Citation 43 Cal.4th 327 original opinion
43 Cal. 4th 1095a modification
People v. Zamudio
Filed 4/21/08
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S074414
v.
SAMUEL ZAMUDIO,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. VA036217
On November 17, 1997, a jury convicted defendant Samuel Zamudio of
two counts of first degree murder (Pen. Code, §§ 187, subd. (a), 189)1 and two
counts of first degree residential robbery (§ 211). As to each of the convictions,
the jury also found true allegations that defendant personally used a knife during
the commission of the offense (§ 12022, subd. (b)). As to the murders, the jury
also found true special circumstance allegations that defendant was convicted in
this proceeding of more than one first degree murder (§ 190.2, subd. (a)(3)) and
that the murders were committed while defendant was engaged in the commission
of robbery (§ 190.2, subd. (a)(17)). On November 21, 1997, the jury fixed the
penalty at death and, on October 5, 1998, the trial court imposed that sentence.
This appeal is automatic. (§ 1239, subd. (b).) For reasons that follow, we vacate
1
All further unlabeled statutory references are to the Penal Code.
1
one multiple-murder special-circumstance finding and otherwise affirm the guilt
and penalty judgments in their entirety.
I. FACTS
A. Guilt Phase
On Sunday, February 11, 1996, the dead bodies of 79-year-old Elmer
Benson and 74-year-old Gladys Benson were found in their home.2 The evidence
presented at trial established that defendant, who lived next door to, was friends
with, occasionally did household chores for, and owed money to, the Bensons,
stabbed them to death and stole their property.
1. Prosecution Evidence
Around 9:00 a.m., on February 11, firefighter/paramedics for the Los
Angeles County Fire Department received a call to respond to the Bensons’ home
in South Gate. Inside, they found the dead bodies of Elmer and Gladys. They
notified police and, around 11:37 a.m., homicide detectives responded to the scene
to investigate. They found Gladys’s body on the kitchen floor with numerous stab
wounds, clad in a nightgown and robe that were raised above her waist, exposing
her pubic area. Gladys was still wearing a bracelet, ring, and chain. Elmer’s
body, which also had numerous stab wounds, was on the living room floor near his
wheelchair.3 There was blood in the kitchen and living room, and nowhere else in
the house. Bloody shoe prints on the kitchen floor near Gladys’s body led out of
the kitchen and into the living room to Elmer’s body. There was fresh coffee in a
2
For simplicity and to minimize confusion, we will generally refer to the
victims by their first names. All further dates are to the year 1996 unless
otherwise indicated.
3
Elmer, who had suffered a stroke and had difficulty walking, sometimes
used a wheelchair and a walker.
2
pot near the sink and two cups had been poured; one was on a table in the living
room near Elmer’s wheelchair. A newspaper was on the front porch, and no lights
were on inside (other than a hallway nightlight). Based on these circumstances,
Los Angeles County Deputy Sheriff Donald Garcia, who was assigned to the
homicide bureau’s detective division and who participated in the investigation,
opined that the murders occurred “at first light, approximately 6:00 to 6:30 in the
morning.” The coroner placed the time of death at 7:00 a.m., plus or minus three
or four hours.
South Gate Police Officer Dave Scott arrived at the Bensons’ home earlier
that morning — approximately 9:30 or 9:45 a.m. — and was told to maintain the
outside perimeter of the crime scene. Shortly after arriving, he interviewed
Jacqueline Zamudio, who is defendant’s daughter and who first discovered the
Bensons’ bodies, and Ivan Zalapa, who is defendant’s nephew and who made the
911 call. During the interview with Jacqueline, defendant, who lived next door to
the Bensons in his brother-in-law’s house, walked up and began interjecting
comments. He repeatedly said he was good friends with, and close to, the
Bensons. He also said he often did favors for them and repaired things around
their house. While listening to defendant, Scott received a dispatch to call the
station, and asked if he could use defendant’s telephone. Defendant invited Scott
into his living room to make the call. While Scott was dialing, defendant again
commented that he was close to the Bensons. He also stated he had recently
borrowed $100 from them, was supposed to repay the loan within two weeks, gave
the Bensons the “pink slip” to his car as collateral, and believed the title document
was still in the Bensons’ house. After Scott finished his telephone call, defendant
took Scott to the kitchen, showed him a calendar with a big “X” on February 21,
and said the “X” was a reminder that the loan was due by February 22.
3
Shortly before noon, Sergeant Martin van Lierop of the South Gate Police
Department, who was assigned to the detective bureau, arrived at the Bensons’
house and began investigating the crime scene.4 Later, he and Los Angeles
County Deputy Sheriff Timothy Miley, who was assigned to the homicide
bureau’s detective division, canvassed the neighborhood for witnesses. They
asked defendant, Jacqueline, and Ivan to come to the South Gate police station for
interviews as potential witnesses and to provide background information on the
victims. Defendant, Jacqueline, and Ivan agreed, and were transported to the
station, which was only two blocks away. During his interview, defendant said he
never left his house the previous night, left around 5:00 or 6:00 a.m. that Sunday
morning to visit a friend, and returned around 10:00 a.m. He also stated he was
last in the Bensons’ home the previous Thursday, February 8, when he fixed their
washing machine, changed the oil in their truck, and ate breakfast with them. He
also talked about the $100 loan, explaining that he (1) borrowed the money on
February 8 because he was not working, had no money, and did not want to ask
his wife for money, (2) gave the Bensons the “pink slip” to his car as collateral, (3)
was supposed to repay the loan by February 22, and (4) did not want his wife to
know about the loan.
After the interview, Miley and van Lierop returned to the crime scene,
searched for evidence, and spoke with other members of defendant’s family. As a
result of their conversation with defendant’s wife, Maria Barron, they had more
questions for defendant, so they returned to the station and reinterviewed him.
During his second interview, defendant gave the following, different
account of his whereabouts: He left his house around 7:00 p.m. on Saturday and
4
At the time of trial, van Lierop was a lieutenant.
4
drove to the El Paraiso bar in Los Angeles, where he stayed until closing at 2:00
a.m. on Sunday morning and spent all of his money buying alcohol for himself and
others. After closing, he drove two women who worked at the bar — including
one named Sarahi whom he had been seeing for awhile — to their homes. He
returned home around 3:00 or 3:30 a.m., unsuccessfully tried to sleep, and again
left his house between 5:00 and 5:30 a.m., to visit a friend, Juan Ledesma.
Ledesma was not home, so defendant spoke with Ledesma’s mother. He then
went to the garment district in downtown Los Angeles and just walked around
(because the stores were not open). He returned home again around 10:00 a.m.
At the end of the second interview, Miley asked if he could look at
defendant’s shoes. Defendant removed his shoes and gave them to Miley. The
officers found what they believed to be “unique . . . zigzag patterns” on the soles
and heel. Miley photographed defendant holding the shoes and put them in a bag.
The officers then asked defendant what he had been wearing the previous night.
Defendant replied that he was still wearing the same pants, but that the shirt he had
been wearing was at his house.
Miley and van Lierop then took defendant and the bag with his shoes back
to the crime scene. Defendant went inside his house with van Lierop, retrieved a
shirt that was hanging on his bedpost in his bedroom and gave it, along with the
pants he was wearing, to van Lierop. Meanwhile, Miley took defendant’s shoes to
the Bensons’ home and showed them to Stephan Schliebe, a criminalist with the
Los Angeles County Sheriff’s Department. Schliebe observed that the general
pattern on the soles of the shoes was similar to the pattern of the bloody shoe
prints on the Bensons’ kitchen floor. The shoes tested positive for blood, and the
officers were advised of this result. Schliebe later compared exemplar shoe prints
from the shoes to life-size enlargements of photographs of the bloody shoe prints
5
on the Bensons’ kitchen floor. He testified at trial that two of the bloody shoe
prints were made by defendant’s left shoe “to the exclusion of all other shoes.”
Van Lierop then took defendant to the police station and arrested him. He
retained a watch and a ring defendant was wearing, all of the clothes defendant
was wearing, including his socks, and approximately 40 coins found in
defendant’s pocket. Many of the coins were from the 1960’s and the 1940’s,
including a 1942 Mercury head dime, a 1947 dime, and a 1944 nickel. During a
search of the Bensons’ house, police found three old coins — a 1944 Mercury
head dime, a 1963 penny, and a 1968 penny — on Gladys’s partially made bed.
Micki Downey, the Bensons’ daughter, testified that the Bensons collected old
coins from the 1960’s and earlier. Downey also testified that after the murders,
family members went through the Bensons’ belongings, but were unable to find a
number of old coins they expected to find. Linda Bouffard, Gladys’s daughter and
Elmer’s stepdaughter, testified that in the mid 1960’s, when she worked in a bank,
Elmer started collecting coins — including old dimes, nickels, and pennies — and,
“for about a week,” gave her $20 every morning and asked her to bring back a roll
of quarters and two rolls of dimes. She also testified that after the murders, she
and other family members searched the Bensons’ house for money, but were
unable to find all of the quarters.
Gisele LaVigne, a senior criminalist with the Los Angeles County Sheriff’s
Department, tested the items taken from defendant for blood. She found blood on
“a lot of areas of” the shoes, including the shoelaces, tops and sides, and inside
grooves on the sole of the left shoe. Through serological testing, she determined
that a bloodstain on the instep of the left shoe contained genetic markers consistent
with Gladys’s blood, and she calculated that only 13 out of 10,000 people have
that particular combination of genetic markers. She also found blood on
defendant’s ring, watch and sock. Subsequent testing at the Serological Research
6
Institute in Northern California showed that the genetic profile of the blood on
defendant’s watch matched that of Gladys, and that only one in 4 million people
has that genetic profile.
Police investigators found defendant’s palm print on the door frame
between the Bensons’ living room and kitchen, and found his fingerprint on a
flashlight on a table in the Bensons’ service porch. They also talked with
Ledesma’s mother, who confirmed that defendant had come by her house on
February 11, but gave a time for the visit that was three hours different from the
time defendant had stated.
Autopsies showed that Elmer and Gladys died of multiple stab wounds.
They both had stab wounds to the throat and multiple stab wounds in the chest
near the heart. More specifically, Gladys had what was described as a “fatal”
wound to her abdomen; two wounds to her left chest; a “fatal” wound to her left
chest that broke a rib and punctured a lung twice, indicating the knife had been
thrust two times through the same wound; two “slash” wounds to her neck, one of
which was “potentially fatal”; five shallow “defense-type” wounds to her fingers
and wrists; diagonal, “shallow,” “slash type” wounds across her neck; and a
“fatal” wound to her upper left back that entered her chest and injured her aorta.
There was a small tear on her lip, and bruises and abrasions on her left arm, her
head above her eyebrow, and her pelvis. Elmer had two shallow wounds to his
throat; a “fatal” wound to his left chest that broke a rib and wounded a lung; a
“fatal” stab wound to his left chest that entered his heart and broke a rib; and two
wounds to his chest. The fatal stab wound to his heart was three and one-half
inches deep and five-eighths inches wide. Elmer also had defensive wounds on
his right hand and wrists, and bruising on his right forearm.
After the murders, the Bensons’ children and other family members went
through the Bensons’ house and belongings, checking for missing items. As
7
previously noted, they did not find all of the coins they expected to find. They
also did not find Gladys’s wallet, checkbook, and credit cards, which Gladys kept
in her purse, the “pink slips” for all of the Bensons’ vehicles, or the envelope in
which the Bensons kept those pink slips, which was marked “DMV” or “pink
slips” and kept in an organizer on a desk. They did, however, find the pink slip to
Gladys’s Jeep Cherokee in a dresser in Gladys’s bedroom, and the pink slip to
defendant’s car in an envelope at the back of the Bensons’ file organizer. Also
found were antique and other coins, several thousand dollars in cash hidden
throughout the Bensons’ house, jewelry in Gladys’s bedroom, Elmer’s wallet
containing credit cards and a $100 bill in a tray near the kitchen door, and firearms
throughout the house. Gladys’s missing credit cards were never used after the
murders.
Marta Contreras, a paralegal supervisor with the Los Angeles County
Public Defender, interviewed Sarahi Aleman, who was one of the employees of
the El Paraiso bar defendant drove home the morning of February 11. Contreras
testified that, during the interview, Aleman discussed conversations she had had
with defendant’s wife, Maria, after defendant’s arrest. According to Contreras,
Sarahi stated during the interview that Maria told her an extensive relationship
between defendant and another woman had placed a great strain on their marriage,
and that financial difficulties had caused other marital problems.
2. Defense Evidence
Family members and former coworkers testified regarding the
circumstances of defendant’s life, including his early years in Mexico, his parents’
separation, the four-to-five-year period he lived with his aunt after his mother
moved to Los Angeles, his move to Los Angeles to be reunited with his mother,
his mother’s remarriage, his marriage and the birth of his two daughters, his work
8
in Mexico as a police officer, his employment, and his various residences over the
years. Friends, family members, and former coworkers also testified that
defendant had never been violent or aggressive, is peaceful and honest, respects
the property rights of others, and is a good husband and father. Defendant offered
numerous documents from Mexico indicating he had no criminal record there.
Several defense witnesses testified about defendant’s relationship with the
Bensons. Defendant first moved next door to the Bensons in 1990. He lived there
until early 1995, when he moved to New Mexico. He moved back to the house
next to the Bensons in late 1995 or January 1996. Defendant and his family had a
very friendly relationship with the Bensons. Defendant’s daughter Jacqueline was
especially close to them; they treated her like a granddaughter, and she called them
her grandparents. Defendant frequently helped them without pay — fixing
appliances, doing yard work, servicing their vehicles — and had been welcome in
their home “[s]ince 1990, up to the date when” the crimes occurred. Defendant
went to the Bensons’ house “all the time,” and once visited Elmer in the hospital.
Elmer often visited defendant’s house, and defendant’s family invited the Bensons
to family gatherings.
Defendant’s wife, Maria Barron, testified that on Saturday, February 10,
defendant left the house between 8:30 and 9:00 p.m. to meet a friend, Jose Garcia,
and play pool. He returned home around 4:00 a.m. — she was not sure of the time
— and lay down next to her fully dressed. He arose again around 6:30 or 7:00
a.m., and told her he was going to see his friend, Juan. Around 8:00 a.m.,
Jacqueline went to the Bensons’ house to borrow a typewriter. She came back
crying and screaming, and said Elmer had something red on his chest. Maria,
Jacqueline, Ivan and others went to the Bensons’ house to investigate. Ivan called
police, and paramedics arrived around 9:00 a.m. Around 9:30 or 10:00 a.m., while
Maria was watching the events from her front porch, defendant returned, still
9
wearing the same clothes he had been wearing the previous night. Defendant said
he was cold, so Maria gave him a sweater, took the shirt he was wearing, and put it
on a bunk bed inside their house. She never saw any blood on defendant’s
clothing or shoes. She knew defendant had borrowed $100 from the Bensons, and
said he was scheduled to receive a $2,403 income tax refund. She also said her
family collected all kinds of coins and that defendant carried old coins because of
her “belief that if you have an old coin, then you will never lack any money, so we
would always have plenty of money.” She brought a 1941 Mercury head dime to
court and said she had “a lot more at home.”
Sarahi Aleman testified that when she arrived for work at the El Paraiso bar
at 9:00 p.m. on February 10, defendant was already at the bar sitting by himself
with a bucket of beers. When the bar closed, defendant drove her and two other
bar employees to their respective homes. Defendant had a six-pack of beer in the
car and asked Sarahi if he could drink some of the beers in her house. She invited
him in and he drank three beers while inside. He left sometime after 3:30 am.,
offering to give her a ride home the following day. Aleman denied that Maria had
told her about any extramarital affair or other marital or financial difficulties
involving defendant, and did not remember saying anything about these subjects to
Contreras, the public defender’s paralegal supervisor.
Jose Garcia testified he went to the El Paraiso bar on February 10 between
11:30 p.m. and midnight and saw defendant, whom he had known for three or four
years, sitting alone drinking a beer. They spent the evening talking, drinking beer,
and playing pool. Defendant appeared to be in a pleasant mood and nothing
seemed to be bothering him. He did not appear intoxicated. At closing time,
defendant waited for Sarahi, and Jose waited for another female bar employee.
After the women arrived, Jose and defendant went their separate ways.
10
B. Penalty Phase
1. Prosecution Evidence
The prosecution played a 14-minute videotaped montage of still
photographs depicting the Bensons’ lives. While the videotape played, Linda
Bouffard testified about what the photographs depicted. She also testified about
how she learned of, and was affected by, her parents’ murders. Micki Downey
testified about how she learned of her parents’ murders and how their deaths
affected her and her two children. Two of the Bensons’ grandchildren testified
about their memories of the Bensons, how they learned of the murders, and how
the murders affected them and their families.
2. Defense Evidence
Janett and Jacqueline Zamudio, defendant’s daughters, testified that during
the two years defendant had been in jail, he stayed in touch with his family by
telephone and letter. He sent them drawings and letters, gave them advice, and
encouraged them to do well in school. Jacqueline read many of defendant’s letters
to his family and described the accompanying drawings. She also testified she had
done well in school and that teachers had called her an excellent, exceptional, and
outstanding student.
II. DISCUSSION
A. Guilt Phase Issues
1. Denial of Defendant’s Motion to Suppress
Before trial, defendant moved under section 1538.5 to suppress the shoes,
pants, shirt, socks, watch, ring, and coins the police collected from him, and all
fruits of that evidence, i.e., all of his statements to the police. He argued that any
consent he gave to police to examine his shoes was the product of unlawful police
detention and that the other items were all discovered as a result of that unlawful
11
detention. The trial court denied the motion, finding that although defendant “may
have been a suspect” when he allowed the police to examine his shoes, “[t]here
was not a custodial or a coercive environment,” “defendant was not in custody,”
and he “freely and voluntarily” gave his shoes to police. Defendant argues the
trial court erred in denying his motion.
Where, as here, the prosecution relies on consent to justify a warrantless
search or seizure, it bears the “burden of proving that the defendant’s
manifestation of consent was the product of his free will and not a mere
submission to an express or implied assertion of authority. [Citation.]” (People v.
James (1977) 19 Cal.3d 99, 106.) Consent that is the product of an illegal
detention is not voluntary and is ineffective to justify a search or seizure. (Florida
v. Royer (1983) 460 U.S. 491, 507-508 (plur. opn. of White, J.); Wilson v.
Superior Court (1983) 34 Cal.3d 777, 790-791 (Wilson); People v. Shields (1988)
205 Cal.App.3d 1065, 1073-1074.) Where an illegal detention occurs, unless
“subsequent events adequately dispel the coercive taint of the initial illegality, i.e.,
where there is no longer causality, the subsequent consent is” ineffective. (People
v. $48,715 United States Currency (1997) 58 Cal.App.4th 1507, 1514; see also
Wilson, supra, at p. 791, fn. 12.)
Under these principles, the threshold issue here is whether defendant was
detained when he gave consent. As the United States Supreme Court has
explained: “ ‘[N]ot all personal intercourse between policemen and citizens
involves “seizures” of persons.’ ” (Florida v. Bostick (1991) 501 U.S. 429, 434.)
In this context, a seizure occurs only “when the officer, ‘ “by means of physical
force or show of authority,” ’ terminates or restrains [a person’s] freedom of
movement [citations] ‘through means intentionally applied’ [citation].” (Brendlin
v. California (2007) __ U.S. __ [127 S.Ct. 2400, 2405].) The dispositive question
is whether, “ ‘in view of all of the circumstances surrounding the incident, a
12
reasonable person would have believed that he [or she] was not free to leave’
[citation].” (Id., 127 S.Ct. at p. 2405) “[W]hen a person ‘has no desire to leave’
for reasons unrelated to the police presence, the ‘coercive effect of the encounter’
can be measured better by asking whether ‘a reasonable person would feel free to
decline the officers’ requests or otherwise terminate the encounter’ [citations].”
(Id. at pp. 2405-2406.) The test is “objective,” not subjective; it looks to “the
intent of the police as objectively manifested” to the person confronted. (Id. at p.
2408.) Accordingly, an “officer’s uncommunicated state of mind and the
individual citizen’s subjective belief are irrelevant . . . .” (In re Manuel G. (1997)
16 Cal.4th 805, 821.)
Whether a seizure occurred within the meaning of the Fourth Amendment
is a mixed question of law and fact qualifying for independent review. (Cf.
Thompson v. Keohane (1995) 516 U.S. 99, 102 [whether a suspect is “in custody”
for purposes of the Fifth Amendment is a mixed question of law and fact
qualifying for independent review]; People v. Holloway (2004) 33 Cal.4th 96, 120
[same].) Accordingly, “we review the trial court’s findings of historical fact under
the deferential substantial evidence standard, but decide the ultimate constitutional
question independently. [Citations.]” (Holloway, supra, at p. 120.) We must
accept factual inferences in favor of the trial court’s ruling. (People v. Stansbury
(1995) 9 Cal.4th 824, 831.) If there is conflicting testimony, we must accept the
trial court’s resolution of disputed facts and inferences, its evaluations of
credibility, and the version of events most favorable to the People, to the extent the
record supports them. (Ibid.; People v. Boyer (1989) 48 Cal.3d 247, 263.)
Applying this standard of review and based on the testimony at the
suppression hearing, at which defendant testified, we reject defendant’s claim that
his consent to police examination of his shoes was the product of unlawful police
detention. A little before 1:30 p.m. on February 11, after examining the crime
13
scene, Detective van Lierop went to the house next door and approached
defendant and other members of his family, who were standing outside on the
front porch. According to van Lierop, after identifying himself and showing his
badge, he “asked” if defendant, his daughter Jacqueline, and his nephew Ivan,
would go to the South Gate police station to be interviewed as potential witnesses
and to provide background information on the victims. Van Lierop said
“something to the effect that [the officers] would like Ivan and . . . Jacqueline and
also [defendant] to accompany [the officers] to the police station so [they] can ask
them questions pertaining to the Bensons’ habits and any other information that
they may have pertaining to the Bensons.” Defendant confirmed that van Lierop
informed him the police wanted to talk to him “as a potential witness, not as a
suspect.” Defendant also testified he “believed” van Lierop at the time.
According to van Lierop, defendant “was very willing” to go to the station and did
not object to the request “in any way or show any hesitation or any
unwillingness.” Defendant confirmed that he did not indicate he did not want to
go to the station, and stated he “said yes” when the police told him they wanted
him to come with them “as a potential witness.”
Approximately 1:30 p.m., one uniformed patrol officer, with gun and badge
visible, drove defendant, Jacqueline and Ivan two blocks to the police station in a
marked police car. They all sat in the backseat; no one was handcuffed or patted
down for weapons. There was no cage between the car’s front and backseats, but
the car’s back doors could not be opened from inside (as was the case with all of
the department’s cars). Defendant testified he “didn’t feel [he was] in custody
when [he was] taken in the police car” to the station.
Van Lierop testified that at the station, defendant, Jacqueline, and Ivan
were put together in a “break” or “conference room directly adjacent to the main
part of the detective bureau,” which contained a long table inside with about eight
14
chairs, a refrigerator, and a coffeepot, and which was “attached or directly
adjacent to” restrooms. Each was then separately interviewed by van Lierop and
Miley in an “interview room” approximately “10-by-10” and containing “a small
table and about 4 or 5 chairs.” The interview room was not in “the jail part of the
police station,” but was “attached to the opposite end of the main part of the
detective bureau” in “a nonsecure area” where “the detectives do their normal
daily duties.” As each was questioned in the interview room, the other two waited
together in the conference room. An officer was assigned to the conference room
area. According to van Lierop and Miley, the officer was assigned to the area, not
to ensure that defendant, Jacqueline and Ivan did not leave, but to assist them in
the event they needed anything and to keep them from nosing around the police
department. Van Lierop did not know whether the officer actually sat in the
conference room; defendant testified the officer was “always . . . guarding the
door.” At no point was defendant handcuffed, and he was allowed to use the
bathroom when he asked.
Jacqueline and Ivan were interviewed first, each for 20 minutes or less.
Defendant was then interviewed for 20 or 25 minutes, beginning about 2:20 p.m.
He was not advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S.
436), and was instead told by Miley “he was not under arrest” or “in custody” and
“it was not an interrogation.” According to van Lierop, the questioning was not
“hostile or menacing in any fashion.” Miley similarly testified that no accusations
were made against defendant. During the interview, defendant did not in any way
suggest he was involved in the crime, and he “generally” provided “background
information . . . about how he knew the victims, what he knew about them, when
he’[d] seen them, that sort of thing.” He also gave an account of his activities
during the relevant timeframe. At the detectives’ request, defendant also gave
15
them permission to return to his residence to look for shoes matching the shoe
prints on the floor of the Bensons’ house.
After the interview, defendant returned to the conference room where
Jacqueline and Ivan were waiting. They waited there while van Lierop and Miley
returned to defendant’s residence. Defendant asked to make a telephone call and,
about 20 minutes later, was allowed to make the call.
The officers did not find any matching shoes at defendant’s residence.
They did, however, interview defendant’s wife, and she gave them information
about defendant’s activities during the previous day that did not match the
information defendant had given.
The officers returned to the station and, shortly after 4:00 p.m., again talked
with defendant, this time in the large conference room. Defendant was not given
his Miranda rights and the interview was not recorded because, according to
Miley, defendant “was still considered a witness” and department policy was not
to “tape-record witnesses.” According to van Lierop, Miley told defendant he was
not in custody, and defendant said “he wanted to help any way he could.” Miley
testified that no accusations were made against defendant during the second
interview, but both officers testified they told defendant about the discrepancies
between his statements and his wife’s. In response, defendant amended his prior
statement regarding his activities but did not indicate in any way he had
participated in the murders.
According to Miley, he then asked defendant, “do you mind if I look at
your shoes?” According to van Lierop, defendant “said sure,” and “something to
the effect that we could certainly look at his shoes if it would help in the
investigation.” According to Miley, defendant said something like, “No, help
yourself.” Both officers testified that defendant then reached down, removed his
shoes, and gave them to Miley. Miley testified that defendant did so “almost
16
energetically.” Defendant testified that when the officers asked for his shoes, he
“said yes” and gave them his shoes. He also testified he “had no reason” not to
want to give them his shoes, he “didn’t mind” and “didn’t care,” and although the
officers used a “tone of voice like it’s an order,” they did not threaten him or act
“mean” towards him.
In view of all of the circumstances, we conclude that before giving the
officers his shoes, defendant was not detained within meaning of the Fourth
Amendment. The evidence in the record supports the conclusion that there was no
threat or application of force, no intimidating movement, no brandishing of
weapons, no blocking of exits, and no command associated with the officers’
request that defendant come to the police station. (See United States v. Drayton
(2002) 536 U.S. 194, 204.) Defendant was not taken to the station alone; he was
accompanied by his daughter and nephew. All three were told the police wanted
to speak with them as potential witnesses, not as suspects, and none of them was
ever patted down for weapons or handcuffed. As noted above, defendant himself
testified he “didn’t feel [he was] in custody when [he was] taken in the police car”
to the station. At the station, defendant was left waiting in a large conference
room in a nonsecure area with various accessible amenities (bathroom,
refrigerator, coffeepot) while his daughter and nephew were interviewed. Before
his first interview, defendant was not given his Miranda rights, and was instead
told that he was not under arrest, that he was not in custody, and that the interview
was not an interrogation. The questioning, which lasted no more than 25 minutes,
was not at all hostile, menacing, or accusatory. With defendant’s permission, the
officers returned to defendant’s residence to look for evidence. While they were
gone, defendant waited in an nonsecure conference room and was allowed, upon
17
his request, to make a telephone call. When the officers returned to continue the
interview about an hour and a half later,5 they again told defendant he was not in
custody, and defendant said “he wanted to help any way he could.” Although the
officers told defendant about the discrepancies between his statements and his
wife’s, they did not make accusations against him. According to defendant’s own
testimony, when the officers asked if they could look at his shoes, they did not
threaten him or act “mean” towards him. Given these circumstances, a reasonable
person in defendant’s situation would not have believed he or she was not free to
leave, to decline the officers’ requests, or to otherwise terminate the encounter.
In arguing otherwise, defendant relies heavily on his view that “from the
very beginning” of the investigation, the officers saw him as “a prime suspect.”
Defendant’s view is not consistent with the officers’ testimony regarding the point
at which, or the extent to which, they considered him a suspect. Moreover, aside
from issues of testimonial credibility, an officer’s “beliefs concerning the potential
culpability of the individual being questioned” are relevant to determining whether
a seizure occurred “only if” those beliefs “were somehow manifested to the
individual” being interviewed — “by word or deed” — and “would have affected
how a reasonable person in that position would perceive his or her freedom to
leave.” (Stansbury v. California (1994) 511 U.S. 318, 325.) Indeed, “[e]ven a
clear statement from an officer that the person under interrogation is a prime
suspect is not, in itself, dispositive of the . . . issue, for some suspects are free to
5
Based on his own testimony at the suppression hearing, defendant asserts
he waited “about three hours” for van Lierop and Miley to return for the second
interview. The trial court could reasonably find that the time period was as little
as an hour and a half, based on van Lierop’s testimony at the suppression hearing
that the first interview began about 2:20 p.m. and lasted 20 or 25 minutes, and that
the second interview began shortly after 4:00 p.m.
18
come and go until the police decide to make an arrest. The weight and pertinence
of any communications regarding the officer’s degree of suspicion will depend
upon the facts and circumstances of the particular case.” (Ibid.) According to the
record here, before being given defendant’s shoes, the officers made no statement
indicating they viewed defendant as a suspect, let alone a prime suspect. And,
although they told defendant of discrepancies between his statement and his
wife’s, immediately before doing so, they again informed him he was not in
custody. On this record, defendant’s reliance on the officers’ supposed view of his
role in the crime is unavailing.
Other circumstances on which defendant relies are also unpersuasive.
Defendant notes the officers had badges and weapons and were wearing uniforms.
However, the high court has held that these factors “have little weight in the
analysis” for determining whether a seizure occurred. (United States v. Drayton,
supra, 536 U.S. at p. 204.) Defendant also notes that an officer was stationed in or
around the conference room where he waited and was interviewed the second
time. However, van Lierop and Miley testified that the officer was assigned to the
area, not to ensure that defendant, Jacqueline and Ivan did not leave, but to assist
them in the event they needed anything and to keep them from nosing around the
police department. Nothing in defendant’s testimony suggests the officer did
anything to make defendant, who was expressly told he was not in custody and
was not under arrest, believe the officer would have prevented defendant from
leaving.6 Notably, in several cases, the high court has rejected reliance on
analogous circumstances in finding no seizure under the Fourth Amendment. (See
Drayton, supra, at pp. 198-205 [no seizure where police officer displaying a badge
6
Defendant testified that the officer was “just standing around.”
19
and carrying a concealed weapon knelt on driver’s seat of bus and faced the
passengers while two other officers questioned the passengers without informing
them of their right to refuse to cooperate]; INS v. Delgado (1984) 466 U.S. 210,
212-219 [no seizure where armed agents displaying badges were stationed at
factory exits while other agents walked around inside questioning workers without
informing them they were free to leave].) Finally, defendant also notes that the
officers never told him he did not have to talk or go with them, or that he was free
to leave. However, the high court has “rejected . . . the suggestion that police
officers must always inform citizens of their right to refuse” police requests.
(United States v. Drayton, supra, 536 U.S. at p. 206.) No “presumption of
invalidity attaches if a citizen consented without explicit notification that he or she
was free to refuse to cooperate.” (Id. at p. 207.) Although the officers here did
not expressly inform defendant of his right to refuse their requests, they did advise
him he was not under arrest and was not in custody, they did request permission to
examine his shoes, and the totality of the circumstances indicates his consent was
voluntary.7
7
Defendant also relies on the “tone of the officers’ voices.” He testified at
the suppression hearing that when the officers asked to examine his shoes, they
used a “tone of voice like it’s an order.” Of course, on this factual issue, it was for
the trial court to judge the witnesses’ credibility; on appeal, all presumptions favor
the exercise of that power and we must uphold the trial court’s credibility findings,
both express and or implied, if substantial evidence supports them. (People v.
Lawler (1973) 9 Cal.3d 156, 160.) On the record here, the trial court was not
required to believe defendant’s vague and conclusory testimony regarding the
officers’ tone of voice. As for defendant’s repeated assertions that “he took” the
officers’ requests as “command[s]” and “felt [he] had no choice” but to comply, as
earlier noted, defendant’s subjective beliefs are irrelevant.
20
2. Excusing Juror for Cause
Defendant asserts the trial court committed reversible error and violated his
constitutional rights in excusing Juror No. 8812 during trial over his objection.
For reasons set forth below, we reject the claim.8
On the morning of November 3, 1997, the trial court called counsel into
chambers and stated: “There has been an issue raised with the bailiff, Juror
Number [8812]. And we’ll see what his problem is.” The following exchange
then occurred between the court and the juror:
“The Court: Okay. Yes, sir, good morning, sir.
“Juror No. 8812: Good morning, Judge.
“The Court: Sit down. How are you today?
“Juror No. 8812: Good.
“The Court: Good, good.
“Juror No. 8812: I’ve got a problem. My dad had an operation about 3
weeks ago. And yesterday he decided to stop treatment. And I don’t know if
that’s going to pose a problem. We were told that he — he had a kidney dialysis
8
In this argument, and in other arguments we later address, defendant
contends the error he is asserting violated one or more of his constitutional rights.
Insofar as he failed in the trial court to make the constitutional claims he raises on
appeal, those claims are forfeited except to the extent (1) they are “of a kind . . .
that required no trial court action by the defendant to preserve [them], or (2) the
new arguments do not invoke facts or legal standards different from those the trial
court itself was asked to apply, but merely assert that the trial court’s act or
omission, insofar as wrong for the reasons actually presented to that court, had the
additional legal consequence of violating the Constitution. . . . [¶] In the latter
instance, of course, rejection, on the merits, of a claim that the trial court erred on
the issue actually before that court necessarily leads to rejection of the newly
applied constitutional ‘gloss’ as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.” (People v. Boyer (2006)
38 Cal.4th 412, 441, fn. 17 (Boyer).)
21
before. And the doctor said that he might have two days, a couple weeks. And,
you know, I don’t know if that’s going to pose a problem as far as —
“The Court: Well, I mean, the problem is we want to accommodate you,
obviously. This is your father, you say, right?
“Juror No. 8812: Yes.
“The Court: And obviously it would be a distraction for you. I would
assume, worrying about your father. Where is he, by the way?
“Juror No. 8812: In San Diego.
“The Court: San Diego? Okay. I gather you want to get down to see him
and be with him?
“Juror No. 8812: We were there yesterday. And basically they accepted
what his wishes was [sic]. But —
“The Court: It’s just a question of time, in other words, you’re saying?
“Juror No. 8812: Yes.
“The Court: Okay.
“[Defense Counsel]: I have no questions.
“[The Prosecution]: I have no questions.
“The Court: Okay. We’re going to talk it over, and I’m going to let you go
back in. And I’ll let you know. Thank you very much.”
In an ensuing discussion, the court expressed “concern” about “whether or
not [Juror No. 8812] would be able to concentrate on this trial, particularly if his
father is” dying. The court explained: “I don’t think we’re going to have a very
receptive juror. He did indicate — I think the bottom line is that he does want to
get down there with him. Based upon what he told me, I’ll find good cause, all
right.” The prosecution then interjected: “For the record, this gentleman had
expressed some sort of hardship earlier. And I remember he was one that said he
didn’t think he could stay the length of the trial. The record will reflect what the
22
nature of the hardship was. But one other time he asked to be excused, at least my
understanding is he had problems.” The court responded: “But I am finding good
cause based upon the father — medical authorities indicating to him there’s
nothing they can do, and the having at most two weeks. And I got the impression
that this juror was obviously visibly concerned by the condition of his father. So
I’m going to find good cause and excuse this juror.” Defense counsel then stated:
“I object to that. I do not feel good cause was shown. The father is about 125
miles away. . . . And it’s really uncertain when the father will die. So based upon
everything, I do not feel good cause was shown.” Back in open court, without the
jury present, the court stated: “We were notified by the bailiff this morning that
Juror Number [8812] had a personal family problem. We conducted a hearing in
chambers regarding that problem . . . . And based upon what was heard in
chambers, the court did make a finding of good cause over the objection of
defense counsel . . . .” The court then identified the replacement juror.
Under section 1089, a court may discharge a juror who, “upon . . . good
cause shown to the court is found unable to perform his or her duty . . . .” We
review a trial court’s decision to discharge a juror for good cause “for abuse of
discretion. [Citations.] The juror’s inability to perform the functions of a juror
must appear in the record as a ‘demonstrable reality’ and will not be presumed.
[Citation.] The trial court’s finding [that] ‘good cause’ exists will be upheld on
appeal if substantial evidence supports it. [Citation.]” (People v. Guerra (2006)
37 Cal.4th 1067, 1158.)
We reject defendant’s claim that the trial court abused its discretion when it
found good cause to discharge Juror No. 8812. “We have in the past rejected
similar claims in similar circumstances. (See People v. Cunningham [(2001) 25
Cal.4th 926,] 1028-1030 [juror’s father near death after suffering stroke]; People
v. Ashmus [(1991) 54 Cal.3d 932,] 986-987 [death of juror’s mother]; In re
23
Mendes (1979) 23 Cal.3d 847, 852 [death of juror’s brother].)” (People v.
Leonard (2007) 40 Cal.4th 1370, 1409-1410 (Leonard) [death of juror’s father-in-
law].) In arguing otherwise, defendant emphasizes that Juror No. 8812 never
asked to be discharged. However, in cases involving the death or impending death
of a juror’s relative, we have rejected the view that a specific request for discharge
is necessary to establish good cause; “no such request is required. [Citation.]”
(Leonard, supra, at p. 1410.) Defendant also asserts that, “[b]ecause the court cut
Juror No. 8812 off when he tried to say what [his] ‘problem’ might be,” the
“record is silent” as to whether Juror No. 8812 needed or wanted to be with his
father and could continue serving, and improperly “engaged in speculation when it
assumed that Juror No. 8812’s father’s condition” would be a distraction.
However, a juror’s “behavior and demeanor [may] suppl[y] substantial evidence”
of good cause for discharge. (People v. Lucas (1995) 12 Cal.4th 415, 489.) Here,
as the People argue, that Juror No. 8812 brought this issue to the court’s attention
by notifying the bailiff he had a personal family problem is evidence his father’s
impending death would likely affect his ability to serve. Also supporting this
conclusion is the court’s observation on the record that Juror No. 8812 “was
obviously visibly concerned by the condition of his father.”9 Although it may
have aided our review had the court questioned Juror No. 8812 regarding his state
of mind or had he affirmatively stated on the record his ability and willingness, or
9
Notably, when defense counsel subsequently objected to the court’s
finding, he did not disagree with the court’s observation; he mentioned only that
Juror No. 8812’s father was only “about 125 miles away” and that it was “really
uncertain when the father [would] die.” Neither of these facts lessens the court’s
concern, based in part on its personal observations, that Juror No. 8812 would not
“be able to concentrate on this trial” and would not be “a very receptive juror.”
24
lack thereof, “such inquiry . . . is not required.” (People v. Beeler (1995) 9 Cal.4th
953, 989.) On this record, no abuse of discretion appears.
3. Admitting Linda Bouffard’s Testimony
The prosecution’s theory of robbery, robbery felony murder, and the
robbery special circumstance depended in part on the taking during the homicides
of Gladys’s wallet containing money, checks and credit cards. Apparently to
establish that the wallet was in the Bensons’ home at the time of the crimes, the
prosecution asked Linda Bouffard whether her mother, Gladys, ever said anything
“about her wallet being taken or stolen or lost or anything like that.” Defense
counsel objected that the question “call[ed] for hearsay,” and the court responded:
“I think if it is, it’s an exception, perhaps, under a spontaneous declaration.
Overruled.” Defense counsel made similar hearsay objections, which the trial
court also overruled, when the prosecution followed up by asking whether Gladys
ever said her credit or checks had been stolen or taken or “anything like that.”
Bouffard answered “no” to all of these questions. On appeal, defendant asserts
this testimony was hearsay and its admission was both error under the Evidence
Code and a violation of his constitutional rights.
We reject defendant’s argument because, as the People assert, the evidence
was not hearsay. “ ‘Hearsay evidence’ is evidence of a statement that was made
other than by a witness while testifying at the hearing and that is offered to prove
the truth of the matter stated.” (Evid. Code, § 1200, subd. (a), italics added.)
Defendant is arguing that Gladys’s failure to say anything about the items being
missing or taken — i.e., her silence regarding these matters — constitutes “a
statement that was made” for purposes of the hearsay rule. (Ibid.) However,
“nonverbal conduct” — such as a person’s silence — constitutes a “statement”
under the hearsay rule only if it was “intended by [the person] as a substitute for
25
oral or written verbal expression.” (Id., § 225.) Indeed, as defendant explains in
his brief, regarding this issue, Gladys made “no qualifying statement, spontaneous
or otherwise.” Because nothing suggests Gladys intended her failure to say
anything about the loss or theft of her wallet, checks, or credit cards, to be “a
substitute for oral or written verbal expression” (ibid.), Bouffard’s testimony to
that effect was not hearsay.10 (Cf. People v. Snow (1987) 44 Cal.3d 216, 227
[“nonassertive responses or reactions,” such as defendant’s lack of reaction upon
hearing news of victim’s death, are not hearsay].)
We also reject defendant’s argument that, by “rul[ing] three times in the
jury’s presence that what Mrs. Benson did not tell [Bouffard] about her wallet,
credit cards and checks was admissible as spontaneous declarations,” the trial
court “elevated Mrs. Benson’s alleged silence . . . to assertive nonconduct . . .
which constitutes hearsay.” Even were it legally possible to find that a trial
court’s ruling on a hearsay objection transforms nonhearsay into hearsay — a
10
To explain the intent of the statutes governing defendant’s hearsay
argument (Evid. Code, §§ 225, 1200), the relevant legislative committees
submitted a comment to the Legislature explaining: “[E]vidence of a person’s
conduct out of court is not inadmissible under the hearsay rule expressed in
[Evidence Code] [s]ection 1200 unless that conduct is clearly assertive in
character. Nonassertive conduct is not hearsay. [¶] . . . [¶] Under the Evidence
Code, nonassertive conduct is not regarded as hearsay for two reasons. First, one
of the principal reasons for the hearsay rule — to exclude declarations where the
veracity of the declarant cannot be tested by cross-examination — does not apply
because such conduct, being nonassertive, does not involve the veracity of the
declarant. Second, there is frequently a guarantee of the trustworthiness of the
inference to be drawn from such nonassertive conduct because the actor has based
his actions on the correctness of his belief, i.e., his actions speak louder than
words.” (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 333 (1965 Reg.
Sess.) 1 Assem. J. (1965 Reg. Sess.) p. 1755; see also Sen. Com. on Judiciary,
Rep. on Assem. Bill No. 333 (1965 Reg. Sess.) 2 Sen J. (1965 Reg. Sess.) p. 1573
[adopting comment in Rep. of Assem. Com. on Judiciary].)
26
question we need not decide — the record here would not warrant such a finding.
That record does not support defendant’s characterization of the trial court’s
ruling: that Gladys’s silence — i.e., her failure to say anything — constituted a
spontaneous declaration. Rather, it reflects a ruling that if Gladys did say
something to her daughter about the matters in question, those statements would
constitute spontaneous declarations. Because the jury would not have understood
the trial court’s ruling as defendant suggests, his argument that the trial court’s
ruling elevated Gladys’s silence into assertive nonverbal conduct fails.11
4. Testimony That Evidence Was Sent to Defense Laboratory
During her testimony about the testing of the items taken from defendant
upon his arrest, criminalist Gisele LaVigne stated that although the tests showed
the presence of blood on defendant’s ring, she did not perform additional tests to
determine whether the blood was from a human or some other animal. In
explaining why, she stated: “The stain [from the ring] was so small, that I would
have consumed it had I attempted to do any additional analysis.” The prosecution
then asked why LaVigne was “concern[ed] about consuming all of the blood,” and
she replied: “Well, my initial concern is that I want to get the most information
from that stain. But I also want to keep in mind that if this case is going to be
analyzed by a defense lab, I need to leave a little bit of the sample for them to be
able to reexamine.” The prosecution then asked whether “that was done in this
case,” and LaVigne replied: “The evidence was released to a defense lab.”
Defense counsel “object[ed] to [this] answer and ask[ed] that it be
stricken,” explaining: “The appointment of the defense lab was done
11
Although this analysis is different from the trial court’s, “we review the
ruling, not the court’s reasoning and, if the ruling was correct on any ground, we
affirm.” (People v. Geier (2007) 41 Cal.4th 555, 582 (Geier).)
27
confidentially. I think it’s improper that the jury be informed that a defense lab
was appointed. And I think that definitely prejudices the defense case. The
preliminary indication being if I don’t put any defense evidence on, the jury will
come to the conclusion that the defense lab’s analysis does not help the defense
case. So, therefore, I would ask for a mistrial at this point.” The prosecution
responded that (1) “defense lab work is not covered by the attorney/client
privilege,” (2) “chain of custody” is “something I’m going to have to go into with”
LaVigne because defendant “filed a written motion contesting” that issue,12 and
(3) “it’s fair comment . . . that counsel did have a split [of the blood samples]
done . . . and then didn’t put anybody on.” The court then stated: “I’m going to
decline to grant the mistrial. I don’t see any prejudice to the question — or the
question itself.” Defense counsel then stated his intent to “object every time any
mention is made of defense lab or defense testing or lack of clothing because it’s
in the hands of the defense lab, etc., unless the court will deem that to be a
continuing objection.” With the prosecution’s consent, the court ruled that “any
reference by this witness to material going to the defense or defense lab will be
deemed objected to by defense counsel.”
LaVigne later testified on direct examination that “[t]he clothing items were
released to a defense lab, and according to the record, they have not been returned
yet.” On redirect examination, the prosecution asked: “[Y]our results and the
evidence in this case [were] sent to a defense laboratory, is that correct?” Defense
counsel objected, “incorporat[ing]” his earlier argument “by reference.” After the
12
It appears that defendant’s “chain of custody” motion only raised issues
regarding the evidence’s treatment “at the crime scene,” before it was “delivered
to the crime lab.” On appeal, the People do not argue the evidence was admissible
to establish chain of custody.
28
court overruled the objection, the prosecution asked: “It was all sent to a defense
lab?” LaVigne replied: “Yes, it was.”
Defendant claims the trial court prejudicially erred in permitting LaVigne
to testify she sent the tested evidence and her test results to a defense laboratory.
In his opening brief, he asserts that admission of this evidence “deprived [him] of
his right to effective assistance of counsel, and denied him his rights to a fair trial
and to due process under the federal and state Constitutions.” He argues that “the
defense’s access to the blood evidence . . . was a direct exercise of [his] Sixth
Amendment right to the effective assistance counsel,” and that “[b]y adducing
evidence regarding the exercise of that right to bolster the prosecution case, the
prosecutor unfairly made the assertion of that right costly.” In his reply brief,
defendant takes a seemingly different tack, explaining that “the thrust of [his]
argument is that the prosecutor’s improper questions and LaVigne’s answers
thereto disclosed confidential information protected by the work-product privilege,
and left [the] jury with the obvious impression that the reason the defense did not
offer any expert testimony . . . was that the defense expert’s analysis . . . was the
same as the prosecution’s.”
Initially, this record presents substantial questions regarding defendant’s
ability to raise these arguments on appeal. As the discussion above demonstrates,
at trial, defense counsel did not offer a constitutional basis for his objection.
Under these circumstances, a constitutional claim is not cognizable on appeal
unless (1) it “is of a kind (e.g., failure to instruct sua sponte; erroneous instruction
affecting defendant’s substantial rights) that required no trial court action by the
defendant to preserve it, or (2) the new arguments do not invoke facts or legal
standards different from those the trial court itself was asked to apply, but merely
assert that the trial court’s act or omission, insofar as wrong for the reasons
actually presented to that court, had the additional legal consequence of violating
29
the Constitution.” (Boyer, supra, 38 Cal.4th at p. 441, fn. 17.) Defendant’s
constitutional claims do not fall under the former exception. Thus, they are
cognizable only to the extent they do not involve facts or legal standards different
from those defendant presented to the trial court. In other words, defendant “may
not [now] argue on appeal that [constitutional provisions] required exclusion of
the evidence for reasons other than those articulated in his . . . argument” at trial.
(People v. Partida (2005) 37 Cal.4th 428, 435 (Partida).)
Defendant’s work-product argument also faces procedural hurdles. For
one, defendant first raised it in his reply brief. 13 “Normally, a contention may not
be raised for the first time in a reply brief. [Citation.]” (People v. Peevy (1998) 17
Cal.4th 1184, 1206; see also People v. Bonilla (2007) 41 Cal.4th 313, 349-350
[“By waiting until his reply brief to argue that the prosecution’s use of strikes
should be subjected to a comparative juror analysis, [defendant] has forfeited the
issue.”].)
Perhaps more importantly, it appears that defendant did not adequately
invoke the work product privilege in objecting at trial. Under California law, error
in admitting evidence may not be the basis for reversing a judgment or setting
aside a verdict unless “an objection to or a motion to exclude or to strike the
evidence . . . was timely made and so stated as to make clear the specific ground
13
A footnote in defendant’s recitation of the relevant facts contains the sole
mention in defendant’s opening brief of the work product privilege. There, after
noting the prosecution’s statement below that it had “the right” under California
law “to subpoena in and call [defendant’s] expert,” defendant stated: “[T]he
prosecutor was clearly mistaken, as he had no such right. [Citations.] [¶] In
addition, the confidentiality of the defense expert’s findings in the present case
was protected by the attorney work-product privilege (Code Civ. Proc., § 2018).”
Defendant did not again mention the work product privilege in arguing that the
trial court erred in permitting LaVigne to testify she sent the tested items and her
findings to a defense laboratory.
30
of the objection or motion.” (Evid. Code, § 353, subd. (a), italics added.) “In
accordance with this statute, we have consistently held that the ‘defendant’s failure
to make a timely and specific objection’ on the ground asserted on appeal makes
that ground not cognizable. [Citation.]” (People v. Seijas (2005) 36 Cal.4th 291,
302.) Although no “particular form of objection” is required, the objection must
“fairly inform the trial court, as well as the party offering the evidence, of the
specific reason or reasons the objecting party believes the evidence should be
excluded, so the party offering the evidence can respond appropriately and the
court can make a fully informed ruling.” (Partida, supra, 37 Cal.4th at p. 435.)
Defendant’s objection did not fairly inform the trial court or the prosecution
that defendant was objecting on work product grounds. As set forth above, in
objecting to LaVigne’s testimony, defense counsel stated only that “[t]he
appointment of the defense lab was done confidentially,” that it was “improper
[for] the jury [to] be informed that a defense lab was appointed,” and that this
information “prejudice[d] the defense case” by supporting “the conclusion that the
defense lab’s analysis does not help the defense case.” At no point did defense
counsel mention the work product privilege or in any way indicate — for example,
by citing a relevant statute or decision — that the work product privilege was the
basis for his claim of confidentiality. In short, defendant is now impermissibly
seeking to “assert[] [on appeal] a different theory for exclusion than he asserted at
trial.” (Partida, supra, 37 Cal.4th at p. 438.)
In any event, defendant’s work product claim fails on its merits. Under
Code of Civil Procedure section 2018.030, work product generally enjoys one of
two levels of protection in California. Subdivision (a) of that section establishes
absolute protection for “[a] writing that reflects an attorney’s impressions,
conclusions, opinions, or legal research or theories”; such writings are “not
discoverable under any circumstances.” (Code Civ. Proc., § 2018.030, subd. (a).)
31
Subdivision (b) of that section establishes qualified protection for work product
“other than a writing described in subdivision (a)”; such material is “not
discoverable unless the court determines that denial of discovery will unfairly
prejudice the party seeking discovery in preparing that party’s claim or defense or
will result in an injustice.” (Code Civ. Proc., § 2018.030, subd. (b).) In 1990, by
passing Proposition 115, the electorate enacted Penal Code section 1054.6, which
currently provides in relevant part: “Neither the defendant nor the prosecuting
attorney is required to disclose any materials or information which are work
product as defined in subdivision (a) of Section 2018.030 of the Code of Civil
Procedure.” (Italics added.) 14 Through its reference to Code of Civil Procedure
section 2018.030, subdivision (a), Penal Code section 1054.6 “ ‘expressly limits
the definition of “work product” in criminal cases to “core” work product, that is,
any writing reflecting “an attorney’s impressions, conclusions, opinions, or legal
research or theories.” ’ ” (Garcia v. Superior Court (2007) 42 Cal.4th 63, 68, fn.
2, italics added.) The evidence in question here — LaVigne’s testimony about the
prosecution’s actions in sending the tested items and the test results to a defense
laboratory — does not qualify as a “writing that reflects” defense counsel’s
14
When defendant committed his crimes and when his trial occurred, Penal
Code section 1054.6 referred to Code of Civil Procedure former section 2018,
subdivision (c), which then stated the absolute work product protection now stated
in Code of Civil Procedure section 2018.030, subdivision (a). (Pen. Code former
§ 1054.6, codified by Prop. 115 (Crime Victims Justice Reform Act) as approved
by voters, Primary Elec. (June 5, 1990); see Stats. 1990, p. A-254, § 23; Code Civ.
Proc., former § 2018, subd. (c), as amended by Stats. 1990, ch. 207, § 1, p. 1364.)
Code of Civil Procedure former section 2018, subdivision (c), was later repealed
and reenacted in substantively identical form as Code of Civil Procedure section
2018.030, subdivision (a). (Stats. 2004, ch. 182, §§ 22, 23.) At the same time,
Penal Code section 1054.6 was amended to refer to Code of Civil Procedure
section 2018.030, subdivision (a). (Stats. 2004, ch, 182, § 50.) Our analysis
would be the same under the prior statutes.
32
“impressions, conclusions, opinions, or legal research or theories.” (Code Civ.
Proc., § 2018.030, subd. (a).) Nor does anything in the record suggest the
testimony derived from any such writing. The admission of this evidence
therefore did not contravene the work product privilege as it applies in criminal
cases.15 (Cf. Pope v. State (Tex.Crim.App. 2006) 207 S.W.3d 352, 354-355 [work
product privilege does not preclude prosecution’s DNA testing experts from
testifying they forwarded their reports to another expert].)
In arguing otherwise, defendant relies on People v. Coddington (2000) 23
Cal.4th 529 (Coddington). There, during the sanity phase of the defendant’s trial,
the prosecution asked the defendant’s testifying experts whether they were aware
that three nontestifying defense experts also had evaluated the defendant, and
emphasized in closing argument that the testifying defense experts had no
knowledge of the nontestifying experts. (Id. at p. 604.) We found a violation of
the work product privilege, reasoning that the prosecutor’s questioning and
argument “contravened” the policies the privilege reflects. (Id. at p. 606.)
Defendant’s reliance on Coddington is misplaced. Although we decided
Coddington after section 1054.6’s enactment, our opinion did not mention that
statute, and properly so. Because the trial in Coddington ended in 1989
(Coddington, supra, 23 Cal.4th at p. 547), before section 1054.6’s enactment, the
statute was inapplicable in the case and irrelevant to our work product analysis.
(See Tapia v. Superior Court (1991) 53 Cal.3d 282.) Thus, as we explained in
Coddington, the work product privilege there at issue extended beyond the
15
Our rejection of defendant’s work product claim on the merits “necessarily
leads to rejection” of his constitutional challenges to LaVigne’s testimony insofar
as they are cognizable on appeal despite his failure at trial to object to the
testimony on a constitutional basis. (Boyer, supra, 38 Cal.4th at p. 441, fn. 17.)
33
writings now listed in Code of Civil Procedure section 2018.030, subdivision (a),
to include “any other aspect of an attorney’s work product, unless denial of
discovery would unfairly prejudice a party. [Citation.]” (Coddington, supra, at p.
605.) Here, by contrast, because defendant’s crimes and his trial occurred well
after 1990, Penal Code section 1054.6 applies and strictly limits the scope of the
work product privilege only to “writing[s] that reflect[] an attorney’s impressions,
conclusions, opinions, or legal research or theories . . . .” (Code Civ. Proc.,
§ 2018.030, subd. (a).) As explained above, defendant’s work product claim fails
under this restricted definition.16
5. Sufficiency of the Evidence of Robbery
“Robbery is the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” (§ 211.) To commit the crime, “the
defendant must form the intent to steal before or during rather than after the
application of force to the victim, and . . . must apply the force for the purpose of
accomplishing the taking. [Citations.]” (People v. Bolden (2002) 29 Cal.4th 515,
556 (Bolden).)
Defendant contends the evidence is insufficient to support his robbery
conviction, his conviction of murder in the course of robbery or attempted
robbery, and the special circumstance finding that he committed the murders while
engaged in the commission of robbery, and that the jury’s verdict on these charges
therefore violated his due process rights under the state and federal Constitutions.
16
Because Coddington is distinguishable, we express no opinion regarding its
continuing efficacy. (See People v. Stevens (2007) 41 Cal.4th 182, 210
[questioning Coddington]; People v. Gray (2005) 37 Cal.4th 168, 238 (conc. opn.
of Baxter, J.) [calling for reexamination of Coddington]; 37 Cal.4th at p. 238
(conc. opn. of Chin, J.) [calling for reconsideration of Coddington].)
34
He concedes the evidence is sufficient to show he “applied force or fear against
the victims.” But, he asserts, it “is insufficient to show that there was a felonious
taking of personal property belonging to either of the victims.” He also asserts
that, “assuming arguendo” the evidence is sufficient to show “property was
taken,” it is insufficient to show he “had a larcenous intent either prior to or during
the application of force or fear against the victims, or that the force was used for
the purpose of perpetuating the robbery.” In his view, the “more reasonable”
interpretation of the evidence is that he went to the Bensons’ home to request
another loan, killed Gladys in a fit of “uncontrollable rage” when she rejected his
request and “criticized him harshly for having wasted the $100 she had loaned him
previously on alcohol,” and then killed Elmer when “he came to his wife’s
defense.” He “then left the Benson home either without taking any property, or
only took property as ‘an afterthought’ because at the time the property was taken
both of the victims were dead.”
To assess the evidence’s sufficiency, we review the whole record to
determine whether any rational trier of fact could have found the essential
elements of the crime or special circumstances beyond a reasonable doubt.
(People v. Maury (2003) 30 Cal.4th 342, 403 (Maury).) The record must disclose
substantial evidence to support the verdict — i.e., evidence that is reasonable,
credible, and of solid value — such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. (Id. at p. 396.) In applying this test,
we review the evidence in the light most favorable to the prosecution and presume
in support of the judgment the existence of every fact the jury could reasonably
have deduced from the evidence. (Boyer, supra, 38 Cal.4th at p. 480.) “Conflicts
and even testimony [that] is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon
35
which a determination depends. [Citation.] We resolve neither credibility issues
nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (Maury,
supra, at p. 403.) A reversal for insufficient evidence “is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient substantial evidence
to support’ ” the jury’s verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The same standard governs in cases where the prosecution relies primarily
on circumstantial evidence. (Maury, supra, 30 Cal.4th at p. 396.) We “must
accept logical inferences that the jury might have drawn from the circumstantial
evidence. [Citation.]” (Ibid.) “Although it is the jury’s duty to acquit a defendant
if it finds the circumstantial evidence susceptible of two reasonable interpretations,
one of which suggests guilt and the other innocence, it is the jury, not the appellate
court that must be convinced of the defendant’s guilt beyond a reasonable doubt.
[Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 (Kraft).) Where
the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s
conclusion the circumstances might also reasonably be reconciled with a contrary
finding does not warrant the judgment’s reversal. (Ibid.)
Regarding defendant’s taking of the Bensons’ property, a reasonable jury
could have found that defendant took coins, checks, credit cards, a wallet, and an
envelope marked “pink slips” or “DMV.” At the outset, it is important to keep in
mind one overarching consideration defendant does not dispute: the jury could
reasonably have found from the evidence that he had recently borrowed $100 from
the Bensons on February 8 because he was not working, that he was supposed to
repay the loan by February 22, that he spent all of his money at a bar the night
before the murders, that he did not want his wife to know about the loan and did
not want to ask her for money, and that he killed the Bensons by stabbing them
multiple times only three days after receiving the loan and only hours after
36
spending all of his money at the bar. Defendant ignores this evidence in
discussing only evidence relating to the specific items of property in question.
As to the coins, when defendant was arrested on the day of the murders, he
had a number of old coins in his pocket from the 1960’s and the 1940’s, including
a 1942 Mercury head dime, a 1947 dime, and a 1944 nickel. During a search of
the Bensons’ house, police found three old coins — a 1944 dime, a 1963 penny,
and a 1968 penny — on Gladys’s partially made bed. Micki Downey testified that
her parents collected old coins from the 1960’s and earlier. Linda Bouffard
testified that in the mid 1960’s, when she worked in a bank, Elmer started
collecting coins — including old dimes, nickels, and pennies — and, “for about a
week,” gave her $20 every morning and asked her to bring back a roll of quarters
and two rolls of dimes. She also testified that after the murders, she and other
family members searched the Bensons’ house for money, but were unable to find
all of the quarters. Based on this evidence, a jury that could reasonably find
defendant owed the Bensons money, was not working and had no money, and
killed the Bensons, could also reasonably find that defendant took the coins found
in his pocket from the Bensons. Moreover, on this record, the jury was not, as
defendant argues, required to find otherwise by the testimony of defendant’s wife
that her family collected coins and that defendant carried old coins in his pocket.
As to the wallet, checks, and credit cards, the Bensons’ children testified
that Gladys always kept in her purse a burgundy wallet containing a checkbook
and credit cards, and that after the murders, they were unable to find any of these
items. Linda Bouffard also testified that Gladys never said anything about any of
these items being lost or taken, and that a “whole . . . series of 25 checks were
missing.” In light of the other facts the jury could reasonably have found —
including that defendant killed the Bensons and took coins from them — this
testimony is sufficient to support the jury’s finding that defendant also took
37
Gladys’s wallet, checks, and credit cards. Although, as defendant maintains, the
jury could have found otherwise — based on testimony that other valuables were
found in the home after the murders and the fact defendant was not found with any
of the missing items — because the circumstances reasonably justify the jury’s
verdict, reversal would be inappropriate. (Kraft, supra, 23 Cal.4th at pp. 1053-
1054.)
Finally, as to the envelope, the Bensons’ children testified the Bensons
owned a number of vehicles and kept the “pink slips” for them in an envelope
marked “DMV” or “pink slips” in an organizer on a desk, and that they (the
children) searched for the envelope after the murders but could not find it or the
“pink skips” it contained. After the murders, defendant told police he had given
the Bensons the “pink slip” to his car as collateral for the money he borrowed
from them on February 8. Defendant’s wife testified defendant told her the same
thing. Again, in light of the other facts the jury could reasonably have found, as
set forth above, this evidence is sufficient to support the jury’s finding that
defendant took the envelope in question. Contrary to defendant’s argument, the
testimony of the Bensons’ son-in-law that he found among the Bensons’ effects an
envelope containing the pink slip to defendant’s car does not change this
conclusion. The jury could reasonably have concluded defendant took the
envelope containing the other pink slips because he assumed, based on its
markings, it contained his pink slip.
In light of the preceding discussion, defendant’s argument that the evidence
is insufficient to show he had a larcenous intent either before or during the killings
necessarily fails. “From evidence that a defendant killed another person and at the
time of the killing took substantial property from that person, a jury ordinarily may
reasonably infer that the defendant killed the victim to accomplish the taking and
thus committed the offense of robbery. [Citations.]” (Bolden, supra, 29 Cal.4th at
38
p. 553.) Thus, the evidence that supports the finding defendant took the Bensons’
property when he killed them also supports the finding he had the intent required
for robbery. Also supporting the latter finding is the evidence defendant recently
borrowed money from the Bensons, spent all of his money at a bar only hours
before the killings, did not want his wife to know about the loan, and did not want
to ask his wife for money. Taken together, this evidence amply supports the jury’s
finding regarding defendant’s intent. Contrary to defendant’s argument, that the
evidence does not conclusively rule out his proposed alternative scenario — that
he killed the Bensons in a fit of uncontrollable rage when Gladys rejected his
request for another loan and harshly criticized him for wasting his money on
alcohol — “does not render the evidence insufficient to support the [jury’s]
verdict.” (Ibid.) 17
6. Failure to Instruct on Theft and After-acquired Intent
At trial, defendant asked the trial court to give several jury instructions
consistent with the theory he did not form the intent to steal until after he killed the
Bensons. Specifically, he asked for instructions on various theft offenses, which
are lesser included offenses of robbery that do not include the element of force or
fear. (See People v. Holt (1997) 15 Cal.4th 619, 675.) Defendant also asked the
court to instruct the jury on after-acquired intent as follows: “To convict the
defendant of robbery you must find that he had the specific intent to steal at the
time of the application of force or violence, or the use of fear or intimidation. [¶]
If after consideration of all the evidence you have a reasonable doubt that
17
Our conclusion that the evidence is sufficient to sustain the jury’s verdict
necessarily disposes of defendant’s closely related claim, based on the same
insufficiency-of-the-evidence argument, that the trial court erred in denying his
motion for acquittal as to the two robbery counts.
39
defendant had the intent to steal at the time the force or fear was applied, you must
find him not guilty of robbery.” Defendant proposed an alternative instruction
containing only the first of these two sentences.
The trial court refused to give any of the proposed instructions. It agreed
with the prosecution that the proposed theft instructions were not “appropriate” in
light of the evidence. As to after-acquired intent, the trial court stated its
“opinion” that the standard CALJIC instructions on robbery “more thoroughly
cover[ed] the issues” than the instructions defendant proposed. Consistent with
this ruling, the trial court later gave the standard CALJIC instructions on robbery,
CALJIC Nos. 9.40, 9.41, and 9.42. Defendant argues the trial court erred in
refusing to give the instruction he requested.
Defendant’s argument fails for a basic reason: the absence in the record of
evidentiary support for a finding that he formed the intent to steal only after killing
the Bensons. Instructions on after-acquired intent and theft as a lesser included
offense of robbery are unwarranted absent “substantial evidence” that the
defendant first formed the intent to take the victim’s property after applying force.
(People v. Valdez (2004) 32 Cal.4th 73, 112, fn. 13.) As previously explained,
there was ample evidence here that defendant killed the Bensons and took their
property because he needed or wanted money. To counter this strong evidence of
his larcenous intent, defendant cites no evidence at trial that he asked for more
money, that Gladys denied such a request and criticized him for spending his
money on alcohol, and that he went into an uncontrollable rage. Instead, he offers
only generalities about his character and his relationship with the Bensons, citing
evidence that he “was on friendly terms with [them] and often did household
chores for them at no charge, and that he was a good person who respected the
property rights of others, had a reputation for peacefulness and nonviolence, and
had no prior criminal record.” But “ ‘the existence of “any evidence, no matter
40
how weak” will not justify instructions on’ ” theft as a lesser included offense of
robbery. (People v. DePriest (2007) 42 Cal.4th 1, 50.) Defendant offers nothing
but sheer speculation to support his theory that the idea of taking the Bensons’
property did not arise until after he killed them. Instead, all of the evidence points
to a robbery as the motivating factor for the murders. Under such circumstances,
the trial court did not err in refusing to give the requested instructions. (See
People v. Lewis (1990) 50 Cal.3d 262, 277.) 18
Defendant’s argument regarding the requested after-acquired intent
instruction fails for another reason: it was unnecessary in light of the other
instructions the jury received. Along with the standard CALJIC robbery
instruction (CALJIC No. 9.40), the trial court also gave the CALJIC felony-
murder instruction (CALJIC No. 8.21), the CALJIC instruction regarding the
concurrence of act and specific intent (CALJIC No. 3.31), and the CALJIC
instruction on the robbery-murder special-circumstance allegation (CALJIC No.
8.81.17). These instructions together “adequately informed” the jury “concerning
the point in time the intent to steal must have been formed.” (People v. Hughes
(2002) 27 Cal.4th 287, 360.) “Because defendant’s proposed instructions would
merely have elaborated on these general instructions, the trial court’s refusal to
18
As the People argue, the evidence defendant cites hardly supports the
theory he offers. It seems extremely unlikely that a truly peaceful person who has
no history of violence and is on very friendly terms with his victims would fly into
a homicidal rage simply because his victims decline his request for a second loan
and criticize his spending choices. Notably, at trial, defendant was of a similar
view. During the guilt phase of the trial, just after counsel gave closing argument
and the jury retired to deliberate, defendant, through a written statement he had his
attorney read into the record, stated that his counsel’s after-acquired intent theory
was “silly.”
41
give them was not error. [Citation.]” (People v. Hayes (1990) 52 Cal.3d 577,
626.) 19
7. Alleged Failure to Charge First Degree Murder
In counts 1 and 2, the information charged that defendant committed “the
crime of MURDER, in violation of PENAL CODE SECTION 187(A)” by
“murder[ing]” Elmer and Gladys “willfully, unlawfully, and with malice
aforethought.” Defendant asserts the reference to section 187 and the description
of the crime in these counts “establish that [he] was charged exclusively with
second degree malice murder in violation of” section 187, “not with first degree
19
In their briefs, defendant and the People both state that the trial court
indicated it would give CALJIC No. 9.40.2, which provides: “To constitute the
crime of robbery, the perpetrator must have formed the specific intent to
permanently deprive an owner of [his] [her] property before or at the time that the
act of taking the property occurred. If this intent was not formed until after the
property was taken from the person or immediate presence of the victim, the crime
of robbery has not been committed.” The record, although somewhat ambiguous,
does not appear to support this view. The trial court prefaced its statement
regarding the thoroughness of the “CALJIC instructions” on “the issues” by
referring to “8.83, 8.83.2, 9.40, 9.41 and 9.42.” It did not refer to CALJIC No.
9.40.2. The prosecution then asked: “The court is indicating [it] is going to give
9.40.2, the CALJIC instruction?” Although the court replied, “[y]eah,” it
immediately continued its sentence by clarifying, “the CALJIC instructions, 40, 41
and 42.” After defense counsel argued that CALJIC No. 9.40.2 addressed a
different factual situation, the prosecutor responded: “I disagree. I believe the
CALJIC instruction covers exactly this situation. And it is neutrally phrased.”
The court responded: “I agree. Once again, I looked at them, reviewed them both,
all 3 instructions — 5 instructions, rather, very carefully yesterday. So I decline to
give it.” It appears the court was referring to the five instructions it mentioned at
the outset of the discussion, i.e., CALJIC Nos. “8.83, 8.83.2, 9.40, 9.41 and 9.42.”
The court itself never referred to CALJIC No. 9.40.2, and neither defendant nor
the People formally asked the court to give that instruction. This interpretation of
the record is consistent with the fact the trial court never gave CALJIC No. 9.40.2.
In light of our conclusion, the trial court’s failure to give any pinpoint instruction
on after-acquired intent was not error.
42
murder in violation of” section 189. According to defendant, because the
information did not charge first degree murder and did not allege the facts
necessary to establish first degree murder, the trial court exceeded its jurisdiction
in instructing the jury on first degree murder. Defendant also maintains the error
violated his constitutional rights “to due process, a jury determination on every
element of the charged crime, adequate notice of the charges against him, and a
fair and equitable guilt trial.”
In several cases, we have rejected identical claims. (E.g. People v. Carey
(2007) 41 Cal.4th 109, 131-132; Geier, supra, 41 Cal.4th at pp. 591-592; People v.
Hughes, supra, 27 Cal.4th at pp. 368-370.) Given that each murder count charged
that defendant committed the murders while “engaged in the commission of the
crime of robbery,” and that section 189 specifies that such murders are in the first
degree, defendant offers no persuasive reason for reaching a different conclusion
here.
8. Failing to Give Unanimity Instruction on First Degree Murder
The trial court instructed the jury on both premeditated murder and felony
murder. Defendant asserts the trial court violated his constitutional rights by
failing to instruct the jurors that they had to agree unanimously on which type of
murder he committed. We have repeatedly rejected this claim, and defendant
offers no persuasive basis for reconsidering the question. (See People v. Carey,
supra, 41 Cal.4th at pp. 132-133.) .
9. Superfluous Multiple-murder Special-circumstance Finding
Defendant correctly asserts that two multiple-murder special-circumstance
allegations were erroneously charged and found true. (See People v. Halvorsen
(2007) 42 Cal.4th 379, 422.) “In numerous cases involving the same kind of error,
we have stricken the superfluous finding and concluded the defendant suffered no
prejudice. [Citations.] We do so again here. [Citation.]” (Ibid.)
43
B. Penalty Phase Issues
1. Admission of Victim Impact Evidence
Defendant asked the trial court to review the victim impact evidence the
prosecution wanted to present during the penalty phase to determine what, if any,
evidence was admissible under Evidence Code section 352. He asked the court to
exclude any evidence prohibited under the Eighth and Fourteenth Amendments as
unduly inflammatory, including a 14-minute videotaped montage of still
photographs narrated by the Bensons’ children. He also asked the court to
preclude the victim impact witnesses from presenting the Bensons’ life histories.
The trial court ruled that the picture montage could be played, that the audio
portion of the montage — consisting of music and narration — could not be
played, and that a family member could describe each photograph in the montage
from the witness stand.
The prosecution later played the videotape to the jury during the testimony
of Linda Bouffard, who described the photographs. The montage contained 118
photographs, including one of Elmer as a boy, two of Gladys as a girl, and a high
school graduation picture of each of them. Most of the remaining photographs
showed Elmer, Gladys, or both of them, at various ages during their adult lives,
engaging in a variety of activities — raising their three children, serving in the
military, hunting, fishing, vacationing, bowling, celebrating holidays and family
events, attending recognition dinners for Gladys’s community service, working —
and often with friends or family members, including their children, parents,
siblings, grandchildren, great-grandchildren, nieces, and nephews. The last three
photographs in the montage showed, in order, Gladys’s grave marker with the
inscription readable, Elmer’s grave marker with the inscription readable, and both
grave markers from a distance, each accompanied by a vase of flowers. The
inscription on Gladys’s grave marker read: “Mom, you remain in every hearty
laugh, nice surprise and reassuring moment of our lives.” The inscription on
Elmer’s grave marker read: “Dad, you found and shared treasures in life where no
44
one else noticed them.” After describing the photographs, Bouffard briefly
testified about how she learned of, and was affected by, her parents’ murders. The
Bensons’ other daughter, Micki Downey, and two of their grandchildren also
testified about the effects of the murders on themselves and their family.
Defendant contends the admission of this evidence, especially the videotape,
“violated [his] rights under the Eighth and Fourteenth Amendments to the United
States Constitution.”
“In a capital trial, evidence showing the direct impact of the defendant’s
acts on the victims’ friends and family is not barred by the Eighth or Fourteenth
Amendment[] to the federal Constitution. [Citation.]” (People v. Pollock (2004)
32 Cal.4th 1153, 1180 (Pollock).) “The federal Constitution bars victim impact
evidence only if it is ‘so unduly prejudicial’ as to render the trial ‘fundamentally
unfair.’ [Citation.] State law is consistent with these principles. Unless it invites
a purely irrational response from the jury, the devastating effect of a capital crime
on loved ones and the community is relevant and admissible as a circumstance of
the crime under section 190.3, factor (a).” (People v. Lewis and Oliver (2006) 39
Cal.4th 970, 1056-1057; see also Pollock, supra, at p. 1180 [victim impact
evidence is admissible under California law provided it “is not so inflammatory as
to elicit from the jury an irrational or emotional response untethered to the facts of
the case”].)
Defendant first argues the scope of the evidence admitted exceeded
permissible limits under governing precedent, which, he asserts, limits victim
impact evidence “to testimony from a single witness” that describes only the
murder’s effect “on a family member who was present at the crime scene either
during or immediately after the crime” if those effects “were known or reasonably
apparent to the defendant at the time he committed the crime or were properly
introduced at the guilt phase.” According to defendant, these limitations are
“necessary to make the admission of victim impact evidence consistent with the
plain language of California’s death penalty statutes, and to avoid expanding the
45
aggravating circumstances to the point that they become unconstitutionally
vague.”
Defendant’s arguments fail under Pollock. There, consistent with our prior
cases, we held that a trial court may admit “victim impact testimony from multiple
witnesses who were not present at the murder scene and who described
circumstances and victim characteristics unknown to the defendant. [Citations.]”
(Pollock, supra, 32 Cal.4th at p. 1183.) 20 We also reaffirmed that interpreting our
death penalty statutes to allow admission of this “ ‘broad array of victim impact
evidence’ ” does not render those statutes “ ‘unconstitutionally vague.’
[Citation.]” (Ibid.)
Defendant also argues the trial court erred in admitting extensive evidence
of the Bensons’ “complete life histories, from early childhood to death.” He
asserts this evidence, which was presented through the picture montage narrated in
court by Linda Bouffard, was mostly “irrelevant,” exceeded permissible limits on
victim impact testimony, and “was clearly prejudicial.”
In
People v. Kelly (2007) 42 Cal.4th 763 (Kelly), we recently considered
and rejected nearly identical arguments based on similar facts. There, during the
penalty phase of a capital trial, the prosecution played an approximately 20-minute
videotape that “consist[ed] of a montage of still photographs and video clips of
[the murder victim’s] life, from her infancy until shortly before she was killed at
the age of 19, narrated calmly and unemotionally by her mother.” (Id. at p. 796.)
“[G]enerally soft” music “play[ed] in the background” for “much of the video.”
20
Even were the law otherwise, there is little basis for defendant’s assertion
that he “could [not] possibly have known about” the details of the Bensons’ lives
and “could not reasonably have anticipated” the impact of their murders on their
grandchildren. The evidence establishes that between 1990, when defendant first
became the Bensons’ neighbor, and 1996, when the murders occurred, defendant
and his family were on very friendly terms with the Bensons, and defendant often
did work for them and was in their home.
46
The videotape “concern[ed] [the victim’s] life, not her death. It show[ed] scenes
of her swimming, horseback riding, at school and social functions, and spending
time with her family and friends.” (Id. at pp. 796-797.) It “end[ed] with a brief
view of [the victim’s] unassuming grave marker followed by a video clip of
people riding horseback in Alberta, Canada, over which the mother sa[id] this was
where [the victim] came from and was the ‘kind of heaven’ in which she
belonged.” (Id. at p. 797.)
In holding that the videotape permissibly “reviewed all of” the victim’s life,
we stressed in Kelly that (1) “the trial court watched the videotape and exercised
its discretion,” (2) “[t]he videotape supplemented, but did not duplicate, the
mother’s testimony,” and (3) “[f]or the most part, the videotape, including the
mother’s narrative, was not unduly emotional and presented material that was
relevant to the penalty determination.” (Kelly, supra, 42 Cal.4th at p. 797.)
Regarding relevance, we explained that the videotape “humanized [the victim], as
victim impact evidence is designed to do. It contained a factual chronology of
[her] life, from her infancy to her death in early adulthood, which helped the jury
to understand ‘the loss to the victim’s family and to society which ha[d] resulted
from the defendant’s homicide.’ [Citation.]” (Ibid.) Among other things, it
“helped the jury to see that defendant took away the victim’s ability to enjoy her
favorite activities” and “further illustrated the gravity of the loss by showing [the
victim’s] fresh-faced appearance before she died. . . . The viewer knew [the
victim] better after viewing the videotape than before, but the tape expressed no
outrage over her death, just implied sadness. It contained no clarion call for
vengeance.” (Ibid.) After noting our previous “caution[] against a presentation
that ‘emphasizes the childhood of an adult victim,’ ” we explained: “[T]he
videotape did not emphasize any particular period of [the victim’s] life but
reviewed all of it. Doing so was relevant and, because the presentation was not
unduly emotional, permissible.” (Ibid.)
47
We also observed, however, that “[i]n some respects, the videotape” in
Kelly “might have contained irrelevant aspects.” (Kelly, supra, 42 Cal.4th at p.
798.) In this regard, we first noted that evidence offered in aggravation “must be
relevant to the penalty determination,” and explained: “Nonfactual dramatization
of the evidence in a videotape — in the sense of making a presentation in a
dramatic manner — adds irrelevant factors to the videotape. The videotape must
factually and realistically portray the victim’s life and character and not present a
‘staged and contrived presentation . . . .’ [Citation.] Trial courts must not permit
irrelevant background music or video techniques that enhance the emotion of the
factual presentation. Moreover, the videotape, even when presented factually,
must not be unduly emotional. [Citation.]” (Ibid.) We then commented that the
videotape’s “background music . . . may have added an irrelevant factor,” because
“[i]t had no connection to [the victim] other than that her mother said it was some
of [the victim’s] favorite music,” it “seem[ed] unrelated to the images it
accompanied and may have only added an emotional element.” (Ibid.) We also
commented that the “clip” at the end of the videotape showing “people riding
horseback” accompanied by the mother saying “this was the ‘kind of heaven’ in
which [the victim] belonged, was also theatric without imparting any additional
relevant material.” (Ibid.) Ultimately, we did not decide whether the trial court
abused its discretion in failing to exclude these possibly irrelevant portions,
finding that “any error” in “permitting the jury to view and hear” them “along with
the rest of the mostly factual and relevant videotape was harmless in light of the
trial as a whole.” (Id. at p. 799.)
Defendant’s challenge in this case to the evidence of the Bensons’ life
histories fails under Kelly. To begin with, the 14-minute videotape here was
shorter than the 20-minute videotape in Kelly. More importantly, like the trial
court in Kelly, the trial court here viewed the videotape and exercised its
discretion. Most notably, consistent with Kelly, the court did not let the jury hear
“irrelevant background music” (Kelly, supra, 42 Cal.4th at p. 798); it excluded the
48
videotape’s audio portion — including music — finding it to be unduly prejudicial
and inappropriate. The court also directed that the witness narrating the videotape
on the stand “be very objective as to what the scene shows” and to refrain from
making “inappropriate” comments that might arouse emotions.21 Linda
Bouffard’s in-court testimony describing the pictures on the videotape was
consistent with the trial court’s direction. Notably, defense counsel did not object
during that testimony and defendant’s briefs on appeal do not allege a single
instance in which Bouffard did not follow the trial court’s instruction. In other
words, the videotape, along with Bouffard’s narration, “was not unduly emotional
and presented material that was relevant to the penalty determination.” (Id. at p.
797.) It did not duplicate the testimony of the other victim impact witnesses. It
“humanized [the Bensons], as victim impact evidence is designed to do. It
contained a factual chronology of [their lives], . . . which helped the jury to
understand ‘the loss to [their] family and to society which ha[d] resulted from the
defendant’s homicide[s].’ [Citation.]” (Ibid.) The jury “knew [the Bensons]
better after viewing the videotape than before, but the tape expressed no outrage
over [their] death[s], just implied sadness. It contained no clarion call for
vengeance.” (Ibid.) Although the videotape included a few photographs of the
Bensons as young children or teenagers, it “did not emphasize any particular
period of [their lives] but reviewed all of [them]. Doing so was relevant and,
because the presentation was not unduly emotional, permissible.” (Ibid.) 22
21
To explain its ruling, the court stated: “There was a scene [on the
videotape] with a baby. And there were some comments made by the person
narrating, ‘the baby’s happiness was being in the presence of the grandfather,’ I
think it was. Those things are inappropriate. I just want a very objective comment
about what each scene depicts.”
22
Among the circumstances we discussed in Kelly in upholding the
videotape’s admission there was the fact that “[o]nly the victim’s mother testified
about the impact of [the] murder” and there was not “repetitive victim impact
testimony” from “one witness after another.” (Kelly, supra, 42 Cal.4th at p. 797.)
(footnote continued on next page)
49
Although the trial court did not err in admitting the videotape here, it bears
repeating that “[c]ourts must exercise great caution in permitting the prosecution
to present victim-impact evidence in the form of a lengthy videotaped or filmed
tribute to the victim. . . . [They] must strictly analyze evidence of this type and, if
such evidence is admitted, [they] must monitor the jurors’ reactions to ensure that
the proceedings do not become injected with a legally impermissible level of
emotion.” (People v. Prince (2007) 40 Cal.4th 1179, 1289.)
Defendant’s remaining objections fare no better. Defendant asserts the
three photographs at the end of the montage showing the Bensons’ grave markers
were particularly prejudicial and should have been excluded. This assertion fails
under both Kelly, in which the videotape ended with a brief view of the victim’s
grave marker (Kelly, supra, 42 Cal.4th at p. 797), and People v. Harris (2005) 37
Cal.4th 310, 352, which held that a photograph of the victim’s gravesite, as
“further evidence relating to her death and the effect upon her family . . . was
properly admitted as a circumstance of the murders.” Defendant also asserts the
trial court improperly allowed the Bensons’ grandchildren to testify as to their
“personal difficulties following” the Bensons’ murder. However, “evidence that
close friends and relatives of the victims suffered emotional trauma as a result of
their deaths [is] permissible victim impact testimony.” (Leonard, supra, 40
Cal.4th at p. 1419 [testimony of victim’s cousin permissible].)
(footnote continued from previous page)
Here, as noted, there were three victim impact witnesses in addition to Linda
Bouffard, for a total of four. However, the testimony of these three additional
witnesses was relatively brief and, in view of the entire record, does not establish
that the victim impact evidence here either rendered defendant’s trial
fundamentally unfair or invited a purely irrational response from the jury.
50
2. Alleged Failure to Instruct on Use of Victim Impact Evidence
Defendant asserts the trial court prejudicially erred in failing to give an
instruction that would have explained the proper use of victim impact evidence
and admonished the jury not to base its decision on emotion or improper facts. At
trial, he proposed the following special instruction: “Evidence has been
introduced for the purpose of showing the specific harm caused by the defendant’s
crime. Such evidence, if believed, was not received and may not be considered by
you to divert your attention from your proper role of deciding whether defendant
should live or die. You must face this obligation soberly and rationally, and you
may not impose the ultimate sanction as a result of an irrational, purely subjective
response to emotional evidence and argument. On the other hand, evidence and
argument on emotional though relevant subjects may provide legitimate reasons to
sway the jury to show mercy.” The trial court declined to give this instruction.
For several reasons, the trial court did not err in declining to give
defendant’s proposed instruction. First, the substance of the requested instruction,
insofar as it correctly stated the law, was adequately covered by the slightly
modified version of CALJIC 8.84.1 the trial court gave; “[t]he proposed
instruction would not have provided the jury with any information it had not
otherwise learned from CALJIC No. 8.84.1.” (People v. Ochoa (2001) 26 Cal.4th
398, 455 [affirming refusal to give virtually identical proposed instruction].)23
Second, the requested instruction is misleading to the extent it indicates that
emotions may play no part in a juror’s decision to opt for the death penalty.
Although jurors must never be influenced by passion or prejudice, at the penalty
23
In relevant part, the trial court orally instructed: “You must neither be
influenced by bias or prejudice against the defendant, nor swayed by public
opinion or public feelings. Both the People and the defendant have the right to
expect that you will consider all of the evidence, follow the law, exercise your
discretion conscientiously, and reach a just verdict.”
51
phase, they “may properly consider in aggravation, as a circumstance of the crime,
the impact of a capital defendant’s crimes on the victim’s family, and in so doing
[they] may exercise sympathy for the defendant’s murder victims and . . . their
bereaved family members. [Citation.]” (Pollock, supra, 32 Cal.4th at p. 1195,
italics added.) “Because the proposed instruction was misleading . . . , and
because the point was adequately covered by the instructions that the court did
give, the trial court acted correctly in refusing to use” the instruction defendant
proposed. (People v. Bolden, supra, 29 Cal.4th at p. 556.)
On appeal, defendant contends the trial court should have, on its own
motion, given a different instruction, which advised: “Victim impact evidence is
simply another method of informing you about the nature and circumstances of the
crime in question. You may consider this evidence in determining an appropriate
punishment. However, the law does not deem the life of one victim more valuable
than another; rather, victim impact evidence shows that the victim, like the
defendant, is a unique individual. Your consideration must be limited to a rational
inquiry into the culpability of the defendant, not an emotional response to the
evidence. Finally, a victim-impact witness is precluded from expressing an
opinion on capital punishment and, therefore, jurors must draw no inference
whatsoever by a witness’s silence in that regard.”
The earlier discussion of the instruction defendant proposed at trial fully
applies to the third sentence of the instruction he now offers on appeal, which
would have advised the jury that its consideration of victim impact evidence “must
be limited to a rational inquiry into the culpability of the defendant, not an
emotional response to the evidence.” Insofar as this proposed instruction is legally
correct, it would not have provided the jurors with any information they did not
otherwise learn from CALJIC No. 8.84.1. Moreover, because jurors may, in
considering the impact of a defendant’s crimes, “exercise sympathy for the
defendant’s murder victims and . . . their bereaved family members” (Pollock,
supra, 32 Cal.4th at p. 1195), the proposed instruction is incorrect in suggesting
52
that a juror’s “emotional response” to the evidence may play no part in the
decision to vote for the death penalty.
The first two sentences of the proposed instruction were adequately covered
by another instruction the trial court gave, CALJIC No. 8.85. In this regard, the
trial court instructed the jury to “consider, take into account, and be guided by,”
among other factors, “the circumstances of the crime of which the defendant was
convicted in the present proceeding.” We have held that this instruction
adequately “instruct[s] the jury how to consider” victim impact evidence. (People
v. Brown (2003) 31 Cal.4th 518, 573 (Brown).)
The remainder of the proposed instruction, even if we assume it to be
legally correct,24 is not the type to give rise to a sua sponte duty to instruct. A trial
court must instruct sua sponte “only on those general principles of law that are
closely and openly connected with the facts before the court and necessary for the
jury’s understanding of the case. [Citation.]” (People v. Price (1991) 1 Cal.4th
324, 442, italics added.) Instructions informing the jurors that the law does not
deem the life of one victim more valuable than another, and cautioning them not to
draw an adverse inference from a victim impact witness’s silence regarding capital
punishment, were not necessary to the jury’s understanding of this case.
Therefore, the trial court had no sua sponte duty to give such instructions. (Cf.
People v. Navarette (2003) 30 Cal.4th 458, 521 [no sua sponte duty to instruct
24
See Pollock, supra, 32 Cal.4th at page 1180 (testimony from victims’
family members or friends regarding appropriate punishment is not permitted);
Com. v. Means (Pa. 2001) 773 A.2d 143, 158-159 (recommending, but not
requiring, instruction stating that “the law does not deem the life of one victim
more valuable than another; rather, victim impact evidence shows that the victim,
like the defendant, is a unique individual”); but see State v. Copeland (Mo. 1996)
928 S.W.2d 828, 843 (prosecution’s argument during penalty phase that “the jury
must determine whose lives are more valuable” was permissible).
53
jurors not to draw adverse inference from defendant’s failure to testify]; People v.
Sully (1991) 53 Cal.3d 1195, 1241 [no sua sponte duty to instruct jurors to
disregard defendant’s absence, because no “inevitable prospect of prejudice”
exists “when a defendant voluntarily absents himself and the jury is so informed”];
People v. Hovey (1988) 44 Cal.3d 543, 566 [no sua sponte duty to give
“cautionary instructions regarding [a jailhouse] informant’s testimony”]; People v.
Gardner (1969) 71 Cal.2d 843, 854 [no sua sponte duty to instruct jurors not to
draw adverse inference from defendant’s failure to testify, because instruction is
“not necessary for the jury’s understanding of the case”].)
3. Refusing Defendant’s Lingering Doubt Instruction
Defendant argues the trial court prejudicially erred and violated his state
and federal constitutional rights in denying his request for a lingering doubt
instruction. We have repeatedly held that a lingering doubt instruction “is
required neither by state nor federal law [citation], and . . . that this concept is
sufficiently covered in CALJIC No. 8.85. [Citations.]” (Geier, supra, 41 Cal.4th
at p. 615.) Defendant offers no basis for reexamining the issue.
4. Refusing Defendant’s Instruction on the Death Penalty’s Deterrent
Effect and Costs of Punishments
Defendant argues the trial court prejudicially erred and violated his state
and federal constitutional rights in refusing to give a proposed instruction directing
the jury “not [to] consider for any reason the deterrent or nondeterrent effect of the
death penalty or the monetary cost to the state of execution or maintaining a
prisoner for life without the possibility of parole.” However, as we have held, a
trial court does not err in refusing to give such an instruction where “neither party
raise[s] the issue of either the cost or the deterrent effect of the death penalty . . . .”
(Brown, supra, 31 Cal.4th at p. 566.)
54
On appeal, defendant concedes that “neither party mentioned the issue of
deterrence” at trial. He contends, however, that the prosecution raised the issue of
cost “by implication” by arguing that were defendant sentenced to life without the
possibility of parole, he would enjoy “[t]hree meals a day provided to him, books
and libraries, television and movies, gymnasiums to work out in, conjugal visits
with his wife.” From this statement, defendant asserts, “it must have been obvious
to the jury that the taxpayers would pay for [his] meals, movies, books, etc., if he
[were] sentenced to prison for life.” Defendant also contends his own counsel
“raised the subject of cost . . . by implication, by pointing out that if [defendant
were] sentenced to prison for life . . . , he would be spending the next 40 years or
so in prison.”
Defendant’s arguments are unconvincing. As the People explain, the
prosecution’s statement was made in the context of explaining why life in prison
would not be a just punishment for defendant’s crimes. After rhetorically asking
whether those crimes “call[ed] for life without possibility of parole,” the
prosecutor continued: “You think about life without possibility of parole, and you
think about what he left the Bensons. Life without possibility of parole. Number
one, he’s alive. Three meals a day provided to him, books and libraries, television
and movies, gymnasiums to work out in, conjugal visits with his wife. That is the
same thing? That is justice? That is justice in a case like this? That is not justice,
folks. That is not justice.” Viewed in its proper context, the statement defendant
cites does not raise the issue of cost, even by implication. The same is true of
defense counsel’s statement; as the People argue, defense counsel was not raising
the issue of cost, but was merely trying to emphasize the severity of the
punishment of a life sentence. Contrary to defendant’s argument, merely noting
that a life sentence would mean “40 years or so in prison” does not even impliedly
raise the issue of cost. (Cf. Brown, supra, 31 Cal.4th at p. 566 [cost instruction not
required by prosecutor’s argument that “ ‘[w]e can’t put [defendant] in the prison
55
system until he passes away at 65 or 55 and give him 30, 40 years of an
opportunity to kill a guard or kill a doctor or kill someone else’ ”].)
5. Instructing on Inapplicable Sentencing Factors
Defendant argues the trial court violated his state and federal constitutional
rights by giving CALJIC No. 8.85 in its entirety and thereby instructing the jury
on aggravating and mitigating factors that were inapplicable on the evidence in the
case. In prior decisions, we have consistently rejected the identical claim (e.g.
People v. Wilson (2005) 36 Cal.4th 309, 360), and defendant offers no persuasive
reason for reconsidering the issue.
6. Failing to Instruct on the Meaning of Life Without the Possibility of
Parole
Defendant asserts the term “life without possibility of parole” is a
“technical term” that juries “commonly” misunderstand, and that the trial court
prejudicially erred and violated his constitutional rights by failing, sua sponte, to
instruct the jury that he “would never be considered for parole” were he to receive
life without possibility of parole. Defendant’s assertion fails under our case law,
which establishes that the term “ ‘ “life without the possibility of parole” ’ is clear
and unambiguous and does not require ‘a sua sponte definitional instruction.’
[Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 270.) Again, defendant
offers no persuasive basis for reconsidering the issue.
7. Instructions on Weighing Aggravating and Mitigating Evidence
The trial court gave the jury a modified version of CALJIC No. 8.88, the
penalty phase instruction that addresses the weighing of aggravating and
mitigating evidence. Defendant makes a number of constitutional challenges to
the instruction, all of which we have previously rejected. Defendant offers several
arguments regarding the instruction’s last sentence, which states: “To return a
56
judgment of death each of you must be persuaded that the aggravating
circumstances are so substantial in comparison with the mitigating circumstances
that it warrants death instead of life without parole.” Contrary to defendant’s
arguments, the phrase “so substantial” is not impermissibly vague, and the
sentence is not incorrect in stating that the key question is whether the death
penalty is warranted, rather than “appropriate.” (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 124.) As for defendant’s remaining arguments, the
instruction as a whole was not erroneous in failing to state that (1) the jury must
return a life verdict if it finds that the factors in aggravation do not outweigh those
in mitigation, (2) neither party bore the burden to persuade the jury of the
appropriateness or inappropriateness of the death penalty, and (3) the jury could
return a life sentence even if the circumstances in aggravation outweighed those in
mitigation. (Ibid.) Defendant offers no persuasive reason for reconsidering any of
these issues.
8. The Constitutionality of California’s Death Penalty Law
Defendant makes a number of constitutional challenges to California’s
death penalty scheme, all of which we have previously rejected. Contrary to
defendant’s arguments, the statutory scheme “adequately narrows the class of
murder for which the death penalty may be imposed [citation], and is not
overbroad . . . because of the sheer number and scope of special circumstances
[that] define a capital murder . . . .” (People v. Harris, supra, 37 Cal.4th at p.
365.) “Consideration of the circumstances of the crime under section 190.3, factor
(a), does not result in arbitrary or capricious imposition of the death penalty.”
(Ibid.) The statutory scheme is not invalid in failing to require the state to prove
beyond a reasonable doubt that aggravating circumstances exist (other than prior
criminality), that aggravating circumstances outweigh mitigating circumstances, or
that death is the appropriate sentence, or in failing to impose, or require the jury to
57
be instructed on, any burden of proof regarding penalty. (Ibid.) The trial court
need not instruct that there is a presumption favoring life imprisonment. (People
v. Taylor (2001) 26 Cal.4th 1155, 1178.) Nor is the jury constitutionally required
to achieve unanimity or make written findings as to aggravating factors. (Harris,
supra, 37 Cal.4th at p. 366.) “The failure to require intercase proportionality
review does not render the law unconstitutional. [Citations.]” (Ibid.) Use of the
adjectives “extreme” and “substantial” in the list of potential mitigating factors
does not act as a barrier to consideration of mitigating evidence. (People v.
Stevens (2007) 41 Cal.4th 182, 213.) “The trial court is not required to delineate
which factors are mitigating or aggravating. [Citation.]” (Id. at p. 212.) The
death penalty law does not violate a capital defendant’s constitutional right to
equal protection “because the sentencing procedures for capital defendants are
different from those for noncapital defendants. [Citation.]” (Leonard, supra, 40
Cal.4th at p. 1430.) Finally, “California’s use of the death penalty, which
defendant alleges to be a ‘regular form of punishment,’ does not violate the Eighth
and Fourteenth Amendments to the federal Constitution by violating what
defendant describes as ‘international norms of humanity and decency,’ nor does it
violate principles of international law. [Citation.]” (Ibid.) Defendant offers no
persuasive reason for reconsidering any of these issues.
C. Cumulative Error
Defendant argues the cumulative effect of the guilt and penalty phase errors
requires reversal of his convictions and death sentence even if none of the errors is
prejudicial individually. As explained above, the only error here was in charging
two multiple-murder special-circumstance allegations, and that error was not
prejudicial. Defendant’s cumulative error claim therefore fails.
58
III. CONCLUSION
For the foregoing reasons, we vacate one multiple-murder special-
circumstance finding, but otherwise affirm the guilt and penalty judgments of
defendant Samuel Zamudio in their entirety.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.
59
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Zamudio
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S074414
Date Filed: April 21, 2008
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Dewey Lawes Falcone
__________________________________________________________________________________
Attorneys for Appellant:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Peter R. Silten,
Deputy State Public Defender, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Pamela C. Hamanka, Assistant Attorney General, John R. Gorey and
Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Peter R. Silten
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600
Herbert S. Tetef
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-0201
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 04/21/2008 | 43 Cal.4th 327 original opinion 43 Cal. 4th 1095a modification | S074414 | Automatic Appeal | closed; remittitur issued | ZAMUDIO JIMENEZ (SAMUEL) on H.C. (S167100) |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Herbert S. Tetef, Deputy Attorney General 300 South Spring Street, 5th Floor Los Angeles, CA |
| 2 | Zamudio, Samuel Jiminez (Appellant) San Quentin State Prison Represented by Habeas Corpus Resource Center Sara Cohbra 303 Second Street, Suite 400 South San Francisco, CA |
| 3 | Zamudio, Samuel Jiminez (Appellant) San Quentin State Prison Represented by Office Of The State Public Defender-Sf Peter R. Silten, Deputy State Public Defender 221 Main Street, 10th Floor San Francisco, CA |
| Disposition | |
| Apr 21 2008 | Opinion: Affirmed as modified |
| Dockets | |
| Oct 5 1998 | Judgment of death |
| Oct 30 1998 | Filed certified copy of Judgment of Death Rendered 10-5-98 |
| Oct 30 1998 | Penal Code sections 190.6 et seq. apply to this case |
| Dec 1 1998 | Application for Extension of Time filed By Superior Court Clerk to Complete C.T. |
| Dec 9 1998 | Extension of Time application Granted Good Cause appearing Therefor,in light of the Municipal Court Clerk's Failure to Timely Deliver its Record to the Superior Court Clerk, the Superior Court Clerk's request for an Extension of time to Complete the Clerk's Transcript on Appeal Is Granted.the Clerk's Transcript Must be Completed on or before 12-18-98.the Superior Court Clerk Shall Notify the Supreme Court Clerk in Writing when the Clerk's Transcript Is Completed. |
| Mar 24 1999 | Record certified for completeness |
| Aug 1 2002 | Filed: appellant's application for appointment of counsel (IFP form). |
| Aug 1 2002 | Order appointing State Public Defender filed Upon request of appellant for appointment of counsel, the State Public Defender is hereby appointed to represent appellant Samuel Jiminez Zamudio for the direct appeal in the above automatic appeal now pending in this court. |
| Aug 2 2002 | Date trial court delivered record to appellant's counsel 5,160 pp. record |
| Aug 12 2002 | Appellant's opening brief letter sent, due: March 5, 2003. (pursuant to Calif. Rules of Court, rule 39.57(b)) |
| Oct 7 2002 | Counsel's status report received (confidential) from State P.D. |
| Dec 6 2002 | Counsel's status report received (confidential) from State P.D. |
| Feb 7 2003 | Counsel's status report received (confidential) from State P.D. |
| Feb 18 2003 | Received copy of appellant's record correction motion Appellant's Motion to Correct, Complete and Settle the Record on Appeal. (16 pp.) |
| Feb 28 2003 | Request for extension of time filed to file appellant's opening brief. (1st request) |
| Mar 5 2003 | Extension of time granted to 5/5/2003 to file appellant's opening brief. The court anticipates that after that date, only five further extensions totaling 300 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| May 1 2003 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
| May 6 2003 | Extension of time granted to 7/7/2003 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Jun 20 2003 | Counsel's status report received (confidential) from State P.D. |
| Jul 3 2003 | Request for extension of time filed to file appellant's opening brief. (3rd reqeust) |
| Jul 11 2003 | Extension of time granted to 9-5-2003 to file AOB. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Aug 20 2003 | Counsel's status report received (confidential) from State P.D. |
| Sep 2 2003 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Sep 9 2003 | Extension of time granted to 11/4/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all step necessary to meet it. |
| Sep 23 2003 | Record certified for accuracy |
| Oct 20 2003 | Counsel's status report received (confidential) from State P.D. |
| Oct 30 2003 | Request for extension of time filed to file appellant's opening brief. (5th request) |
| Nov 4 2003 | Extension of time granted to 1/2/2004 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Dec 5 2003 | Record on appeal filed Clerk's Transcript 15 volumes (2,824 pages) and Reporter's Transcript 31 volumes (3,547 pages including material under seal; ASCII disks Clerk's transcript include 374 pages of juror questionnaires. |
| Dec 5 2003 | Letter sent to: Counsel advising that record on appeal was filed this date. |
| Dec 22 2003 | Counsel's status report received (confidential) from State P.D. |
| Dec 23 2003 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Jan 5 2004 | Extension of time granted to 3-2-2004 to file AOB. After that date, only two further extensions totaling 120 additional days will be granted. Extension granted based upon Deputy State P.D. Peter R. Silten's representation that he anticipates filing the AOB by 6-30-2004. |
| Feb 23 2004 | Counsel's status report received (confidential) from State P.D. |
| Feb 26 2004 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Mar 2 2004 | Extension of time granted to 5/3/2004 to file appellant's opening brief. After that date, only one further extension totaling 60 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by 6/30/2004. |
| Apr 27 2004 | Counsel's status report received (confidential) from State P.D. |
| Apr 30 2004 | Request for extension of time filed to file appellant's opening brief. (8th request) |
| May 7 2004 | Extension of time granted to 7-2-2004 to file AOB. After that date, no further extension wil be granted. Extension granted based upon Deputy SPD Peter R. Silten's representation that he anticipates filing the brief by 7-2-2004. |
| Jul 2 2004 | Appellant's opening brief filed (62253 words - 219 pp.) |
| Jul 2 2004 | Respondent's brief letter sent; due: November 1, 2004. |
| Oct 26 2004 | Request for extension of time filed to file respondent's brief. (1st. request) |
| Oct 27 2004 | Extension of time granted to 1/3/2005 to file respondent's brief. |
| Dec 22 2004 | Request for extension of time filed to file respondent's brief. (2nd. request) |
| Dec 30 2004 | Extension of time granted to 3/4/2005 to file respondent's brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Deputy Attorney General Herbert S. Tetef's representation that he anticipates filing that brief by 3/31/2005. |
| Feb 24 2005 | Request for extension of time filed to file respondent's brief. (3rd. request) |
| Mar 1 2005 | Extension of time granted to 4/1/2005 to file respondent's brief. After that date, no further extension will be granted. Extension is granted based upon Deputy Attorney General Herbert S. Tetef's representation that he anticipates filing that brief by 3/31/2005. |
| Mar 9 2005 | Respondent's brief filed (32223 words; 107 pp.) |
| Apr 28 2005 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| May 3 2005 | Extension of time granted to 7/8/2005 to file appellant's reply brief. |
| Jun 30 2005 | Request for extension of time filed to file reply brief. (2nd request) |
| Jul 7 2005 | Extension of time granted to September 6, 2005 to file appellant?s reply brief. After that date, only one further extension totaling about 70 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten?s representation that he anticipates filing that brief by mid-November 2005. |
| Sep 1 2005 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Sep 9 2005 | Extension of time granted to 11/15/2005 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by 11/15/2005. After that date, further extension is contemplated. |
| Nov 15 2005 | Appellant's reply brief filed (22,300 words; 85 pp.) |
| Jun 27 2007 | Order appointing Habeas Corpus Resource Center filed Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant Samuel Jiminez Zamudio for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of this court's delay in appointing habeas corpus/executive clemency counsel on behalf of appellant Samuel Jiminez Zamudio. |
| Aug 23 2007 | Change of contact information filed for: HCRC. |
| Aug 28 2007 | Counsel's status report received (confidential) from HCRC. |
| Oct 29 2007 | Counsel's status report received (confidential) from HCRC. |
| Dec 7 2007 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the February 2008 calendar, to be held the week of February 4, 2008, in Sacramento. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Dec 28 2007 | Counsel's status report received (confidential) from HCRC. |
| Jan 3 2008 | Case ordered on calendar to be argued on Wednesday, February 6, 2008, at 1:30 p.m., in Sacramento |
| Jan 7 2008 | Motion filed (AA) by appellant for leave to file supplemental opening brief. (brief submitted under separate cover) |
| Jan 8 2008 | Order filed Appellant's "Motion for Leave to File Supplemental Opening Brief" is granted. Any supplemental respondent's brief must be served and filed in the San Francisco office of the court on or before January 18, 2008, and any supplemental reply brief must be served and filed in the San Francisco office of the court on or before January 23, 2008. |
| Jan 8 2008 | Filed: appellant's supplemental opening brief. (495 words; 4 pp.) |
| Jan 14 2008 | Received: appearance sheet from Deputy Attorney General Herbert S. Tetef, indicating 30 minutes for oral argument for respondent. |
| Jan 14 2008 | Filed: respondent's focus issues letter dated Janaury 14, 2008. |
| Jan 15 2008 | Filed: appellant's focus issues letter dated January 14, 2008. |
| Jan 15 2008 | Received: appearance sheet from Deputy Public Defender Peter R. Silten, indicating 30 minutes for oral argument for appellant. |
| Jan 16 2008 | Filed: supplemental respondent's brief. (156 words; 2 pp.) |
| Jan 25 2008 | Received: Respondent's letter of additional authorities for oral argument. |
| Jan 25 2008 | Received: Appellant's letter of additional authorities for oral argument. |
| Jan 31 2008 | Received: Appellant's letter of supplemental additional authorities for oral argument. |
| Feb 6 2008 | Cause argued and submitted |
| Feb 11 2008 | Filed: letter from respondent, dated February 8, 2008. |
| Feb 13 2008 | Filed: letter from appellant, dated February 11, 2008, in response to respondent's letter of February 8, 2008. |
| Feb 28 2008 | Counsel's status report received (confidential) from HCRC. |
| Apr 18 2008 | Notice of forthcoming opinion posted |
| Apr 21 2008 | Opinion filed: Judgment affirmed as modified ...we vacate one multiple-murder special-circumstance finding, but otherwise affirm the guilt and penalty judgments of defendant Samuel Zamudio in their entirety. opinion by Chin, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Moreno and Corrigan, JJ. |
| Apr 29 2008 | Counsel's status report received (confidential) from HCRC. |
| May 5 2008 | Request for modification of opinion filed by Los Angeles County Public Defender Terri Towery, dated May 5, 2008. |
| May 5 2008 | Request for modification of opinion filed by California Public Defenders Association, dated May 2, 2008. |
| May 6 2008 | Rehearing petition filed by appellant. (4,438 words; 16 pp.) |
| May 8 2008 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including July 18, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| May 16 2008 | Request for modification of opinion filed by the Los Angeles County Alternate Public Defender's Office, dated May 14, 2008. |
| Jun 11 2008 | Rehearing denied The request for modification of the opinion is granted. The petition for rehearing is denied. |
| Jun 11 2008 | Opinion modified - no change in judgment |
| Jun 11 2008 | Remittitur issued (AA) |
| Jun 13 2008 | Received: copy of appellant's petition for writ of certiorari. (19 pp. excluding appendices) |
| Jun 18 2008 | Received: receipt for remittitur. |
| Jun 20 2008 | Received: letter from USSC, dated June 17, 2008, advising that a petition for writ of certiorari was filed on June 12, 2008 and placed on the docket June 17, 2008 as No. 07-11425. |
| Jun 30 2008 | Counsel's status report received (confidential) from HCRC. |
| Aug 27 2008 | Counsel's status report received (confidential) from HCRC. |
| Sep 29 2008 | Related habeas corpus petition filed (post-judgment) No. S167100, In re Samuel Zamudio Jimenez on Habeas Corpus. |
| Nov 10 2008 | Certiorari denied by U.S. Supreme Court Justice Stevens filed a statement respecting the denial of the petition for writ of certiorari. Justice Breyer filed an opinion dissenting from the denial of the petition for writ of certiorari. |
| Briefs | |
| Jul 2 2004 | Appellant's opening brief filed |
| Mar 9 2005 | Respondent's brief filed |
| Nov 15 2005 | Appellant's reply brief filed |
