People v. Moore

Filed 6/23/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S075726
v. )
)
CHARLES EDWARD MOORE, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. A018568
____________________________________)

Defendant Charles Edward Moore twice has been convicted and sentenced
to death for robbing and murdering Robert and Marie Crumb in Long Beach,
California in 1977. We affirmed his first conviction and sentence in 1988 (People
v. Moore (1988) 47 Cal.3d 63 (Moore)), but that judgment was vacated in federal
habeas corpus proceedings, when the federal court concluded defendant‟s right to
represent himself at trial had been violated. (Moore v. Calderon (9th Cir. 1997)
108 F.3d 261.) After a second trial in 1998,1 the jury again convicted defendant of
two counts of first degree murder (Pen. Code, § 187),2 two counts of robbery
(§ 211), and one count of burglary (§ 459). It found true sentencing enhancements
as to each count that defendant personally used a deadly and dangerous weapon, a
knife (§ 12202, subd. (b)), except with regard to the murder of Marie Crumb. It

1 Defendant represented himself during pretrial proceedings, part of the guilt
phase, and the entire penalty phase and postverdict portions of the second trial.
2 All further statutory references are to the Penal Code unless otherwise
indicated.
also found true sentencing enhancements as to each robbery count that defendant
personally used a firearm (§ 12022.5). The jury found true the special
circumstances that, as to each murder, defendant committed the murder in the
course of robbing the victims (former § 190.2, subd. (c)(3)(i)), in the course of
committing a burglary (former § 190.2, subd. (c)(3)(v)), and found true the special
circumstance that defendant committed multiple murders (former § 190.2, subd.
(c)(5)).3 After a penalty trial, the jury returned a verdict of death. The trial court
denied the automatic motion to modify the verdict (§ 190.4, subd. (e)), and
sentenced defendant to death and to a determinate term, stayed, on the noncapital
offenses. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment
in its entirety.
I. FACTS

A. Guilt Phase

1. Prosecution Evidence
The prosecution‟s case for the most part paralleled the evidence that was
presented at defendant‟s first trial, and, as with that proceeding, relied primarily on
the testimony of Terry Avery, an accomplice to the robberies and murders who
received immunity from prosecution. (See Moore, supra, 47 Cal.3d at pp. 71-
74.)4 Avery testified that in late November 1977, she lived with her parents in

3 Because the crimes took place in December of 1977, defendant‟s case is
governed by the death penalty law that was adopted by the Legislature earlier that
year. (Stats. 1977, ch. 316, §§ 4-14, pp. 1256-1262; People v. Robertson (1989)
48 Cal.3d 18, 51.) The death penalty statute was subsequently repealed and
reenacted by voter initiative (Prop. 7) at the November 7, 1978 General Election.
4 As recounted in our opinion in defendant‟s first appeal, the guilt phase of
defendant‟s first trial included the presentation of evidence concerning a murder
that defendant and the third accomplice, Lee Edward Harris, committed in

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Denver, Colorado. She was 19 years old at the time. Avery met defendant
through a friend, and then through defendant met Lee Edward Harris. Avery
decided to accompany defendant and Harris to Lawrence, Kansas, and left Denver
without taking any money or possessions with her. In Lawrence, defendant
purchased clothes, a purse, and shoes for Avery. The shoes came in a yellow
plastic bag, which Avery kept with her during the trip. The three of them drove
from Lawrence to Kansas City, Kansas, and then traveled by bus to Los Angeles,
arriving there on November 30, 1977. During the drive from Lawrence to Kansas
City, defendant mentioned that he used to live in California; he said the managers
of the apartment where he had lived had money and jewelry. During the bus ride
to California, defendant and Harris discussed plans to rob the apartment managers.
After spending the first night in Los Angeles, the next day, December 1,
1977, the three took a bus to Long Beach, where they rented two rooms at the
Kona Hotel. Defendant and Avery stayed in one room and Harris stayed in an
adjoining room; defendant told Avery he registered for the room as Mr. and Mrs.
Charles Brown. That afternoon, defendant, Harris and Avery took a short walk to
an apartment building where defendant previously had lived and where the
apartment managers resided. The three then had dinner and returned to the hotel.
Defendant and Harris left for a while, returning a short time later with a drugstore
bag containing a roll of thick, white cloth surgical tape. Defendant said he needed
to cover his face so he would not be recognized, and used one of Avery‟s
stockings to fashion a mask. Avery testified, however, that defendant was still
recognizable when he wore the mask. After it became dark outside, defendant,

Lawrence, Kansas, before they committed the Crumb murders. (Moore, supra, 47
Cal.3d at pp. 71-72.) Pursuant to the stipulation of the parties, that murder was not
mentioned until the penalty phase of defendant‟s second trial.

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Harris and Avery left the hotel to carry out the robbery. Defendant and Harris had
the tape, defendant‟s mask, and two pistols with them.
Avery testified that when they arrived at the apartment building, they could
not go inside because the front door was locked. Defendant met a man dressed in
women‟s clothing whom he knew, and they talked for a short while. When the
man entered the building, defendant grabbed the door and held it open so he,
Harris, and Avery could enter. The three then went up several flights of stairs to a
door that had a “Manager” sign on it. Avery knocked on the door and a woman
(Marie Crumb) inside asked who it was. When Marie opened the door, defendant,
wearing his mask, and Harris, both with guns drawn, pushed their way into the
apartment. Avery followed them inside and saw defendant push Marie into a
chair. Avery also saw a man (Robert Crumb) seated on the couch. Defendant
demanded to know where the money was. Avery noticed that Marie Crumb
seemed to recognize defendant, and that defendant and Harris appeared to have
noticed that Marie had recognized him.
Defendant then grabbed Robert Crumb and again demanded the money.
Defendant struck Robert on the head with the butt of his gun. Marie repeatedly
told defendant that they did not have the money because it had been taken to the
bank earlier that day. Harris threw the woman onto the floor and told Avery to get
him an item from a nearby clothes hamper. After she gave Harris a curtain or long
rag from the hamper, Avery was told to go into the apartment‟s bedroom to look
for the jewelry. In the bedroom, Avery found a number of jewelry boxes and
display cases. Defendant then came into the bedroom and helped Avery force
open the cases so she could get the jewelry out. She then placed a number of
rings, necklaces, watches and other items, many of which were made of turquoise,
into a pillowcase from the bed. Defendant and Harris told Avery to use rags when
picking up items in the apartment so she would not leave any fingerprints.

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 Avery next testified that when she came out of the bedroom back into the
living room, Robert and Marie Crumb were in the same positions, except their
arms were behind their backs, with their hands fastened together with the white
surgical tape, and they did not appear to be moving or making any noise. Harris
had wrapped the curtain or rag Avery gave him around the woman‟s mouth and
neck and was choking her. Harris told Avery to go into the kitchen to get a knife.
She went to the kitchen and found several knives, but did not take one to Harris.
Harris then came into the kitchen and picked up a large butcher knife and returned
to the living room. Avery returned to the bedroom, but then went to the door to
the living room, and saw defendant stab Robert in the back. Robert began kicking,
so Harris went over to hold his legs while defendant continued to stab him.
Avery returned to the bedroom, but Harris called for her to come back into
the living room. When she returned, Harris called her over to Marie Crumb, and
told Avery to stab her with a pocketknife that was on a nearby coffee table. Avery
did so, but Harris became angry because she did not do it hard enough. Harris told
Avery to move, and then yelled at her when she touched the table, telling her to
wipe it off so there would be no fingerprints. Avery then returned to the bedroom,
and shortly thereafter picked up her purse and the pillowcase full of jewelry and
left the apartment. After about 10 minutes, defendant and Harris came out of the
apartment. The three of them then returned to the Kona Hotel.
Avery testified that when they arrived back at the hotel, the three of them
examined the jewelry that had been taken from the apartment. Avery noticed that
some of the items were not items that she had taken from the bedroom. Each of
them took several items; defendant took a watch, a belt buckle and two rings. The
remaining jewelry was placed in the yellow plastic bag from the shoe store in
Lawrence, Kansas. Later, Avery accompanied defendant to the beach where he
threw the guns used in the robbery into the ocean. Avery told defendant she felt ill

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and needed to return to Denver. Defendant took her to the bus station and
purchased a ticket for her trip.
A number of days after she returned to Denver, Avery was called to meet
with defendant and Harris at an apartment in a Denver suburb. They questioned
her about whether she had told anyone about the crimes. After convincing them
that she had not, Avery left and, because she was scared that defendant or Harris
might harm her, told her parents, who then contacted the Denver police. Avery
voluntarily surrendered to the police, and told them where they could find
defendant and Harris. Denver area police officers testified that based on
information supplied by Avery, the police went to an apartment in a suburb of
Denver. Defendant was arrested after he climbed out of the bathroom window
during the raid. He was wearing two rings. Harris was arrested in a bedroom in
the apartment. On top of a dresser in the bedroom was a yellow plastic bag from a
shoe store in Lawrence, Kansas that contained numerous items of jewelry. A
number of individuals testified that the jewelry seized during defendant‟s arrest in
Colorado, including the rings defendant was wearing, belonged to the Crumbs,
among them Avery, James Jones, a friend of the Crumbs, and the owner of the
apartment building the Crumbs managed.
The owner of the apartment building testified that he met with Robert and
Marie Crumb on the afternoon of December 1, 1977, and picked up the rent
money they had collected so it could be deposited in the bank. He returned to the
Crumbs‟ apartment in the afternoon of December 2 and found their bodies in the
residence, which had been ransacked. The owner also gave the police a copy of a
rental agreement showing that a Charles Moore had rented an apartment in Long
Beach from him in March of 1977.

6
 The testimony of James Jones from defendant‟s first trial was read into the
record.5 In 1977, Jones lived in the apartment building managed by the Crumbs,
was friends with them, and helped them with various chores. Jones had met
defendant four or five times when defendant lived in Long Beach. On the night of
December 1, 1977, Jones went to a nearby bar, dressed in “drag.” After drinking
several beers and becoming intoxicated, Jones returned to the apartment building.
He testified, however, that he did not talk with anyone outside the building and did
not recall seeing defendant, whom he would have recognized.
The police detective assigned to the Long Beach murder case testified that
the victims, whose apartment was on the fourth floor of the building, had been
stabbed multiple times. Their hands were fastened together behind their backs
with white tape. Robert Crumb had a pillowcase over his head, while Marie had a
cloth curtain twisted around her mouth and head. A butcher knife and a folding
pocketknife with a dried red substance on them were found in the apartment.
Numerous empty jewelry boxes and display cases were found in the apartment‟s
bedroom. One of the pillowcases from the bed was missing.
A medical examiner from the Los Angeles County Coroner‟s Office
testified from the victims‟ autopsy reports that Robert Crumb had been stabbed 10
times in the chest (not in his back, as Avery testified). The wounds were
consistent with the butcher knife. There were also two lacerations on the back of
his head, consistent with his having been hit on the head with an object such as a
pistol. Marie Crumb had been stabbed six times; one of the stab wounds was only
one-eighth of an inch deep and another was just under half an inch deep, while the
remaining wounds were several inches deep. The three deepest wounds, including
the two fatal wounds, were consistent with the butcher knife; the pocket knife

5 Jones died after the first trial.

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could not have made those wounds. Marie also had a black eye and bruising on
her forehead consistent with blunt force injury.
The detective also testified that he obtained registration cards from the
Kona Hotel, which showed that “Sam Harris” and “Charles Moore and Wife”
stayed there on December 1, 1977. A handwriting expert testified that, in his
opinion, the handwriting on the cards matched exemplars defendant and Harris
had provided.

2. Defense Evidence
After the prosecution rested, defendant reasserted his right to represent
himself, and his attorney was then reappointed as standby counsel. Defendant
conducted the remainder of the trial himself. In so doing, he re-called the
investigating detective and attempted to establish inconsistencies between Avery‟s
descriptions of how many jewelry cases were located in the bedroom and how
many the police found. By stipulation of the parties, portions of Avery‟s
testimony at prior proceedings were read into the record; she had testified that
defendant stabbed the man in the back, and Harris stabbed the woman twice, but
defendant did not stab her. Her prior testimony concerning descriptions of some
of the jewelry was also read into the record.

B. Penalty Phase

1. Prosecution Evidence

a. Other Criminal Activity

i. Armed Robbery
The prosecution presented evidence that defendant was convicted in 1978
of armed robbery of a jewelry store in the Denver, Colorado area. Defendant
committed the robbery on November 22, 1977, slightly over one week before the
Long Beach murders.

8
 ii. Norwood Murder
Avery testified that when she, defendant, and Harris traveled to Lawrence,
Kansas from Denver, Colorado, in late November 1977, defendant and Harris
kidnapped and murdered Sam Norwood, the manager of the local Woolworth‟s
store, in an attempt to obtain money from the store. Defendant was the one who
suggested robbing the store because he had previously worked there. Avery,
defendant and Harris arrived at the store around 9:00 p.m. or 10:00 p.m., and
Avery went inside to see who was there. When she returned to their car, Harris
was returning with Norwood, held at gunpoint. After Norwood was placed in the
car, defendant demanded the money from the store, but Norwood said the money
had already been deposited in the bank. Defendant at one point hit Norwood in
the head with a pistol. When Norwood said that he wanted to go home because
his son was having a birthday party, defendant threatened that they could go get
his son, too. Harris, following defendant‟s instructions, drove to a dark area about
10 minutes away from the store. Defendant pulled Norwood out of the car, and
then Harris got out. Avery heard two guns firing and then defendant and Harris
returned to the car. Harris asked defendant why he shot the victim “so many
times,” and defendant laughed, saying “to make sure he was dead.” The
prosecutor who tried the case arising from these incidents testified that the
victim‟s hands were taped behind his back with athletic tape, and he had been shot
four times in the back of the head. Defendant ultimately was convicted of
kidnapping, aggravated robbery, and first degree murder.

iii. Escape and Aggravated Robbery
In 1979, after defendant was apprehended, prosecuted, and convicted of the
jewelry store robbery in Colorado and was being transported to the Colorado trial
court for a hearing concerning his request for a sentence reduction, he
overpowered the deputy escorting him, took the deputy‟s firearm, and escaped.

9
During his escape, defendant committed a carjacking using the deputy‟s weapon,
but he was captured later that day. Defendant was convicted of escape, aggravated
robbery, and being a habitual criminal as a result of this incident.

b. Prison and Jail Incidents
Three correctional officers from San Quentin State Prison testified that they
each observed an incident in which defendant fought with another inmate. In two
of the instances, the officers believed that defendant was the aggressor; the third
officer did not see exactly how the fight began. A fourth correctional officer
testified that when she was passing a food tray into defendant‟s cell, defendant
threw the tray at her and the food “splattered all over [her].”
Two Los Angeles County sheriff‟s deputies who worked at the jail where
defendant was housed during the trial testified that they found prisoner-made
knives, or “shanks,” in defendant‟s possession. One weapon was found on top of
a conduit running at the top, and just outside, of the bars to defendant‟s cell. The
shank was readily accessible only from inside the cell. Although it was possible
that someone outside the cell could have climbed up on the bars to place the shank
in that location, anyone doing so would have been clearly visible to the cameras
monitoring the area. The second shank was found inside a folder of legal
materials defendant was taking with him to a meeting with his attorney. The
shank was a rod, sharpened to a point at one end, that had been removed from the
typewriter defendant used in the jail‟s law library. Defendant admitted at a
disciplinary hearing that he possessed this shank “for protection.” Another deputy
testified that when searching defendant before escorting him to the jail law library,
the deputy found a plastic baggie filled with a yellow liquid that smelled like
urine. The deputy testified that such items are known as “piss bombs,” and
inmates throw them at other inmates and jail staff.

10
 2. Defense Evidence
Several of defendant‟s siblings testified about the difficult and abusive
family circumstances in which they and defendant were raised. Their father was
physically abusive towards the children. He forced them to work hauling trash
and even to steal property to provide money for the family and for his gambling
and alcohol consumption, often keeping them out of school to do so. He beat the
children when they were disobedient and sexually abused one of defendant‟s
sisters when she was nine years old. Defendant‟s mother was not a good parent
either; she was afraid of her husband and therefore did little to stop his abuse of
the children. Defendant‟s parents eventually separated, and most of the children,
including defendant, stayed with their father, who continued to abuse them.
Because defendant‟s father was African-American and his mother was Caucasian,
defendant and his siblings had difficulties with other children in the neighborhood.
Ruth Tiger testified that she knew defendant through a Christian prison
organization. She had corresponded and met with him for over 18 years, and
defendant had frequently told her that he regretted his past and felt remorse for
what he had done. Defendant had offered her and her family support when they
had personal difficulties. Tiger‟s interactions with defendant had always been
positive, loving and supportive.
Dr. Marshall Cherkas, a psychiatrist, reviewed defendant‟s background and
offered opinions concerning the effect of his family history on his development
and his current mental state. In Cherkas‟s opinion, the bad parenting defendant
received during his childhood resulted in him having a “predilection towards
antisocial behavior” and excessive narcissism. Defendant also was a “pseudo-
independent man” who had tried to make his own way, but was also a “passive
person” who did not express his feelings or trust others. Cherkas believed
defendant felt vulnerable and endangered, and therefore had possessed the shanks

11
in jail, but overall was not particularly violent, given the conditions he faced while
in custody. Cherkas testified that people with personality disorders or maladaptive
behaviors are not necessarily static, but can change based on their situation.
II. DISCUSSION

A. Denial of Defendant’s Requests for the Appointment of Cocounsel
Defendant represented himself during the pretrial stages of the proceedings,
but eventually chose to have an attorney represent him for part of the guilt phase
of the trial. During the time defendant was representing himself before the trial,
he repeatedly asked the trial court to appoint an attorney to serve as his
“cocounsel,” who would help defendant prepare the defense case and assist in
presenting the case to the jury. The trial court (four different judges) rejected the
requests for cocounsel; however, the court did appoint advisory counsel to help
defendant prepare the case and give him advice upon request, but not to actively
participate in the trial itself. Defendant contends the denial of his requests for the
appointment of cocounsel was an abuse of discretion under state law that also
violated his federal constitutional rights to due process, effective assistance of
counsel and a reliable trial, his statutory right to the appointment of second
counsel in a capital case, and his constitutional right to equal protection of the
laws.6 We are not persuaded.

6 Defendant does not claim that his assertion of his right to represent himself
under Faretta v. California (1975) 422 U.S. 806, was invalid. Of course, the very
reason defendant was being retried was the federal courts‟ earlier conclusion that
defendant‟s Faretta right was violated at his first trial.
Because, as discussed below, we conclude that the denial of defendant‟s
requests for cocounsel was not error, we do not consider whether defendant‟s later
choice to give up his right to represent himself for part of the guilt phase of the
trial affects his ability to challenge on appeal the denial of his prior requests for
cocounsel.

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 We begin the analysis of defendant‟s claims with the long-standing rule
that a defendant has no right, under either the federal or state Constitution, to
“hybrid representation.”7 Criminal defendants have the constitutional right to
have an attorney represent them, and the right under the federal Constitution to
represent themselves, but these rights are mutually exclusive. (McKaskle v.
Wiggins (1984) 465 U.S. 168, 183 (McKaskle); People v. Marlow (2004) 34
Cal.4th 131, 147, fn. 6; People v. Clark (1992) 3 Cal.4th 41, 111 (Clark); People
v. Bloom (1989) 48 Cal.3d 1194.) Indeed, we stated this rule in our opinion in
defendant‟s first appeal, in which he raised a related hybrid representation claim
when he asserted that his rights had been violated because the trial court denied his
request to appear as cocounsel with his appointed counsel. (Moore, supra, 47
Cal.3d at p. 77 [“A defendant has no absolute right to participate in the
presentation of his case when he is represented by counsel.”].) The circumstance
that a defendant must choose between the exclusive rights of being represented by
an attorney or representing himself or herself does not create a conflict of interest,
as defendant claims. To the extent defendant contends that any of his

7 In this case, by hybrid representation we mean one of three arrangements
involving the presence of both a self-represented defendant and a defense attorney:
(1) standby counsel, in which the attorney takes no active role in the defense, but
attends the proceedings so as to be familiar with the case in the event that the
defendant gives up or loses his or her right to self-representation; (2) advisory
counsel, in which the attorney actively assists the defendant in preparing the
defense case by performing tasks and providing advice pursuant to the defendant‟s
requests, but does not participate on behalf of the defense in court proceedings;
and (3) cocounsel, in which the attorney shares responsibilities with the defendant
and actively participates in both the preparation of the defense case and its
presentation to a degree acceptable to both the defendant and the attorney and
permitted by the court. A second major category of hybrid representation, not at
issue here, occurs when a criminal defendant who has chosen to accept the
assistance of counsel is permitted to serve as cocounsel to his or her attorney. In
such cases, the attorney retains control of the tactical choices to be made, and the
defendant participates only to the extent permitted by counsel and the court.

13
constitutional rights (including his right to effective assistance of counsel and the
right to represent himself) were violated solely by the absence of cocounsel at his
trial, the claim fails.
Although there is no constitutional right to hybrid representation, we have
long recognized that trial courts retain the discretion to permit the sharing of
responsibilities between a defendant and a defense attorney when the interests of
justice support such an arrangement. (People v. Mattson (1959) 51 Cal.2d 777,
797.) Defendant contends the trial court‟s decision not to appoint cocounsel in his
case was an abuse of the court‟s discretion. We disagree. As we previously stated
regarding a challenge to the denial of hybrid representation, “as with other matters
requiring the exercise of discretion, „as long as there exists a reasonable or even
fairly debatable justification, under the law, for the action taken, such action will
not be here set aside . . . . [Citations.]‟ ” (Clark, supra, 3 Cal.4th at p. 111.)
Defendant failed to make any compelling showing that the appointment of
cocounsel instead of advisory counsel was justified. All of the reasons defendant
proffered for why he needed the assistance of cocounsel — and not merely
advisory counsel — were circumstances related to his choice to represent himself,
and defendant was warned of the possible difficulties he would face before he
made that choice.
For example, defendant argued that the jail‟s law library facilities were
inadequate, that the case was complex, and that cocounsel could “help if [he was
not] articulate in front of the jury,” could help ensure that the defense case was
presented in an orderly manner, and could conduct defendant‟s examination if he
chose to testify. These potential problems were tied to defendant‟s choice to
represent himself, and the trial court was not required to appoint cocounsel.8 In

8 Defendant repeatedly makes note of the circumstance that his willingness to
give up his Faretta right to the extent that he would permit cocounsel to

14
addition, advisory counsel, as well as the investigator and legal runner the trial
court had appointed on defendant‟s behalf, was available to assist defendant to
some degree. Moreover, defendant had already participated in one trial on these
very charges, and therefore had some familiarity with trial procedures and the very
issues that were likely to come up in his second trial. For these reasons, we cannot
conclude that the trial court abused its discretion in denying defendant‟s request.
(See also People v. Bradford (1997) 15 Cal.4th 1229, 1369 [“The court was well
within its discretion in refusing to permit defendant both to represent himself and
to have the benefit of professional representation.”].)
Defendant makes much of the circumstance that the trial court initially
expressed some willingness to appoint cocounsel, and that discussion occurred at
subsequent hearings concerning uncertainty regarding how much an attorney
receiving such an appointment would be paid for his or her services under the trial
court‟s contract for the appointment of attorneys for indigent defendants.9 The

participate in the trial would have eliminated the concern that his right to self-
representation not be violated by the unwelcomed participation of counsel. (See
McKaskle, supra, 465 U.S. at p. 182.) First, we cannot be sure that, had cocounsel
been appointed in the present case, he or she would actually have acceded to
defendant‟s strategic choices during the trial such that no infringement of
defendant‟s Faretta right would have occurred, and therefore we do not believe
his pretrial agreement, in the abstract, to sharing duties with an attorney
necessarily carries much weight. Indeed, during the guilt phase of the trial,
defendant became dissatisfied with the efforts of his appointed attorney and
reasserted his Faretta right. Regardless, to the extent defendant implies that
because he was agreeable to some partial waiver of his Faretta right, this
somehow heightened the obligation of the trial court to grant the request for
cocounsel, he is mistaken.
9 The contract apparently did not include express provisions dealing with the
payment of cocounsel, as opposed to advisory or standby counsel, in a case in
which the defendant proceeded in propria persona. The trial court and several
attorneys who were potential candidates to serve as defendant‟s cocounsel
contacted various people involved in the administration of the contract, and there
was apparent difficulty in obtaining any definitive answer concerning how much

15
trial court ultimately found that the appointment of advisory counsel, which was
expressly provided for in the contract, was the best way to ensure defendant
received adequate assistance. Defendant contends the trial court‟s consideration
of the possible financial arrangements for the appointment of cocounsel was
improper. Because we have concluded the trial court did not abuse its discretion
when it denied his request, we need not decide whether the trial court‟s
consideration of the funding for such an appointment (to the extent that we might
conclude the payment issue actually was a factor in the court‟s decision) was
erroneous.
We therefore conclude the trial court did not abuse its discretion in denying
defendant‟s request for the appointment of cocounsel. Because there was no abuse
of discretion, defendant‟s contention that his various constitutional rights were
violated is without merit.
Defendant also contends the trial court‟s decision not to appoint cocounsel
violated his state law right to the appointment of a second attorney in a capital
case, under section 987 and our decision in Keenan v. Superior Court (1982) 31
Cal.3d 424. He is incorrect. Initially, we note that Keenan delineated the rights
the statute established, which, we concluded, provided the authority in capital
cases for trial courts to exercise the discretion to order the appointment of a second
attorney. (Keenan, supra, 31 Cal.3d at p. 430.) After Keenan, and before
defendant‟s retrial, the Legislature revised the statutes relating to the appointment
of counsel for indigent defendants, and added subdivision (d) to section 987, an
express provision for the appointment of second counsel in a capital case along the
lines we set forth in Keenan. (See Stats. 1984, ch. 1109, § 4, pp. 3735-3736.)

cocounsel would be paid. As the Attorney General points out, the contract itself
was never made part of the record.

16
Therefore, our review of defendant‟s state law claim will focus on the
determination of the rights the amended statute confers. (People v. Tanner (1979)
24 Cal.3d 514, 521 [“A specific provision relating to a particular subject will
govern a general provision, even though the general provision standing alone
would be broad enough to include the subject to which the specific provision
relates.”].)
The plain language of the statute forecloses defendant‟s claim that the trial
court erred when it did not appoint “second” counsel. In short, section 987,
subdivision (d) does not apply when a defendant is proceeding in propria persona.
Subdivision (d) provides, in relevant part, that “In a capital case, the court may
appoint an additional attorney as a cocounsel upon a written request of the first
attorney appointed. The request shall be supported by an affidavit of the first
attorney setting forth in detail the reasons why a second attorney should be
appointed.” (§ 987, subd. (d), italics added.) A defendant proceeding in propria
persona simply is not “the first attorney appointed,” despite the circumstance that
by choosing self-representation, such a defendant takes on the duties that would
otherwise fall on his or her attorney. (See Scott v. Superior Court (1989) 212
Cal.App.3d 505, 511 (Scott).) There is no indication in the statute — or anywhere
else — that the Legislature intended to create, in effect, a statutory right to hybrid
representation, and we reject defendant‟s contention that we should interpret the
statute‟s plain language to reach such a result. (People v. Birkett (1999) 21
Cal.4th 226, 231 [“We must follow the statute‟s plain meaning, if such appears,
unless doing so would lead to absurd results the Legislature could not have
intended.”].)10

10 We also note that we affirmed in defendant‟s first appeal the denial of his
trial counsel‟s request for the appointment of a second attorney because defendant

17
 Defendant next contends the denial of his requests for the appointment of
cocounsel violated his federal and state constitutional rights to equal protection of
the law. Defendant claims that the trial court‟s refusal to appoint cocounsel
unfairly denied him a benefit bestowed upon other capital defendants. This
contention is without merit because defendant has not demonstrated that he was
subjected to unfavorable treatment compared to other defendants with whom he
was similarly situated. (See Purdy & Fitzpatrick v. State of California (1969) 71
Cal.2d 566, 578 [“The concept of the equal protection of the laws compels
recognition of the proposition that persons similarly situated with respect to the
legitimate purpose of the law receive like treatment.”].)
Defendant‟s equal protection claim proceeds from the faulty premise that,
for purposes of the appointment of cocounsel, capital defendants who choose to
represent themselves are similarly situated to those who choose representation by
appointed counsel. Not so. As our cases make clear, a defendant who chooses to
assert his or her Faretta right has no constitutional right whatsoever to have the
assistance of an attorney. Similarly, as we discussed above, a self-represented
defendant is not “the attorney first appointed” for purposes of the statutory
provision concerning the appointment of a second defense attorney. On a more
practical level, although a defendant proceeding in propria persona adopts the
duties of a defense attorney, he or she is not bound by the same ethical standards
or expected to possess the same level of competence as an attorney. The
implication behind defendant‟s claim — that it would be no different for two
attorneys to work together on a case than it would be for a defendant and an
attorney to do so — is incorrect. (See People v. Hamilton (1989) 48 Cal.3d 1142,

“never argued any specific or compelling reasons requiring the assistance of
additional counsel.” (Moore, supra, 47 Cal.3d at pp. 76-77.)

18
1162 [“Undesirable tactical conflicts, trial delays, and confusion often arise when
a defendant who has chosen professional representation shares legal functions with
his attorney.”].) Those defendants who assert their constitutional right to represent
themselves are not similarly situated to those who choose appointed counsel with
respect to the appointment of cocounsel, nor have they been penalized for
asserting their Faretta right, as defendant claims. Because defendant has not
demonstrated any disparate treatment with regard to his request for the
appointment of cocounsel, we conclude the court did not violate his constitutional
right to equal protection. (See Scott, supra, 212 Cal.App.3d at pp. 511-512.)

B. Denial of Motion to Reinstate In Propria Persona Privileges at the
Jail
Several days before the trial commenced, a deputy in the jail found in
defendant‟s possession a sharpened rod that had been removed from the typewriter
defendant had been using at the jail‟s law library. A disciplinary hearing was held
at the jail, during which defendant admitted he possessed the rod, and that it was
for his “protection.” As a result of this incident, defendant‟s in propria persona
privileges at the jail were revoked, primarily meaning he was not allowed to use
the jail‟s law library. His phone access was also limited. Defendant asked the
trial court to intervene and to order that the jail restore some of his privileges, by,
for example, allowing him to use the law library when no other inmates were
there, permitting a legal runner to bring him books from the library while he was
confined in his cell, and increasing his access to the telephones.
The deputy who found the rod testified at a hearing before the trial court
that defendant would have access to the telephone during his normal “tier time,”
though it would be less than at the law library, and that a legal runner could
provide him with legal materials during regular visiting hours. The deputy stated
that the jail did not permit the removal of legal materials from the law library, in

19
order to ensure that the materials would be available to other inmates using the
library, and to prevent destruction of the materials. The trial court refused to order
any changes to defendant‟s status, noting that defendant had been warned before
exercising his right to represent himself that if he violated the jail‟s policies, he
could lose his privileges. Defendant contends the trial court‟s decision not to
order the jail to reinstate his privileges denied him a “meaningful opportunity to
represent himself,” in violation of the Fifth, Sixth and Fourteenth Amendments to
the federal Constitution. No violation of his constitutional rights occurred.
We have held, as a general rule, that the federal and state constitutional
provisions concerning the assistance of counsel for criminal defendants include the
right to access “ „reasonably necessary defense services.‟ ” (People v. Blair
(2005) 36 Cal.4th 686, 732, quoting Corenevsky v. Superior Court (1984) 36
Cal.3d 307, 319-320.) In addition, “we have recognized that depriving a self-
represented defendant of „all means of presenting a defense‟ violates the right of
self-representation” under the Sixth Amendment to the federal Constitution.
(Blair, supra, 36 Cal.4th at p. 733, quoting People v. Jenkins (2000) 22 Cal.4th
900, 1040 (Jenkins).) “Thus, „a defendant who is representing himself or herself
may not be placed in the position of presenting a defense without access to a
telephone, law library, runner, investigator, advisory counsel, or any other means
of developing a defense.‟ ” (Blair, supra, 36 Cal.4th at p. 733.)11 But “the Sixth

11 In stating this rule in Jenkins, we cited Milton v. Morris (9th Cir. 1985) 767
F.2d 1443, 1445-1446 (Milton). (Jenkins, supra, 22 Cal.4th at p. 1040; see also
Taylor v. List (9th Cir. 1989) 880 F.2d 1040, 1047 (Taylor) [describing Milton as
holding “that the Sixth Amendment right to self-representation recognized in
Faretta includes a right of access to law books, witnesses, and other tools
necessary to prepare a defense”].) We note that other courts have reached
conclusions seemingly at odds with Milton concerning the government‟s duty to
provide resources for a defendant who has exercised his or her Faretta right. (See,
e.g., United States v. Cooper (10th Cir. 2004) 375 F.3d 1041, 1052 [“When a
prisoner voluntarily, knowingly and intelligently waives his right to counsel in a

20
Amendment requires only that a self-represented defendant‟s access to the
resources necessary to present a defense be reasonable under all the
circumstances.” (Blair, supra, 36 Cal.4th at p. 733.) In assessing the
reasonableness of the access provided under all the circumstances, “[i]nstitutional
and security concerns of pretrial detention facilities may be considered in
determining what means will be accorded to the defendant to prepare his or her
defense.” (Jenkins, supra, 22 Cal.4th at p. 1040.) We conclude that under the
facts here, defendant was provided with reasonable resources to present a defense.
First, we see nothing improper with the procedures by which defendant‟s in
propria persona privileges were restricted. We set forth the applicable law in

criminal proceeding, he is not entitled to access to a law library or other legal
materials.”]; Degrate v. Godwin (5th Cir. 1996) 84 F.3d 768, 769; United States v.
Smith (6th Cir. 1990) 907 F.2d 42, 44; United States v. Pina (1st Cir. 1988) 844
F.2d 1, 5, fn. 1; United States ex rel. George v. Lane (7th Cir. 1983) 718 F.2d 226,
231 [“the offer of court-appointed counsel to represent a defendant satisfies the
constitutional obligation of a state to provide a defendant with legal assistance
under the Sixth and Fourteenth Amendments”]; see also United States v. Robinson
(9th Cir. 1990) 913 F.2d 712, 717 [“there is nothing constitutionally offensive
about requiring a defendant to choose between appointed counsel and access to
legal materials; the sixth amendment is satisfied by the offer of professional
representation alone”].) The United States Supreme Court has recognized that the
extent to which the government must provide publicly funded defense services to a
self-represented criminal defendant is an open issue in that court‟s jurisprudence.
(Kane v. Garcia Espitia (2005) 546 U.S. 9, 10 [noting split of authority in lower
courts, and concluding that no clearly established federal law existed for purposes
of federal habeas corpus review because “Faretta says nothing about any specific
legal aid that the State owes a pro se criminal defendant”].) Even to the extent
that we might be inclined to revisit our reliance on Milton, or to consider whether,
if that reliance was misplaced, our state Constitution affords indigent self-
represented defendants some higher level of protection than the federal
Constitution, we do not do so here because, as discussed further below, defendant
has not shown that he was denied reasonable resources necessary to present his
defense. (See People v. Lawley (2002) 27 Cal.4th 102, 147, fn. 18 [assuming for
sake of argument that a self-represented defendant “who is assisted by advisory
counsel is also entitled to access to a law library”].)

21
Wilson v. Superior Court (1978) 21 Cal.3d 816, 821-822: When a defendant has
been granted in propria persona privileges, “the privileges initially granted him
will not thereafter be restricted or terminated except for cause. We further
conclude violation of jail rules and/or a demonstrable necessity for administrative
segregation of a defendant who would otherwise constitute a threat to jail security
may justify such restriction or termination. We also conclude, however, that the
nature of a defendant‟s interest in exercising those privileges is such that except in
emergency situations, they may be restricted only after notice and hearing.
Restrictions that are an incidental result of disciplinary sanctions should therefore
follow only after a disciplinary proceeding; nonpunitive restrictions flowing from
the sheriff‟s determination that institutional security requires segregation or other
limitation on the movement of the defendant may be imposed only after a
classification hearing to establish the existence of cause for the restriction.
Although a court order is affected by restriction of pro. per. privileges, we do not
think that due process requires the disciplinary and classification hearings to be
held in court so long as provision is made for court review of the matter and for
the defendant to appear and be heard at the time of such court review on the
sheriff‟s application for modification of the order granting pro. per. privileges.”
(See also Bell v. Wolfish (1979) 441 U.S. 520, 540 [interests in effective
management of detention facilities can justify restrictions on the inmates‟
conditions of confinement]; Ferrel v. Superior Court (1978) 20 Cal.3d 888, 892
[“Limitations on or suspension of a defendant‟s pro. per. privileges . . . may be
necessary in certain circumstances as a result of a defendant‟s misconduct in jail.
(Fn. omitted.)”].) In the present case, there was substantial evidence supporting a
finding of cause for restricting defendant‟s privileges (his possession of a
sharpened prisoner-made weapon constituted a threat to jail security); defendant
was provided with notice and a hearing before disciplinary sanctions were

22
imposed; and the trial court reviewed the matter when defendant asked the court to
override the restrictions. Further, the trial court did not err in rejecting defendant‟s
request to overrule the jail‟s policies that would not permit the special
accommodations defendant requested.
Second, defendant was provided with other reasonable resources to present
his defense, namely, his court-appointed advisory counsel, investigator and legal
runner, who had the ability to provide him with legal materials and to make
telephone calls on his behalf. Indeed, in Jenkins we stated the controlling
principle: despite restrictions on the defendant‟s own access to defense resources,
“[w]hen the defendant has a lawyer acting as advisory counsel, his or her rights
are adequately protected.” (Jenkins, supra, 22 Cal.4th at p. 1040.)12 Although
defendant alleges on appeal that he was not able to contact his appointed
assistants, the record contains only defendant‟s unsworn statements to the trial
court complaining that restrictions on his use of the telephones made it “difficult”
to communicate. Indeed, the record shows advisory counsel and the investigator
were able to provide extensive pretrial assistance to defendant.
Therefore, defendant was not denied reasonable resources necessary to
present his defense under all the circumstances of this case, nor, to the extent he
claims so on appeal, can we conclude his decision to accept the appointment of
counsel for part of the trial was the result of any unconstitutional interference with
his Faretta right.

12 Defendant argues that Jenkins is not controlling because the defendant in
that case was represented by counsel, while defendant was not. In Jenkins,
however, the defendant was represented by counsel at the guilt phase only, and he
represented himself at the penalty phase. (Jenkins, supra, 22 Cal.4th at p. 930.)
We held that limitations on the resources available to the defendant during his
preparations for the penalty phase did not violate his constitutional rights. (Id. at
p. 1040.)

23
 The three opinions of the United States Court of Appeals for the Ninth
Circuit upon which defendant relies in arguing that he was not provided adequate
resources to present his defense do not support a different conclusion. Advisory
counsel, which, as we stated above, is recognized as a resource adequately
protecting the defendant‟s rights, had not been appointed in either Milton, supra,
767 F.2d 1443, or Taylor, supra, 880 F.2d 1040. In addition, neither of those
cases involved the restriction of the defendant‟s access to defense resources based
upon disciplinary actions by the jail; both involved the unreasonable restriction of
access without any apparent legitimate cause. (Milton, supra, 767 F.2d at p. 1445
[“the state not only affirmatively failed to provide defense resources, but also
materially impeded use of the minimal tools for defense preparation which the trial
court tried to ensure,” and the state offered “no justification, such as cost or
security exigencies, for what occurred”]; Taylor, supra, 880 F.2d at p. 1048 [a
genuine issue of material fact existed when the prisoner alleged that jail personnel
denied him access to court-appointed law clerks and runners, prevented a witness
from testifying, and “so completely hindered [his] ability to prepare a defense that
his right to self-representation was denied,” and the state offered no evidence that
the actions were justified by security concerns].) The other case defendant relies
upon, Bribiesca v. Galaza (9th Cir. 2000) 215 F.3d 1015, is factually inapplicable
because it concerns the trial court‟s decision to deny the defendant‟s request to
proceed in propria persona, not any interference with his access to resources. That
case adds no support to defendant‟s claim, other than the court‟s recognition that
the defendant had a right to access to resources as stated in Milton, and that “[i]f
the state had unconstitutionally denied [the defendant] such access, that denial
would have been an independent basis for relief.” (Bribiesca, supra, 215 F.3d at
p. 1020.) As discussed above, however, defendant‟s access was not
unconstitutionally denied.

24
 For these reasons, defendant has not demonstrated that the restriction of his
in propria persona privileges at the jail and the trial court‟s denial of his request to
order their restoration violated his constitutional rights.

C. Denial of Motion to Suppress Evidence
After the Denver police took Avery into custody, she provided information
about defendant‟s and Lee Harris‟s criminal activity in Kansas,13 and told the
police where they could find the two men. After midnight the same evening, the
police, acting on an existing Colorado arrest warrant, forcefully entered an
apartment at the address Avery gave them, and arrested Harris in a bedroom. On
top of a chest of drawers next to Harris was a yellow plastic bag. The bag was
open and the arresting officer could see that it contained jewelry. Meanwhile,
defendant had been arrested shortly after the police entered the same apartment
and he had climbed out of the bathroom window. The police seized the bag and
the jewelry inside it, two rings that defendant was wearing, and two rings that
Harris was wearing. The bag was from the shoe store in Lawrence, Kansas, where
defendant purchased a pair of shoes for Avery. The jewelry in the bag, as well as
the rings defendant and Harris were wearing, was identified as having belonged to
the Crumbs. The trial court denied defendant‟s motion to suppress this evidence
after a hearing at which several witnesses testified.14 Defendant contends the trial

13 Avery did not tell the authorities about the California murders until after
she had been transported to Kansas.
14 Defendant filed a motion to suppress this evidence in his first trial, which
the trial court also denied. We rejected the claim raised in defendant‟s first appeal
that his trial counsel was ineffective in pursuing that motion to suppress. (Moore,
supra, 47 Cal.3d at pp. 82-83.) The trial court allowed defendant to relitigate the
motion to suppress in the retrial proceedings because defendant‟s request to
represent himself during the first trial, which the federal court had concluded was
improperly denied, was made before the first suppression motion had been
litigated.

25
court erred, and the admission of the jewelry in the bag seized inside the apartment
violated his rights under the Fourth Amendment of the federal Constitution
because the police entered the apartment pursuant to an arrest warrant rather than a
search warrant. We conclude that, even assuming a violation of defendant‟s
Fourth Amendment right, the admission of the challenged evidence was harmless
beyond a reasonable doubt.
The bag and the jewelry it contained corroborated Avery‟s testimony
regarding defendant‟s participation in the Crumbs‟ murders, testimony that clearly
was the key evidence of defendant‟s guilt. But the bag and the jewelry found
inside it were not the only, or even the most compelling, corroboration of Avery‟s
testimony. For example, substantial evidence other than Avery‟s testimony
supported finding that (1) defendant was the one who knew the victims, where
they lived and that they likely would be in possession of money and jewelry on the
date of the robbery, and (2) defendant, Avery and Harris, who all lived in
Colorado, stayed in a hotel near the victims‟ apartment around the time of the
murders. Most importantly, however, defendant himself was arrested while
wearing jewelry — the two rings — taken from the Crumbs, and defendant does
not challenge the admission of that evidence. In addition, both Harris and Avery
also were in possession of some pieces of the Crumbs‟ jewelry, aside from the
jewelry in the yellow bag.
The primary issue during the trial was not whether defendant was involved
in the crimes, but rather whether, as Avery testified, defendant personally
participated in the robbery and murders. The fact that police found the robbery
proceeds when they arrested defendant and Harris was not particularly strong
corroboration of Avery‟s testimony about who actually committed the robbery and
murders. From this evidence alone a jury might infer either that Harris and Avery
committed the crimes without defendant, and Harris shared the proceeds with

26
defendant (defendant‟s theory of the case), or that Harris, defendant and Avery
committed the crimes and Harris and defendant shared the proceeds (as Avery
testified). But defendant‟s possession of the Crumbs‟ rings when he was arrested
provided essentially the same corroboration as the remaining jewelry — except
that it is stronger evidence of his connection to the crimes. We conclude that in
light of Avery‟s testimony and the other corroborating evidence presented at trial
(especially defendant‟s own possession of the Crumbs‟ rings), any error in
denying the suppression motion was harmless beyond a reasonable doubt under
Chapman v. California (1967) 386 U.S. 18.

D. Assertedly Inadequate Notice of the Murder Charges and Lack of
Trial Court Jurisdiction
Defendant was charged with murdering the Crumbs willfully and
unlawfully and with malice aforethought in violation of section 187. He was not
specifically charged with first degree murder in violation of section 189 — that is,
murder committed in the course of committing an enumerated felony. Defendant
raises several claims related to the failure to separately charge him with felony
murder pursuant to section 189, rather than only malice murder under section 187.
We have previously rejected claims identical to defendant‟s, and he presents no
reason for us to reconsider those decisions. (See People v. Morgan (2007) 42
Cal.4th 593, 616-617 [stating “a defendant may be convicted of first degree
murder even though the indictment or information charged only murder with
malice in violation of section 187” and rejecting claims that trial court lacked
jurisdiction and improperly instructed the jury on first degree murder theories, and
that defendant received inadequate notice of prosecution‟s case theory.]; People v.
Hughes (2002) 27 Cal.4th 287, 369-370 (Hughes) [rejecting claim that People v.
Dillon (1983) 34 Cal.3d 441 implicitly overruled People v. Witt (1915) 170 Cal.

27
104, which held that first degree murder and felony murder are not separate
crimes].)

E. Asserted Trial Court Error in Failing to Limit Jury Instruction
Concerning Defendant’s Possession of Stolen Items
Because defendant was found in possession of the victims‟ jewelry when he
was arrested in Colorado, the trial court gave the jury the following instruction
based on CALJIC No. 2.15: “If you find that the defendant was in conscious
possession of recently stolen property, the fact of such possession is not by itself
sufficient to permit an inference that the defendant is guilty of the crimes charged.
Before guilt may be inferred, there must be corroborating evidence tending to prove
defendant‟s guilt. However, this corroborating evidence need only be slight and need
not by itself be sufficient to warrant an inference of guilt. [¶] As corroboration, you
may consider the attributes of possession, time, place, and manner, that the defendant
had an opportunity to commit the crime charged, the defendant‟s conduct, and any
other evidence which tends to connect the defendant with the crimes charged.”
Defendant contends giving this instruction constituted error because the trial
court‟s references to the “crimes charged” included the murder charges, and,
accordingly, the scope of the instruction was not limited to the “theft-related” charges.
We assume defendant‟s failure to object to this instruction at trial did not forfeit his
appellate claim. (See People v. Kelly (2007) 42 Cal.4th 763, 791 [a claim that an
instruction is not “correct in law” may be raised on appeal despite the failure to object
below].) We held in People v. Prieto (2003) 30 Cal.4th 226, 248-249 (Prieto) that
giving a nearly identical instruction in similar circumstances constituted error, and we
decline the Attorney General‟s invitation to reconsider that decision. (See also
People v. Gamache (2010) 48 Cal.4th 347, 375 (Gamache); People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 101 (Coffman).) As we did in Prieto, we conclude the
error was harmless under the applicable standard. As we explain, contrary to

28
defendant‟s arguments that the error is one of federal constitutional magnitude, we
conclude the error is one of state law only, subject to the miscarriage of justice test
under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) — whether defendant
has established there exists a reasonable probability he would have obtained a more
favorable result if the error had not occurred. (Gamache, supra, 48 Cal.4th at p. 376.)
Initially, we note that the majority of the instruction at issue is an entirely
accurate statement of the law, even as related to charges of murder or other nontheft
offenses. We have long held that possession of recently stolen property by itself is
not sufficient to support a finding of guilt of any offense — including theft-related
offenses — and, accordingly, there must be other corroborating evidence of the
defendant‟s guilt. (People v. Boxer (1902) 137 Cal. 562, 564.) It is also accurate to
inform the jury that the corroborating evidence need not be sufficient to prove guilt by
itself (since it is combined with any additional inference of guilt the jury draws from
the defendant‟s possession of the fruits of the crime). Also, the factors listed in the
instruction may serve as corroboration of guilt if the jury so finds. (See Gamache,
supra, 48 Cal.4th at p. 375 [“CALJIC No. 2.15 is an instruction generally favorable to
defendants; its purpose is to emphasize that possession of stolen property, alone, is
insufficient to sustain a conviction for a theft-related crime.”].) The difficulty in
using this instruction in the context of nontheft offenses is the provision that the
corroboration of the defendant‟s guilt “need only be slight.” (CALJIC No. 2.15.) The
error we recognized in Prieto is not including a nontheft crime in the instruction, but
rather including the slight corroboration portion of the instruction when a nontheft
offense is involved.
We have not held, however, that this error (instructing the jury it could infer
defendant‟s guilt of murder based on his possessing recently stolen property with
other slight corroboration of guilt) is of federal constitutional magnitude, and we
reject defendant‟s three arguments to the contrary. First, informing the jury that it

29
may infer defendant‟s guilt of murder in these circumstances did not allow it to
convict defendant based on a “fundamentally incorrect theory of culpability.” The
instruction in no way altered the trial court‟s proper instructions concerning the
elements of murder that the prosecution was required to prove beyond a reasonable
doubt. The jury was instructed it could draw merely “an inference of guilt” from the
fact of possession with slight corroboration, which any rational juror would
understand meant he or she could consider this inference in deciding whether the
prosecution has established the elements of murder (and the other offenses) elsewhere
defined in the trial court‟s instructions. The instruction purported to explain to the
jury its proper consideration of a particular item of circumstantial evidence in
reaching a verdict on the charges; it did not alter the defining elements of those
charges.
In addition, the instruction, although erroneous in applying the slight
corroboration rule to the murder charge, did not create an improper permissive
inference under the federal Constitution. The federal due process clause “prohibits
the State from using evidentiary presumptions in a jury charge that have the effect of
relieving the State of its burden of persuasion beyond a reasonable doubt of every
essential element of a crime.” (Francis v. Franklin (1985) 471 U.S. 307, 313.)
Because permissive inferences, as opposed to mandatory inferences, do not
require that the jury reach a certain finding based on a predicate fact, the
prosecution‟s burden of persuasion is improperly diminished only if the
permissive inference is irrational. (Yates v. Evatt (1991) 500 U.S. 391, 402, fn. 7
[“A permissive presumption merely allows an inference to be drawn and is
constitutional so long as the inference would not be irrational”].)
Although we concluded in Prieto that the connection between a defendant‟s
guilt of nontheft offenses and his or her possession of property stolen in the crime
is not sufficiently strong to warrant application of the slight corroboration rule,

30
this does not mean that drawing a connection between possession and guilt is
irrational. Indeed, the United States Supreme Court has acknowledged explicitly
the logical connection between possession of the fruits of a crime and the
possessor‟s guilt of that crime, even when the crime at issue is a nontheft offense.
In Wilson v. United States (1896) 162 U.S. 613, 619-620, the high court stated:
“Possession of the fruits of crime, recently after its commission, justifies the
inference that the possession is guilty possession, and, though only prima facie
evidence of guilt, may be of controlling weight, unless explained by the
circumstances or accounted for in some way consistent with innocence.
[Citation.] [A prior case] held that, on an indictment for arson, proof that property
was in the house at the time it was burned, and was soon afterwards found in the
possession of the prisoner, raises a probable presumption that he was present and
concerned in the offence; and [another case held] that there is a like presumption
in the case of murder accompanied by robbery. Proof that defendant had in his
possession, soon after, articles apparently taken from the deceased at the time of
his death is always admissible, and the fact, with its legitimate inference, is to be
considered by the jury along with the other facts in the case in arriving at their
verdict.” (See also State v. Joyner (N.C. 1980) 269 S.E.2d 125, 132 [defendant‟s
recent possession of stolen property is circumstance tending to show defendant
was present in the victim‟s apartment at the time the rape occurred, and a
circumstance the jury could consider on question of defendant‟s guilt of larceny
and rape]; People v. Peete (1921) 54 Cal.App. 333, 346 [defendant‟s possession,
shortly after a homicidal death, of articles known to have belonged to decedent,
under circumstances that would justify inference of larceny, is sufficient to
establish defendant‟s guilt, especially when coupled with defendant‟s false
statements as to the whereabouts of missing person (decedent)].)

31
 We cannot say, therefore, that it would have been irrational for the jury
here to draw an inference of defendant‟s guilt of the Crumb murders from his
possessing their property soon after the murders when there was other slight
corroboration of guilt, especially when it is likely the same person or persons who
killed the victims also took their belongings. (Cf. People v. Najera (2008) 43
Cal.4th 1132, 1138 [finding evidence of possession of recently stolen property is
not alone sufficient to prove guilt “does not derive from an extrinsic legal rule but,
rather, is apparent from the general rule governing the jury‟s consideration of
circumstantial evidence”]; People v. Yeoman (2003) 31 Cal.4th 93, 131 [ jury may
consider evidence that is not alone sufficient to convict].)
As we concluded in Prieto, the instruction‟s reference to slight
corroboration did not unconstitutionally lower the prosecution‟s burden of proving
each element of the crimes beyond a reasonable doubt: the instruction “did not
directly or indirectly address the burden of proof, and nothing in the instruction
absolved the prosecution of its burden of establishing guilt beyond a reasonable
doubt.” (Prieto, supra, 30 Cal.4th at p. 248.) Other instructions also properly
informed the jury of its duty to weigh the evidence, what evidence it may consider,
how to weigh that evidence, and the burden of proof. We decline defendant‟s
invitation to reconsider this conclusion. (See ibid., see also Gamache, supra, 48
Cal.4th at p. 376.)
We apply the Watson standard in assessing the harmfulness of the
instructional error, as we have done in Prieto, Coffman and Gamache. The key
evidence in this case was Terry Avery‟s testimony regarding the crimes; if the jury
believed her account, the evidence of defendant‟s guilt was overwhelming and the
erroneous instruction could have had no effect on the jury‟s decision.15 In light of

15 It is possible, of course, that the jury could have considered defendant‟s
possession of the stolen goods as corroboration of Avery‟s testimony, as was

32
the jury‟s verdicts, including the true findings on the allegations that defendant
personally used a firearm during the crimes (of which there was no evidence other
than Avery‟s testimony) and the “panoply of other instructions that guided the
jury‟s consideration of the evidence” (Coffman, supra, 34 Cal.4th at p. 101), we
conclude the instructional error was harmless. (Watson, supra, 46 Cal.2d at p.
836.)

F. Asserted Trial Court Error in Instructing the Jury Not to Consider
the Prosecution of Other Person
The trial court gave a modified version of CALJIC No. 2.11.5 as follows:
“There‟s been evidence in this case indicating that a person other than defendant
was or may have been involved in the crime for which the defendant is on trial.
[¶] There may be reasons why that person is not here on trial. Therefore, do not
discuss or give any consideration as to why the other person is not being
prosecuted in this trial or whether Lee Harris has been or will be prosecuted. Your
sole duty is to decide whether the People have proved the guilt of the defendant on
trial.” Defendant contends this instruction was erroneous because it told the jury
to ignore evidence concerning Terry Avery‟s possible motivation to implicate
defendant in the crimes — that she might have framed defendant for the crimes in
order to shift blame from herself and to receive immunity from prosecution.
Initially, we note that defendant forfeited his claim when he failed to object
to this instruction at trial. (People v. Williams (2010) 49 Cal.4th 405, 457 [failure
to request modification of CALJIC No. 2.11.5 where it properly applied to another
witness forfeits appellate claim of error].) In any event, for the same reasons

required by the trial court‟s instructions. (See CALJIC No. 3.11 [testimony of an
accomplice must be corroborated by other evidence connecting the defendant to
the offense].) This use of the evidence could not have been affected by the
erroneous instruction at issue here.

33
stated in Williams, we conclude there was no error. “ „[T]he giving of CALJIC
No. 2.11.5 is not error when it is given together with other instructions that assist
the jury in assessing the credibility of witnesses. [Citation.] That occurred here,
where the trial court instructed the jury it could consider any evidence of witness
credibility, including the existence or nonexistence of a bias, interest, or other
motive (CALJIC No. 2.20), and to consider the instructions as a whole (CALJIC
No. 1.01).‟ ” (Williams, supra, at pp. 457-458.) We also observe that here, the
likelihood the jury misinterpreted the instruction as applying to Avery is
diminished because only Lee Harris was specifically mentioned, and all the other
references were to a singular “person”; i.e., the most likely interpretation of the
instruction is that it applied only to Harris.16

G. Asserted Trial Court Error in Jury Instructions Concerning Direct
and Circumstantial Evidence
Defendant contends the trial court erred in instructing the jury with
CALJIC No. 2.01 — which is a cautionary instruction concerning the jury‟s
consideration of circumstantial evidence17 — without modifying the instruction to

16 Had the trial court replaced in the instruction the first generic “a person
other than defendant” with “Lee Harris,” rather than the subsequent “he or she”
found in the pattern instruction, there would have been no possibility of the jury‟s
having applied the instruction to its consideration of Avery‟s testimony.
17 CALJIC No. 2.01 provided that “a finding of guilt as to any crime may not
be based on circumstantial evidence unless the proved circumstances are not only
(1) consistent with the theory that the defendant is guilty of the crime, but (2)
cannot be reconciled with any other rational conclusion. [¶] Further, each fact
which is essential to complete a set of circumstances necessary to establish the
defendant‟s guilt must be proved beyond a reasonable doubt. In other words,
before an inference essential to establish guilt may be found to have been proved
beyond a reasonable doubt, each fact or circumstance on which the inference
necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the
circumstantial evidence as to any particular count permits two reasonable
interpretations, one of which points to the defendant‟s guilt and the other to his
innocence, you must adopt that interpretation that points to the defendant‟s

34
inform the jury to apply those same cautionary principles to its consideration of
direct evidence. Defendant forfeited his claim because he did not object to the
instruction despite many opportunities to do so. (People v. Catlin (2001) 26
Cal.4th 81, 149.) In any event, we recently rejected the identical claim, and
discern no reason to revisit our conclusion. (People v. Solomon (2010) 49 Cal.4th
792, 826-827.)

H. Assertedly Erroneous Admission of Penalty Phase Aggravating
Evidence
Defendant raises several challenges to the admission of penalty phase
evidence concerning his unadjudicated criminal activity during incarceration. He
first challenges “as a general matter” the constitutionality of the admission of
unadjudicated criminal activity. Assuming this perfunctory claim is properly
raised under People v. Schmeck (2005) 37 Cal.4th 240, 303, we have consistently
held that the admission of unadjudicated criminal activity as aggravating evidence
at the penalty phase is constitutional. (See, e.g., People v. Valencia (2008) 43
Cal.4th 268, 311 (Valencia); People v. Avena (1996) 13 Cal.4th 394, 428-429.)
Defendant next challenges the admission of several other crime incidents as
improper under the state and federal Constitutions and state statutes because the
evidence allegedly was “misleading, unreliable and inflammatory,” and was
insufficient as a matter of law.18 He did not object during the trial to the evidence

innocence, and reject that interpretation that points to his guilt. [¶] If, on the other
hand, one interpretation of this evidence appears to you to be reasonable and the
other interpretation to be unreasonable, you must accept the reasonable
interpretation and reject the unreasonable.”
18 We note that the trial court did not instruct the jury with the elements of the
crimes implicated by defendant‟s conduct. Defendant did not request the
instructions, and the trial court had no duty to so instruct on its own motion.
(People v. Lewis (2001) 25 Cal.4th 610, 668.)

35
as being misleading, unreliable and inflammatory, and therefore has forfeited that
aspect of his claim. (People v. Partida (2005) 37 Cal.4th 428, 434-435.) In any
event, no reversible error occurred.
Both former and present section 190.3, factor (b) (factor (b)) provide that in
making the penalty determination, the trier of fact is to consider, if relevant, “ „The
presence or absence of criminal activity by the defendant which involved the use
or attempted use of force or violence or the expressed or implied threat to use
force or violence.‟ ” (People v. Phillips (1985) 41 Cal.3d 29, 70 (plur. opn.).) As
defendant points out, evidence admitted under this provision must establish that
the conduct was prohibited by a criminal statute and satisfied the essential
elements of the crime. (Id. at p. 72; People v. Boyd (1985) 38 Cal.3d 762, 778.)
The prosecution bears the burden of proving the factor (b) other crimes beyond a
reasonable doubt. (Boyd, supra, 38 Cal.3d at p. 778.)
Defendant contends the evidence regarding the incidents in which he fought
with other inmates at San Quentin prison was insufficient to establish that he
engaged in the “willful and unlawful use of force or violence upon the person of
another”; that is, that his acts constituted batteries in violation of section 242, or
“an unlawful attempt, coupled with a present ability, to commit a violent injury on
the person of another,” that is, assaults in violation of section 240. He appears to
argue that the evidence did not prove his actions were “unlawful” because he may
have been provoked, acting in self-defense, or engaging in “horseplay” or
mutually agreed upon combat with his foes. The evidence, however, did not raise
any legal justification for defendant‟s actions, and, therefore the prosecution was
not required to introduce evidence negating any possible justification for the
activities. (People v. Lucky (1988) 45 Cal.3d 259, 291.) In addition, “[v]oluntary
mutual combat outside the rules of sport is a breach of the peace, mutual consent is
no justification, and both participants are guilty of criminal assault. (See 1 Witkin,

36
Cal. Crimes (1963) § 171, p. 163.) Thus, where the prosecution‟s evidence shows
a jailhouse scuffle, the scene as witnessed does not suggest defendant may have
been acting in self-defense, and defendant presents no evidence in mitigation, a
finding of criminal assault is justified.” (Lucky, supra, at p. 291.) The evidence
concerning defendant‟s fights with other inmates was therefore properly admitted
and sufficient to support the jury‟s consideration of those incidents as aggravating
factors.
Defendant also contends the incident in which he threw his food tray in San
Quentin was not criminal, because he “threw his food tray at his cell bars and
some food hit” the correctional officer who was serving the food. Defendant‟s
characterization of the evidence is inaccurate. The officer testified that defendant
threw the tray at her, and that food “splattered all over [her].” This was sufficient
evidence for the jury to conclude that defendant had committed an assault or a
battery, and, therefore, the jury could consider this as aggravating evidence under
factor (b). (People v. Lewis (2006) 39 Cal.4th 970, 1053 [jury could infer from act
of throwing milk carton and hot coffee at a prison guard that the defendant had
“committed an unlawful and physically threatening act, i.e., an assault”]; People v.
Pinholster (1992) 1 Cal.4th 865, 961 [“throwing a cup of urine in a person‟s face
is a battery, since „[a]ny harmful or offensive touching constitutes an unlawful use
of force or violence‟ and thus a battery under section 243”].)
Defendant also contends the trial court erred in admitting evidence
concerning the fact that he possessed two shanks in jail. He asserts that the fact
that a shank was found on top of the conduit just above and outside the bars of his
cell was insufficient to allow the jury to consider it as aggravating evidence
because there was no proof — only, “bald speculation and conjecture” — that
defendant was the one who put the item there. The deputy testified, however, that
it would be difficult for anyone outside of the cell to reach the conduit, that anyone

37
attempting to do so would be in plain view of the cameras monitoring the tier, that
a person inside the cell could reach the shank with only his fingers being visible,
and that the cell areas are searched before a new inmate is placed in a cell. The
evidence therefore was sufficient for the jury to find that defendant possessed the
shank.
In addition, defendant asserts that an inmate‟s mere possession of a shank
when in custody, which violates section 4502, subdivision (a),19 does not involve
violence or an actual or implied threat of force or violence, as factor (b) requires.
He is mistaken. (People v. Martinez (2003) 31 Cal.4th 673, 697 [“mere
possession of a potentially dangerous weapon in custody involves an implied
threat of violence”]; People v. Harris (1981) 28 Cal.3d 935, 963 [possession of a
wire garrote and a prison-made knife while in jail “clearly involved an implied
threat to use force or violence”].) Defendant‟s reliance on People v. Cox (2003)
30 Cal.4th 916, 973, which held that the trial court erred when it considered the
defendant‟s possession of firearms under factor (b), is misplaced because Cox did
not involve an inmate‟s illegal possession of weapons while in custody. (See Cox
at p. 955 [firearms in question were found during a search of the defendant‟s car].)
Defendant next claims the trial court erred when it admitted testimony
concerning defendant‟s possession of a plastic baggie containing a liquid that the
deputy testified smelled like urine. He argues his possession of a baggie of urine
was not a crime, and therefore was not “criminal activity” as required under
Phillips and factor (b). The Attorney General counters that there was no
reasonable explanation for defendant‟s possession of the baggie other than he
intended to use it as weapon in committing a battery. The Attorney General does

19 Section 4502, subdivision (a), in relevant part prohibits persons confined in
a penal institution from possessing “any dirk or dagger or sharp instrument.”

38
not, however, point to a Penal Code section that specifically prohibits possession
of a baggie of urine in the manner that section 4502 prohibits an inmate‟s
possession of specific weapons. Possession of an item that is not otherwise
prohibited might be considered criminal when the person in possession has the
intent to commit a battery and has the present ability to do so, that is, when he or
she has committed an assault under section 240. To the extent the Attorney
General‟s argument implies that defendant‟s possession of the baggie of urine
constituted an attempt to commit an assault, no such crime exists. (In re James M.
(1973) 9 Cal.3d 517, 521-522.) Assuming for argument purposes that the
evidence of defendant‟s possession of the baggie of urine was insufficient to prove
beyond a reasonable doubt that he had the present ability to commit a battery, and
was erroneously admitted because it was not “criminal activity” under factor (b),
we conclude any error was harmless beyond a reasonable doubt. The jury heard
evidence of defendant‟s participation in three brutal murders, his conviction for
the armed robbery of a jewelry store, his escape from custody by overpowering a
deputy, taking his firearm and committing a carjacking with the weapon, and his
fighting and possessing other dangerous weapons while in custody. We have no
doubt that the jury would have reached the same verdict had the evidence of his
possession of the baggie of urine not been admitted at trial.
Defendant also challenges the admission of evidence regarding his
convictions in Colorado for robbery and escape from custody, and in Kansas for
murder, arguing this evidence did not come within the terms of the applicable
1977 death penalty statute.20 He claims that statute, which lacked a provision
similar to the present day section 190.3, factor (c) regarding the admission of a

20 Defendant here challenges specifically the admission of the fact of his
convictions, not other evidence regarding his having committed these offenses.

39
defendant‟s prior felony convictions,21 did not permit the admission of the fact of
a conviction as aggravating evidence. He also claims that the convictions at issue
were improperly admitted because they occurred after the crimes against the
Crumbs. Defendant, however, forfeited this claim by failing to object to the
evidence at trial. (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428,
434-435.) In any event, there was no error because the convictions were properly
admitted under factor (b) of the 1977 law as evidence of defendant‟s criminal
activity that “involved the use or attempted use of force or violence or the
expressed or implied threat to use force or violence.” (Former § 190.3, factor (b).)
As former Chief Justice George stated in his concurring opinion in People v. Ray,
the language of section 190.3 in the 1977 death penalty law “made it clear that the
prosecution could present evidence of criminal activity by the defendant involving
the use or threat of force or violence even if that activity had not resulted in a
conviction. At the same time, the Legislature implicitly confirmed that when the
defendant had been convicted of a crime involving the use or threat of force or
violence, the prosecution, of course, could rely upon that conviction to establish
„the presence . . . of criminal activity‟ for purposes of section 190.3, factor (b).”
(People v. Ray (1996) 13 Cal.4th 313, 367 (Ray) (conc. opn. of George, C.J.,
joined by Baxter, Werdegar, Lucas and Arabian, JJ.).) Interpreting the statute to
prohibit the introduction of evidence of convictions of violent offenses “would fly
in the face of past practice and would be quite impractical, compelling the
prosecution to relitigate fully — through the testimony of victims and witnesses
and the presentation of physical and documentary evidence — each violent crime
of which the defendant already had been convicted, and, at the same time,

21 Section 190.3, factor (c) provides: “In determining the penalty, the trier of
fact shall take into account any of the following factors if relevant: [¶]. . . [¶] (c)
The presence or absence of any prior felony conviction.”

40
prohibiting the prosecution from bringing to the jury‟s attention at the penalty
phase other violent criminal activity of the defendant that had resulted in a
conviction, whenever the physical evidence or witnesses presented in the earlier
proceedings no longer were available.” (Id. at pp. 367-368.) Accordingly,
defendant‟s convictions for robbery, escape and murder were properly admitted
under the then existing version of factor (b). In addition, because the factor (b)
evidence was admissible to prove defendant‟s violent propensities, the fact that the
convictions occurred after defendant participated in murdering the Crumbs was of
no moment. (People v. Hovey (1988) 44 Cal.3d 543, 577-579; People v. Balderas
(1985) 41 Cal.3d 144, 202.)
Defendant also claims the trial court‟s instruction to the jury concerning the
factor (b) evidence improperly removed from its consideration whether his acts
constituted criminal activity, i.e., violated a criminal statute. To the extent that we
may consider this claim under section 1259 despite defendant‟s failure to raise it
below (see § 1259 [an “appellate court may . . . review any instruction given, . . .
even though no objection was made thereto in the lower court, if the substantial
rights of the defendant were affected thereby”]), we recently rejected the identical
claim in People v. Harris (2008) 43 Cal.4th 1269, 1311-1312, and see no reason to
reconsider that decision.
Defendant further contends the trial court erred by not instructing the jury
on its own motion that it must find the criminal activity admitted as aggravating
evidence under factor (b) involved force or violence. To the contrary, this
preliminary finding was a legal decision for the trial court, and the absence of an
instruction did not violate defendant‟s statutory or constitutional rights. (People v.
Butler (2009) 46 Cal.4th 847, 872.)

41
 I. Assertedly Erroneous Penalty Phase Instruction Concerning Jury
Unanimity
Defendant contends the trial court erred when it instructed the jury that it
was not required to unanimously find the factor (b) other-crimes evidence proved
beyond a reasonable doubt, because the court failed to also instruct the jury that it
need not be unanimous in finding proof of any mitigating factors. Defendant
forfeited the claim, however, because he failed to raise it at trial. (People v.
Hudson (2006) 38 Cal.4th 1002, 1011-1012 [“ „Generally, a party may not
complain on appeal that an instruction correct in law and responsive to the
evidence was too general or incomplete unless the party has requested appropriate
clarifying or amplifying language.‟ ”].) Even if we review the claim despite
defendant‟s failure to preserve the issue, it is without merit.
“When we review challenges to a jury instruction as being incorrect or
incomplete, we evaluate the instructions given as a whole, not in isolation.
[Citation.] „For ambiguous instructions, the test is whether there is a reasonable
likelihood that the jury misunderstood and misapplied the instruction.‟ ” (People
v. Rundle (2008) 43 Cal.4th 76, 149.) There is no right to parity of jury
instructions, as defendant appears to imply in his arguments; both parties simply
have the right to instructions that properly explain the law. The non-unanimity
instruction the trial court gave helped to avoid possible confusion regarding the
sentencing factor that had a burden of proof, by telling the jury that, unlike at the
guilt phase and despite the same beyond a reasonable doubt standard, unanimity
was not required. (See also People v. Jennings (1988) 46 Cal.3d 963, 988 [trial
court did not err by instructing the jury that unanimity was not required for factor
(b) evidence].) That we concluded the trial court‟s refusal to give a similar
instruction regarding mitigating evidence was not error in People v. Breaux (1991)
1 Cal.4th 281, 314-315, does not mean the prosecution has unconstitutionally

42
received preferential treatment. Moreover, in the present case there is no
reasonable likelihood the jury misunderstood the court‟s instruction to mean that
the jury was required to be unanimous regarding mitigating factors. Therefore, the
absence of a non-unanimity instruction regarding mitigating evidence did not
undermine defendant‟s constitutional rights.

J. Challenges to CALJIC No. 8.88
Defendant raises several familiar challenges to CALJIC No. 8.88, by which
the trial court instructed the jury on the process for reaching its penalty decision.
Defendant contends the instruction: (1) was vague and failed to properly describe
the factors weighing process; (2) contradicted the statutory language regarding the
relative weight of aggravating and mitigating factors that would justify a death
verdict; (3) improperly told the jury that a single mitigating factor could not justify
a life without the possibility of parole sentence; (4) failed to adequately describe
the scope of mitigation; and (5) misled the jury regarding the meaning of a
sentence of life without the possibility of parole. These alleged shortcomings, he
asserts, violated his federal and state constitutional rights. Despite defendant‟s
failure to object to the instruction at trial, we nonetheless may address the merits
of his contentions under section 1259 to the extent he alleges his substantial rights
were affected. As defendant acknowledges, however, we have previously rejected
these claims. Although defendant asks us to revisit our prior decisions, he
presents no compelling reason to do so, and we therefore reject his claims for the
reasons stated in those decisions. (See, e.g., People v. Page (2008) 44 Cal.4th 1,
55-58; Valencia, supra, 43 Cal.4th at pp. 308-310; Hughes, supra, 27 Cal.4th at p.
405; People v. Duncan (1991) 53 Cal.3d 955, 978; see also People v. Barnett
(1998) 17 Cal.4th 1044, 1176-1177 [“We have also squarely held that the CALJIC

43
instructions are adequate to inform the jurors of their sentencing responsibilities in
compliance with federal and state constitutional standards.”].)

K. Accomplices’ Case Dispositions
In the course of the trial, the jury learned that Avery had been granted
immunity and would not be prosecuted for her involvement in the Crumb murders.
In the same vein, defendant sought to introduce evidence that Harris had been
convicted and sentenced to life without the possibility of parole for the Crumb
murders, but the trial court excluded that evidence.22 The trial court also denied
defendant‟s request for a special instruction informing the jury it could consider
“the fact that the defendant‟s accomplice received a more [lenient] sentence as a
mitigating factor.” Defendant contends the trial court‟s rulings were erroneous
under state law and violated his rights under the state and federal Constitutions to
present mitigating evidence. We are not persuaded.
We have consistently held that evidence concerning coparticipants‟
sentences is properly excluded from the penalty phase of a capital trial because
such evidence is irrelevant. (People v. Brown (2003) 31 Cal.4th 518, 562-563;
People v. McDermott (2002) 28 Cal.4th 946, 1004-1005; People v. Beardslee
(1991) 53 Cal.3d 68, 111-112; People v. Johnson (1989) 47 Cal.3d 1194, 1249.)
Although defendant cites statutes of other jurisdictions providing for the jury‟s
consideration of such evidence in mitigation, such as, for example, section 3592,

22 Harris actually had been sentenced to death after his first trial, but we
reversed that judgment due to a violation of Harris‟s right to have a jury that
represented a fair cross-section of the community. (People v. Harris (1984) 36
Cal.3d 36, 59.) Harris was retried, convicted and sentenced to life without the
possibility of parole, but that judgment also was reversed, due to a violation of
Harris‟s right to testify in his defense. (People v. Harris (1987) 191 Cal.App.3d
819, 826.) The prosecution was barred from seeking the death penalty in the third
trial. (People v. Superior Court (Harris) (1990) 217 Cal.App.3d 1332, 1341.)

44
subdivision (a)(4) of Title 18 of the United States Code,23 decades ago we
acknowledged that the Florida courts similarly had adopted a contrary view, but
we found unpersuasive the reasoning supporting that position. (People v.
Belmontes (1988) 45 Cal.3d 744, 811-812.) As we stated in People v. Dyer (1988)
45 Cal.3d 26, 70, “the fact that a different jury under different evidence, found that
a different defendant should not be put to death is no more relevant than a finding
that such a defendant should be sentenced to death. Such evidence provides
nothing more than incomplete, extraneous, and confusing information to a jury,
which is then left to speculate: „Why did that jury do that? What was different in
that case? What did that jury know that we do not know?‟ [Fn. omitted.]” Any
attempt to answer these questions is further stymied by the normative nature of a
jury‟s penalty decision under California law. (See People v. Stitely (2005) 35
Cal.4th 514, 571-572 (Stitely).) Accordingly, the exclusion of the irrelevant
evidence of Harris‟s sentence and the refusal to give defendant‟s proposed
instruction, which was incorrect as a matter of law, were not error and did not
violate defendant‟s constitutional rights. (See Brown, supra, at pp. 562-563; Dyer,
supra, at pp. 69-71.)
We further point out that defendant‟s proposed instruction would not have
instructed the jury on its ability to consider the relative culpability of the
participants in the Crumbs‟ murders, as defendant appears to imply by his citations
to People v. Malone (1988) 47 Cal.3d 1, 58, and Green v. Georgia (1979) 442
U.S. 95, 97. The trial court did, in fact, instruct the jury, per the standard

23 This statute sets forth the mitigating and aggravating factors to be
considered in the penalty phase of a federal capital trial. Subdivision (a) provides,
in relevant part, “In determining whether a sentence of death is to be imposed on a
defendant, the finder of fact shall consider any mitigating factor, including the
following: [¶]. . . [¶] Another defendant or defendants, equally culpable in the
crime, will not be punished by death.” (18 U.S.C. § 3592, subd. (a)(4).)

45
instruction, that the jury was permitted to consider “whether or not defendant was
an accomplice to the offense and his participation in the commission of the offense
was relatively minor.”
Defendant‟s attempt on appeal to reshape the proposed instruction into one
concerning the credibility of Avery‟s testimony is similarly unavailing. The
proposed instruction would have called the jury‟s attention to Avery‟s “more
lenient” sentence (that is, no sentence at all), and directed it to consider that as a
mitigating factor in deciding defendant‟s sentence. Even if defendant at trial
actually intended the proposed instruction to draw the jury‟s attention to the
circumstance that Avery may have lied in order to receive a lenient sentence for
herself, the trial court would have properly denied defendant‟s request because the
language of his instruction would not have conveyed that meaning to the jury.
The trial court also had instructed the jury at the guilt phase to consider a witness‟s
“interest, or other motive” in assessing his or her credibility and, specifically, to
view accomplice testimony incriminating defendant with caution. The court
instructed the jury at the penalty phase that it was to follow the guilt phase
instructions, with an exception not relevant here. We therefore conclude that,
even if defendant‟s instruction could be viewed as addressing Avery‟s credibility,
the trial court was not required to give another instruction on the subject.

L. Asserted Violation of Due Process in Prosecution’s Assertedly
Inconsistent Positions at Defendant’s and Lee Harris’s Trials
Defendant contends the prosecutor violated his constitutional right to due
process by arguing inconsistent theories of culpability during the penalty phases of
Harris‟s and defendant‟s trials. According to defendant, at Harris‟s trial, the
prosecutor essentially argued that Harris was the mastermind of the crimes, and he
compelled defendant and Avery to participate, whereas at defendant‟s trial, the
prosecutor argued defendant was a coequal participant in planning and carrying

46
out the crimes. Notwithstanding defendant‟s arguments to the contrary, we reject
his claim on appeal for the same reasons we stated in People v. Sakarias (2000) 22
Cal.4th 596, 635. “[T]he asserted inconsistencies in prosecutorial theory were not
the subject of any proceeding in the trial court and, hence, neither the
inconsistencies nor any explanations the prosecutor may have been able to offer
appear in the appellate record . . . .” We also deny defendant‟s related motion
requesting that we take judicial notice of the transcripts of Harris‟s trials. (Id. at p.
636 [“to take notice under these circumstances and for the purpose requested
would be to augment improperly the appellate record”].) Defendant must raise his
due process claim in a petition for a writ of habeas corpus, not in his appeal. (Id.
at p. 635.)

M. Absence of Jury Instruction Regarding Requirement of
Corroboration of Terry Avery’s Penalty Phase Testimony
Defendant contends the trial court was required sua sponte to instruct the
jury it was necessary that it find corroboration of Terry Avery‟s testimony
regarding the details of the murder of Sam Norwood in Kansas. (See § 1111;
CALJIC No. 3.11.) Defendant is wrong: because he already had been convicted
of the Kansas crimes, it was not necessary to instruct the jury in this manner.
(People v. Hernandez (2003) 30 Cal.4th 835, 874; People v. Williams (1997) 16
Cal.4th 153, 276; People v. Easley (1988) 46 Cal.3d 712, 734 [giving
corroboration instructions when jury necessarily must find sufficient corroboration
because defendant already was convicted might result in jury focusing undue
significance on fact that accomplice testimony was corroborated, rather than on
penalty issue].)

47
 N. Absence of Jury Instruction Concerning Presumption of Life
Imprisonment
Defendant contends the trial court erred in failing to instruct the jury that
there is a presumption that the appropriate sentence in a capital case is life without
the possibility of parole. Defendant failed to request the instruction and therefore
forfeited the claim. In any event, we have rejected this claim in the past, as
defendant acknowledges, and do so again here. (People v. Jones (2003) 29
Cal.4th 1229, 1267; People v. Arias (1996) 13 Cal.4th 92, 190 [“If a death penalty
law properly limits death eligibility by requiring the finding of at least one
aggravating circumstance beyond murder itself, the state may otherwise structure
the penalty determination as it sees fit, so long as it satisfies the requirement of
individualized sentencing by allowing the jury to consider all relevant mitigating
evidence.”].)

O. Challenges to the Constitutionality of California’s Death Penalty
Statute
Defendant raises a number of constitutional challenges to California‟s death
penalty law that we have repeatedly rejected. He provides no persuasive reason
why we should reexamine our prior decisions.
“California homicide law and the special circumstances listed in section
190.2 adequately narrow the class of murderers eligible for the death penalty . . . .”
(People v. Demetrulias (2006) 39 Cal.4th 1, 43.)
Section 190.3, factor (a), which directs the jury to consider in determining
the penalty the “circumstances of the crime,” is neither impermissibly vague nor
overbroad, and it does not result in an arbitrary and capricious penalty
determination. (People v. Harris (2005) 37 Cal.4th 310, 365 (Harris); Stitely,
supra, 35 Cal.4th at p. 574; People v. Maury (2003) 30 Cal.4th 342, 439 (Maury).)
The use of the defendant‟s age as a potential aggravating factor under section

48
190.3, factor (i), is not unconstitutional due to vagueness. (Ray, supra, 13 Cal.4th
at p. 358.)
The jury may consider unadjudicated offenses under factor (b) as
aggravating factors without violating a defendant‟s rights to trial, confrontation, an
impartial and unanimous jury, due process, or a reliable penalty determination, or
the right not to be placed in double jeopardy. (People v. Sapp (2003) 31 Cal.4th
240, 316 (Sapp); People v. Bolden (2002) 29 Cal.4th 515, 566; People v.
Bacigalupo (1991) 1 Cal.4th 103, 134-135.) Further, there is no constitutional
infirmity in having the same jury that determined defendant‟s guilt also determine
whether he committed other offenses admitted as aggravating evidence at the
penalty phase. (People v. Hawthorne (1992) 4 Cal.4th 43, 77.)
“The statute is not invalid for failing to require (1) written findings or
unanimity as to aggravating factors, (2) proof of all aggravating factors beyond a
reasonable doubt, (3) findings that aggravation outweighs mitigation beyond a
reasonable doubt, or (4) findings that death is the appropriate penalty beyond a
reasonable doubt.” (People v. Snow (2003) 30 Cal.4th 43, 126.) The decisions in
Ring v. Arizona (2002) 536 U.S. 584, Apprendi v. New Jersey (2000) 530 U.S.
466, and Cunningham v. California (2007) 549 U.S. 270 do not affect California‟s
death penalty law. (People v. Romero (2008) 44 Cal.4th 386, 429; People v. Smith
(2003) 30 Cal.4th 581, 642.) “ „Because the determination of penalty is essentially
moral and normative [citation], and therefore different in kind from the
determination of guilt,‟ the federal Constitution does not require the prosecution to
bear the burden of proof or burden of persuasion at the penalty phase.
[Citations.]” (Sapp, supra, 31 Cal.4th at p. 317.)
The use of the terms “extreme,” “substantial,” “reasonably believed,” and
“at the time of the offense” in the statutory list of potential mitigating factors does
not impermissibly restrict the jury‟s consideration of evidence in mitigation or

49
otherwise result in an arbitrary or capricious penalty determination. (Harris,
supra, 37 Cal.4th at p. 365; Sapp, supra, 31 Cal.4th at p. 316; Maury, supra, 30
Cal.4th at p. 439.)
To the extent we may consider under section 1259 defendant‟s challenges
to the penalty phase instructions even though he failed to object to the instructions,
those challenges are without merit. With the exception of prior violent crimes
under former section 190.3, factor (b), the court need not instruct on burden of
proof at the penalty phase. (People v. Box (2000) 23 Cal.4th 1153, 1216; People
v. Bonillas (1989) 48 Cal.3d 757, 789-790; People v. Rodriguez (1986) 42 Cal.3d
730, 777-779.) Nor was the trial court required to designate which sentencing
factors are mitigating and which are aggravating. (People v. Taylor (2001) 26
Cal.4th 1155, 1180.) “The trial court need not omit from the instructions any
mitigating factors that appear not to apply to the defendant‟s case.” (People v.
Alexander (2010) 49 Cal.4th 846, 938.)
Defendant also claims the court erred in failing to conduct intercase
proportionality review when it examined the death verdict. We have consistently
held, however, that there is no requirement that the trial court or this court engage
in intercase proportionality review when examining a death verdict. (See, e.g.,
Sapp, supra, 31 Cal.4th at p. 317.)
Because capital defendants are not similarly situated to noncapital
defendants, the absence in California‟s death penalty law of certain procedural
rights provided to noncapital defendants does not violate equal protection.
(People v. Johnson (1992) 3 Cal.4th 1183, 1242-1243; People v. Allen (1986) 42
Cal.3d 1222, 1286-1287.)
“ „International law does not prohibit a sentence of death rendered in
accordance with state and federal constitutional and statutory requirements.‟
[Citation.] Defendant‟s claim that the death penalty is imposed regularly as a form

50
of punishment in this state „is a variation on the familiar argument that
California‟s death penalty law does not sufficiently narrow the class of death-
eligible defendants to limit that class to the most serious offenders, a contention
we have rejected in numerous decisions.‟ [Citations.]” (People v. Carey (2007)
41 Cal.4th 109, 135).

P. Asserted Cumulative Error
Defendant contends the cumulative effect of the asserted errors he has
raised on appeal requires reversal of his conviction and sentence, even if none of
the errors is prejudicial individually. We reject his claim. In those few instances
in which we have found error or assumed the existence of error, we have
concluded that any error was harmless. In combination, these errors do not
compel the conclusion that defendant was denied a fair trial.
III. CONCLUSION
We affirm the judgment in its entirety.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.
HULL, J.*

_____________________________
* Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.

51
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Moore
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S075726
Date Filed: June 23, 2011
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: James Pierce

__________________________________________________________________________________

Counsel:

Cynthia A. Thomas and Cliff Gardner, under appointments by the Supreme Court, for Defendant and
Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Mary Jo Graves and Dane R. Gillette,
Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey,
Sharlene A. Honnaka, Susan D. Martynec and Daniel C. Chang, Deputy Attorneys General, for Plaintiff
and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Cliff Gardner
1448 San Pablo Avenue
Berkeley, CA 94702
(510) 524-1093

Daniel C. Chang
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2395