Filed 6/30/11
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S047867
v. )
)
LESTER WAYNE VIRGIL, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. YA016781
____________________________________)
A jury convicted defendant Lester Wayne Virgil of murdering 22-year-old
Soy Sung Lao during a doughnut shop robbery. 1 The jury also convicted
defendant of two other robberies, both committed with a knife and one
accompanied by an assault with force likely to produce great bodily injury, and
found true a robbery/murder special circumstance.2 Because the penalty was set at
death, this appeal is automatic. We affirm the judgment.
BACKGROUND
I. Guilt Phase
A. Robbery of Beatriz Addo
On the morning of October 13, 1992, Beatriz Addo was working alone at
the LaBargain Grocery, which she owned with her husband. The store was
1 Penal Code sections 211 and 187, subdivision (a). All statutory references
are to the Penal Code unless otherwise stated.
2 Sections 12022, subdivision (b), 245, subdivision (a)(1), and 190.2,
subdivision (a)(17).
1
located in an alley near the intersection of Van Ness Avenue and West El Segundo
Boulevard, in Gardena. Sometime between 10:00 and 11:00 a.m., Addo was
talking with a neighbor when defendant rode up on a bicycle. He parked outside,
walked in, and asked if either woman wanted to buy the bike. When they
declined, he asked about a brand of shaving cream. Although Addo said they did
not carry the brand, defendant searched the store‟s shelves for it. He then asked if
Addo could give him a job. Addo promised to check with her husband, and
defendant wrote down the name “Robert William,” a telephone number, and the
address “1202 Denker, Apt. #10.” He left, and the visiting neighbor left soon
thereafter.
About five minutes later, Addo was alone. Defendant returned and walked
toward the display shelves. Defendant then grabbed Addo from behind and
pushed her toward the bathroom. Addo felt something pricking her in the back.
Defendant ordered her to sit on the toilet, but instead she knelt to pray. Defendant
left, closing the door behind him. Addo heard the ring of the cash register
opening. After about 10 minutes of silence, Addo emerged to find the telephone
line had been cut and the cash register left open. Approximately $60 had been
taken, along with an envelope containing $600 in rent money, which had been
stored underneath the register. Addo had small cuts and scratches on her back but
did not require medical attention.
Addo described the robber as a Black man of average weight, with short
hair and two to three days‟ growth of beard. He wore long dark pants and a black
T-shirt. In June 1993, Addo picked defendant‟s picture from a six-photo lineup,
and in October 1993, she identified him in a live lineup. She also identified him at
both the preliminary hearing and trial.
B. Robbery and Murder of Soy Sung Lao
Around 3:40 in the afternoon on October 24, 1992, Los Angeles County
Park Police Sergeant Donald Tiller and his partner went to the Donut King for
coffee. The small, family-owned shop was located in a strip mall near the
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LaBargain Grocery. While his partner waited in the patrol car, Tiller went inside
and ordered from Soy Sung Lao, who was working behind the counter. Ms. Lao
was the only employee in the shop, and defendant the only customer. Defendant
sat at a table with a white styrofoam cup and an orange gym bag nearby. Sergeant
Tiller observed defendant during the three minutes he spoke with Ms. Lao at the
counter. It seemed unusual that defendant stared fixedly out the window and
would not look in his direction. In the sergeant‟s experience, people usually
looked at him when he was in uniform. Defendant was wearing a dark jacket, a
dark “Malcolm X” cap, and dark jeans. He appeared to be about six feet tall, 165
to 170 pounds, with “kind of a straggly beard.”
Lavette Gilmore worked at a hair salon in the same strip mall. Around 3:30
or 4:00 p.m. on October 24, 1992, she went to the doughnut shop and saw
defendant sitting in the window with a small coffee cup and a bag. He wore a cap
and a black shirt with red on it and drew Gilmore‟s attention because he looked
“rugged.” He was thin and unkempt, with long hair. He slouched and would not
return Gilmore‟s gaze. Gilmore stayed in the shop talking for 20 or 25 minutes.
She and Sergeant Tiller left at the same time. Gilmore expressed concern to Tiller
that defendant looked “funny.”
Debra Tomiyasu had an appointment at Gilmore‟s hair salon that afternoon.
She left around 3:40 p.m. and walked into the Donut King. She noticed an orange
duffel bag and a black Malcolm X cap on one of the customer tables but saw no
one in the shop. Tomiyasu yelled out “hello” two or three times, to no response.
A minute or two later, Deandre Harrison walked in. The two waited a few
minutes more, calling for service. Harrison walked in and out of the shop‟s front
door several times to trigger its buzzer. They then heard a series of muffled, high-
pitched screams. As the screams grew louder, defendant emerged from the back
of the store and walked straight to the cash register, which was partially open. He
took the money inside, walked out the front door, and ran across the parking lot.
A woman staggered out from the back of the store, covered in blood. Still
3
screaming, she held a blood-soaked white cloth to her neck. She took a few steps,
then collapsed. No one else emerged from the back. No sounds indicated anyone
else was in the store.
Tomiyasu followed defendant and chased him across the parking lot,
screaming for help. Meanwhile, Harrison ran to another shop and called 911.
After Tomiyasu lost sight of defendant, she also attempted to call the police, but
they arrived before she had time to dial. Other than defendant and the bleeding
woman, Tomiyasu and Harrison saw no one else in the shop, and no one else left
after defendant fled.
Ella Ford was picking up dry cleaning at the strip mall when she heard a
woman screaming from the Donut King. She dismissed the screams as the sound
of children playing. Defendant ran out of the doughnut shop and almost knocked
her down. She noticed he was holding something close to his body in his left
hand. Ford turned away but looked back at defendant after someone yelled, “he
stabbed her.” She eventually lost sight of defendant as he ran down the street.
Felipe Santoyo was working at a fish market in the strip mall when he
heard the commotion. A crying woman said, “she‟s bleeding.” Santoyo ran to the
doughnut shop, where several people had gathered. He saw Lao, whom he knew,
lying on the floor, “bleeding a lot.” He went to her and placed some bags under
her head “so she didn‟t feel on the floor.” Santoyo was soon joined by Lavette
Gilmore and Trina Simmons, who had run to the shop from Gilmore‟s salon when
they learned of the stabbing. Lao‟s eyes were open and she was asking for help.
She managed to give her family‟s phone number before she lost consciousness.
Santoyo left to call Lao‟s family.
Gardena Police Officers Blane Schmidt and Jody Schnabl were the first
authorities to arrive at the scene. Paramedics arrived minutes later. They
transported Lao to a hospital, but her condition deteriorated rapidly in the
ambulance and she never regained consciousness.
4
After the paramedics left, Officer Schmidt interviewed Simmons, Harrison,
and Tomiyasu. Tomiyasu described defendant as having a round face, dark skin, a
“scraggly” beard and mustache, a “wild-like appearance to his eyes,” and dark
smudges on his face. His hair was very short, and he appeared to be in his late
20‟s or early 30‟s. Defendant looked like a homeless or transient person because
he was very thin, with a drawn face and wild-eyed look. He wore blue jeans, dark
shoes, and a black T-shirt with an outline of Africa on the front. Harrison also
remembered that defendant wore blue jeans and a black T-shirt with Africa
depicted in red, yellow, and green. He was tall and thin, with medium-brown,
dirty skin and a “rough, ruggish” beard and mustache. Ella Ford gave a similar
description. She said defendant was a little over six feet tall, 150 pounds, with a
full beard, and wearing jeans, tennis shoes, and a black T-shirt with “African
colors.” Twice that evening, the police asked Tomiyasu to view suspects they had
detained, but she did not make a positive identification of either.
At the crime scene, police officers found the cash register drawer open but
with no bills in the tray. A blood trail extended from the restroom to where Lao
had fallen. Behind the closed door of the restroom, a large blood pool was oozing
into the drain. Blood was smeared on the inside doorknob and doorjamb. A
knotted towel and a pair of women‟s shoes lay on the floor. Police officers never
discovered a murder weapon. At one of the tables in the dining area, someone had
left an open gym bag, a baseball cap, a styrofoam cup, and a pair of shoelaces.
The gym bag contained several raffle tickets. Defendant‟s latent palm print was
lifted from the table. Although other latent fingerprints were recovered, none
could be matched to defendant.
Lao was stabbed 30 times with a single-edged blade approximately five-
eighths of an inch wide and five to six inches long. Her hands and arms showed
multiple defensive wounds. Two stab wounds pierced the rib cage and sliced
completely through her liver, causing massive abdominal bleeding. Another stab
wound to the chest collapsed a lung. Forensic evidence established that the
5
stabbing took place in the employee restroom. The bathroom door was closed
after the attack, but Lao managed to open it. Bleeding from her many wounds,
Lao moved toward the silent alarm button and collapsed nearby. The many
undisturbed blood pools and droplets in the hallway showed that Lao‟s attacker
left the bathroom before she did.
C. Robbery and Assault of Samuel Draper
Samuel “Joe” Draper was a mechanic at the Southwest Bowl. On October
31, 1992, defendant appeared in the doorway of the mechanic shop and asked
Draper for a dollar for bus fare. Draper recognized defendant from the bowling
alley, but they had never spoken before. Draper gave him a dollar from his shirt
pocket. Defendant started to leave but then asked for another dollar. Draper
walked into the shop to retrieve a dollar from his wallet. Defendant took the
money and left. He returned about five minutes later carrying a plastic shopping
bag, which he asked Draper to keep for him. When Draper turned to carry the bag
inside, defendant grabbed him from behind and put a knife to his throat. Draper
tried to grab the knife, cutting his fingers on the blade. Defendant said, “Get down
and I won‟t hurt you.” When Draper complied, defendant tied his hands and feet
with an extension cord and belt and tied a dirty rag around Draper‟s mouth as a
gag. Defendant plucked the wallet from Draper‟s pocket, took out $40 to $50 in
cash, and left, dropping the empty wallet.
Minutes later, Draper managed to free himself. He went inside the bowling
alley and reported the incident. Later, Draper spoke to two men who believed they
had seen defendant living out of a van parked in a nearby alley. Draper reported
this information to the police and showed them the van, but defendant was not in
the area. Draper described defendant as six feet tall, of medium build, and with a
mustache and goatee.
While investigating the Draper robbery, Detective Jacques LaBerge learned
that the suspect may have been the same person recently arrested for stealing a pie
from a church bake sale. Using that booking photograph of defendant, LaBerge
6
prepared a photographic lineup, which he showed to Draper. Draper identified
defendant as the person who had robbed him.
D. Investigation
During the investigation of Lao‟s murder, Sergeant Hernandes Lobo
determined that the raffle tickets found in the gym bag were originally sold to Joe
Vaouli in late September or early October of 1992. Shortly afterward, they were
stolen from Vaouli‟s car while he was visiting his friend Joe Draper at the
Southwest Bowl. Vaouli had reported the theft to the raffle‟s organizer but not to
the police.
In June 1993, the Gardena Police Department prepared and circulated a
flier about the doughnut shop killing. Along with information about the date and
location of the crime, the flier displayed photographs of the gym bag and other
items found at the scene, a description of the suspect, and a composite sketch
prepared with Tomiyasu‟s assistance. The flier was distributed to surrounding
police agencies.
Detective Richard Cohen thought the suspect in the flier resembled
defendant, whom he had recently arrested for burglarizing a church. In addition to
noting this resemblance, Detective Cohen knew that defendant “had been hanging
around the Southwest Bowl and possibly committing crimes there.” Detectives
Cohen and LaBerge met with Sergeant Lobo to share information about the
possibly related crimes. Afterward, Sergeant Lobo prepared a new mug shot
lineup containing the photograph of defendant that had previously been shown to
Draper.
Tomiyasu and Harrison both identified defendant in the photo lineup.
Beatriz Addo identified defendant as the person who had robbed her. Sergeant
Tiller did not make an immediate identification when shown the photographs but
asked if he could see pictures of the men in profile. Sergeant Lobo created a new
group of profile photographs, and Tiller identified defendant. A live lineup was
7
conducted at the sheriff‟s department on October 19, 1993.3 Tiller, Addo,
Harrison and Draper all identified defendant. Tomiyasu could not decide between
defendant and another man in the lineup. Although defendant looked like the
robber, he had gained significant weight. Tomiyasu asked to see another
photographic lineup. When one was prepared, she identified defendant as
“definitely the man that I saw in the donut shop.”
Lavette Gilmore said she could not distinguish between defendant and
another man in Sergeant Lobo‟s first photographic lineup. When shown the
profile photographs shown to Sergeant Tiller, Gilmore identified defendant. At
the live lineup in October 1993, Gilmore identified a different suspect. She later
confessed to the police, however, that she had purposefully picked the wrong
person because her husband had warned her not to get involved. Gilmore later
asked to see another photographic lineup. On January 20, 1995, shortly before
trial, she viewed another six photos and was “over a hundred percent sure”
defendant was the man she had seen at the doughnut shop.
Ella Ford avoided contact with the police for years because she was afraid
of retaliation. She did not attend the live lineup and refused to speak with the
police about the incident until shortly before defendant‟s trial. On January 6,
1995, Ford finally met with the police and identified defendant from a
photographic lineup.
Defendant did not present any evidence in the guilt phase of trial, and the
jury convicted him of all charges.
II. Penalty Phase
A. Prosecution Evidence
1. Victim Impact
Soy Sung Lao was 22 years old when she was murdered. She was the
youngest of six siblings in a close-knit family. After their parents died in 1975
3 Defendant was in custody at the time on an unrelated offense.
8
and 1976, the siblings took care of each other. In 1980, when Lao was 10 years
old, they fled from a communist regime in Cambodia. Sleeping in the forest and
hiding from soldiers, they escaped first to Thailand, then came to the United
States. The family settled in San Diego.
In 1987, Lao‟s sister Lynn Lao Ngov married and moved to Los Angeles to
run the Gardena doughnut shop. When she graduated high school, Lao moved
nearby and enrolled in the University of Southern California. Lao was a full-time
college student majoring in international relations, scheduled to graduate in May
1993. Lao was very close to Ngov‟s two children.
Ngov last saw Lao at the doughnut shop on the day of the murder. She had
left the shop around noon, while Lao worked on alone. When someone phoned
saying Lao had been stabbed, Ngov was shocked and drove straight to the
doughnut shop. She arrived just after the ambulance drove away. Ngov still felt
shocked and “numb” about the murder. Two and a half years later, she still
thought about her sister every day.
2. Other Crimes
On several occasions in October 1992, defendant rented a room at the
Hilltop Motel, where Julio Montulfar and his wife Benita Rodriguez worked as
nighttime caretakers. The first time defendant checked in, he had about $300 cash.
He did not have enough money to pay for his room on other nights, however, and
borrowed money from Montulfar.
Around 9:00 p.m. on October 29, 1992, five days after Lao‟s murder,
defendant came into a room Benita Rodriguez was cleaning. Defendant asked
after Montulfar, and Rodriguez explained that he had gone to the store. About 10
or 15 minutes later, Rodriguez began cleaning another room. When she emerged
from the bathroom, defendant was standing near the bed holding a knife. The door
to the room was closed. Defendant put a finger to his lips, motioning Rodriguez to
be quiet. At knifepoint, defendant took Rodriguez‟s rings and watch, then asked
for the office key. Rodriguez, who spoke little English, repeatedly told defendant,
9
“No money.” She knelt at defendant‟s feet, imploring him not to kill her.
Defendant tried to tie Rodriguez‟s hands behind her back using a shoelace, but she
refused to cooperate. He gestured for Rodriguez to remove her pants. When she
did not understand, defendant “got on all fours on top of the bed” and told her to
imitate the position. When Rodriguez refused, defendant repeatedly kicked her,
stabbed her in the side, and tried to suffocate her. He stabbed her a total of 20
times in the face, arm, stomach, and leg. Fearing for her life, Rodriguez screamed
and tried to grab the knife blade, which was about five or six inches long. She
managed to take hold of the blade and break it off, seriously injuring her finger.
Defendant fled. Trailing blood, Rodriguez staggered to the office and told
Montulfar defendant had stabbed her.
Rodriguez underwent three surgeries to treat the injuries to her stomach and
intestines. She suffered persistent digestive problems and could eat only once a
day. The attack left her face disfigured. Her left eye drooped partially closed,
impairing her vision. She had difficulty sleeping and was afraid to be alone.
In addition to the attack on Benita Rodriguez, the jury learned that
defendant had been convicted of burglary in 1983, in California, and again in
1989, in Louisiana.
B. Defense Evidence
Defendant‟s older sister, Debra Virgil, testified about his upbringing.
Defendant and his sister were raised by a teenage mother in Los Angeles.
Defendant‟s father moved back to Louisiana before defendant‟s birth. His mother
waitressed and relied on welfare payments for support. The family moved often
and lived in small apartments. They always had enough food and clothing, and
their mother was always attentive to her children‟s educational needs. When
defendant and his sister were very young, their mother was convicted of
manslaughter. She was jailed for a brief period, during which the children stayed
with their aunt. Their mother drank excessively and sometimes disciplined
defendant harshly, using her hand, a belt, or an extension cord. The discipline
10
grew more severe as defendant got older; he became angry and resentful.
Defendant‟s mother always had a reason for imposing discipline, but she never
demonstrated affection.
Another child, Dexter, was born when defendant was almost 12 years old.
Dexter‟s father was also involved in defendant‟s life. Loving and affectionate, he
tried to teach the children positive values. Nevertheless, defendant‟s grades began
dropping in junior high school, and he ran away from home briefly when he was
14 or 15. He started working part-time jobs and dropped out of high school at age
16 or 17. Defendant had few friends outside his extended family. In 1982, after
he served a county jail sentence for stealing tools from a garage, defendant moved
with his sister to Tallulah, Louisiana. Defendant worked at different jobs,
eventually entered the job corps, and started a romantic relationship with Annie
Antoine.
Antoine testified that she and defendant began living together in
Shreveport, Louisiana, in 1987. Antoine noticed changes in defendant‟s behavior
when he started spending time with his cousin Chester, a cocaine user. Defendant
still worked but began staying out late at night. In 1989, he was arrested and
imprisoned for burglarizing a warehouse. When paroled in May 1991, defendant
moved in with Antoine and his sister Debra, who were living together in Los
Angeles. During this time, Antoine continued to notice changes in defendant‟s
personality, and their relationship deteriorated. After a few months, defendant
moved to Las Vegas. When Antoine joined him two weeks later, she noticed that
he had lost a significant amount of weight and displayed mood swings. Defendant
stayed out all night, or for days at a time. When Antoine accused him of having
an affair, defendant admitted he was abusing cocaine. Antoine eventually moved
to live with a sister in Salt Lake City. She then discovered she was pregnant with
defendant‟s child.
Antoine resumed contact with defendant when he was in jail. Defendant
took pride in his son, Nigel, and arranged for his family to help with the boy‟s
11
care. Despite defendant‟s addiction to cocaine, Antoine believed he would be a
good father. He had never been violent toward her. She was shocked to learn
about the doughnut shop murder.
DISCUSSION
I. Guilt Phase Issues
A. Defendant’s Absence from Court Proceedings
Defendant claims that the occurrence of several bench conferences during
jury selection and trial deprived him of his statutory (§ 1043) and constitutional
rights to be personally present during critical stages of the trial.4 Defendant has
not shown that his absence from these conferences “ „prejudiced his case or denied
him a fair and impartial trial.‟ ” (People v. Bittaker (1989) 48 Cal.3d 1046, 1080,
quoting People v. Jackson (1980) 28 Cal.3d 264, 309-310.) We reject his claims
as unduly speculative. (See People v. Waidla (2000) 22 Cal.4th 690, 742.)
During voir dire, the trial court conducted all cause challenges at sidebar.
Defendant did not object to this procedure, although defense counsel expressed a
preference that challenges be conducted in open court. He now complains of 12
instances in which prospective jurors were questioned at sidebar about sensitive
4 With regard to this claim and virtually every other claim raised on appeal,
defendant asserts that the error violated his rights to a fair trial and reliable penalty
determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and corresponding provisions of the California
Constitution. In most instances, defendant failed to make these constitutional
arguments in the trial court. Nevertheless, unless otherwise indicated, we consider
the merits of these newly raised arguments because either (1) the appellate claim is
of a kind that required no objection to preserve it, or (2) the claim invokes no facts
or legal standards different from those before the trial court, but merely asserts that
an error had the additional legal consequence of violating the Constitution. (See
People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) In those circumstances,
defendant‟s new constitutional arguments are not forfeited on appeal. (Ibid.; see
People v. Partida (2005) 37 Cal.4th 428, 433-439.) Where rejection of a claim of
error on the merits necessarily leads to a rejection of the newly asserted
constitutional objection, no separate constitutional analysis is required and we
have provided none. (See Boyer, at p. 441, fn. 17.)
12
matters. Some of these sidebar hearings resulted in the prospective juror‟s
dismissal for cause or the denial of a cause challenge. In four instances, sidebar
questioning led to a prospective juror‟s excusal by stipulation. Defendant also
complains of 16 occasions when trial proceedings were conducted outside his
presence. Fourteen of these incidents were brief bench conferences held during
the presentation of evidence or argument. Once, outside the presence of the jury,
defendant was removed from the courtroom so that witnesses Montulfar and
Rodriguez could be brought into court and ordered to return the following day.
Defendant was also removed from court during part of a posttrial hearing when the
court identified by name the jurors who had spoken at a previous hearing.
“ „A criminal defendant‟s right to be personally present at trial is
guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution
. . . . [Citations.] A defendant, however, “does not have a right to be present at
every hearing held in the course of a trial.” [Citation.] A defendant‟s presence is
required if it “bears a reasonable and substantial relation to his full opportunity to
defend against the charges.” [Citation.] The defendant must show that any
violation of this right resulted in prejudice or violated the defendant‟s right to a
fair and impartial trial. [Citation.]‟ (People v. Hines [(1997)] 15 Cal.4th [997,]
1038-1039.)” (People v. Lucero (2000) 23 Cal.4th 692, 716-717; see Kentucky v.
Stincer (1987) 482 U.S. 730, 745; United States v. Gagnon (1985) 470 U.S. 522,
526.) The same analysis applies under article I, section 15 of the California
Constitution. (People v. Ochoa (2001) 26 Cal.4th 398, 433; People v. Waidla,
supra, 22 Cal.4th at p. 742.) “The standard under sections 977 and 1043 is
similar. „ “[T]he accused is not entitled to be personally present during
proceedings which bear no reasonable, substantial relation to his opportunity to
13
defend the charges against him . . . . [Citation.]” [Citation.]‟ [Citations.]”
(People v. Rogers (2006) 39 Cal.4th 826, 855.) 5
“On appeal, we apply the independent or de novo standard of review to a
trial court‟s exclusion of a criminal defendant from pretrial and trial proceedings,
either in whole or in part, „insofar as the trial court‟s decision entails a
measurement of the facts against the law.‟ (People v. Waidla, supra, 22 Cal.4th
690, 741.)” (People v. Cole (2004) 33 Cal.4th 1158, 1230.) After independent
review, we find no error. Defendant‟s constitutional right to be personally present
was not violated.
Defendant has not indicated how his presence at any of the various sidebar
conferences during voir dire or trial bore a reasonably substantial relation to his
opportunity to defend himself. All of the bench conferences during trial
concerned routine evidentiary or legal matters, and “we cannot conclude with
respect to any one of them that [defendant‟s] personal presence either was
necessary for an „opportunity for effective cross-examination,‟ for purposes of the
Sixth Amendment‟s confrontation clause [citation]; or would have „contribute[d]‟
to the trial‟s „fairness‟ in any marginal way, for purposes of the Fourteenth
Amendment‟s due process clause [citation]; or bore a „ “ „ “reasonably substantial
relation to the fullness of his opportunity to defend,” ‟ ” ‟ for purposes of
section 15 of article I of the California Constitution and also sections 977 and
1043 of the Penal Code [citation].” (People v. Waidla, supra, 22 Cal.4th at p. 742,
italics omitted.) Defendant complains he should have been present at bench
conferences when questions about his attorney‟s performance might have been
raised, such as when the court sustained prosecutorial objections or overruled
defense objections, when defense counsel agreed to limit his questioning to
5 We decline defendant‟s suggestion that we reexamine these established
precedents based on what he finds to be the United States Supreme Court‟s
increased reliance on common law in regard to an accused‟s right to be present at
trial.
14
accommodate witnesses‟ schedules, and when defense counsel once asked to end
the day early to attend to a personal matter.6 Defendant also asserts that he should
have been present when the prosecutor was criticized for failing to provide
discovery on some witnesses.7 In both cases, however, nothing suggests
defendant‟s presence would have accomplished anything useful. Defendant does
not claim that discovery violations by the prosecutor infringed his rights or entitle
him to a new trial. Nor does he argue his attorney provided constitutionally
ineffective representation. Defendant observed his attorney‟s performance in
court, and he does not claim to have been unaware of defense strategies discussed
at sidebar. Although counsel‟s sidebar arguments were not always successful,
defendant has not identified any particular shortcoming that could have been
grounds for a successful motion under People v. Marsden (1970) 2 Cal.3d 118.
Nor has defendant shown that his presence would have affected the
outcome of the for-cause juror challenges argued at sidebar. (See People v.
Benavides (2005) 35 Cal.4th 69, 89.) With few exceptions, defendant simply
describes the proceedings and does not explain how his presence would have made
a difference. In the examples he does discuss in detail, and which we consider
below, we perceive no reasonable or substantial relation between defendant‟s
absence from the proceedings and his ability to present a defense.
During sidebar conferences, two prospective jurors reported being abused
as children. Defendant now contends his absence from these discussions was
detrimental because he could have “provide[d] input to counsel regarding his
assessment” of the effect of such abuse on the prospective jurors‟ views. Neither
of these prospective jurors was excused immediately, however, and in both
6 After the close of testimony in the penalty phase, defense counsel reported
at sidebar that he had learned his mother-in-law had just died. Counsel asked if
they could finish the proceedings early so that he could join his wife.
7 Defense counsel complained the prosecution had not notified him that
Montulfar would testify or provided notes of any interviews of this witness.
15
instances defendant and his attorney had an opportunity to discuss the information
revealed at sidebar. In discussions of sensitive issues such as a prospective juror‟s
childhood abuse, “allowing the defendant to be present „could well undermine the
confidence and cooperation‟ necessary” to encourage candor. (People v. Ochoa,
supra, 26 Cal.4th at p. 435, quoting People v. Hovey (1988) 44 Cal.3d 543, 573.)
Defendant complains of another sidebar that was requested by one of the
sworn jurors during the selection of alternates. This juror revealed at sidebar that
he was familiar with the locations of the crimes and had talked with relatives about
criminal activity in the area. After he returned to his seat, the lawyers remained at
the bench and immediately agreed the juror had to be excused from service. In
discussing how to fill the juror‟s seat, defense counsel requested that the court seat
the first alternate juror but also give both sides an additional peremptory
challenge. The court agreed. Defendant now complains that that this procedure
was critically important and his absence deprived him of the “opportunity to
provide . . . input to counsel.” He raised no objection at the time, however, and
even now fails to explain what useful “input” he could have given or what
different procedure he might have urged. At most, defendant‟s absence from this
tactical discussion deprived him of “a mere „shadow‟ benefit” and does not
amount to a constitutional or statutory violation. (People v. Ochoa, supra, 26
Cal.4th at p. 433; see Snyder v. Massachusetts (1934) 291 U.S. 97, 106-107
[accused has no constitutional right to be present “when presence would be
useless, or the benefit but a shadow”].)
Finally, more than three years after briefing in this case had been
completed, defendant filed a supplemental brief raising the new argument that the
questioning of jurors at sidebar violated his federal constitutional right to a public
trial. In Presley v. Georgia (2010) __ U.S. __ [130 S.Ct. 721], the high court held
that a criminal defendant‟s Sixth Amendment right to a public trial extends to jury
selection. (Presley, at p. 724.) However, the court recognized that “there are
exceptions to this general rule. „[T]he right to an open trial may give way in
16
certain cases to other rights or interests, such as the defendant‟s right to a fair trial
or the government‟s interest in inhibiting disclosure of sensitive information.‟
(Waller[ v. Georgia (1984)] 467 U.S.[ 39,] 45.)” (Presley, at p. 724.)
Initially, we note that the claim is forfeited because defendant failed to
object on this ground below. “A defendant „may, by his own acts or acquiescence,
waive his right [to a public trial] and thereby preclude any subsequent challenge
by him of an order excluding the public. Unlike the jury trial right which requires
an express personal waiver [citation], the constitutional guarantee of a public trial
may be waived by acquiescence of the defendant in an order of exclusion.‟
[Citations.]” (People v. Edwards (1991) 54 Cal.3d 787, 813.)
This late-raised argument claim also fails on the merits. Not every sidebar
conference rises to the level of a constitutional violation. Trial courts retain broad
power to control their courtrooms to maintain security, protect the defendant‟s
interest in a fair trial, protect the privacy concerns of prospective jurors, and
efficiently dispose of matters outside the hearing of jurors or testifying witnesses.
(Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1150; People v. Esquibel
(2008) 166 Cal.App.4th 539, 552.) We have also held that even a partial or
temporary exclusion of the public from certain proceedings, if justified, imposes
no more than a de minimus restriction on the constitutional right to a public trial.
(People v. Woodward (1992) 4 Cal.4th 376, 385-386; see also People v. Bui
(2010) 183 Cal.App.4th 675, 683-687 [concluding Presley did not alter the “de
minimis” exception recognized in Woodward].)
Here, the courtroom was not closed. Defendant has directed us to no case
that holds sidebar conferences to discuss sensitive or potentially prejudicial
matters are akin to a closure of the courtroom, violating state or federal
constitutional public trial guarantees. In Presley, the trial court had excluded all
members of the public from the courtroom during voir dire, including one of the
defendant‟s family members. (Presley v. Georgia, supra, 130 S.Ct. at p. 722.)
Defendant was present and the public was allowed, but the court questioned jurors
17
at sidebar about sensitive subjects bearing on potential cause challenges. We
agree that, as a general rule, the questioning of prospective jurors should be
conducted in open court, with sidebar conferences reserved for particularly
sensitive or prejudicial topics. However, having reviewed the record, we are
satisfied that the brief bench conferences during jury selection here imposed no
more than a de minimus infringement of the public trial guarantee. These brief
episodes of questioning and argument at the bench did not deprive defendant of
his right to a public trial.
B. Cause Challenges
Defendant claims the court erred in its rulings on challenges to three
prospective alternate jurors for cause and improperly limited defense counsel‟s
questioning of a fourth prospective juror. We find no abuse of discretion.
1. Denial of Defense Challenges
a. Prospective Alternate Juror John B.
During voir dire, the court questioned Prospective Alternate Juror John B.
at the bench about disclosures in his questionnaire concerning child abuse. After
this topic was explored, defense counsel requested permission to ask John B. “one
question.” He then asked whether “a person who has committed cold-blooded,
premeditated murder in the commission of a robbery has forfeited his right to live
and should automatically get the death penalty regardless of his circumstances?”
John B. disagreed with the word “automatically” and said he would not vote for
death automatically. He explained, however, that he could imagine circumstances
when a murderer would forfeit the right to live, such as if the victim was murdered
even when doing his or her best to cooperate. When defense counsel asserted
“that is precisely what the People are going to try to prove,” John B. admitted that,
in that case, he would “lean very strongly” in favor of voting for death. The court
interrupted the juror and asked if the prosecutor had any questions. In response to
the prosecutor‟s questioning, John B. repeatedly stated that he would “weigh the
circumstances” in deciding whether to impose the death penalty and would not
18
impose death automatically. John B. stressed that he would always take the
circumstances of the case into account. He could vote for life imprisonment
without parole, but he conceded that in certain circumstances, like the murder of a
compliant victim, he would lean strongly toward the death penalty.
Defense counsel interposed the beginning of a question: “But if a person
goes out of his way to take a robbery victim who is not resisting, and take them to
another area and murder them by repeatedly stabbing them —.” The court
sustained an objection, and counsel rephrased the question. Directing John B.‟s
attention to a questionnaire response stating that a person who committed
premeditated murder had “ „forfeited the right,‟ ” defense counsel asked whether a
fact pattern of premeditated murder would cause John B. to “automatically vote
for death.” John B. responded, “I‟m going to object to the term „automatic.‟ I
would lean much more heavily towards it. But I mean, there are circumstances
that would have to be weighed all the way around.”
The next day, defendant moved to dismiss John B. for cause, arguing there
was no reasonable possibility John B. would impose life imprisonment without
parole under the facts of this case. The court denied the challenge. Having
observed John B.‟s demeanor at sidebar, the court “found him to be very
thoughtful in his answers, and . . . very credible.” Although John B. said he would
strongly lean toward death in certain cases, the court concluded this statement was
not a sufficient basis for disqualification. The court observed, “Yes, he‟s a strong
pro-deather. But he made it very, very clear that he would be willing to look at the
circumstances, although his feelings on the subject matter are very strong.” After
his cause challenge was denied, defendant exercised a peremptory challenge to
excuse John B. and exhausted all four peremptory challenges allotted for the
selection of alternate jurors. However, defense counsel did not express
dissatisfaction with the jury as sworn.
“As a general rule, a party may not complain on appeal of an allegedly
erroneous denial of a challenge for cause because the party need not tolerate
19
having the prospective juror serve on the jury; a litigant retains the power to
remove the juror by exercising a peremptory challenge. Thus, to preserve this
claim for appeal we require, first, that a litigant actually exercise a peremptory
challenge and remove the prospective juror in question. Next, the litigant must
exhaust all of the peremptory challenges allotted by statute and hold none in
reserve. Finally, counsel . . . must express to the trial court dissatisfaction with the
jury as presently constituted.” (People v. Mills (2010) 48 Cal.4th 158, 186.)
Defendant satisfied the first two of these requirements, but not the third. We have
declined to find claims forfeited under these circumstances in cases tried before
1994, when the expression of dissatisfaction requirement was clarified in People v.
Crittenden (1994) 9 Cal.4th 83, 121, footnote 4 (see Mills, at pp. 186-187);
however, defendant‟s trial was in 1995.
Even if defendant‟s claim had been preserved, it would fail on the merits.
Defendant first argues the court erred in limiting his attorney‟s questioning of John
B. In general, both parties are entitled to ask prospective jurors questions “that are
specific enough to determine if those jurors harbor bias, as to some fact or
circumstance shown by the trial evidence, that would cause them not to follow an
instruction directing them to determine a penalty after considering aggravating and
mitigating evidence. [Citation.]” (People v. Cash (2002) 28 Cal.4th 703, 720-
721.) However, “[o]ur decisions have explained that death-qualification voir dire
must avoid two extremes. On the one hand, it must not be so abstract that it fails
to identify those jurors whose death penalty views would prevent or substantially
impair the performance of their duties as jurors in the case being tried. On the
other hand, it must not be so specific that it requires the prospective jurors to
prejudge the penalty issue based on a summary of the mitigating and aggravating
evidence likely to be presented. [Citation.] In deciding where to strike the
balance in a particular case, trial courts have considerable discretion. [Citations.]”
(Id. at pp. 721-722.)
20
Defense counsel had ample opportunity to question John B. and did so at
length. This questioning was cut short on only one occasion, when the court
sustained an objection to counsel‟s question whether John B. would impose the
death penalty upon a person who had moved an unresisting robbery victim to
another location and then repeatedly stabbed them. This hypothetical question
included several key facts about defendant‟s alleged crime: (1) The murder was
committed during a robbery; (2) the victim did not resist; (3) the victim was
moved to another location; and (4) in that location, the victim was stabbed
repeatedly and killed. Given this specificity, the trial court did not abuse its
discretion in concluding that the question improperly called for Prospective
Alternate Juror John B. to prejudge the penalty determination based on evidence
likely to be presented.
Defendant next argues substantial evidence does not support the court‟s
denial of his challenge of John B. for cause. “A prospective juror may be
challenged for cause based upon his or her views regarding capital punishment
only if those views would „ “prevent or substantially impair” ‟ the performance of
the juror‟s duties as defined by the court‟s instructions and the juror‟s oath.
(Wainwright v. Witt (1985) 469 U.S. 412, 424; People v. Crittenden[, supra,] 9
Cal.4th [at p.] 121; People v. Mincey (1992) 2 Cal.4th 408, 456.)” (People v.
Cunningham (2001) 25 Cal.4th 926, 975.) “If a juror‟s responses are conflicting
or equivocal, the trial court‟s ruling is binding on us. [Citations.] If not, we will
uphold the trial court if the ruling is fairly supported by substantial evidence in the
record, giving deference to the trial court which had the opportunity to observe
and listen to the juror. [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 651.)
Substantial evidence supports the trial court‟s conclusion that John B. could
remain impartial and apply the law despite his personal beliefs regarding the death
penalty. The trial court found John B.‟s responses to be thoughtful and credible,
and we defer to this assessment. (People v. Navarette (2003) 30 Cal.4th 458, 490;
People v. Crittenden, supra, 9 Cal.4th at p. 122.) John B. repeatedly averred that
21
he would not impose the death penalty automatically, but would consider all the
relevant circumstances in making a decision. Although he admitted he would lean
toward death in the case of a robber who proceeded to murder a cooperative
victim, he stressed that no particular penalty would be “automatic.” In context,
John B.‟s statements appear to convey his view that the premeditated murder of an
unresisting victim presents, in the abstract, a collection of aggravating
circumstances that tip the balance heavily in favor of death. John B. did not rule
out a different result, however, if mitigating circumstances were also taken into
account.
b. Prospective Alternate Juror Tracey S.
Prospective Alternate Juror Tracey S. worked as a registered nurse with the
Los Angeles County Sheriff‟s Department, treating inmates at the Men‟s Central
Jail. She came in contact with deputy sheriffs but none were her friends. At
sidebar, defense counsel disclosed that defendant remembered being treated by
Tracey S. in the past. Defendant had seen her talking to deputies and believed she
dated deputies. Defense counsel challenged Tracey S. for cause “out of an
abundance of caution” and conceded the challenge was not based on “anything
specific.” Counsel explained that he would feel “uncomfortable” having Tracey S.
as a juror given that she could encounter defendant at the jail during the trial and
“we‟re trying to pretend he‟s not in custody.” The court observed that Tracey S.
would not have contact with defendant if she served as a juror “because she
obviously wouldn‟t be going to work; she would be coming here.” Nevertheless,
the court asked if Tracey S. recognized anyone at counsel table, and she replied
that she did not. The court denied the challenge. Immediately after this ruling,
defense counsel declined to exercise a peremptory challenge against Tracey S. and
expressly accepted the alternate jurors. Tracey S. was sworn as an alternate and
eventually sat as a regular juror.
Defendant now claims the court erred in denying his challenge. Assuming
this claim was not waived by defense counsel‟s express acceptance of the alternate
22
jurors, it fails on the merits. Tracey S. said she did not recognize anyone at the
defense table. Defense counsel could not identify any specific reason why Tracey
S. could not serve as a fair and impartial juror. He referred only to his discomfort,
defendant‟s speculation, and counsel‟s conjecture that Tracey S.‟s job, which she
would be away from during trial, might alert her to defendant‟s custodial status.
These vague and speculative objections were not sufficient to support a dismissal
for cause, and the trial court‟s denial of the challenge is supported by substantial
evidence. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1035.)
However, defendant insists that the challenge should have been granted
because, almost a month later, Tracey S. did see defendant at the jail. Jurors were
excused from court for one day after the close of evidence in the guilt phase.
Tracey S. went to work that day and saw defendant standing in line outside the
jail‟s clinic with a group of inmates. They did not speak. Tracey S. walked by
defendant, had no more contact with him, and did not try to find out more about
him. Thus, while she learned that defendant was in custody, she knew nothing
else about him, and she did not remember having ever treated him. Defense
counsel asked Tracey S. several questions about the incident, and she repeatedly
said it would not affect her ability to serve as a juror. At the court‟s request, she
also agreed not to mention the sighting to other jurors. Counsel did not move to
dismiss Tracey S. or make any attempt to show she was disqualified from serving
as a juror. “Plainly, if a defendant desires the trial court to fashion an appropriate
remedy under these circumstances, the request must be timely to afford the
opportunity to rule when the ruling will be meaningful. [Citation.]” (People v.
Ramos (1997) 15 Cal.4th 1133, 1160.) Because no objection was made below, to
the extent defendant contends the court erred in failing to discharge Tracey S.
from the jury, the claim has been forfeited. (Ibid.; see also § 1089 [permitting
discharge of a juror at any time “upon . . . good cause shown to the court” (italics
added)].)
23
Even if the claim had been preserved, it would fail on the merits. A juror
may be discharged if, at any time before or after final submission of the case, the
court upon good cause finds the juror “unable to perform his or her duty.”
(§ 1089.) We generally uphold a trial court‟s decision regarding discharge if there
is any substantial evidence to support it, although, if a juror is discharged, her
inability to perform as a juror “must „ “appear in the record as a demonstrable
reality.” ‟ [Citation.]” (People v. Marshall (1996) 13 Cal.4th 799, 843.) The
record does not support defendant‟s claim that Tracey S.‟s ability to serve was
compromised because she saw him in custody. Tracey S. immediately reported
the incident to the court, repeatedly assured the court the incident would have no
effect on her decisionmaking, and agreed to say nothing about it to other jurors.8
2. Grant of Prosecution Challenge to Prospective Alternate
Juror Janice S.
In her questionnaire, Prospective Juror Janice S. wrote that she “really
[didn‟t] believe in the death penalty,” but she thought she could set her beliefs
aside and impose it if she thought it was appropriate. During voir dire, however,
Janice S. said that she did not believe she had the “right to say . . . somebody else
should die. I can‟t make that decision” The court asked if Janice S. could think of
a set of circumstances in which she could impose the death penalty for a person
convicted of first degree murder committed in the course of a robbery. Janice S.
said she could not, although she had written on her questionnaire that she could do
so. Janice S. explained: “[N]ow I‟m thinking. I had time to think. And no, I
couldn‟t say — even if they did all that — that I still couldn‟t say that I could
sentence this person to death.” When the court asked again, “are you telling us . . .
you can‟t see a set of circumstances where you could find yourself personally
8 Although the defense was “trying to pretend” that defendant was not in
custody, few jurors would find it remarkable that a defendant facing the death
penalty would be in custody during trial. We note further that during the penalty
phase defendant refused to wear civilian clothing. Thus, his custody status was
evident.
24
voting to put someone to death,” Janice S. answered, “Right. I couldn‟t. No, I
could not.” Later, the prosecutor challenged Janice S. for cause. Defense counsel
asked for an opportunity to attempt to rehabilitate her. In the alternative, he
opposed the challenge based on Janice S.‟s questionnaire responses expressing a
willingness to set aside her beliefs and impose the death penalty if appropriate.
The court sustained the challenge without allowing further inquiry.
A prospective juror may be excluded for cause without compromising a
defendant‟s right to trial by an impartial jury if the juror‟s views on capital
punishment “would „prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.‟ ” (Wainwright v. Witt,
supra, 469 U.S. at p. 424; see also People v. Rodrigues (1994) 8 Cal.4th 1060,
1146.) “A prospective juror is properly excluded if he or she is unable to
conscientiously consider all of the sentencing alternatives, including the death
penalty where appropriate. [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229,
1246.) “Generally, the qualifications of jurors challenged for cause are matters
within the wide discretion of the trial court, seldom disturbed on appeal.
[Citations.] There is no requirement that a prospective juror‟s bias against the
death penalty be proven with unmistakable clarity. [Citations.] Rather, it is
sufficient that the trial judge is left with the definite impression that a prospective
juror would be unable to faithfully and impartially apply the law in the case before
the juror. [Citations.] „On review, if the juror‟s statements are equivocal or
conflicting, the trial court‟s determination of the juror‟s state of mind is binding.
If there is no inconsistency, we will uphold the court‟s ruling if it is supported by
substantial evidence. [Citations.]‟ (People v. Carpenter (1997) 15 Cal.4th 312,
357.)” (Jones, at pp. 1246-1247.)
The record amply supports the trial court‟s dismissal of Janice S. for cause.
Although her questionnaire responses were somewhat ambiguous, Janice S.
unequivocally stated at voir dire that she had considered the matter further and
concluded she could not vote to impose the death penalty under any
25
circumstances. This clear admission established that Janice S. could never impose
the penalty sought by the prosecution in this capital case. Accordingly, the trial
court properly dismissed Janice S. because her views would have substantially
impaired her ability to perform her duties as a juror.
Defendant also claims the court violated his constitutional rights by
refusing to allow defense counsel to question Janice S. further on her views about
the death penalty. Defendant speculates that further questioning might have
shown that Janice S. could have set aside her strong views and fulfilled her duties
as a capital juror. However, as we have repeatedly stated, “[t]he court has
discretion to refuse to allow defense counsel to question jurors for the purpose of
rehabilitation if their „answers made their disqualification unmistakably clear . . . .‟
(People v. Bittaker, supra, 48 Cal.3d at p. 1085, citing People v. Nye (1969) 71
Cal.2d 356, 364.)” (People v. Carpenter, supra, 15 Cal.4th at p. 355; see also
People v. Samayoa (1997) 15 Cal.4th 795, 823.) We find no abuse of discretion.
After reflection, Janice S. candidly admitted that she could not vote to impose the
death penalty under any circumstances. Her clearly stated views disqualified her
from jury service.
Defendant nevertheless insists the questioning of Janice S. was
constitutionally inadequate under Morgan v. Illinois (1992) 504 U.S. 719. Not so.
Morgan simply held that general questions about a juror‟s ability to be fair and
follow the law are not sufficient to detect those in the venire who would
automatically vote for or against death. (Id. at pp. 734-735.) Questions about
death penalty biases must be specific enough that they require potential jurors to
consider whether they have such strong views about capital punishment that they
could not follow the law. (Id. at pp. 735-736.) The trial court‟s questions directly
involving the death penalty were sufficiently specific. As the Supreme Court
observed in Morgan, “such jurors — whether they be unalterably in favor of, or
opposed to, the death penalty in every case — by definition are ones who cannot
perform their duties in accordance with law . . . .” (Id. at p. 735.)
26
3. Limited Questioning of Prospective Alternate Juror
Duvall G.
Finally, defendant claims the court erred in refusing to allow defense
counsel to question Prospective Alternate Juror Duvall G. Before jury selection,
the court announced its intention to question the jurors itself but also allow each
side one hour for the attorneys to “hone in on areas that they really believe are
necessary.” No objections were raised to this procedure. Each prospective juror
had completed a detailed, 36-page questionnaire, and the record reflects that the
court questioned each juror individually. After the court questioned Duvall G.,
defense counsel requested leave to ask “a couple” of questions. The court
declined, remarking that the attorneys were “both out of time.” Defendant did not
challenge Duvall G. for cause or exercise a peremptory challenge against him.
Duvall G. was sworn as an alternate juror and substituted onto the jury during the
guilt phase.
In his questionnaire, Duvall G. revealed that he had been physically and
mentally abused by his father. When the court asked about this abuse at sidebar,
Duvall G. explained that his mother had abandoned the family, leaving Duvall G.
with his alcoholic father. Duvall G. remarked on the experience: “To me, it‟s no
big deal. I‟m here. I work every day. . . . [¶] I never had any psychological
counseling. So I guess I‟m just a regular kind of guy, you know.” Duvall G.
thought he could objectively weigh evidence about similar abuse, “because I never
think about it. It doesn‟t bother me.” Asked if a person subjected to such abuse
“can still make the right choices in life,” Duvall G. responded, “[of] course they
can.” He believed that if an abused person later made “wrong choices in life,”
they would be accountable for such choices. He explained: “It‟s not like they‟re
still being abused. To me, it‟s not that deeply rooted . . . . That‟s just my personal
opinion.” Despite this opinion, Duvall G. averred that he could consider evidence
of abuse as a factor in causing a person to make bad decisions.
27
Duvall G. was arrested for joyriding and driving while intoxicated when he
was 13 or 14 years old. When the court asked about this experience, Duvall G.
confirmed that he had been treated fairly by the criminal justice system. He
regretted the incident because he could have hurt someone.
Duvall G.‟s questionnaire also mentioned that he had been the victim of a
burglary and a robbery. In response to the court‟s questions, Duvall G. disclosed
that two men had robbed him at knifepoint eight or nine years earlier. He did not
contact the police because robberies happened “all the time” in that neighborhood,
and he thought “it was, like, no big deal as long as I didn‟t get hurt. That‟s what
you pray for, not to get hurt.” Also, he did not think the police could catch the
robbers, who ran away on foot, “and they only got a couple dollars.” Duvall G.
did not try to find the culprits. He affirmed that he could be fair in the present
case even though it involved an allegation of robbery with a knife. Duvall G. also
stated in his questionnaire that he could find defendant not guilty if the evidence
did not support the charges, and he commented, “Robbery is not murder.”
In his questionnaire, Duvall G. agreed that it is important to know a
person‟s life circumstances when deciding between the death penalty and life
imprisonment, and he said he could follow an instruction directing him to consider
these circumstances. On voir dire by the court, Duvall G. affirmed that he could
give fair and objective consideration to all the evidence bearing upon penalty, and
he could personally impose either penalty depending on what the evidence
showed.
Defendant now contends the trial court‟s refusal to allow further
questioning by defense counsel rendered the trial fundamentally unfair. Because
defendant did not challenge Duvall G. for cause, did not exercise a peremptory
challenge against him, and expressly accepted the panel of alternate jurors sworn,
he has forfeited any claim of error regarding Duvall G.‟s suitability as a juror.
(People v. Burgener (2003) 29 Cal.4th 833, 866; People v. Ramos, supra, 15
Cal.4th at p. 1160.) His argument also fails on the merits.
28
“The trial court . . . has a duty to restrict voir dire within reasonable bounds
to expedite the trial. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 536.)
We review a trial court‟s limitations on voir dire for abuse of discretion. (People
v. Benavides, supra, 35 Cal.4th at p. 88; see Code Civ. Proc., § 223.) No such
abuse appears here. The court thoroughly questioned Duvall G. on his background
and relevant experiences and probed his ability to be a fair and impartial juror.
Defense counsel never told the trial court what additional questions he sought to
ask, what subjects needed to be explored further, or why the information elicited
from Duvall G.‟s detailed questionnaire and the court‟s questioning was not
sufficient to allow him to exercise his challenges intelligently. Defendant did not
ask the court to pose further questions. As a result, defendant‟s argument that the
time limits on attorney voir dire deprived him of an opportunity to establish that
Duvall G. could not serve as a fair and impartial juror is purely speculative.
(People v. Roldan (2005) 35 Cal.4th 646, 693, disapproved on another ground in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Duvall G.‟s responses in the
questionnaire, and in court, consistently showed that he was qualified to serve as a
juror. Defendant had sufficient information from the questionnaire and in-court
voir dire to exercise his challenges intelligently. The trial court did not abuse its
discretion by denying defense counsel‟s request to question this prospective juror
further. (See Roldan, at p. 694.)
C. Admission of Victim Photographs
During the guilt phase, the prosecution introduced People‟s exhibit No. 14,
which held four mounted photographs of the murder victim, Soy Sung Lao. The
two photographs on the left depicted Lao in life, wearing a University of Southern
California sweatshirt. The two on the right were taken by the coroner during
Lao‟s autopsy. When the prosecutor used this exhibit in questioning Sergeant
Tiller, Officer Schmidt, and Debra Tomiyasu, he left one of the autopsy photos
partially uncovered, revealing only Lao‟s face. The other autopsy photo was
covered entirely. Defendant did not object to the use of the exhibit with any of
29
these witnesses. During the testimony of Ty Ngov, the victim‟s brother-in-law,
defense counsel objected to a display of the partially covered coroner‟s
photograph. In response, the prosecutor covered the photograph entirely, leaving
exposed only the photographs of Lao in life. Defense counsel agreed to stipulate
that Lao was the person shown in the covered photograph. The exhibit remained
in this condition, with both autopsy photos covered, when the prosecutor displayed
it in questioning Lao‟s sister and a crime scene technician. Defendant did not
object to these displays of the partially covered exhibit. During his examination of
the forensic pathologist, the prosecutor uncovered the autopsy photos and, without
objection, displayed the full exhibit to the jury. In addition to marking the
locations of Lao‟s stab wounds on a blank body chart, the pathologist circled some
specific wounds on one of the autopsy photographs in the exhibit.
Defendant now claims the trial court abused its discretion when it admitted
People‟s exhibit No. 14 into evidence. Although defense counsel did not object to
the use of the exhibit with seven separate witnesses, he argued after the close of
testimony in the guilt phase that the exhibit should be excluded from evidence
because the juxtaposition of autopsy photos with pictures of the victim in life was
more prejudicial than probative. This objection should have been made during the
pathologist‟s testimony, when all the photographs were unveiled for the jury, but it
was not. “Because defendant did not object at the time the photographs were used
in questioning the witnesses, he failed to preserve the issue for appeal. Although
he later raised an objection, that objection was not sufficiently timely to preserve
the issue. The requirement that an objection to evidence be timely made is
important because it „allows the court to remedy the situation before any prejudice
accrues.‟ [Citation.]” (People v. Boyette (2002) 29 Cal.4th 381, 423-424.)
Even if the claim had been preserved, the evidence was properly admitted.
“The admission of photographs of a victim lies within the broad discretion of the
trial court when a claim is made that they are unduly gruesome or inflammatory.
[Citations.] The court‟s exercise of that discretion will not be disturbed on appeal
30
unless the probative value of the photographs clearly is outweighed by their
prejudicial effect. [Citations.]” (People v. Crittenden, supra, 9 Cal.4th at pp. 133-
134.) The photographs in the exhibit were relevant to corroborate eyewitness
identifications of Lao and to illustrate expert forensic testimony. Defendant does
not contend the autopsy photographs were especially gruesome. He objects that
the juxtaposition of photos showing the victim in life and in death was unfairly
prejudicial because this combination would likely evoke sympathy for the victim.
“We have described the „prejudice‟ referred to in Evidence Code section 352 as
characterizing evidence that uniquely tends to evoke an emotional bias against a
party as an individual, while having only slight probative value with regard to the
issues. [Citation.]” (Crittenden, at p. 134; see also Vorse v. Sarasy (1997) 53
Cal.App.4th 998, 1008 [“Evidence is not prejudicial, as that term is used in a
section 352 context, merely because it undermines the opponent‟s position or
shores up that of the proponent”].) Each photo was properly admitted. All
evidence is to be considered as a whole. The mere fact that four properly admitted
photographs were mounted on a single board does not approach the threshold for a
section 352 exclusion. After seven witnesses had been questioned about People‟s
exhibit No. 14 without objection from the defense, the trial court did not abuse its
discretion in admitting the exhibit itself into evidence.
D. Testimony of Lavette Gilmore
Defendant complains the trial court made several errors in regard to the
testimony of Lavette Gilmore, the hair stylist who identified defendant as having
been in the doughnut shop shortly before the murder. We find no prejudicial error.
1. Nonresponsive Testimony
During direct examination, after Gilmore described the man she saw sitting
alone at one of the doughnut shop tables, the prosecutor asked what drew her
attention to this person. She responded that he gave her a “funny feeling” and his
sitting there “[j]ust didn‟t feel right.” Defense counsel asked the court to strike the
phrase “funny feeling” because Gilmore‟s “suspicions or feelings” were not
31
relevant. The court overruled the objection and noted that Gilmore‟s remark
“explain[ed] why she paid attention” to the man in the shop. Gilmore also
testified, without objection, that defendant‟s appearance drew her suspicion
because “[h]e looked like he shouldn‟t have been there. He looked rugged.” He
was thin, needed a haircut, and “didn‟t look clean at all.” When the prosecutor
asked Gilmore to identify defendant, in court, as the man she saw in the doughnut
shop, she responded, “He looks so clean and nice now and healthy.” She could
not say he was the same person. The prosecutor then questioned Gilmore about
the 1993 photographic lineup in which she identified defendant‟s profile photo.
Asked how she expressed her identification to the officer, Gilmore replied that she
remembered the man‟s eyes, nose, cap, facial hair, and the way he tried to hide his
face. She explained that she focused her attention on the man in the shop because
she “had a lot of money in [her] back pocket” from having worked a full day at the
salon. Defense counsel interrupted, objecting to testimony about money in
Gilmore‟s pocket and her “inchoate fears.” The court responded by directing the
prosecutor to ask his next question. Defense counsel did not request a ruling on
his objection or move to strike Gilmore‟s testimony as nonresponsive.
Defendant now claims the court erred in failing to strike Gilmore‟s
testimony sua sponte because it was nonresponsive and more prejudicial than
probative. Specifically, defendant contends the testimony asked the jury to infer
that he had a predisposition to commit robbery. He also argues Gilmore‟s
testimony was inadmissible as a lay opinion about whether the man she saw in the
doughnut shop intended to commit a robbery.
Defendant forfeited these claims by failing to obtain a ruling on his
objection and failing to move that Gilmore‟s testimony be stricken. “ „In the
absence of an erroneous ruling on an objection or request that a nonresponsive
answer be stricken and the jury instructed to disregard it, there is no error.‟
(People v. Harris [(1989)] 47 Cal.3d [1047,] 1089.)” (People v. Jackson (1996)
13 Cal.4th 1164, 1214.) Defense counsel‟s vague objection to what he
32
characterized as Gilmore‟s “inchoate fears” was not sufficient to preserve a claim
of error for appeal. “A nonresponsive answer is properly the subject of a motion
to strike (Evid. Code, § 766), not an objection.” (People v. Bell (2007) 40 Cal.4th
582, 611, fn. 11.)
In any event, defendant‟s claims fail on the merits. Gilmore did not express
an opinion about whether the man was a potential robber. She gave no character
evidence about defendant‟s propensity to act in a particular way. She merely
described her state of mind upon seeing a “rugged”-looking man sitting alone in
the shop. The testimony was relevant to show that she paid particular attention to
the man and explain why she did so. As to defendant‟s challenge under Evidence
Code section 352, the evidence was not unduly prejudicial, meaning it did not
“ „uniquely tend[] to evoke an emotional bias against the defendant as an
individual‟ ” while having little bearing on disputed issues. (People v. Karis
(1988) 46 Cal.3d 612, 638.) “ „In applying section 352, “prejudicial” is not
synonymous with “damaging.” ‟ [Citation.]” (Ibid.) The trial court did not err in
permitting the testimony.
2. Trial Testimony from Photographic Lineup
After she identified defendant‟s profile in August 1993 from a photographic
lineup, Gilmore was asked to attend a live lineup that October. At trial, Gilmore
explained that she did not identify defendant in the live lineup, even though she
recognized him among the suspects, because she was frightened. Because his
appearance had changed so much by the time of trial, she also could not identify
defendant in court as the man she saw in the doughnut shop.
During Gilmore‟s direct examination, the prosecutor sought to reconstruct
the live lineup by showing her photographs of that lineup. Defense counsel
objected to the questioning because Gilmore did not identify defendant at the live
lineup. When pressed to state the legal grounds for his objection, defense counsel
argued that, given the passage of time, there was no foundation Gilmore had the
ability to make an in-court identification from photographs of the lineup. The
33
court overruled the objection, noting that counsel could explore the subject on
cross-examination. When questioning resumed, the prosecutor showed Gilmore
three photographs from the live lineup. She selected defendant‟s photograph and
said it depicted the person she had recognized at the lineup but failed to identify.
Defense counsel interrupted and asked that the record reflect that the exhibit
shown to Gilmore also contained a large single photograph of defendant, mounted
below two pictures of the live lineup. He raised no objection to use of the exhibit,
however.
On appeal, defendant claims the ruling permitting this line of questioning
abridged various constitutional rights, including his right to counsel. No
constitutional violation occurred. Defendant was represented by counsel when the
live lineup was conducted and, of course, at trial. Moreover, there is no Sixth
Amendment right to counsel at a photographic lineup. (United States v. Ash
(1973) 413 U.S. 300, 321.)
Defendant also argues for the first time in his reply brief that the
identification procedure violated due process because the photographic exhibit
shown to Gilmore was overly suggestive. The exhibit in question displayed two
pictures of the live lineup and a third, of the same size, showing only defendant‟s
head and shoulders. Because counsel did not object or seek to prevent questioning
on this exhibit on the ground that it was unduly suggestive, this claim is forfeited
on appeal. In any event, defendant has not established error. “[F]or a witness
identification procedure to violate the due process clauses, the state must, at the
threshold, improperly suggest something to the witness — i.e., it must, wittingly
or unwittingly, initiate an unduly suggestive procedure.” (People v. Ochoa (1998)
19 Cal.4th 353, 413.) Defendant‟s complaint that the exhibit was unduly
suggestive misses the point because the exhibit was not used as part of a “witness
identification procedure.” The prosecutor did not use the challenged exhibit to
obtain an identification from Gilmore. He did not ask her to identify which
picture depicted the man she saw in the doughnut shop. Rather, the prosecutor
34
asked Gilmore whether the photos showed the lineup she attended. He then asked
her to point out the man she had recognized but declined to identify. For this
purpose, it did not matter whether the exhibit displayed defendant prominently.
The witness testified she had recognized defendant when she saw him in person.
Her testimony reflected that, at trial, she remained able to identify the same man.
There is no indication that her trial testimony was influenced by the additional
photo of defendant mounted on the exhibit.
3. Limitation of Cross-examination
“ „[A] criminal defendant states a violation of the Confrontation Clause by
showing that he was prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on the part of the
witness, and thereby, “to expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness.” ‟
(Delaware v. Van Arsdall (1986) 475 U.S. 673, 680, quoting Davis v. Alaska
(1974) 415 U.S. 308, 318.) However, not every restriction on a defendant‟s
desired method of cross-examination is a constitutional violation. Within the
confines of the confrontation clause, the trial court retains wide latitude in
restricting cross-examination that is repetitive, prejudicial, confusing of the issues,
or of marginal relevance. [Citations.] California law is in accord. [Citation.]
Thus, unless the defendant can show that the prohibited cross-examination would
have produced „a significantly different impression of [the witnesses‟] credibility‟
(Van Arsdall, supra, 475 U.S. at p. 680), the trial court‟s exercise of its discretion
in this regard does not violate the Sixth Amendment. [Citation.]” (People v. Frye
(1998) 18 Cal.4th 894, 946, disapproved on another ground in People v. Doolin,
supra, 45 Cal.4th at p. 421, fn. 22.)
Defendant complains the court improperly restricted his cross-examination
of Gilmore by sustaining objections to three areas of questioning. There was no
error.
35
Defense counsel began his cross-examination of Gilmore by challenging
her intentional identification of the wrong person at the live lineup. Counsel
asked, without objection, “What if that man was convicted and was put in the gas
chamber?” Gilmore responded that she “wasn‟t thinking like that” at the time.
After further probing, counsel asked whether Gilmore had “put down something
that wasn‟t true in something as crucial as a capital murder case.” The court
sustained the prosecutor‟s objection that the question assumed Gilmore knew the
proceedings would be prosecuted as a capital case. This objection was well taken.
Defendant was not even arraigned on the final charges until November 19, 1993, a
month after the live lineup. Gilmore testified she knew someone had been
murdered, but there is no support for defendant‟s overly broad assertion that it is
“common knowledge” that convicted murderers are subject to the death penalty in
California.9 Indeed, if there were such common knowledge, the jurors would have
held it too, and presumably could have weighed that factor in assessing Gilmore‟s
credibility. Defense counsel‟s point, although not properly presented, would
nonetheless have been made.
Next, defendant challenges rulings sustaining two objections to
argumentative questions. In probing Gilmore about her intentional
misidentification at the live lineup, defense counsel asked how she would have felt
if she had been the person who was wrongly identified. The trial court sustained
an objection to the question as argumentative. This ruling was proper. Gilmore‟s
state of mind about how she would have felt to be misidentified was not relevant
to any disputed issue in the trial or to her credibility as a witness. The question
was also cumulative, because Gilmore was asked many questions about the
circumstances surrounding the misidentification and her lack of candor in making
it. Later, defense counsel questioned Gilmore about the description she gave to
9 Defendant points out that an August 1993 newspaper article stated that
Lao‟s murderer “could” face the death penalty or life imprisonment without
parole, but he concedes there is no evidence suggesting Gilmore read the article.
36
Officer Nick Pepper at the crime scene. Counsel read a description and asked if
Gilmore recalled describing the man in the doughnut shop as clean-shaven. She
responded, “No. He wasn‟t no clean-shaved person [sic].” Defense counsel
prefaced his next question with the statement, “Yeah, I know, all these pictures
you have looked at —,” and the prosecutor interrupted to object.
The trial court properly sustained the objection because counsel‟s statement
was clearly argumentative. “An argumentative question is a speech to the jury
masquerading as a question. The questioner is not seeking to elicit relevant
testimony. Often it is apparent that the questioner does not even expect an
answer.” (People v. Chatman (2006) 38 Cal.4th 344, 384.) Counsel was not
asking a question; he was telling the jury his own explanation for why Gilmore‟s
description had changed. The court‟s rulings sustaining objections to
argumentative questions did not infringe defendant‟s constitutional rights.
“ „[T]he Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.‟ [Citation.]” (Delaware v. Van Arsdall,
supra, 475 U.S. at p. 679.)
E. Testimony of Detective Richard Cohen
Next defendant claims the trial court erred in allowing Detective Richard
Cohen to testify why he considered defendant to be a suspect in Lao‟s murder.
Detective Cohen was twice called to the witness stand. He testified first
about his interview of defendant in connection with the burglary of the St. Frances
Xavier Cabrini Church. Defendant told Detective Cohen he had sometimes been
living near the Southwest Bowl. Later, when Detective Jacques LaBerge was
investigating the robbery of Samuel Draper at the Southwest Bowl, Cohen
remembered that defendant lived near there as “a transient,” and he shared this
information with LaBerge.
Later in the trial, Detective Cohen was recalled to the stand to describe his
meeting in June 1993 with LaBerge and Sergeant Lobo. Cohen testified that he
37
saw a poster concerning a murder in Gardena and, based on the photograph and
other information stated in the poster, Cohen thought he might have a lead on a
possible suspect. When the prosecutor asked whether Detective Cohen had
developed “any sort of suspicions” after looking at the composite picture and
learning the circumstances of the Gardena murder, defense counsel objected that
the detective‟s state of mind was not relevant. He argued that Cohen should not be
allowed to give an opinion that the composite looked like defendant, or was
similar to defendant‟s appearance when Cohen interviewed him after the church
burglary. The prosecutor explained that he was trying to establish how, despite
initial delays, the investigation ultimately focused on defendant. He expected
Detective Cohen would testify both that the composite resembled defendant and
that the circumstances of the crimes revealed “the same kind of MO.” The court
found that the evidence had probative value to explain how, after a long delay, law
enforcement officers focused on defendant as a suspect. The court agreed that
Cohen‟s opinion as to whether the composite looked like defendant was irrelevant,
but it allowed evidence showing Cohen‟s memory of defendant was triggered by
similarities in the modus operandi of the crimes. After this ruling, Detective
Cohen testified, without objection, that he started to consider defendant a possible
suspect in the Gardena murder because the composite “kind of resembled” what
defendant looked like when Cohen interviewed him and because Cohen knew that
defendant “had been hanging around the Southwest Bowl and possibly committing
crimes there.”
Defendant now complains this testimony was inadmissible as lay opinion.
“A lay witness may testify to an opinion if it is rationally based on the witness‟s
perception and if it is helpful to a clear understanding of his testimony. (Evid.
Code, § 800.)” (People v. Farnam (2002) 28 Cal.4th 107, 153.) The challenged
testimony was based on the detective‟s perceptions and was helpful for the jury to
understand how Cohen came to suspect defendant was connected to the Gardena
homicide. It was important for the prosecution to establish how the investigation
38
suddenly came to focus on defendant eight months after the murder, with
defendant jailed for much of this time for other crimes. The testimony was not
unduly prejudicial, and Tomiyasu had already testified about defendant‟s
resemblance to the composite picture. The jury was, of course, free to draw its
own conclusion. The trial court did not abuse its discretion in permitting the
testimony.
F. Testimony of Ella Ford
Next, defendant claims the trial court violated his rights to due process, the
assistance of counsel, and a reliable penalty determination by admitting testimony
about Ella Ford‟s photographic identification, made just a month before trial, and
by permitting her to make an in-court identification.
On the afternoon of Lao‟s murder, Officer Nick Pepper interviewed Ella
Ford at the crime scene. Ford described seeing a tall, dark-skinned, bearded male,
wearing a black T-shirt that displayed the continent of Africa. He was running
through the parking lot, away from the Donut King. Ford saw the man‟s face as
he looked back toward the shop. She did not mention seeing anything in his
hands.
On September 27, 1993, defendant requested that a live lineup be
conducted pursuant to Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans).
The request did not specifically name Ford but, after listing certain names, called
for the attendance of “any other witness who observed any suspect associated with
the 10-24-92 homicide.” The court granted the request, and several witnesses
attended the live lineup on October 19, 1993. When a law enforcement officer
attempted to bring Ford to the lineup, however, she refused to go. In her trial
testimony, Ford explained she did not want to attend the lineup because she was
afraid of possible retaliation if the person she had seen was affiliated with a gang.
The police tried to contact her other times in the remainder of 1993 and 1994, but
she remained reluctant to talk with them. On January 6, 1995, Sergeant Lobo and
the prosecutor visited Ford‟s house to interview her again about the homicide.
39
During this meeting, Sergeant Lobo showed Ford a lineup of six photographs.
Before Ford viewed the photographs, Lobo presented her with a standardized form
explaining that she was not obligated to identify anyone. Lobo did not indicate
that Ford should make an identification, nor did he suggest that the person she saw
in the parking lot was included in the lineup. Ford chose defendant‟s photograph.
She wrote on the form that this photograph “ „look[ed] like the person [she] saw
the day of the incident more so than anyone else in the six-pack file.‟ ” Ford was
“90 percent, not 100 percent” certain defendant‟s photograph was that of the
person she saw. She was “almost sure.”
Defendant filed a pretrial motion to exclude evidence of this photographic
identification, and any possible in-court identification by Ford, on the ground that
Ford had not attended the Evans lineup. He argued the defense should have been
notified before the police sought a photographic identification from Ford. If
notice had been given, the defense could have requested that another live lineup be
conducted, or could have been present when Ford viewed the photographs. As a
sanction, defense counsel asked the court to suppress evidence of Ford‟s
identification from the photographic lineup. He also asked that the court either
suppress any in-court identification or hold an Evidence Code section 402 hearing
to determine if Ford could make an identification independent of the photographs.
Alternately, counsel asked the court to admonish the jury that the defense should
have been notified before photographs were shown to Ford, and that they should
consider the People‟s failure to give such notice in deciding the accuracy of the
identification. The prosecutor responded that law enforcement officers had made
several unsuccessful attempts to contact Ford, who only recently agreed to speak
with them. He argued that the passage of time, Ford‟s reluctance to cooperate
with the police, and inconsistencies between her statements were all proper
subjects for cross-examination but not grounds for excluding the identifications.
The court denied the motion, finding the officers had no obligation to
contact defense counsel before showing Ford a photographic lineup. Although
40
Ford was arguably included within the scope of the order for an Evans lineup, the
court concluded that striking her identification would be too harsh a sanction. It
agreed, however, to modify the pattern jury instruction concerning eyewitness
testimony. As modified, the version of CALJIC No. 2.92 read to the jury stated
that, among other factors, the jury could consider “[t]he failure of a witness to
attend a live line-up” in assessing the accuracy of that witness‟s identification.
Defendant now argues that “under the totality of the circumstances” the admission
of Ford‟s identification testimony violated his rights to due process, the assistance
of counsel, and a reliable penalty determination. There was no constitutional
violation.
Defendant‟s complaints about the photographic identification lack merit.
First, as noted, the absence of defense counsel at Sergeant Lobo‟s pretrial meeting
with Ford is of no constitutional moment because the United States Supreme Court
has long held that the Sixth Amendment does not guarantee a criminal defendant
the right to counsel at a photographic lineup. (United States v. Ash, supra, 413
U.S. at p. 321.)
Second, despite defendant‟s bare assertions to the contrary, there is no
evidence that the identification process was so unreliable as to violate due process.
“In order to determine whether the admission of identification evidence violates a
defendant‟s right to due process of law, we consider (1) whether the identification
procedure was unduly suggestive and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable under the totality of the
circumstances, taking into account such factors as the opportunity of the witness to
view the suspect at the time of the offense, the witness‟s degree of attention at the
time of the offense, the accuracy of his or her prior description of the suspect, the
level of certainty demonstrated at the time of the identification, and the lapse of
time between the offense and the identification. [Citations.]” (People v.
Cunningham, supra, 25 Cal.4th at p. 989.) If the answer to the first question is
“no,” because we find that the challenged procedure was not unduly suggestive,
41
our inquiry into the due process claim ends. (People v. Ochoa, supra, 19 Cal.4th
at p. 412.) Defendant does not claim the photographic lineup or the circumstances
of its presentation to Ford were unduly suggestive. Instead, he focuses on
discrepancies in Ford‟s statements to police at the crime scene, at the January 1995
meeting, and at trial, and he argues these inconsistencies demonstrate that Ford‟s
identification is unreliable. The accuracy of Ford‟s identification was a question
for the jury. Inconsistencies in her descriptions of the man she saw, and in her
accounts of her activities on the day of the murder, are matters affecting the
weight of her eyewitness testimony, not its admissibility. (People v. Williams
(1973) 9 Cal.3d 24, 37, disapproved on another ground in People v. Cromer
(2001) 24 Cal.4th 889, 901, fn. 3.) Because defendant has not shown that the
identification procedures were impermissibly suggestive, his due process claim
fails. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)
Finally, the Constitution does not require exclusion of eyewitness testimony
as a sanction for a witness‟s failure to attend a lineup. In Evans, supra, 11 Cal.3d
at page 625, we held that “due process requires in an appropriate case that an
accused, upon timely request therefor, be afforded a pretrial lineup in which
witnesses to the alleged criminal conduct can participate.” Defendant was given
his pretrial lineup upon request. Due process was satisfied. Although defendant
did not list Ford among the specific witnesses he wanted to attend the lineup,
police officers notified her and tried to have her participate. She refused to go and
refused to have any contact with law enforcement about the case for almost two
years. Ford‟s existence as a witness was known from the crime scene police
reports. There is no indication the defense was prevented from contacting her.
Indeed, there is no indication of any bad faith on the part of the police or the
prosecution.
Under these circumstances, the trial court had discretion to fashion a
remedy short of excluding the witness‟s identification altogether. Addressing a
similar situation, the Court of Appeal in People v. Fernandez (1990) 219
42
Cal.App.3d 1379, 1384-1385, approved of an instruction that told the jury it could
view “with caution” the testimony of an eyewitness who had failed to attend a live
lineup. The trial court fashioned a similar remedy here when it modified CALJIC
No. 2.92. This remedy was an appropriate exercise of the court‟s discretion. The
court did not err in admitting testimony about Ford‟s in-court and out-of-court
identifications of defendant.
G. Instructional Error Claims
1. CALJIC Nos. 2.50, 2.50.1, and 2.50.2
The jury heard about defendant‟s involvement in several uncharged petty
crimes. These included: (1) the theft of raffle tickets from Joe Vaouli‟s car; (2)
the theft of a pie from a church, which led to defendant‟s arrest and interview with
Detective Cohen; (3) the possession and apparent use of rock cocaine outside the
Hilltop Motel, which led officers to recognize defendant‟s clothing and gym bag
from the homicide; and (4) the burglary of an automobile in Gardena nine days
after Lao‟s murder, which led to defendant‟s arrest and the booking photos later
shown to witnesses.
Before trial, the prosecutor explained that he wanted to introduce evidence
of these uncharged crimes to show when defendant was in custody and to trace the
course of the investigation. Defense counsel agreed that “all” of this evidence
should be admitted because defendant‟s appearance and state of mind during this
period were “relevant and in issue.” Counsel further stated that he was agreeing to
the admission of uncharged crimes evidence “for tactical reasons,” explaining, “I
think the jury needs a complete picture of what Lester Virgil looked like at various
times, to make a determination of guilt or innocence on the various charges.” So
long as no mention was made of defendant‟s custody in a state prison, defense
counsel stated he had “no opposition to [the prosecutor] bringing out the various
arrests for the offenses he‟s talking about, even though they are uncharged
offenses.”
43
“Evidence that a defendant has committed crimes other than those currently
charged is not admissible to prove that the defendant is a person of bad character
or has a criminal disposition; but evidence of uncharged crimes is admissible to
prove, among other things, the identity of the perpetrator of the charged crimes,
the existence of a common design or plan, or the intent with which the perpetrator
acted in the commission of the charged crimes. [Citation.] Evidence of uncharged
crimes is admissible to prove identity, common design or plan, or intent only if the
charged and uncharged crimes are sufficiently similar to support a rational
inference of identity, common design or plan, or intent.” (People v. Kipp (1998)
18 Cal.4th 349, 369.)
In light of his trial counsel‟s express consent, defendant does not claim the
admission of uncharged crimes evidence was error in itself. Instead, he takes issue
with the court‟s instructions pursuant to CALJIC Nos. 2.50, 2.50.1, and 2.50.2
regarding the standard of proof required for the uncharged crimes.10 Defense
10 The version of CALJIC 2.50 read to the jury stated: “Evidence has been
introduced for the purpose of showing that the defendant committed crimes other
than that for which he is on trial. Such evidence, if believed, was not received and
may not be considered by you to prove that the defendant is a person of bad
character or that he has a disposition to commit crimes. Such evidence was
received and may be considered by you only for the limited purpose of
determining if it tends to show the identity of the person who committed the
crime, if any, of which the defendant is accused. For the limited purpose for
which you may consider such evidence, you must weigh it in the same manner as
you do all other evidence in the case. You are not permitted to consider such
evidence for any other purpose.”
As read to the jury, the companion instructions stated: “Within the
meaning of the preceding instruction, such other crime or crimes purportedly
committed by a defendant must be proved by a preponderance of the evidence.
You must not consider such evidence for any purpose unless you are satisfied that
the particular defendant committed such other crime or crimes. The prosecution
has the burden of proving these facts by a preponderance of the evidence.”
(CALJIC No. 2.50.1.) “Preponderance of the evidence means evidence that has
more convincing force and the greater probability of truth than that opposed to it.
If the evidence is so evenly balanced that you are unable to find that the evidence
44
counsel objected that instruction with CALJIC No. 2.50 was misleading because
no evidence had been presented that the crimes were committed based on a
common plan or scheme. When the court agreed there was no evidence presented
of a common method or plan connecting the uncharged and charged offenses,
defense counsel suggested that the instruction be modified so that it advised the
jury it could use the uncharged misconduct evidence only to prove the identity of
the person who committed the crimes.11
In accordance with this suggestion, the trial court instructed the jury,
pursuant to CALJIC No. 2.50, that evidence of defendant‟s uncharged misconduct
could be considered “only for the limited purpose of determining if it tends to
show: [¶] the identity of the person who committed the crime, if any, of which the
defendant is accused.” The court also instructed the jury, pursuant to CALJIC No.
2.50.1, that “such other crime or crimes purportedly committed by a defendant
must be proved by a preponderance of the evidence. You must not consider such
evidence for any purpose unless you are satisfied that the particular defendant
committed such other crime or crimes. [¶] The prosecution has the burden of
proving these facts by a preponderance of the evidence.” Finally, pursuant to
CALJIC No. 2.50.2, the court defined “preponderance of the evidence.”
Defendant now complains these instructions were flawed because they
“failed to convey the jury‟s need to find Mr. Virgil‟s guilt for the uncharged
crimes beyond a reasonable doubt before those crimes could be used as an
on either side of an issue preponderates, your finding on that issue must be against
the party who had the burden of proving it. You should consider all the evidence
bearing upon every issue regardless of who produced it.” (CALJIC No. 2.50.2.)
11 We note that, in order to prove identity by reliance on other crimes, the
similarities between the charged and uncharged offenses must be so unusual and
distinctive as to be like a signature. (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)
Defendant does not argue here that the offenses were insufficiently similar.
Indeed, the defense had its own tactical reasons for permitting the admission of the
uncharged crimes. Accordingly, we do not address this consideration further.
45
inference in establishing his identity as the perpetrator of the charged
offenses . . . .” The premise of defendant‟s claim fails because “we have long held
that „during the guilt trial evidence of other crimes may be proved by a
preponderance of the evidence . . . .‟ [Citations.] The „beyond a reasonable
doubt‟ standard is applicable only to evidence of „other crimes‟ sought to be
admitted as aggravating evidence at the penalty phase of trial. [Citation.]”
(People v. Medina (1995) 11 Cal.4th 694, 763, italics omitted; see also People v.
Carpenter, supra, 15 Cal.4th at p. 382 [concluding the “preponderance of the
evidence standard adequately protects defendants”].)
Despite our long adherence to this rule, defendant urges us to reconsider the
standard of proof set forth in the uncharged conduct instructions because, he
asserts, this court “has not adequately addressed the conflict between the
circumstantial evidence instruction [CALJIC No. 2.01],” which requires proof
beyond a reasonable doubt of each essential fact in the chain of circumstances
necessary to establish guilt, and CALJIC No. 2.50, which permits consideration of
uncharged crimes if they are proven by only a preponderance of the evidence. We
have explained before, however, that these different standards of proof are
reconciled by the different purposes for which the evidence is used. When
evidence of uncharged misconduct is admitted for the purpose of establishing
identity or intent, we have explained that the crimes are mere “evidentiary facts.”
(People v. Medina, supra, 11 Cal.4th at p. 763.) The jury cannot consider them at
all unless they find them proven by a preponderance of the evidence. “If the jury
finds by a preponderance of the evidence that defendant committed the other
crimes, the evidence is clearly relevant and may therefore be considered. (Evid.
Code, § 351; see Huddleston v. United States [(1988)] 485 U.S. [681,] 689.)”
(People v. Carpenter, supra, 15 Cal.4th at p. 382.) If the jury finds the facts
sufficiently proven for consideration, it must still decide whether the facts are
sufficient, taken with all the other evidence, to prove the defendant‟s guilt beyond
a reasonable doubt. (People v. Medina, at p. 763; see also People v. Foster (2010)
46
50 Cal.4th 1301, 1347-1348 [no danger jury would use preponderance of evidence
standard to decide elemental facts or issues because instructions on the People‟s
burden and on circumstantial evidence make clear that ultimate facts must be
proved beyond a reasonable doubt.])
2. CALJIC No. 2.51
Although he raised no objection below, defendant now complains the court
prejudicially erred in giving CALJIC No. 2.51. He contends this instruction,
combined with the prosecutor‟s closing argument, withdrew from the jury‟s
consideration an essential element of the crime of robbery and the robbery special
circumstance allegation. Defendant‟s failure to object to the instruction below, or
the prosecutor‟s argument, forfeits the claim on appeal. (People v. Hillhouse
(2002) 27 Cal.4th 469, 504; People v. Prieto (2003) 30 Cal.4th 226, 259-260.)
The claim also fails on the merits.
CALJIC No. 2.51 advises that “[m]otive is not an element of the crime
charged and need not be shown.”12 We have upheld this instruction as a proper
statement of the law. “Motive describes the reason a person chooses to commit a
crime. The reason, however, is different from a required mental state such as
intent or malice.” (People v. Hillhouse, supra, 27 Cal.4th at p. 504; see also
People v. Cash, supra, 28 Cal.4th at p. 738.)
Defendant contends the prosecutor‟s closing argument conflated motive
with specific intent. Based on this argument, defendant asserts, jurors could have
misunderstood CALJIC No. 2.51 to mean that they did not have to find intent in
order to convict him of robbery or the robbery special circumstance allegation.
Having reviewed the prosecutor‟s argument, we are satisfied that no reasonable
12 The complete version of CALJIC No. 2.51 given to defendant‟s jury states:
“Motive is not an element of the crime charged and need not be shown. However,
you may consider motive or lack of motive as a circumstance in this case.
Presence of motive may tend to establish guilt. Absence of motive may tend to
establish innocence. You will therefore give its presence or absence as the case
may be the weight to which you find it to be entitled.”
47
juror would have confused “motive” with “intent” in the manner defendant
envisions. The prosecutor discussed the definition of robbery and explained all
the required elements in detail, including the requirement that defendant acted
with the specific intent to permanently deprive the owners of their property.
Although the prosecutor later explained that the special circumstance of murder
committed in the course of a robbery meant, essentially, “that the compelling
motive [for the murder] in this case was robbery,” this discussion was distinct
from his explanation of the required elements for robbery. The prosecutor could
properly argue that defendant‟s motive in murdering Lao was to complete a
robbery, but nothing in this argument suggested that the jury could convict
defendant of robbery or robbery-murder without finding he had a specific intent to
steal. By merely discussing motive, which was relevant to the robbery charges
and the robbery-murder special circumstance allegation, the prosecutor did not
conflate it with intent.
Moreover, considered as a whole, the instructions made clear that the jury
had to find specific intent in order to convict defendant of robbery or find the
robbery-murder allegation true. (CALJIC Nos. 3.31 [concurrence of act and
specific intent]; 8.21 [first degree felony murder]; 8.83.1 [special circumstances—
sufficiency of circumstantial evidence to prove required mental state]; 9.40
[robbery].) In addition to the pattern instructions, the jury was also given two
special instructions on specific intent requested by the defense. The first stated, in
part: “To convict the defendant of felony murder in the commission of a robbery
you must find that he had the intent to steal at or before the time of the application
of the lethal force.” The second special instruction stated, in part: “To convict the
defendant of robbery you must find that he had the specific intent to steal at or
before the time of the application of force or violence, or the use of fear or
intimidation.” Considering these instructions, it is not reasonably likely the jury
would have believed “motive” to be synonymous with “intent,” or relied on
48
CALJIC No. 2.51 to convict defendant of the robbery-related charges without
finding the requisite mens rea. (See People v. Cash, supra, 28 Cal.4th at p. 739.)
3. Failure to Give CALJIC No. 2.22
The court below did not give CALJIC No. 2.22, regarding how jurors are to
weigh conflicting testimony.13 Defendant now claims the absence of this
instruction violated his rights under the state and federal Constitutions to due
process, a fair and impartial jury, and a reliable penalty determination.
Although instruction with CALJIC No. 2.22 was not requested, we have
held that the trial court is required to give it sua sponte when conflicting evidence
has been presented. (People v. Cleveland (2004) 32 Cal.4th 704, 751; People v.
Rincon-Pineda (1975) 14 Cal.3d 864, 884-885.) Defendant presented no evidence
in the guilt phase; however, the jury heard conflicting testimony from various
prosecution witnesses about the appearance and identity of Lao‟s murderer.
Accordingly, as the Attorney General concedes, CALJIC No. 2.22 should have
been given. Under the circumstances of this case, however, the absence of this
instruction was harmless.
The same argument was made in People v. Snead (1993) 20 Cal.App.4th
1088, 1097, disapproved on another ground in People v. Letner and Tobin (2010)
50 Cal.4th 99, 181-182. In that case, the Court of Appeal concluded the failure to
give CALJIC No. 2.22 was harmless error because the jury had received sufficient
guidance from other standard instructions. (Snead, at p. 1097.) Here, defendant‟s
jury received the same instructions the jury received in Snead: CALJIC No. 2.00,
13 CALJIC No. 2.22 states: “You are not required to decide any issue of fact
in accordance with the testimony of a number of witnesses, which does not
convince you, as against the testimony of a lesser number or other evidence, which
you find more convincing. You may not disregard the testimony of the greater
number of witnesses merely from caprice, whim or prejudice, or from a desire to
favor one side against the other. You must not decide an issue by the simple
process of counting the number of witnesses [who have testified on the opposing
sides]. The final test is not in the [relative] number of witnesses, but in the
convincing force of the evidence.”
49
“Direct and Circumstantial Evidence — Inferences”; CALJIC No. 2.20,
“Credibility of Witness”; CALJIC No. 2.21.1, “Discrepancies in Testimony”;
CALJIC No. 2.21.2, “Witness Willfully False”; CALJIC No. 2.27, “Sufficiency of
Testimony of One Witness”; and CALJIC No. 2.80, “Expert Testimony.” (Snead,
at p. 1097.) Defendant‟s jury was also instructed with CALJIC No. 2.01,
“Sufficiency of Circumstantial Evidence — Generally”; CALJIC No. 2.11,
“Production of All Available Evidence Not Required”; CALJIC No. 2.13, “Prior
Consistent or Inconsistent Statements as Evidence”; CALJIC No. 2.81, “Opinion
Testimony of Lay Witness”; CALJIC No. 2.83, “Resolution of Conflicting Expert
Testimony”; CALJIC No. 2.91, “Burden of Proving Identity Based Solely on
Eyewitnesses”; and CALJIC No. 2.92, “Factors to Consider in Proving Identity by
Eyewitness Testimony.” Considering the instructions as a whole, we are satisfied
the jury received ample guidance on how to evaluate conflicting testimony. (See
People v. Castillo (1997) 16 Cal.4th 1009, 1016.) The prosecutor did not suggest
that the jury should decide defendant‟s guilt by comparing the number of
witnesses presented by each side, and there is no evidence the absence of CALJIC
No. 2.22 hampered the jury‟s ability to evaluate the evidence. Because it is not
reasonably probable that the jury would have reached a different result had
CALJIC No. 2.22 been given, the court‟s error in failing to give the instruction
was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
H. Sufficiency of Evidence
Defendant claims no substantial evidence supports his convictions for the
robbery and murder of Soy Sung Lao, particularly with regard to his identity as the
perpetrator of these crimes. He also urges that insufficient evidence establishes he
formed an intent to commit robbery before or at the time of the murder.
“A reviewing court faced with such a claim determines „whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.‟ (Jackson v. Virginia (1979) 443 U.S. 307, 319, italics omitted;
50
see also People v. Kraft (2000) 23 Cal.4th 978, 1053.) We examine the record to
determine „whether it shows evidence that is reasonable, credible and of solid
value from which a rational trier of fact could find the defendant guilty beyond a
reasonable doubt.‟ [Citation.] Further, „the appellate court presumes in support of
the judgment the existence of every fact the trier could reasonably deduce from the
evidence.‟ [Citation.] This standard applies whether direct or circumstantial
evidence is involved. „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.] “ „If the circumstances reasonably justify the trier of fact‟s findings,
the opinion of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the judgment.‟ ” ‟
[Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
Substantial direct and circumstantial evidence established both that
defendant was the person who murdered Lao and that he did so during the course
of a robbery or attempted robbery. (See People v. Marshall (1997) 15 Cal.4th 1,
34, 40-41.) Sergeant Tiller and Lavette Gilmore saw defendant in the doughnut
shop shortly before the murder. Gilmore thought defendant was behaving
suspiciously because he would not look at her. Deandre Harrison and Debra
Tomiyasu saw defendant emerge from the back of the store closely followed by
Lao, who was screaming and bleeding profusely from many stab wounds. No one
else was in the store. As Harrison and Tomiyasu watched, defendant walked
straight to the cash register, took the money inside, and quickly left the store. Ella
Ford saw defendant running across the parking lot, while someone behind him
yelled, “he stabbed her.” Defendant was carrying some object close to his body.
Although defendant criticizes inconsistencies in these accounts, the jury clearly
found the eyewitness testimony credible. We defer to this assessment. (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206.)
51
Defendant asserts that the prosecution presented no evidence that he formed
an intent to steal the money in the register before or during the stabbing, and
therefore the jury‟s true finding on the robbery-murder special circumstance
allegation was based on mere speculation or conjecture. We disagree. The jury
could have inferred that defendant planned to rob the doughnut shop from
evidence that he waited at a back table, concealing his face from Gilmore, until the
store was empty of other patrons. The cash register was already partially open
when defendant emerged from the back of the store, walked straight to it, and took
the cash inside. From these facts, the jury could infer that defendant planned to
rob the store and the stabbing occurred after a robbery had been initiated.
“ „[W]hen one kills another and takes substantial property from the victim, it is
ordinarily reasonable to presume the killing was for purposes of robbery.‟
[Citations.]” (People v. Horning (2004) 34 Cal.4th 871, 903.) The jury also heard
evidence that defendant had committed several other property crimes in the
immediate area, including the robberies of Beatriz Addo and of Samuel Draper,
during which he threatened to harm the victims with a sharp object. The jury was
instructed that it could use evidence of these other crimes to prove intent. (See
Evid. Code, § 1101, subd. (b).) Moreover, there was no evidence “suggesting, or
requiring the jury to conclude, that defendant took . . . property merely to obtain a
reminder or token of the incident [citation], to give a false impression about his
actual motive for the murder, or in some other way to facilitate or conceal the
killing [citation]. Nor was there substantial evidence of any motive for the murder
apart from accomplishing the robbery.” (People v. Bolden (2002) 29 Cal.4th 515,
554.) The jury could reasonably conclude from the evidence that defendant killed
Lao primarily and perhaps solely to facilitate the robbery.
I. Certification of Appellate Record
Defendant raises two claims of error concerning the trial court‟s
certification of the record on appeal. First, he claims the court erred in denying his
request to settle the record with respect to a chalkboard diagram created by a blood
52
spatter expert during her testimony. Second, he claims the court erred in including
in the settled statement the trial court‟s own recollection of the circumstances
surrounding the hardship excusal of 60 prospective jurors. Defendant argues these
errors deprived him of a complete and accurate record on appeal. The record
settling procedures were adequate and did not violate defendant‟s constitutional
rights.
“The record on appeal in a capital case „includes, but is not limited to, the
following: [¶] (1) The normal and additional record prescribed in the rules
adopted by the Judicial Council pertaining to an appeal taken by the defendant
from a judgment of conviction. [¶] (2) A copy of any other paper or record on file
or lodged with the superior or municipal court and a transcript of any other oral
proceeding reported in the superior or municipal court pertaining to the trial of the
cause.‟ (Pen. Code, § 190.7, subd. (a)(1), (2).) „In any case in which a death
sentence may be imposed, all proceedings conducted in the municipal and superior
courts, including all conferences and proceedings, whether in open court, in
conference in the courtroom, or in chambers, shall be conducted on the record
with a court reporter present.‟ (Id., § 190.9, subd. (a)(1).)” (Marks v. Superior
Court (2002) 27 Cal.4th 176, 192.) When gaps occur in the record, rule 8.137
(former rule 7) of the California Rules of Court provides a mechanism for creating
a settled statement. (Marks, at p. 192; see also Cal. Rules of Court, rules 8.346
[providing for the use of settled statement procedures in criminal appeals] &
8.619(d)(3) [providing for the use of settled statements in capital cases].)
1. Chalkboard Diagram
On September 26, 2002, defendant‟s appellate counsel filed a request to
augment, correct, and settle the record on appeal. Among several other items,
defendant asked for a settlement of the chalkboard diagram created by Los
Angeles Sheriff‟s Department Senior Criminalist Elizabeth Devine. During her
direct examination, Devine was asked how a criminalist can determine from its
appearance the direction a blood droplet has traveled. She requested and was
53
provided with a chalkboard, which she used to illustrate her testimony about the
effect of gravity on blood droplets. Because the diagram was drawn on a
blackboard and was not admitted into evidence, it would have to be re-created by
the witness for the record to be settled. The prosecutor recalled only that the
diagram consisted of “basic marks . . . to indicate blood spatter in a directional
way.” He suggested that defendant‟s appellate counsel consult with Devine
because the drawing might have been “a standard demonstration that she does in
these kinds of cases.” Defendant‟s appellate counsel was not able to contact
Devine. However, Devine‟s former supervisor expressed the belief that Devine
would not have created her chalkboard diagram spontaneously in court, but would
have based it on materials that were likely preserved in her case file.
The Attorney General opposed appellate counsel‟s request to settle the
record with a re-creation of Senior Criminalist Devine‟s chalkboard diagram. At a
hearing on November 18, 2002, the trial court also expressed concern about
allowing defendant‟s attorney to try to re-create the diagram from information in
Devine‟s files because the files likely contained information not presented to the
jury. Counsel was merely guessing that Devine had in fact re-created something
in her file, and the court itself had no memory of the diagram. When counsel
persisted in seeking a court order for access to Devine‟s files, the court refused,
explaining the search would be futile: “We are not talking about something that
the jury was actually given in hand. It was something drawn, they saw whatever
was drawn on the board.” Accordingly, defendant‟s request to settle the record on
this point was denied.
The trial court did not err in refusing to authorize defendant‟s appellate
counsel to search an expert‟s files in hopes of finding a document resembling a
diagram the expert drew on a chalkboard to illustrate and explain her testimony.
No attempt was made to preserve the chalk drawing, which was by its nature
ephemeral. It was not marked, lodged, or admitted into evidence, nor was a
photograph taken to preserve it. Neither the attorneys nor the trial court could
54
recall exactly what the diagram looked like. Assuming record settlement
procedures can be used for demonstrative evidence, the diagram was not a proper
subject for settlement of the record.14
“The rules authorizing settlement, augmentation, and correction of the
record on appeal concern documents „file[d] or lodged‟ in the superior court and
transcripts of „oral proceedings‟ that occurred therein. [Citations.] These
provisions—much like the entire network of rules governing matter properly
included in the appellate record—are intended to ensure that the record transmitted
to the reviewing court preserves and conforms to the proceedings actually
undertaken in the trial court. [Citations.] The settlement, augmentation, and
correction process does not allow parties to create proceedings, make records, or
litigate issues which they neglected to pursue earlier.” (People v. Tuilaepa (1992)
4 Cal.4th 569, 585.) Defendant‟s trial counsel took no steps to preserve the
diagram Senior Criminalist Devine spontaneously drew during her testimony. The
settlement process does not permit defendant to create anew something that he
neglected to make part of the record in the first place. The trial court therefore did
not abuse its discretion in denying appellate counsel‟s request to search for a
similar diagram in the expert‟s files.
2. Record of Hardship Excusals
In an addendum to his original request to settle the record, defendant‟s
appellate counsel also asked the court to clarify whether the discussion of jurors‟
hardship requests was reported or whether the record needed to be settled
regarding the excusals. In his first proposed settlement of the record, defendant
noted that after prospective jurors completed hardship questionnaires, the trial
court read the names of jurors whose hardship requests had been granted and those
14 We note that the Rules of Court refer to preparation of a settled statement
when “oral proceedings cannot be transcribed.” (Cal. Rules of Court, rule
8.346(a).) We assume but do not hold that the settled statement procedures can be
used in the case of demonstrative evidence.
55
of jurors from whom more information was sought. Except for jurors who were
questioned about their requests, the record included no discussion about 61 jurors
who were excused for hardship based on their questionnaires alone, and the
prosecutor did not recall how the court handled these hardship excusals. In order
to settle the record, defendant‟s appellate counsel requested the trial court‟s
“assistance in detailing the procedures employed and the reasons for excusing the
prospective jurors at issue.”
At the November 18, 2002 hearing, defendant‟s appellate counsel asked for
the court‟s input regarding the hardship excusal of 61 jurors. Trial counsel had
told him he believed a hearing had been conducted on the record before these
jurors were excused. The trial court stated, “I do have a recollection; and as far as
the original hardships were concerned, both counsel stipulated that certain jurors
could be excused; and it was done on the basis of their paid jury leave.” Although
the court was reluctant to attempt to recreate a record when neither side had
objected to excusing the jurors, it agreed with appellate counsel‟s proposal to have
both trial counsel review the 61 hardship questionnaires and try to recollect the
reasons for their release.
In his second revised proposed settled statement, appellate counsel reported
that, although the prosecutor did not recall any details about the hardship excusals,
defendant‟s trial counsel “recalled that the Court was „pretty liberal‟ in ruling on
the hardship requests and the Court‟s primary concerns were whether (1) the
prospective juror would be compensated adequately for jury service, (2) whether
anyone was ill in the juror‟s family, or (3) whether the juror was a primary
caretaker for another person.” Defendant‟s trial counsel also believed a hearing
had been held with a court reporter on the hardship requests.
At the next court hearing, the trial court added its recollection “that each
counsel did, indeed, see the questionnaires and . . . stipulated or agreed that these
jurors would be excused . . . because they couldn‟t be away from work that long.”
The court recalled that the financial hardship of serving on a long jury trial “was
56
the only aspect” of hardship discussed with the 60 prospective jurors who were
excused at the outset of jury selection. The court agreed to settle the record on this
point as set forth in defendant‟s proposed statement. Defendant‟s appellate
counsel reminded the court of his request for the court reporter to review her notes
to look for any reported proceedings concerning the excused jurors. The court
responded that the matter had been reviewed and the court reporter had “reported
everything that was done before her.”
Defendant now objects that the court exceeded its authority in settling the
record when it reported that both counsel had stipulated to the hardship excusals.
Defendant complains the court usurped the role of the parties in stating its own
recollection about the procedure. We disagree. Although the trial court‟s duty is
“ „to settle a proposed statement, not to make one‟ ” (Marks v. Superior Court,
supra, 27 Cal.4th at p. 195, quoting Stevens v. Superior Court (1958) 160
Cal.App.2d 264, 269), we have observed that record settlement is to be based on
“ „all available aids, including the judge’s own memory . . . .” (Marks, at p. 196,
quoting People v. Gzibowski (1982) 32 Cal.3d 580, 585, fn. 2, italics added.) In
this case, neither trial attorney could remember specific reasons why the 60
prospective jurors were excused for hardship, and defendant‟s appellate counsel
specifically asked the trial court to explain what had happened. Defendant‟s first
proposed settled statement expressly sought “the Court‟s assistance in detailing the
procedures employed and the reasons for excusing the prospective jurors at issue.”
At the November 18, 2002 hearing, defendant‟s appellate counsel asked again for
the court‟s recollection about the hardship dismissals, and the court responded that
both counsel had stipulated to them. The court did not exceed its authority by
describing its memory of the proceedings, at the specific request of counsel, to aid
counsel in preparing a settled statement. (See Marks, at p. 196.) To the extent
there was any error, it was invited by defendant‟s repeated requests for the court‟s
input. (People v. Williams (2008) 43 Cal.4th 584, 629.) Furthermore, because
defendant has presented nothing to suggest the court‟s recollection is untrue, any
57
error was harmless. (See People v. Young (2005) 34 Cal.4th 1149, 1170
[defendant‟s burden to demonstrate prejudice].)
Defendant also challenges the court‟s representation that all reported
proceedings regarding hardship excusals had been transcribed. Defendant asked
the court to contact the court reporter about a possible missing transcript on
December 12, 2002, and the court stated at the December 16, 2002 hearing that the
reporter had been contacted and had verified her transcriptions were complete.
Because only three days had elapsed between his request and the court‟s
representation at the hearing, defendant speculates that the court had not, in fact,
contacted the reporter, but was instead basing its representation on a discussion
with the court‟s capital appeals coordinator. Defendant did not make this serious
accusation below, and thus the trial court had no opportunity to respond to it. We
will not conclude the trial court was disingenuous based on sheer surmise and at
this late date, when defendant‟s appellate counsel could have established the
source of the court‟s information by asking a simple question at the December 16
hearing. Defendant‟s trial counsel “believed” a hearing had been conducted, with
a reporter, for hardship requests, but this memory could have applied to the second
round of hardship dismissals, during which jurors who were not excused in the
initial cut were questioned in greater detail about their reasons for seeking to be
released from service. These proceedings were transcribed and are included in the
record on appeal.
II. Penalty Phase Issues
A. Stun Belt
The trial court ordered defendant to wear an electronic security belt during
the penalty phase of trial after he was caught hiding a staple in his mouth while
being transported to court. Defendant argues the imposition of this restraint
violated his rights under the state and federal Constitutions and requires reversal of
the penalty judgment. We conclude the order was an appropriate exercise of the
court‟s discretion.
58
On the morning of March 9, 1995, defendant was being held with two other
“K-10” inmates15 in a small waiting room away from the main lockup area. All
three had waist chains with their hands shackled to their sides to prevent a full
range of arm movement away from the body. As she looked into the room from
the hallway, Deputy Sheriff Dianna Norris saw defendant‟s hands “playing with”
another inmate‟s handcuffs. The two were facing each other, and defendant‟s
hand moved like he was turning a key. When he saw the deputy, defendant
dropped his hands and backed up to the wall. Deputy Norris noticed a short gray
object in his hand. Defendant said he had nothing in his hand, but the deputy saw
him slip a silver object into his mouth. When she asked what he had put in his
mouth, defendant replied, “nothing” and stuck out his tongue. As he walked
toward the door, however, Deputy Norris saw defendant lean to the side and spit.
She went back into the room and retrieved the object, which was a 1.25-inch-long,
heavy-duty staple.
Deputy Norris and Deputy Sheriff Thomas Harvey testified that the
handcuffs these inmates were wearing have been successfully “picked” with
foreign objects several times in the past, and the deputies had seen similar
makeshift keys taken from other inmates. It is easier to pick handcuffs worn by
someone else, rather than your own. Normally, the inmates would have spent 20
to 30 minutes alone in the waiting room, and Deputy Norris would have taken
each one to court separately, using a private elevator. Norris transported the
inmates without other deputies present, and she admitted she did not always check
to make sure their handcuffs were locked.
Before the hearing on this incident, the trial court discussed the possibility
of imposing a heightened security measure such as shackling, increased bailiff
personnel, or an electronic stun belt. When defense counsel expressed concern
15 “K-10” referred to inmates who required “special handling” because they
were dangerous, needed protection, or needed to be separated from the group for
some other reason.
59
about the potential prejudice from visible shackles, the court observed that the stun
belt might be the least intrusive measure available. A bailiff explained how the
device worked, and a belt was brought into the courtroom for the attorneys to
examine. After the hearing, defense counsel did not disagree that a heightened
security measure would be justified, but he urged the court to use either increased
courtroom bailiffs or leg shackles, rather than the stun belt.
The trial court found that defendant‟s attempt to help another inmate
escape, and thereby escape himself, warranted additional security measures.
Because it concluded leg shackles would more likely be visible to the jury than a
belt worn under the clothing,16 the court ordered defendant to wear the stun belt.
Defendant now argues the need for increased security was not sufficiently
demonstrated and the stun belt was not the least restrictive means of providing that
security. We conclude the order was well within the court‟s discretion.
The “court has broad power to maintain courtroom security and orderly
proceedings.” (People v. Hayes (1999) 21 Cal.4th 1211, 1269.) On appeal, its
decisions on these matters are reviewed for abuse of discretion. (People v. Stevens
(2009) 47 Cal.4th 625, 633.) Under California law, “a defendant cannot be
subjected to physical restraints of any kind in the courtroom while in the jury‟s
presence, unless there is a showing of a manifest need for such restraints.”
(People v. Duran (1976) 16 Cal.3d 282, 290-291.) Similarly, the federal
“Constitution forbids the use of visible shackles . . . unless that use is „justified by
an essential state interest‟ — such as the interest in courtroom security — specific
to the defendant on trial.” (Deck v. Missouri (2005) 544 U.S. 622, 624, italics
omitted.) These principles also apply to the use of an electronic “stun belt,” even
if the device is not visible to the jury. (People v. Mar (2002) 28 Cal.4th 1201,
1219.) “In deciding whether restraints are justified, the trial court may „take into
16 Defendant was dressed in jail-issued clothing during the penalty phase. He
refused to wear civilian clothing despite his attorney‟s strong advice that he do so.
60
account the factors that courts have traditionally relied on in gauging potential
security problems and the risk of escape at trial.‟ (Deck v. Missouri, at p. 629.)
These factors include evidence establishing that a defendant poses a safety risk, a
flight risk, or is likely to disrupt the proceedings or otherwise engage in
nonconforming behavior.” (People v. Gamache (2010) 48 Cal.4th 347, 367.)
Although the court need not hold a formal hearing before imposing restraints, “the
record must show the court based its determination on facts, not rumor and
innuendo.” (People v. Stevens, at p. 633.)
The testimony of Deputy Norris and Deputy Harvey established that
defendant was a genuine escape risk. He was seen using a makeshift key to
unlock another inmate‟s handcuffs. Defendant lied to Deputy Norris and then
tried to hide and dispose of the “key.” It was reasonable for the court to conclude
from this evidence that defendant had been caught attempting to help another
inmate escape, and possibly attempting to escape himself. This conduct was
sufficient to warrant increased security. (See, e.g., People v. Gamache, supra, 48
Cal.4th at pp. 369-370 [defendant found with a homemade handcuff key was a
flight risk]; People v. Stankewitz (1990) 51 Cal.3d 72, 95-97 [defendant who
attempted to escape from holding cell and engaged in violent conduct was
properly restrained].)
Defendant also complains that the court failed to consider the potential
physical harm and psychological impact of the stun belt when it rejected
alternative security measures. Generally, when physical restraints are called for, a
trial court should impose “the least obtrusive or restrictive restraint” that will
ensure effective security. (People v. Mar, supra, 28 Cal.4th at p. 1226.) The trial
court found that the stun belt was the least intrusive security measure available.
The device was brought into court for examination, and a bailiff explained in
detail the way it worked, the physical effects of its activation, and the protocol for
treating someone who had been shocked. Courtroom deputies had developed
written guidelines, which counsel were given an opportunity to study, for when the
61
belt could be activated. The court explained that the deputies were bound to stay
within these guidelines and could be trusted to do so.
In People v. Mar, supra, 28 Cal.4th at pages 1225-1230, we examined the
potential psychological consequences of wearing a stun belt and the physical
effects from electric shock in subjects with certain medical conditions. Because
our decision was the first to consider use of an electronic stun belt in California
criminal trials, however, we expressly stated that our discussion was offered to
provide guidance “in future trials.” (Id. at p. 1225, italics added; see also id. at
p. 1230.) Defendant‟s trial occurred seven years before our decision in Mar. The
trial court was not required to foresee and discuss each of the concerns detailed in
that opinion. (People v. Lomax (2010) 49 Cal.4th 530, 562; People v. Gamache,
supra, 48 Cal.4th at p. 367, fn. 7.) Moreover, because defendant did not testify,
some of the concerns about psychological impacts discussed in Mar are
inapplicable.
B. Exclusion of Defense Exhibits
Defendant complains the exclusion and modification of certain defense
exhibits deprived him of his constitutional right to have the jury consider all
relevant mitigating evidence offered in the penalty phase of a capital trial. We
find no error.
On direct examination, defense counsel showed Annie Antoine several
baby pictures of Nigel, the child she had with defendant. Antoine had sent
defendant these photographs when he was in jail. After Antoine‟s testimony,
defense counsel sought to admit the photographs into evidence. The prosecutor
objected that the photos were cumulative and of questionable relevance because
“[w]e know [defendant] has a child. We‟ve seen him in court.” He also objected
to the writing Antoine had placed on the back of all of the pictures. Defense
counsel responded that the purpose of the writing was to show defendant and
Antoine had communicated about the child, and he argued it would be unfair to
exclude the photos after the prosecution had been allowed to display photos of the
62
victims. The court agreed to admit some photographs but not “all nine of them,”
and it expressed concern about the messages written on them. After further
discussion, defense counsel chose five photos, and these were admitted into
evidence. Defense counsel agreed to “opaque[] out” the writing on some of the
exhibits but asked that the messages on others remain visible. One photograph,
which showed a diapered baby taking a step, was altered to cover up the message
written on the back, “ „Check me out. I‟m walking around.‟ ” Messages on the
other four photographs were left intact.17
“The Eighth and Fourteenth Amendments require that the sentencer in a
capital case not be precluded from considering any relevant mitigating evidence,
that is, evidence regarding „any aspect of a defendant‟s character or record and any
of the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death.‟ [Citations.] The constitutional mandate contemplates
the introduction of a broad range of evidence mitigating imposition of the death
penalty. [Citations.] . . . [¶] At the same time, however, the United States
Supreme Court has made clear that the trial court retains the authority to exclude,
as irrelevant, evidence that has no bearing on the defendant‟s character, prior
record or the circumstances of the offense. [Citations.]” (People v. Frye, supra,
18 Cal.4th at p. 1015; see also Skipper v. South Carolina (1986) 476 U.S. 1, 4-5;
Lockett v. Ohio (1978) 438 U.S. 586, 604 & fn. 12.)
Defendant complains all of the photographs should have been admitted to
show that he and Antoine “were in regular and ongoing contact about Nigel,” but
the photographs themselves do not demonstrate that any contact occurred over an
17 On the back of one photograph of Antoine and young Nigel was the
message: “The loves of your life, Wayne! Annie Antoine-Virgil & your son
Nigel Phillip Antoine. About to go shopping & to the park.” Antoine wrote on
the back of another photo of the two of them, “To: Wayne, From: Your family,
Ann & Nigel. We love you!” Also admitted were baby photographs of Nigel with
his age written on the back. One showing the baby at six months old included a
comment on the child‟s expression.
63
extended period of time. Although the pictures show Nigel at different ages,
nothing in the record suggests Antoine sent them to defendant at different times.
Antoine simply testified that she sent defendant the photos after she learned he
was in prison.
Evidence that defendant is loved by family members or others is admissible
to show his good character. (See People v. Ochoa, supra, 19 Cal.4th at p. 456.)
We need not decide here whether photos of defendant‟s child with notations
written by someone else were admissible to prove this point. The trial court, in
exercising its discretion, allowed their admission. By reducing the number of
photographs from nine to five, the trial court did not violate defendant‟s
constitutional rights to present relevant mitigating evidence to the jury. Evidence
Code section 352 permits the court to exclude mitigating evidence offered by the
defendant if it is cumulative. (People v. Brown (2003) 31 Cal.4th 518, 576.)
Although capital defendants have a constitutional right to present relevant
mitigating evidence to the jury, “the United States Supreme Court never has
suggested that this right precludes the state from applying ordinary rules of
evidence to determine whether such evidence is admissible.” (People v. Smithey
(1999) 20 Cal.4th 936, 995.) It was within the trial court‟s discretion to limit the
number of photographs.
Nor did the trial court abuse its discretion in modifying one of the
photographs to remove a comment intended to represent a statement by the infant
Nigel. “[R]elevance as it pertains to mitigation evidence is no different from the
definition of relevance as the term is understood generally. [Citation.]
„ “Relevant mitigating evidence is evidence which tends logically to prove or
disprove some fact or circumstance which a fact-finder could reasonably deem to
have mitigating value. . . .” ‟ [Citations.]” (People v. Frye, supra, 18 Cal.4th at
p. 1016.) The comment attributed to the child was not relevant to any issue in the
penalty phase of trial, and the court did not err in excluding it.
64
C. Victim Impact Evidence
1. Murder Victim’s Life History
Defendant contends the court infringed his constitutional rights by
admitting evidence about details of Lao‟s life and allowing the prosecutor to argue
that defendant‟s life was comparatively unworthy of sympathy.
At the start of the penalty phase, defense counsel objected to victim impact
testimony about Lao‟s childhood flight from Cambodia, her education in America,
and other details that would “paint a live history of the victim.” He argued that
under Payne v. Tennessee (1991) 501 U.S. 808 and People v. Edwards (1991) 54
Cal.3d 787, only evidence about the direct impact of the murder on the victim‟s
family was relevant and admissible in a capital trial. Counsel especially sought to
avoid a prosecution argument that Lao had escaped the “killing fields” of
Cambodia only to be murdered “in the killing fields of Gardena.” The trial court
disagreed that Lao‟s life history was entirely irrelevant, reasoning that it was
important for the jury to have information about the victim‟s life to fully
understand the impact of her loss on her family. The court also ruled that the
evidence was not unfairly prejudicial.
Lao‟s sister, Lynn Ngov, was allowed to testify that the siblings left
Cambodia to escape communism when Lao was 10 years old. They lived in San
Diego and then Los Angeles, where Lao attended college. Lao was scheduled to
graduate from the University of Southern California in May 1993. Ngov testified
that Lao was very close to Ngov‟s two children, and she still felt shocked and
upset about the murder.
In his closing argument, the prosecutor noted that Lao had fled from a place
of political oppression and violence and had come to this country to improve her
life. She came here without her parents, borrowed money to attend school, and
was taking advantage of all the opportunities the United States had to offer. He
concluded, “in this great land of opportunity, Soy Lao found her killing fields at
the corner of El Segundo and Van Ness. [¶] And if Lester Virgil did something in
65
this case besides rob this young girl of her life and 12 dollars, he might just have
done something wors[e]. He robbed her of her dreams.” Defendant raised no
objection to this argument.
In Payne v. Tennessee, supra, 501 U.S. at p. 825, the United States
Supreme Court held that victim impact evidence is not inadmissible per se because
it “is simply another form or method of informing the sentencing authority about
the specific harm caused by the crime in question . . . .” We have held that
evidence and argument about the specific harm caused by the defendant, including
the impact on the family of the victim, is admissible as an aggravating
circumstance under factor (a) of section 190.3. (People v. Edwards, supra, 54
Cal.3d at p. 835.) Of course, such evidence must conform to established limits on
emotional evidence and argument. “ „[T]he jury must face its obligation soberly
and rationally, and should not be given the impression that emotion may reign
over reason. [Citation.] In each case, therefore, the trial court must strike a
careful balance between the probative and the prejudicial. [Citations.] On the one
hand, it should allow evidence and argument on emotional though relevant
subjects that could provide legitimate reasons to sway the jury to show mercy or to
impose the ultimate sanction. On the other hand, irrelevant information or
inflammatory rhetoric that diverts the jury‟s attention from its proper role or
invites an irrational, purely subjective response should be curtailed.‟ [Citation.]”
(Id. at p. 836.)
The limited testimony and argument presented about Lao‟s life history
remained well within these limits on permissible victim impact evidence. We
have recognized that the prosecution has some latitude in presenting evidence
about the victim. “ „[T]he State has a legitimate interest in counteracting the
mitigating evidence which the defendant is entitled to put in, by reminding the
sentencer that just as the murderer should be considered as an individual, so too
the victim is an individual whose death represents a unique loss to society and in
particular to his family.‟ ” (Payne v. Tennessee, supra, 501 U.S. at p. 825, quoting
66
Booth v. Maryland (1987) 482 U.S. 496, 517 (dis. opn. by White, J.); see also
People v. Marks (2003) 31 Cal.4th 197, 235.) Ngov‟s description of the siblings‟
flight from Cambodia and Lao‟s pursuit of educational goals in America was
relevant to show her closeness to Lao and, by extension, how Lao‟s murder had
affected the family. (See People v. Boyette, supra, 29 Cal.4th at pp. 444-445.)
The testimony was not unduly emotional or inflammatory, and it was relatively
brief. The prosecutor‟s argument also stayed within appropriate boundaries and
did not encourage an irrational or emotional response unrelated to the facts of the
case. Lao‟s background and aspirations were mentioned at the end of closing
argument. The discussion was brief and was relevant to convey the full impact of
defendant‟s crime on Lao‟s family and the community. (Id. at p. 444; People v.
Raley (1992) 2 Cal.4th 870, 916.) The brief testimony and argument mentioning
pertinent facts about Lao‟s life were not unduly prejudicial and did not violate
defendant‟s constitutional rights.
2. Rodriguez’s Victim Impact Testimony
Defendant also argues the court erred in failing to limit victim impact
evidence to the capital offense against Lao. He claims his state and federal
constitutional rights were violated by admission of testimony concerning the
effects of his assault on Benita Rodriguez.
Initially, we note that defense counsel‟s failure to object to the victim
impact testimony from Rodriquez forfeits the claim on appeal. (People v. Clark
(1990) 50 Cal.3d 583, 625-626; see People v. Mendoza (2000) 24 Cal.4th 130,
186.) In any event, we have repeatedly held that the admission of evidence about
the impacts of a capital defendant‟s other violent criminal activity does not violate
the state or federal Constitutions. (E.g., People v. Price (1991) 1 Cal.4th 324, 479;
People v. Clark, at pp. 628-629; People v. Karis, supra, 46 Cal.3d at p. 641.) The
circumstances of uncharged violent crimes, including the impact on victims of
those crimes, are made expressly admissible by section 190.3, factor (b). (People
v. Bramit (2009) 46 Cal.4th 1221, 1241.)
67
Defendant acknowledges our prior decisions but urges us to reconsider the
issue based on opinions from other states. (People v. Hope (1998) 184 Ill.2d 39,
49-53 [702 N.E.2d 1282]; Sherman v. State (1998) 114 Nev. 998, 1012-1014 [965
P.2d 903, 914]; State v. Nesbit (Tenn. 1998) 978 S.W.2d 872, 891, fn. 11.) We
recently considered these out-of-state cases and concluded they do not support a
claim that the admission of victim impact evidence regarding prior crimes violates
the federal Constitution. (People v. Davis (2009) 46 Cal.4th 539, 618.) Moreover,
the cases upon which defendant relies “are not binding on this court, which has
repeatedly held that the Eighth Amendment does not prohibit the admission of
testimony by a defendant‟s prior victims concerning the impact of his violent
crimes against them. [Citations.]” (Ibid.) Because defendant offers no
compelling reason to depart from our settled views, we conclude the trial court did
not err in admitting evidence about the effects of defendant‟s assault on
Rodriguez.
D. Instructional Error Claims
1. CALJIC No. 8.84.1
At the conclusion of the penalty phase, the court gave CALJIC No. 8.84.1,
which states, in pertinent part: “You are now being instructed as to all of the law
that applies to the penalty phase of the trial. [¶] You must determine what the
facts are from the evidence received during the entire trial unless you are
instructed otherwise. You must accept and follow the law that I shall state to you.
Disregard all other instructions given to you in other phases of this trial.” The
court also instructed the jury with CALJIC Nos. 8.85, listing factors for the jury‟s
consideration in determining penalty, CALJIC Nos. 8.86 and 8.87, requiring proof
beyond a reasonable doubt of a prior conviction or prior criminal activity offered
in aggravation, and CALJIC No. 8.88, setting forth the concluding instructions for
the penalty phase. Contrary to the recommendation in the Use Note to CALJIC
No. 8.84.1, the court did not reinstruct the jury with applicable evidentiary
instructions from CALJIC Nos. 1.00 through 3.31, including the instruction
68
defining “reasonable doubt” (CALJIC No. 2.90). Defendant cites these omissions
as error.
We have held that the failure to reinstruct on evidentiary principles at the
penalty phase, combined with the reading of CALJIC No. 8.84.1, may constitute
error. (People v. Lewis (2008) 43 Cal.4th 415, 535; People v. Carter (2003) 30
Cal.4th 1166, 1220-1221.) “[I]f a trial court instructs the jury at the penalty phase
not to refer to instructions given at the guilt phase, it later must provide the jury
with those instructions applicable to the evaluation of evidence at the penalty
phase. (People v. Moon [(2005)] 37 Cal.4th [1,] 37.)” (Lewis, at p. 535.) In
addition, because the jury was instructed that defendant‟s prior criminal acts had
to be proven beyond a reasonable doubt before they could be considered in
aggravation, the court should have given CALJIC No. 2.90 defining “reasonable
doubt.” (See People v. Cowan (2010) 50 Cal.4th 401, 489-490.) However, the
trial court‟s failure to reinstruct here was harmless because there is no reasonable
possibility the error affected the verdict (People v. Gonzalez (2006) 38 Cal.4th
932, 960-961) and it was harmless beyond a reasonable doubt (Chapman v.
California (1967) 386 U.S. 18). (See People v. Wilson (2008) 43 Cal.4th 1, 28
[the state “reasonable possibility” test is essentially the same as the federal
“beyond a reasonable doubt” test for harmless error].)
Defendant does not argue the jury might have been confused about how to
consider penalty phase evidence by the absence of any particular evidentiary
instruction. Rather, he makes the more general claim that his penalty judgment
must be reversed because the trial court failed to instruct the jury a second time on
the presumption of innocence, the definition of reasonable doubt, and the
prosecution‟s burden of proof. We have repeatedly rejected the claim that the
court must instruct on the presumption of innocence at the penalty phase of a
capital trial. (People v. Prieto, supra, 30 Cal.4th at p. 262; People v. Benson
(1990) 52 Cal.3d 754, 810.) Likewise, the absence of a penalty phase instruction
on the reasonable doubt standard, or any standard of proof regarding aggravating
69
and mitigating evidence, does not violate a capital defendant‟s constitutional
rights. (People v. Samuels (2005) 36 Cal.4th 96, 137; People v. Vieira (2005) 35
Cal.4th 264, 301.) “ „The federal Constitution does not require the jury to find
beyond a reasonable doubt that the prosecution proved each aggravating factor,
that the circumstances in aggravation outweigh those in mitigation, or that death is
the appropriate penalty.‟ [Citation.] „ “Unlike the guilt determination, „the
sentencing function is inherently moral and normative, not factual‟ [citation] and,
hence, not susceptible to a burden-of-proof quantification.” ‟ [Citation.]” (Vieira,
at p. 301.) We have also routinely rejected defendant‟s argument that the jury
should have been instructed that the prosecution has the burden of persuasion to
convince the jury that death was the appropriate penalty. (Ibid.; see also People v.
Panah (2005) 35 Cal.4th 395, 498.) No such instruction was required because
“the prosecution has no burden of proof that death is the appropriate penalty, or
that one or more aggravating factors or crimes exist, in order to obtain a judgment
of death. [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 589.)
Defendant‟s arguments to the contrary notwithstanding, we have
consistently found that these conclusions are not altered by the United States
Supreme Court‟s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi), Ring v. Arizona (2002) 536 U.S. 584 (Ring), or Blakely v. Washington
(2004) 542 U.S. 296 (Blakely). (People v. Ward (2005) 36 Cal.4th 186, 221;
People v. Samuels, supra, 36 Cal.4th at p. 137; People v. Morrison (2004) 34
Cal.4th 698, 730-731; People v. Prieto , supra, 30 Cal.4th at pp. 262-263.) In his
reply brief, defendant now urges us to reconsider these positions in light of the
high court‟s more recent pronouncements in Cunningham v. California (2007) 549
U.S. 270 (Cunningham).
Cunningham held that any fact that increases the penalty for a crime
beyond the relevant statutory maximum, which under California‟s determinate
sentencing law is the middle term, must be submitted to the jury and found true
beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at pp. 288-289, 293.)
70
Cunningham‟s holding has no bearing on penalty phase determinations in
California for the same reasons that the principles announced in Ring and
Apprendi do not apply: “ „[U]nder the California death penalty scheme, once the
defendant has been convicted of first degree murder and one or more special
circumstances has been found true beyond a reasonable doubt, death is no more
than the prescribed statutory maximum for the offense; the only alternative is life
imprisonment without the possibility of parole.‟ (People v. Anderson[, supra,] 25
Cal.4th [at pp.] 589-590, fn. 14.) Thus, in the penalty phase, the jury merely
weighs the factors enumerated in section 190.3 and determines „whether a
defendant eligible for the death penalty should in fact receive that sentence.‟
(Tuilaepa v. California (1994) 512 U.S. 967, 972.) No single factor therefore
determines which penalty — death or life without the possibility of parole — is
appropriate.” (People v. Prieto, supra, 30 Cal.4th at p. 263.) Accordingly, the
high court‟s decision in Cunningham has no apparent application to our state‟s
capital sentencing scheme. (People v. Prince (2007) 40 Cal.4th 1179, 1297.)
2. Refusal of Defense Special Instructions
The trial court refused to give three special instructions requested by the
defense. Defendant now claims this ruling violated various federal constitutional
guarantees. We conclude the ruling was an appropriate exercise of the court‟s
discretion.
Special Instruction No. 1 advised that the mitigating circumstances
identified in CALJIC No. 8.85 were merely examples, that jurors could consider
other mitigating facts related to the case or defendant, that any one mitigating
factor could be sufficient to reject a death sentence, that mitigating factors need
not be proven beyond a reasonable doubt, that mitigation could be based on “any
evidence . . . no matter how weak,” and that jurors could rely on “mercy,
sympathy, and/or sentiment in deciding what weight to give each mitigating
factor.” Special Instruction No. 2 was entirely duplicative of Special Instruction
No. 1. It stated that jurors could reject the death penalty based on compassion or
71
sympathy alone, that mitigating factors need not be proven beyond a reasonable
doubt, and that mitigating factors could be found based on “any evidence . . . no
matter how weak.”
These proposed instructions were largely duplicative of CALJIC No. 8.85,
which was given. CALJIC No. 8.85 is both a correct and an adequate explanation
of how jurors should consider aggravating and mitigating factors. (People v.
Butler (2009) 46 Cal.4th 847, 875.) Accordingly, the court has no obligation to
“give pinpoint instructions regarding what mitigating evidence the jury may
consider, or special instructions regarding mercy and compassion. [Citations.]”
(People v. Valencia (2008) 43 Cal.4th 268, 309-310; see also People v. Riggs
(2008) 44 Cal.4th 248, 328-329.) We have repeatedly held that instructions on the
burden of proof are unnecessary in the penalty phase of a capital trial (People v.
Carpenter, supra, 15 Cal.4th at pp. 417-418), and thus jurors need not be
instructed that mitigating factors do not have to be proven beyond a reasonable
doubt. (People v. Welch (1999) 20 Cal.4th 701, 767.) In addition, “[b]oth
proposed instructions were argumentative in directing that „[a] juror may find that
a mitigating circumstance exists if there is any evidence to support it no matter
how weak the evidence is,‟ without a similar direction as to aggravating evidence.
(See People v. Carter[, supra,] 30 Cal.4th [at p.] 1225.)” (People v. Brasure
(2008) 42 Cal.4th 1037, 1069-1070.)
Special Instruction No. 8 dealt specifically with victim impact evidence. It
directed that such evidence could not be considered “to divert [jurors‟] attention
from [their] proper role of deciding whether defendant should live or die,” and a
death sentence could not be imposed based on an irrational or emotional response
to such evidence. The instruction further stated: “On the other hand, evidence and
argument on emotional though[] relevant subjects may provide legitimate reasons
to sway the jury to show mercy.” This proposed instruction was clearly
argumentative because it invited the jury to draw inferences favorable only to one
side. (People v. Carter, supra, 30 Cal.4th at p. 1225.) It told jurors they could not
72
base a decision to impose the death penalty on an emotional response to victim
impact evidence but also told jurors they could rely on emotional evidence and
argument “to show mercy” toward defendant. In contrast, the jury was properly
instructed by CALJIC No. 8.84.1 that both sides had a right to expect jurors to
“consider all the evidence, follow the law, exercise [their] discretion
conscientiously, and reach a just verdict.” The court did not err in rejecting
defendant‟s duplicative and argumentative proposed instruction.
E. Response to Jury Question about Unanimity
On the second day of penalty phase deliberations, the jury sent a note to the
court asking, in relevant part: “What happens if the jury is unable to reach a
unanimous decision?” The jury also asked whether the court would decide on a
sentence and whether a sentence of life imprisonment without parole would be
given automatically. Defense counsel requested that the jury be given a verbatim
reading of section 190.4, subdivision (b), which would instruct them that in the
event they could not reach a unanimous verdict, the court would dismiss the jury
and impanel a new jury to try the issue of penalty. In the alternative, he requested
an instruction telling the jury it had received all the law and the evidence and was
not to speculate as to the consequences of their failure to agree. As a third
alternative, defense counsel asked the court to give CALJIC No. 17.40.18 The
prosecutor objected that defendant‟s proposed instructions were inappropriate
because the jury had not indicated it was deadlocked. It had merely asked what
would happen if it did deadlock.
18 CALJIC No. 17.40, which was given in the guilt phase of defendant‟s trial,
states: “The People and the defendant are entitled to the individual opinion of
each juror. [¶] Each of you must consider the evidence for the purpose of
reaching a verdict if you can do so. Each of you must decide the case for yourself,
but should do so only after discussing the evidence and instructions with the other
jurors. [¶] Do not hesitate to change an opinion if you are convinced it is wrong.
However, do not decide any question in a particular way because a majority of the
jurors, or any of them, favor such a decision. [¶] Do not decide any issue in this
case by chance, such as the drawing of lots or by any other chance determination.”
73
The trial court observed that almost exactly the same question was
presented in People v. Thomas (1992) 2 Cal.4th 489, 539, in which the jury asked,
“ „What would be the action taken by the court in the event that the jury is unable
to reach a unanimous decision?‟ ” We approved of the court‟s response, which
advised the jury not to consider or concern itself with this matter and told jurors to
“ „make every effort to reach a unanimous decision if at all possible.‟ ” (Ibid.)
We further held that the Thomas court did not err by refusing to instruct the jury
that their inability to reach a verdict would result in a retrial of the penalty phase
and could not lead to a sentence of less than life without possibility of parole.
(Ibid.) Expressly relying on our decision in Thomas, the trial court here responded
to the question from defendant‟s jury about the consequences of an inability to
reach a unanimous verdict by instructing them: “[T]hat subject is not for the jury
to consider or to concern itself with. You must make every effort to reach [a]
unanimous decision if at all possible.” Defendant now claims the court erred in
refusing to instruct the jury on the consequences of a deadlock. He also contends
the instruction that the jury must reach a unanimous decision if possible was
coercive under the circumstance. These claims have no merit.
We have repeatedly held, in cases presenting the same circumstances, that
“ „[t]he trial court “is not required to „educate the jury on the legal consequences
of a possible deadlock.‟ ” ‟ [Citations.]” (People v. Hughes (2002) 27 Cal.4th
287, 402; see People v. Rodrigues, supra, 8 Cal.4th at p. 1193.) Informing the
jury about the possibility of retrial in the event of a deadlock is risky, because it
has “the potential for unduly confusing and misguiding the jury in their proper role
and function in the penalty determination process. Penalty phase juries are
presently instructed that their proper task is to decide between a sentence of death
and life without the possibility of parole. Any further instruction along the lines
suggested herein could well serve to lessen or diminish that obligation in the
jurors‟ eyes. [Citations.]” (People v. Belmontes (1988) 45 Cal.3d 744, 814,
disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421,
74
fn. 22.) As we have emphasized, at the penalty stage, “[t]he proper focus of the
jury‟s deliberations is which penalty to choose, and not whether to make the
choice in the first place.” (People v. Waidla, supra, 22 Cal.4th at p. 746.) The
potential for mischief is especially acute when, as here, the jury‟s question comes
early in their deliberations and there is no indication of an actual, as opposed to
hypothetical, failure to agree. “Especially in a case like this — in which it was not
clear that there actually was any deadlock — an instruction informing the jury of
the consequence of a deadlock „would have diminished the jurors‟ sense of duty to
deliberate, and to be open to the ideas of fellow jurors. The effect of a hung jury is
irrelevant to the jury’s deliberation of any issue before it.‟ (People v. Rich (1988)
45 Cal.3d 1036, 1115, italics added.)” (Hughes, at p. 402.)
For a contrary result, defendant relies on a statement taken out of context
from our opinion in People v. Wader (1993) 5 Cal.4th 610. In Wader, absent any
note from the jury inquiring about the consequences of a failure to achieve
unanimity, the defendant requested that the court give an instruction stating that
the jury was not required to reach a verdict and that “ „[t]he possibility of a hung
jury is an inevitable by-product of the requirement that a verdict must be
unanimous.‟ ” (Id. at p. 664.) We found the trial court properly denied this
request. In reaching this conclusion, we said, “there is no duty to instruct a jury
regarding its possible failure to reach a verdict in the absence of a request by the
jury for an explanation.” (Ibid.) Defendant seizes on this statement as support for
his argument that when there is a request by the jury for an explanation about the
consequences of a failure to reach a unanimous verdict, the court has a duty to
instruct on the point. However, when viewed in context, the statement in Wader
refutes, rather than supports, defendant‟s interpretation. Referring to our
established case law criticizing instructions that explain the possibility of retrial,
we stated: “We have previously rejected the proposition that when a jury asks the
trial court what will happen if it fails to reach a penalty verdict, the court must
explain to the jury the consequences of its failure to agree. (People v. Morris
75
(1991) 53 Cal.3d 152, 227.) It follows that there is no duty to instruct a jury
regarding its possible failure to reach a verdict in the absence of a request by the
jury for an explanation.” (Wader, at p. 664.) In other words, there is no duty to
instruct when the jury does not ask for an explanation because there is no duty to
instruct even when the jury does ask. (See also People v. Waidla, supra, 22
Cal.4th at pp. 746-747 [although a trial court “may” instruct a deliberating jury on
the consequences of its inability to reach a unanimous verdict, nothing in the
federal Constitution requires it to do so].)
Finally, it was not coercive to instruct the jury, in response to the note,
“You must make every effort to reach [a] unanimous decision if at all possible.”
Defendant likens this statement to various “dynamite” instructions we have
disapproved in the past. (See, e.g., People v. Gainer (1977) 19 Cal.3d 835, 852.)
The comparison is inapt. The trial court here simply reminded the jury of its duty
to deliberate and try to reach a unanimous verdict if possible. The instruction did
not introduce extraneous factors into deliberations by admonishing minority jurors
to reconsider their positions, or by pressuring jurors into reaching a decision
quickly. (See Gainer, at pp. 847-852.)19
F. Refusal of Juror Misconduct Hearing
Defendant challenges the trial court‟s failure to conduct an evidentiary
hearing to investigate alleged jury misconduct. He claims these errors violated
section 1120 and deprived him of various constitutional rights. Because there was
no evidence that any misconduct occurred, we conclude the decision not to hold an
evidentiary hearing was well within the court‟s discretion.
Defendant‟s complaints concern Juror William M., a first-year law student
who served as the foreperson during the guilt and penalty phases of trial. William
19 Defendant also contends the instruction may have had a coercive effect in
combination with alleged misconduct of the jury foreperson. Because we have
rejected defendant‟s claim of jury misconduct (see post, at pp. 76-79), the premise
of this claim fails. Nothing in the record supports defendant‟s speculation that the
jury may have been coerced into returning a death verdict.
76
M. had completed one semester of law school when trial started, and he had not
yet taken any criminal law courses. During voir dire, William M. said he
understood he could not consult law books or research death penalty law. He also
confirmed that he could follow the court‟s instructions on the law even if they
conflicted with his legal training.
On the morning of the third day of penalty phase deliberations, defense
counsel went on record to express concern that William M. was serving as
foreperson for the penalty phase, when he had previously filled this role in guilt
phase deliberations. Counsel was displeased that the jury had chosen a law
student as foreperson, especially because counsel had seen William M. during a
recent break “talking to various jurors, huddling with them, and he has had law
books with him, studying law books during deliberations . . . .” Counsel believed
the jury‟s note of the previous day, asking about the consequences of a lack of
unanimity, was “curiously framed . . . as if [the foreperson] had read the 1977
[death penalty] law” and was “expressing independent knowledge of the law” to
other jurors. He expressed fear that some holdout jurors might be intimidated by
William M. and not understand that they could communicate directly with the
court about a deadlock. The court responded that there was “absolutely no
evidence” jurors felt coerced or intimidated by the foreperson; however, the court
was concerned that defense counsel had seen the juror studying a law book.
Defense counsel clarified that he did not know if it was a criminal law book, and
he had no independent knowledge that the juror was researching criminal issues or
communicating any legal knowledge to his fellow jurors.
The court questioned William M. about defense counsel‟s accusations. The
juror said that he was still attending classes, but he had not studied or researched
anything relating to criminal law or procedure. The book he was reading during
breaks was a property law textbook. Nor had William M. talked with other jurors
about criminal law. He sent out the previous day‟s jury note “because the group as
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a whole wanted these questions answered.” Based on these responses, the court
decided not to inquire further, and the jury resumed its deliberations.
“ „When a trial court is aware of possible juror misconduct, the court “must
„make whatever inquiry is reasonably necessary‟ ” to resolve the matter.‟ (People
v. Hayes, supra, 21 Cal.4th at p. 1255, italics omitted.) Although courts should
promptly investigate allegations of juror misconduct „to nip the problem in the
bud‟ (People v. Keenan (1988) 46 Cal.3d 478, 532), they have considerable
discretion in determining how to conduct the investigation.” (People v. Prieto,
supra, 30 Cal.4th at p. 274.) “The decision whether to investigate the possibility
of juror bias, incompetence, or misconduct — like the ultimate decision to retain
or discharge a juror — rests within the sound discretion of the trial court.
[Citation.] The court does not abuse its discretion simply because it fails to
investigate any and all new information obtained about a juror during trial.”
(People v. Ray (1996) 13 Cal.4th 313, 343.)
Here, the court considered the speculative concerns posed by counsel. It
directly questioned William M. and evaluated his responses. The trial court did
not abuse its “considerable discretion” in declining to hold a further evidentiary
hearing. Not every incident of potential misconduct requires further investigation.
(People v. Cleveland (2001) 25 Cal.4th 466, 478.) “[A] hearing is required only
where the court possesses information which, if proven to be true, would
constitute „good cause‟ to doubt a juror‟s ability to perform his duties and would
justify his removal from the case. [Citations.]” (People v. Ray, supra, 13 Cal.4th
at p. 343.) The parties knew William M. was a first-year law student. Neither side
challenged him. Consistent with his statements during voir dire, William M.
affirmed that he had not studied or researched criminal law during the trial and had
not talked with other jurors about these issues. He was never forbidden to read a
textbook on property law during court breaks, and defendant did not suggest this
study of an unrelated area of law was improper. Nor was any evidence presented
supporting defense counsel‟s speculation that William M. may have done anything
78
improper or intimidated other jurors into believing they could not inform the court
of a deadlock. In short, there was nothing to indicate William M. had violated the
court‟s instructions or committed misconduct of any kind. Under these
circumstances, the trial court properly declined to investigate defendant‟s
unsubstantiated claims further.
G. Limitation of Defense Argument
Defendant claims the trial court violated his rights to a fair trial, a fair and
impartial jury, and a reliable penalty determination by prohibiting defense counsel
from comparing his case to more egregious murders prosecuted by the Los
Angeles County District Attorney.
To make the point that the decision to seek the death penalty is politically
motivated, defense counsel wanted to argue that celebrities are rarely ever charged
with special circumstances or given the death penalty. Specifically, he wanted to
compare defendant‟s case with the prosecutions of O.J. Simpson and the
Menendez brothers, who escaped death sentences despite the brutality of their
crimes, and other notorious cases. Although it had misgivings, the trial court
initially believed defendant was entitled to make such comparisons because
section 190.3, factor (k) permits juries to consider any circumstance that might
mitigate the gravity of the offense. Later in the day, however, the court announced
that it was reconsidering this order based on People v. Mincey, supra, 2 Cal.4th
408, People v. Wright (1990) 52 Cal.3d 367, and People v. Grant (1988) 45 Cal.3d
829. The following day, after further discussion, the court ruled that counsel
would not be permitted to make any argument comparing the penalties sought or
received in other cases. Based on this court‟s precedents, the court found that
penalties in other cases were necessarily irrelevant to the issues before defendant‟s
jury. However, it did not preclude defense counsel from arguing that the death
penalty is imposed arbitrarily and capriciously, so long as he did not discuss the
outcomes of specific cases. Counsel emphasized this point in his closing
argument. He argued that district attorneys‟ charging practices were arbitrary and
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the death penalty was pursued only against “anonymous people, Blacks that kill
non[-]Blacks, poor people, people that are not celebrities and[,] most[]
importantly[,] people[] who don‟t have money, who can‟t afford four, five, six
lawyers.”20
“On numerous occasions, we have upheld a trial court‟s refusal „to allow
defense counsel to compare the subject crime to other well-known murders‟
(People v. Hughes[, supra,] 27 Cal.4th [at p.] 400), or to note the penalty imposed
in such cases (People v. Sakarias (2000) 22 Cal.4th 596, 640), while allowing
argument that there „were other murderers worse than he‟ (People v. Benavides[,
supra,] 35 Cal.4th [at p.] 110). „[M]eaningful comparisons with other well-
publicized crimes cannot be made solely on the basis of the circumstances of the
crime . . . without consideration of the other aggravating and mitigating
circumstances.‟ [Citations.]” (People v. Farley (2009) 46 Cal.4th 1053, 1130-
1131.) To be relevant, a comparison to the celebrity prosecutions that did not
result in imposition of the death penalty would have required a discussion of all
the facts and circumstances of those other cases. “We have held that when, as
here, a factual comparison with other notorious crimes cannot be made without a
time-consuming inclusion of all of the facts in mitigation and aggravation, the trial
court can exercise its discretion to control the scope of oral argument by refusing
to allow defense counsel to compare the subject crime to other murders.
[Citations.]” (People v. Benavides, at p. 110.)
In People v. Benavides, supra, 35 Cal.4th at pp. 109-110, the defendant
wanted to compare his case with the well known atrocities committed by Charles
Manson, the Boston Strangler, and others whom he would argue were more
deserving of the death penalty. We held the court acted within its discretion when
it prevented the defense “from presenting specific facts about other notorious
20 The jury may well have understood this last statement as a reference to O.J.
Simpson‟s criminal trial, which took place in Los Angeles shortly before
defendant‟s trial.
80
murder cases where the death penalty was not imposed, but did not preclude him
from arguing that there were other murderers worse than he.” (Id. at p. 110.)
Defendant sought to make essentially the same argument here. As in Benavides,
the trial court struck an appropriate balance by allowing defendant to argue that
the death penalty is arbitrarily and unfairly imposed but prohibiting discussion of
specific circumstances in other cases. This ruling was not an abuse of discretion.
(See also People v. Farley, supra, 46 Cal.4th at pp. 1130-1131 [court properly
precluded defense counsel from arguing the facts of other cases while still
allowing him to argue “defendant‟s murders were not „the worst of the worst‟ ”].)
Finally, defendant argues that even if the trial court‟s ruling was proper,
defense counsel should have been permitted to argue the facts of other cases to
rebut a reference in the prosecutor‟s closing argument. In encouraging jurors to
impose the death penalty as a just punishment for the murder of Soy SungLao, the
prosecutor mentioned a famous incident in which a New York woman was killed
near her home while neighbors ignored her cries for help.21 Because defendant
did not object to this argument, his claim is forfeited on appeal. In any event, the
prosecutor‟s fleeting reference to a famous murder did not exceed the boundaries
of the trial court‟s ruling. The prosecutor simply mentioned the incident without
discussing any details of the crime or the murderer‟s prosecution. The court was
not obligated to revisit the appropriate limits placed on defense counsel‟s
argument based on this brief reference to a famous crime.
H. Intracase Proportionality
Defendant contends his death sentence is disproportionate to his personal
culpability in violation of the Eighth Amendment to the federal Constitution and
California law. Although we have rejected the argument that intercase
21 The prosecutor argued: “When Kitty Genovese‟s body was found 20 years
ago in a dark alley in New York because people didn‟t care, it was because people
thought that their civic duty comprised only the paying of taxes and the minding of
their own business. And when you look at the facts of a case like that, the only
thing that it cries out for is death, the only thing it cries out for is justice.”
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proportionality review is constitutionally required, “when a defendant requests
intracase proportionality review, as defendant does here, we review the particular
facts of the case to determine whether the death sentence is so disproportionate to
the defendant‟s personal culpability as to violate the California Constitution‟s
prohibition against cruel or unusual punishment.” (People v. Wallace (2008) 44
Cal.4th 1032, 1099.) “To determine whether a sentence is cruel or unusual as
applied to a particular defendant, a reviewing court must examine the
circumstances of the offense, including its motive, the extent of the defendant‟s
involvement in the crime, the manner in which the crime was committed, and the
consequences of the defendant‟s acts. The court must also consider the personal
characteristics of the defendant, including age, prior criminality, and mental
capabilities. [Citation.]” (People v. Hines, supra, 15 Cal.4th at p. 1078.) “If the
court concludes that the penalty imposed is „grossly disproportionate to the
defendant‟s individual culpability‟ [citation], or, stated another way, that the
punishment „ “ „shocks the conscience and offends fundamental notions of human
dignity‟ ” ‟ [citation], the court must invalidate the sentence as unconstitutional.”
(Ibid.)
Defendant‟s death sentence is not grossly disproportionate to his personal
culpability; it does not “shock[] the conscience and offend[] fundamental notions
of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) Defendant, acting
alone, overpowered and brutally stabbed a young woman 30 times in order to steal
money from a small shop. This murder occurred during a series of violent armed
robberies. Although some of his earlier crimes were less serious, defendant‟s
increasing resort to violence could be inferred from the circumstances of the
crimes against Addo, Lao, and Draper, and from the brutal, disfiguring attack on
Benita Rodriguez only five days after the murder. The jury could conclude from
this evidence that defendant presented a significant, and increasing, danger to
society. (See id. at p. 425.) Defendant also claims his death sentence was
disproportionate to his culpability because he killed only one person and his
82
counsel was not allowed to compare his crime to notorious examples of multiple
murderers. However, “intracase proportionality review examines „ “ „whether [a]
defendant’s death sentence is proportionate to his individual culpability,
irrespective of the punishment imposed on others.‟ [Citation.]” ‟ [Citations.] The
guilt or culpability of codefendants or third parties does not affect that analysis.
[Citations.]” (People v. Maury (2003) 30 Cal.4th 342, 441-442.)
I. Constitutionality of Death Penalty Scheme
Defendant contends the death penalty statutes, sections 190.2 and 190.3,
violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution, and analogous provisions of the California Constitution, in numerous
respects. We have rejected each of these challenges in the past and now reaffirm
our holdings.
Section 190.2, which sets forth the circumstances in which a death sentence
may be imposed, is not impermissibly broad on its face or as interpreted by this
court. (People v. Verdugo (2010) 50 Cal.4th 263, 304; People v. Farley, supra, 46
Cal.4th at p. 1133.) Nor does allowing a jury to find aggravation based on the
“circumstances of the crime” under section 190.3, factor (a), result in an arbitrary
and capricious imposition of the death penalty. (People v. Williams, supra, 43
Cal.4th at p. 648; People v. Cook (2007) 40 Cal.4th 1334, 1366; see also Tuilaepa
v. California, supra, 512 U.S. at p. 976 [“The circumstances of the crime are a
traditional subject for consideration by the sentencer, and an instruction to
consider the circumstances is neither vague nor otherwise improper under our
Eighth Amendment jurisprudence”].)
The restrictive adjectives “extreme” and “substantial” in section 190.3,
factors (d) and (g) do not impermissibly limit the jury‟s consideration of
mitigating factors in violation of the federal Constitution. (People v. Maury,
supra, 30 Cal.4th at p. 439; People v. Williams (1997) 16 Cal.4th 153, 276.)
Further, the trial court had no duty to instruct the jury that certain sentencing
factors (§ 190.3,factors (d)-(h) & (j)) can only mitigate, and not aggravate, the
83
crime. (People v. Leonard (2007) 40 Cal.4th 1370, 1430; People v. Brown (2004)
33 Cal.4th 382, 402.)
Neither the United States Constitution nor the California Constitution
requires that the jury determine beyond a reasonable doubt “whether aggravating
factors are true, whether circumstances in aggravation outweigh those in
mitigation, or whether death is the appropriate penalty.” (People v. Lomax, supra,
49 Cal.4th at p. 594; People v. Leonard, supra, 40 Cal.4th at p. 1429; People v.
Manriquez (2005) 37 Cal.4th 547, 589.) Likewise, nothing in the federal
Constitution required the jury to make written findings on the aggravating factors
supporting its death verdict. (People v. Williams, supra, 43 Cal.4th at p. 648;
People v. Maury, supra, 30 Cal.4th at p. 440; People v. Frierson (1979) 25 Cal.3d
142, 178-180.) The Supreme Court‟s decisions in Apprendi, supra, 530 U.S. 466,
Ring, supra, 536 U.S. 584, and Blakeley, supra, 542 U.S. 296 do not alter these
conclusions. (People v. Nelson (2011) 51 Cal.4th 198, 225-226; People v.
Verdugo, supra, 50 Cal.4th at pp. 304-305.) Furthermore, nothing in the federal
Constitution or the high court‟s decisions in Apprendi, Ring, or Blakeley requires
that the jury return a unanimous verdict on aggravating factors. (Lomax, at p. 594;
Manriquez, at p. 590; People v. Snow (2003) 30 Cal.4th 43, 126.) Nor are penalty
phase jury instructions constitutionally deficient for failing to state that mitigating
factors need not be found unanimously or by any particular standard of proof.
(People v. Ervine (2009) 47 Cal.4th 745, 870; People v. Rogers, supra, 39 Cal.4th
at p. 897.) Because the decision whether to sentence a defendant to death is
essentially a normative one, we have held the prosecution bears no burden of
persuasion in the penalty phase. (People v. Lenart (2004) 32 Cal.4th 1107, 1136-
1137; People v. Hayes (1990) 52 Cal.3d 577, 643.) We decline defendant‟s
invitation to revisit this conclusion. Nor does the federal or state Constitution
require an instruction explaining that there is no burden of proof in the penalty
phase. (People v. Farley, supra, 46 Cal.4th at p. 1133.)
84
“The failure of California‟s death penalty law to require intercase
proportionality does not violate the federal Constitution. (Pulley v. Harris (1984)
465 U.S. 37, 50-51; People v. Cox (2003) 30 Cal.4th 916, 970.)” (People v.
Verdugo, supra, 50 Cal.4th at p. 305.) We decline defendant‟s invitation to
reexamine our settled law on this point based on “ „evolving standards of
decency.‟ ” (Roper v. Simmons (2005) 543 U.S. 551, 561 [125 S.Ct. 1183, 1190].)
“Nor does the circumstance that intercase proportionality review is conducted in
noncapital cases cause the death penalty statute to violate defendant‟s right to
equal protection and due process.” (People v. Farley, supra, 46 Cal.4th at p.
1134.) Defendant also claims that, even if the absence of certain protections does
not render California‟s death penalty procedures unconstitutional, the availability
of some of these protections to noncapital defendants denies equal protection to
those facing the death penalty. We have rejected this argument in the past (e.g.,
People v. Cook, supra, 40 Cal.4th at p. 1367; People v. Blair (2005) 36 Cal.4th
686, 754) and continue to do so. (People v. Lomax, supra, 49 Cal.4th at p. 594.)
“[C]apital and noncapital defendants are not similarly situated and therefore may
be treated differently without violating constitutional guarantees of equal
protection of the laws or due process of law [citations] . . . .” (People v.
Manriquez, supra, 37 Cal.4th at p. 590.)
Finally, this court has repeatedly held that California‟s death penalty
scheme does not violate the Eighth Amendment to the United States Constitution
or international law, including part III, article 7 of the International Covenant on
Civil and Political Rights. (People v. Lewis, supra, 43 Cal.4th at pp. 538-539;
People v. Butler, supra, 46 Cal.4th at p. 885.)
J. Political Considerations
Defendant asserts that political and economic pressures have biased
California courts in favor of imposing the death penalty. He claims this bias has
led to arbitrary and capricious sentencing in violation of his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and
85
article I, sections 1, 7, 9, 15, 16, 17, and 24 of the California Constitution. We
have previously considered and rejected this claim (People v. Kipp (2001) 26
Cal.4th 1100, 1139-1141), and defendant does not persuade us to revisit our
decision. (See People v. Hughes, supra, 27 Cal.4th at p. 406.)
K. International Law
Defendant claims that errors infringing his state and federal constitutional
rights also amount to violations of international law. For this reason, he argues the
death sentence must be set aside. We have repeatedly rejected this argument.
(People v. Ward, supra, 36 Cal.4th at p. 222; People v. Brown, supra, 33 Cal.4th
at pp. 403-404.) “International law does not prohibit a sentence of death rendered
in accordance with state and federal constitutional and statutory requirements.
[Citations.]” (People v. Hillhouse, supra, 27 Cal.4th at p. 511.) In this case, “we
need not consider whether a violation of state or federal constitutional law would
also violate international law, „because defendant has failed to establish the
premise that his trial involved violations of state and federal constitutional law
. . . .‟ ([People v. Jenkins (2000)] 22 Cal.4th [900,] 1055.)” (Hillhouse, at p. 511.)
L. Cumulative Error
Defendant argues the cumulative effect of guilt and penalty phase errors
requires reversal of his death sentence. Because defendant has not established that
any prejudicial error occurred at either phase of his trial, this claim fails. (See
People v. Butler, supra, 46 Cal.4th 847, 885.)
86
DISPOSITION
The judgment is affirmed.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BIGELOW, J. *
_______________________________
* Presiding Justice, Court of Appeal, Second Appellate District, Division
Eight, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
87
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Virgil
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S047867
Date Filed: June 30, 2011
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Steven C. Susukawa
__________________________________________________________________________________
Counsel:
Manuel J. Baglanis, under appointment by the Supreme Court, and Meredith L. Fahn for Defendant and
Appellant.
Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief
Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka,
Erika D. Jackson and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Manuel J. Baglanis
P.O. Box 700035
San Jose, CA 95170-0035
(408) 446-3987
Michael C. Keller
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-6973