually biased against the defendant. (Ibid.)
c. Jurors’ experiences with drugs
Defendant also claims that several jurors committed misconduct by
recounting personal experiences involving drugs. According to the declarations,
Juror Mary Ann F. described her brother’s abuse of and withdrawal from drugs;
Juror Peg P. told how her son was arrested and straight-jacketed after using drugs
and brandishing a gun; and Juror Robert A. described his own use of and reactions
to various drugs. Defendant argues these jurors thereby acted as “pseudo-
experts,” rebutting the defense claim that defendant’s conduct was related to his
drug use. We find no misconduct. The effect of drugs, while certainly a proper
subject of expert testimony, has become a subject of common knowledge among
laypersons. On this subject, as we recognized in People v. Fauber, supra, 2
Cal.4th 792, 839, “[j]urors cannot be expected to shed their backgrounds and
experiences at the door of the deliberation room.” (See also People v. Steele,
supra, 27 Cal.4th 1230, 1265-1267.)
d. Life without parole, release and escape
Defendant claims a juror committed misconduct by remarking during
deliberations that defendant might escape from prison if sentenced to life without
the possibility of parole. The claim is based on the declaration of Juror Karen H.,
who stated “[t]hat during the penalty deliberation someone brought up whether
[defendant] might escape if given life without parole.” The juror continues:
“Someone made a ‘crack’ about this . . . it was not discussed in any way.” It thus
appears the remark was intended, however inappropriately, as sarcasm or in jest.
While the remark might literally be described as injecting an extraneous fact into
the jury’s deliberations, or as speculation about facts not in evidence, few verdicts
would stand if held to such an impossible standard. (People v. Pride, supra, 3
Cal.4th 195, 268; see In re Carpenter, supra, 9 Cal.4th 634, 654-655.) Reasoning
that “[t]he average juror undoubtedly worries that a dangerous inmate might
escape” (People v. Pride, supra, at p. 268), we concluded in Pride that a prison
employee’s far more detailed remarks to his fellow jurors about the possibility of
escape did not constitute misconduct (ibid.). The same reasoning more easily
justifies a similar conclusion here.
Defendant also claims the jurors committed misconduct by discussing the
possibility of parole. The claim is based on the declaration of Juror Mary Ann F.,
who stated: “It was brought up by one juror that if we gave [defendant] life
without parole, he’ll probably get out in seven years. This seemed like an off hand
comment.” The claim is also based on the declaration of defense investigator
Margaret Erickson, who asserts that Juror Robert A. told her “[t]he jurors
discussed whether or not life without parole really means what it says” and that,
“[i]n terms of [defendant’s] being released in the future, there was concern about
Accepting as true for the sake of argument all of defendant’s assertions
about juror misconduct, we find no substantial likelihood of bias. (In re
Carpenter, supra, 9 Cal.4th 634, 653.) We have recognized that jurors cannot
always be effectively precluded from discussing such topics of general awareness
and concern as the possibility of parole (People v. Mendoza (2000) 24 Cal.4th
130, 195), escape (People v. Pride, supra, 3 Cal.4th 195, 268), and the infrequent
nature of executions (People v. Majors (1998) 18 Cal.4th 385, 421; People v. Cox
By repeating this evidence, we do not suggest that the hearsay statements of
the defense investigator would necessarily be admissible to prove the facts
asserted, namely, what Juror Robert A. said in the jury room.
(1991) 53 Cal.3d 618, 696). Thus, in People v. Mendoza, we upheld a trial court’s
finding that the jurors in a capital case did not commit misconduct by discussing
briefly the possibility of parole during the course of penalty phase deliberations
that otherwise properly focused on the facts of the case and the aggravating and
mitigating circumstances. (Mendoza, supra, at p. 195.) The evidence in this case
offers no justification for a different conclusion. Assuming for the sake of
argument that the statements defendant challenges might be viewed as
misconduct, we perceive in them no substantial likelihood of bias, either
inherently or in view of their nature and the surrounding circumstances. (In re
Carpenter, supra, at p. 653.)
Nor did the trial court abuse its discretion in declining to conduct an
evidentiary hearing on the defense allegations of jury misconduct or in failing to
compel jurors to testify. While these procedural tools are available to trial courts,
not every allegation of misconduct justifies their use. We have emphasized that
evidentiary hearings should not be used as fishing expeditions to search for
possible misconduct. Instead, such hearings should be conducted only when the
defense has come forward with evidence demonstrating a strong possibility that
prejudicial misconduct has occurred. Moreover, even when the defense has made
such a showing, an evidentiary hearing will generally be unnecessary unless the
evidence presents a material conflict that can be resolved only at such a hearing.
(People v. Hedgecock (1990) 51 Cal.3d 395, 419.) In this case, the affidavits
submitted by the defense did not demonstrate a strong possibility that prejudicial
misconduct had occurred.
14. Jury Unanimity on Other Violent Criminal Conduct
Defendant contends the trial court erred in instructing the jurors they did
not need to agree on whether any particular violent criminal activity offered as
evidence in aggravation (see § 190.3, factor (b)) had occurred. In so doing, the
court used standard language drawn from the last paragraph of CALJIC No.
8.87.15 Defendant unsuccessfully objected to the instruction, proposed an
alternative instruction that did not mention unanimity, and renewed the objection
in his motion for a new trial.
The claim lacks merit. California law does not require the jurors to agree
on instances of criminal activity offered as aggravating evidence under section
190.3, factor (b). (People v. Raley (1992) 2 Cal.4th 870, 910; People v. Ghent
(1987) 43 Cal.3d 739, 773-774.) Nor does the absence of any such requirement
render a judgment of death unreliable for Eighth Amendment purposes. (People v.
Raley, supra, at p. 910; People v. Bacigalupo, supra, 1 Cal.4th 103, 135.)
Defendant claims that factor (b) also violates the Eighth Amendment to the United
States Constitution in not requiring the jurors to agree unanimously on violent
criminal activity and, thus, in failing to narrow adequately jurors’ discretion to
impose the death penalty. (See McCleskey v. Kemp, supra, 481 U.S. 279, 305.)
The claim fails because the required narrowing function is performed in California
by the special circumstances set out in section 190.2, rather than by the
aggravating and mitigating factors set out in section 190.3. (Pulley v. Harris
(1984) 465 U.S. 37, 53; People v. Whitt (1990) 51 Cal.3d 620, 659-660.)
15. Miscellaneous Constitutional Challenges to the Death Penalty
Defendant asserts a variety of challenges, under the Eighth and Fourteenth
Amendments to the United States Constitution, to the procedures under which the
The court instructed: “It is not necessary for all jurors to agree. If any
juror is convinced beyond a reasonable doubt that such criminal activity occurred,
that juror may consider that activity as a fact in aggravation. [¶] If a particular
juror is not so convinced, that juror must not consider that evidence for any
death penalty is imposed in California. We have previously considered and
rejected each claim. Defendant offers no persuasive reason to reconsider our prior
decisions. More specifically:
a. Trial courts need not delete from the list of sentencing factors set out in
CALJIC No. 8.85 those that may not apply. (People v. Ghent, supra, 43 Cal.3d
739, 776.) The failure to do so does not deprive defendant of his rights to an
individualized sentencing determination (People v. Turner (1994) 8 Cal.4th 137,
207-208) or to a reliable judgment (People v. Sanchez (1995) 12 Cal.4th 1, 79).
b. The jury need not prepare written findings identifying the aggravating
factors on which it relied. (People v. Davenport (1995) 11 Cal.4th 1171, 1232.)
Nor does the absence of any such requirement violate defendant’s right to
meaningful appellate review. (Ibid.)
c. The jury need not find beyond a reasonable doubt the truth of the
aggravating factors on which it relies, that the aggravating factors outweigh the
mitigating factors, or that death is the appropriate penalty. (People v. Boyette
(2002) 29 Cal.4th 381, 466.) The absence of any such requirement does not
render a death judgment unreliable, or violate due process or equal protection.
(Id., at p. 465.)
d. The court need not review a death judgment for proportionality with
sentences in other cases. (Pulley v. Harris, supra, 465 U.S. 37, 50-51; People v.
Bradford, supra, 15 Cal.4th 1229, 1384.)
e. The adjectives “extreme” and “substantial” do not render vague the
sentencing factors that include those words. (§ 190.3, factors (d) & (g); see
People v. Box (2000) 23 Cal.4th 1153, 1217.) Nor do those adjectives bar
consideration of proper mitigating evidence, since factor (k) permits the jury to
consider “[a]ny other circumstance which extenuates the gravity of the crime.”
(§ 190.3, factor (k); see People v. Benson, supra, 52 Cal.3d 754, 803-804.)
f. California’s statutory special circumstances (§ 190.2, subd. (a)(1)-(22))
are not so numerous or inclusive as to fail to narrow the class of murderers eligible
for the death penalty. (People v. Michaels, supra, 28 Cal.4th 486, 541.)
g. To give the district attorney of each county the discretion to decide
whether to seek the death penalty does not render such decisions arbitrary, even in
the absence of statewide standards for, or oversight of, such decisions. (People v.
Holt, supra, 15 Cal.4th 619, 702.)
The judgment is affirmed.
GEORGE, C. J.
CONCURRING OPINION BY KENNARD, J.
I concur in the majority opinion. I offer these additional thoughts on
defendant’s contention that the prosecutor peremptorily challenged four Black
jurors because of their race, in violation of Batson v. Kentucky (1986) 476 U.S. 79
(Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). In rejecting that
contention, the majority makes several references to this court’s very recent
decision in People v. Johnson (June 30, 2003, S097600) __ Cal.4th __ (Johnson),
in which I dissented. As I shall explain, Johnson is superficially similar but
fundamentally different from this case.
A trial court may deny a Wheeler motion outright if the moving party has
failed to make a prima facie showing that impermissible group bias motivated the
opposing party’s challenges. In Johnson, a majority of this court held that to
establish a prima facie case, “the objector must show that it is more likely than not
the other party’s peremptory challenges, if unexplained, were based on
impermissible group bias.” (Johnson, supra, __ Cal.4th at p. __ [p. 2], italics
added.) I disagreed. As I explained, to establish a prima facie case the objecting
party need only “prove facts that, if unexplained, permit a reasonable inference of
discriminatory purpose.” (Id. at p. __ [p. 2] (dis. opn. of Kennard, J.), italics
But the discussion in Johnson, supra, __ Cal.4th __, on what it takes to
establish a prima facie case of group bias in challenging prospective jurors has
nothing to do with the issue here. That discussion pertains only to the standard of
proof the trial court must use to determine a prima facie showing of group bias.
Here, defendant claims the court misapplied that standard to the facts. In
reviewing that claim, the majority here correctly applies the standard for appellate
review of a trial court’s determination that a moving party did not make a prima
facie showing, rather than the standard that the Johnson majority said the trial
court should use.
In Johnson, the majority upheld the trial court’s ruling that the defendant
had not made a prima facie showing of group bias. I disagreed. I explained:
“[D]efendant showed that the prosecutor challenged all three Blacks on the jury
panel, used a disproportionate number of his peremptory challenges against
members of that racial group, and failed to engage in any questioning whatever of
any these prospective jurors notwithstanding invitations to do so by the trial court.
With respect to two of the three jurors, there is nothing in their oral or written
responses that stands out to show they would be unacceptable jurors.” (Johnson,
supra, __ Cal.4th __, __ [p. 16] (dis. opn. of Kennard, J.).) This aspect of my
dissent in Johnson was based on the facts of that case, not on any disagreement
with the underlying legal principles. This case presents a different factual pattern.
Defendant argued that the prosecutor’s challenges of four prospective Black jurors
were motivated by group bias. With respect to one of those jurors, the trial court
found a prima facie case and, after hearing the prosecutor’s explanation,
concluded that the challenge was not based on group bias. As to the remaining
three prospective jurors, the trial court ruled that defendant had not made a prima
facie case of group bias. I agree with the majority that these jurors’ oral and
written responses on voir dire afforded the prosecution race-neutral reasons for its
peremptory challenges. Thus, unlike Johnson, the majority here properly upholds
the trial court’s ruling that defendant failed to make a prima facie showing that the
prosecutor’s peremptory challenges were based on group bias. On that basis, I
concur in the majority’s opinion.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Yeoman
Original Appeal XXX
Opinion No. S016719
Date Filed: July 17, 2003
Judge: Rothwell B. Mason
Attorneys for Appellant:
Charles M. Bonneau, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson,
Assistant Attorney General, Ward A. Campbell and Carlos A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Charles M. Bonneau
980 Ninth Street, Suite 1400
Sacramento, CA 95814
Carlos A. Martinez
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
|1||The People (Respondent)|
Represented by Attorney General - Sacramento Office
Carlos A. Martinez, deputy
P.O. Box 944255
1300 I St., 11th Floor
|2||Yeoman, Ralph Michael (Appellant)|
Represented by Charles M. Bonneau
Attorney at Law
331 J Street, Suite 200
|Jul 17 2003||Opinion: Affirmed|
|Jul 10 1990||Judgment of death|
|Jul 26 1990||Filed certified copy of Judgment of Death Rendered|
|Aug 15 1990||Extension of Time application Granted|
To Court Reporter To 8-20-90 To Complete R.T.
|Sep 13 1993||Counsel appointment order filed|
Charles M. Bonneau, Esq. Is appointed to represent Applt on His Automatic Appeal, Including Any Related Habeas Proceedings.
|Oct 19 1993||Application for Extension of Time filed|
By Applt to request correction of Record.
|Oct 21 1993||Extension of Time application Granted|
To Applt To 12-13-93 To request Corr. of Record.
|Dec 9 1993||Application for Extension of Time filed|
By Applt to request correction of Record.
|Dec 10 1993||Extension of Time application Granted|
To Applt To 2-14-94 To request Corr. of Record.
|Jan 12 1994||Compensation awarded counsel|
|Feb 25 1994||Application for Extension of Time filed|
By Applt to request correction of Record.
|Mar 1 1994||Extension of Time application Granted|
To Applt To 4-29-94 To request Corr. of Record.
|Apr 29 1994||Application for Extension of Time filed|
By Applt to request correction of Record.
|May 5 1994||Extension of Time application Granted|
To Applt To 6-28-94 To request Corr. of Record.
|May 19 1994||Compensation awarded counsel|
|Jun 27 1994||Application for Extension of Time filed|
By Applt to request correction of Record.
|Jun 28 1994||Extension of Time application Granted|
To Applt To 8-29-94 To request Corr. of Record.
|Aug 25 1994||Received:|
Copies of Applt's (1) motion to correct Record; (2) motion to Augment Record; & (3) motion to Settle Record (filed in Superior Court)
|Sep 7 1994||Compensation awarded counsel|
|Dec 28 1994||Compensation awarded counsel|
|Mar 23 1995||Compensation awarded counsel|
|Apr 11 1995||Motion to augment AA record filed|
Motion by appellant to Augment and Settle Record (9 Pp. Excluding attachments)
|Oct 25 1995||Record augmentation granted|
The motion to Augment The Record is granted in part. The Superior Ct. shall identify, by the name of the person responding, the questionnaires completed by: (a) the jurors; (b) the alternate jurors; (c) the prospective jurors who were peremptorily challenged by the People; (d) the prospective jurors who were challenged for cause unsuccessfully by appellant; and (e) the prospective juror (see R.T. 2645) who was excused for cause on the People's motion. All questionnaires shall remain under the seal of the Superior Court & subject to all restrictions on use and disclosure previously imposed by that court. The motion to augment is in all other respects denied. The motion to settle the record with the Declaration of Katherine L. Bell is denied.
|Nov 1 1995||Filed:|
Applt's request for Reconsideration (of Court's 10-25-95 Order).
|Nov 29 1995||Order filed:|
The "Request for Reconsideration" is construed as a motion to augment the record and, so construed, granted. The superior court shall identify, by the name of the person responding, the questionnaires completed by the following prospective jurors: Esther Kaibe (see RT 1843), Charles Marvin (see RT 1860), Elona Knau (see RT 2251), Arnold Roth (see RT 1834), and Ismael Gutierrez (see RT 2927). All questionnaires shall remain under the seal of the superior court and subject to all restrictions on use and disclosure previously imposed by that court.
|Dec 13 1995||Change of Address filed for:|
Atty Charles Bonneau.
|Mar 28 1996||Compensation awarded counsel|
|Jul 10 1996||Compensation awarded counsel|
|Oct 21 1996||Compensation awarded counsel|
|Dec 20 1996||Record on appeal filed|
C-17 (5,036 Pp.) and R-22 (6,429 Pp.); Clerk's Transcript includes 2,633 pages of Juror Questionnaires.
|Dec 20 1996||Appellant's opening brief letter sent, due:|
|Jan 14 1997||Compensation awarded counsel|
|Jan 24 1997||Application for Extension of Time filed|
To file Aob.
|Jan 30 1997||Compensation awarded counsel|
|Feb 10 1997||Extension of Time application Granted|
To March 31,1997 To file AOB
|Mar 27 1997||Application for Extension of Time filed|
To file Aob.
|Apr 1 1997||Extension of Time application Granted|
To 5-30-97 To file Aob.
|Apr 16 1997||Compensation awarded counsel|
|May 29 1997||Application for Extension of Time filed|
To file Aob.
|Jun 5 1997||Extension of Time application Granted|
To 6-30-97 To file Aob.
|Jul 1 1997||Application for Extension of Time filed|
To file Aob.
|Jul 7 1997||Extension of Time application Granted|
To 7-30-97 To file Aob.
|Jul 24 1997||Compensation awarded counsel|
|Jul 29 1997||Application for Extension of Time filed|
To file Aob.
|Aug 4 1997||Extension of Time application Granted|
To 8-29-97 To file Aob.
|Aug 29 1997||Application for Extension of Time filed|
To file Aob.
|Sep 3 1997||Extension of Time application Granted|
To 9-29-97 To file Aob.
|Sep 29 1997||Application for Extension of Time filed|
To file Aob.
|Oct 1 1997||Extension of Time application Granted|
To 10-29-97 To file Aob.
|Oct 28 1997||Application for Extension of Time filed|
To file Aob.
|Nov 3 1997||Extension of Time application Granted|
To 12-1-97 To file Aob.
|Nov 3 1997||Compensation awarded counsel|
|Dec 9 1997||Application for Extension of Time filed|
To file Aob.
|Dec 11 1997||Extension of Time application Granted|
To 12-31-97 To file Aob.
|Dec 24 1997||Application for Extension of Time filed|
To file Aob.
|Jan 8 1998||Extension of Time application Granted|
To January 30,1998 To file AOB
|Jan 23 1998||Compensation awarded counsel|
|Jan 30 1998||Application for Extension of Time filed|
To file Aob.
|Feb 3 1998||Extension of Time application Granted|
To 3-2-98 To file Aob.
|Feb 24 1998||Application for Extension of Time filed|
To file Resp's brief.
|Mar 2 1998||Appellant's opening brief filed|
2 Vols. (268 Pp.)
|Mar 9 1998||Compensation awarded counsel|
|Mar 27 1998||Application for Extension of Time filed|
To file Resp's brief.
|Apr 2 1998||Extension of Time application Granted|
To 6-1-98 To file Resp's brief.
|Apr 20 1998||Compensation awarded counsel|
|May 29 1998||Application for Extension of Time filed|
To file Resp's brief.
|Jun 4 1998||Extension of Time application Granted|
To 7-31-98 To file Resp's brief.
|Jul 22 1998||Compensation awarded counsel|
|Jul 29 1998||Application for Extension of Time filed|
To file Resp's brief.
|Aug 7 1998||Extension of Time application Granted|
To 9-29-98 To file Respondent's brief
|Sep 25 1998||Application for Extension of Time filed|
To file Resp's brief.
|Oct 2 1998||Extension of Time application Granted|
To 11-30-98 To file Resp's brief.
|Oct 28 1998||Compensation awarded counsel|
|Nov 24 1998||Application for Extension of Time filed|
To file Resp's brief.
|Dec 9 1998||Extension of Time application Granted|
To 1-29-99 To file Respondent's brief
|Feb 2 1999||Application for Extension of Time filed|
To file Resp's brief.
|Feb 3 1999||Extension of Time application Granted|
To 3-1-99 To file Respondent's brief
|Mar 3 1999||Extension of Time application Granted|
To 3-31-99 To file Respondent's brief
|Mar 24 1999||Compensation awarded counsel|
|Mar 26 1999||Application for Extension of Time filed|
To file Resp's brief.
|Apr 1 1999||Extension of Time application Granted|
To 4-30-99 To file Resp's brief.
|Apr 30 1999||Respondent's brief filed|
|Jun 1 1999||Application for Extension of Time filed|
To file reply brief.
|Jun 1 1999||Extension of Time application Granted|
To 7-19-99 To file reply brief
|Jun 16 1999||Compensation awarded counsel|
|Jul 16 1999||Application for Extension of Time filed|
To file reply brief.
|Jul 20 1999||Extension of Time application Granted|
To 9-17-99 To file reply brief
|Sep 17 1999||Application for Extension of Time filed|
To file reply brief.
|Sep 17 1999||Compensation awarded counsel|
|Sep 29 1999||Filed:|
Suppl Decl of Atty Bonneau in support of request for Eot to file reply brief.
|Sep 30 1999||Extension of Time application Granted|
To 10-18-99 To file reply brief.
|Oct 18 1999||Application for Extension of Time filed|
To file reply brief.
|Oct 19 1999||Extension of Time application Granted|
T0 11/17/99 to file Applt's reply brief.
|Nov 17 1999||Application for Extension of Time filed|
To file reply brief.
|Nov 23 1999||Extension of Time application Granted|
To 12/17/99 To file reply brief.
|Dec 17 1999||Appellant's reply brief filed|
|Jan 3 2000||Compensation awarded counsel|
|Jan 4 2000||Filed:|
Confidential Declaration of Atty Charles Bonneau
|Jan 7 2000||Compensation awarded counsel|
|Mar 29 2000||Compensation awarded counsel|
|Jul 20 2000||Compensation awarded counsel|
|Nov 14 2000||Filed:|
Clerk's additional sealed transcripts (2 volumes) 987.9 PC documents
|Feb 28 2002||Motion filed (in AA proceeding)|
Motion by respondent to return People's exhibit no. 34 to robbery victim.
|Mar 11 2002||Filed:|
Applt.'s reply to peopls's motion for return of exhibit no. 34.
|May 22 2002||Compensation awarded counsel|
|Jun 12 2002||Order filed|
Respondent's "Motion to Return People's Exhibit No. 34 (Diamond and Pearl Ring) to the Robbery Victim" is granted. The Sacramento County Superior Court is hereby directed to cause appropriate photographs of People's Exhibit number 34 in Sacramento County Superior Court case number 86216, entitled People v. Ralph Michael Yeoman, to be made and lodged with the court, and copies of the photographs to be sent to the Attorney General and counsel for appellant. The court is further directed, when those tasks have been accomplished, to cause the said exhibit to be returned safely to its owner, Geraldine Ford.
|Aug 8 2002||Change of Address filed for:|
Appellant's counsel, Charles M. Bonneau.
|Jan 24 2003||Exhibits lodged|
Defendant's exhibits M19-A, M19-B, M19-B1 - M19-B5, M19-C and M19-D received from Sacramento County Superior Court.
|Feb 13 2003||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as the April 2003, calendar. Any request for additional time to argue, notification of requirement for two counsel, or advisement of focus issues due no later than 10 days after the case has been set for oral argument.
|Mar 17 2003||Filed letter from:|
Appellant's counsel, dated 3/14/2003, requesting oral argument be scheduled for the week of 5/5/2003.
|Apr 9 2003||Case ordered on calendar|
5-7-03, 1:30 pm, S.F.
|Apr 16 2003||Filed letter from:|
Appellant's counsel, dated 4/14/2003, requesting 45 minutes for oral argument.
|Apr 18 2003||Order filed|
The request of appellant for 45 minutes for oral argument is granted.
|Apr 22 2003||Filed letter from:|
Appellant's counsel, dated 4/21/2003, re focus issues for oral argument.
|Apr 22 2003||Received letter from:|
Appellant's counsel, dated 4/21/2003, re additional authority for oral argument.
|May 6 2003||Filed letter from:|
Appellant's counsel, dated 5/5/2003, re change in statement of focus issues for oral argument.
|May 7 2003||Cause argued and submitted|
|Jun 9 2003||Compensation awarded counsel|
|Jul 17 2003||Opinion filed: Judgment affirmed in full|
Majority opinion by Werdegar, J. --------------joined by George, C.J., Kennard, Baxter, Chin, Brown, Moreno , JJ. Concurring opinion by Kennard, J.
|Aug 1 2003||Rehearing petition filed|
by appellant. (24 pp.)
|Aug 8 2003||Time extended to consider modification or rehearing|
to 10/15/2003, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Oct 1 2003||Rehearing denied|
|Oct 1 2003||Remittitur issued (AA)|
|Oct 3 2003||Exhibit(s) returned|
to superior court.
|Oct 17 2003||Received:|
Acknowledgment of receipt of exhibits.
|Oct 17 2003||Received:|
Acknowledgment of receipt of remittitur.
|Nov 18 2003||Order filed (150 day statement)|
|Dec 22 2003||Received letter from:|
U.S.S.C., dated 12/17/2003, advising extension of time to and including 1/29/2004 to file cert petition.
|Feb 6 2004||Received letter from:|
U.S.S.C., dated 2/2/2004, advising cert petition filed as No. 03-8667.
|Apr 23 2004||Certiorari denied by U.S. Supreme Court|
|Mar 2 1998||Appellant's opening brief filed|
|Apr 30 1999||Respondent's brief filed|
|Dec 17 1999||Appellant's reply brief filed|