People v. Landry

Filed 12/12/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S100735

v. )

)

DANIEL GARY LANDRY, )

) San Bernardino County

Defendant and Appellant. ) Super. Ct. No. FCH-02773

____________________________________)

Defendant Daniel Gary Landry was convicted by a jury of first degree

murder (Pen. Code,1 § 187, subd. (a)), two counts of assault by a life prisoner with

malice aforethought (§ 4500), and one count of custodial possession of a weapon

(§ 4502, subd. (a)). Additionally, the jury found true allegations that defendant

personally used a deadly and dangerous weapon in the commission of the offenses

(former § 12022, subd. (b)(1)), and that he had suffered two prior strike

convictions for first degree residential burglary (§ 459). (§ 1170.12, subds. (a)-

(d).) Following a penalty trial, the jury returned a verdict of death. The trial court

denied the automatic application to modify the verdict (§ 190.4, subd. (e)), and

sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) For

the reasons set forth below, we strike the one-year enhancement imposed on count

1 All unspecified statutory references are to the Penal Code.

1

3 (assault by a life prisoner) for personal use of a deadly weapon, and otherwise

affirm the judgment.

I. FACTS

A. Guilt Phase

1. Prosecution Case

a. Fatal Attack on Daniel Addis (Counts 1 and 2)

In August 1997, defendant and the homicide victim, Daniel Addis, were

inmates at the California Institution for Men in Chino and housed in the

administrative segregation unit (ASU). That housing unit is reserved for inmates

who present safety or management concerns, including inmates awaiting

adjudication for violations of prison rules. Defendant, who was serving a sentence

of 25 years to life under the “Three Strikes law”, was a member of a White

supremacist gang called the Nazi Lowriders (NLR), as was his cellmate Gary

Green. Defendant and Green were housed on tier 3 of ASU.

Addis, who was not a gang member, had been placed in ASU for assaulting

a staff member. He had previously been housed on tier 3, but in July, he had

asked to be moved to another tier. He told the guard to whom he made the request

that he had stolen tobacco from NLR gang members. Commission of this offense

by one who was not a member of the gang would have resulted in retaliation from

the gang. Addis was moved off tier 3 and eventually housed in a single cell on tier

1 of ASU.

Although Addis was housed on a tier different from defendant and other

NLR members, he exercised in the same yard, one of four that were segregated by

race and gang affiliation. The procedure for moving inmates from their cells to

the exercise yards involved stringent security protocols. The yard was searched

for weapons before any inmate was allowed to enter. In addition, the inmates

2

were subjected to repeated searches before they were allowed into the yard. These

included a visual strip search in their cells, passing through a metal detector, a

hand search of their person and effects and a final search by a hand-held metal

detector before they were admitted to the yard one at a time. As part of the strip

search, they were required to squat and cough to determine if they were trying to

smuggle contraband in their rectums. Once allowed into the yard, inmates were

required to line up against the fence until all inmates were in the yard.

Correctional officers in the guard tower could observe all four exercise yards.

On Sunday, August 3, 1997, all of the White inmates, except Addis, had

entered their exercise yard. Defendant‟s cellmate, Gary Green, who was a “shot

caller” and leader of the NLR gang, started yelling at the gate guard, Rosamaria

Maldonado, to let Addis out into the yard. Inmates were subject to monthly

classification reviews to determine, among other matters, whether they were

eligible for the yard. If they were eligible, each decided whether to avail himself

of the yard privilege. Addis was eligible to go into the yard and had done so the

previous Thursday without incident.

Maldonado went to her superior, Sergeant Arioma Sams, and told him the

other inmates were demanding that Addis be brought out into the yard. Sams

testified that he checked the yard for unusual activity but did not observe any.

Timothy Ginn, another guard on duty that day, testified he told Sams that if Addis

went out into the yard he might get “beat up.” Sams replied that their hands were

tied because Addis had a right to go into the yard if he wanted to. Ginn told Addis

“you don‟t have to go if you don‟t want to.” Addis replied, “Fuck that. I want to

go.” Laramie McAlmond, another guard, testified that she overheard Ginn‟s

conversation with Addis and confirmed that Addis said he wanted to go out to the

yard. She testified that Addis said, “Everything‟s squashed,” which is prison slang

for everything is settled and there are no problems.

3

Addis was released into the yard at 9:30 or 9:45 a.m., about 30 to 45

minutes after defendant and Green had entered the yard. Officer Frank Esqueda,

one of the two tower guards on duty, testified that Addis joined the other inmates

in exercises, and then walked around and talked to a few inmates. Esqueda

observed Green and defendant walking back and forth and talking, but despite the

fact that Green had demanded that Addis be brought out, Green initially ignored

Addis. Green acknowledged Addis at 11:15 a.m., when the showers typically

were turned on. Green and Addis were standing by the showers, and Green shook

his hand and told him, “It‟s all right, Danny. Go ahead and play cards.” Addis

then walked to a card table and sat down to play pinochle with other inmates.

About 10 or 15 minutes later, Green and defendant walked from the showers to the

table, talking back and forth. When they arrived at the table, defendant stood to

the left of Addis, and Green stood to the left of defendant. One or two minutes

later, Esqueda saw defendant make a sudden movement with his left hand to

Addis‟s neck.

Another inmate, Ricky Rogers, who was playing at the same table, also

observed defendant approach and stand behind Addis. Rogers testified that

defendant and Addis had a friendly conversation about a third inmate. Rogers saw

defendant raise his arm “real fast,” and then heard a sound like a punch. Addis

stood up from the table and put his hand to his neck. When he pulled his hand

away, blood was streaming from his neck. He dropped to his knees and then fell

over.

From the tower, Officer Esqueda also saw Addis reach for his neck and saw

blood flowing from it. Esqueda ordered the inmates in the yard to get down on the

ground. Everyone complied except defendant and Green, who continued running

across the yard. Defendant and Green complied only after Esqueda fired a “gas

launcher” that shot a wooden baton block into the yard. When defendant went on

4

the ground, a weapon popped out of his left hand and landed in front of him. At

trial, the weapon was described as a stabbing instrument consisting of a sharpened

piece of metal covered by a sheath made from cellophane and cardboard and

wrapped with string.

Addis was removed from the yard bleeding profusely, and died en route to

the hospital. An autopsy established the cause of death was massive blood loss

caused by the severance of his jugular and subclavian veins. A great deal of force

was required to inflict the fatal wound.

After Addis was removed from the yard, correctional officers cleared it of

the inmates one at a time. The inmates remained prone until they were removed.

Defendant‟s left hand and the stabbing instrument found near his hand were

bloody. Defendant was giggling and laughing as he lay on the ground. Later he

was examined and photographed. He had blood on his left hand and boxer shorts,

but was uninjured. The stabbing instrument recovered near defendant was

consistent with a weapon that would inflict the fatal wound Addis received.

Ten days after defendant attacked Addis, he threatened to flood the tier

where he was housed unless he was moved. The officer to whom he made the

statement told him he could not be moved because of the ongoing investigation

into Addis‟s killing. Defendant replied, “I killed him so I confess. The

investigation is over.”

Defendant wrote two letters, one dated September 9, 1997, and the other

September 22, 1997, to Joseph Lowery, another NLR member imprisoned at

Corcoran State Prison. Glen Willett, a prison gang expert testified that

defendant‟s use of certain phrases identified him as an NLR gang member and that

other references were to the Addis homicide. The letters are described more fully

below in connection with defendant‟s challenge to the letters‟ admission into

evidence. (See post, pp. 34-40.)

5

b. Attack on Joseph Matthews (Count 3)

On September 18, 1997, Officers Lourenco and Perez were escorting

inmate Joseph Matthews from the showers to his cell when defendant called out

from his cell, “Joe, want a cigarette.” Matthews broke away from the officers and

ran toward defendant‟s cell. Matthews, whose hands were cuffed behind his back,

turned his back toward defendant‟s cell door and put his hands at the porthole

opening of the door, reaching for something. Neither officer saw any object being

transferred. A moment later, Matthews stepped away and said, “I‟m cut.”

Matthews‟s back was bleeding from a deep gash 7 to 8 inches long and three-

quarters of an inch wide. Within seconds after Matthews stepped away from the

cell door, the officers heard the sound of defendant flushing the toilet. It was

impossible to retrieve items flushed down the toilet, but Jeffrey Killian, a medical

technician on the floor, testified that Matthews‟s wound was inflicted with a razor.

Fourteen stitches were required to close Matthews‟s wound. Three weeks after the

attack, Matthews told an investigator that defendant had pulled out a razor blade

attached to a toothbrush which he used to attack Matthews, and then flushed the

razor down the toilet.

c. Custodial Possession of a Weapon (Count 4)

On October 15, 1997, officers entered defendant‟s cell, of which he was the

sole occupant, to allow him out of the tier to exercise. When Officer Lopez

opened defendant‟s cell door, a sharp metal object fell to the floor. Defendant

smiled and shrugged. The object was a one-inch long piece of metal, shaped like a

dagger and known in prison as a “spearhead.” In a subsequent search of the cell,

officers also recovered a razor blade that had been removed from the disposable

razors given to inmates for shaving.

6

2. Defense Case

The defense conceded defendant‟s guilt on counts 3 and 4, the attack on

Matthews and the possession of a weapon, and focused its efforts on counts 1

and 2, the killing of Addis. With respect to the attack on Addis, the defense

argued that defendant acted out of duress because he himself would have been

killed if he had not attacked Addis as ordered by Green and the NLR. As a

corollary, he maintained that the prison guards knew Addis was going to be

attacked and allowed it to happen in retaliation for Addis‟s assault on a prison

guard, thus foreclosing defendant from obtaining protection from prison

authorities. Defendant sought to establish his defense through the testimony of

Officer Rosamaria Maldonado, the guard who had expressed concern about

Addis‟s safety to Sergeant Sams, and two prison experts. Defendant himself did

not testify.

By the time Rosamaria Maldonado testified, she had left the Department of

Corrections after filing a stress claim seeking workers‟ compensation benefits. In

that claim, she cited the Addis killing, among other incidents, as contributing to

her stress. With respect to the events of August 3, 1997, she testified that Green

had been insistent that Addis come out to the yard. She thought Addis might have

safety issues if he went out to the yard, and she told Addis, “You must be packing

for them because they‟re dying to see you.” By this, she meant that Addis must be

concealing drugs or weapons. He looked at her and smiled and she let him out

into the yard. After releasing Addis into the yard, Maldonado observed that Green

merely nodded and did not greet Addis as he usually did, with a hug and a kiss.

When Maldonado walked back into the building, she told Sergeant Sams, “You

know, Sarge, they‟re going to take him out.” Sams responded, “Come on, we got

a lot of work to do.” She and Sams left the area to conduct cell searches. About

two hours later, she heard a gas launcher in the exercise yard. She was one of the

7

officers who responded to the yard to help Addis. In addition, after he was carried

out of the yard on a stretcher, she rode in the ambulance with him. Addis died as

she was performing CPR on him.

At trial, Maldonado denied the existence of any conspiracy between the

guards and Green to kill Addis, and denied that her fear for Addis‟s safety was

anything other than a “gut feeling.” She had previously been unaware that Addis

had been placed in ASU because he had hit a guard. However, according to Dr.

David Friedman, from whom she sought counseling, Maldonado told him that they

knew “an inmate was to be killed. We all knew it. I told the supervisor that he

would be killed if we let him out of his cell.” She also told Dr. Friedman that she

had told her sergeant, “They are going to kill him.”

Confronted with these statements at trial, Maldonado claimed that

Dr. Friedman had paraphrased what she told him, and that she did not make the

statements he attributed to her. She denied telling him “I tried to stop it,” or that

“They killed him because they thought he was giving information to us, which he

was. He used to talk to [Officer] Kaffenberger a lot.” She similarly testified that

statements attributed to her by Dr. Donald Feldman, who examined her in

connection with her workers‟ compensation claim, were also paraphrases. In the

statements attributed to her by Dr. Feldman, she allegedly said she had told

Sergeant Sams an inmate was likely to be killed if they let him out of his cell, and

that Sams had shrugged.

The defense also called as a witness James Gleisinger, who assisted

Freidman in worker‟s compensation evaluations. Gleisinger testified that he

interviewed Maldonado and set forth in his report Maldonado‟s verbatim

statements to him. Among the statements in his report were: “ „She recalls “the

most dramatic thing was about 18 months ago an inmate was to be killed. We all

knew it. I told the supervisor that he would be killed if we let him out of his

8

cell,” ‟ ” and “ „ “That inmate was let out even though everyone knew he would be

killed if he was let out. I tried to stop it. That could open up a big can of worms.

I told my sergeant that they‟re going to kill him. [¶] „She states that Sergeant

Sams “shrugged his shoulders.” ‟ ”

Two prison experts testified for the defense. Steven Rigg, a 17-year

veteran of the Department of Corrections, from which he had retired in 1998 as an

acting captain, reviewed materials relevant to the attack on Addis and testified that

the guards had repeatedly mishandled the situation. In Rigg‟s opinion, Green

should have been removed from the yard and disciplined for causing a disturbance

by demanding that Addis be brought out. Rigg also testified that the guards

should have known Green‟s demand that Addis be brought to the yard indicated

trouble because Addis was not an NLR member and had been moved to a different

tier under circumstances that showed he was in trouble with the NLR. The fact

that Addis had stolen tobacco and “rolled off the tier” put him at risk. Rigg

testified that once Maldonado informed Sergeant Sams that “they‟re going to take

him out,” the tower guard should have been instructed to remove Addis from the

yard. According to Rigg, the fact that Addis was yard eligible should not have

prevented Sams from removing him from the yard once he received information

that Addis might be assaulted or killed. Rigg further testified that Green‟s initial

failure to greet Addis, followed by his attempt to engage him, showed a “setup.”

Under those circumstances, the tower guard should have ordered the inmates to

the ground and searched for weapons when he saw Green and defendant approach

Addis as he was playing cards.

Rigg also testified about prison gangs generally. According to Rigg, if a

gang member received an order from a gang leader to carry out an assault, he was

expected to do so. If he failed, the inmate would put himself at risk to be assaulted

or killed. Further, after carrying out the assault, the gang would expect the inmate

9

not to show any concern for the victim. To do so would be considered a sign of

weakness.

Applying these observations to defendant‟s situation, Rigg opined that, had

defendant failed to assault Addis, he would have been “a walking dead man.” He

could not have obtained assistance from the correctional staff without requesting

protective custody, and even in protective custody, inmates have been assaulted

and killed. Moreover, Rigg testified, the sequence of events showed that Sergeant

Sams “possibly wanted [Addis] assaulted,” in that Sams failed to take action to

protect Addis. Furthermore, the light administrative punishment imposed on

Green for his involvement in the attack — a 360-day credit loss without a term in

ASU — showed, in effect, that the Department of Corrections “did not punish him

for being involved in the conspiracy as charged, yet they found him guilty.”2

Anthony L. Casas also testified as a prison expert. Casas had worked for

over 22 years in the Department of Corrections, retiring as associate warden at San

Quentin. He was particularly involved in dealing with prison gangs. Casas

testified that inmates become involved in prison gangs in various ways. A gang

may offer a new inmate protection in return for which the inmate will be expected

to do the gang‟s bidding. If the inmate refuses, the gang will tell him he cannot

disrespect the gang after it helped him. While some inmates who are big and

2 Sergeant Sams accused Green of involvement in a conspiracy to assault

Addis, and of ordering the “hit” on Addis. The hearing officer found the

allegations to be true. On Ocrober 10, 1997, Green was given a warning and a

reprimand, and was assessed 360 days of credit. He was also referred to the

institutional classification committee for a program review and to the Bureau of

Prison Terms (now Board of Parole Hearings) regarding his rule violation.

Sergeant Sams did not recommend that Green be given a term in a security

housing unit or any other special type of confinement. Green was paroled on

October 30, 1997, 20 days after this punishment was imposed.

10

strong may be able to avoid gangs, someone like defendant, who is five feet six

inches tall, and then weighed 150 pounds, might need the gang‟s protection.

Additionally, an inmate serving a long prison term will do what he can to be

protected in prison.

Casas testified that with most gangs, the only way out is death. If a gang

orders a member to commit a crime and he fails to do so, “[h]e can easily be

killed. As a matter of fact, in most cases where your gangs are disciplined enough,

that‟s precisely what happens . . . . You follow or you‟re gone.” Once an inmate

has carried out an order to commit an assault, he is expected to show pride and

brag about the crime. Any show of regret would be seen as a sign of weakness,

and the inmate could be thrown out of the gang or killed. Casas testified further

that inmates observe staff. Based on his review of how staff handled Addis, Casas

opined that an inmate would have concluded it was useless to rely on staff for

safety.

Like Rigg, Casas criticized the staff‟s handling of the situation in this case.

He agreed that once Sams had been warned by Maldonado about the danger to

Addis, Addis and Green should have been removed from the yard and an

investigation should have been conducted. Like Rigg, Casas testified that Addis‟s

yard eligibility would not have prevented Sams from removing him from the yard

once Sams learned of the threat to Addis‟s safety.

B. Penalty Phase

1. Prosecution Case

The prosecution‟s penalty case in aggravation relied on multiple incidents

of prior criminal activity by defendant involving “the use or attempted use of force

or violence or the express or implied threat to use force or violence.” (§ 190.3,

factor (b).) To that end, the prosecution presented evidence that, while in prison,

11

defendant had committed multiple stabbings and attempted stabbings, and assaults

on staff. It also presented evidence of numerous instances of assault and of

possession of a weapon, all of them independent of those in the current case,

including eight occasions on which he possessed a weapon, four instances of

stabbing another inmate and one attempted stabbing of another inmate, a battery

on an officer, and an assault on a staff member.

Additionally, the prosecutor‟s cross-examination of a defense witness

brought out details of defendant‟s juvenile criminal record, which included two

theft-related charges. The same witness also testified that when defendant was 19

years old, he pleaded guilty to three counts of residential burglary, one count of

second degree burglary, and one count of grand theft of an automobile. In the

same proceeding, six other theft-related counts were dismissed. Defendant was

committed to the California Youth Authority for these offenses. The jury also

heard about defendant‟s plea to one count of escape from the California Youth

Authority, after which he was transferred to an adult prison.

2. Defense Case

As described by defendant in his appellate briefing, the defense case in

mitigation “chronicled [defendant‟s] physical, sexual, and mental abuse as a child

and the long-term consequences of those experiences, including posttraumatic

stress disorder, multiple suicide attempts, schizoid personality disorder and bipolar

disorder. [Defendant] also presented evidence that his criminal activity in state

prison resulted from the denial of adequate mental health care and treatment by

prison staff.”

Testimony regarding defendant‟s family history was provided by his two

maternal aunts, his maternal grandparents and his father. Both of defendant‟s

parents were deaf. His mother, Linda, was described as having severe “mental

12

problems” that manifested themselves in the out-of-control behavior she displayed

beginning in adolescence. For example, between the ages of 11 and 13, she set “a

lot” of fires, including to the garage and to curtains in the living room. She once

threatened one of her sisters with a knife. Later, she attacked a pregnant neighbor

with a knife while the woman was showering and her husband was mowing the

lawn. After that incident, she was removed from her parents‟ home and lived in a

series of foster homes.

Linda married Gary Landry when she was 20 or 21. Their marriage was

marked by constant fighting over what Gary perceived as Linda‟s deficiencies as a

wife and a mother. When Gary learned that Linda was having affairs with women,

he painted “bad wife” and “bad mother” on the walls of their residence. Linda

drew graphic pictures of women having sex with each other on the walls above

defendant‟s crib.

Neither parent nurtured or provided the basic necessities to defendant when

he was an infant and toddler. Gary was a hard worker, but when he got home

from work, he ignored defendant and instead spent time with his friends in the

garage. Linda was a drug user and extremely neglectful mother. When members

of her family would visit, they would discover defendant alone in his play pen,

hoarse from crying and yelling. No one had responded to his cries. Linda‟s

family installed a light-flickering system to alert her when defendant was crying.

The house was filthy and defendant crawled on a floor littered with broken glass

and curdled milk. When he was old enough to walk, defendant would get out of

his crib and wander the neighborhood. His grandparents, who lived nearby, once

discovered him asleep beneath their car. Another time, he was found scavenging

for food in the neighbor‟s garbage cans.

When defendant was four years old, he went to live with his grandparents.

A year later, his mother regained custody, but a few months later she returned him

13

to her parents permanently. When defendant first went to live with his

grandparents, he did not talk, but grunted and pointed. He had nightmares and

hoarded food beneath his bed. When he returned to his grandparents, they took

him to mental health professionals because he seemed inaccessible. He continued

to receive psychiatric care, including hospitalization, throughout his childhood and

adolescence.

Nonetheless, defendant had problems outside the home, starting with being

disruptive in kindergarten. He was repeatedly suspended in high school. At 15

years old, he and a friend burglarized the friend‟s house. When he was 16 or 17

years old, he stole a car, after which he entered the juvenile justice system and

never again lived with his grandparents. He spent the rest of his adolescence at

various juvenile camps from which he periodically attempted to escape. During

this period, defendant was diagnosed as suffering from atypical depression and

attention deficit hyperactivity disorder, for which he was medicated. It also

emerged during his interviews with mental health professionals that he had been

sexually abused by his father‟s best friend and by a friend of his mother‟s.

Defendant was described by these mental health professionals as depressed and

suicidal. All of these issues were related to the trauma he suffered in his first four

years.

Defendant‟s adult criminal history began when, at 19 years old, he pleaded

guilty to three counts of theft-related first degree residential burglary, one count of

grand theft auto, and one count of second degree commercial burglary. In lieu of

prison, he was sent to the California Youth Authority where he was evaluated by

James Cueva, a casework specialist, who testified at defendant‟s trial. According

to Cuevas, defendant was depressed and suicidal, and had no goals, plans, or

expectations for life. Cuevas recommended intensive treatment for defendant to

address his severe mental and emotional problems.

14

Dr. Joseph Lantz, a clinical psychologist, interviewed and tested defendant.

He reviewed statements by defendant‟s aunts and spoke to his grandparents.

Lantz testified that defendant‟s early years were akin to those of “a feral child,”

and produced the mental problems that plagued him into adulthood. He diagnosed

defendant as suffering from “schizoid personality disorder,” which is characterized

by a “marked detachment from relationships.” Victims of this disorder prefer

solitude to human contact and are easily manipulated by other people. Lantz

testified that, despite defendant‟s history, he was not “a character[o]logically

violent person.”

Dr. Frank Gawin, a psychiatrist, reviewed defendant‟s medical records and

concluded that defendant suffered from bipolar disorder. He testified that prison

officials were well aware that defendant suffered from this disorder as well as

other emotional and psychological problems. Both defendant‟s grandmother and

defendant himself had written to prison officials and elected officials requesting

treatment for his mental health issues. According to Gawin, any treatment

defendant received was “entirely inadequate.”

Dr. Glenn Lipson, a forensic psychologist, testified about inmate mental

health services in general, as well as defendant‟s particular case. He met with

defendant and also reviewed records related to his mental health and treatment in

custody. Lipson concluded defendant suffered from schizoid personality disorder

and bipolar disorder. He testified that prison aggravated defendant‟s mental

disease, and he attributed defendant‟s acts of violence in prison to the “diathesis-

stress model” of behavior, i.e., the violent and stressful atmosphere of

incarceration pushed defendant, who already suffered from mental illness, “over

the edge.” Based on his review of defendant‟s prison records, Lipson testified that

the treatment defendant received failed to meet the standards required for inmate

mental health services.

15

Finally, Anthony Casas, who had testified at the guilt phase, returned at the

penalty phase to testify about conditions at Calipatria State Prison where

defendant‟s first violent actions occurred. He testified that prison was staffed by

inexperienced guards and less-than-qualified supervisors. The prison developed a

reputation as being violent and out of control. Casas also testified that in 2000 he

attempted to broker a deal in which defendant would provide information about

the NLR to prison officials, but the officials concluded his information was stale.

A similar deal with the Federal Bureau of Investigation failed to materialize

because the San Bernardino District Attorney declined to participate.

II. GUILT PHASE CLAIMS

A. Review of Sealed Records

1. Introduction

Defendant requests that this court review certain records to which the trial

court denied him access in whole or in part following an in camera review, and

determine whether the trial court abused its discretion in denying him discovery of

those records. The records fall into three categories: (1) the confidential

correctional inmate files maintained by the Department of Corrections for Daniel

Addis, Gary Green and defendant himself (the C-files); (2) the personnel files of

Correctional Officers Esqueda, Sams and Maldonado; and (3) additional medical

and personnel files of Officer Maldonado pertaining to her medical retirement

from the Department of Corrections.

2. Background

a. C-files

Before trial, defendant served a subpoena duces tecum on the Department

of Corrections, in which he sought his own C-file. (§ 1326.) Thereafter, he filed a

pretrial motion for discovery in which he requested, among other things, the C-

16

files for Green and Addis. (§ 1054 et seq.) Defendant argued that discovery of the

C-files was necessary for him to determine whether the hearing officer who

conducted Green‟s rules violation hearing arising out of his participation in the

assault on Addis had relied upon “undisclosed sources.” He contended the files

might (1) contain information to support his duress defense; (2) lead to evidence

that correctional staff knew, or should have known, about the attack on Addis; and

(3) disclose whether there were any internal investigations regarding the attack on

Addis and if any correctional staff had been disciplined as a result of such

investigations.

The Attorney General, representing the Custodian of Records for California

State Prison at Corcoran, moved to quash the subpoena or, alternatively, for the

court to conduct an in camera hearing to determine whether the files should be

disclosed. The Attorney General argued that the files were presumptively

privileged, and disclosure of them would be contrary to the public interest. (See

Evid. Code, § 1040, subd. (b)(2) [a public entity may refuse to disclose

confidential information if “[d]isclosure of the information is against the public

interest because there is a necessity for preserving the confidentiality of the

information that outweighs the necessity for disclosure in the interest of justice”].)

He asserted the discovery request was overbroad, and cited the need to protect

individuals, such as informants, who would be endangered if their identities were

disclosed. He further noted that if informants‟ identities were not kept

confidential, inmates would be reluctant to cooperate in investigations. Finally, he

urged that to protect the privacy rights of prisoners, confidential information

regarding prisoners should not be released indiscriminately.

The trial court agreed to examine the three C-files in camera before trial to

determine what, if anything, in them was discoverable. Following its review, the

court granted defendant partial access to all three C-files, most extensively those

17

of Green, and to a lesser extent, defendant‟s own file. It disclosed a single page of

Addis‟s file. During trial, defendant renewed his request to examine Addis‟s file

after the prosecution turned over to him an incident report detailing Addis‟s

assault on a correctional officer. The trial court denied the request.

b. Officer Personnel Records

By subpoena duces tecum and an accompanying discovery motion,

defendant sought the personnel files of 14 correctional officers. Defendant sought

material from the files reflecting: (1) lack of credibility;

(2) “dishonesty/untruthfulness/veracity/false arrest/conduct unbecoming an

officer/neglect of duty”; and (3) acts of moral turpitude. The Attorney General,

representing the California Department of Corrections, moved to quash the

subpoena. The trial court preliminarily granted the discovery motion as to

Officers Esqueda and Maldonado and Sergeant Sams. It denied the request for the

personnel files of the remaining 11 officers based on defendant‟s failure to meet

the threshold requirement of good cause for disclosure of police personnel records.

(See Evid. Code, § 1043, subd. (b)(2); Garcia v. Superior Court (2007) 42 Cal.4th

63, 70-71.)3 The trial court later reviewed the personnel files of Esqueda,

Maldonado and Sams and concluded they contained no discoverable material.

c. Records Related to Officer Maldonado’s Retirement

After the trial had commenced, the prosecutor informed defense counsel

that Officer Maldonado had retired a year after the assault on Addis because of

“significant emotional and mental health issues” arising from her involvement in

that incident. Defendant then served subpoenas on the State Compensation

3 On appeal, defendant does not argue the trial court erred in concluding he

had failed to show good cause for the personnel records of the other 11 officers.

18

Insurance Fund (SCIF) and the California Institution for Men (CIM), seeking

records related to Maldonado‟s retirement from the Department of Corrections.

The Attorney General, representing the California Department of Corrections,

opposed the discovery request, arguing that the records were part of Maldonado‟s

police personnel files as to which the court had already found no discoverable

material.

The trial court conducted a hearing on the motion. It stated it had received

records from SCIF and CIM related to Maldonado‟s retirement. Additionally, the

records of Dr. Friedman, the psychiatrist who examined Maldonado in connection

with her retirement, were produced by Dr. Friedman in response to a defense

subpoena. Following an in camera review of the records, the court allowed

counsel for both parties to copy any records from the Friedman file they found

relevant. It denied the discovery motion as to the SCIF and CIM records, finding

there was nothing relevant in those records that was not also contained in the

Friedman file. Defendant later sought to discover records of an investigation into

Maldonado‟s workers‟ compensation claim made by an entity called Singleton

Investigations at the request of the SCIF. The trial court reviewed the records and

found nothing discoverable.

3. Discussion

Evidence Code section 1040, subdivision (b)(2), authorizes the trial court to

decline to disclose confidential records maintained by a public entity when it finds

“the necessity for preserving the confidentiality of the information . . . outweighs

the necessity for disclosure in the interest of justice.” (See People v. Suff (2014)

58 Cal.4th 1013, 1059; People v. Avila (2006) 38 Cal.4th 491, 606.) This

provision is applicable to prison inmate records. (Ochoa v. Superior Court (2011)

199 Cal.App.4th 1274, 1281.) As the Ochoa court observed, the state has a valid

19

interest in maintaining the confidentiality of such records to “(1) protect

individuals, including informants inside and outside of prison, (2) ensure

institutional security, and (3) encourage candor and complete disclosure of

information concerning inmates from both public officials and private citizens.”

(Id. at p. 1280.) In addition, disclosure of police personnel records requires a

threshold showing of good cause after which the trial court “screen[s] law

enforcement personnel files in camera for evidence that may be relevant to a

criminal defendant‟s defense.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225.)

In either case, the trial court‟s ruling is reviewed for abuse of discretion. (Avila, at

p. 607 [no abuse of discretion where trial court withheld access to a witness‟s

parole records]; People v. Hughes (2002) 27 Cal.4th 287, 330 [“A trial court‟s

ruling on a motion for access to law enforcement personnel records is subject to

review for abuse of discretion”].)

Defendant asks that we review all records not disclosed to him by the trial

court — the C-file records of defendant, Addis and Green, the personnel records

of Officers Esqueda and Maldonado and Sergeant Sams, and the files of SCIF,

CIM and Singleton Investigations related to Maldonado‟s retirement — and assess

whether the trial court‟s rulings were proper. “Parties who challenge on appeal

trial court orders withholding information as privileged or otherwise

nondiscoverable „must do the best they can with the information they have, and

the appellate court will fill the gap by objectively reviewing the whole record.‟ ”

(People v. Price (1991) 1 Cal.4th 324, 493.) We have reviewed the record and

conclude that the trial court did not abuse its discretion in rejecting disclosure of

the materials.

We also conclude that the trial court‟s inadvertent failure to provide

defendant with one document from Addis‟s C-file did not require the court to

allow defendant to review Addis‟s entire C-file. As noted above, during trial,

20

defendant renewed his request for access to Addis‟s file after the prosecution

turned over to the defense an incident report regarding Addis‟s assault on a

correctional officer. According to the prosecution, it had obtained the document

from the person who investigated the assault by Addis, but the prosecution

apparently did not realize the document was relevant until it heard defendant‟s

opening statement, which reflected a theory that correctional officers were

complicit in the attack on Addis. Because the trial court had also failed to disclose

the document, the defense asked to be allowed to review Addis‟s entire C-file to

see if it contained other relevant documents. The trial court responded that it had

reviewed the file two more times, “page by page,” and had discovered that the

incident report at issue had been attached to a different report that involved a

different incident. The court further stated that it found no other documents that

were discoverable, and it denied defendant‟s request. We find no abuse of

discretion in the court‟s decision and, as noted above, we have reviewed the file

and found no discoverable documents.

Finally, defendant requests that the court allow appellate counsel to review

Addis‟s C-file in accordance with appellate counsel‟s duty to “preserve evidence

that comes to the attention of appellate counsel if that evidence appears relevant to

a potential habeas corpus investigation.” (Cal. Supreme Ct., Supreme Court

Policies Regarding Cases Arising from Judgments of Death (2008) policy 3, std.

1-1.) We decline his request. The files are preserved in the appellate record.

B. Denial of Motion to Sever Counts

Defendant contends the trial court abused its discretion in denying his

motion to sever counts 1 and 2 (the attack on Addis) from counts 3 (the attack on

Matthews) and 4 (possession of a weapon by an inmate). He further contends the

denial of severance violated his rights to due process, a fair trial, a trial by jury,

21

and reliable capital case proceedings. (U.S. Const., 5th, 6th, 8th, & 14th Amends.;

Cal. Const., art. I, §§ 7, subd. (a), 15, 16, & 17.) His contentions are without

merit.

In the trial court, defendant argued that separate trials were required

because (1) there was an absence of cross-admissible evidence between counts 1

and 2 (the killing of Addis) and counts 3 and 4 (the attack on Matthews and the

custodial possession of a weapon); (2) the evidence supporting counts 3 and 4 was

weaker than the evidence supporting counts 1 and 2; (3) consolidation would

inhibit defendant‟s willingness to testify with respect to counts 1 and 2; (4) the

Eighth Amendment required heightened scrutiny of joinder because counts 1 and 2

rendered him death eligible; and (5) judicial economy would be served by separate

trials because counts 3 and 4 involved distinct incidents and distinct evidence. At

defendant‟s request, the trial court also considered an in camera offer of proof

regarding defendant‟s testimony and how consolidation might affect his

willingness to testify.

In denying the motion, the trial court found that defendant had failed to

make an adequate showing of a substantial danger of prejudice. The court found

further that “the four charges involved conduct by the defendant while in prison in

the California Institution for Men within a two-month period. Each occurred at

[the] Palm Hall unit of [the] California Institute for Men. [¶] The offenses are of

the same class of crime, either assaultive conduct by a prisoner or the possession

of a prison-made weapon necessary to commit similar assaults. Each of the

offenses involved prison-made weapons. Each of the assaults [was] committed

with prison-made weapons against fellow prisoners. None of the charges appear

to be weak in relation to the other. And the prejudice to the defendant would be

small.”

22

The joinder of charges is addressed in section 954: “An accusatory

pleading may charge two or more different offenses connected together in their

commission . . . or two or more different offenses of the same class of crimes or

offenses, under separate counts . . . ; provided, that the court in which a case is

triable, in the interests of justice and for good cause shown, may in its discretion

order that the different offenses or counts set forth in the accusatory pleading be

tried separately or divided into two or more groups and each of said groups tried

separately.” The legislative preference for consolidation under either of the two

circumstances set forth in section 954 is intended to promote judicial efficiency.

(People v. Capistrano (2014) 59 Cal.4th 830, 851.)

Defendant presents two theories of error. First, he contends count 4 was

not properly joined with the first three counts because count 4, custodial

possession of a weapon, did not involve assaultive conduct, and therefore was not

of the same class as count 1 (premeditated murder) and counts 2 and 3 (assault by

a life prisoner). Second, he contends the trial court abused its discretion in

declining to sever counts 1 and 2, which arose from the assault on Addis, from

counts 3 and 4, which arose from the assault on Matthews and the possession of a

weapon.

Joinder of the four counts was proper because the counts were all of the

same class. “Offenses of the same class are offenses which possess common

characteristics or attributes.” (People v. Smallwood (1986) 42 Cal.3d 415, 424,

fn. 5; see People v. Kemp (1961) 55 Cal.2d 458, 476.) With respect to the joinder

of count 4 to the other counts, the trial court noted that all four offenses occurred

in the custodial context and involved a prison-made weapon. In addition, sections

4500 (assault by a life prisoner) and 4502 (custodial possession of a weapon) serve

an identical purpose — to prevent assaults by armed prisoners on prison staff and

other inmates. (See People v. Custodio (1999) 73 Cal.App.4th 807, 812 [“By

23

prohibiting prison inmates from possessing any instrument or weapon of the kind

specified in the statute, section 4502, subdivision (a) is intended to protect inmates

and correctional staff „from the peril of assaults with dangerous weapons

perpetrated by armed prisoners‟ ”]; People v. Superior Court (Gaulden) (1977) 66

Cal.App.3d 773, 778 [“Section 4500 was enacted for the purpose of promoting

prison safety by discouraging assaults by prison inmates”].) Therefore, despite the

fact that section 4502 does not require an intent to use the weapon (People v.

Rodriguez (1975) 50 Cal.App.3d 389, 395), that offense as charged shares

common characteristics with the assaultive offenses charged in this case, and is,

therefore, of the same class.

Joinder was also proper because the offenses were “connected together in

their commission.” (§ 954.) “[O]ffenses which are committed at different times

and places against different victims are nevertheless „connected together in their

commission‟ when they are, as here, linked by a „ “common element of substantial

importance.” ‟ [Citations.]” (People v. Lucky (1988) 45 Cal.3d 259, 276.) Here,

the common thread among all four offenses is the use or possession by defendant

of a prison-made stabbing weapon. Defendant contends the common element

factor requires that the same weapon be involved in each crime. We rejected a

similar argument in Alcala v. Superior Court (2008) 43 Cal.4th 1205, in which the

defendant claimed “only physical or objectively measurable factors, such as use of

a specific individual weapon, can suffice” to establish the common element factor.

(Id. at p. 1220.)

Accordingly, we conclude that count 4 was properly joined with the other

three offenses under section 954.

In addition, because the evidence that defendant committed count 4 was

strong and stood on its own without reference to the remaining counts, the

evidence related to the other counts would not have improperly bolstered the

24

evidence pertaining to count 4. In light of the strength of the evidence related to

each charge, “we cannot conclude that it is reasonably probable an outcome more

favorable to defendant would have resulted” (People v. McLain (1988) 46 Cal.3d

97, 106) if count 4 had not been joined with the other counts. For the same reason,

any misjoinder did not result in such gross unfairness as to deprive defendant of

his right to due process. (People v. Soper (2009) 45 Cal.4th 759, 784 [“Appellate

courts have found „ “no prejudicial effect from joinder when the evidence of each

crime is simple and distinct, even though such evidence might not have been

admissible in separate trials” ‟ ”].)

As noted, defendant also contends the trial court abused its discretion by

not severing counts 3 and 4 from counts 1 and 2. When charges are properly

joined, a “ „ “defendant must make a clear showing of prejudice to establish that

the trial court abused its discretion in denying defendant‟s severance motion.” ‟

[Citation.] That is, defendant must demonstrate the denial of his motion exceeded

the bounds of reason.” (People v. Capistrano, supra, 59 Cal.4th at p. 848.)

“ „Refusal to sever may be an abuse of discretion where (1) evidence of the crimes

to be jointly tried would not be cross-admissible in separate trials; (2) certain of

the charges are unusually likely to inflame the jury against the defendant; (3) a

“weak” case has been joined with a “strong” case or with another “weak” case, so

that the “spillover” effect of aggregate evidence on several charges might well

alter the outcome of some or all of the charges; and (4) any one of the charges

carries the death penalty or joinder of them turns the matter into a capital case.‟ ”

(People v. Romero and Self (2015) 62 Cal.4th 1, 30.) Even if a defendant fails to

demonstrate the trial court‟s joinder ruling was an abuse of discretion when it was

made, reversal may nonetheless be required if the defendant can demonstrate that

“the joint trial resulted in such gross unfairness as to amount to a due process

violation.” (Capistrano, at p. 853.)

25

Applying the four-part standard outlined above, defendant first contends

evidence was not cross-admissible among the four counts. The trial court did not

expressly refer to cross-admissibility in its ruling denying severance, but its

comments focused on the similarities among the counts — within a two and one-

half month period, while housed in the Palm Hall unit of the CIM, defendant

committed offenses involving prison-made weapons. As defendant acknowledges,

the trial court‟s ruling reflects the view that there was a common plan or scheme to

commit assaults with prison-made weapons.

To be admissible to prove a common plan or scheme, evidence of other

misconduct “must demonstrate „not merely a similarity in the results, but such a

concurrence of common features that the various acts are naturally to be explained

as caused by a general plan of which they are the individual manifestations.‟ ”

(People v. Ewoldt (1994) 7 Cal.4th 380, 402.) The first three counts involved

conduct to lull another inmate into a false sense of security followed by a surprise

attack with a prison-made weapon. The fact that the attack on Addis occurred in

the exercise yard in front of numerous witnesses and seemed to involve Green in

the plan, whereas the attack on Matthews occurred while defendant was alone in

his cell and with no participation by any other inmate, does not negate the

significant similarities. (See Alcala v. Superior Court, supra, 43 Cal.4th at

p. 1225 [the similarity required to admit evidence to prove a common plan “can be

met despite the existence of some factual differences between or among the

charged offenses”].) Thus, the trial court did not abuse its discretion in implicitly

finding the evidence in these three counts to be cross-admissible. Like the other

three counts, count four involved the possession of a prison-made stabbing

weapon. Therefore, the other counts were admissible to establish a common plan

to possess a prison-made weapon such as the sharpened metal object that fell to

the floor when the gate to defendant‟s cell was opened.

26

In addition, as defendant concedes, “even the complete absence of cross-

admissibility does not, by itself, demonstrate prejudice from a failure to order a

requested severance.” (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221.)

Rather, we look to the remaining three factors. (Ibid.) An examination of those

factors does not reveal an abuse of discretion.

First, none of the joined charges was unusually likely to inflame the jury

against defendant. Defendant asserts the evidence of the attack on Matthews and

the possession of a weapon would lead the jury to infer improperly that defendant

“had a general disposition to violence,” and would “undercut his defense of duress

and staff complicity and/or negligence in the Addis homicide based on the facts

peculiar to that case.” The fact that evidence of two violent crimes might lead a

jury to infer that a defendant is violent does not establish that any of the charges

were unusually likely to inflame the jury. In addition, to the extent defendant‟s

attack on Matthews and his possession of a weapon tended to show he repeatedly

acted pursuant to a common plan rather than due to duress or negligence, or with

the complicity of staff, such inferences were proper.4 Finally, as explained below,

duress is not a defense to murder, nor does duress reduce murder to manslaughter.

(See post, pp. 42-49.)

4 Although it does not appear that the trial court was aware at the time it

ruled on the severance motion of what defenses, if any, defendant would present to

counts 3 and 4, we note, for purposes of evaluating whether the joint trial of these

charges resulted in gross unfairness, that the defense presented evidence at trial

that staff was complicit in the attack on Matthews. In particular, the defense

elicited testimony from Matthews that he thought the officers allowed him to go to

defendant‟s cell and “put [him] in a position for it to happen,” and it presented

expert testimony concerning how the officers should have escorted Matthews so

he could not get away from them. Also, as noted above, the defense ultimately

conceded guilt with respect to counts 3 and 4.

27

Second, counts 1 and 2 were not supported by evidence that was so

measurably stronger than the evidence supporting counts three and four that it

would likely have had an improper spillover effect on counts 3 and 4. Defendant

contends the evidence of the attack on Addis was stronger because there were

eyewitnesses to it, but the circumstantial evidence that he attacked Matthews was

just as strong. Defendant called him over, Matthews complied and turned his back

to the porthole of defendant‟s cell door, and then Matthews staggered away from

defendant‟s cell bleeding while guards heard defendant evidently flushing his

weapon down the toilet. Similarly, the discovery of a prison-made weapon in a

cell solely occupied by defendant constituted strong circumstantial evidence that

he possessed that weapon.

Third, “[t]he capital charges were not the result of joinder of the various

incidents.” (People v. Mendoza (2000) 24 Cal.4th 130, 162.) Contrary to

defendant‟s arguments, we do not apply a heightened standard in assessing

severance issues in capital cases. (People v. Trujeque (2015) 61 Cal.4th 227, 260.)

Defendant further contends that the trial court should have granted

severance because denial of the motion assertedly prevented him from taking the

stand. He claims he could have offered a defense to the Addis counts that was

inapplicable to the remaining counts, but would then have also had to testify

concerning the remaining counts.

Defendant‟s theory of prejudice has been recognized by federal courts in

interpreting their rule of procedure regarding severance, rule 14(a) of the Federal

Rules of Criminal Procedure (18 U.S.C.). We noted in People v. Sandoval (1992)

4 Cal.4th 155, that we have not addressed this theory, and we concluded that the

“[d]efendant‟s showing fell far short of anything that would have satisfied the

federal standards or any standard this court might adopt.” (Id. at p. 174.) We have

subsequently considered this theory without adopting it as part of our severance

28

analysis. (See People v. Johnson (2015) 61 Cal.4th 734, 752; People v. Thomas

(2012) 53 Cal.4th 771, 800.) Although the federal courts‟ test is based on their

interpretation of the federal rule and is not grounded in constitutional mandate, we

will assume, without deciding, that the type of prejudice recognized by the federal

courts could justify a trial court‟s decision to sever otherwise properly joined

charges under California law.

Although federal courts have interpreted their rule to permit severance

when a defendant can show prejudice because he or she “ „wishes to testify to one

charge but to remain silent on another‟ ” (U.S. v. Archer (7th Cir. 1988) 843 F.2d

1019, 1022), they recognize that “ „severance is not mandatory every time a

defendant wishes to testify to one charge but to remain silent on another. If that

were the law, a court would be divested of all control over the matter of severance

and the choice would be entrusted to the defendant.‟ ” (Ibid.) Under the two-part

test devised by the federal courts, “severance is required when a defendant

demonstrates that he has both (1) important testimony to give concerning some

counts and (2) a strong need to refrain from testifying with regard to other counts.”

(U.S. v. Ely (7th Cir. 1990) 910 F.2d 455, 457, italics added.) To satisfy the

second part of the test, the defendant must demonstrate that his or her testimony

on the counts about which he or she did not wish to testify was essential to the

prosecution‟s meeting its burden of proof on those charges. (Id. at p. 460; Archer,

at p. 1022; U.S. v. Williamson (5th Cir. 1973) 482 F.2d 508, 513.)

As noted, the trial court conducted an in camera hearing concerning

defendant‟s desire to testify about the Addis attacks and how consolidation might

affect his willingness to testify. At defendant‟s request, we have reviewed the

sealed transcript of that hearing. The People have asked that the transcript be

unsealed in the event it appears the trial court abused its discretion in denying

severance. It is unnecessary to unseal the transcript, as defendant has failed to

29

satisfy the second part of the federal test. There was ample independent evidence

of his attack on Matthews (count 3) and his possession of the prison-made weapon

(count 4), quite apart from any testimony he may have offered or declined to offer

regarding those counts. Accordingly, he fails to show he was prejudiced on this

ground by the trial court‟s denial of his severance motion.

Defendant makes several related arguments that can be quickly dispatched.

First, he claims the trial court failed to instruct the jury to consider and decide each

count separately, but as he concedes, the trial court did not have a duty to give the

instruction without a request. (People v. Beagle (1972) 6 Cal.3d 441, 456.)

Second, he claims the prosecutor committed misconduct by arguing that the jury

could indiscriminately use the evidence of all counts to prove each count. But

defendant neither objected to the argument, thus forfeiting any claim of

misconduct, nor did he request a limiting instruction. (People v. Lopez (2013) 56

Cal.4th 1028, 1073; Evid. Code, § 355.) Third, he claims judicial economy would

have been served by severing counts 1 and 2 from counts 3 and 4 because counts 3

and 4 involved evidence that was not relevant to counts 1 and 2, and “there was

every reason to believe that a verdict on the capital/murder charges would have led

the parties to reach a disposition on other charges.” Evidence of the counts was

cross-admissible, as explained above, and he cites no legal authority to support his

novel and speculative theory regarding a disposition of the less serious charges.

Finally, defendant contends denial of his severance motion resulted in such

gross unfairness as to amount to a violation of his federal due process rights.

(People v. Capistrano, supra, 59 Cal.4th at p. 853.) Other than the asserted

prejudice we have already discussed and rejected, defendant points to no

additional unfairness assertedly resulting from the joint trial. We therefore

conclude that defendant has failed to show a due process violation as the result of

30

the denial of his severance motion, or any violation of his rights to a fair trial, a

trial by jury, and reliable capital case proceedings.

C. Juror Questionnaire

Defendant contends the trial court erroneously rejected two questions he

asked to be included on the jury questionnaire pertaining to the prospective jurors‟

attitudes about aspects of prison life. He contends the court‟s ruling violated his

state and federal rights to due process, a fair trial, an impartial jury, and to a

reliable determination of guilt and penalty in a capital case. (U.S. Const., 5th, 6th,

8th & 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15, 16, & 17.)5 The claim

is meritless.

5 “With respect to this and virtually every other claim raised on appeal,

defendant urges that the error or misconduct he is asserting infringed various of

his constitutional rights to a fair and reliable trial. In most instances, insofar as

defendant raised the issue at all in the trial court, he failed explicitly to make some

or all of the constitutional arguments he now advances. In each instance, unless

otherwise indicated, it appears that either (1) the appellate claim is of a kind (e.g.,

failure to instruct sua sponte; erroneous instruction affecting defendant‟s

substantial rights) that required no trial court action by the defendant to preserve it,

or (2) the new arguments do not invoke facts or legal standards different from

those the trial court itself was asked to apply, but merely assert that the trial

court‟s act or omission, insofar as wrong for the reasons actually presented to that

court, had the additional legal consequence of violating the Constitution. To that

extent, defendant‟s new constitutional arguments are not forfeited on appeal.”

(People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17, applying People v. Partida

(2005) 37 Cal.4th 428, 433-439.) “In the latter case, no separate constitutional

discussion is required or provided where rejection of a claim that the trial court

erred on the issue presented to that court necessarily leads to rejection of any

constitutional theory or „gloss‟ raised for the first time here.” (People v.

Contreras (2013) 58 Cal.4th 123, 139, fn. 17.) We apply this principle here and

elsewhere where defendant asserts on appeal constitutional claims not advanced

below.

31

1. Background

Defendant proposed the following multipart question (question No. 40) to

be included in the juror questionnaire:

“What are your views on the prison system in the State of California?

“A. To what extent can you consider evidence that living in the prison

system, that is to say being a prisoner, is an ongoing experience entirely different

from living in society as you know it?

“B. Please indicate which statement best describes your opinion of life in

the prison system prior to hearing evidence in this case:

“____ Prisoners are safer on the inside that they would be on the outside

“____ Prisoners are about as safe on the inside as they would be on the

outside

“____ Prisoners are less safe on the inside than they would be on the

outside

“C. Whatever your opinion as to the safety of living in the prison system

may be, how willing are you to consider evidence that many prisoners‟ primary

task on the inside is staying alive?”

The prosecutor objected to subparts B and C, asserting they were

argumentative and called upon the prospective jurors to prejudge the case. The

prosecutor also asserted that the questions were vague as to what was meant by

prisoner safety. The trial court declined to include subparts B and C. Regarding

the latter, even defense counsel conceded it was a “little argumentative,” and

proposed an alternative the trial court also declined to include. The court

expressed its belief that the defense could ask follow up questions to subpart A “to

get somewhat the same information, assuming it‟s an appropriately asked

question.” At the defense‟s request, a space was provided after subpart A with the

words “Please explain.” In its final form, subpart A (renumbered question No. 96,

32

subpart b on the questionnaire) read: “Would you be willing to consider evidence

that living in the prison system, that is to say, being a prisoner, is an ongoing

experience entirely different from living in society as you know it? Please

explain.”

2. Discussion

Defendant contends the trial court‟s rejection of his questions regarding

prisoner safety denied him the opportunity to “expose juror bias about prison

inmate safety and survival, to lay the foundation for challenges for cause, and to

explore prospective jurors[‟] views on issues related to the circumstances of the

charged capital offense that would be important to the decision of whether or not

to impose the death penalty.” As explained below, we find no abuse of discretion.

Preliminarily, we dispose of the People‟s claim that defendant forfeited this

issue because, after further discussion and further revision of the questionnaire,

defense counsel agreed the questionnaire could be used. By then, however, the

trial court had already rejected subparts B and C, and it would have been futile for

defense counsel to renew the argument. Accordingly, we find no forfeiture and

proceed to the merits.

“There is no constitutional right to voir dire per se. Nor is there any

constitutional right to conduct voir dire in a particular manner. [Citation.] Rather,

the voir dire process serves as a means of implementing the defendant‟s Sixth

Amendment right to an impartial jury. [Citations.] [¶] Consistent with applicable

statutory law, the trial court has wide latitude to decide the questions to be asked

on voir dire [citation], and to select the format in which such questioning occurs

[citation]. The court likewise has broad discretion to contain voir dire within

reasonable limits.” (People v. Contreras, supra, 58 Cal.4th at p.143; fn. omitted;

see Code Civ. Proc., § 223.) Thus, “ „ “content” questions,‟ even ones that might

33

be helpful, are not constitutionally required. [Citation.] To be an abuse of

discretion, the trial court‟s failure to ask questions „must render the defendant‟s

trial fundamentally unfair.‟ [Citation.] „Such discretion is abused “if the

questioning is not reasonably sufficient to test the jury for bias or partiality.” ‟

[Citation.]” (People v. Cleveland (2004) 32 Cal.4th 704, 737; see also People v.

Leon (2015) 61 Cal.4th 569, 586.) It is not the purpose of voir dire to “ „educate

the jury panel to the particular facts of the case, to compel the jurors to commit

themselves to vote a particular way, to prejudice the jury for or against a particular

party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of

law.‟ ” (People v. Crowe (1973) 8 Cal.3d 815, 824.)

As defendant asserts, the issue of inmate safety and survival was “central to

the defense to the capital/murder charges.” The principal purpose of the rejected

questions appears to have been to begin educating the jurors about the defense.

Moreover, as the prosecutor pointed out, the rejected questions were vague in that

they did not specify what kind of threats to inmate safety and survival were at

issue. This vagueness itself created an opening for defendant to fill in the blanks

with, again, the objective of previewing the defense and inviting agreement with

his view of inmate safety and survival. Finally, the trial court did not foreclose all

questioning on this subject, but indicated it would allow the defense to pursue the

subject should a prospective juror raise it in his or her answer to subpart A.

Accordingly, we conclude that the trial court acted well within its discretion in

rejecting the questions. We conclude further that the rejection of the proposed

questions did not implicate the issue of death-qualification voir dire. (See

Wainwright v. Witt (1985) 469 U.S. 412; Witherspoon v. Illinois (1968) 391 U.S.

510; People v. Butler (2009) 46 Cal.4th 847, 859 [the purpose of Witherspoon-

Witt voir dire is to determine only the views of prospective jurors about capital

punishment].)

34

D. Admission of Defendant’s Letters

Defendant contends the admission of jailhouse letters he wrote to another

NLR gang member violated his federal and state constitutional rights to due

process, a fair trial, a trial by jury, and to reliable capital proceedings. (U.S.

Const. 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15, 16,

17.) We disagree.

1. Background

Prison officials intercepted two letters defendant wrote to fellow NLR gang

member, Joseph Lowery, who had once been defendant‟s cellmate. The officials

photocopied the letters and then allowed them to be delivered to Lowery. The two

letters were denominated People‟s exhibits Nos. 66 and 67. Exhibit No. 66

consisted of a photocopied envelope and a letter dated September 9, 1997, sent

from CIM, at Chino, where defendant was then housed. The envelope had

defendant‟s name, prison number and address. Exhibit No. 67 was an undated

photocopied letter that was faxed to David Lacey, the investigating officer in this

case, at CIM from an Officer Harrison at Corcoran State Prison on December 22,

1997, when defendant was housed at that institution. Glen Willett, the

prosecution‟s prison gang expert, testified that prison authorities monitor prison

gang members by intercepting their mail and reading it before passing it on.

Lacey testified that outgoing letters by inmates are not allowed to be sealed. First,

they are collected and read. If they contain information pertinent to an ongoing

investigation, they are photocopied and the copies passed on to a supervisor.

Finally, the original letters are delivered to their recipients. That was how Lacey

obtained defendant‟s letters.

Willett, the prison gang expert, testified concerning the contents of the

letters for purposes of identifying defendant as either an associate or a member of

the NLR. With respect to exhibit No. 66, he testified that Lowery was a known

35

NLR gang member and that defendant‟s use of the phrase “dawg o‟ mine,” was an

endearment used among gang members. He testified further that the sentence,

“Yeah, this 187 kinda put me at ease, had to earn it,” meant that defendant had “to

work hard” to commit the “murder,” presumably the Addis homicide, and that

committing the murder would elevate defendant‟s status with higher ranking NLR

gang members like Lowery. With respect to exhibit No. 67, Willett testified

defendant had signed it with his gang moniker “Smurf,” and had made reference to

being relocated. He testified the phrase “so the KGB has been befuddled once

again,” referred to prison authorities. He also noted defendant had again used the

gang phrase “dawg o‟mine,” and well as the phrase “I hope this finds you in good

health and strong mind,” which is a reference to racial purity. Defendant also

referred to Gary Green‟s gang moniker, “Mop,” and to an Aryan Brotherhood

gang member named Joseph Hayes who was then incarcerated at Pelican Bay.6

Willett also testified that defendant‟s use of the word “homeplate,” was another

gang endearment that was the “same as „homey.‟ ”

Later in the trial, when the prosecutor moved for the admission of exhibit

Nos. 66 and 67, the defense objected that there was no foundation that defendant

wrote them. The prosecutor responded that the evidence showed Lowery and

defendant were cellmates at one point, that defendant‟s prison number and address

were written on the envelope in exhibit No. 66, and that “these are self-

authenticating letters because of the content” and also because they were signed

with defendant‟s gang moniker Smurf. Defense counsel argued there was no

evidence regarding how prison officials obtained the letters. The prosecutor

6 Willett testified that the NLR had begun as a feeder gang to the Aryan

Brotherhood.

36

countered that Lacey‟s testimony regarding the interception and copying of inmate

letters provided a proper foundation. She acknowledged, however, that it was not

possible to establish who had originally collected the letters. The trial court

admitted the letters.

2. Discussion

Defendant‟s argument regarding the admissibility of the letters is two-

pronged. First, he contends the letters were inadmissible under the secondary

evidence rule codified in Evidence Code section 1521. Second, he argues the

letters were not properly authenticated under Evidence Code section 1401.

Evidence Code section 1521 provides in part: “The content of a writing

may be proved by otherwise admissible secondary evidence. The court shall

exclude secondary evidence of the content of writing if the court determines either

of the following: [¶] (1) A genuine dispute exists concerning material terms of

the writing and justice requires the exclusion. [¶] (2) Admission of the secondary

evidence would be unfair.” Enacted in 1998 — and thus applicable to defendant‟s

2001 trial — the secondary evidence rule replaced the best evidence rule, which

was repealed. “Under the secondary evidence rule, the content of a writing may

now be proved either „by an otherwise admissible original‟ ([Evid. Code,] § 1520

or by „otherwise admissible secondary evidence‟ ([Evid. Code,] § 1521, subd. (a);

[citation]).” (People v. Goldsmith (2014) 59 Cal.4th 258, 269.)

Here, as noted, photocopies of the letters and the one envelope were

admitted rather than the originals because, as Lacey explained, once the

photocopies were made, the originals were delivered to their intended recipient.

Defendant now asserts the admission of the copies was error. At no time did

defendant object to admission of the documents under the secondary evidence

rule. Rather, his objection went to their authenticity.

37

“ „As a general rule, “the failure to object to errors committed at trial

relieves the reviewing court of the obligation to consider those errors on appeal.”

[Citation.] . . .‟ This rule applies equally to any claim on appeal that the evidence

was erroneously admitted, other than the stated rule for the objection at trial.”

(People v. Kennedy (2005) 36 Cal.4th 595, 612; accord, Evid. Code, § 353.) This

principle applies with particular force here, because before the trial court can

exclude otherwise admissible secondary evidence, Evidence Code section 1521

requires the court to make specific factual determinations. These include whether

a genuine dispute exists concerning material terms of the writing, and whether

admission of the evidence would be unfair. The trial court cannot make such

findings if a party fails to make a proper, specific, and timely objection, nor can

we review the basis of the trial court‟s determination where no findings were made

due to defendant‟s failure to have lodged the appropriate objection. Therefore,

contrary to defendant‟s view, his various objections to Willett‟s interpretation of

certain phrases in the letters did not amount to a proper objection under the

secondary evidence rule. Accordingly, the claim is forfeited.

As noted above, defendant also contends the letters were not properly

authenticated. A writing that qualifies for admission under the secondary evidence

rule must, nonetheless, be authenticated before it can be admitted. “The

Secondary Evidence Rule does not „excuse[] compliance with [Evidence Code]

Section 1401 (authentication).‟ ([Evid. Code] § 1521, subd.(c).) Thus, to be

„otherwise admissible,‟ secondary evidence must be authenticated.” (People v.

Skiles (2011) 51 Cal.4th 1178, 1187, fn. omitted; see Evid. Code § 1401, subd. (b)

[“Authentication of a writing is required before secondary evidence of its content

may be received in evidence”].)

“Authentication is to be determined by the trial court as a preliminary fact

([Evid. Code,] § 403, subd. (a)(3)) and is statutorily defined as „the introduction of

38

evidence sufficient to sustain a finding that it is the writing that the proponent of

the evidence claims it is‟ or „the establishment of such facts by any other means

provided by law‟ ([Evid. Code,] § 1400).” (People v. Goldsmith, supra, 59

Cal.4th at p. 266.) “The means of authenticating a writing are not limited to those

specified in the Evidence Code. ([Evid. Code,] § 1410 [„[n]othing in this article

shall be construed to limit the means by which a writing may be authenticated or

proved‟]; [citation].) For example, a writing can be authenticated by

circumstantial evidence and by its contents.” (People v. Skiles, supra, 51 Cal.4th

at p. 1187.)

The testimony of Glen Willett and Officer Lacey was sufficient to sustain

the trial court‟s finding of authenticity. Both men testified to the general protocol

by which inmate letters are monitored and, when appropriate, copied and turned

over to prison authorities as possible evidence in ongoing investigations.

Defendant‟s letters were of obvious interest to Lacey, who was investigating

defendant‟s attack on Addis. The envelope that was part of exhibit No. 66 showed

as its return address defendant‟s address, along with his inmate number, and was

sent while he was at CIM. Similarly, exhibit No. 67, the letter faxed to Lacey in

December 1997 from Corcoran State Prison, was written while defendant was

housed at that institution and refers to his having been relocated; he had in fact

been transferred from CIM to Corcoran. The contents of the letter, about which

Willett testified, lends further support for its authenticity. The reference to a

“187,” that is, a murder, and the context in which the reference is made, are

inferentially references to the attack on Addis by defendant, for which he is

claiming credit. Other references in the letters, to mutual acquaintances like Gary

Green and Joseph Hayes, and defendant‟s familiar tone with the recipient, Lowery,

his one-time cellmate, as well as his use of his own gang moniker, Smurf, also

provide circumstantial support that he authored the letters. (See Evid. Code,

39

§ 1421: “A writing may be authenticated by evidence that the writing refers to or

states matters that are unlikely to be known to anyone other than the person who is

claimed by the proponent of the evidence to be the author of the writing.”)

Defendant argues that all of this information was known to individuals

other than himself, making it possible that the letters were forged. However,

“ „[a]s long as the evidence would support a finding of authenticity, the writing is

admissible. The fact conflicting inferences can be drawn regarding authenticity

goes to the document‟s weight as evidence, not its admissibility.‟ [Citation.]”

(People v. Goldsmith, supra, 59 Cal.4th at p. 267.)

Accordingly, we conclude the trial court did not abuse its discretion in

admitting exhibit Nos. 66 and 67 into evidence.

E. Excusal of Sick Juror

On the day set for closing arguments and instruction, the court, over

defendant‟s objection, excused a sick juror and seated an alternate. Defendant

contends the trial court‟s decision to replace the sick juror was an abuse of

discretion and also violated his federal and state constitutional rights to a fair and

impartial jury trial and a reliable penalty determination. (U.S. Const., 5th, 6th, 8th

& 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15, 16, 17.) The claim is

meritless.

1. Background

On the morning of April 18, 2001, the day set for closing arguments and

instructions, the trial court informed counsel that Juror No. 10 had called in sick

with the flu. The court indicated it was inclined to replace the juror because the

“flu that‟s going around does not seem to be something that will get well [sic] in a

day or two.” Defense counsel requested and was granted a recess to review his

jury list and consult with defendant. When the proceedings resumed, defense

40

counsel objected to replacing the sick juror and asked the court to wait for a day to

see whether the juror had recovered. The prosecutor suggested the court speak to

the juror directly. With consent of both counsel, the trial court telephoned the

juror and put her on speakerphone. The juror reported she had been vomiting all

night and did not anticipate recovering that week. The judge asked if she would

be available on Monday, to which she said yes, although she acknowledged she

had not been to the doctor.

After speaking to the juror, the court noted that a delay from Wednesday to

Monday would result in the loss of three court days. Defense counsel stated “it‟s

reasonable to wait for that person until Monday.” The trial court, however,

excused Juror No. 10 and replaced her with an alternate.

2. Discussion

Section 1089 states in pertinent part that “[i]f at any time, whether before or

after the final submission of the case to the jury, a juror . . . becomes ill . . . , the

court may order the juror to be discharged” and replaced by an alternate juror.

“We review such a decision for abuse of discretion.” (People v. Smith (2005) 35

Cal.4th 334, 348-349.) “The court‟s discretion is not unbounded: it must

determine whether good cause exists to discharge the juror, and its reasons for

discharge must appear in the record as a demonstrable reality.” (People v. Roberts

(1992) 2 Cal.4th 271, 325.) The trial judge is not required, however, to “elicit

conclusive proof of the length of future incapacitation; judges are lawyers, not

doctors.” (People v. Duff (2014) 58 Cal.4th 527, 560, fn. omitted.) Nor must the

incapacitation exceed a specific length of time. “[I]n the right circumstances, an

absence of a day or less may warrant excusal. [Citations.] Whether a juror‟s

illness can best be accommodated by a continuance or replacement with an

alternate is a matter committed to the trial court‟s discretion.” (Id. at pp. 560-561.)

41

Here, there is no dispute the juror was ill. Although she believed she might

be well the following Monday, five days and three court days later, this was

merely an estimate on her part. Meanwhile, as defendant acknowledges, the trial

had gone on for almost two months and was set to enter its final phase of closing

argument and instruction on the day the juror called in sick. Whether, as he

insists, a three-day continuance would have been reasonable is not the question we

must answer. The question is whether, under these circumstances, the trial court‟s

decision to proceed with an alternate juror was an abuse of discretion. In light of

the uncertainty of the juror‟s prognosis and the crucial point at which the trial had

arrived, we conclude the trial court did not abuse its discretion.

F. Claims of Instructional Error

1. Instructions Regarding Duress

Defendant contends the trial court‟s denial of four proposed defense

instructions concerning duress violated his federal constitutional rights to due

process, effective assistance of counsel and a reliable penalty determination. (U.S.

Const., 5th, 6th, 8th and 14th Amends.) The claim is meritless.

The defense of duress is set forth in section 26, which states in relevant

part: “All persons are capable of committing crimes except those belonging to the

following classes: [¶] . . . [¶] Six — Persons (unless the crime be punishable

with death) who committed the act or made the omission charged under threats or

menaces sufficient to show that they had reasonable cause to and did believe their

lives would be endangered if they refused.” As noted above, defendant argued

that his attack on Addis, the basis of counts 1 and 2, was committed under duress

because the attack was ordered by the NLR and, had defendant failed to carry it

out, he himself would have been killed.

42

To establish the defense, defendant requested four duress instructions, two

pertaining to the first degree murder charge (count 1) and two to the charge of

assault by a life prisoner with malice aforethought (count 2.)7 The trial court

7 The four requested instructions were as follows:

1. “In this case, you may consider evidence showing the existence of threats,

menaces or compulsion that played a part in inducing the unlawful killing of a human

being for such bearing as it may have on the question of whether the murder alleged

in Count 1 was of the first or second degree. If you find from the evidence that at the

time the alleged crime was committed the defendant honestly and reasonably held a

belief that his own life was in danger, you must consider what effect, if any, this

belief had on the defendant and whether he formed any of the specific mental states

that are essential elements of murder. [¶] Thus if you find he had an honestly and

reasonably held belief that his life was in peril and as a result did not maturely and

meaningfully premeditate, deliberate and reflect on the gravity of his contemplated

act or form an intent to kill, you cannot find him guilty of a willful, deliberate and

premeditated murder of the first degree.” [¶] Also, if you find the defendant did not

form the mental state constituting express malice, you cannot find him guilty of

murder of either the first or second degree. You may however, find him guilty of the

crime of voluntary manslaughter as defined in these instructions.”

2. “The distinction between murder and manslaughter is that murder requires

malice while manslaughter does not. [¶] When the act causing death, though

unlawful, is done under the actual and reasonable belief in the necessity to act

because of imminent peril to life or great bodily injury, the offense is manslaughter.

In that case, even if an intent to kill exists, the law is that malice, which is an essential

element of murder, is absent. [¶] To establish that a killing is murder and not

manslaughter, the burden is on the People to prove beyond a reasonable doubt each of

the elements of murder and that the act which caused death was not done under the

actual and reasonable belief in the necessity to act because of imminent peril to life or

great bodily injury.”

3. “With respect to Count 2, the crime of Assault By A Life Prisoner With

Malice Aforethought is not committed unless the element of malice aforethought is

proved. [¶] If you find that the defendant acted under the actual and reasonable

belief in the necessity to act because of imminent peril to life or great bodily injury,

there is no malice aforethought and the crime alleged in Count 2 is not committed.

[¶] As to this alleged offense, the burden is on the People to prove beyond a

reasonable doubt each of the elements of the offense and that the act which caused

death was not done under the actual and reasonable belief in the necessity to act

because of imminent peril to life or great bodily injury.”

4. “In this case, you may consider evidence showing the existence of

threats, menaces or compulsion that played a part in inducing the unlawful assault

(footnote continued on next page)

43

rejected the instructions on the ground that there was insufficient evidence that

defendant personally entertained a good faith belief that his action — attacking

Addis — was necessary because his own life was in danger.

Nonetheless, in response to the prosecutor‟s request that the court “say

something about” duress, the court gave a modified version of CALJIC No. 4.40

(Threats and Menaces) as follows: “A person is not guilty of a crime other than

Assault by a Life Prisoner as alleged in Count 2 when he engages in conduct,

otherwise criminal, when acting under threat and menace under the following

circumstances: [¶] 1. Where the threat and menace are such that they would cause

a reasonable person to fear that his life would be in immediate danger if he did not

engage in the conduct charged, and [¶] 2. If this person then believed that his life

was so endangered. [¶] This rule does not apply to threats, menaces, and fear of

(footnote continued from previous page)

upon inmate Addis resulting in death of the inmate as alleged in Count 2, for such

bearing as it may have on the question of whether that crime was committed. If

you find from the evidence that at the time the alleged crime was committed the

defendant honestly and reasonably held a belief that his own life was in danger,

you must consider what effect, if any, this belief had on the defendant and whether

he formed any of the specific mental states that are essential elements of this

particular crime. Thus if you find he had an honestly and reasonably held belief

that his life was in peril and as a result did not form the mental state constituting

malice aforethought, which is an element of the crime, you may not find him

guilty of said crime. [¶] You may however, find him guilty of the crime of any

lesser included offenses such as assault with a deadly weapon as defined in these

instructions.”

Defendant acknowledges the proposed instructions are erroneous in two

respects: first, the requirement that a defendant maturely and meaningfully reflect

upon his or her act had been eliminated from section 189 prior to defendant‟s trial

and, second, the instruction erroneously stated express malice was required for

murder when section 189 states that such malice may be either express or implied.

44

future danger to his life, nor does it apply to the crime of Assault By a Life

Prisoner as alleged in Count 2.”8

We need not decide whether the trial court was correct that there was

insufficient evidence to support the requested instructions, because we have since

held that duress is not a defense to murder, nor does duress reduce murder to

manslaughter. (People v. Anderson (2002) 28 Cal.4th 767, 772-785 (Anderson);

see People v. Burney (2009) 47 Cal.4th 203, 249-250; People v. Hinton (2006) 37

Cal.4th 839, 882-883; People v. Wilson (2005) 36 Cal.4th 309, 331-332; People v.

Maury (2003) 30 Cal.4th 342, 421-422.)

In Anderson, supra, 28 Cal.4th 767, the defendant urged the court to

construe section 26 to exempt only capital crimes from the defense of duress. In

response, we noted that at common law, duress was not a defense to killing an

innocent person. (Id. at p. 772.) We further observed that when California

recognized the defense in 1850, all murder was punishable by death. We

concluded that as enacted, “section 26 effectively adopted the common law”

(Anderson, supra, at p. 774), thereby barring duress as a defense to murder. In the

course of our discussion, we observed that “[i]f duress is recognized as a defense

to the killing of innocents, then a street or prison gang need only create an internal

8 The instruction‟s exclusion of the crime of assault by a life prisoner reflects

section 26‟s exclusion of “crime[s] punishable by death” from the defense of

duress. (See § 4500.) In the trial court, defense counsel acknowledged that his

proposed instructions on the effect of duress on count 2, which charged assault by

a life prisoner in violation of section 4500, was foreclosed by the explicit language

of section 26. For this reason, we reject defendant‟s claim that the trial court erred

in failing to instruct that duress could serve as a basis for the jury to reduce count

2 to assault with a deadly weapon. For this purpose, we assume, without deciding,

that defense counsel‟s acknowledgement that section 26 did not apply to count 2,

and his agreement to the modified duress instruction given, which specifically

excluded count 2, did not forfeit the claim.

45

reign of terror and murder can be justified, at least by the actual killer.” (Id. at

p. 777, italics added.)

We also rejected the defendant‟s theory that even if duress is not a complete

defense to murder, “at least it reduces the crime to manslaughter by negating

malice.” (Anderson, supra, 28 Cal.4th at p. 781.) We noted that for purposes of

voluntary manslaughter — an unlawful killing without malice — the absence of

malice is limited to two circumstances: “ „ “when the defendant acts in a „sudden

quarrel or heat of passion‟ (§ 192, subd. (a)), or when the defendant kills in

„unreasonable self-defense‟ — the unreasonable but good faith belief in having to

act in self-defense [citations].” ‟ ” (Ibid.) We observed that “[n]either of these

two circumstances describes the killing of an innocent person under duress.”

(Ibid.) We declined to carve out a third circumstance negating malice, based on

duress. Unlike a person who has an unreasonable belief it is necessary to kill in

self-defense, and therefore intends to kill lawfully, “a person who kills an innocent

believing it necessary to save the killer‟s own life intends to kill unlawfully, not

lawfully.” (Id. at p. 783.) We recognized that policy arguments could be made to

recognize duress as a factor reducing culpability, but observed that “because

duress can often arise in a criminal gang context, the Legislature might be

reluctant to do anything to reduce the current law‟s deterrent effect on gang

violence. These policy questions are for the Legislature, not a court, to decide.”

(Id. at p. 784.) Defendant sets forth no argument that persuades us to reconsider

these conclusions.

Defendant seeks to avoid Anderson‟s holding on the basis that Anderson

did not consider whether duress may be a defense to murder as a matter of federal

constitutional law. He maintains that evolving standards of decency and

heightened requirements of a reliable death penalty pursuant to the Eighth

Amendment require recognition of duress as a defense to murder. Defendant does

46

not cite any case that has so held, and we are not persuaded that his citation to

legal commenters represents a national consensus that has developed against the

rule we announced in Anderson. (Cf. Atkins v. Virginia (2002) 536 U.S. 304, 313-

317 [tracing legislative actions prohibiting the execution of intellectually disabled

persons as evidence of a national consensus against that practice].)

Defendant also asserts that his federal constitutional rights to due process

and to present a defense required the trial court to give his proposed instructions

and allow the jury to consider whether his claim of duress created a reasonable

doubt regarding malice. The high court has acknowledged, however, that “dealing

with crime is much more the business of the States than it is of the Federal

government, [citation], and [it] should not lightly construe the Constitution so as to

intrude upon the administration of justice by the individual States. (Patterson v.

New York (1977) 432 U.S. 197, 201 [New York statute allocating burden on

defendant to prove affirmative defense of extreme emotional disturbance does not

violate the due process clause].) “When a State‟s power to define criminal

conduct is challenged under the Due Process Clause, we inquire only whether the

law „offends some principle of justice so rooted in the traditions and conscience of

our people as to be ranked as fundamental.‟ [Citation.]” (Montana v. Egelhoff

(1996) 518 U.S. 37, 58 (conc. opn. of Ginsberg, J.) [Montana statute eliminating

voluntary intoxication as a defense does not violate due process].)

Consistent with these principles, the United States Court of Appeals for the

Fifth Circuit rejected a claim that Louisiana‟s statute excluding duress as a defense

to murder violated the defendant‟s federal due process rights.9 “The state

9 The Louisiana statute permits a justification defense “[w]hen any crime,

except murder, is committed through the compulsion of threats by another of death

or great bodily harm, and the offender reasonably believes the person making the

(footnote continued on next page)

47

legislatures have vast powers to establish the elements of crimes, subject to the

substantive provisions of the Constitution. [Citations.] Where a fundamental right

is involved, the state‟s legislative authority must yield. [Citation.] Obviously,

there is no fundamental right to commit murder, even under duress. Substantive

due process is not implicated.” (Glass v. Blackburn (5th Cir. 1986) 791 F.2d

1165, 1171.)

As we noted in Anderson, section 26 represents a legislative decision to

adopt the common rule excluding duress as a defense to murder. (Anderson,

supra, 28 Cal.4th at p. 774.) California‟s position is consistent with the majority

of states that have considered the issue and adopted the common law rule. (U.S. v.

LaFleur (9th Cir. 1992) 971 F.2d 200, 205, and statutes and cases cited therein.)

The Legislature‟s adoption of the venerable common rule excluding duress as a

defense to murder does not implicate a fundamental right. Accordingly, we reject

defendant‟s claim that federal constitutional law required the trial court to give the

requested instructions.

Finally, defendant contends the trial court should have instructed the jury

that evidence of duress could negate premeditation and deliberation, thereby

resulting in second degree murder. (See Anderson, supra, 28 Cal.4th at p. 784

[“We agree that a killing under duress, like any killing, may or may not be

premeditated, depending on the circumstances”].) In Anderson, we concluded this

concept was sufficiently addressed by language in CALJIC No. 8.20 (Deliberate

and Premeditated Murder) instructing the jury that “a killing „upon a sudden heat

(footnote continued from previous page)

threats is present and would immediately carry out the threats if the crime were not

committed . . . .” (La. Rev. Stat. § 14:18(6) available from La. State Legis. Online

at https://legis.la.gov/Legis/Law.aspx?d=78335 [as of December 12, 2016].)

48

of passion or other condition precluding the idea of deliberation‟ would not be

premeditated first degree murder.” (Anderson, supra, at p. 784.) Not only was

CALJIC No. 8.20 given in this case, but, as noted, defendant received the

unwarranted benefit of a modified duress instruction. We reject defendant‟s

contention that these instructions were inadequate on this point.

2. CALJIC No. 8.20

Defendant contends that the use of the word “precluding” in CALJIC

No. 8.20 (Deliberate and Premeditated Murder) in referring to circumstances that

would negate the element of deliberation effectively lowered the prosecution‟s

burden of proof and violated his federal and state constitutional rights to due

process, trial by jury and a reliable penalty determination. (U.S. Const., 5th, 6th,

8th & 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15, 16, 17.)

As given in this case, CALJIC No. 8.20 provided:

“All murder which is perpetrated by any kind of willful, deliberate and

premeditated killing with express malice aforethought is murder of the first

degree. The word „willful,‟ as used in this instruction, means intentional. [¶] The

word „deliberate‟ means formed or arrived at or determined upon as a result of

careful thought and weighing of considerations for and against the proposed

course of action. The word „premeditated‟ means considered beforehand. [¶] If

you find that the killing was preceded and accompanied by a clear, deliberate

intent on the part of the defendant to kill, which was the result of deliberation and

premeditation, so that it must have been formed upon pre-existing reflection and

not under a sudden heat of passion or other condition precluding the idea of

deliberation, it is murder of the first degree.” (Italics added.)

Defendant contends that, in context, the instruction required the jury to find

evidence that would have entirely prevented deliberation before the jury could find

49

the crime to be less than first degree murder, a more onerous standard than

requiring merely that the evidence raise a reasonable doubt. He asserts: “The jury

should have been instructed that, if it found evidence of a sudden heat of passion

or other condition sufficient to giv[e] rise to a reasonable doubt of deliberation, it

must give the defendant the benefit of the doubt and find him not guilty of first

degree murder.” He relies on various legislative, dictionary and judicial usages of

the word “precluding” to support his view that the jury would have understood the

word to mean “prevent entirely.”

The People respond that the claim is forfeited by defendant‟s failure to seek

modification of the instruction or by his attorney‟s agreement to the instruction.

Assuming defendant‟s argument challenges the correctness of the instruction and

therefore is not forfeited (see § 1259), it is nonetheless meritless.10

As defendant acknowledges, we have previously considered and rejected an

identical challenge to CALJIC No. 8.20. In People v. Nakahara (2003) 30 Cal.4th

705 (Nakahara), the defendant contended that the word “precluding” in CALJIC

No. 8.20 was “too strong and could be interpreted as requiring him to absolutely

preclude the possibility of deliberation, as opposed to merely raising a reasonable

doubt on that issue.” (Nakahara at p. 715.) We concluded that “this instruction is

unobjectionable when, as here, it is accompanied by the usual instructions on

reasonable doubt, the presumption of innocence, and the People‟s burden of proof.

These instructions make it clear that a defendant is not required to absolutely

preclude the element of deliberation.” (Ibid.; accord, People v. Pearson (2012) 53

Cal.4th 306, 326; People v. Morgan (2007) 42 Cal.4th 593, 620-621.)

10 Pursuant to section 1259, an appellate court may “review any instruction

given, refused or modified, even though no objection was made thereto in the

lower court, if the substantial rights of the defendant were affected thereby.”

50

Defendant asserts that Nakahara should not control because it did not

consider the various usages of “precluding” that he presents here and that he has

drawn from sources other than jury instructions. In considering a claim of

instructional error, however, we do not look far and wide for all possible usages of

a word the defendant has singled out as error nor do we focus solely on that single

word. Rather, “[t]he relevant inquiry here is whether, „in the context of the

instructions as a whole and the trial record, there is a reasonable likelihood that the

jury was misled to defendant‟s prejudice.‟ [Citation.] Also, „ “ „we must assume

that jurors are intelligent persons and capable of understanding and correlating all

jury instructions which are given.‟ [Citation].” ‟ ” (People v. Sattiewhite (2014)

59 Cal.4th 446, 475.) This was the standard we applied in Nakahara as is evident

by our references to the others instructions pertinent to CALJIC 8.20. We apply

the same standard here and again reject this challenge to CALJIC No. 8.20.

3. Implied Malice Second Degree Murder Instruction

Defendant contends the trial court erred by failing to instruct the jury, on its

own motion, concerning the lesser included offense of implied malice second

degree murder.11 He asserts the error violated his rights to due process and a trial

by jury, and the proscription against cruel and unusual punishment. (U.S. Const.,

5th, 6th, 8th & 14th Amends.) We find no error.

11 Defendant contends the trial court should have instructed the jury with

CALJIC No. 8.31 (Second Degree Murder — Killing Resulting From Unlawful

Act Dangerous To Life), as follows:

“Murder of the second degree is also the unlawful killing of a human being

when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The natural

consequences of the act are dangerous to human life, and [¶] 3. The act was

deliberately performed with knowledge of the danger to, and with conscious

disregard for, human life. [¶] When the killing is the direct result of such an act,

it is not necessary to prove that the defendant intended that the act would result in

the death of a human being.” (CALJIC No. 8.31.)

51

“A trial court has a sua sponte duty to „instruct on a lesser offense

necessarily included in the charged offense if there is substantial evidence the

defendant is guilty only of the lesser.‟ [Citation.] Substantial evidence in this

context is evidence from which a reasonable jury could conclude that the

defendant committed the lesser, but not the greater, offense. „The rule‟s purpose

is . . . to assure, in the interest of justice, the most accurate possible verdict

encompassed by the charge and supported by the evidence.‟ [Citation.] In light of

this purpose, the court need instruct the jury on a lesser included offense only

„[w]hen there is substantial evidence that an element of the charged offense is

missing, but that the accused is guilty of‟ the lesser offense.” (People v. Shockley

(2013) 58 Cal.4th 400, 403-404, italics added.)

A finding of express malice requires evidence of an intent to kill, whereas a

finding of implied malice requires only an “intent to do an act dangerous to human

life with conscious disregard of its danger.” (People v. Breverman (1998) 19

Cal.4th 142, 188.) Here, there is no substantial evidence that defendant intended

only to commit an action that was dangerous to human life, and did not intend to

kill. The evidence reflects that Gary Green ordered a hit on Addis, and defendant

contended at trial that if he had not carried out the hit, he would have been killed.

After Green demanded that Addis be let into the yard, Green and defendant

walked around together in the yard and ignored Addis. Thereafter, defendant told

Addis, “It‟s all right, Danny. Go ahead and play cards.” Ten or 15 minutes later,

Green and defendant walked together to the card table, and defendant stood to the

left of Addis. One or two minutes after that, defendant, with one strong blow to

Addis‟s neck, severed his jugular and subclavian veins. In a letter to another gang

member, defendant stated that he had to work to earn this murder, and that

committing the murder would elevate his status with higher ranking NLR gang

52

members. These facts reflect an intent to kill, and cannot be construed to reflect

only an intent to commit a dangerous act with conscious disregard of its danger.

Defendant directs us to cases in which courts found sufficient evidence of

implied malice based on an assault with a knife. (see, e.g., People v. Pacheco

(1981) 116 Cal.App.3d 617, 627.) He also points to evidence that he and Addis

were “having words” just before defendant stabbed him, and that Addis had

previously threatened harm to defendant. Although it is true that an assault with a

knife may reflect implied malice, the issue here is whether there is substantial

evidence that defendant acted with only a conscious disregard for human life. He

does not explain how the evidence he cites — his use of a knife, “words” before

the assault, and a threat on some prior occasion — constituted substantial evidence

that he acted only with conscious disregard for human life. On the contrary, all of

the relevant evidence reflects an intent to kill.

4. Voluntary Manslaughter Instruction

As previously noted, defendant requested voluntary manslaughter

instructions on a duress theory that the trial court rejected. On appeal, he contends

the trial court had a duty to instruct the jury, on its own motion, regarding three

other theories of voluntary manslaughter: sudden quarrel or heat of passion;

imperfect self-defense; and assault with a deadly weapon without malice

aforethought. He claims the trial court‟s failure to do so violated his state and

constitutional rights to due process, trial by jury, a fair trial, and a reliable penalty

determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const. art. I, §§ 7,

subd. (a), 15, 16.) The claim is meritless.

As noted above in our discussion of defendant‟s claim of instructional error

regarding duress (ante, pp. 42-49), the element of malice may be negated by

evidence that (1) the defendant acted in a sudden quarrel or heat of passion, or (2)

53

the defendant unreasonably but in good faith believed it was necessary to act in

self-defense. If either of these circumstances is found, an unlawful killing will be

voluntary manslaughter rather than murder. “Only these circumstances negate

malice when a defendant intends to kill.” (People v. Manriquez (2005) 37 Cal.4th

547, 583.)

The heat of passion sufficient to reduce murder to manslaughter “exists

only where „the killer‟s reason was actually obscured as a result of a strong

passion aroused by a “provocation” sufficient to cause an “ „ordinary [person] of

average disposition . . . to act rashly or without due deliberation and reflection, and

from this passion rather than from judgment.‟ ” ‟ ” (People v. Carasi (2008) 44

Cal.4th 1263, 1306.) The belief required to support imperfect self-defense is that

the defendant “was in imminent danger of death or great bodily injury.” (People

v. Booker (2011) 51 Cal.4th 141, 182.) This doctrine is a “ „narrow‟ ” one and

“will apply only when the defendant has an actual belief in the need for self-

defense and only when the defendant fears immediate harm that „ “ „must be

instantly dealt with.‟ ” ‟ ” (People v. Rogers (2006) 39 Cal.4th 826, 883.)

A trial court must instruct a jury regarding lesser included offenses

“ „ “whenever evidence that the defendant is guilty only of the lesser offense is

„substantial enough to merit consideration‟ by the jury [Citations.] „Substantial

evidence‟ in this context is „ “evidence from which a jury composed of reasonable

[persons] could . . . conclude[]” ‟ that the lesser offense, but not the greater was

committed.” ‟ ” (People v. Sattiewhite, supra, 59 Cal.4th at p. 477.)

Defendant identifies the same evidence to support each of these two

theories of voluntary manslaughter. First, Richard Allen, a former inmate,

testified that he heard defendant and Addis “having words” just before the fatal

attack. Second, one of defendant‟s letters to Joseph Lowery included a statement

that the victim had decided to “disrespect me, and threaten harm to me” and “to

54

kill me on the yard.” Undermining this evidence, however, is the fact that Allen

also testified that the victim, who was seated at a table playing cards when

defendant approached him from behind, did not threaten defendant. Furthermore,

Allen‟s belief that the two were arguing was based solely on the tone of

defendant‟s voice, which “sounded angry.” Finally, Allen did not hear what the

two men were saying to each other. Regarding the letter, defendant did not

identify when the alleged threat occurred. This evidence, even if credited, does

not begin to demonstrate either provocation for purposes of heat of passion

voluntary manslaughter or imminence of danger of death for purposes of imperfect

self-defense voluntary manslaughter. Accordingly, the trial court was not required

to instruct on either theory.

Last, defendant cites People v. Garcia (2008) 162 Cal.App.4th 18, in

support of his contention that the trial court should have instructed the jury

concerning voluntary manslaughter because there was evidence he committed an

assault with a deadly weapon without malice aforethought. His reliance on Garcia

is in vain, that decision having been disapproved by this court in People v. Bryant

(2013) 56 Cal.4th 959, 970, on the very point for which he cites it. In Bryant, we

held that a killing without malice in the commission of an inherently dangerous

assaultive felony “cannot be voluntary manslaughter because voluntary

manslaughter requires either an intent to kill or a conscious disregard for life.”

(Ibid.) Accordingly, this argument is foreclosed by Bryant.

5. Expert Testimony as Circumstantial Evidence

Defendant contends the trial court erred by failing to instruct the jury, on its

own motion, that its instructions on circumstantial evidence applied specifically to

expert testimony. He asserts the error violated his federal and state federal

constitutional rights to due process, trial by jury, a fair trial, and a reliable penalty

55

determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal Const., art. I, §§ 7,

subd. (a), 15, 16, 17.) The claim is both forfeited and meritless.

The trial court gave two standard instructions on circumstantial evidence,

CALJIC Nos. 2.01 and 2.02, neither of which expressly refers to expert

testimony.12 Characterizing expert testimony as a form of circumstantial

evidence, defendant contends the trial court should have informed the jury that the

12 As given here, CALJIC No. 2.01 stated in full: “However, a finding of

guilt as to any crime may not be based on circumstantial evidence unless the

proved circumstances are not only (1) consistent with the theory that the defendant

is guilty of the crime, but (2) cannot be reconciled with any other rational

conclusion. [¶] Further, each fact which is essential to complete a set of

circumstances necessary to establish the defendant‟s guilt must be proved beyond

a reasonable doubt. In other words, before an inference essential to establish guilt

may be found to have been proved beyond a reasonable doubt, each fact or

circumstance on which the inference necessarily rests must be proved beyond a

reasonable doubt. [¶] Also, if the circumstantial evidence as to any particular

count permits two reasonable interpretations, one of which points to the

defendant‟s guilt and the other to his innocence, you must adopt that interpretation

that points to the defendant‟s innocence, and reject that interpretation that points to

his guilt. [¶] If, on the other hand, one interpretation of this evidence appears to

you to be reasonable and the other interpretation to be unreasonable, you must

accept the reasonable interpretation and reject the unreasonable.”

CALJIC No. 2.02, as given here, stated in full: “The specific intent and/or

mental state with which an act is done may be shown by the circumstances

surrounding the commission of the act. However, you may not find the defendant

guilty of the crime charged in Counts 1, 2, or 3 unless the proved circumstances

are not only (1) consistent with the theory that the defendant had the required

specific intent and/or mental state but (2) cannot be reconciled with any other

rational conclusion. [¶] Also, if the evidence as to specific intent and/or mental

state permits two reasonable interpretations, one of which points to the existence

of the specific intent and/or mental state and the other to its absence, you must

adopt that interpretation which points to its absence. If, on the other hand, one

interpretation of the evidence as to the specific intent and/or mental state appears

to you to be reasonable and the other interpretation to be unreasonable, you must

accept the reasonable interpretation and reject the unreasonable.”

56

principles expressed in those instructions applied to expert testimony. More

specifically, he contends the court should have instructed that “if the expert

testimony permitted two reasonable inferences, one of which points to defendant‟s

innocence and the other to his guilt, the jury must adopt that interpretation that

points to the defendant‟s innocence, and reject that interpretation that points to his

guilt.”

Defendant does not assert that the circumstantial evidence instructions were

incorrect statements of law. “A party may not complain on appeal that an

instruction correct in law and responsive to the evidence was too general or

incomplete unless the party has requested appropriate clarifying or amplifying

language.” (People v. Lang (1989) 49 Cal.3d 991, 1024; accord, People v.

Livingston (2012) 53 Cal.4th 1145, 1166; People v. Lewis (2001) 26 Cal.4th 334,

380.) Accordingly, the claim is forfeited.

The claim is also without merit. Defendant cites no authority for the

proposition that a trial court is required to specify the evidence or the issues to

which the instructions regarding circumstantial evidence apply. And for good

reason: how a general instruction applies to specific evidence or theories is an

argument for counsel to make.

6. Refused Modification of CALJIC No. 2.11.5

Defendant contends the trial court erred when it denied his proposed

modification to CALJIC No. 2.11.5 (Unjoined Perpetrators of the Same Crime).

His asserts the error violated his federal and state constitutional rights to a fair

trial, to a trial by jury, to present a defense, and to a reliable penalty determination.

(U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal Const. art. I, §§ 7, subd. (a). 15,

16, 17.) The claim is meritless.

57

The trial court gave CALJIC No. 2.11.5 as follows: “There has been

evidence in this case indicating that a person other than defendant was or may

have been involved in the crime for which that defendant is on trial. [¶] There

may be many reasons why that person is not here on trial. Therefore, do not

speculate or guess as to why the other is not being prosecuted in this trial or

whether he has been or will be prosecuted. Your sole duty is to decide whether

the People have proved the guilt of the defendant on trial.”

The instruction was intended to apply to defendant‟s cellmate, Gary Green,

who participated in the attack on Addis, but was not on trial. An internal rules

violation investigation by the Department of Corrections concluded that Green

was involved in the conspiracy to assault Addis and noted there was information

that Green had ordered the hit on Addis. Green was assessed a 360-day credit

loss. However, 20 days after this disciplinary hearing, he was paroled. Based on

this record, defendant‟s gang expert, Steven Rigg, testified that Green was not

punished for his participation in the conspiracy.

In light of this evidence, defense counsel requested a modification of

CALJIC No. 2.11.5 to include the following language: “You may, however,

consider the actions taken against Mr. Green by members of the Department of

Corrections to the extent same have been proved in this case as they bear upon

issues of fact which you are asked to determine.” The prosecutor, while noting the

defense was free to argue its theory that correctional officers were complicit in the

assault on Addis, objected to the modification of CALJIC No. 2.11.5 because it

“takes away what this jury instruction is saying.” That is, it invited speculation as

to why Green had not been prosecuted for the Addis murder. Defense counsel

argued the modification “clarif[ied] the behavior of the Department of Corrections

toward Mr. Green, independent of any prosecutorial decisions that may be relevant

to the facts in this case.” The trial court rejected the proposed modification.

58

There was no error. Defendant does not contend, nor could he, that

CALJIC 2.11.5 was either inapplicable to this case or flawed as given. (See

People v. Brown (2003) 31 Cal.4th 518, 560 [purpose of the instruction “ „is to

discourage the jury from irrelevant speculation about the prosecution‟s reasons for

not jointly prosecuting all those shown by the evidence to have participated in the

perpetration of the charged offenses, and also to discourage speculation about the

eventual fates of unjoined perpetrators‟ ”].) The proposed modification would

have simultaneously instructed the jury it could not consider the prosecution‟s

reasons for not prosecuting Green, but it could consider the actions of the

Department of Corrections in giving him assertedly lenient punishment for his part

in the attack on Addis. As the prosecutor here noted, this conflation of the actions

of the District Attorney‟s Office and the Department of Corrections could only

have confused the jury and potentially eviscerated the instruction. Accordingly,

the trial court properly rejected the proposed modification.

Moreover, even without the proposed modification, nothing prevented the

defense from making its argument that the assertedly lenient treatment of Green by

the Department of Corrections was evidence of complicity by some correctional

officers in the attack on Addis. Therefore, his claims of error and prejudice both

fail.

G. Cumulative Error

Because we have found no error in the guilt phase, there is no cumulative

prejudice to address.

59

III. PENALTY PHASE CLAIMS

A. Claims Related to Defendant’s Convictions for Assault by a Life

Prisoner with Malice Aforethought

1. Applicability of Section 4500 to Defendant at the Time of the

Offenses

Defendant contends his two convictions of assault by a life prisoner with

malice aforethought must be reversed because he was not “undergoing a life

sentence” (§ 4500) at the time he assaulted Addis (count 2) and Matthews (count

3). Citing section 1170.1, which addresses when a consecutive term imposed for a

felony committed in prison commences, defendant claims that at the time he

committed the assaults, he was still serving a sentence for burglary, and his life

sentence had not yet begun. He contends that his state and federal constitutional

rights to due process, trial by jury, and a reliable penalty determination require

reversal of his convictions. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal.

Const., art. I, §§ 7, subd. (a), 15, 16, 17.)

Preliminarily, the People assert that defendant has forfeited this claim

because he failed to make the argument below and, indeed, did not contest

evidence presented by the prosecution in the form of prison records to prove he

was a life prisoner at the time of the offenses. Defendant casts his claim as one of

sufficiency of the evidence to support his convictions, and on that basis, maintains

that such a claim may be raised for the first time on appeal. (See People v. Butler

(2003) 31 Cal.4th 1119, 1126 [substantial evidence claim can be raised on appeal

even if it was not argued at trial].) Assuming, without deciding, that the claim is

properly raised, it is without merit.

Section 4500 states in pertinent part: “Every person while undergoing a life

sentence, who is sentenced to state prison within this state, and who, with malice

aforethought, commits an assault upon the person of another with a deadly weapon

60

or instrument, or by any means of force likely to produce great bodily injury is

punishable with death or life imprisonment without possibility of parole” if the

victim dies. (Italics added.) Section 1170.1, subdivision (c) (hereinafter section

1170.1(c)) addresses when such a sentence commences if it is consecutive to a

term already being served. It provides that when “any person [is] convicted of one

or more felonies committed while the person is confined in the state prison . . . and

the law either requires the terms to be served consecutively or the court imposes

consecutive terms, the term of imprisonment for all the convictions that the person

is required to serve consecutively shall commence from the time the person would

otherwise have been released from prison.” (§ 1170.1(c), italics added.)

Here the evidence shows the following: In June 1992, defendant was

sentenced to an eight-year prison term after he pleaded guilty to first degree

burglary. The Department of Corrections calculated his earliest release date for

this offense would be February 10, 2000. In September 1995, while still serving

his burglary sentence, defendant pleaded guilty to possession of a deadly weapon

by an inmate (§ 4502) which, because it was his third strike, resulted in a sentence

of 25 years to life with the possibility of parole, consecutive to his burglary

sentence. In defendant‟s chronological history log maintained by the Department

of Corrections, an entry dated November 13, 1995, states: “Life term begins

2/10/2000.” Defendant‟s assaults on Addis and Matthews were committed in

1997.

Based on this record, defendant contends he was not “undergoing a life

sentence” when he assaulted his fellow inmates in 1997; rather, he was still

serving his burglary sentence. We rejected a similar argument in People v.

McNabb (1935) 3 Cal.2d 441 (McNabb), which involved section 4500‟s

predecessor, former section 246. While McNabb was on parole for two robberies

for which he had been sentenced to two determinate sentences, he committed two

61

more robberies, for which he was sentenced to two terms of five years to life.

Upon his conviction for these later robberies, his parole was revoked and he was

required to serve the rest of the two determinate sentences. Thereafter, while

trying to escape from prison, he killed a fellow inmate. McNabb was tried and

sentenced to death under former section 246, which provided: “ „Every person

undergoing a life sentence in a state prison of this state, who, with malice

aforethought, commits an assault upon the person of another with a deadly weapon

or instrument, or by any means of force likely to produce great bodily injury, is

punishable with death.‟ ” (McNabb, at p. 444.)

On appeal, McNabb contended that he was not serving a life sentence when

he attempted to escape because his life sentences for the later robberies, being

consecutive to the determinate sentences for the earlier robberies on which his

parole had been revoked, had not yet commenced. We rejected his argument:

“The fact that appellant McNabb was returned to prison upon two convictions of

first degree robberies committed while released on parole and was required to

serve out the uncompleted terms of imprisonment by reason of breaking the terms

of his parole did not suspend the force of commitments upon which he was held.

Had he been discharged or released from serving the uncompleted terms by a writ

of habeas corpus or by pardon he would have still been held as a prisoner serving

a life term on said later commitments. We think the contention . . . to the effect

that a person is not undergoing a life sentence within the purpose and meaning of

the law, when imprisoned on a judgment which imposes the longest term known to

the law and to which nothing further may be added, because, forsooth, he is also

held on a prior uncompleted sentence for years does not stand the test of reason.”

(McNabb, supra, 3 Cal.2d at p. 457.)

We dismissed the defendant‟s reliance on former section 669, which

provided that when a person was convicted of multiple crimes, the imprisonment

62

for each term was to “commence at the termination of the [preceding] term of

imprisonment.” (Former § 669, as amended by Stats. 1927, ch. 626, § 1, p.

1056.)13 “Section 669 . . . is not germane to the subject. It has to do with time

served in terms less than life. It does not purport to say that a person is not

undergoing a life sentence when delivered on a certified copy of the judgment of

conviction to the warden of the state prison. The prisoner is undergoing a life

sentence whatever may happen and he is held as such a prisoner by virtue of said

judgment.” (McNabb, supra, 3 Cal.2d at p. 457.)

Finally, we pointed out that former section 246 “was enacted as a

disciplinary regulation and as a means of protection to prisoners themselves

against the assaults of the vicious, and also to protect the officers who are required

to mingle with the inmates, unarmed. . . . It is applicable to the facts of

[McNabb‟s] case in every sense.” (McNabb, supra, 3 Cal.2d at p. 458.)

In reliance on our decision in McNabb, the Court of Appeal in People v.

Superior Court (Bell) (2002) 99 Cal.App.4th 1334 (Bell), rejected a claim that a

defendant‟s attack on another inmate did not occur while he was “undergoing a

life sentence” (§ 4500) because he was serving a determinate term at the time of

the attack. The court noted that the phrase “undergoing a life sentence” has

remained constant from the enactment of former section 246 through various

13 In 1929, when McNabb was convicted of the two later robberies, former

section 669 provided: “When any person is convicted of two or more crimes the

former imprisonment to which he is sentenced upon the second or other

subsequent conviction must commence at the termination of the first term of

imprisonment to which he shall be adjudged, or at the termination of the second or

other subsequent term of imprisonment, as the case may be; provided, that in

exceptional cases the judgment, in the discretion of the court, may direct that such

terms of imprisonment, or any of them, shall run concurrently.” (Stats. 1927,

ch. 626, § 1, p. 1056.)

63

amendments to section 4500, and the Legislature‟s intent has also remained the

same — protecting guards and other prisoners from inmates who think they have

“ „nothing left to lose‟ ” by committing crimes in prison. (Bell, supra, 99

Cal.App.4th at p. 1341; see id. at pp. 1340-1341, citing McNabb, supra, 13 Cal.2d

441.) Bell further observed that in In re Cowen (1946) 27 Cal.2d 637, we

explained that former section 669, which required that judgments provide whether

multiple terms shall be served concurrently or consecutively, does “ „not . . .

require that for all purposes, when consecutive sentences are directed, the

defendant shall be regarded as imprisoned on only one charge at a time.‟ ” (Bell,

at p. 1343, quoting Cowen, at p. 648.) Bell acknowledged that former section 669

was amended after In re Cowen was decided, but concluded that “[a]ccording to

the plain language of section 669, the mandate that a determinate sentence be

served before a consecutive life sentence is for the purpose of calculating parole

eligibility, and not for the purpose of determining whether the prisoner is

undergoing a life sentence within the meaning of section 4500.” (Bell, at p. 1343.)

Defendant attempts to distinguish McNabb and Bell on the basis that this

case is governed by section 1170.1(c), which specifically addresses consecutive

sentences with respect to crimes committed while in prison, rather than section

669, which more generally addresses concurrent and consecutive sentences. As

noted above, section 1170.1 provides that when an individual is convicted of

felonies in prison and consecutive sentences are imposed, “the term of

imprisonment for all [such] convictions . . . shall commence from the time the

person would otherwise have been released from prison.” (§ 1170.1(c).) Based on

this language, defendant reasons that his life term under the Three Strikes law for

possession of a weapon in prison would not have begun until the earliest date on

which he could have been released with respect to his determinate term for the

64

burglaries that led to his imprisonment. He contends that date would have been

February 10, 2000, more than two years after he assaulted Addis.

Defendant‟s argument is unpersuasive for at least two reasons. First, it

ignores the different language and functions of the two statutes. Section 1170.1(c)

addresses when an inmate begins “to serve” consecutive sentences, whereas

section 4500 addresses the punishment to be imposed for specified assaults

committed “while undergoing a life sentence.” Section 1170.1, like section 669, is

a technical sentencing statute that addresses the time during which an inmate is

actually serving a particular prison term, and does not purport to have any bearing

on the question of whether an individual is undergoing a life sentence for purposes

of section 4500. Furthermore, we presume that in enacting section 1170.1(c), the

Legislature was aware of not only section 4500, but also the case law broadly

interpreting the phrase “undergoing a life sentence” in that statute. Had the

Legislature intended for section 1170.1(c) to modify in any way the latter statute,

it could have said so.

Second, defendant‟s argument would undermine the shared purpose of

sections 1170.1(c) and 4500 — deterring inmates from committing crimes in

prison. “Section 1170.1(c) applies to felonies committed when the defendant is

confined in a state prison. The statutory scheme makes clear that such felonies,

i.e., those felonies committed in prison, are exempt from the general sentencing

scheme.” (People v. White (1988) 202 Cal.App.3d 862, 869.) The reason such

felonies are treated differently is that “[t]he Legislature wanted in-prison crimes to

be punished more severely than crimes committed „on the „outside.‟ ” (Ibid.) It

would be inconsistent with the legislative purpose of these statutes to construe

section 1170.1(c) to preclude the application of section 4500 to inmates who have

not yet begun serving an imposed and pending life sentence because they are still

serving a determinate sentence.

65

Finally, defendant contends that because his Three Strikes conviction could

have been overturned on appeal before he began to serve it, he was not a person

undergoing a life sentence when he assaulted Addis. Of course, any life sentence

consecutive to a determinate sentence could potentially be modified by

commutation, pardon, a statutory change, an ultimately successful appeal or

habeas corpus petition, or even avoided by the death of the inmate during the

determinant term. Such speculative outcomes do not undermine the core

reasoning of McNabb and Bell that the phrase “undergoing a life sentence” was

intended to encompass an inmate who is subject to such a sentence, even if he or

she has not begun “serving” that sentence.

2. Whether Section 4500 Sufficiently Narrows the Class of Individuals

Eligible for the Death Penalty

Defendant contends that section 4500 fails to sufficiently narrow the class

of individuals eligible for the death penalty in violation of his rights to a due

process, and a fair trial, and the proscription against cruel and unusual punishment.

(U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const. art. I, §§ 7, subd. (a), 15,

16, 17.) We disagree.

Under section 4500, a person undergoing a life sentence is eligible for a

death sentence if found guilty of an assault with a deadly weapon or with force

likely to produce great bodily injury, with malice aforethought, leading to the

death of the victim. In effect, it authorizes imposition of the death penalty for

what could be a second degree murder, i.e., an unlawful killing with malice

aforethought. In contrast, the vast majority of offenses eligible for the death

penalty are various forms of first degree murder. (§ 190.2.) Nonetheless, as

discussed below, the legislative determination that life prisoners who commit fatal

aggravated assaults are potentially deserving of death is a venerable one; versions

of this statute have existed for more than a century. (See former § 246, added by

66

Stats. 1901, ch. 12, § 1, p. 6.) Moreover, the statute is based on rationales

involving security and deterrence in prison settings (see McNabb, supra, 3 Cal.2d

at p. 457; Bell, supra, 99 Cal.App.4th at pp. 1339-1340), and California is scarcely

alone in recognizing that killings committed by life prisoners in prison constitute a

special class of homicide as to which the severest penalty should potentially apply.

Section 4500 is a death eligibility statute as opposed to a death selection

statute. (See Tuilaepa v. California (1994) 512 U.S. 967, 971-972.) A defendant

convicted of the offense defined by section 4500 becomes eligible for the death

penalty or its alternative, life without the possibility of parole. Thereafter, the jury

selects the penalty following a penalty phase trial at which it considers evidence in

aggravation and mitigation under section 190.3. The selection process requires an

“ „individualized determination‟ ” of the appropriate penalty based on “ „the

character of the individual and the circumstances of the crime.‟ ” (Tuilaepa, at p.

972.) This “requirement is met when the jury can consider relevant mitigating

evidence of the character and record of the defendant and the circumstances of the

crime.” (Ibid.) The requirement of an individualized determination does not,

however, apply to the eligibility stage. (Id. at p. 973.)

The distinction between the eligibility and selection phases is significant in

terms of the “differing constitutional treatment [the United States Supreme Court

has] accorded those two aspects of capital sentencing. It is in regard to the

eligibility phase that [the court has] stressed the need for channeling and limiting

the jury‟s discretion to ensure that the death penalty is a proportionate punishment

and therefore not arbitrary or capricious in its imposition. In contrast, in the

selection phase, [the court has] emphasized the need for a broad inquiry into all

relevant mitigating evidence to allow an individualized determination.”

(Buchanan v. Angelone (1998) 522 U.S. 269, 275-276.)

67

“To pass constitutional muster, a capital sentencing scheme [1] must

„genuinely narrow the class of persons eligible for the death penalty and [2] must

reasonably justify the imposition of a more severe sentence on the defendant

compared to others found guilty of murder.‟ ” (Lowenfield v. Phelps (1988) 484

U.S. 231, 244.) With respect to the first requirement, we note that the class of

individuals potentially subject to the death penalty under section 4500 is quite

circumscribed: persons serving a life sentence who, with malice aforethought,

assault another with a deadly weapon or instrument, or by any means of force

likely to produce great bodily injury, resulting in the death of the victim within a

year and a day. (See Woodson v. North Carolina (1976) 428 U.S. 280, 287, fn. 7

[describing as “an extremely narrow category of homicide” “murder [committed]

by a prisoner serving a life sentence”].) The statute easily satisfies the

requirement that an eligibility factor “apply only to a subclass of defendants

convicted of [homicide].” (Tuilaepa v. California, supra, 512 U.S. at p. 972.)

With respect to the second requirement — reasonable justification for a

more severe sentence — we reiterate that the Legislature has determined that death

eligibility for life prisoners who commit an aggravated assault that leads to the

victim‟s death is required to “protect[] [their fellow] prisoners . . . against the

assaults of the vicious, and also to protect the officers who are required to mingle

with the inmates, unarmed.” (McNabb, supra, 3 Cal.2d at p. 458; accord, Bell,

supra, 99 Cal.App.4th at p. 1341.) By imposing more severe penalties on those

serving life sentences, “the Legislature was attempting to deter severely violent

crime by those who might otherwise think themselves immune from punishment

because they were already lifetime guests of the state penal system.” (In re

Carmichael (1982) 132 Cal.App.3d 542, 546.) Along with retribution, deterring

attacks by life prisoners and thereby promoting the safety of inmates and

correction officers are legitimate penal objectives. (See Kennedy v. Louisiana

68

(2008) 554 U.S. 407, 420 (Kennedy) [“punishment is justified under one or more

of three principal rationales: rehabilitation, deterrence, and retribution”].) These

rationales of institutional security, deterrence, and retribution provide a reasonable

justification for distinguishing this category of murder from others to which the

death penalty does not apply.

Defendant contends section 4500 fails to sufficiently narrow the subclass of

defendants eligible for the death penalty because it does not distinguish between

different types of life prisoners, such as those serving a life term for murder and

someone like him whose life sentence was imposed under the Three Strikes law

for nonviolent felonies.14 There is no requirement at the eligibility stage that a

narrowly circumscribed class of defendants for whom the death penalty is

reasonably justified be further distinguished according to the particular

circumstances that led to their eligibility. Rather, that is a question that goes to the

selection stage and its individualized determination requirement. Only at that

point does the Eighth Amendment require “a broad inquiry into all relevant

mitigating evidence to allow an individualized determination.” (Buchanan v.

Angelone, supra, 522 U.S. at p. 276.) Although the reason why a defendant was a

life prisoner at the time of the violation of section 4500 may be a relevant

consideration for the jury at the selection stage, that reason is irrelevant to the

justification for including such persons in the death-eligible class; the reasons

underlying section 4500 apply with equal force to life prisoners who have

14 Defendant‟s life sentence was imposed as a result of his 1995 guilty plea to

a third strike of possession of a weapon in prison (§ 4502) and his admission to

two prior felony convictions for burglary.

69

committed prior violent crimes and those who face lifetime imprisonment for

nonviolent offenses.15

Defendant next argues that “[d]evelopments since [prior] decisions

upholding [earlier versions of] section 4500 and its predecessor statutes have

undermined the retribution, deterrence and safety rationales offered to justify

death eligibility on life prisoner status.” In essence, defendant‟s claim is that,

because prior versions of section 4500 would not pass constitutional muster in

light of evolving Eighth Amendment jurisprudence, the underlying legislative

justifications for punishing life prisoners who, with malice aforethought, commit

fatal assaults in prison have also been eroded over time. As explained below, the

argument fails because the legislative justifications remain valid.

Until 1977, section 4500 and its predecessor, former section 246, mandated

the death penalty for life prisoners who committed an aggravated assault,

regardless of whether the victim died. The original statute, enacted in 1901,

provided: “Every person undergoing a life sentence in a state prison of this state,

who, with malice aforethought, commits an assault upon the person of another

with a deadly weapon or instrument, or by any means of force likely to produce

great bodily injury, is punishable with death.” (Stats. 1901, ch. 12, § 1, p. 6.) In

15 Defendant‟s reliance on Tuilaepa v.California, supra, 512 U.S. 967, is

misplaced. As he concedes, Tuilaepa concerns death selection, not death

eligibility. Moreover, Tuilaepa‟s observation that some sentencing factors may be

unconstitutionally vague if they lack “some „common-sense core of meaning . . .

that criminal juries should be capable of understanding‟ ” (id. at p. 975) does not

support defendant‟s assertion that section 4500 is unconstitutionally vague. As

Tuilaepa itself notes, “[t]he eligibility decision fits the crime within a defined

classification.” (Id. at p. 973.) Section 4500 meets this standard. Similarly,

Godfrey v. Georgia (1980) 446 U.S. 420, also cited by defendant, involved a

vagueness challenge to a sentencing factor. (Id. at pp. 422-423.)

70

1941, section 246 was repealed and reenacted, renumbered as section 4500, but

textually remained substantially the same. (Stats. 1941, ch. 106, §§ 1, 15, pp.

1080, 1124.) In 1977, following the restoration of the death penalty in California

(see People v. Frierson (1979) 25 Cal.3d 142, 172-175), section 4500 was

amended to its present form. The amendment eliminated the mandatory death

penalty provision and limited eligibility for the death penalty to aggravated

assaults with malice aforethought resulting in death, with the alternative of life

without the possibility of parole. (Stats. 1977, ch. 316, § 21, p. 1264.)

Defendant cites a number of decisions by this court upholding those earlier

and now superseded versions of the statute against various constitutional

challenges (see, e.g., People v. Vaughn (1969) 71 Cal.2d 406, 418 [imposition of

death penalty under section 4500 for an assault that did not result in the death of

the victim did not violate the Eighth Amendment‟s proscription against cruel and

unusual punishment]; People v. Wells (1949) 33 Cal.2d 330, 337 [holding that

mandatory death penalty imposed under section 4500 on prisoner serving an

indeterminate sentence “infringes no constitutional limitation”]; People v. Finley

(1908) 153 Cal. 59 [upholding mandatory death penalty imposed on a life term

defendant convicted under former section 246 against an equal protection

challenge to the statute]), and asserts that none of these earlier decisions would

survive scrutiny under current Eighth Amendment jurisprudence because the

Eighth Amendment now prohibits the death penalty for nonfatal assaultive crimes,

and also prohibits mandatory death penalty statutes. (See, e.g., Kennedy, supra,

554 U.S. 407 [striking down a statute authorizing the death penalty for rape of a

child]; Woodson v. North Carolina, supra, 428 U.S. 280 [striking down statute

making the death penalty mandatory for first degree murder]; Graham v. Superior

Court (1979) 98 Cal.App.3d 880 [declaring unconstitutional a 1973 version of

section 4500 that contained a mandatory death penalty provision].) From this

71

premise, he contends that the legislative justifications offered in support of the

statute in our earlier opinions — deterrence, retribution, and institutional security

— have been eroded and are now constitutionally suspect.

Defendant‟s logic is flawed and the cases on which he relies are inapposite.

Decisions rejecting constitutional challenges to prior versions of the statute

containing elements that would no longer be constitutionally permissible are

obviously not controlling in our examination of the current version of the statute.

Nonetheless, the discussions in those earlier decisions of the threats of violence

posed by prisoners sentenced to life terms as justification for the policy of

potentially imposing the death penalty on them remain valid and support the

current version of section 4500.16 The United States Supreme Court continues to

recognize that penal statutes may legitimately rest on one or more of “three

principal rationales: rehabilitation, deterrence, and retribution” (Kennedy, supra,

554 U.S. at p. 420.) Section 4500, as already noted, singles out a particular

subclass of defendants who commit lethal assaults with malice aforethought —

those imprisoned for life — and makes them eligible for the death penalty because

the Legislature has determined their particular status as life prisoners requires this

exceptional measure to protect correctional officers and other inmates. With the

16 For example, in People v. Finley, supra, 153 Cal. at page 61, this court

observed that “it has long been a part of judicial knowledge, of legislative

knowledge, and, indeed, of general knowledge, that convicts in penal institutions

undergoing sentences for life, constitute a most reckless and dangerous class. The

conditions of their sentences destroy their hopes and with the destruction of hope

all bonds of restraint are broken and there follows a recklessness leading to brutal

crimes. . . . They were crimes of violence committed not alone against fellow

inmates, but upon the custodians, officers, and guards of the institutions. . . .

Under this well-recognized condition of affairs it seemed expedient to the

legislature to meet the situation by the enactment of section 246 of the Penal

Code.”

72

growth in the prison population and prison gangs, this rationale applies with equal

or greater force today compared to when it was first articulated over a hundred

years ago. Accordingly, we reject defendant‟s assertion that the statute‟s rationale

has been superseded or undermined merely because earlier versions of the statute

would no longer pass constitutional muster.

The opinion upon which defendant places primary reliance, Sumner v.

Shuman (1987) 483 U.S. 66, is inapposite. In Sumner, the United States Supreme

Court declared unconstitutional a Nevada statute that mandated the death penalty

for prisoners who committed murder while undergoing a sentence of life without

the possibility of parole. Under Nevada law, life without the possibility of parole

could be imposed for crimes other than murder, such as kidnapping, rape and

battery with substantial bodily harm. (Id. at pp. 80-81.) The Supreme Court noted

that under those circumstances, “[w]ithout consideration of the nature of the

predicate life-term offense and the circumstances surrounding the commission of

that offense, the label „life-term inmate‟ reveals little about the inmate‟s record or

character.” (Id. at p. 81.) The court further noted that “a guided-discretion

sentencing procedure does not undermine any deterrent effect that the threat of the

death penalty may have” (id. at p. 83), and that a guided-discretion procedure does

not necessarily allow an inmate to avoid retribution (id. at pp. 83-84). The court

did not, however, question the legitimacy of deterrence and retribution as

rationales. In short, the statute in Sumner differs from section 4500 in crucial

respects, and defendant‟s reliance on Sumner is misplaced.

Defendant also cites two studies assertedly demonstrating that the death

penalty has an insignificant deterrent effect on prison murders.17 The weight and

17 Defendant cites Sorensen & Pilgrim, An Actuarial Risk Assessment of

Violence Posed by Capital Murder Defendants (2000) 90 J. Crim. L. &

(footnote continued on next page)

73

validity of such studies involve policy questions within the Legislature‟s purview.

So, too, do defendant‟s arguments regarding retributive steps short of death that

might be taken against prisoners who kill. These studies do not establish that

imposing death eligibility on life prisoners who commit fatal aggravated assaults

is constitutionally impermissible.

Next, defendant contends that an “interjurisdictional comparison

demonstrates a lack of societal consensus that a murder by a life prisoner”

deserves the death penalty. We are not persuaded.

In evaluating whether there was a consensus against making the crime of

rape of a child punishable by death, the United States Supreme Court examined

both “[t]he history of the death penalty for the crime of rape” and the current

status of such statutes in the United States. (Kennedy, supra, 554 U.S. at p. 422.)

The court traced an historical movement away from imposing the death penalty for

rape from its high point in 1925 when 18 states, the District of Columbia and the

federal government had such statutes, to the post-Furman (Furman v. Georgia

(1972) 408 U.S. 238) landscape, when only Louisiana and five other states had

reenacted such statutes. The court further noted that the statutes of four of those

states were more restrictive than Louisiana‟s law, because they required a prior

conviction for rape as a condition for death eligibility while the remaining state,

Georgia, required aggravating circumstances including, but not limited to, a prior

conviction. (Kennedy, supra, 554 U.S. at p. 423.) “By contrast, 44 States have

not made child rape a capital offense. As for federal law, Congress in the Federal

(footnote continued from previous page)

Criminology 1251, and Marquart & Sorensen, A National Study of the Furman-

Commuted Inmates: Assessing the Threat to Society from Capital Offenders

(1989) 23 Loyola L.A. L.Rev. 5.

74

Death Penalty Act of 1994 expanded the number of federal crimes for which the

death penalty is a permissible sentence, including certain nonhomicide offenses;

but it did not do the same for child rape or abuse. [Citation.] Under 18 U.S.C.

§ 2245, an offender is death eligible only when the sexual abuse or exploitation

results in the victim‟s death.” (Ibid.)

The court drew comparisons between these statistics and those it had

examined in three earlier cases in which it had held the death penalty

unconstitutional when imposed upon certain types of aiders and abettors to felony

murder (Enmund v. Florida (1982) 458 U.S. 782), the intellectually disabled

(Atkins v. Virginia, supra, 536 U.S. 304), and juveniles (Roper v. Simmons (2005)

543 U.S. 551). (Kennedy, supra, 554 U.S. at pp. 425-426.) As in those cases, the

court‟s survey led it to conclude that the “evidence of a national consensus with

respect to the death penalty for child rapists . . . shows divided opinion but, on

balance, an opinion against it.” (Id. at p. 426.) The court concluded: “After

reviewing the authorities informed by contemporary norms, including the history

of the death penalty for this and other nonhomicide crimes, current state statutes

and new enactments, and the number of executions since 1964, we conclude there

is a national consensus against capital punishment for the crime of child rape.”

(Id. at p. 434.)

As an initial matter, it is significant that the court in Kennedy explicitly and

repeatedly referred to the fact that the statute at issue authorized the death penalty

for a crime that, while still devastating for the victim, did not result in the victim‟s

death. (See, e.g., Kennedy, supra, 554 U.S. at p. 435 [acknowledging that “there

are moral grounds to question a rule barring capital punishment for a crime against

an individual that did not result in death”]; id. at p. 437 [“the death penalty should

not be expanded to instances where the victim‟s life was not taken”]; id. at p. 439

[recognizing the possibility of arbitrary results in cases of heinous crimes that may

75

“overwhelm a decent person‟s judgment” and refusing to “sanction this result

when the harm to the victim, though grave, cannot be quantified in the same way

as death of the victim”].) Of course, for a violation of section 4500 to be death

eligible, the victim must die (within a year and a day) from the assault.

Accordingly, a major aspect of the court‟s reasoning in Kennedy does not apply

here.

Defendant nonetheless contends that there is no “societal consensus” to

support imposition of death for a life prisoner who kills. In support of his claim,

he cites the high court‟s decisions in Kennedy, Roper, Atkins, and Enmund, but his

analysis bears only a superficial resemblance to those opinions‟ rigorous

examination of historical, judicial, and legislative trends regarding the existence of

an evolving national consensus against authorization of imposition of the death

penalty on a class of defendants. Instead, he rests his argument solely on his

assertion that 75 percent of American jurisdictions have rejected using prisoner

status to determine death eligibility. His statistical reading is tendentious. In fact,

based on his statistics, it is more accurate to say that the vast majority of

jurisdictions with the death penalty regard custody status as a significant factor in

either death penalty eligibility or death penalty selection, or for both purposes. Of

the 31 states and the federal government whose laws currently authorize

imposition of the death penalty, the laws of 29 states and the federal government

use custody status as a death-eligibility or a death-selection factor, or both. It

appears that only Nebraska and South Carolina do not explicitly include custodial

status as a death-eligibility or selection factor.

Defendant does not cite, nor has our research found, a single judicial

decision from any death penalty jurisdiction that has held that the use of custodial

status as either an eligibility or a selection factor for the death penalty violates the

Eighth Amendment. Nor has defendant shown that any jurisdiction that reenacted

76

the death penalty following Furman v. Georgia, supra, 408 U.S. 238, omitted

custodial status as either an eligibility or selection factor for purposes of the death

penalty. Thus, defendant fails to demonstrate the existence of an historical

trajectory supporting a conclusion that the majority, or, indeed, any, of the death

penalty jurisdictions has abandoned custody status as a factor for imposing the

death penalty.

Instead, defendant attempts to parse the statistical evidence to argue that we

should look only at states whose statutes mirror section 4500, that is, statutes that

use life term status as an eligibility factor and apply the death penalty to killings

that do not rise to the level of first degree murder. Using this metric, defendant

concludes that only eight states have a law comparable to section 4500.

However, the question here is whether custodial status is used by a majority

of jurisdictions as a basis for potentially imposing the death penalty, not how

individual jurisdictions use that factor. In other words, is there a consensus that

the death penalty is not an appropriate punishment for a fatal aggravated assault by

a life prisoner? Moreover, in this case, where defendant was also convicted of

first degree murder, he would have faced the death penalty in every jurisdiction

that uses custodial status as either an eligibility or selection factor. Even granting

that

This text is long and has been trimmed here. Open the source document for the complete record.