People v. Clark

Filed 6/27/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S066940

v. )

)

WILLIAM CLINTON CLARK, )

) Orange County

Defendant and Appellant. ) Super. Ct. No. 94CF0821

____________________________________)

An Orange County jury found defendant William Clinton Clark guilty of

the first degree murders of Kathy Lee (count 1) and Ardell Williams (count 7).

(Pen. Code, §§ 187, 189.)1 The jury found true the five special-circumstance

allegations charged, as follows: that defendant committed the murder of Lee

while engaged in the commission of a burglary (§ 190.2, subd. (a)(17)(G)) and

while in the attempted commission of a robbery (§ 190.2, subd. (a)(17)(A));2 that

the murder of Williams was the murder of a witness for the purpose of preventing

her from testifying in a criminal proceeding (§ 190.2, subd. (a)(10)) and a murder

while lying in wait (§ 190.2, subd. (a)(15)); and a multiple-murder special-

1 All further undesignated statutory references are to the Penal Code.

2 We will refer to the event comprising the burglary, attempted robbery, and

murder at the CompUSA store as the CompUSA felony murder.

1

circumstance allegation (§ 190.2, subd. (a)(3)).3 The jury hung on a penalty

verdict, but a new jury returned a verdict of death at the penalty phase retrial. The

trial court denied defendant‘s motions for a new trial (§ 1181) and modification of

the penalty (§ 190.4, subd. (e)), and it sentenced him to death. This appeal is

automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

We vacate the burglary-murder and robbery-murder special-circumstance

findings, but otherwise affirm the judgment.

INTRODUCTION

The jury convicted defendant and sentenced him to death for two murders.

He was the shooter in neither of them. The first murder was that of Kathy Lee,

who was shot by Nokkuwa Ervin on the evening of October 18, 1991, during an

attempted robbery of a CompUSA store in a Fountain Valley shopping center.4

The second murder was that of defendant‘s former associate Ardell Williams, who

was shot in Gardena during the early morning of March 13, 1994, by either

Antoinette Yancey, who was defendant‘s girlfriend at the time, or by someone

acting at Yancey‘s direction.5 The prosecution‘s theory of defendant‘s accomplice

3 The jury also found defendant guilty of second degree burglary (§ 459),

three counts of attempted second degree robbery (§§ 664 & 211), and conspiracy

to commit murder (§ 182, subd. (a)(1)). The jury found true the enhancement

allegation that a principal was personally armed with a firearm (§ 12022, subd.

(d)). Defendant admitted as true the enhancement allegation that he had served

five prior prison terms (§ 667.5, subd. (b)).

4 Prosecutors separately charged and tried Ervin for the CompUSA shooting.

He received a sentence of life imprisonment without the possibility of parole.

5 Defendant and Yancey were originally charged as codefendants for

Williams‘s murder, but their trials were severed. Yancey was found guilty of first

degree murder but her jury found the personal use of a firearm allegation to be not

true. She received a sentence of life imprisonment without the possibility of

parole.

2

liability for Lee‘s murder was that defendant organized, and was present at, the

CompUSA murder. The prosecution‘s theory of defendant‘s accomplice liability

for Williams‘s murder was that defendant conspired with Yancey to have

Williams killed because Williams had testified to a grand jury about defendant‘s

involvement in the CompUSA murder, and she was going to testify against

defendant at his trial.

Defendant denied involvement in either murder. As to the first murder, the

defense sought to challenge the credibility of the prosecution witnesses, including

Williams. Defendant also presented as an alibi evidence that he was present at a

recording studio in Glendale during the time of the CompUSA murder. As to the

second murder, the defense acknowledged defendant‘s close personal relationship

with Yancey, but it contended there was no evidence he conspired with Yancey to

have Williams murdered.

I. FACTS

A. Guilt Phase

1. The Prosecution’s Case

a. The CompUSA Murder

i. Surveillance of the Store

The prosecution introduced Williams‘s Orange County grand jury

testimony to establish defendant‘s preparations for the attempted robbery at the

CompUSA store.6

At the end of August or in the early part of September 1991, Ardell

Williams accompanied defendant while he surveilled a CompUSA computer store

6 Defendant‘s challenge to the admission of Williams‘s grand jury testimony

is addressed on pages 53 to 57, post.

3

in the Fountain Valley Mall near its 10 p.m. closing time.7 From the vantage point

of a Del Taco restaurant parking lot –– which faced the CompUSA store about 500

feet away –– defendant, his brother, Eric Clark,8 and his cousin, Damian Wilson,

scrutinized the closing operations of the computer store and noted the amount of

time it took the employees to leave. During Williams‘s conversations with

defendant that night, defendant implied several times that he was planning some

sort of crime involving the CompUSA store. After defendant and his companions

finished watching the CompUSA store, they drove to a street near the mall where

defendant checked on a U-Haul truck that he had parked there.

ii. The Night of the Crime

At approximately 10 p.m. on October 18, 1991, after the CompUSA store

had closed for the evening, a man later identified as Ervin approached the three

remaining employees in the store with a gun and eventually handcuffed them in

the men‘s restroom. At about 10:30 p.m., Fountain Valley Police Officer

Raymond Rakitis was on car patrol near the CompUSA store when he heard a

gunshot. From 15 to 20 yards away, he saw a silver BMW back out of the parking

lot and Ervin run from an open loading door in the back of the CompUSA store

toward the BMW. When Ervin reached the BMW, he tried to enter the car

through the driver‘s window and then tried to open the passenger side door. But

7 Williams had previously served as defendant‘s accomplice in stealing from

another computer store. Williams had worked as a cashier at the store, and she

allowed defendant to take computer equipment through her checkout line without

paying. The trial court admitted evidence of defendant‘s involvement in this

earlier crime for the limited purpose of showing the relationship between

defendant and Williams; see pages 59 to 64, post.

8 We will generally refer to Eric Clark as Eric to avoid confusion with

defendant.

4

the BMW did not wait for him, and it drove off, leaving him in the parking lot.

Officer Rakitis exited his police car and subdued Ervin. Officer Rakitis then

noticed a dead woman lying on her back with blood pooling under her head near

the CompUSA loading doors. The police later determined that the woman, Kathy

Lee, had come to pick up her son, who was an employee at the store. The autopsy

showed that she died as a result of a single gunshot wound to the head, fired while

the gun directly touched the skin behind her left ear.

Police recovered a blue-steel .38-caliber revolver with a two-inch barrel,

from the left inside pocket of Ervin‘s jacket. The cylinder of the revolver

contained one expended .38 caliber cartridge casing and some human tissue.

Ballistic testing matched the bullet that killed Lee to the revolver found on Ervin.

At trial, two CompUSA employees identified Ervin as the man who held them at

gunpoint.

iii. Matthew Weaver’s Testimony

Matthew Weaver was present in the CompUSA parking lot that night and

placed defendant at the scene of the crime. Weaver testified under a grant of

transactional immunity. Weaver knew Eric and Wilson, who were fellow

members of the Moorpark College basketball team. They had offered to pay

Weaver $100 to help them move computers to a warehouse from a store they said

belonged to defendant. On the night of the crime, Eric drove Weaver to the mall

parking lot where they waited for the CompUSA store to close. While they were

waiting, Wilson introduced Weaver to his brother ―Bill,‖ who had driven up in a

BMW. Weaver identified defendant in court as the man to whom he had been

introduced.

5

Defendant eventually told Weaver that the group could start moving the

computers, and he drove Weaver over to the store in the BMW.9 As they

approached the store, Weaver saw a woman lying on the ground next to a car.

Suddenly Weaver saw an African-American man, later identified as Ervin, run up

and unsuccessfully attempt to dive through the driver‘s side window of the BMW.

Weaver ducked down toward the dashboard and noticed that two police cars with

flashing lights were approaching the BMW. Defendant made a U-turn and drove

off, leaving Ervin in the parking lot. After driving some distance away from the

mall, defendant stopped at the side of the road and told Weaver and the other

passenger to get out.

iv. Investigation of the U-Haul Truck

On October 22, 1991, four days after the CompUSA murder, police

investigators found a U-Haul truck that had been parked near the store for several

days. They determined that Jeanette Moore had rented the truck on October 3,

1991, using a fraudulent driver‘s license with her picture but with the name ―Dena

Carey.‖10 Moore testified under a grant of transactional immunity. She testified

that, in June or July of 1991, defendant obtained the fraudulent driver‘s license for

her.11 Defendant and Moore had gone to the DMV where defendant knew the

clerk who processed the license. Moore subsequently rented the U-Haul truck at

9 Weaver sat in the front passenger seat, and another man was in the rear

passenger seat. The third man in the BMW was not identified at trial.

10 Carey was an innocent victim of identity theft, who was not involved in any

of defendant‘s activities.

11 For the license, Moore used an address that defendant instructed her to use.

The address was defendant‘s home address at the time.

6

defendant‘s request using the license.12 Eric drove Moore to the U-Haul lot and

drove the truck away after Moore filled out the forms and obtained the key.

Defendant rewarded Moore with $100 the next day. A U-Haul clerk testified that,

on October 9, 1991, which was six days after Moore rented the truck, an African-

American male came to the U-Haul lot in Glendale and extended the contract.13

Moore moved to Yuma, Arizona in 1992 or 1993 and did not see defendant

again. But while living in Arizona in 1993, she received a three-way phone call

from Gary Jackson (an ex-boyfriend through whom she had met defendant) and a

woman identifying herself as ―Nina,‖ who claimed to be defendant‘s wife.14 Nina

told Moore to expect some money via Western Union. In the winter of 1993,

Moore received $100.

In June 1994, while Moore was in custody at the Orange County Jail

pursuant to a commitment under section 1332 to ensure her availability as a

witness at defendant‘s preliminary hearing, she received an anonymous letter

12 Moore also testified about other fraudulent acts in which defendant helped

her engage using the fraudulent license. Defendant provided Moore with credit

cards (also in Carey‘s name), which Moore used to buy expensive items for

defendant at department and electronics stores.

13 The clerk could not positively identify the African-American male at trial.

In an earlier photo line-up with investigators, the clerk had identified photos of

two different individuals who ―could have been‖ the man, one of whom was

Ervin, the gunman at the CompUSA robbery murder.

14 The prosecution‘s theory was that ―Nina‖ was Yancey, defendant‘s

accomplice in the Williams murder. As recounted below, after the murder of

Williams, police searched Yancey‘s apartment and, among other things, recovered

a receipt for a Western Union money order for $100 sent to Yuma, Arizona in

December 1993.

7

urging her not to testify. The letter included a photocopy of a newspaper article

describing a witness who was released from jail after refusing to testify at a trial.15

v. Sale of Defendant’s BMW After the CompUSA Murder

Defendant bought a BMW model 735i on July 31, 1991. On October 24,

1991, six days after the CompUSA murder, he arranged to sell it through the

dealer from whom he had bought it. The dealer suggested that defendant would

get more money selling it retail rather than on auction wholesale, but defendant

told him that he just needed to get rid of it and wanted to sell it wholesale.

b. The Murder of Williams

i. Arrest of Defendant and Williams in Las Vegas and Her

Cooperation with the Authorities

In September 1991, sometime after Ardell Williams had accompanied

defendant during his surveillance of the CompUSA store, she traveled with him to

Las Vegas. On the evening of September 22, the police arrested Williams and

defendant for passing stolen traveler‘s checks at the Mirage Hotel. Defendant

posted bail and was released the next day, but Williams remained in jail. While in

custody, Williams helped the local police and the FBI in their investigation of the

Mirage Hotel incident and other related bad check cases.

Williams subsequently testified to the Orange County grand jury that she

had a conversation with Eric approximately two weeks after her arrest in Las

Vegas, when she had returned to Los Angeles. Eric asked her whether she had

been talking to anyone about ―this Las Vegas thing‖ because someone was

―pointing the finger‖ at defendant, saying that he was ―the top dog in this case.‖

Williams denied talking to the authorities. She asked Eric, ―[W]hatever happened

15 The prosecutor‘s theory was that this letter was from defendant who sought

to dissuade Moore from testifying against him. See pages 69 to 74, post.

8

to the computer store?‖ Eric answered that ―it went down bad.‖ He recounted that

his group of burglars went into the store and handcuffed a cashier and a night

manager to a hand rail in the bathroom. But the mother of one of the employees

came into the store looking for her son and surprised one of the burglars, who shot

her. Eric told Williams not to mention what he said to anyone.16

Seven to ten days after this conversation, defendant called Williams, telling

her that he was going to find her a lawyer in Las Vegas to take care of the bad

check charges pending against her. Williams asked defendant about his BMW,

and defendant stated that he had sold it ―because you never know who could have

seen the two of us sitting eating nachos that one night,‖ and ―he didn‘t want

anybody to suspect anything.‖

After her conversation with Eric, Williams decided to tell the authorities

about the CompUSA murder because her own sister had been the victim of an

unsolved murder many years before. On December 31, 1991, she contacted FBI

Special Agent Todd Holliday, whom she had met following the bad check incident

in Las Vegas. Williams told Holliday about the surveillance of CompUSA and

about her later conversations with defendant. Agent Holliday contacted the

Fountain Valley police and the Orange County District Attorney‘s investigators to

tell them that Williams claimed to have information about the CompUSA murder.

Williams agreed to talk on the phone with Frank Grasso, an inspector with the

Orange County District Attorney‘s Office, on April 1, 1992. In two interviews,

which were tape-recorded and played to the jury, Williams implicated defendant in

the CompUSA murder.

16 We later discuss in greater detail Eric‘s conversation with Williams about

the plan for the robbery. (See pages 112 to 117, post.)

9

ii. Tape Recordings of Defendant’s Phone Calls

In August 1992, Inspector Grasso provided Williams‘s sister, Elizabeth

Fontenot, with a tape recorder so that Fontenot could record phone calls she

received from defendant. The tape of defendant‘s conversations with Fontenot

was played in court to the jurors. During these conversations, defendant expressed

concern that Williams might talk to authorities and try to link him to a murder in

Orange County. Defendant told Fontenot that the authorities knew things that

only Williams knew. He said he was ―shocked‖ that Williams ―rolled over so

quickly.‖ He told Fontenot that if Williams were to testify against him, it would

be ―serious‖ and would ―wipe [him] out.‖ He stated that the best answer that

Williams could tell the authorities about him was ―I don‘t know.‖ He explained,

―[Y]ou‘re her big sister, she don‘t know nothing about me. Whatever she‘s told

them, that‘s it. You follow me? . . . She can ‗I don‘t know‘ ‘em to death.‖

―Anything that she might of [sic] already said, she could come to court and get

complete amnesia.‖

iii. Defendant’s Admissions to a Fellow Inmate

While defendant awaited trial for the CompUSA murder, he was

incarcerated in the Orange County Jail. There, he met fellow inmate Alonzo

Garrett. Unbeknownst to defendant, Garrett was acquainted with Williams

because one of Garrett‘s friends was married to Williams‘s sister. At one point,

defendant showed Garrett what appeared to be a trial transcript and referred to

Williams.17 Garrett stated in a phone call to an acquaintance, which was recorded

and played to the jury, that defendant had said, ― ‗Hey, this is the woman right

17 The prosecution‘s theory was that this was the transcript of Williams‘s

grand jury testimony.

10

here that could put me away.‘ ‖18 Concerned that Williams was involved in a

dangerous situation because she was ―snitching,‖ Garrett phoned Williams, who

admitted that she was the key witness in defendant‘s case, but assured him that

there was nothing to worry about.

Before trial, prison authorities seized from defendant‘s cell an apparently

undelivered letter to Garrett threatening him for talking to the police.19

iv. How Defendant Received the Grand Jury Transcripts

The prosecution‘s theory was that the transcripts that defendant had shown

to Garrett concerning Williams were transcripts of her grand jury testimony. The

prosecution had provided these transcripts through discovery to defendant‘s

attorney, who gave them to defendant. Criminal defense attorney John D. Barnett

testified as an expert witness that a competent defense attorney would have given

a defendant information about Williams‘s interviews with the police and her grand

jury testimony — information that would had been produced in discovery by the

prosecution. Barnett testified that Williams‘s police interviews and grand jury

testimony would be, absent certain exceptions, inadmissible at trial if she was

unavailable as a witness because she had not been subject to cross-examination at

those proceedings.

v. The Flower Delivery at the Home of Williams

On February 10, 1994, an African-American woman who said her name

was ―Carolyn‖ and claimed to be from a local flower delivery shop, delivered

18 In his testimony at trial, Garrett acknowledged that he had made this

statement to the acquaintance, but he also stated that he had lied because he was

trying out a story on the acquaintance to see how she reacted before taking it to the

authorities.

19 For further background on this letter, see pages 69 to 74, post.

11

flowers bearing a card signed ―Secret Admirer‖ to Williams at the Gardena home

where she lived with her mother, Angelita Williams, and her sister, Nena

Williams. Nena thought the delivery girl was suspiciously trying to loiter around

the house after making the delivery, including spending a long time in the

restroom. In court, Nena identified the woman who had called herself ―Carolyn‖

as Yancey. During defendant‘s preliminary hearing, the parties stipulated that

Angelita also identified Yancey as ―Carolyn.‖

On March 9, 1994, Williams phoned Inspector Grasso and told him about

―Carolyn‖ and the unusual flower delivery. Grasso assembled a series of photos

of women associated with defendant, including Yancey, and showed them to

Williams, Nena, and Angelita. All three identified Yancey as the person who

delivered the flowers. The parties stipulated at trial that one of Yancey‘s

fingerprints was found on the box in which the flowers were delivered.

vi. Phone Calls to the Home of Williams and a Purported Job

Interview

After the flower delivery, someone calling herself ―Janet Jackson‖

telephoned Williams. This person had previously spoken by phone several times

to Angelita. ―Janet Jackson‖ asked Williams to come for a job interview at a

company named Continental Receiving on Sunday, March 13, 1994 at 6:30 a.m.20

vii. The Morning of the Murder and the Crime Scene

Williams went to the purported job interview sometime after 6:00 a.m. on

the morning of March 13, 1994. At 8:00 a.m., a neighborhood resident discovered

20 The president of Continental Receiving testified that his company had

never employed anyone named ―Janet Jackson‖ and that it did not operate on

Sunday mornings. To his knowledge, Yancey had never been employed by the

company.

12

Williams‘s body near Williams‘s car in the driveway of Continental Receiving in

Gardena, which was about a two-minute drive from her home. Williams had a

gunshot wound behind her left ear. She was clothed with no evidence of sexual

assault, and had $114 in cash on her person. A .25-caliber bullet casing and two

job application forms were found near her body — one on the trunk of the car, and

the other one on the ground. The application form on the ground was partially

completed. A photograph of patterns in dust on the trunk of the car suggested that

an arm had been resting on the trunk lid near where the partially completed form

had been.

Yancey visited defendant at the Orange County Jail the same morning. Her

visit began at 8:45 a.m. and ended at 9:35 a.m. According to Inspector Grasso, it

would take 37 minutes to drive from Continental Receiving to the Orange County

jail, driving on average at the speed limit of 55 miles per hour.21

viii. Investigation of Williams’s Murder

Five days after Williams‘s murder, police conducted a voice lineup, where

they played tapes of four voices to Angelita and Nena. Both of them identified

Yancey‘s voice as that of the woman who had called herself ―Janet Jackson‖ in her

telephone calls.

On March 17, 1994, the police searched Yancey‘s apartment. They found:

(1) a California driver license with Yancey‘s picture on it and the name ―Keia

Thomas‖; (2) a resume with Thomas‘s name; (3) a Western Union receipt for $100

21 The prosecutor‘s theory was that Yancey went to visit defendant after the

murder of Williams and that, even if Williams was killed only shortly before 8:00

a.m., which was the time her body was discovered, Yancey would still have had

time to commit the murder and get to the jail to meet defendant at 8:45 a.m.

13

sent to ―Jeanette Alexander‖ from ―Nina Howard‖ on December 27, 1993;22 (4) an

income tax return and receipts in defendant‘s name; (5) a phone bill receipt in

Eric‘s name; and (6) numerous love letters from defendant to Yancey where

defendant expressed explicit sexual fantasies. The trial court provided edited

versions of the letters to the jury.23

Yancey‘s phone records for the period of January through March of 1994

listed numerous calls to the home of Williams; to the office of defendant‘s

attorney, Jack Earley; to the office of defense investigator, Alan Clow; and to a

pay phone in Orange County Jail accessible to defendant.

2. Defense Case

a. Williams’s Credibility

To challenge Williams‘s credibility, the defense called Satanand Sharma, a

neuropsychologist who had seen Williams on four occasions through court-

ordered counseling. In his notes from one of the sessions, Dr. Sharma wrote:

―She [Williams] feels that Bill [defendant] was involved in that case [the computer

store attempted robbery and murder] because she was pushed [sic - parked] in

front of a computer store and had conversations with Bill regarding the bust at the

store.‖ Dr. Sharma‘s recollection was that Williams said she was present at the

attempted robbery.

A loss prevention officer at the Disney Store in Torrance where Williams

had worked described how she was fired in February 1994. The Disney Store

22 Moore used the name ―Jeanette Alexander‖ while she lived in Yuma,

Arizona in 1993.

23 The trial court admonished the jury that the letters — discussed in detail on

pages 76 to 78 — were admitted for the limited purpose of ―tending to show the

nature of the relationship between Mr. Clark and Ms. Yancey.‖

14

fired Williams after the officer investigated her for employee theft. Williams

admitted to the officer that she had put extra merchandise into her friends‘ bags

when they made purchases.

b. Alibi Evidence

As an alibi, defendant presented evidence of his whereabouts during the

CompUSA murder on the night of October 18, 1991 through the testimony of

Geoffrey Gilstrap, a musician in a band called Full Swing that defendant was

managing at the time. Defendant had booked time for the band at a Glendale

recording studio and, on the evening of a Friday at the end of October (either

Friday, Oct. 18, or Friday, Oct. 25), Gilstrap was at the studio at about 8:30 p.m.

for a scheduled recording session. Defendant was there, but no recording took

place because the recording engineer did not show up, owing to a pay dispute

concerning the previous session. Gilstrap left the studio after about 15 to 20

minutes, which was between 8:30 and 9:00 p.m. The manager of the recording

studio also testified and brought the studio‘s schedule book, which showed that

defendant had reserved time there for October 12, 13, and 18, 1991. She did not

remember seeing defendant in the studio on October 18, the night of the

CompUSA murder.

B. Penalty Phase Retrial

1. Prosecution Evidence

Defendant‘s first penalty trial resulted in a hung jury.24 At the penalty

phase retrial, the prosecution re-presented the guilt phase evidence from both the

24 The jury was split with seven favoring death and five favoring life without

parole.

15

CompUSA murder and the murder of Williams. The prosecutor did not present

any other evidence in aggravation.

2. Defense Evidence

For his case in mitigation at the penalty phase retrial, defendant mounted a

lingering doubt defense for both murders. As in the guilt phase, he again attacked

the credibility of the main prosecution witnesses and presented alibi evidence for

his whereabouts on the night of the CompUSA felony murder. Defendant also

presented evidence in mitigation based on his family background, his good

character, and his ability to be a positive influence on other inmates. Finally, he

presented evidence that he had brain damage and psychological impairments

because of head injuries he suffered during childhood and young adulthood.

a. Credibility of Moore

The defense presented the testimony of Gary Jackson, Moore‘s former

boyfriend. Moore, as described above, had linked defendant to the CompUSA

murder by testifying that defendant had obtained a fraudulent driver license for her

and then asked her to use it to rent the U-Haul truck that the police later found

parked near the crime scene.

Jackson portrayed Moore in a negative light, describing her as a fellow

drug user and thief whom he had dated for about six months between 1990 and

1991. In May 1991, Jackson and Moore found a wallet that contained department

store credit card receipts in the name of Dena Carey. Moore devised a plan to

obtain a driver license with Carey‘s name so that she could use the department

store receipt numbers to buy merchandise on those accounts. But she needed to

have an address for the driver license, and Jackson refused to let her use that of his

father. In May 1991, Moore met defendant through Jackson. Moore asked

16

defendant if she could use his address for her welfare checks because she did not

have a stable address.

Jackson further testified that a man called ―Ricky,‖ not defendant, asked

Moore to rent the U-Haul truck that was found parked near the CompUSA robbery

scene. Jackson described Ricky as one of his ―dope dealers‖ who was a five foot,

10 inch tall light-complected African-American man with a Jheri curl.25 Ricky

drove a grey BMW.

b. Family Background

Many of defendant‘s family — including defendant‘s father, mother, aunt,

first wife, and two cousins — along with several family friends, testified about

defendant‘s life. Defendant‘s mother and father married at a young age and had a

tumultuous 10-year marriage, during which defendant and his brother Jonathan

were born. Defendant‘s father remarried and had two more children: defendant‘s

half brothers Eric and Jason.

Defendant was described as having a high IQ but failing to perform

academically the way he should have; he had a C average in high school. With a

combination of high Scholastic Aptitude Test scores and his basketball ability he

was admitted to UCLA. But he did not complete a degree there, nor did he

become a starting player on the basketball team. He eventually went to Fresno,

where his father was living, and attended Fresno State University, where he

continued playing basketball. He left Fresno, returned to Los Angeles, and moved

into an apartment building owned by his mother. He was married for five years,

and had two children. During this time, defendant and his brother Jonathan started

25 The defense contended that ―Ricky‘s‖ appearance was closer than

defendant‘s to the person that Officer Rakitis had described in the BMW on the

night of the CompUSA robbery murder.

17

a business venture to design and license animated characters for the 1984 Olympic

games in Los Angeles. Defendant lost approximately $750,000 of investment

money provided by his mother and aunt on this unsuccessful business.

Many of defendant‘s family members described him as lively and positive

in attitude as a young man but, as his first wife testified, he became depressed and

distant after the business failure. She eventually filed for divorce. In 1985, soon

after the divorce, defendant‘s young son from his first marriage died. The deaths

of defendant‘s grandmother and brother-in-law followed in close succession.

Defendant‘s first wife testified that defendant was deeply affected by all these

deaths in the family. By 1987 or 1988, defendant married his second wife, with

whom he had a son and daughter.

Family members described several serious accidents that defendant suffered

in his life. When he was six or seven, he was accidentally hit in the head with a

champagne bottle by his young cousin at a wedding, and, as a result, suffered

convulsions. While playing football at Fresno State, he tripped on a lawn

sprinkler and broke his jaw and leg. Just before his first marriage, he was in a car

accident and remained in a body cast for six months.

c. Inmate Testimony

Three inmates testified about defendant‘s positive influence on them while

they were incarcerated in the Orange County Jail. Two of these inmates also

testified that it was common for inmates to write sexually explicit letters to women

outside of jail.26

26 This was offered to rebut the prosecution theory that defendant‘s letters to

Yancey, which included explicit sexual content, indicated a particularly intense

personal relationship, see pages 76 to 78, post.

18

d. Asserted Brain Damage

Through the testimony of Dr. Joseph Wu, the director of the University of

California, Irvine Brain Imaging Center, defendant presented evidence that he had

brain damage and psychological impairments. Based on a positron emission

tomography (PET) scan of defendant‘s brain done on June 11, 1996, Wu stated

that defendant had abnormalities in his frontal lobes that were consistent with a

closed head injury. Wu gave his opinion that the abnormalities shown in the PET

scan indicated that defendant had ―suffered some kind of serious blow to the head

which caused some kind of severe malfunction of his frontal lobes.‖ What the

PET scan showed was consistent with the fact that, when defendant was six years

old, he had been struck on the head with a champagne bottle. Wu further stated

that people with damage to their frontal lobes, ―in many cases,‖ exhibit personality

changes in which they ―seem to lack the ability to be able to fully understand or

appreciate the significance of their actions‖ and have ―impaired social judgments.‖

Psychiatrist George Woods testified to his clinical assessment that

defendant suffered from a mild case of bipolar affective disorder. Woods

explained that people suffering from this mood disorder experience periods of

elevated mood, are very easily distracted, and lack good insight into their actions.

The diagnosis of this mood disorder was consistent with the frontal lobe damage

shown in defendant‘s PET scans.

II. PRETRIAL ISSUES

A. Order Denying Defendant Telephone Access from Jail

On March 23, 1994, at the initial arraignment of defendant and his then-

codefendant Yancey for the murder of Williams, the trial court granted, over

defense objection, the prosecutor‘s request for an order restricting defendant from

making any telephone calls from jail, including any calls to defense counsel.

About a year later, defense counsel successfully moved the court to modify the

19

restriction to allow defendant to call his defense counsel or defense investigator at

specified hours. Defendant contends the March 23, 1994 restriction prevented him

from communicating with his counsel, investigator, and potential witnesses in the

case, which violated his federal constitutional rights and his rights under state law.

As discussed below, we conclude: (1) the court did not err in granting the

prosecutor‘s request for the initial March 23, 1994 restriction on defendant‘s

telephone calls; (2) defendant forfeited his claim concerning the continuing

application of the restriction order when defense counsel expressly declined to

argue against it in the April 15, 1994 hearing and asked to take his motion

challenging the order ―off calendar‖; and (3) even if his claim is not forfeited,

defendant has failed to show that his defense was prejudiced by the phone call

restriction.

1. Background

Attorney Jack Earley began representing defendant in September 1992 for

the charges arising from the CompUSA murder.27 Earley was defendant‘s

attorney when Williams was murdered on March 13, 1994. Four days later, on

March 17, the police searched Yancey‘s apartment. Among other evidence

connecting Yancey and defendant was Yancey‘s personal phonebook, which

contained the name and phone numbers of Earley and his investigator, Alan Clow.

27 Earley represented defendant continuously from September 1992 through

defendant‘s guilt phase trial and his first penalty phase trial (which ended in a

mistrial), until July 1996, when the prosecutor elected to retry the penalty phase.

Earley then declared a conflict and, at defendant‘s penalty retrial, defendant was

represented by Robison Harley, who had been second counsel at the guilt phase

and first penalty phase. Earley was called as a witness by the prosecution at the

penalty retrial, which is where some of the background information recounted here

was put on the record. Defendant had waived the attorney-client privilege for

Earley so that Earley could testify at the penalty retrial.

20

Phone records showed several telephone calls from Yancey‘s apartment to

Earley‘s office in the period before Williams‘s murder, as well as several phone

calls from Yancey‘s apartment to Clow‘s office both before and after Williams‘s

murder. On March 23, 1994, 10 days after Williams was murdered, the prosecutor

charged defendant and Yancey with her murder. The prosecutor initially refused

to give discovery information to Earley because the prosecutor was fearful for the

safety of the other witnesses in the case.28

On March 23, 1994, at the initial arraignment hearing for defendant and his

then-codefendant Yancey, the prosecutor stated that new information had

developed, and that Earley and his investigator might be potential witnesses in the

case.29 The prosecutor asked that Earley come to the prosecutor‘s office to

discuss the situation. The prosecutor also requested ―a blanket order‖ to deny

defendant any telephone access (including to Earley) for at least 48 hours until the

prosecutor had a chance to discuss the situation with Earley and devise a course of

action. The prosecutor, however, agreed to allow Yancey telephone contact with

her attorney if a deputy sheriff dialed the number. The trial court granted the

prosecutor‘s request for the order over defense counsel‘s objection and continued

28 Earley (in his opposition to a later, ultimately unsuccessful, motion by the

People to recuse him) described the prosecutor‘s position at this time as follows:

―Deputy District Attorney Randolph Pawloski told defense counsel . . . that

counsel had a ‗conflict of interest‘ (without telling him what the conflict was),

announced that he would not give defense counsel any discovery because he did

not wish to see any more witnesses dead, and intimated that defense counsel was

responsible for Ardell Williams‘ death. [Defendant] was subsequently denied

phone access — even to defense counsel — on the grounds that he had used the

phones to plan the homicide of Ardell Williams.‖

29 Presumably, the prosecutor was referring to the discovery of Yancey‘s

personal phonebook containing the name and phone numbers of Earley and Clow

and the phone records indicating three-way phone communications between

defendant, Earley, and Yancey prior to the murder of Williams.

21

the arraignment to two days later, Friday, March 25, 1994, when the court would

review the restrictions on phone calls.

At the March 25 hearing, Earley raised the issue of the telephone

restrictions, which Earley thought would expire at this point. The prosecutor

stated his position that the court‘s order should remain in effect. The parties

agreed to a hearing on the issue, with the restrictions remaining in the meantime.

The hearing was held on April 15.

At the April 15 hearing, Earley stated, ―[T]he people at this point are

alleging that my client made various phone calls from the jail to make some

arrangements. I‘m not asking that we change the order at this point today.‖

Earley said he could work out an agreeable order with the prosecutor concerning

defendant‘s telephone access and stated, ―I don‘t mind taking it off calendar to

deal with it at the preliminary hearing, if need be.‖ Yancey‘s defense counsel,

however, argued that the trial court should modify its order to allow Yancey to

telephone people other than her attorney. After hearing argument from Yancey‘s

counsel and the prosecution, the court ruled that it was retaining the existing

restrictions on Yancey‘s telephone access as stated in the March 23, 1994 order.

Earley did not again ask the court to modify the restrictions on defendant‘s

telephone access until about a year later, on March 10, 1995, when he made a

motion, unopposed by the prosecutor, to allow defendant to have contact with

defense counsel at specified times if the number was dialed by a deputy sheriff.

2. Analysis

Citing Small v. Superior Court (2000) 79 Cal.App.4th 1000, 1010,

petitioner contends that former section 2600, the statute defining the civil rights of

prisoners, is the starting point for matters involving security measures affecting

22

prisoner rights.30 But, unlike Small, petitioner‘s claim does not involve a

challenge to a security measure promulgated by prison authorities. Rather, it

involves a restriction imposed by the trial court at the urging of the prosecutor due

to concerns that defendant would use telephone access to threaten or order the

execution of witnesses in the case. In the absence of authority applying former

section 2600 to a court-ordered limitation on the telephone access of a pretrial

detainee, we decline to apply it here.

Yet defendant may challenge the telephonic restriction based on his right to

access to counsel under the state and federal Constitutions. Restrictions on the

ability of a prisoner, including a pretrial detainee, to use the telephone to consult

with counsel implicate the right to assistance of counsel in the prisoner‘s defense.

(See In re Grimes (1989) 208 Cal.App.3d 1175, 1182.) Nevertheless, ―[n]ot every

restriction on counsel‘s time or opportunity . . . to consult with his client or

otherwise to prepare for trial violates a defendant‘s Sixth Amendment right to

counsel.‖ (Morris v. Slappy (1983) 461 U.S. 1, 11.)

We recently rejected a claim with similar facts. A defendant who was a

pretrial detainee in jail faced restrictions on telephone contact with her attorney

based on her misuse of that privilege to attempt to solicit the murder of a witness.

(People v. Rodriguez (2014) 58 Cal.4th 587, 621.) As we noted, ―[j]ail authorities

30 The version of section 2600 operative at the time of the restrictions on

defendant‘s phone calls stated that prisoners may ―be deprived of such rights, and

only such rights, as is necessary in order to provide for the reasonable security of

the institution‖ and ―the reasonable protection of the public.‖ (Stats. 1975,

ch. 1175, § 3, p. 2897.) Section 2600 was amended in 1994 (effective Sept. 13,

1994) to permit regulations that are ―reasonably related to legitimate penological

interests.‖ By this amendment, the Legislature adopted the federal test for the

validity of prison regulations established in Turner v. Safley (1987) 482 U.S. 78,

89. (Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 130.)

23

and the court did limit defendant‘s telephone privileges, but properly so given her

criminal behavior in jail that abused those privileges.‖ (Ibid.)

Given the grave and highly unusual circumstances under which the

prosecutor made the initial request to restrict defendant‘s phone access, we find no

error in the trial court‘s ordering a complete restriction of defendant‘s telephone

access. Initial evidence indicated that defendant had used the jail telephones to

arrange the murder of a prosecution witness, and the prosecutor subsequently

discovered evidence that defendant‘s attorney or his investigator had been in

communication with the individual suspected of carrying out that murder.31

Under these circumstances, a blanket restriction of defendant‘s phone access was

justified for at least the limited period between the March 23, 1994 order and the

April 15, 1994 hearing at which the court took up its continuing status. At that

hearing, the court asked defense counsel to address the issue of whether the

restriction should be modified after the limited period, and defense counsel asked

that the court take the issue off calendar in favor of defense counsel‘s working out

an agreement with the prosecutor. Defendant therefore forfeited the issue of the

restriction on defendant‘s telephone access from the period of April 15, 1994, until

March 10, 1995, when defense counsel again raised the issue and sought

modification of the order.

Finally, even if defendant‘s claim were not forfeited for that period, he has

failed to show that his defense was negatively affected by this period of telephonic

restriction such that we could conclude he had been denied his right to the

effective assistance of counsel. Defendant acknowledges that he was not denied

31 At the penalty retrial, the prosecution introduced charts showing three-way

phone calls from Yancey‘s apartment to the phone in the Orange County jail used

by defendant and to Earley‘s law offices.

24

personal visits from trial counsel. As reflected in the record, defendant‘s trial

counsel actively litigated the case during this period at the preliminary hearing and

through various pretrial motions and hearings. Defendant generally contends that

his ―input‖ was crucial to the defense‘s investigations of his alibi and other aspects

of the case, including his life history in preparation for a possible penalty phase.

But he fails to show that he was unable to provide this input during personal visits

from trial counsel, and fails to indicate any area of the defense‘s investigation of

the case that was inadequate because of his lack of telephone communication with

his attorney during the period in question.

B. Continuance of the Preliminary Hearing

Defendant contends that his right to a speedy preliminary hearing was

violated because the trial court continued the date of the preliminary hearing over

defendant‘s objections. As discussed below, the court did not violate defendant‘s

statutory rights concerning his preliminary hearing. Even if it had, defendant fails

to show any prejudice.

1. Background

Defendant entered a not guilty plea to the amended complaint on April 15,

1994, and requested that his preliminary hearing be set for April 28. On April 28,

on the motion of codefendant Yancey, and over the objection of defendant, the

trial court ordered the continuance of both Yancey‘s and defendant‘s preliminary

hearings to June 30, 1994 for good cause under section 1050.1. On June 29, 1994,

the prosecutor filed the second amended complaint, to which defendant also

pleaded not guilty. Yancey‘s counsel also requested another continuance based on

the need to review additional discovery material that the prosecutor had disclosed

in connection with the second amended complaint. Again, over defendant‘s

objection, the court found good cause for the continuance and continued the matter

25

for both codefendants to July 13. On July 13, both defense counsel agreed to a

continuance to July 18, when the preliminary hearing commenced.

2. Analysis

Defendant now contends that the trial court‘s granting of the first

continuance on April 28, 1994 violated his statutory right under section 859b.

Section 859b provides that a criminal defendant has a right to a preliminary

hearing within 10 court days of the arraignment or plea, unless the parties waive

this right or the court finds good cause to continue the preliminary hearing under

section 1050. (Landrum v. Superior Court (1981) 30 Cal.3d 1, 5.) Under section

1050, a ―trial court has broad discretion to determine whether good cause exists,‖

and we review its decision on the motion for abuse of discretion. (People v.

Jenkins (2000) 22 Cal.4th 900, 1037.) Section 1050.1 provides that, ―[i]n any case

in which two or more defendants are jointly charged in the same complaint‖ and

the magistrate finds good cause to continue the preliminary hearing regarding one

defendant, the continuance constitutes ―good cause to continue the remaining

defendants‘ cases so as to maintain joinder.‖ (§ 1050.1; Tapia v. Superior Court

(1991) 53 Cal.3d 282, 299.) At the April 28 hearing, the court found good cause

to continue the preliminary hearing for Yancey because her counsel requested

additional time to review the large amount of discovery recently disclosed by the

prosecutor. This, in turn, established good cause to continue defendant‘s

preliminary hearing for the purpose of maintaining joinder. We therefore

conclude that the court did not abuse its discretion.

In his reply brief, defendant raises an additional argument. He notes that

section 859b also provides that the ―magistrate shall dismiss the complaint if the

preliminary examination is set or continued more than 60 days from the date of the

arraignment [or] plea . . . , unless the defendant personally waives his or her right

26

to a preliminary examination within the 60 days.‖ (§ 859b, subd. (b).) Defendant

contends that section 859b was violated because he entered a not guilty plea on

April 15, 1994, and the preliminary hearing started 94 days later, on July 18, 1994.

But he fails to address whether his not guilty plea to the second amended

complaint on June 29, 1994 reset the 60-day period under section 859b. If so,

defendant‘s July 18, 1994 preliminary hearing, which commenced 19 days later,

was timely under the 60-day rule. Nonetheless, we need not resolve this

apparently still-undecided issue of California law. (See Ramos v. Superior Court

(2007) 146 Cal.App.4th 719, 724, fn. 3 (Ramos) [deferring the question of whether

an arraignment on an amended felony complaint starts a new 60-day period under

section 859b].) This new argument is forfeited both because defendant failed to

raise it in the opening brief (People v. Tully (2012) 54 Cal.4th 952, 1075) and

because he failed to object below. Moreover, even if he had preserved the claim,

defendant shows no prejudice from the delay. (People v. Pompa-Ortiz (1980) 27

Cal.3d 519, 529-530.)

Defendant contends, citing Ramos, supra, 146 Cal.App.4th at page 737,

that violation of the 60-day rule does not require a showing of prejudice. To the

extent the Ramos court correctly concluded a defendant need not show prejudice,

that case involved circumstances where the defendant objected to the delay and

sought a pretrial writ to dismiss the information. Here, defendant did not object;

moreover, he raises the issue for the first time on appeal. As we stated in People

v. Pompa-Ortiz, supra, 27 Cal.3d at page 529, ―[t]he presence of a jurisdictional

defect which would entitle a defendant to a writ of prohibition prior to trial does

not necessarily deprive a trial court of the legal power to try the case if prohibition

is not sought.‖ We further stated that non-jurisdictional irregularities in

preliminary examination procedures do not require reversal unless the defendant

establishes that he or she was deprived of a fair trial or otherwise suffered

27

prejudice as a result. (Ibid.) A denial of a defendant‘s right to trial within a

prescribed statutory time period falls within this class of irregularities that are not

jurisdictional in the fundamental sense and which, therefore, require a showing of

prejudice. (Ibid.) The same analysis applies to a violation of the 60-day rule in

section 859b.

In the alternative, defendant contends that, because his trial was severed

from that of codefendant Yancey after the preliminary hearing, and because the

strategy and tactics in preparing for a joint trial are different than that of preparing

for a single trial, he ended up with less time to prepare for trial as a single

defendant. Defendant bases this contention on the assumption that the severance

with Yancey would have occurred earlier if the preliminary hearing had occurred

earlier. Even assuming for the sake of argument that this is so, defendant points to

no specific issue at his trial that he would have presented differently and thus fails

to make a showing of prejudice.

C. Asserted Violations of Venue and Vicinage Rights

Defendant contends that his venue and vicinage rights under the United

States Constitution, the California Constitution, and California statutes were

violated because he was tried in Orange County for the Williams murder, which

took place in Los Angeles County. Defendant raised a vicinage claim as one of

several claims in an unsuccessful motion to dismiss the indictment under section

995. He raised the vicinage claim again during pretrial motions, and the trial court

rejected it. As we conclude below, the venue of defendant‘s trial was proper under

statutory law and did not violate defendant‘s vicinage rights under the federal and

state Constitutions.

Venue and vicinage are distinct. Venue concerns the location where the

trial is held; vicinage refers to an area from which the jury pool is drawn. (Price v.

28

Superior Court (2001) 25 Cal.4th 1046, 1054.) Defendant‘s contentions implicate

both venue and vicinage because he contends that the venue of his trial, Orange

County, was statutorily improper and that the racial composition of the jury pool

of Orange County violated his vicinage rights because there were fewer jurors of

defendant‘s race (African-American) in Orange County than in Los Angeles

County (where defendant contends venue was proper).

Under section 790, the proper venue for a murder trial lies in the county

where the fatal injury was inflicted, where the victim died, or where the victim‘s

body was discovered. But under section 781, venue is also proper in the county

where ―the defendant made preparations for the crime.‖ (People v. Price (1991) 1

Cal.4th 324, 385.) ―The long-standing former rule was that venue presented a

question of fact and was thus for the jury to decide.‖ (4 Witkin & Epstein, Cal.

Criminal Law (4th ed. 2012) Jurisdiction and Venue, § 65, p. 179 [citing cases].)

Ten years after the completion of defendant‘s trial, we rejected that rule in favor of

the new rule that venue is a question of law to be determined by the trial court.

(People v. Posey (2004) 32 Cal.4th 193, 215 (Posey).) Following People v. Simon

(2001) 25 Cal.4th 1082, 1086-1087 (Simon), Posey, at page 200, set forth a

prospective rule that a defendant must raise a claim of improper venue to the court

prior to the commencement of trial. Since defendant‘s case was not final at the

time of the new rules set forth in Simon and Posey, these new rules do not apply to

him.

Defendant could have proceeded under the authority at that time and

submitted the issue of venue to the jury. Instead he elected to challenge venue in

front of the trial court before the commencement of trial (a procedure that would

become the exclusive method for deciding the issue after Posey.) The burden of

proof for proper venue remains unchanged — it rests with the prosecutor and must

be proved by a preponderance of the evidence. (4 Witkin & Epstein, Cal.

29

Criminal Law, supra, Jurisdiction and Venue, §§ 66-67, pp. 181-182 [citing

cases].) Either direct or circumstantial evidence may suffice. (4 Witkin &

Epstein, § 67, p. 181.) Whether we review the sufficiency of the evidence in light

of the court‘s decision or in light of the possible decision of a hypothetical jury to

whom defendant could have submitted the issue, the result is therefore the same.

The evidence presented by the prosecutor was sufficient to prove, by a

preponderance of the evidence, that Orange County was an appropriate place for

the trial under section 781. (Posey, supra, 32 Cal.4th at pp. 220-221.)

The evidence establishes numerous visits and phone calls between

defendant and Yancey while defendant — in the months before Williams‘s murder

— was incarcerated in the Orange County Jail. A reasonable conclusion from this

evidence is that it was during this period that the two planned for Yancey to lure

Williams to her death. Defendant objects that the evidence of Yancey‘s visits and

phone calls was not sufficient to support the conclusion that defendant and Yancey

conspired to kill Williams because this evidence is circumstantial — not direct —

evidence of defendant‘s guilt. Defendant protests that there was no direct proof of

what was discussed during those visits or phone calls. But the evidence

supporting venue can be either direct or circumstantial. In combination with the

totality of incriminating evidence in the case, the visits and phone calls were

compelling circumstantial evidence that it was within Orange County that

defendant conspired with Yancey to have Williams murdered. Venue in Orange

County was therefore proper for the Williams murder under section 781 because it

was the county in which defendant made preparations for the crime.

Defendant‘s vicinage claim also falters. His rights under the United States

and California Constitutions, we conclude, were not violated. The vicinage clause

30

of the Sixth Amendment32 has not been incorporated by the Fourteenth

Amendment to apply in a state criminal trial. (Price v. Superior Court, supra, 25

Cal.4th at pp. 1063-1069.) For vicinage rights under the state Constitution, ―the

vicinage right implied in article I, section 16 of the California Constitution . . .

constitutes simply the right of an accused to a trial by an impartial jury drawn

from a place bearing some reasonable relationship to the crime in question.‖

(Posey, supra, 32 Cal.4th at p. 222, citation omitted.) Defendant contends that, at

the time of defendant‘s trial, African-Americans comprised 21.5 percent of

potential jurors in Compton, the superior court judicial district of Los Angeles for

Gardena, where the Williams murder was committed, but comprised only 1.77

percent of the potential jurors of Orange County, where the trial occurred. The

prosecutor below stipulated to the truth of defendant‘s statistical breakdown of the

racial composition of the jury pools in Compton and Orange County. But the

prosecutor pointed out that defendant failed to produce any authority that the

vicinage right under the state Constitution gives rise to a defendant‘s right to have

a trial moved to a county that has a greater percentage of jurors with the same race

as that of the defendant. On appeal, defendant likewise fails to produce any

authority for this position. To the contrary: because venue was proper in Orange

County under section 781, as the place where preparations for the crime were

committed, the place of trial did bear ―some reasonable relationship to the crime in

question‖ and therefore satisfied the implied vicinage requirement of the

California Constitution. (Posey, at p. 222.)

32 ―In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the state and district wherein the crime

shall have been committed, which district shall have previously been ascertained

by law . . . .‖ (U.S. Const., 6th Amend., italics added.)

31

D. Asserted Unduly Suggestive Identification of Defendant by Weaver

Weaver identified defendant to police investigators as being present at the

CompUSA murder through a pretrial photographic array. Defendant

unsuccessfully made a pretrial motion to exclude admission of the identification

on the ground that the photographic array was unduly suggestive. Defendant

contends the trial court erred and that Weaver‘s in-court identification was tainted

due to the photographic array. As we conclude below, the court did not err in

denying defendant‘s pretrial motion. And because the pretrial photographic array

was not unduly suggestive, Weaver‘s in-court identification of defendant was not

tainted.

1. Background

According to Weaver‘s testimony, he met defendant in the CompUSA

parking lot on the night of the CompUSA murder. Inspector Grasso testified that,

at a hearing on defendant‘s pretrial motion to suppress that about eight months

after the CompUSA murder, he showed Weaver three photographic array cards.

Each photographic array card contained six photographs. Grasso gave Weaver a

lengthy admonition that instructed him, among other things, that he did not have to

identify anyone (because it was just as important to free innocent persons from

suspicion as it was to identify those who were guilty); that photographs do not

always depict the true complexion of a person, which might be lighter or darker

than that shown in the photograph; and that he should pay no attention to whether

the photos were in color or black and white or to any other difference in the type

or style of the photographs.33 The first photographic group included a photograph

33 All the photographs shown to Weaver were in color. As discussed below,

defendant contends that variations in the background color of the photographs

were unduly suggestive.

32

of defendant‘s brother Eric and photographs of five other men. The second

photographic group contained a photograph of defendant and photographs of five

other men. The third photographic group contained a photograph of Ervin (the

shooter in the CompUSA murder) and photographs of five other men.

Eric is a dark-complexioned African-American man, as were the five other

men in his photographic array card. Defendant, however, is a light-complexioned

African-American man, and the five other men in his photographic group were

apparently White, Hispanic, or of mixed race. 34 Ervin is a dark-complexioned

African-American man, as were the five other men in his photographic group.

Weaver identified Eric from the first photographic array card and defendant from

the second, but he did not identify anyone from the third.

At trial, during his direct examination by the prosecutor, Weaver made an

in-court identification of defendant. In recounting his interviews with the police

during the investigation and his pretrial identification of defendant through the

photographic array, he was again shown the pretrial photographic array card, from

which he also identified defendant.

2. Analysis

In determining whether a defendant‘s right to due process is violated by the

admission of identification evidence, we consider ―(1) whether the identification

procedure was unduly suggestive and unnecessary, and, if so, (2) whether the

identification itself was nevertheless reliable under the totality of the

circumstances.ˮ (People v. Kennedy (2005) 36 Cal.4th 595, 608.) A claim that an

identification procedure was unduly suggestive raises a mixed question of law and

34 Evidence at the penalty phase established that defendant and Eric were half

brothers, with the same father but different mothers. The trial court observed that

it did not find much family resemblance between the two brothers.

33

fact to which we apply a standard of independent review, although we review the

determination of historical facts regarding the procedure under a deferential

standard. (Id. at p. 609.)

Defendant contends that the background color of the photographs of

defendant and his brother was darker than the background color of the other

photographs. Examining the array cards, we note that the background colors of

the photographs of defendant and his brother are a slightly darker shade of gray.

But this difference did not render the photographic lineup unduly suggestive,

particularly in light of the express admonition given to Weaver that he should pay

no attention to whether the photos were in color, in black and white, or to any

other difference in the type or style of the photographs. We have previously

rejected claims that photographic arrays were unduly suggestive based on minor

variations in background color or discoloration of the photograph. (People v.

Johnson (1992) 3 Cal.4th 1183, 1217; People v. Gonzalez (2006) 38 Cal.4th 932,

943.)

Defense counsel asserted below, and defendant renews on appeal, the

argument that defendant‘s photographic array card was unduly suggestive because

defendant was the only African-American man in it. But, as the prosecution

argued below, the races of the five other men in the photographic array card were

never established. Like defendant, the five other men were similarly

complexioned, had dark hair, and had mustaches. As the trial court remarked,

defendant‘s ―racial characteristics are not outstandingly apparent.‖ Indeed,

defendant‘s substantial mustache, almost a handlebar, was his most distinctive

feature. In preparing the photographic array, the police were faced with matching

at least three relevant features of defendant‘s appearance — his complexion, his

prominent mustache, and his apparent racial or ethnic identity. The police here

did an admirable job of matching complexion and mustaches. But apparent racial

34

or ethnic identity is something that is harder to quantify and agree on, so opinions

in this area can vary.

The additional factor here is that Weaver knew that his teammate Eric

Clark, defendant‘s brother, was African-American. Given this, Weaver may have

(correctly) assumed that defendant, as Eric‘s brother, was also African-American.

and been primed to look for a photograph of an African-American on the card, or,

conversely, to reject out of hand a photograph of someone of another race.

But we need not decide the issue here because, even if we assume for the

sake of argument that the photographic array was unduly suggestive in regard to

apparent racial or ethnic identity, we conclude that the pretrial identification was

―nevertheless reliable under the totality of the circumstances.‖ (People v.

Cunningham (2001) 25 Cal.4th 926, 989.) In making this determination we take

into account ―such factors as the opportunity of the witness to view the suspect at

the time of the offense, the witness‘s degree of attention at the time of the offense,

the accuracy of his or her prior description of the suspect, the level of certainty

demonstrated at the time of the identification, and the lapse of time between the

offense and the identification.‖ (Ibid.) Weaver certainly had a meaningful

opportunity to closely observe defendant during their extended contact on the

night of the CompUSA murder, including both a face-to-face meeting in the

parking lot and being in the passenger seat while defendant drove towards and

later made a quick getaway from the computer store. That Weaver was a

passenger in defendant‘s car as defendant engaged in a high-speed escape from

police cars with their signals flashing also supports the inference that Weaver was

focused on defendant during such a memorable event.

35

E. Asserted Unconstitutional Coercion of Alonzo Garrett

Prosecution witness Alonzo Garrett refused to take the oath at defendant‘s

preliminary hearing and was held in contempt of court. But he later testified at

defendant‘s trial. Defendant contends that Garrett‘s trial testimony was coerced

and unreliable because Garrett had been held in contempt for refusing to take the

oath at the preliminary hearing. But as we explain below, defendant fails to show

that Garrett‘s trial testimony was made unreliable by coercion.

1. Background

At the preliminary hearing, the prosecution called Garrett as a witness. As

Garrett had previously told the authorities and later testified at defendant‘s trial

(recounted, ante at pages 10 to 11), Garrett was a fellow prisoner with defendant at

the Orange County jail and knew Ardell Williams. Defendant had shown Garrett

transcripts of Williams‘s grand jury testimony and stated, ― ‗Hey, this is the

woman right here that could put me away.‘ ‖ Concerned that Williams was

involved in a dangerous situation because she was ―snitching,‖ Garrett later

phoned Williams, who admitted that she was the key witness in defendant‘s case

but assured him that there was nothing to worry about.

Garrett refused to even be sworn as a witness at the preliminary hearing.

Before Garrett was brought to the courtroom, his counsel stated that he believed

that Garrett had a Fifth Amendment right to remain silent if asked any questions

about the murder of Williams. Garrett‘s counsel also acknowledged that he did

not ―know if we‘ll ever get there because . . . [Garrett] doesn‘t even want to be in

the courtroom.‖ Garrett had asked counsel ―to inform the court that he‘s not going

to say a word.‖ Garrett‘s counsel contended that Garrett could invoke his Fifth

Amendment privilege on the grounds that his phone call to Williams could be

interpreted as an attempt to dissuade a witness. The prosecutor‘s position was that

the burden was on the witness for taking the Fifth Amendment and that the

36

prosecution should at least be allowed to ask the witness questions before he could

assert the privilege.

Garrett was then brought before the trial court and refused to speak. After

twice instructing Garrett, in the face of his continued silence, to take the oath, the

court informed him that he could be found in contempt of court under section 166,

subdivision (a)(6), which provides that an unlawful refusal of any person to be

sworn as a witness constitutes a misdemeanor. When Garrett continued to refuse

to take the oath, the court found that he had unlawfully refused to be sworn as a

witness and found him in contempt. The court committed him to custody ―until

such time as he can purge himself of contempt by taking the oath as a witness.‖

Garrett never agreed to return to court as a witness at the preliminary hearing. He

pleaded guilty to the contempt charges and was sentenced to one additional year to

be served consecutively to the 25-year sentence he was already serving.

But almost two years later, when the prosecution called Garrett to testify at

defendant‘s trial, he agreed to testify. As part of his testimony, Garrett

acknowledged that he had refused to testify at the preliminary hearing. But he

stated that he was testifying at defendant‘s trial for a number of reasons: (1) the

prosecutor persisted in bringing Garrett to court to testify; (2) Garrett did not want

to accrue any additional prison time by being held in contempt of court again for

refusing to testify; and (3) he had ―finally gotten over‖ the anger he had before the

preliminary hearing, when he refused to testify.

2. Analysis

Defendant contends that Garrett‘s Fifth Amendment right against self-

incrimination was violated at the preliminary hearing when the trial court found

him in contempt of court for refusing to testify. Respondent counters that Garrett

failed to properly invoke his privilege against self-incrimination at the preliminary

37

hearing and that, even if Garrett had made a proper invocation, his claim would

have failed because Garrett‘s testimony would not have been incriminating to him.

But we need not evaluate the substantive legal issues surrounding Garrett’s

constitutional rights. Even if his Fifth Amendment rights were violated at the

preliminary hearing, such an error alone does not provide a basis for excluding his

trial testimony. Defendant has no standing to raise a claim involving an alleged

violation of Garrett‘s Fifth Amendment privilege. (People v. Jenkins, supra, 22

Cal.4th at p. 965.) The issue in this appeal is whether the circumstances of

Garrett‘s testimony impacted defendant’s constitutional rights.

Defendant can raise a claim that the admission of Garrett‘s allegedly

coerced testimony rendered defendant‘s trial fundamentally unfair. (People v.

Jenkins, supra, 22 Cal.4th at p. 966.) But he can succeed only if he demonstrates

―fundamental unfairness at trial,‖ usually by establishing that the evidence was

made unreliable by coercion. (Ibid.) Defendant fails to do so.

What defendant contends is that Garrett‘s testimony was coerced because

Garrett had been previously held in contempt for refusing to testify and he stated

that one of the reasons that he was now agreeing to testify was that he did not want

to be held in contempt again and accrue additional prison time. Under these

circumstances, though, Garrett was no more ―coerced‖ than is any witness at trial

who is subject to compulsory process and called to testify. Furthermore, an

analysis of the immediate circumstances surrounding Garrett‘s testimony at

defendant‘s trial shows that Garrett was not coerced when he testified there.

Whether or not he had properly invoked his privilege against self-incrimination at

the preliminary hearing by refusing even to be sworn, he took the oath at

defendant‘s trial and would have been able to invoke his privilege against self-

incrimination when being questioned if he chose to do so. He did not. Defendant

points to the fact that Garrett‘s attorney was not present when he testified at

38

defendant‘s trial as indicating that he would have not believed that he could

successfully assert his Fifth Amendment privilege. But before he testified in front

of the jury, the trial court held a colloquy with Garrett in which he stated that he

was agreeing to proceed with his testimony even though his attorney was not

present and that his decision to do so was uncoerced and voluntary. Defendant

also points to Garrett‘s statement to the court and the parties, outside the presence

of the jury, that Garrett had heard rumors that if he did not testify he would ―find

[himself] somewhere in Pelican Bay,‖ the state‘s supermaximum security prison.

But outside the presence of the jury, the prosecutor told him, ―I want you to know

before the jury is brought in, that, as a representative of the District Attorney‘s

office, I am telling you that there is not going to be a recommendation from the

District Attorney‘s office to send you to Pelican Bay.‖ Defendant therefore fails

to show that Garrett was threatened with retaliation that would have rendered his

testimony unreliable.

Considering Garrett‘s testimony in light of the wider circumstances also

indicates that coercion did not render his testimony unreliable. First, any pressure

that was exerted on Garrett was for him to testify, not for him to testify in a

particular manner. Defendant fails to show that there was any pressure on Garrett

to testify in a way that helped the prosecutor and hurt the defense. Along these

lines, defendant fails to show that Garrett had something to gain personally by

testifying against defendant. Indeed, defendant acknowledges that, in Garrett‘s

testimony, he ―demonstrated that he cared only about avoiding additional jail time

and his own ‗snitch‘ status.‖ Defendant concludes that this shows that ―Garrett

therefore clearly did not have appellant‘s interests in mind when he testified, nor

should he have.‖ But by the same reasoning, Garrett did not have a motivation to

skew his testimony against defendant either. Second, the fact that Garrett gave the

same account of his jailhouse discussion with defendant before the allegedly

39

coercive events at the preliminary hearing further undercuts the claim that the

events at the preliminary hearing rendered his trial testimony unreliable.35

Finally, the jury heard Garrett‘s own account that he was now testifying at

defendant‘s trial, at least in part, because he had previously been held in contempt.

The jury could therefore evaluate his testimony in light of that fact. In conclusion,

because defendant has not met his burden of showing that Garrett‘s testimony was

unreliable as a result of coercion, defendant fails to show that the admission of the

testimony rendered his trial fundamentally unfair.

F. Admission of Conversations Between ―Janet Jackson‖ and Members of

the Williams Family

Defendant contends the trial court erred in admitting Yancey‘s statements

under the Evidence Code section 1223 coconspirator exception to the hearsay rule.

As recounted, ante, at page 12, the prosecutor presented evidence of the delivery

of flowers to Williams‘s home on February 10, 1994 and a subsequent series of

phone calls where a woman identifying herself as ―Janet Jackson‖ arranged a ―job

interview‖ for Williams, resulting in her murder. Defendant contends insufficient

evidence was presented to support a prima facie case of the existence of the

conspiracy under Evidence Code section 1223 to allow the admission of Yancey‘s

statements under the coconspirator exception to the hearsay rule.

Respondent contends that no objection was made at trial, thus forfeiting this

claim on appeal. Defendant responds that, at the preliminary hearing, defense

counsel raised an objection under Evidence Code section 1223, which was

rejected, to the admission of Yancey‘s statements. We agree with respondent that

35 As described above, shortly after Garrett‘s conversation with defendant

about Williams, Garrett described it in a phone call to a friend. This phone call

was recorded by prison authorities and the tape was played to the jury at

defendant‘s trial.

40

the claim is forfeited for failure to raise it below. Defendant fails to provide any

authority that an objection at a preliminary hearing is sufficient to preserve the

issue at trial and on appeal. Defendant is also unconvincing in his argument that

raising the hearsay issue again at trial would have been futile. The absence of an

objection deprived the prosecutor and the court the opportunity to identify which

statements were actually hearsay and which were not, and, for the hearsay ones, to

assess the exceptions under which they might be admissible. For example, many,

if not most, of the statements Yancey made in posing as ―Carolyn,‖ the flower

delivery girl, and as ―Janet Jackson‖ were lies and part of a scheme of deception to

lure Williams to her death. Thus, these statements were not offered for the truth of

the matters asserted, but for the effect they had on Williams. ―[A]n out-of-court

statement can be admitted for the nonhearsay purpose of showing that it imparted

certain information to the hearer, and that the hearer, believing such information to

be true, acted in conformity with such belief.‖ (People v. Montes (2014) 58

Cal.4th 809, 863.) On the other hand, some parts of Yancey‘s statements to

Williams, like the date and time of the job interview to which Williams was lured,

arguably were meant to be used for the truth of the matter asserted. But because

there were no hearsay objections at trial to Yancey‘s statements generally, let

alone objections to specific statements, the court was deprived of the opportunity

to rule on these issues.

Even if we considered this claim on the merits, we would conclude that

Yancey‘s statements were properly admitted under Evidence Code section 1223.

Under Evidence Code section 1223, three preliminary facts must be established for

evidence of a coconspirator‘s declaration to be admissible: (1) that the declarant

was participating in the conspiracy in question at the time of the declaration, (2)

that the declaration furthered or was meant to further the conspiracy‘s objective,

and (3) that the party against whom the evidence is offered was — at the time of

41

the declaration — participating in the conspiracy, or would later participate in it.

(People v. Leach (1975) 15 Cal.3d 419, 430-431, fn. 10; see also People v. Hardy

(1992) 2 Cal.4th 86, 139.) The party offering the coconspirator statements is

required to present ―independent evidence to establish prima facie the existence of

. . . [a] conspiracy.‖ (People v. Leach, supra, 15 Cal.3d at p. 430.) As we have

stated in the context of establishing criminal liability for a conspiracy, ―[e]vidence

is sufficient to prove a conspiracy to commit a crime ‗if it supports an inference

that the parties positively or tacitly came to a mutual understanding to commit a

crime. [Citation.] The existence of a conspiracy may be inferred from the

conduct, relationship, interests, and activities of the alleged conspirators before

and during the alleged conspiracy.‘ ‖ (People v. Rodrigues (1994) 8 Cal.4th 1060,

1135.)

In this case, the prosecution presented sufficient independent evidence from

which the trial court could have found a conspiracy between defendant and

Yancey to kill Williams. Williams‘s grand jury testimony, in which she described

her knowledge of defendant‘s involvement with the CompUSA murder and her

subsequent cooperation with the police, was evidence pointing to defendant‘s

motive to have her murdered to prevent her from testifying at his trial.36 Garrett

testified about defendant‘s awareness that Williams was a damaging witness by

recounting defendant‘s remark that ―this is the woman right here that could put me

away.‖ Yancey‘s relationship with defendant in the period leading up to the

Williams murder (Jan. through Mar. 1994) was established through evidence of

her phone records indicating numerous calls to defendant‘s attorney and

investigator, a pay phone in the Orange County Jail accessible to Clark, and to

36 Defendant‘s contention that the grand jury testimony of Williams was itself

inadmissible is analyzed and rejected on pages 53 to 57, post.

42

Williams‘s home. During a search of Yancey‘s apartment, police recovered

numerous letters between Yancey and defendant.

Moreover, considerable evidence established that Yancey was the woman

who delivered the flowers to the Williams‘s household and who represented

herself as ―Janet Jackson‖ in the phone conversations with Williams‘s mother. In

a voice lineup, Williams‘s mother and sister identified Yancey‘s voice as that of

―Janet Jackson.‖ They also identified Yancey in a photo lineup as the person who

delivered the flowers. One of Yancey‘s fingerprints was found on the box in

which the flowers were delivered.

Defendant also raises questions about the evidence showing that Yancey

was the flower delivery girl and the ―Janet Jackson‖ of the phone calls. He

contends that ―this evidence is meaningless in the absence of what was said during

the Janet Jackson calls or flower delivery‖ because ―the prima facie finding of the

conspiracy must be made in the absence of those statements.‖ In making this

argument, defendant presupposes that the only basis for admitting any of

Yancey‘s statements was through Evidence Code section 1223, the coconspirator

hearsay exception. But defendant fails to appreciate the point, discussed above,

that many, if not most, of Yancey‘s statements were also admissible as

nonhearsay. Thus, the trial court admitted the statements independent of the

requirements of the coconspirator hearsay exception. As independent evidence,

these statements supported the inference that Yancey was involved in a conspiracy

with defendant to kill Williams.

Finally, defendant contends that the admission of the statements under the

coconspirator exception to the hearsay rule violated his right to confrontation

under the Sixth Amendment to the United States Constitution as it has

subsequently been defined in Crawford v. Washington (2004) 541 U.S. 36

(Crawford). Defendant failed to raise a confrontation clause objection at trial.

43

But because defendant‘s trial occurred before the decision in Crawford, he has not

forfeited his Crawford challenge. (People v. Rangel (2016) 62 Cal.4th 1192,

1215-1216.) Defendant‘s claim nonetheless fails on the merits because he fails to

show how Yancey‘s statements to Williams and her family were ―testimonial‖

under Crawford. The high court has left open the possibility that statements to

individuals who are not law enforcement officers may, in certain circumstances,

qualify as testimonial. (Ohio v. Clark (2015) 576 U.S. ____ [135 S.Ct 2173,

2181].) It has also noted, however, that ―statements made to someone who is not

principally charged with uncovering and prosecuting criminal behavior are

significantly less likely to be testimonial than statements given to law enforcement

officers.‖ (Id. at p. 2182.)37

III. JURY SELECTION ISSUES

A. Asserted Witt Error

Defendant contends that various prospective and serving jurors were

erroneously included or excluded by trial court rulings on prosecution and defense

motions to exclude prospective jurors for cause based on their views of the death

penalty under Wainwright v. Witt (1985) 469 U.S. 412 (Witt). We reject all of

defendant‘s Witt claims.

The federal constitutional standard for excusing a prospective juror for

cause based on his or her views of capital punishment is whether ―the juror‘s

views would ‗prevent or substantially impair the performance of his duties as a

juror in accordance with his instructions and his oath.‘ ‖ (Witt, supra, 469 U.S. at

37 Furthermore, Crawford states, in dicta that the high court has yet to apply

in a case, that historically, statements in furtherance of a conspiracy present an

example of ―statements that by their nature were not testimonial,‖ and which

therefore do not implicate the confrontation clause. (Crawford, supra, 541 U.S. at

p. 56.)

44

p. 424, fn. omitted.) Applying Witt, we have stated that a prospective juror ―is

properly excluded if he or she is unable to conscientiously consider all of the

sentencing alternatives, including the death penalty where appropriate.‖ (People

v. Rodrigues, supra, 8 Cal.4th at p. 1146.) ―On appeal, we will uphold the trial

court‘s ruling if it is fairly supported by the record,‖ and we accept ―as binding the

trial court‘s determination as to the prospective juror‘s true state of mind when the

prospective juror has made statements that are conflicting or ambiguous.‖ (People

v. Mayfield (1997) 14 Cal.4th 668, 727.) ―The same analysis applies to claims

involving erroneous juror exclusion or inclusion.‖ (People v. Hoyos (2007) 41

Cal.4th 872, 905.)

1. Erroneous Inclusion Claims

Defendant contends the trial court erred in denying his challenges for cause

against 12 prospective jurors. Respondent contends defendant has forfeited these

claims. ―[A] defendant challenging on appeal the denial of a challenge for cause

must fulfill a trio of procedural requirements: (1) the defense must exercise a

peremptory challenge to remove the juror in question; (2) the defense must

exhaust all available peremptory challenges; and (3) the defense must express

dissatisfaction with the jury as finally constituted.‖ (People v. Weaver (2001) 26

Cal.4th 876, 910-911.) Defendant acknowledges that he failed to meet these

requirements, to which there are no exceptions. He has therefore forfeited his

claims.

Even if these claims were not forfeited, defendant fails to show any

possible prejudice. The 12 prospective jurors defendant challenges are from

defendant‘s first trial in which the jury returned a guilt phase verdict but failed to

return a penalty phase verdict. Witt error does not require reversal of a guilty

verdict. (People v. Tate (2010) 49 Cal.4th 635, 666.) Therefore, even if a Witt

45

violation occurred for any of these jurors, defendant is not entitled to a reversal of

his guilt phase conviction.

Defendant advances further Witt claims regarding five of the jurors who sat

at his penalty retrial, where the jury returned a sentence of death. But defendant

acknowledges that he failed to meet the procedural requirements for an erroneous

inclusion claim. In fact, defendant acknowledges that ―[s]everal of these jurors

were not challenged for cause by appellant‘s counsel.‖ And defendant does not

identify where in the record trial counsel challenged any of these jurors.

Defendant therefore forfeited these claims. Contrary to defendant‘s assertions

otherwise, a trial court has no sua sponte duty to excuse jurors for their views on

the death penalty. (People v. Taylor (2009) 47 Cal.4th 850, 884.) As noted ante,

to preserve a claim of error, the defendant must challenge the juror for cause,

exercise a peremptory challenge, exhaust the available peremptory challenges, and

express dissatisfaction with the jury ultimately selected. (Ibid.) Defendant,

satisfying none of these requirements, has forfeited these claims.

2. Erroneous Exclusion Claims

Defendant contends that the trial court erroneously granted, over his

objection, three of the prosecutor‘s challenges for cause based on the prospective

jurors‘ death penalty views. These three prospective jurors, however, were at

defendant‘s first trial, where no death verdict was returned. As explained above,

defendant cannot show any prejudice from a Witt error at his first trial because no

death verdict was returned at that trial and any Witt error would not be reversible

on the guilty verdict.

B. Batson/Wheeler Challenge

Defense counsel brought a motion under Batson v. Kentucky (1986) 476

U.S. 79, 84-89 and People v. Wheeler (1978) 22 Cal.3d 258, 276-277 based on the

46

prosecutor‘s use of a peremptory challenge against a Native American prospective

juror. The trial court denied the motion, finding that defense counsel failed to

make a prima facie showing that the prosecutor had exercised a peremptory

challenge in a discriminatory manner. As discussed below, we conclude the trial

court did not err in its ruling.

1. Background

The prosecutor exercised a peremptory challenge against Prospective Juror

P. M., to which defense counsel objected on Batson/Wheeler grounds. The trial

court then held a hearing outside the presence of the prospective jurors. Defense

counsel explained that he had brought the motion because of the small number of

minority prospective jurors in the pool and stated: ―I don‘t see anything in his

questionnaire that would make him any different than any other member that‘s on

the jury. This is as vanilla as you can get, this juror.‖ When defense counsel was

asked to make his prima facie showing of discrimination, he stated that P. M. had

been one of the two minority prospective jurors in the jury box. Defense counsel

explained that there had been three minority prospective jurors: Prospective Juror

C. T., whom the parties dismissed by stipulation; juror number 9, a Hispanic

woman, who was currently in the jury box; and P. M., whom the prosecutor had

dismissed. P. M. self-identified as ―American Indian‖ in his jury questionnaire.

The prosecutor responded that defense counsel had not made a prima facie case,

and the prosecution would not indicate its reasons for the peremptory challenge

unless the court made such a finding. The court denied the motion, finding that

the defense had not made a prima facie showing of discrimination.

2. Analysis

We follow a familiar three-step analysis in considering a Batson/Wheeler

motion: (1) a defendant must make a prima facie case by demonstrating that the

47

totality of the relevant facts establishes an inference of discriminatory purpose;

(2) if the defendant makes a prima facie case, the prosecutor bears the burden of

adequately explaining the exclusion with permissible race-neutral justifications;

and (3) if the prosecutor offers a race-neutral explanation, the trial court must

decide whether the defendant has proved purposeful racial discrimination.

(Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)

Defendant argues that we should presume the trial court applied the ―strong

likelihood‖ standard for the first stage, which was controlling California law

before the United State Supreme Court‘s articulation of the standard in Johnson v.

California, supra, 545 U.S. at page 168. But, as we have held, ―[r]egardless of the

standard employed by the trial court, and even assuming without deciding that the

trial court‘s decision is not entitled to deference, we have reviewed the record and,

like the United States Supreme Court in Johnson . . . [we] are able to apply the

high court‘s standard and resolve the legal question whether the record supports an

inference that the prosecutor excused a juror on the basis of race.‖ (People v.

Cornwell (2005) 37 Cal.4th 50, 73, citation omitted.)

Defendant contends that the trial court erred in denying the motion because

the court at one point referred to ―no prima facie showing of pattern.‖ Defendant

points to the United States Supreme Court‘s statement that even ― ‗ ―a single

invidiously discriminatory governmental act‖ is not ―immunized by the absence of

such discrimination in the making of other comparable decisions.‖ ‘ ˮ (Johnson v.

California, supra, 545 U.S. at p. 169, fn. 5.) But the court merely referred to

defendant‘s failure to make a prima facie showing of discrimination on the

grounds that defendant himself raised in explaining his basis for the motion, which

was based on pattern — namely the fact that P. M. was one of two minority jurors

in the jury box at the time that the prosecutor excused him. The court did not state

that only evidence of a pattern of improper challenges could establish a prima

48

facie showing of a violation. As we have stated, ―To be sure, the ultimate issue to

be addressed on a Wheeler-Batson motion ‗is not whether there is a pattern of

systematic exclusion; rather, the issue is whether a particular prospective juror has

been challenged because of group bias.‘ [Citation.] But in drawing an inference

of discrimination from the fact one party has excused ‗most or all‘ members of a

cognizable group [citation], a court finding a prima facie case is necessarily

relying on an apparent pattern in the party‘s challenges. Although circumstances

may be imagined in which a prima facie case could be shown on the basis of a

single excusal, in the ordinary case, including this one, to make a prima facie case

after the excusal of only one or two members of a group is very difficult.‖ (People

v. Bell (2007) 40 Cal.4th 582, 598, fn. 3.)

We agree with the trial court: defendant failed to make a prima facie case

based on the excusal of this one Native American prospective juror. Defense

counsel below pointed to no circumstances beside an asserted pattern of exclusion

of minority prospective jurors in support of his Batson/Wheeler motion. But one

challenge is not a pattern. The excusal of one minority juror was the result of a

stipulation by the parties. There was one minority juror remaining in the jury box

when the prosecutor challenged P. M. The fact that defense counsel said he saw

no reason for the prosecutor to challenge P. M. does not raise an inference that the

prosecutor‘s reason for doing so was improper group bias.

On appeal, defendant seeks, for the first time, to make a case based on

comparative juror analysis, contending that, based on statements made during voir

dire, R. R., a Caucasian prospective juror not challenged by the prosecutor, was

more likely to vote for a sentence of life without the possibility of parole than

P. M. We decline to engage defendant‘s attempt to raise comparative juror

analysis for the first time on appeal in this stage one Batson/Wheeler claim. Our

obligation to consider comparative juror analysis for the first time on appeal only

49

applies to stage three Batson/Wheeler claims, not stage one claims. (People v.

Lenix (2008) 44 Cal.4th 602, 622, fn. 15.) Defense counsel did not engage in

comparative juror analysis below by pointing to any specifics about any other

prospective jurors. Defense counsel merely made the generic claim that P. M. was

no different than the other jurors. As we have stated in declining to consider

comparative juror analysis in a first-stage Batson/Wheeler claim, ―[w]here, as

here, no reasons for the prosecutor‘s challenges were accepted or posited by either

the trial court or this court, there is no fit subject for comparison. Comparative

juror analysis would be formless and unbounded.‖ (People v. Bell, supra, 40

Cal.4th at p. 601.)

IV. GUILT PHASE ISSUES

A. Exclusion of Defendant from the Immunity Proceedings of Prosecution

Witnesses

Under the Fifth Amendment to the federal Constitution, ―a defendant is

guaranteed the right to be present at any stage of the criminal proceeding . . .

critical to its outcome if his presence would contribute to the fairness of the

procedure.‖ (Kentucky v. Stincer (1986) 482 U.S. 730, 745.) Defendant contends

that his federal constitutional right was violated because he was excluded from the

section 1324 immunity hearings for prosecution witnesses Matthew Weaver and

Jeanette Moore.38 Defendant forfeited this claim by failing to object or seek relief

38 Defendant also claims error on state law grounds, because he never waived

the statutory requirement that capital defendants be present at all phases of their

trial pursuant to sections 977 and 1043. These statutes concern the requirement of

a defendant‘s attendance at the phases of his or her own trial. Defendant,

however, presents no authority or persuasive argument to support the conclusion

that a separate proceeding to grant immunity to a witness under section 1324 — a

proceeding to which defendant was not a party — falls under sections 977 and

1043.

50

from the trial court. Defendant also contends that the appellate record is

inadequate because transcripts of the immunity hearings are not included in the

record. Defendant fails to meet his burden of showing that this deficiency is

prejudicial to his ability to prosecute his appeal.

Weaver and Moore were important witnesses for the prosecution in tying

defendant to the CompUSA murder. Both witnesses were also potentially liable

for prosecution for aiding and abetting the crime. Weaver was at the scene of the

CompUSA murder in order to help move the computers. Moore fraudulently

obtained a driver‘s license in someone else‘s name, which she used to rent the U-

Haul truck that defendant intended to use to haul away the computers. Thus, the

prosecutor sought immunity for Weaver and Moore under section 1324, which

was granted by another judge in a separate proceeding that occurred on the

mornings that Moore and Weaver testified at defendant‘s trial.

Defendant contends that he was ―excluded‖ from the Moore and Weaver

immunity hearings. But defendant failed to raise any objection to his or his

attorney‘s absence from the hearings. The prosecutor informed defendant and the

trial court about the immunity proceedings for Moore and Weaver that were to

take place in front of another judge. Defendant did not seek any ruling from the

court on these immunity proceedings. Rather, the court, out of a stated concern

for the record, independently inquired: ―Have adequate provisions been made for

the reporting, and is there any requirement that for that proceeding, in view of the

status of the trial, that [defendant] and his counsel be present at any proceeding

involving a during-the-trial grant of immunity?‖ The prosecutor replied, ―Not to

my knowledge, there is none. I mean, it‘s not between [defendant] — [defendant]

is not a party to that.‖ The court stated, ―I will rely on your opinion. I just wanted

to throw it out.‖ Defendant states that ―ultimately appellant and counsel were not

present at the immunity hearing for either Jeanette Moore or Matt Weaver,‖ but

51

nothing in the record establishes the defense asserted a right to be present or even

asked to attend. Similarly, at no point during the trial did the defense assert that

these witnesses could not be effectively cross-examined in light of the defense‘s

absence from the hearings or the lack of a transcript of the hearings. On this

record, defendant has forfeited his claim that his rights were violated and we

therefore do not address the merits of the claim.

Defendant also contends that the appellate record is inadequate because

transcripts of the immunity hearings are not included in the record in violation of

his constitutional rights and section 190.9 and its implementing rule of court,

currently rule 8.610 of the California Rules of Court. In fact, Weaver‘s immunity

hearing on Tuesday, April 2, 1996, was reported and is included in the record.

Moore‘s immunity hearing, however, does not appear to be in the record.

Defendant fails to point to any particular provision of the rules to support

his contention that the transcripts of the immunity proceeding should have been

included. But even if they should have been, defendant fails to show prejudice.

― ‗ ―A criminal defendant is . . . entitled to a record on appeal that is adequate to

permit meaningful review. . . . The record on appeal is inadequate, however, only

if the complained-of deficiency is prejudicial to the defendant‘s ability to

prosecute his appeal. [Citation.] It is the defendant‘s burden to show prejudice of

this sort.‖ ʼ ˮ (People v. Huggins (2006) 38 Cal.4th 175, 204.) Defendant

contends that defense counsel was prejudiced by the lack of a transcript because

counsel could not effectively cross-examine Moore and Weaver about the precise

nature of the immunity they were granted and any other benefits they received.

Defendant contends that, on appeal, he cannot now show that their testimony

before the jury was false.

Defense counsel had the opportunity to cross-examine Moore and Weaver

on the precise nature of the immunity these witnesses were granted. Indeed, the

52

topic of their immunity was thoroughly explored when each one testified at trial.

At the beginning of each witness‘s testimony, the prosecutor extensively

questioned each one about the immunity that had been granted. Defense counsel

cross-examined Moore on the topic, but did not raise the issue with Weaver.

Because defendant fails to specify what aspect of these witnesses‘ grant of

immunity was not already explored at trial — and would have been illuminated by

the transcripts of Moore‘s hearing — he has failed to show how the assumed

deficiency in the record is prejudicial to his appeal.

B. Admission of Williams‘s Statements for a Nonhearsay Purpose

Defendant contends the trial court improperly admitted Williams‘s grand

jury testimony and police interview statements for the nonhearsay purposes of

establishing defendant‘s motive to kill her and establishing that she was a witness

against defendant, as alleged in the murder of a witness special-circumstance

allegation under section 190.2, subdivision (a)(10). The court did not err in

admitting this material for these nonhearsay purposes or in denying defendant‘s

objection to this material under Evidence Code section 352.

1. Background

The prosecutor initially sought to admit Williams‘s grand jury testimony

and police interview statements under Evidence Code section 1350, a hearsay

exception for instances in which a defendant causes the unavailability of a witness.

The prosecutor also raised the possibility of admitting the material for the

nonhearsay purpose of showing motive. 39 The trial court conducted a hearing and

39 Specifically, these materials were the transcripts of Williams‘s September

1992 grand jury testimony, and the tape-recordings of conversations she had with

Inspector Grasso on April 1 and May 30, 1992. The prosecutor made an offer of

proof to the trial court that information from these sources had been given to

(footnote continued on next page)

53

called witnesses to assess whether Williams‘s statements were made under

circumstances that indicated trustworthiness, as required by Evidence Code

section 1350, subdivision (a)(4). Ultimately, the court ruled that Williams‘s

statements did not meet the trustworthiness requirement of Evidence Code section

1350 and denied the admission of the statements under that section.

But the trial court also ruled that the statements were admissible for the

nonhearsay purposes of showing motive and establishing the corpus delicti of the

witness-killing special-circumstance allegation. Defendant argued, however, that

only the fact that Williams testified to the grand jury and gave statements to the

police should have been admissible, not the content of her statements. The court

inquired whether there was another way of placing before the jury the information

that she had been a witness adverse to defendant, other than admitting the

statements verbatim. The court presented as a possibility, ―thinking out loud,‖ that

someone who had been present at the grand jury proceeding could testify that

Williams was called as witness against defendant and gave statements that were

detrimental to him. The prosecutor replied that ―the heart of the People‘s case . . .

is how the information was given by the prosecution to the defense team during

that period of time, and what [defendant] then did with that knowledge,‖ and that

this information ―fuel[ed] the motive for [defendant‘s] wanting Ardell Williams

murdered in retaliation for giving the information, and to prevent her testimony‖ at

trial. The prosecutor stated that merely calling a witness to testify that Williams

testified at the grand jury and implicated defendant would deny the prosecution

(footnote continued from previous page)

defendant‘s defense team, and through them to defendant, and fueled defendant‘s

motive to have Williams killed to prevent her testimony.

54

―the ability to show the specifics and the detail which [the prosecution] can prove

[defendant] knew.‖ The prosecutor pointed out that defendant ―knew all of the

details of her information‖ and to deny the prosecution the ability to present those

details ―would take away the legitimate force and effect‖ of what the prosecution

believed was the motive in the case.

In ruling that the entirety of the statements could be admitted, the trial court

accepted the prosecutor‘s argument that the details of Williams‘s statements

against defendant were relevant to establishing his motive to kill her and rejected

defendant‘s argument that the statements were unduly prejudicial under Evidence

Code section 352.

Defendant subsequently agreed to have the Williams statements admitted

for their truth so he could impeach Williams as a hearsay declarant. After a

lengthy colloquy with the trial court, defendant expressly waived any objections to

Williams‘s statements‘ being offered for their truth.

2. Analysis

Defendant reiterates on appeal an argument he advanced below. He claims

that only the fact that Williams testified before the grand jury and gave statements

to the police should have been admissible, not the content of her testimony

statements. He notes Williams‘s testimony was lengthy, taking up more than 100

pages of transcripts. Moreover, he contends the testimony and statements

contained incriminating details that the jury could not help but use for their truth.

The trial court enjoys broad discretion in determining the relevance of

evidence and in assessing whether concerns of undue prejudice, confusion, or

consumption of time substantially outweigh the probative value of particular

evidence. (People v. Rodrigues, supra, 8 Cal.4th at p. 1124.) ―The exercise of

discretion is not grounds for reversal unless ‗ ―the court exercised its discretion in

55

an arbitrary, capricious or patently absurd manner that resulted in a manifest

miscarriage of justice.‖ ʼ ˮ (People v. Ochoa (2001) 26 Cal.4th 398, 437-438.)

Citing People v. Edelbacher (1989) 47 Cal.3d. 983, 1027-1028, defendant

contends the trial court abused its discretion. In Edelbacher, defendant was

charged with murdering his wife, and evidence was admitted that defendant had

previously been arrested for and charged with spousal rape. (Ibid.) We rejected

defendant‘s claim that the evidence of spousal rape should have been excluded

under Evidence Code section 352 because the probative value was substantially

outweighed by the risk of undue prejudice. (Id. at p. 1028.) We concluded that

the evidence was highly relevant on the issue of motive, which was an important

issue in the case, and that the risk of undue prejudice was not excessive because no

evidence regarding the circumstances of the alleged spousal rape was admitted —

only the fact that he had been charged, tried, and acquitted of the crime was

admitted. (Ibid.)

From this, defendant mistakenly contends that Edelbacher is authority for

the proposition that only the fact of a previous legal proceeding can be admitted

for the purpose of showing motive, and any additional details must be excluded

under Evidence Code section 352. In Edelbacher, however, we merely concluded

that the lack of the details from the spousal rape trial undermined the defendant‘s

argument that he was prejudiced. We did not reach the inverse conclusion that the

presentation of the details would have been unduly prejudicial under Evidence

Code section 352. In Edelbacher the prosecution only presented the fact of the

spousal rape charge and trial and never sought to admit the wife‘s testimony, so

the probative value of her testimony was never weighed against the risk of undue

prejudice. Here, however, the prosecutor argued that the details of Williams‘s

statements were crucial to establishing his case for defendant‘s motive to murder

her. We see no abuse of discretion in the trial court‘s ruling that – given the

56

circumstance of this case — the details of Williams‘s testimony and police

statements were particularly probative for establishing defendant‘s motive for

murder and that the probative value of this evidence was not outweighed by the

risk of undue prejudice. The extent to which Williams could incriminate

defendant was an issue that was highly probative for the jury in assessing the

prosecution‘s theory that defendant took the extraordinary step of organizing her

murder from inside the jail.

Defendant renews on appeal defense counsel‘s argument that some

evidence is too difficult for a jury to consider for a nonhearsay use, even when the

jury is provided with a limiting instruction. Defendant obliquely references

Bruton v. United States (1968) 391 U.S. 123, 127-128, 135-137, which holds that

a nontestifying codefendant‘s confession implicating a defendant cannot be

admitted at a joint trial, even if the jury is instructed to disregard that confession in

determining the guilt or innocence of the defendant. Defendant‘s case does not

fall under Bruton, and we are unpersuaded that the trial court here abused its

discretion in abiding by the usual presumption that a jury will follow limiting

instructions. (See, e.g., Greer v. Miller (1987) 483 U.S. 756, 766, fn. 8.)

Finally, defendant points to the prosecutor‘s comments during closing

argument and complains that ―[r]ather than argue non-hearsay purposes for which

[the prosecutor] had purportedly introduced them, the prosecutor repeatedly

directed the jurors to believe the truth of [the] statements.‖ As recounted above,

however, after the trial court ruled that Williams‘s statements were admissible for

nonhearsay purposes, defendant expressly waived any objections to having these

statements admitted for their truth because defendant wanted to impeach Williams

as a hearsay declarant. Thus, the prosecutor‘s use of Williams‘s statements for

their truth was not improper during closing argument or at any point in the trial.

57

C. Admission of Williams‘s Hearsay Statements Through the Testimony of

an FBI Agent

Defendant contends the trial court improperly admitted double hearsay

testimony in violation of both state law and his rights under the federal

Constitution‘s Confrontation Clause. At the guilt phase, FBI Special Agent

Holliday testified that Williams told him about a conversation that Williams had

with Eric (defendant‘s brother). In this conversation, Williams said Eric told her

that he and defendant had planned a robbery at CompUSA. Eric further explained

that two robbers were involved, that they had the people tied up, and that

something had gone wrong and ―a lady was killed.‖

Defendant has forfeited this claim because he failed to object below.

(People v. Harrison (2005) 35 Cal.4th 208, 239.) As recounted in the previous

claim, defendant did raise in limine objections to other hearsay statements of

Williams, namely those in her grand jury testimony and in her tape-recorded

conversations with Inspector Grasso.40 But defendant did not make a hearsay

objection to this Williams statement reported by Holliday.

The second layer of hearsay in Agent Holliday‘s testimony is Eric‘s

statement, as recounted by Williams. Once again, defendant failed to raise a

specific challenge to the double-hearsay nature of Holiday‘s testimony. Defense

counsel did discuss Eric‘s statement as Williams reported it to Inspector Grasso in

the context of a hearing under Evidence Code 1101, subdivision (b). The trial

court stated that Eric‘s statement was arguably ―admissible under the double layer

as a statement against his own penal interest.‖ (See Evid. Code, § 1230.) Because

defense counsel failed to object to the court‘s tentative basis for considering the

statement admissible and failed to raise any subsequent hearsay objection

40 See footnote 39, ante.

58

pertaining to Holliday‘s testimony about Williams‘s report of Eric‘s statement,

defendant has forfeited this claim on appeal.

D. Failure to Produce Holliday‘s Notes or Strike his Testimony

Defendant contends the trial court should have struck Agent Holliday‘s

testimony under Evidence Code section 77141 because he declined to turn over to

the defense notes that he consulted during his testimony unless defense counsel

received permission from the FBI to obtain the notes. Defendant forfeited the

claim below because he failed to move the trial court to strike the testimony under

Evidence Code section 771. Indeed, defense counsel did not seek any ruling from

the court on the matter, and the failure to do so deprived the court of the

opportunity to remedy the asserted problem by compelling disclosure or striking

the testimony. Finally, defendant fails to provide authority that the court had a sua

sponte duty to strike the testimony under these circumstances.

E. Prosecutorial Misconduct Based on Eliciting Testimony About

Defendant‘s Collaboration in a Prior Crime with Williams

Defendant contends the prosecutor engaged in misconduct because he

elicited testimony about defendant‘s collaboration with Williams in a 1990 theft

from a computer store, Soft Warehouse, in violation of the trial court‘s in limine

ruling forbidding the presentation of evidence of defendant‘s prior thefts from

computer stores. Defendant has forfeited his prosecutorial misconduct claim by

failing to raise it below and, even if it had not been forfeited, there was no

41 Evidence Code section 771, subdivision (a) provides: ―Subject to

subdivision (c), if a witness, either while testifying or prior thereto, uses a writing

to refresh his memory with respect to any matter about which he testifies, such

writing must be produced at the hearing at the request of an adverse party and,

unless the writing is so produced, the testimony of the witness concerning such

matter shall be stricken.‖

59

misconduct because the evidence was properly admitted with a limiting

instruction.

1. Background

Citing Evidence Code section 1101, subdivision (b), the prosecution made a

pretrial motion arguing for admission of evidence that, between August 29 and

October 9, 1989, defendant entered five computer stores in Los Angeles County

and stole computers.42 The trial court denied the motion to introduce the proffered

evidence of these 1989 computer store thefts. The motion made no mention of the

1990 theft at Soft Warehouse in Torrance, California, where Williams, working as

a cashier, had allowed defendant to take several laptop computers without paying.

At trial, the prosecution called Richard Highness, an employee of the Soft

Warehouse store, who testified, without defense objection, that on November 1,

1990, a man who called himself ―Tom Jones‖ came into the store to buy computer

equipment. Highness identified defendant in court as that man. Highness gave

defendant several laptop computers (worth approximately $10,000) and a

customer service agreement to present to Williams for payment. When Highness

42 Evidence Code section 1101, subdivision (a) provides: ―Except as

provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a

person's character or a trait of his or her character (whether in the form of an

opinion, evidence of reputation, or evidence of specific instances of his or her

conduct) is inadmissible when offered to prove his or her conduct on a specified

occasion.‖

Evidence Code section 1101, subdivision (b) adds the following provision:

―Nothing in this section prohibits the admission of evidence that a person

committed a crime, civil wrong, or other act when relevant to prove some fact

(such as motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake or accident, or whether a defendant in a prosecution for an

unlawful sexual act or attempted unlawful sexual act did not reasonably and in

good faith believe that the victim consented) other than his or her disposition to

commit such an act.‖

60

reviewed the sales receipts at the end of the day, he noticed there was no receipt

for the sale to ―Tom Jones.‖ Highness questioned Williams about the incident,

who denied any knowledge of it. Highness reported the theft to the police, giving

a description of ―Tom Jones‖ as about six feet, two inches tall, thin build, and

about 38 to 40 years old.

On the following day, outside the presence of the jury, the trial court raised

some issues related to Highness‘s testimony. As the court pointed out, the 1990

Soft Warehouse theft was not included in the earlier Evidence Code section 402

hearing concerning the admissibility of defendant‘s prior crimes, where the court

had ruled that evidence of defendant‘s 1989 computer store thefts were

inadmissible. Although defense counsel did not argue that the 1990 Soft

Warehouse theft was covered by the court‘s ruling on the 1989 computer store

thefts, he expressed his surprise that that the prosecutor presented evidence of the

1990 theft. In response, the prosecutor explained that it was his understanding that

the crimes committed jointly by defendant and Williams were not subject to the

Evidence Code section 402 hearing concerning the admissibility of defendant‘s

prior crimes. The prosecutor also noted that the defense had not objected when

the prosecutor mentioned the Soft Warehouse theft during his opening statement,

in the context of recounting Williams‘s statements to Inspector Grasso, and that

the defense had withdrawn its objection to Williams‘s statements being offered for

their truth. The court stated that it would entertain a request for a limiting

instruction to the jurors about this evidence to make sure it was considered in

compliance with Evidence Code section 1101, subdivisions (a) and (b). Later at

trial, the Soft Warehouse theft was again mentioned when Grasso testified that

Williams had described her involvement with defendant in the theft. At the

conclusion of the case, the court, at the request of the prosecution, instructed the

jury as follows:

61

―Evidence has been introduced for the purpose of showing the defendant

was involved with Ardell Williams in crimes other than that for which he is on

trial, specifically, the Soft Warehouse theft on November 1, 1990 in Torrance, and

possession of stolen traveler‘s checks on September 22, 1991, in Las Vegas. [¶]

Such evidence, if believed, was not received and may not be considered by you to

prove that the defendant is a person of bad character or that he has a disposition to

commit crimes. [¶] Such evidence was received and may be considered by you

only for the limited purpose of determining if it tends to show the relationship

between the defendant and Ardell Williams and motive and intent. [¶] For the

limited purpose for which you may consider such evidence, you must weigh it in

the same manner as you do all the other evidence in the case. You are not

permitted to consider such evidence for any other purpose.‖

2. Analysis

Under the federal Constitution, a prosecutor commits misconduct when his

or her conduct ―infects the trial with such unfairness as to make the conviction a

denial of due process.‖ (People v. Morales (2001) 25 Cal.4th 34, 44.) Under

California law, a prosecutor commits reversible misconduct when ―he or she

makes use of ‗deceptive or reprehensible methods‘ when attempting to persuade

either the trial court or the jury, and it is reasonably probable that without such

misconduct, an outcome more favorable to the defendant would have resulted.‖

(People v. Riggs (2008) 44 Cal.4th 248, 298.) To preserve a claim of prosecutorial

misconduct on appeal, ―the defense must make a timely objection at trial and

request an admonition; otherwise, the point is reviewable only if an admonition

would not have cured the harm caused by the misconduct.‖ (People v. Price,

supra, 1 Cal.4th at p. 447.)

62

Defendant has forfeited his claims by failing to object below and request an

admonition. (People v. Price, supra, 1 Cal.4th at p. 447) Defendant, however,

contends that he should be excused from this requirement based on the argument

that a timely objection or request for admonition would have been futile. (People

v. Hill (1998) 17 Cal.4th 800, 820.) Defendant contends that the trial court had

previously ruled that all prior walk-in computer thefts were inadmissible, that the

prosecutor disregarded this ruling by calling Highness as a witness, and that when

a prosecutor chooses to disregard a binding ruling, any objection would be futile

because the court has already ruled in the defense‘s favor.

We reject defendant‘s contentions here. First, the trial court had not ruled

that all prior walk-in computer thefts were inadmissible; it only ruled on the

computer thefts that were the subject of the prosecutor‘s motion, which were the

five computer thefts in 1989. Second, even if the court‘s order had encompassed

the 1990 theft, there is no reason to presume that defense counsel‘s drawing the

court‘s attention to this fact would have been futile. Indeed, we presume that

judges lawfully perform their duties. Had the defense reminded the court it had

previously excluded certain evidence the prosecution was attempting to present, it

is reasonable to expect that the court would have effectuated its earlier ruling by

preventing its admission. Accordingly, defendant‘s failure to raise the issue of

supposed prosecutorial misconduct below is not excused, and his appellate claim

is forfeited.

In any event, the misconduct claim is without merit. Defendant‘s argument

that the prosecutor committed misconduct appears to be that the prosecutor misled

defendant and the trial court by not including the 1990 theft in his in limine

motion because he was asked to list the prior crimes evidence he sought to

introduce. The prosecutor, however, did not represent that the five computer

thefts in 1989 were the only prior crimes that the prosecutor would ever seek to

63

admit at trial, but only that the 1989 crimes were ―at this point in time‖ the only

ones it was seeking to present.

Moreover, the prosecutor‘s conduct here was proper because he did not

attempt to elicit inadmissible evidence. As recounted, the evidence was properly

admitted with a proper limiting instruction. The jury was instructed that this

evidence was only to be considered for the limited purposes of showing the

relationship between defendant and Williams and defendant‘s motive and intent,

and not for the purpose of showing defendant‘s bad character or predisposition to

commit crimes. As reflected in the limiting instruction to the jury, admission of

the 1990 Soft Warehouse theft was supported by the same theory of Evidence

Code section 1101, subdivision (b) admissibility under which the trial court

admitted evidence of defendant‘s and Williams‘s Las Vegas 1991 traveler‘s

checks crime — that is, the 1990 Soft Warehouse theft was relevant to show

defendant‘s closeness to Williams and defendant‘s motive to have her killed.

F. Admission of Moore‘s Testimony

As recounted, ante at pages 6 and 7, Jeanette Moore was a prosecution

witness who testified that defendant helped her to obtain a fraudulent driver

license and that defendant later instructed her to use the license to rent a U-Haul

van he intended for use in a robbery at CompUSA. Defendant unsuccessfully

moved to exclude Moore‘s testimony both at the preliminary hearing and at trial

on the ground that it was coerced through ―outrageous police conduct.‖ Defendant

contends the trial court erred in admitting her testimony because Inspector Grasso

misled Moore into believing that defendant was responsible for an attempt on her

life, which created a motive for Moore to present damaging testimony against

defendant. Defendant also contends that Moore‘s testimony at trial was coerced

because of her immunity agreement. As we conclude below, the court did not err

64

in admitting Moore‘s testimony because Grasso did not engage in police

misconduct and Moore‘s testimony at trial was not coerced.

1. Background

Before the preliminary hearing, defendant moved to exclude Moore‘s

testimony. Defendant contended that during an interview in Arizona, Inspector

Grasso misled Moore into believing that defendant was responsible for an attempt

on her life. Defendant further contended that this belief acted like a death threat

and created a continuing condition of coercion on Moore to give damaging

testimony against defendant. The magistrate denied the motion. Moore testified

at the preliminary hearing subject to lengthy cross-examination about the

interview with Grasso. Moore explained that Grasso and the Chandler Arizona

police had told her about an incident occurring the night before her interview, in

which unidentified men had entered the house where Moore had been staying,

fired guns, and stated, ―Where is that bitch at?‖ Grasso also told Moore during

this interview that defendant was responsible for Williams‘s murder. Moore stated

that Grasso did not expressly state that defendant was responsible for the home

invasion at Moore‘s former dwelling, but she assumed that defendant was because

the woman present at the house was not killed. Moore believed that the woman

had not been the target and that the unidentified men had been looking for her

instead.

Before trial, defense counsel again moved to exclude Moore‘s testimony

because of ―outrageous police conduct,‖ based on the theory that Inspector Grasso

had misled Moore into believing that defendant was responsible for an attempt on

her life, and that this belief ―established a compelling and life-threatening motive‖

for Moore to give damaging testimony against defendant. Defense counsel

contended he could not cross-examine Moore about the possible bias created by

65

her conversation with Grasso without running the risk that the jury would assume

that defendant was behind the Chandler home invasion, despite the fact that no

evidence supported such a connection.

At a hearing on the motion, Inspector Grasso testified that when he had

interviewed Moore in Arizona on June 8, 1994, he was aware of the home

invasion in Chandler the night before: two men went to a house where Moore had

previously been staying, fired several rounds into the house, and were heard to

say, ―Where‘s the bitch?‖ Grasso testified that he was concerned that the incident

could have been an attempt on Moore‘s life by defendant and that Moore could

have been in danger — Yancey had previously called Moore and sent Moore

money (and was therefore aware of Moore‘s location in Arizona), and Williams

had been killed to prevent her from testifying. Grasso had also learned from

Arizona police that one of the women living in the house thought that her ex-

husband or boyfriend might have been responsible for the incident. Grasso

acknowledged that this was a possible explanation of the incident, but he did not

mention this to Moore.

The trial court denied defendant‘s motion to exclude Moore‘s testimony

based on outrageous police conduct. The court stated that it did not find any

intentional or bad faith action by Inspector Grasso in communicating what he

knew about the Chandler home invasion to Moore. The court stated that, although

the parties now agreed that there was no evidence connecting defendant to the

incident, Grasso had not acted improperly when he related to Moore his concerns

that the incident could have been an attempt against her life and that she might be

in danger. The court stated that it would formulate an admonition to the jury that

there was no evidence connecting defendant with the Chandler home invasion if

the defense chose to raise the issue during its cross-examination of Moore as part

of a defense strategy to establish Moore‘s possible bias against defendant. But

66

neither the prosecution nor the defense raised the incident during Moore‘s

testimony at trial.

2. Analysis

We reject defendant‘s argument that Inspector Grasso‘s discussion of the

Chandler home invasion represented outrageous police misconduct. We have

acknowledged that in some instances — such as those involving statements

obtained by torture or other conduct belonging only in a police state — courts

analyzing claims of third-party coercion have expressed the view that, to ensure

the integrity of the judicial system, the evidence should be excluded without

inquiring whether the statements were unreliable or subject to the ongoing effects

of coercion. (People v. Jenkins, supra, 22 Cal.4th at p. 968.) But Moore‘s

testimony was not ―obtained by torture or by other conduct belonging only in a

police state.‖ (Ibid.) In his reply brief, defendant claims, alternatively, that

Moore‘s testimony should have been excluded not only because of outrageous

police misconduct, but also because it was coerced in violation of Moore‘s Fifth

Amendment rights. Defendant forfeited this claim by failing to raise it in his

opening brief (People v. Tully, supra, 54 Cal.4th at p. 1075), or at trial. In any

event, this claim lacks merit.

Although a defendant lacks standing to complain about a violation of a

third party‘s Fifth Amendment privilege against self-incrimination, a defendant

does have standing to assert that a violation occurred of his or her own due process

right to a fair trial because of an asserted violation of a third party‘s Fifth

Amendment right. (People v. Badgett (1995) 10 Cal.4th 330, 343.) ―[D]efendant

can prevail on his suppression claim only if he can show that the trial testimony

given by [the third party] was involuntary at the time it was given.‖ (Id. at 347.)

―The purpose of exclusion of evidence pursuant to a due process claim such as

67

defendants‘ is adequately served by focusing on the evidence to be presented at

trial, and asking whether that evidence is made unreliable by ongoing coercion,

rather than assuming that pressures that may have been brought to bear at an

earlier point ordinarily will taint the witness‘s testimony.‖ (Id. at pp. 347-348.)

―Thus, it is not enough for a defendant who seeks to exclude trial testimony of a

third party to allege that coercion was applied against the third party, producing an

involuntary statement before trial. In order to state a claim of violation of his own

due process rights, a defendant must also allege that the pretrial coercion was such

that it would actually affect the reliability of the evidence to be presented at trial.‖

(Id. at p. 348, fn. omitted.)

Defendant fails to meet his burden of showing ongoing coercion that would

have actually affected the reliability of Moore‘s testimony at trial. At most,

Inspector Grasso‘s discussion of the Chandler home invasion involved an issue of

Moore‘s possible bias against defendant. Defense counsel could have explored

this issue at trial, but chose not to, despite the trial court‘s willingness to admonish

the jury that no evidence connected defendant to the Chandler home invasion. We

also note that by the time Moore testified at defendant‘s trial, she had been cross-

examined by defense counsel for then codefendant Yancey at the preliminary

hearing about the Chandler home-invasion incident. Counsel for Yancey informed

Moore that the police report for the incident mentioned that Tanya, the woman

there at the time of the incident, had stated her belief that her ex-husband was

responsible for the shooting. Thus, before her trial testimony, Moore was exposed

to the defense position that the home invaders were seeking Tanya, another

resident of the house, not Moore. This further undercuts defendant‘s contention

that Grasso‘s discussion with Moore represented a deception that acted as an

ongoing basis of coercion when she testified at defendant‘s trial.

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As an additional argument to explain how Moore‘s testimony was coerced,

defendant contends that Moore‘s immunity agreement was coercive. Defendant

never raised this argument below and therefore has forfeited it on appeal.

Furthermore, if we were to consider this argument on the merits, we would reject

it. Defendant points to the statement in People v. Medina (1974) 41 Cal.App.3d

438, 455, that ―a defendant is denied a fair trial if the prosecution‘s case depends

substantially upon accomplice testimony and the accomplice witness is placed,

either by the prosecution or the court, under a strong compulsion to testify in a

particular fashion.‖ Defendant accurately notes that Moore was an accomplice

who received immunity for testifying truthfully. Defendant then proceeds to draw

the conclusion that ―although the requirement of truthful testimony does not seem

coercive, it in fact is.‖ Defendant contends that because Moore‘s immunity

agreement did not cover perjury at the present trial, the agreement required Moore

to testify similarly to the ―coerced‖ statements she initially gave to Inspector

Grasso ―after he put fear into her, lest the prosecutor decide that she was no longer

being truthful.‖ Not so; as Moore acknowledged in her testimony, the immunity

agreement did not require her to give testimony in conformity to any of her

previous statements, whether to the police, or in her testimony at any previous

trials or proceedings. Although any plea agreement or grant of immunity involves

a certain amount of compulsion, it is valid so long as it only requires full and

truthful testimony. (People v. Badgett, supra, 10 Cal.4th at p. 358.) Defendant

therefore fails to show improper coercion from Moore‘s immunity agreement.

G. Admission of Pseudonymous Letter Sent to Moore

While Moore was in custody at the Orange County Jail before defendant‘s

preliminary hearing, she received a two-page letter addressed to her and signed

69

with the pseudonym, ―Outlaw Jack.‖43 The letter urged her not to testify and

included a photocopy of a newspaper article describing a witness who had been

released from jail after refusing to testify at a trial.44 Defendant contends the trial

court erred in admitting this letter over defense counsel‘s objections that there was

no evidence linking defendant to the letter and that it was therefore irrelevant. As

we conclude below, the court did not abuse its discretion in admitting the letter.

1. Background

The prosecution sought to admit the letter to Moore as relevant evidence of

defendant‘s attempt to prevent Moore from testifying against him at trial. The

prosecutor linked defendant to the letter to Moore through the letter‘s connection

to inmate Sean Birney, who was housed with defendant in the same module in the

Orange County Jail. The calligraphy on the envelope of the letter sent to Moore

was distinctive and looked like the distinctive calligraphy in another letter that

Birney had written — a threatening letter addressed to Garrett, which was

confiscated from defendant‘s cell five days before Moore received the ―Outlaw

Jack‖ letter.45 The prosecution also made an offer of proof that Birney‘s

43 The letter was postmarked June 12, 1994. Moore testified at Eric‘s trial on

July 13, 1994; Moore testified at defendant‘s preliminary hearing on July 18,

1994. Moore was in custody under a section 1332 commitment to ensure her

availability as a witness.

44 The lengthy letter states the following, in relevant part: ―I am aware of why

the DA has you locked up. They can‘t make you testify. You have a right not too

[sic]. You know that. You can exercise your constitutional right against self-

incrimination. . . . I know you don‘t want to help these ruthless, unfair and evil

white folks convict the innocent.‖

45 The letter to Garrett read as follows:

―Alonzo! We just wanted to let you know that the secret meetings you‘ve

been having with those folks from Orange County aren‘t so secret. They have put

your business all in the street. Also, your friends in Gardena are recording your

(footnote continued on next page)

70

fingerprints were found on both the letter addressed to Garrett and on the envelope

of the ―Outlaw Jack‖ letter sent to Moore. The prosecutor had previously

successfully moved, over defense objection, to admit the letter to Garrett based on

the fact that the letter was seized from defendant‘s cell along with another letter, in

defendant‘s handwriting, to inmate Gordon Bridges asking Bridges to contact

Garrett. Based on the connection between defendant and Birney (based on the

letter to Garrett), the prosecutor contended that the evidence linking Birney to the

letter to Moore also linked defendant to the letter to Moore.

The defense objected that the circumstantial connection to defendant was

too tenuous to meet the prosecution‘s burden of establishing the admissibility of

the letter. The trial court disagreed, ruling that the prosecutor had shown a

sufficient nexus. The defense also objected under Evidence Code section 352. In

this analysis, the court considered whether the defense‘s possible argument that

Eric, not defendant, authorized the letter would open defendant‘s trial up to

collateral issues that would be confusing to the jury. The court overruled the

Evidence Code section 352 objection finding that the letter was not unduly

inflammatory and that its probative value outweighed its prejudicial effect on the

defense.

(footnote continued from previous page)

phone calls. And turning them over to those folks. We really thought you were

smarter. You know it never pays to make a deal with the devil. But from all the

reports and calls we see you are trading, we never thought you would go out

backwards. From a man to a bitch. You have no integrity, you weak coward. For

every action there is a [sic] equal reaction. Sleep on it!‖

As recounted, ante at pages 10 to 11 and 36 to 40, Garrett ultimately

testified at trial that defendant made incriminating statements in Garrett‘s presence

about defendant‘s concern that Williams would testify against defendant.

71

At trial, the prosecution presented evidence in conformity with its earlier

offer of proof that inmate Birney‘s fingerprints were on both the envelope and

letter sent to Moore and on the threatening letter to Garrett, which was found in

defendant‘s cell. Deputy Desens testified that, after the guards confiscated the

threatening letter to Garrett from defendant‘s cell, defendant admitted that the

letter belonged to him and asked for its return.46

2. Analysis

Defendant contends that the letter to Moore was not relevant unless

defendant authorized it — and there was, according to defendant, no evidence that

he did.47 The evidence linking defendant to the letter to Moore was through

Birney, a third party, and depended on the preliminary fact that defendant

authorized Birney to write the letter. When the relevance of evidence depends on

the existence of a preliminary fact, the trial court must determine whether the

evidence was sufficient for a trier of fact to reasonably find the existence of the

preliminary fact by a preponderance of the evidence. (Evid. Code, § 403,

subd. (a)(1); People v. Guerra (2006) 37 Cal.4th 1067, 1120, overruled in part on

46 The deputy‘s exact testimony is as follows: ―[Defendant] asked me if I

took anything from his cell. I asked him what was missing. He told me he was

missing a couple of notes. At that time I said, do you mean the kites to Bridges

and Rembert? And he said, Yeah.‖

―Kite‖ is prison slang for an unauthorized letter, i.e., one not sent through

the official prison mail system. The kite to Bridges refers to the note written in

defendant‘s handwriting that was addressed to inmate Gordon Bridges asking him

to contact Garrett, which was found together with the threatening note to Garrett

written in Birney‘s handwriting. The kite to Rembert refers to a letter to another

inmate, Rembert, apparently unconnected to the Garrett affair, which was also

among the papers confiscated from defendant‘s cell at that time.

47 Evidence is relevant if it has ―any tendency in reason to prove or disprove

any disputed fact that is of consequence to the determination of the action.‖ (Evid.

Code, § 210.)

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other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) Here, substantial

evidence supported the prosecution‘s theory that defendant had utilized Birney to

write the threatening note to Garrett. The theory was supported by the finding of

the threatening note to Garrett in defendant‘s cell along with another letter, in

defendant‘s handwriting, to inmate Gordon Bridges asking Bridges to contact

Garrett, together with the fact that defendant admitted ownership of these

materials. Defendant does not directly challenge on appeal the trial court‘s

admission of the threatening note to Garrett, but he appears to question the

significance of Deputy Desens‘s testimony. Desens‘s testimony supports the

prosecution‘s theory on the Garrett letter. Desens established that defendant was

trying to contact Garrett, and defendant was in possession of a threatening note to

Garrett written by Birney, which linked defendant and Birney together in a scheme

to dissuade at least one witness against defendant.

Based on the strength of the evidence connecting Birney to defendant‘s

scheme to dissuade Garrett from testifying, there was sufficient evidence through

Birney‘s fingerprints on the letter to Moore to permit the trial court to admit the

evidence based on the theory that defendant had also utilized Birney as part of a

plan to dissuade Moore from testifying. We therefore conclude that the court did

not abuse its discretion in finding the letter to Moore to be relevant.48

We also find no abuse of discretion in the trial court‘s denial of defendant‘s

motion to exclude the letter to Moore under Evidence Code section 352. The

court properly rejected defense counsel‘s argument that the letter should be

48 ―The decision whether the foundational evidence is sufficiently substantial

is a matter within the court‘s discretion.‖ (People v. Lucas (1995) 12 Cal.4th 415,

466.) And we will not reverse unless the trial court exercised its discretion ― ‗ ―in

an arbitrary, capricious, or patently absurd manner that resulted in a manifest

miscarriage of justice.‖ ‘ ˮ (People v. Ochoa, supra, 26 Cal.4th at pp. 437-438.)

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excluded because it could raise the question of whether Eric might be the author of

the letter, which could become a collateral issue that would confuse the jury. As it

turns out, far from becoming a confusing collateral issue to the jury, neither side

raised the issue of Eric‘s possible authorship of the letter at trial.

In his reply brief, defendant raises for the first time the argument that the

letter should have been excluded as unduly prejudicial because it was racially

charged. As part of the author‘s attempts to dissuade Moore from testifying, the

author appeals to Moore to not allow ―these ruthless, unfair and evil white folks

[to] convict the innocent‖ (i.e., defendant). Because defendant never raised this

argument below in his Evidence Code section 352 objection, he has forfeited this

argument. And defendant forfeits his additional argument, also raised for the first

time on appeal, that the newspaper article attached to the letter was inflammatory

because it described how a jailed witness was granted immunity in a gang-related

murder of a young teacher‘s aide and the shooting of his wife. In any event, these

aspects of the evidence do not make the risk of undue prejudice so substantial that

we could conclude the court acted outside the bounds of reason in declining to

exclude the letter.

H. Admission of Letters from Defendant to Yancey; Sexually Explicit

Nature of the Letters; Refusal to Agree with Defense Motion to

Stipulate that a Close Relationship Existed Between the Two of Them;

Other Crimes Evidence in the Letters

Defendant contends the trial court erred in admitting, over defense

objection, letters that defendant wrote to Yancey. Defendant contends that the

letters should have been excluded under Evidence Code section 352 because their

probative value was substantially outweighed by the risk of undue prejudice

arising from the sexual content in the letters. Defendant also contends the letters

should have been excluded under Evidence Code section 1101, subdivision (a)

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because they referred to bad acts by defendant. The court did not err in admitting

the letters.

1. Background

When police searched Yancey‘s apartment after the Williams murder, they

seized numerous letters defendant wrote to Yancey. These writings fell into two

categories: (1) 11 ―relationship letters‖ where the incarcerated defendant

expressed his love for Yancey, along with explicit sexual fantasies; and (2) the

―Billy file,‖ a file folder containing letters about defendant‘s various business

endeavors and an inventory of expenses, all in defendant‘s handwriting. The

prosecutor moved to admit both groups of writings. The prosecutor contended

that the relationship letters were relevant to show the intense relationship between

defendant and Yancey and to establish the existence of a conspiracy; the Billy file

was relevant to show economic planning between the two, as well as their close

relationship. Defense counsel objected to the admission of the relationship letters

under Evidence Code section 352 and the Billy file under Evidence Code section

1101, subdivision (b). After several hearings, the trial court excluded some pages

of the relationship letters but admitted the bulk of them, and admitted the Billy file

in its entirety. At trial, the court furnished a copy of the letters to the jurors to

read. The court admonished the jury to only use the letters for the ―limited

purpose of tending to show the nature of the relationship between Mr. Clark and

Ms. Yancey. Such evidence is not being received and may not be considered by

you to show that defendant is a person of bad character or bad morals. These

letters are not received and may not be considered by you in any way to show how

he treats women in general or Yancey in particular, nor may they be considered by

you as showing any criminal predisposition.‖

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2. Analysis

a. The Relationship Letters

―Under Evidence Code section 352, the trial court enjoys broad discretion

in assessing whether the probative value of particular evidence is outweighed by

concerns of undue prejudice, confusion, or consumption of time. [Citation.]‖

(People v. Rodrigues, supra, 8 Cal.4th at p. 1124.) ―A trial court‘s discretionary

ruling under Evidence Code section 352 will not be disturbed on appeal absent an

abuse of discretion.‖ (People v. Lewis (2001) 26 Cal.4th 334, 374.)

Defendant accurately summarizes the relationship letters as containing

―explicit sexual fantasy, in which [defendant] writes at length about such things as

having sex in public, having sex for two to four days without stopping, anal sex,

oral sex, watching other men with his woman or lesbians having sex, bondage,

incest, group sex, and videotaping sex.‖ Defendant contends that the court should

have excluded these letters under Evidence Code section 352 because the letters

―were likely to inflame the passions of the jury because they contained details of

sexual practice that would appear highly deviant to the average jurors.‖

In this particular case, however, it is precisely the strong sexual language of

the letters that renders them probative. We agree with respondent‘s

characterization that the sexual content, though perhaps distasteful to some jurors,

was essential for showing how close Yancey was to defendant and how defendant

utilized sexuality to manipulate Yancey into conspiring with him to murder

Williams. In response, defendant contends that the letters had no probative value

because they do not mention Williams by name or expressly describe a plot to kill

someone. Defendant‘s argument is unavailing. The letters are probative of the

close relationship between Yancey and defendant, and therefore circumstantial

evidence of the conspiracy to kill Williams, when considered with the other

evidence offered at trial. Also unavailing is defendant‘s argument that admission

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of the letters was unnecessary and therefore unduly prejudicial because the

closeness of the relationship between defendant and Yancey could have been

proven by other evidence, such as jail visitation and telephone records.49 As the

prosecutor correctly argued, he was entitled to present as forceful a case he could

with the evidence that he had. The content of the letters presented a whole

dimension of the relationship between defendant and Yancey that went far beyond

the mere fact that Yancey had frequently phoned and visited defendant in jail.

Defendant acknowledges that ―the letters contain themes of both [defendant‘s]

sexual domination and submission,‖ but contends this was ―merely part of a sexual

fantasy that is common to prison life.‖ Defendant forfeits this argument on appeal

because he did not present it as a basis for excluding the evidence at trial. In any

event, such an argument does not change our conclusion that the trial court acted

within the bounds of reason in ruling that the probative value was not substantially

outweighed by the risk of undue prejudice. (Evid. Code, § 352.) That defendant

shared these most intimate fantasies with Yancey was highly probative of the

closeness of their relationship, which supported the prosecution‘s case that they

conspired to murder Williams to protect defendant.

In a final related issue, at oral argument defendant made a claim concerning

defendant‘s March 9, 1994 letter to Yancey, which was the letter that included the

statement ―Babe, I will be in bed with you in a few weeks.‖ The prosecution

pointed to this statement as supporting the inference that defendant‘s reference to

his imminent release reflected his confidence in his plan to have Williams, the

chief witness against him, murdered. At oral argument, defendant contended that

49 Defendant raised this argument below at the penalty retrial, in a motion for

stipulation of a close relationship between defendant and Yancey, which is

discussed on pages 142 to 143, post.

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this statement could not be used as evidence of the defendant‘s conspiracy to kill

Williams because the trial court had given the same admonishment for the letter

containing this statement as it had for all the letters between defendant and

Yancey, namely that it was for ―the limited purpose of tending to show the nature

of the relationship between Mr. Clark and Ms. Yancey.‖ But what the trial court

meant by ―the nature of the relationship between Mr. Clark and Ms. Yancey‖

encompassed both their personal relationship and their conspiratorial relationship.

Indeed the evidence of their personal relationship was only relevant to the case

insofar as it supported the prosecutor‘s theory that they had a conspiratorial

relationship. It is clear from the record that the trial court intended that the ―be in

bed with you in a few weeks‖ letter should be presented to the jury as evidence of

the conspiracy. It was so argued to the court and was the first of the letters to be

admitted by the trial court. The prosecutor explored the conspiratorial

implications of this letter during the testimony of legal expert Attorney John

Barnett, who testified that there was no legal means by which defendant could

have anticipated being out of custody in a few weeks. (See pages 98 to 102, post.)

The defense did not object to this line of questioning of the legal expert

concerning this letter, nor did the defense object to the prosecutor‘s closing

argument, which also drew this inference. In his closing argument, defense

counsel contested that the conspiratorial interpretation of the letter was the most

reasonable interpretation, but never argued that a conspiratorial interpretation fell

outside the scope of what the letters were admitted to show. To the extent that

defense counsel raises this issue for the first time on appeal, it is forfeited.

b. The Billy File

Defense counsel sought to exclude two sections of the Billy file on the

grounds that they recounted bad acts and consequently were in violation of

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Evidence Code section 1101‘s prohibition against using evidence of misconduct to

show that defendant had a criminal character. The first section objected to

described the people that defendant wrote ―we MUST have on our team,‖ and

included the following list: ―TRW — person who can access credit profiles[;] [¶]

Bank — names, driver‘s license numbers, SSN #‘s, addresses, etc.[;] [¶] D.M.V.

— I.D‘s etc.[;] [¶] Social Security Administration — SSI cards, names, etc.[;]

[¶] Printer — one who can duplicate checks, ID, etc.[;] [¶] Post office employee

— credits cards, etc.‖

This list implied, as the trial court noted, that defendant was seeking someone

inside TRW (the credit reporting agency) to disclose credit profiles, someone at

the post office who could grab credit cards that were in the mail, someone at the

bank who could disclose personal identity information, and someone at the various

other institutions listed (including the Department of Motor Vehicles) to similarly

disclose information, along with a printer to duplicate checks and identification

cards.

The second section objected to was a letter instructing Yancey to obtain

identification using a false name and to use it to open a bank account: ―When you

get the I.D. for Keisha Jackson, open an account at Long Beach Bank. I‘ll explain

to you what the benefits are.‖

What defendant contends is that the trial court erroneously admitted these

two sections of the Billy file, over defense objection, in violation of Evidence

Code section 1101. ―[Evidence Code] [s]ection 1101 subdivision (a) prohibits the

admission of character evidence if offered to prove conduct in conformity with

that character trait, sometimes described as a propensity to act in a certain way.‖

(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405-406, fn.

omitted.) Defendant appears to argue that evidence of uncharged acts by, or

connected to, a defendant is presumptively inadmissible under Evidence Code

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section 1101, subdivision (a). But we have rejected this interpretation. ―Section

1101 subdivision (a) ‗expressly prohibits the use of an uncharged offense if the

only theory of relevance is that the accused has a propensity (or disposition) to

commit the crime charged and that this propensity is circumstantial proof that the

accused behaved accordingly on the occasion of the charged offense.‘ ‖ (People v.

Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 406.)

The trial court did not admit evidence from the Billy file to prove

propensity because the court explicitly instructed the jury that it could not use the

evidence for that purpose. As described above, the prosecution sought to admit

the Billy

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