The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL TODD SILVERIA and JOHN RAYMOND TRAVIS,
Defendants and Appellants.
S062417
Santa Clara County Superior Court
155731
August 13, 2020
Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Kruger concurred.
PEOPLE v. SILVERIA and TRAVIS
S062417
Opinion of the Court by Groban, J.
Defendants Daniel Todd Silveria and John Raymond
Travis were convicted by separate juries1 of the first degree
murder and second degree robbery of James Madden, and the
second degree burglary of a LeeWards crafts store. (Pen. Code,2
§ 187, subd. (a), former §§ 189, 211, 212.5, subd. (b), 459, 460.2.)
The juries also found true robbery-murder and burglary-murder
special-circumstance allegations and an allegation that
defendants personally used a knife in committing the murder.3
(Former §§ 190.2, subd. (a)(17), 12022, subd. (b).) Silveria was
also convicted of the second degree robberies of Ben Graber at
Gavilan Bottle Shop and Ramsis Youssef at Quik Stop Market,
and stipulated that on May 2, 1995, he had pled guilty to the
1
Defendants were tried jointly before separate juries.
2
All further undesignated statutory references are to this
code.
3
Also as to Silveria, a lying-in-wait special-circumstance
allegation was found not true, and the jury deadlocked on the
allegation Silveria had used a stun gun and a torture-murder
special-circumstance allegation. As to Travis, a torture-murder
special-circumstance allegation was found not true, and the jury
deadlocked on the lying-in-wait special-circumstance allegation.
After the first penalty trial, the court granted the prosecutor’s
motion to strike the torture-murder special-circumstance
allegation as to Silveria and the lying-in-wait special-
circumstance allegation as to Travis.
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Opinion of the Court by Groban, J.
second degree burglary of Sportsmen’s Supply. (§§ 211, former
§§ 212.5, subd. (b), 459, 460, subd. 2.)
Silveria and Travis also had separate penalty juries. Each
jury deadlocked, and the court declared mistrials. Defendants
were retried before a single penalty jury, the jury returned
death verdicts, and the trial court entered judgments of death.
This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a);
§ 1239, subd. (b).) For the reasons that follow, we affirm the
judgments.
I. FACTS
On the night of January 28, 1991, Silveria, Travis,
Christopher Spencer, Matthew Jennings, and Troy Rackley, a
juvenile, robbed and killed James Madden while he was working
as the manager of a LeeWards crafts store in Santa Clara
County. The indictment charged all four adult perpetrators, but
the cases of Spencer and Jennings were severed.
A. Guilt Phase
During interviews with different law enforcement officers,
Silveria and Travis waived their Miranda rights, and ultimately
confessed their involvement in Madden’s murder, including the
circumstances that both men had stabbed Madden and Silveria
had used a stun gun on him. (Miranda v. Arizona (1966)
384 U.S. 436, 444–445.) Silveria also confessed his involvement
in several other crimes, including the burglary of a gun store in
which coperpetrator Jennings had obtained a stun gun, the Quik
Stop robbery, and the robbery of a liquor store on Blossom Hill
Road in which Silveria had used the stun gun. Each defendant’s
statement was played for his jury.
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1. Prosecution Evidence
a. Theft of stun gun and stun gun robberies
On January 24, 1991, about 1:00 a.m., a PARALI/AZER
stun gun was taken during a burglary of a Sportsmen’s Supply
tackle and gun store located in an unincorporated area of Santa
Clara County. About an hour later, at 2:20 a.m., Silveria,
Rackley, and Jennings robbed Ramsis Youssef, a cashier at a
Quik Stop Market located in San Jose. Rackley used a stun gun
on Youssef during the robbery. A videotape of the crime was
played for the jury. About 10:00 p.m. that night, Silveria,
Rackley, and Jennings robbed Ben Graber, a temporary
assistant at the Gavilan Bottle Shop, which was located on
Blossom Hill Road in San Jose. A stun gun was used on Graber.
b. Madden’s murder
Silveria and Travis were hired to work for Madden at the
LeeWards crafts store on September 3, 1990. They failed to
appear for three consecutive scheduled shifts, and were
permitted to resign rather than be terminated on November 15,
1990.
On the night of January 28, 1991, Silveria, Travis,
Spencer, Jennings, and Rackley drove to LeeWards to rob the
store. Madden’s truck was parked in the back lot and Spencer
slashed the tire in order to prevent Madden from leaving.
Silveria and Travis watched the front of the store until the last
customer and the cleaning crew had left and Madden had locked
the front doors. Silveria and Spencer then surprised Madden as
he left the store by the back door. Madden was led back inside
and ordered to turn off the store alarm. He was unsuccessful in
doing so, and the alarm was triggered at 10:53 p.m.
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Opinion of the Court by Groban, J.
Silveria instructed Madden to open the safe and remove
the money. The money was placed into a duffel bag. Silveria
and Travis bound Madden’s hands and feet respectively
together with silver duct tape. At 11:02 p.m., a Honeywell
Protection Services operator dispatcher called Madden, and he
gave her the pass card number to clear the alarm. Madden’s
mouth was then taped. Silveria held the duffel bag and
repeatedly said, “Let’s go.” Travis said, “[N]o,” and told Spencer
to kill Madden. Spencer slit Madden’s throat with a knife, and
he and Travis repeatedly stabbed Madden. Silveria then
stabbed Madden once, and used the stun gun on him. The five
perpetrators fled to a Redwood City motel where they divided
the money from the robbery.
About 8:00 a.m. the next morning, Madden’s body was
discovered in the store. Travis later told law enforcement
officers that all of the perpetrators knew when they went to
LeeWards they would have to kill Madden. The perpetrators
chose LeeWards because it excited everyone to kill Madden. If
one of the female supervisors had been present instead, Travis
would have simply tied her up because he “got along with all the
women over there.”
Later that day Silveria purchased a Honda Civic and he
and Travis purchased a Datsun 280Z; both vehicle down
payments were in cash. On a Tuesday in January 1991, Silveria
showed his friend Gregg Orlando a wad of cash, and said, “We
killed somebody last night.” On the night of January 29, 1991,
Silveria and Travis were arrested in the Oakridge Mall parking
lot. A PARALI/AZER stun gun, silver duct tape, and $694 were
found in Silveria’s vehicle.
The cause of Madden’s death was 32 stab wounds to his
neck, chest, and abdomen. Forensic pathologist Dr. Parviz
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Opinion of the Court by Groban, J.
Pakdaman, who performed Madden’s autopsy, opined Madden
was alive when some of the wounds to his neck and chest were
inflicted. Dr. Robert Stratbucker, a medical doctor and
biomedical engineer, testified that a stun gun generally causes
“a very intense kind of . . . sharp pain.”
2. Defense Evidence
In Silveria’s statement to police, he told officers that he
had placed jeans, L.A. Gear shoes, and a T-shirt that he had
worn during Madden’s murder in an Oakridge Mall garbage can.
At trial, Silveria called only one witness, Elizabeth Skinner, a
Santa Clara County crime lab criminalist, apparently to
attempt to demonstrate that Silveria had a minimal role in the
murder. Skinner testified that she had received from the Santa
Clara Police Department a T-shirt, Levi’s, and a pair of L.A.
Gear shoes, that she was told were found in an Oakridge Mall
dumpster, to test for the presence of blood. No blood was
detected on the T-shirt or the shoes. A small spot on the Levi’s
tested presumptively positive for the presence of blood, but
Skinner could not ascertain whether the stain was human blood.
Skinner also tested shoes and jeans that she had been told had
been collected at some point from Travis. She found human
blood on the shoes and inside a front pocket of the jeans.
Travis presented no defense evidence.
B. Penalty Retrial
Many of the individuals discussed in the testimony shared
the same surname, so for clarity, we use first names to identify
certain witnesses.
1. Prosecution Evidence
Much of the guilt phase evidence regarding Madden’s
murder, the Sportsmen’s Supply burglary, and the Graber and
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Opinion of the Court by Groban, J.
Youssef stun gun robberies was introduced at the 1997 penalty
retrial. Evidence of Travis’s 1990 first degree burglary
conviction was also admitted. (Former §§ 459, 460, subd. 1.)
a. Silveria’s former testimony
Silveria’s statement to law enforcement was not admitted,
but portions of Silveria’s first penalty phase testimony were
read to the jury.
Silveria had worked at LeeWards from early September
1990 to Thanksgiving of 1990, and was instrumental in Travis
being hired there. At times during this period, Silveria was
homeless and used marijuana and methamphetamine.
Silveria described Madden as “just a really nice guy.”
Madden’s wife and young daughter occasionally visited him at
the store. Silveria was terminated by Madden because of his
work absences, but Madden allowed him to resign so that his
future employment would not be adversely affected. Silveria
then went to work at Toys “R” Us apparently for the Christmas
holiday season.
On January 26, 1991, the Saturday before the capital
crime was committed, Travis was adamant that “Madden
[would] need[] to be killed because he could identify us.”
Silveria saw no need for anyone in the store to be harmed, and
was “taken aback,” and immediately protested. Silveria and
Travis debated the point. Silveria was feeling “horribly sick”
that night, and left the discussion to lie down. His illness was
not related to the discussion of killing Madden.
On Sunday, January 27, while Silveria was still “very
sick,” the topic of killing Madden arose again. Spencer held a
knife and said he would be willing to stab Madden. Silveria did
not intend to kill Madden and did not believe his coperpetrators
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would actually do so because they were not generally violent.
Although Silveria initially suggested wearing disguises, the
perpetrators did not do so. Silveria was ultimately not
concerned if he was identified during the robbery because he
planned to immediately flee the area. On Sunday night,
Silveria, Travis, and the others drove to LeeWards to commit
the robbery, but the store had already closed.
Silveria’s description of the murder was similar to his
statement to law enforcement introduced at the guilt phase. In
addition, Silveria testified that on the night of Monday, January
28, 1991, Silveria was armed with a stun gun, Travis a hammer,
Spencer a fillet knife, Rackley a hand device with leather spikes,
and Jennings a crowbar. At one point Silveria entered the store
to see who was working that night.
When Madden left the store, and Silveria and the others
confronted him, Madden recognized Silveria, and appeared to
calm down, saying, “Oh Danny, oh, it’s you, Danny.” Silveria
told him to turn off the store alarm. Madden pleaded with
Silveria that he not be hurt, and Silveria said: “We are not here
to hurt you. We just want the money.” Silveria described
Madden turning off the alarm, obtaining the money from the
safe, being restrained in a chair by the perpetrators, speaking
with the alarm company, and the perpetrators taping Madden’s
mouth.
Silveria fired the stun gun at Madden’s leg twice, once for
a long period of time in an effort to render him unconscious.
Madden made sounds like “somebody . . . trying to scream
through tape,” and his legs jerked. Silveria then picked up the
duffel bag and said several times, “Let’s go.” Travis told
Spencer, “Kill him.” Madden said, “No, no” through the tape.
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PEOPLE v. SILVERIA and TRAVIS
Opinion of the Court by Groban, J.
Spencer looked uncertain, and Travis repeated, “Kill him.”
Spencer repeatedly stabbed Madden in the chest, and then at
Travis’s direction, cut Madden’s throat. Silveria was numb with
disbelief and did nothing to stop the attack except perhaps to
once more say, “Let’s go.” Travis then stabbed Madden about
five times, and handed the knife to Silveria, saying, “[I]t’s your
turn.” At that point Madden was slumped over in the chair and
appeared to be unconscious. Silveria initially protested, but
then took the knife and stabbed Madden once, plunging the
knife in all the way up to its hilt. Travis then resumed stabbing
Madden. Silveria agreed with the prosecutor that Madden had
been “tortured,” but did not believe he had “tortured
Mr. Madden by legal definition.”
After the attack ended, Madden fell over in the chair.
Silveria felt a slight pulse in Madden’s neck, and they left. As
they drove away, Silveria and others described the robbery as a
success. Silveria said saying this made him feel “like crap”
because he had just participated in killing someone. After
Silveria’s arrest, he assisted law enforcement in apprehending
Spencer and Jennings.
Silveria did not believe causing Madden pain with the
stun gun was “right,” and felt “horrible” for doing it. He felt
“sick” about participating in Madden’s murder, and “horrible”
about the effect of the murder on Madden’s family. Silveria did
not feel that anything that had happened to him in his life was
an excuse for what he did on the night of Madden’s murder, but
rather that he “should be held accountable for what [he] did,”
and “deserve[d] whatever punishment [was] given to” him.
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b. Other prosecution evidence
Dr. Pakdaman testified that Madden had suffered
32 “slash-like superficial cuts” that were skin-deep and “stab-
like wounds” in his neck, chest, and abdomen. Six stab wounds
penetrated Madden’s heart. Other stab wounds penetrated his
lungs, fracturing two ribs, and his liver and trachea. He was
alive after his trachea was cut, although his breathing was
impaired. Dr. Stratbucker testified that marks made by the
stun gun on Madden’s thigh were inflicted while he was alive.
California Men’s Colony Correctional Lieutenant Jackie
Graham testified that in September 1991, Charles “Tex”
Watson, a member of the “Charles Manson Family,” was a
prisoner at the colony. On about September 20, 1991, a letter
from Travis to Watson was intercepted.4
The prosecution also introduced victim impact testimony.
Shirley “Sissy” Madden testified that she and Madden were
married in 1979. Madden was a kind and loving husband, and
made Sissy feel cherished and safe. Their daughter Julie was
born in 1984, and Madden was a wonderful father.
Sissy testified regarding seeing Madden for the last time
several hours before his murder. On January 28, 1991, about
6:30 p.m., Sissy and Julie, then seven years old, made an
unplanned visit to Madden at LeeWards, but declined his dinner
invitation because Julie had school the next day.
Susan Thuringer, Sissy’s coworker at the University of
California at Santa Cruz, testified Sissy arrived late to work the
following morning, distraught because Madden had not come
home and she did not know where he was. Later that morning
4
The letter was further described by Travis in his penalty
phase retrial defense testimony. (See post, at pp. 29–30.)
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Thuringer learned from police about Madden’s murder.
Thuringer told Sissy, and she and her coworkers restrained
Sissy as she screamed and cried. Police arrived, and Thuringer
and her supervisor, Kay House, and an officer accompanied
Sissy home. James Douglas Sykes II, Madden’s brother-in-law,
testified that later that day he and Sissy picked up Julie at
school. When they arrived home, Sissy took Julie upstairs to tell
her about Madden’s death. Sykes heard an “excruciating[ly]
painful waning scream” from Julie.
Testimony regarding the effect of Madden’s death on Sissy
and Julie was also introduced. Sissy testified, “I loved my
husband so much and I feel so lonely and empty without
him. . . . I miss him terribly.” Sissy’s brother, Eric Lindstrand,
testified that Sissy was “devastated,” and “a good part of her life”
at the time of his testimony was “just a big, sad open wound.”
Julie was “a blessing” who kept Sissy “going.” Madden’s mother,
Joan Madden, said that since Madden’s death, Sissy had gained
at least 30 pounds, and suffered from depression and psoriasis
induced by stress.
Sissy testified that Julie had slept with her every night for
the first year after Madden’s death, and had been in therapy for
nearly six years. She suffered from panic attacks and
stomachaches so severe “she feels like she is going to die.” Eric
testified that Julie was so frightened by her father’s murder that
for a long time she would not let Sissy out of her sight even to
use a restroom, and her development regressed five or six years.
She had also struggled academically. Joan testified she once
took Julie shopping for a Mother’s Day gift, and Julie asked,
“You know, Grandma, what I really, really want?” Joan said,
“No,” and Julie said, “I wish[] you only died for one day.”
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Family members also described their own loss. Judith
Sykes, Madden’s older sister, testified that Madden had been
her only sibling. They were close, and she described Madden as
a strong, but kind and gentle person who had cared for his
family. When asked if the passage of time had lessened the
impact of Madden’s death, she said that because Madden had
been “murdered senselessly and brutally. . . . the closure is not
the same . . . [a]nd there’s something about it you . . . just can’t
get past. . . . [I]t’s not like losing someone from a heart attack.”
Their mother Joan often said that “the joy in her life [was] gone,”
and she was now overly protective of Judith.
Eric described Madden as a close friend and “good man”
who had generously shared his time to help Eric and who had
enjoyed life. Eric said living without Madden has “been hell for
me,” and described it as “learning to live without a heart . . . .
[or] without your legs. You learn how to survive. If you’re lucky,
you learn how to try and not let your life be ruined.”
2. Defense Evidence
a. Silveria
(1) Background and character witnesses
Silveria, who was born on December 22, 1969, was
21 years old at the time of the January 1991 crime. He
presented numerous witnesses who testified regarding his
childhood and his behavior in jail after commission of the capital
crime.
Silveria had an older sister Lenae, an older brother S.S.,
and a younger brother Michael. Silveria’s father, Daniel
Silveria (Daniel), a long-haul trucker, was often away from
home. He brought gifts to Lenae when he returned and was
affectionate to her. By contrast, he showed no affection to
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Silveria, S.S., or their mother B.S., and was frequently
physically abusive to them. In April 1974, when Silveria was
four years old, Daniel left the family, and Silveria had little
contact with him until Silveria was about 19 years old.
In February 1976, when Silveira was six years old, at
B.S.’s request he and S.S. were declared dependents of the court.
B.S. retained custody of Lenae and Michael. Lenae recalled that
after Silveria and S.S. were declared court dependents, B.S., an
alcoholic, began to drink excessively, staying out all night and
coming home drunk.
Silveria lived in foster homes for nearly all of his
remaining childhood. Two foster families, the Garcias and the
Gambles, were nurturing and emotionally and financially
supportive. In two other families, the Heberts and the Georges,
however, Silveria was sexually abused and emotionally
neglected.
Linda Cortez, a Santa Clara County Department of Social
Services social worker, supervised the Silveria family, including
Silveria, S.S., Lenae, and Michael from March 1976 until the
end of 1981.5 During this time Silveria was a sweet and likeable
child, who was eager to please.
Silveria was first placed for about a year in the home of
Marcus and Lorain Garcia, where he was well-treated and
thrived. When Silveria was about seven years old, the Garcias
moved out of Santa Clara County, and he joined S.S. in the
Hebert foster family.
5
Many of Cortez’s department of social services reports
could not be located at the time of her testimony and had
presumably been destroyed.
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Mark Hebert, worked as a civilian for the Navy, and his
wife Evelyn Hebert was a nurse. Dean Hebert, who was about
three years older than Silveria, testified that his father
Mr. Hebert was an alcoholic, who when drunk became verbally
abusive. Mr. Hebert would not engage with Dean, his older
brother Mark, Silveria, or S.S., and would only speak to “put
somebody down or just to yell at somebody.” His mother, Mrs.
Hebert, inflicted physical punishment on Silveria.
Dean frequently beat Silveria, once burned him with
matches, and once placed a pillow over Silveria’s face until he
could no longer breathe or scream. When Silveria was 11 years
old, Dean forced him to perform oral and anal sex.
Robert Ector, Silveria’s fourth grade teacher at the time
Silveria lived with the Heberts, testified that Silveria was an
average or below average student who worked hard and wanted
to please Ector. Silveria was intelligent, but had “suffered . . .
academically” apparently because of a lack of parental support
with his schoolwork. That was unusual in the “solidly middle-
class community.” Silveria frequently volunteered to stay after
school to perform small tasks for Ector, and on field trips he
“always wanted to be near my side.”
Between 1976 and 1981, Silveria’s father visited him once.
B.S. visited Silveria about three times a year, and once cared for
him for several days after he had wandering eye surgery.
In late 1980 or early 1981, Cortez told B.S. that if she did
not become actively involved in returning Silveria home by
establishing a visitation plan, Cortez would locate a long-term
placement for him. The ensuing visits were successful, and
Silveria was scheduled to return to live with his mother in June
1981.
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During a visit home in April 1981, Silveria told his mother,
and then Cortez, that Dean had molested him. Cortez
determined that Silveria should not return to the Heberts, but
should stay in his mother’s care. Silveria did not receive therapy
as a result of the molestation report. His dependency case was
later dismissed.
In the fall of 1981, when Lenae was about 14 years old, she
moved in with the nearby family of her friend Tasha Guimmond,
whose father Richard Guimmond was the assistant and resident
manager of the apartment complex in which the Silverias lived.
Richard Guimmond described their neighborhood as a “ghetto.”
When Lenae visited her family, she observed B.S. continued to
go out drinking, and failed to exercise control over Silveria. The
Guimmonds and Lenae moved out of the complex in about 1983,
and Lenae did not speak to Silveria until late 1990.
In April 1982 then San Jose Police Officer Michael George
(George) brought 12-year-old Silveria home to live with him, his
wife Deborah, and their children. Silveria lived with the
Georges for about eight months. Deborah displayed no affection
for Silveria. George was attentive to Silveria, even more so than
to his biological family.
Defense investigator Daniel DeSantis testified that in
about April 1996 he learned that George, who had also served
as a Clearlake police officer, had in May 1996 been convicted in
Lake County of 11 counts of child molestation for crimes
committed against a different child. (§ 288, subd. (a).) On
October 3, 1996, DeSantis and Silveria’s defense counsel
interviewed George in prison. George expressed concern for his
life because he was a former police officer and a convicted child
molester, and said he did not expect to leave prison alive.
George admitted that when Silveria lived with him, George had
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on different occasions given Silveria rum and coke and then
molested him by engaging in “mutual masturbation and oral
copulation.” George expressed remorse for what he had done to
Silveria, and agreed to testify at the penalty retrial.
On February 13, 1997, DeSantis again met with George.
George was no longer willing to testify, but did not retract his
earlier statements made during the first interview.
In May 1983, when Silveria was 13 years old, he left the
Georges’ home and went to live with the Gambles. John Gamble
testified that he and Silveria, whom Gamble identified as his
brother, were the same age and had met in the sixth grade while
Silveria was living with the Georges. Silveria had been a
peaceful child and John’s best friend. John’s mother, Patricia
Gamble, who worked in the family support division of the Santa
Clara County District Attorney’s Office, testified that Silveria
moved into their home with only a bird book, a picture of Jesus,
and clothing so worn much of it had to be discarded.
The Gambles were loving and supportive of Silveria, and
treated him like a member of the family. Silveria was protective
of John and his younger sister Lisa, and performed additional
household chores on his own initiative. Silveria was respectful
to Patricia and her husband, and called Patricia “Mom.” He was
also was good at sports, especially football.
To assist with Silveria’s separation from his parents,
Patricia placed him in therapy. Silveria asked to be removed
from therapy after six to eight sessions.
Patricia and Silveria visited B.S. soon after Silveria moved
in, and Patricia invited her to call and visit Silveria. B.S. often
seemed indifferent to Patricia’s and Silveria’s attempts to
contact her, and showed Silveria little affection when she saw
him, once not even getting up to greet him when he visited her.
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Julie Morrella testified she was Silveria’s girlfriend from
1984 to 1985 when they were 14 to 15 years old. Silveria was
loving and attentive, and demonstrated a need for affection. He
never mistreated Morrella, and she never saw him be violent.
In March 1985, when Silveria and John Gamble were
15 years old, John’s father moved out of the house. About this
time, John and Silveria began to smoke marijuana and drink
alcohol. Silveria became angry and violent when drunk, and
once lay on the kitchen floor kicking and screaming, “I hate this
shit.” On a different occasion he cut up the kitchen cabinets
with a knife.
When Silveria was 15 and a half years old, Patricia took
Silveria without protest to juvenile hall for several days because
of his alcohol abuse. She again provided Silveria with
counseling for about a month until Silveria was sent to the boys
ranch in Morgan Hill for about five months for violating his
probation by drinking. Patricia visited him every weekend until
he was allowed to come home on weekends. Patricia invited
B.S., Silveria’s mother, on several occasions to join her on these
visits to the boys ranch, but B.S. declined. After Silveria
returned home from the ranch, and before July 1987, he was
placed into a group home in Soquel until he was about 18 years
old because of his alcohol use.
In February 1988, when Silveria and John were about
18 years old, Patricia moved to Sacramento. Silveria lived with
Patricia intermittently from 1988 to 1989. John visited Silveria
numerous times in Sacramento and observed his mother
continued to love and support Silveria. In the fall of 1989, while
living in Sacramento, Silveria slit his wrists, received medical
attention, and Patricia sent him back to San Jose to live. She
did not see him again until after his arrest.
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Also at some point in 1988 to 1989, Silveria lived in Gilroy
for several months with his cousin Geraldine Macias and her
husband, both postal service workers, and their two young
children. During this period, Daniel, Silveria’s biological father
and Geraldine’s uncle, also lived in Gilroy. Geraldine trusted
Silveria — but not Daniel — to babysit her children.
After Silveria left Geraldine’s home, he lived for at least
six months with Daniel in Gilroy. They used “crank”
(methamphetamine) and marijuana. Daniel was physically
abusive to Silveria, and Silveria eventually moved out after
Daniel broke Silveria’s nose.
In August 1990, Patricia Gamble was contacted by an
Army recruiter for Silveria’s diploma because Silveria was
trying to enlist. Later that year, Lenae happened to work with
Silveria at Toys “R” Us for the holiday season. During that time,
Lenae observed Silveria lost weight, developed acne and poor
hygiene, and appeared to be using drugs.
Patricia visited Silveria frequently after his January 1991
arrest. Silveria told her he had stabbed Madden. On several
occasions Silveria said that he was sorry, was praying for the
Madden family, and “knows how it feels to grow up without a
father and that it hurt him to know that Julie [Madden’s
daughter] now would not have a father to grow up with.”
In 1991, Silveria and Patricia both studied the Bible and
shared with each other what they had learned. Silveria’s
biblical knowledge and insight appeared to increase over time.
He exhibited “an excitement and a real joy about what he was
learning.” In late 1993 she stopped visiting Silveria, but
eventually resumed communicating with him by letter. Patricia
loved Silveria because “there was something very good in him,
something very sad . . . . I see that value.”
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Morrella also visited Silveria in jail frequently for about a
year from 1991 to 1992, and later resumed visits. Silveria was
initially cold to her and his physical appearance was poor. Over
time, his demeanor and physical appearance improved.
Morrella was now a Christian, and at one point during her visits
she and Silveria began to discuss religion. Silveria was very
excited during these discussions, would quote scriptures, and
would often bring a Bible or Christian book to their meetings.
Silveria told Morrella he felt “very bad about the fact that
Julie,” Madden’s young daughter, “was going to grow up without
a father.” Silveria said “he had been praying for the family and
that he . . . felt terrible and that he was just continuously
praying for them. He was very remorseful.” Silveria did not
tell Morrella he had stabbed and used a stun gun on Madden.
Morrella believed Silveria was a loving and valuable person who
had “done a lot of good[] things.”
John Gamble had visited Silveria about five times in the
six years since Silveria had been incarcerated, and had never
spoken to him on the telephone. John loved Silveria and enjoyed
his visits with him. Lenae testified that she loved Silveria, and
believed that “[f]rom [d]ay one he never had a fair shot. He’s
pretty much struggled ever since he came into this world.”
Several officers testified regarding Silveria’s behavior in
jail. Santa Clara County Correctional Officer Victor Bergado
testified that when Silveria was first incarcerated, he appeared
to be “emotionless,” a “hard person” who “didn’t really . . . say
much to anybody.” Three to four months later, during a random
check, Officer Bergado observed Silveria kneeling with his arms
over his bunk. Officer Bergado asked if Silveria was “Okay.”
Silveria turned his head toward the officer and appeared
distraught. He explained he had been praying, and said, “I’m
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just really . . . sad . . . for the family of the victim.” He was
“asking for forgiveness and he’s sorry for what he did and he
feels sorry for the family of his victim and his family.” Officer
Bergado and Silveria discussed their shared Christian beliefs.
Periodically thereafter for several years, they had discussed
Christianity and lessons Silveria had learned from the Bible.
Silveria was well-behaved and shared commissary items with
other inmates.
Former Santa Clara County Sheriff’s Deputy Patrick
Doyle testified that several months after Silveria had been
incarcerated, he began to ask Deputy Doyle, a former
missionary who was referred to by inmates and deputies as
“Father Doyle,” questions about the Bible and started a Bible
study group. Deputy Doyle believed Silveria’s Christian faith
was sincere because of his conduct, joyfulness, and the
frequency with which Deputy Doyle observed him kneeling by
his bunk. Silveria did not engage in physical altercations with
other inmates, commit assaults on correctional staff, or display
behavioral problems. He had not been caught possessing
weapons, drugs, or alcohol.
Department of Corrections Officer Lauren Dennehy
testified that Silveria was intelligent, cooperative, and
volunteered for additional jobs. Silveria appeared to go out of
his way to welcome new inmates, and at Officer Dennehy’s
request, had provided orientation for inmates new to the
module. Santa Clara County Correctional Officer Edwin
Lausten observed that Silveria was empathetic to other
inmates, and had appeared to twice successfully intervene with
inmates who were struggling emotionally.
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(2) Expert witnesses
Reverend Leo Charon testified he had worked in the Santa
Clara jail for 15 years. He had not previously testified on behalf
of any inmates other than Silveria and Travis. (See post,
pt. I.B.2.b.2.)
Reverend Charon had known Silveria, whom he met when
Silveria started attending his jail Bible study, for about five
years. Silveria asked thoughtful questions in Bible study, had
requested different Bible versions to compare text, and had
studied Greek to read parts of the Bible in its original tongue.
Silveria’s spiritual gift was teaching, and he wanted to use that
gift to help other inmates. Reverend Charon believed it “would
be very difficult” to feign the level of study and depth of interest
Silveria had shown over the years in Christianity.
About a year after starting Bible study, Silveria began to
meet individually with Reverend Charon. Silveria had
displayed “brokenness,” a process whereby one honestly
confesses sins and feels true sorrow for them. Silveria had told
Reverend Charon he had stabbed Madden, and had used a stun
gun on him. They periodically discussed Silveria’s remorse
about Madden’s murder, and Silveria’s concern for Madden’s
wife and family.
Dr. Harry Kormos, a psychiatrist at the University of
California Hospital in San Francisco and Alta Bates Hospital in
Berkeley, conducted a psychiatric evaluation of Silveria, and
testified as an expert on the effects of childhood neglect and
abuse on the development of adult personality. Dr. Kormos had
interviewed Silveria 12 to 15 times in 1993 and 1995, and had
reviewed Silveria’s former testimony concerning his life until he
was 21 years old, summaries of other testimony, case
statements of fact, investigative reports, witness interviews,
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Silveria’s birth medical records, and a report regarding
Silveria’s psychological tests. Silveria told Dr. Kormos he did
not want “anything about his past to be used in a way to excuse
what he had done because he didn’t feel that there was an
excuse.”
Dr. Kormos opined that Silveria did not suffer from manic-
depressive illness, an antisocial personality disorder,
posttraumatic stress disorder, conduct disorder, organic brain
damage, fetal alcohol syndrome, or subnormal intelligence. He
did suffer from child neglect, and alcohol and methamphetamine
addiction.
Dr. Kormos described child neglect as a long-term
situation in which the child did not receive the support
necessary for normal development, and in addition was
mistreated by “those charged with [the child’s] well-being.” Low
self-esteem and decreased ability to delay gratification were
general issues often seen in those neglected during childhood.
Depression, drug addiction, and delinquency were negative
outcomes that “can be traced back to a situation of child neglect.”
In Dr. Kormos’s view, Silveria had never bonded with his
parents. Silveria had only two memories of his father while the
family was intact. In one, his father responded to Silveria
spilling food by violently throwing him down a flight of stairs.
In the other, Silveria brought home a stray dog, and his father
killed it by repeatedly hitting it with a shovel. Dr. Kormos
concluded Silveria was likely traumatized by his father’s
violence. Silveria acknowledged problems with his parents, but
nevertheless retained “a positive image of both his mother and
his father.”
Silveria told Dr. Kormos that he had also been sexually
abused by Dean Hebert’s older brother Mark. Dr. Kormos
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compared the constant and severe punishments, sexual abuse,
and shaming or tormenting inflicted on Silveria at the Hebert
home to a concentration camp. He explained, “[T]he person
subjected to this feels terrorized, feels threatened every day, has
nowhere to turn and is completely in the power of the persons in
charge who are not concerned about [his] well-being in any way.”
Silveria told Dr. Kormos he had no way of knowing his
experience at the Heberts was abnormal, and also assumed that
if he complained, worse punishment would occur. In
Dr. Kormos’s view, psychological therapy was indicated for
Silveria when he reported Dean Hebert’s sexual abuse and was
removed from the Hebert home.
Dr. Kormos opined that Silveria’s molestation by Police
Officer George would have made it difficult for him to “correctly
interpret the nature of authority and of legal behavior.” Silveria
told Dr. Kormos that “it had always been useless for him to
dwell on problems that had occurred in his life . . . because there
was . . . nothing that he could possibly do about it. So . . . the
best thing to do would be to try and push it out of his mind which
is really a very primitive, a very impaired way of dealing with
reality.”
Dr. Kormos was of the view that Silveria, Travis, Spencer,
and Jennings “were quite close due to the fact that they were all
very much . . . in need of emotional support.” They helped each
other by being together and it was “almost like they were trying
to make up an artificial, a pseudo-family.”
Dr. Kormos further opined that the older a child gets, the
less likely it is that positive intervention will reverse earlier
damage. Dr. Kormos was of the view that “there was an unusual
accumulation of negative factors in this particular case, more
than you would ordinarily see on the average.” He agreed with
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defense counsel that a person with Silveria’s background of
failure to bond with either biological parent, and his experiences
of neglect, abandonment, physical abuse, sexual abuse, and
emotional abuse, would be impaired in his ability to make
rational choices later in life, because “there would likely be such
distortions in his views of the world that his decisions are likely
to be skewed.” He subsequently added, “I think their entire
world view would be impaired, and that would certainly have an
effect on all decisions they make.” He also testified that a “solid
majority” of persons who had suffered abuse similar to that
suffered by Mr. Silveria “would indeed suffer from severe
psychiatric and psychological problems,” including criminality,
later in life.
James Park, a former San Quentin associate warden,
testified as an expert on prison classification and on the security
for prisoners serving sentences of life imprisonment without the
possibility of parole. Park described the four security “levels” of
prisons, with level four being the most secure prisons.
Park stated that a person serving a sentence of life
imprisonment without the possibility of parole “will never be
paroled,” but could earn credits that would allow him or her to
be considered for incarceration in a level three prison. Park
observed that life imprisonment prisoners were required to
work, and could receive an education, play sports, have a
television, and purchase books and magazines, but were denied
conjugal visits.
In 1995, Park interviewed Silveria, and reviewed capital
crime fact summaries and Silveria’s jail records up to the
summer of 1995. Silveria displayed a “positive and productive”
outlook, and had spent his jail time constructively by studying.
Park had seen no evidence that Silveria had been involved with
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drugs or weapons while incarcerated, and his infractions while
incarcerated had created no danger to jail personnel or other
inmates. Park opined that if Silveria were serving a sentence of
life imprisonment without the possibility of parole, he would
“make a good adjustment,” and would not be “a threat or a
danger to other staff or other inmates.” “[I]n short I think he
will be a substantially better than average prisoner.”
b. Travis
(1) Travis’s background
Travis, his mother Pamela M., and his younger sister D.S.,
described Travis’s childhood. Pamela married Travis’s father,
John Travis, Sr., in about November 1967. Travis was born in
December 1969. Pamela did not drink alcohol or take any
nonprescription drugs while she was pregnant with Travis. D.S.
was born in 1973.
John, Sr. abused alcohol and was unfaithful to Pamela.
Once when Pamela was seven months pregnant with D.S., he
was physically violent with Pamela, punching her in the
stomach and face, leaving extensive bruising, and causing her
to bleed. He never physically abused Travis.
During the first five years of Travis’s life, John, Sr., was a
good financial provider, but never told Travis he loved him, or
hugged or kissed Travis. In late 1974 or early 1975, when Travis
was about five years old, Pamela separated from John, Sr. For
about two years she, Travis, and D.S. lived with relatives, other
than a few months in 1975 when they lived with Larry Holly. In
1976, Pamela — who was pregnant with Holly’s son Joseph —
Travis, and D.S. moved to an apartment on Bendorf Drive in
San Jose that was filled with roaches and had leaks that caused
the ceiling to disintegrate. John, Sr., had no relationship with
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his children and provided financial support only when “ordered
to.”
Travis and D.S. recalled that Pamela was loving,
supportive, and a “very good mom” who worked hard to support
the family. Pamela testified that she did not use drugs or abuse
alcohol. The family was religious and held “family devotions” or
Bible study. Travis had been baptized and attended church and
Sunday school. He attended religious youth classes at the Los
Gatos Christian Church until he was about 15 years old.
During elementary school, Travis was responsible for
getting himself and D.S. to school because his mother worked at
night and was asleep in the morning. When Travis came home
from school, his mother was at work, so he would make dinner,
and would occasionally put D.S. and Joseph to bed when their
mother worked late.
When Travis was seven years old he began smoking
marijuana. He began drinking alcohol before the age of 14, and
perhaps at 10 or 11.
In 1979, when Travis was about 10 years old, Pamela
married Joseph Carvalho, and the family’s financial situation
improved. Carvalho often took Travis fishing and treated him
as his own son, but was physically violent when inflicting
discipline. Carvalho disciplined Travis for minor infractions by
spanking his bare bottom with a belt or cutting board, once
breaking a one-inch thick cutting board on Travis’s backside.
Pamela never intervened.
Carvalho and Pamela frequently fought over finances, and
their verbal arguments generally escalated into physical fights.
Travis once saw Carvalho pick up Pamela and slam her body
onto a table. Travis felt intimidated and helpless. When Travis
was 14, he came home to see Carvalho and Pamela wrestling,
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and Carvalho pin Pamela down and hit her. Travis intervened,
and Carvalho and Travis fought until Carvalho pushed Travis’s
head through a sheetrock wall.
In about 1981, when D.S. and Carvalho’s daughter S. were
both about eight years old, and Travis was at least 12 years old,
Carvalho was arrested for molesting D.S. and S. Travis was
devastated when he learned of the molestations. He and D.S.
had previously been close, but Travis felt ashamed because he
had failed her. When Travis was about 15 years old, Pamela
divorced Carvalho and obtained a restraining order against him.
Travis was a poor student in high school, and from the
ages of 14 to 16, he periodically was truant from school. He
started using methamphetamine when he was about 15 years
old, and continued to use marijuana and alcohol.
When Travis was about 16 years old, he and his mother,
who was concerned about his misbehavior, agreed Travis should
live with his biological father, John, Sr., in North Carolina.
Travis had not seen John, Sr., since he was five years old, and
was looking for support and to establish a relationship with his
father. Once in North Carolina, Travis and John, Sr., performed
construction work and drank alcohol and used drugs together,
but did not develop a closer bond.
After about a year, Travis returned to California. He did
not attend school, and dropped out of high school in his junior
year when he was about 17 years old.
Travis committed several burglaries, and went to North
Carolina to again live with John, Sr., when he was about 18
years old to avoid an arrest warrant. Travis ultimately returned
to California to turn himself in. He suffered a felony conviction
for first degree burglary and served about 10 months in county
jail. During this time, Travis was a jail “trustee,” performing
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such assignments as delivering the canteen to the women’s
lockdown. Travis was released from jail when he was 19 years
old.
Pamela was largely unaware of Travis’s activities as an
adult, and saw him little in 1990. She did not know what he
was like or what he doing in January 1991, the month Madden
was murdered. Pamela believed she had “disappointed [her]
children a great deal” and “abandoned them” from their late
teenage to their adult years.
Travis obtained the job at LeeWards in 1990, and worked
there for about two months. He once saw Madden’s wife and
daughter in the store. Travis used drugs while on the job and at
times did not show up for work.
At some point after leaving LeeWards, Travis became
homeless and could not provide himself food or regular hygiene.
He felt empty inside, and spent his 21st birthday in the back of
Spencer’s car. Travis considered committing crimes to get
“money for [his] drug habit.” Travis had long stolen items, but
he had never hurt anyone.
On about January 24, 1991, Jennings told Travis someone
had taken his pager. Travis confronted the man holding the
pager, and the two fought. Travis was hit in the face with brass
knuckles, and received a cut lip and a broken nose.
D.S. saw Travis on about January 27, 1991. His “eyes
looked dead and he looked like he [had] lost his soul.” He
appeared to be cold, distant and “mad at the world.” His nose
was broken, his lip cut, and his clothes were bloody. Travis told
D.S. she did not have to worry about money anymore, or live like
she was living.
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(2) Travis’s testimony regarding the murder
and jail
On the night of Sunday January 27, Travis told Silveria,
Jennings, Spencer, and Rackley that whoever was working as
the LeeWards manager would have to be killed because Travis
did not want to be identified and go to prison. Silveria said, “No,
no way,” and left the discussion. Travis recalled no discussion
of masks or other methods of hiding the perpetrators’ identity.
They drove to LeeWards that night but the store was already
closed.
On Monday, January 28, Travis, Silveria, Spencer,
Jennings, and Rackley again drove to LeeWards. Travis
described confronting Madden, obtaining the store funds, and
restraining Madden, and the telephone call with the alarm
company. Travis turned to Spencer and quietly told him to kill
Madden so that Madden would not overhear the command.
Spencer was hesitant, so Travis repeated, “Kill him.” Madden
began to fidget.
Silveria said, “Let’s go.” Spencer cut Madden’s throat, and
then began stabbing him. Travis was excited, but not because
he “enjoy[ed] it.” Silveria used the stun gun on Madden while
Spencer was stabbing Madden. Spencer then handed the knife
to Travis and ran out. Travis repeatedly stabbed Madden.
When Travis was done stabbing, he felt “empty.”
Travis was able to kill Madden because “I didn’t care about
myself or anybody else,” “I just gave up.” Travis was “mad” and
“wanted somebody to pay” for “[e]verything that happened in my
life. . . . I was blaming others for the position I found myself in
due to my own actions.” Travis thought the money from
LeeWards would give him a “new life, a new identity.” Travis
was not blaming Madden’s murder on Travis’s rage, poor
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relationship with his father, or drugs and alcohol, but he
believed “these are major factors that built up to something like
this.”
On cross-examination, a recording of Travis’s statement to
law enforcement was played for the jury. Travis said he wanted
Spencer to stab Madden first to prove himself. When Travis told
Spencer, “Kill him,” Travis felt powerful.
During Travis’s first nights in jail after he was arrested,
he met an inmate who spoke to him about Jesus. Travis had put
God “to the side” when he was 14 years old, because he had
“wanted to live [his] own life, do what [he] wanted to do.” Travis
was tremendously affected by the inmate’s words, explaining
they “showed me just what type of person I had become.”
Travis began to listen to a radio prison ministry by
Chaplain Ray from Texas. He also read a book entitled “Will
You Die For Me, Tex Watson as told to Chaplain Ray.” In the
book, Watson, a convicted murderer, follower of Charles
Manson, and a drug addict, described his crime, his arrest, and
his conversion to Christianity. Travis was impressed that a man
of Watson’s notoriety had “receiv[ed] Christ Jesus.”
In September 1991, Travis wrote to Watson. Travis said
he was also incarcerated for murder, and that “[t]hey used to
call me ‘Baby Manson’ because of the power of mind control I
had on my friends.” Travis wrote that he had stabbed Madden
“repeat[e]dly” and “enjoyed every moment of it.” Travis also
said, “As we fled, I felt this empt[i]ness inside me,” and that he
had “re-received Jesus Christ as [his] Lord and Savior” and
repented of his sins. Travis felt a peace within, and knew he
was forgiven for his sins, “even murder.”
At the penalty retrial, Travis explained he wrote the letter
because he and Watson were in the same situation, and Christ
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had changed both of their lives. He said he had told Watson he
enjoyed stabbing Madden because in Travis’s confession to
police he had minimized his participation in the murder by
saying he had only stabbed Madden twice. Madden had been
stabbed 32 times, not twice, and Travis was “judging myself,
condemning myself and putting myself down and thinking I
must have enjoyed this to do something so heinous like this.”
Rather, when Travis stabbed Madden, “I was releasing my
anger . . . . my adrenaline[,] my paranoia, everything.”
In 1992, about a year after writing Watson, Travis,
Jennings, and several others planned an escape from jail.
Travis was angry at God at this time because Travis’s young
nephew had died. Travis was shown a cell bar that had been cut
half-way through, and he tried to cut the bar more using a wire
from a chair. Travis also collected sheets to use as a rope. He
did not plan to hurt anyone.
Before the escape plan was executed, one of the inmates
reported the plan, and Travis was relocated. He was not
charged with a crime as a result of his participation, and was
subsequently made a trustee in his new jail location by Santa
Clara County Department of Corrections Officer David
Damewood. Travis had also been chosen by to be a trustee when
housed in a different part of the jail, and had worked as a
“trustee helper” for Officer Limbocker. He had not had any
serious rule infractions in the four or five years preceding his
testimony.
After the failed escape plan, Travis realized he had been
“making the wrong decisions,” and “started thinking real hard
about what I want[ed] to do with my life.” He began recovery
and started learning about Alcoholics Anonymous (AA) and
Narcotics Anonymous. He also began to work with Reverend
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Charon. No AA meetings were available where Travis was
housed.
Travis had also participated in the jail’s Tutor Program,
which helped inmates learn to read and do math. He often
shared his message of recovery with these individuals. It was
his “heart’s desire . . . to help those who have been in the same
situation I have.”
Travis testified that he accepted the jury’s guilt verdict
and had admitted his responsibility for Madden’s murder at the
time of his arrest. His purpose in testifying was to tell the truth
and to let the jury know “that I am remorseful for what I have
done.” He described what he had done as “heinous,” and was
“ashamed and humiliated” he had caused others pain. He had
unsuccessfully asked his attorney if he could write to the
Madden family or seek their forgiveness in court. He asked the
jury to spare his life, and said the decision whether he went to
death row was in God’s hands.
(3) Character witnesses
Pamela M. testified she did not visit Travis in jail for the
first two years after his arrest for Madden’s murder because she
could not face the reality of the charges against Travis. She was
now closer than ever to Travis. D.S. had visited Travis in jail,
and “he’s got . . . this glow,” and there was hope in his eyes. She
loved Travis “[w]ith all [her] heart.”
Two correctional officers testified regarding Travis’s
behavior and activities in jail after his arrest for Madden’s
murder. Santa Clara County Department of Corrections Officer
Keith Forster had known Travis about two years and had
supervised him in jail. Travis treated staff respectfully and
followed the rules. Officer Forster was of the view that although
“there are individuals [who] absolutely deserve the death
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penalty,” here it would be “improper” because “there is definitely
an opportunity to be used . . . to change lives,” and to “maybe
just have one individual change through his testimony and
experience . . . would be well worth it.”
Correctional Officer Damewood testified that in late 1992,
after Travis’s failed escape plan, Travis had been housed in the
maximum security jail area where Officer Damewood worked.
Travis was in this area for about three years. Officer Damewood
selected Travis as a trustee, a position he held for about two
years. His duties included cleaning and delivering paperwork
and meals to inmates. Travis was responsible, easy to get along
with, and did not misbehave or treat Officer Damewood
disrespectfully. In his cell Travis was studious and quiet.
(4) Expert witness testimony
Reverend Charon, a certified alcohol and drug counselor,
testified as an expert on the “identification of alcohol and drug-
related problems and the recovery process.” Reverend Charon
met Travis in jail in late 1992 or 1993 when Travis attended his
Bible study. Travis was diligent in attending, and Reverend
Charon and Travis eventually began to meet one on one.
Although Travis initially did not consider himself an addict, he
eventually began working with Reverend Charon on the “The
Twelve Steps” AA program. It was difficult to advance in a
recovery program in jail because of the limited resources, and
Reverend Charon had seen few people reach Travis’s level of
recovery.
Reverend Charon described Travis as a quiet individual
who benefitted others by sharing what he had learned in
recovery. Reverend Charon believed that Travis was sincere
when he said he was following in the footsteps of the Lord. He
was of the view that Travis had “made peace with God, is trying
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to do it with everyone else, and that he is in genuine recovery.”
Travis appeared “very remorseful, and was earnestly seeking a
way, under the circumstances, that he could express . . . his
regret, and also, if there was anything that was possible [for
him] to make amends, recognizing that you can never really
make full amends.”
Sharon Lutman, a registered nurse and licensed marriage
and family counselor, testified as an expert regarding the
assessment of chemically dependent people. On March 26,
1997, Lutman interviewed Travis for one and a half hours at the
Santa Clara County main jail to assess him for the long-term
effects of drug and alcohol use, and to evaluate whether he was
in a state of recovery. The two did not discuss Madden’s murder.
Travis said he had taken no mood-altering drugs since the
fall of 1992. Travis was open and responsive, and did not
hesitate to share his past use of drugs and alcohol, but had
difficulty expressing his feelings.
Lutman concluded Travis was a “Type Two” alcoholic, or a
man who has an alcoholic father and who begins to use drugs
and alcohol early in life. This type of alcoholism was passed
from father to child, and so her opinion would not change if she
were aware Travis’s mother did not drink or consume
nonprescription drugs during her pregnancy with Travis.
Failure to develop stress management coping skills and impulse
control are indicative of Type Two alcoholism.
As to Travis’s recovery from drugs and alcohol, Lutman
observed that Travis was meeting with Reverend Charon,
reading 12-step literature, and listening to “recovery oriented
tapes.” Travis understood his alcoholism and addiction would
require treatment for the rest of his life. He had attempted to
learn new techniques for resolving conflict and anger with
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others, such as assessing his own responsibility for conflict and
sharing his concerns with God and Reverend Charon, instead of
“just act[ing] out” or suppressing his anger with alcohol and
drugs. He had appeared sincere and the most emotional when
discussing his desire to make amends to Madden’s family.
Travis was interested in counseling other inmates with
substance abuse problems, and in Lutman’s opinion, had
learned enough about addiction and recovery to assist others.
Travis was also interested in studying pharmacology to learn
more about addiction.
Dr. Timmen Cermak, a psychiatrist, testified as an expert
in the field of addiction. Dr. Cermak had interviewed Travis five
times between October 30, 1992, and March 15, 1997, including
one telephone interview. Dr. Cermak had also interviewed
Travis’s sister D.S., his mother Pamela, and Reverend Charon.
He had reviewed various documents including Travis’s
statement to police, the indictment, investigator reports
regarding family members, several police reports, and letters to
and from Travis.
Dr. Cermak diagnosed Travis as chemically dependent in
forced remission. When Travis’s chemical dependence had been
active, it had “distorted his judgment pervasively.” Travis was
also suffering from posttraumatic stress disorder as a result of
his childhood neglect and abuse. He was not schizophrenic or
manic-depressive, and did not have an antisocial personality
disorder.
Dr. Cermak had hired Dr. James Kurkjian, a clinical
psychologist, to perform neuropsychological tests on Travis.
Dr. Kurkjian also administered to Travis the Minnesota
Multiphasic Personality Index, and intelligence quotient,
Rorschach, and picture and sentence completion tests. Based on
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the test results, Dr. Cermak concluded there was no organic
brain damage, “nothing that would limit [Travis’s] capacity.”
Travis had average to below average intelligence, and was in the
normal range. Nothing in these test results indicated to
Dr. Cermak that additional psychological testing was necessary.
Travis initially struck Dr. Cermak as “being immature,
someone who had been very out of control, [a] chronically
intoxicated adolescent who really had lost his moral compass . . .
with very tragic results.” Travis spoke incessantly about
religion, and it appeared “religion was playing a very rigid and
containing role in his life.” Over the past four and a half years,
Dr. Cermak had observed Travis begin to recover from his
chemical dependence, be less rigid in his religious beliefs, and
become more emotionally available. There had been “a slow
increase in his maturity, his ability to contain impulses, his
ability to talk about his emotional life.” He had also received his
General Education Diploma.
In Dr. Cermak’s view, Travis had held a “highly distorted
view of the injustices in his life.” Travis felt shame as a result
of his January 24, 1991 fight because he lost face before his
friends, and was left with a facial injury that he believed would
prevent him from ever again being “attractive to a woman.”
Travis believed that “someone had to pay.” The murder was “a
fatal act of attacking someone else in order to save himself and
to . . . get away from the sense of inadequacy, failure[,] . . .
shame, humiliation, . . . that sense of abject embarrassment
that he . . . harbored within himself.” By murdering Madden,
Travis was “defending his honor, defending his sense of
vulnerability . . . [and] reestablishing the sense of self that is
less shamed, humiliated, vulnerable and inadequate.”
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Dr. Cermak was of the view that Travis’s personality was
largely formed in an atmosphere of sufficient parental neglect
and family member abuse that it affected his development.
Travis’s chemical dependency allowed him to avoid feelings of
shame and tension he experienced in his family. Individuals
who ignore feelings of shame develop an increased sensitivity to
that emotion and become less capable of “tolerating even small
slights.”
Methamphetamine was “commonly associated with
violent behavior.” “Paranoid delusions are almost a routine
aspect of chronic” methamphetamine use. Although in general
paranoia from methamphetamine use could contribute to the
explosiveness of an event for a person who already felt shame
and rage, here Dr. Cermak understood Travis and the other
perpetrators had largely exhausted their methamphetamine
supply four days before the murder.
Travis told Dr. Cermak that during the murder, “there
was a buildup of fear and excitement and a sense of panic.”
When the murder took longer than expected, and Travis began
to stab Madden, he felt a “sense of relief from the fear and the
panic and the excitement.” Travis said this “wasn’t really
pleasurable and yet it was a sense of relief.” Dr. Cermak asked,
“[I]s that . . . a positive feeling, maybe even a pleasurable
feeling?” Travis replied, “Yes, that was a pleasurable feeling.”
Shortly thereafter, while still at the murder scene, Travis began
to feel a sense of emptiness. Dr. Cermak acknowledged that
Travis may have made these statements to try to lessen the
damage of Travis’s statement to Tex Watson that he had
“enjoyed every moment” of the stabbing. In Dr. Cermak’s view,
when Travis spoke of enjoyment in the letter, “he was trying to
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explain, make sense of the sense of relief that he felt following
that murder.”
3. Prosecution rebuttal
Santa Clara County Sheriff’s Sergeant David Tomlinson
testified that before February 1994, Silveria had claimed on a
jail grievance form that he feared retaliation by an inmate and
had successfully asked to be moved. Silveria and Travis were
both housed in the “Third East Max” tier of the jail between
September 21, 1993, and August 5, 1994. In February 1994,
Silveria stated on a different grievance form that he had lied in
his previous request to be rehoused and wanted to return to his
former (less restrictive) housing assignment. Silveria said he
had been “dishonest . . . in order [to] get next to my
codefendant.”
Sergeant Tomlinson also testified that simply because an
inmate was a trustee did not mean he was trustworthy because
the position varied widely in terms of the scope of
responsibilities and freedom.
Cynthia Tipton testified that on the morning of January
28, 1991 (the day of Madden’s murder), Silveria came to her
home and asked to shower because he had contracted poison
oak. He appeared uncomfortable because of the poison oak, but
not otherwise ill or recovering from a recent illness. Nor did he
tell Tipton he had recently been ill. After his shower, Tipton
told Silveria she knew “you guys are doing the stun gun
robberies.” Silveria replied, “[T]hey don’t know who we are and
they don’t know what we look like,” and said that Tipton should
not worry. He also told Tipton “they had something big that
they were going to be doing that night.” Silveria showed no
reluctance to participate in this event, but appeared to be “in a
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really good mood,” and “looking forward to what was . . . going
on for the rest of his day.”
II. DISCUSSION
A. Guilt Phase Issues6
1. Motion to Suppress
Travis contends the trial court erred in denying his motion
to suppress. In particular he contends the police lacked
reasonable suspicion to detain him, his arrest lacked probable
cause, and the warrantless search of his vehicle was improper.
We disagree.
“In reviewing a trial court’s ruling on a motion to suppress
evidence, we defer to that court’s factual findings, express or
implied, if they are supported by substantial evidence.
[Citation.] We exercise our independent judgment in
determining whether, on the facts presented, the search or
seizure was reasonable under the Fourth Amendment.” (People
v. Lenart (2004) 32 Cal.4th 1107, 1119.)
a. Factual background
On January 25, 1991, San Jose Police Detective John
Boyles caused the Quik Stop Market robbery video to be
screened at a police briefing. A fellow officer told Detective
6
“[A]s to many claims defendants allege for the first time
that the error complained of violated their federal constitutional
rights. To the extent that in doing so defendants have raised
only a new constitutional ‘gloss’ on claims preserved below, that
new aspect of the claims is not forfeited. However, ‘[n]o separate
constitutional discussion is required, or provided, when
rejection of a claim on the merits necessarily leads to rejection
of [the] constitutional theory . . . .’ ” (People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 364 (Bryant, Smith and
Wheeler).
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Boyles that he recognized one of the perpetrators on the video
as Troy Chapple and gave him Chapple’s date of birth. Santa
Clara County juvenile probation department records indicated
that Troy Chapple was also known as Troy Rackley. Detective
Boyles located a photograph of Rackley in the San Jose Police
photo base, and observed Rackley appeared to be one of the
perpetrators on the video.
On January 28, Detective Boyles contacted a juvenile
probation officer, who identified Matthew Jennings as a second
perpetrator on the videotape, and gave Jennings’s home address
to Detective Boyles. About 5:00 p.m. that day an unidentified
female informant spoke to Detective Boyles on the telephone
and said that “Danny, John, Matt, and Chris” were perpetrators
of the stun gun robberies, and that “Troy” also associated with
that group. Officer Boyles requested San Jose police
communications dispatch a “Be on the Lookout” notice to all
police units for Troy Rackley, Matthew Jennings, and “anybody
associated with them with the names John, Chris, and . . .
Daniel.” He also shared the information on the stun gun
robberies — including photographs of Jennings and Rackley,
and a still shot photograph from the robbery videotape of a
person later identified as Silveria — with San Jose Police Officer
Brian Hyland.
That evening after Detective Boyles had gone home, San
Jose Police Sergeant George McCall spoke with a female
informant who said that the person involved in the stun gun
robberies known as “Danny” had a last name of “Silveras” or
“Silveria.” The informant also said the robbery suspects were
going to “pull another robbery that night” and would then be
“leaving town,” and might be driving a red and black Charger.
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Sergeant McCall passed this information on that evening to
Officer Hyland and at some point to Detective Boyles.
About 9:00 p.m. that night, Detective Boyles spoke with a
woman who sounded like the informant to whom he had
previously spoken. Detective Boyles also recalled that he asked
the woman if she was the same person to whom he had
previously spoken and she said yes. She identified herself as
“Cynthia.” Cynthia said she now had the last name of “Silveria”
for “Danny,” and “Jennings” for Matthew, and also gave him a
home address for Jennings that matched the street and
apartment number of the address Detective Boyles had received
for Jennings from the juvenile probation officer. Detective
Boyles requested that this additional information also be
broadcast to the police patrol units.
On the evening of January 28, after speaking to Sergeant
McCall, Officer Hyland visited the homes of Jennings, Spencer,
and Silveria. Jennings’s older brother told Officer Hyland that
Jennings had packed a suitcase and left in a black and white
Dodge Charger with two men named Christopher Spencer and
John Travis, as well as Silveria and Rackley. A computer check
revealed Travis had an outstanding misdemeanor warrant.
Spencer’s father told Officer Hyland that Silveria, Travis, and
Rackley were friends of Spencer, and allowed him to search
Spencer’s room. There Officer Hyland found a citation with a
Charger’s license plate number. Silveria’s brother likewise told
the officer that Silveria had packed a suitcase, said he was going
to live in the mountains, and left with Travis, Spencer, Rackley,
and Jennings. Officer Hyland spoke with about seven total
individuals, each of whom said Silveria, Travis, Jennings, and
Rackley had been together for at least one day and were all
planning to flee the San Jose area. Officer Hyland told everyone
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to whom he spoke to call him or 911 if they saw Silveria, Travis,
Rackley, Jennings, or Spencer.
On January 29 at 6:46 p.m., San Jose Police Department
call intaker Joanne Schlachter received a 911 call from a man
who asked to speak to Officer Hyland. Schlachter said the
officer was not available, and asked if she could help. The caller
said that the “guys . . . doing the robberies of the mini-marts
with the taser guns” were at the San Jose Oakridge Mall arcade.
He also said that one of the men, “Troy,” was 18 or 19 years old,
and a second man “Matt” was wearing a white shirt and black
pants. The informant gave his name and appears to have given
his phone number and a description of what he, the informant,
was wearing. Schlachter sent the information to a police
channel that routed it to the appropriate officers. Officer
Hyland received the dispatch and recognized the informant as
someone to whom he had spoken the day before. Oakridge Mall
security was also alerted, and a security guard began to follow
the suspects through the mall. The informant called again at
6:58 p.m., and told a different intake person that Troy was
wearing green pants and black tennis shoes, and one of the two
suspects was now “in Shirtique’s” and was carrying a large sum
of money. The other suspect was somewhere in the mall and
“they [were] getting ready to go to Sacramento.”
Dana Withers testified that on January 29 he was working
as an Oakridge Mall security guard. He received information
that caused him to follow two White men — who were joined by
a third White man — through the mall to two silver vehicles, a
Datsun 280ZX and a Honda Civic. The men entered the vehicles
and a second security guard, Michael Graber, who was driving
outside the mall, continued the surveillance and communicated
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with the San Jose police dispatch. The suspects drove from the
west to the north side of the mall where they were stopped.
On January 29, 1991, about 6:46 p.m., San Jose Police
Sergeant Jean Edward Sellman received a radio dispatch to go
to the Oakridge Mall arcade and look for two suspects in the
stun gun robberies who were described in the dispatch.
Sergeant Sellman did not see anyone matching the suspects’
description in the arcade, but learned that a mall security guard
was following the suspects through the mall. He subsequently
received a dispatch that the suspects were entering a silver
Honda and a silver either 240 or 280ZX Datsun in the north
parking lot. Sergeant Sellman returned to his police car, which
was also in the north lot, saw two cars matching the dispatched
description, and noticed that the Honda Civic was closely
following the Datsun. A second officer, Sergeant Kurt Brandt,
blocked the row in front of the suspects’ vehicles with his vehicle,
and Sergeant Sellman blocked them with his vehicle from
behind. Silveria was driving the Honda Civic. Travis was
driving the Datsun, and Rackley was his passenger.
San Jose Police Officer James Werkema arrived at the
scene, and was told by another officer that Travis was the driver
of the Datsun. Officer Werkema had previously been told by
Officer Hyland that Travis had an outstanding misdemeanor
warrant and that Rackley had been positively identified as a
perpetrator by one of the robbery victims. Officer Hyland
arrived and observed that while Travis was detained in the
parking lot, a warrant check was run and his misdemeanor
warrant was confirmed. Rackley and Silveria were arrested for
robbery and Travis was arrested for robbery and on an
outstanding misdemeanor warrant.
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Officer Werkema searched the Datsun 280ZX incident to
the arrests of both Travis and Rackley. In the Datsun’s backseat
area he found two fanny packs, one that contained rolled coins
and another that contained $1,313 and a motor vehicle purchase
order made out to John Travis and Danny Silveria. In the rear
of the vehicle he found a duffle bag containing two battery
packets bearing a LeeWards price sticker. Sergeant Sellman
searched Silveria’s car and found a PARALI/AZER stun gun and
a fanny pack containing $587. Both cars were impounded.
b. Analysis
(1) Reasonable suspicion to detain
Travis contends that the police lacked reasonable
suspicion to stop his vehicle and detain him. We reject the
claim.
Travis asserts that the record fails to demonstrate how the
security guard correctly identified robbery suspects “Troy” and
“Matt” in the mall and followed them to their vehicles. Travis
did not challenge the stop of his vehicle in the trial court, and
the claim is therefore forfeited.
“[W]hen defendants move to suppress evidence under
section 1538.5, they must inform the prosecution and the court
of the specific basis for their motion.” (People v. Williams (1999)
20 Cal.4th 119, 129.) Here, Travis’s suppression motion and his
argument on that motion challenged the legitimacy of the search
incident to his arrest on a traffic warrant, his lack of opportunity
to post bail after his arrest on the warrant, and the sufficiency
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of his Miranda advisement.7 None of these claims informed the
prosecution of the need to adduce greater detail as to how the
robbery suspects were identified in the mall and followed to
their vehicles.8 The suppression hearing, which concerned the
suppression motions of four then codefendants, spanned nine
days and consumes much of the first nine volumes of the
reporter’s transcript. Had Travis asserted below that his
detention lacked reasonable suspicion because of the absence of
evidence of how the security guard initially identified the
suspects in the mall, the prosecutor would have been on notice
to adduce additional testimony more fully describing this event.
(See Williams, at p. 130 [“if defendants detect a critical gap in
the prosecution’s proof or a flaw in its legal analysis, they must
object on that basis to admission of the evidence or risk forfeiting
the issue on appeal”].)
The claim is also meritless. “[T]he Fourth Amendment
permits an officer to initiate a brief investigative traffic stop
when he has ‘a particularized and objective basis for suspecting
the particular person stopped of criminal activity.’ [Citations.]
‘Although a mere “hunch” does not create reasonable suspicion,
the level of suspicion the standard requires is considerably less
than proof of wrongdoing by a preponderance of the evidence,
and obviously less than is necessary for probable cause.’
7
Travis also contended that the search of his car was
“beyond the scope of [his] consent, and/or said consent was
unlawful and/or withdrawn.” His supporting memorandum
does not discuss this claim, which appears to arise from events
after his vehicle was impounded.
8
Although Silveria challenged his arrest, his counsel
expressly stated that he had “no quarrel with anything Officer
Sellman did” before the arrest including his stop of the vehicles.
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[Citations.] [¶] Because it is a ‘less demanding’ standard,
‘reasonable suspicion can be established with information that
is different in quantity or content than that required to establish
probable cause.’ [Citation.] The standard ‘depends on the
factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.’
[Citation.] Courts ‘cannot reasonably demand scientific
certainty . . . where none exists.’ [Citation.] Rather, they must
permit officers to make ‘commonsense judgments and inferences
about human behavior.’ ” (Kansas v. Glover (2020) __ U.S. __,
__ [140 S.Ct. 1183, 1187–1188].)
Here, a person to whom Officer Hyland had spoken in
person the day before called 911, identified himself, and said
that the stun gun robbery suspects, including “Matt” and “Troy,”
were at a specific location within the Oakridge Mall. Critically,
at the time Officer Hyland received the dispatch about this call,
he already had probable cause to arrest Jennings and Rackley
for the Quik Stop Market stun gun robbery because both of these
men had been positively identified as perpetrators. Thus, unlike
cases such as Navarette v. California (2014) 572 U.S. 393
(Navarette), in which the reliability of the informant’s 911 report
that a crime had occurred was in question, here Officer Hyland
knew the stun gun robberies had occurred and also knew the
names of at least two persons who had been identified as
perpetrators in one of the crimes and implicated in the other.
He also had the names of three other men who were alleged to
be involved in the robberies. (Compare Navarette, at p. 404
[“Under the totality of the circumstances, we find the indicia of
reliability in this case sufficient to provide the officer with
reasonable suspicion that the driver of the reported vehicle had
run another vehicle off the road,” making it reasonable “for the
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officer to execute a traffic stop”].) The only question here was
whether the informant was correctly reporting the location of
these individuals.
Moreover, “a caller’s personal knowledge,” shown here by
the informant’s knowledge of the suspects’ names, current
location, and apparel, “ ‘lends significant support to the tip’s
reliability.’ ” (People v. Brown (2015) 61 Cal.4th 968, 981,
quoting Navarette, supra, 572 U.S. at p. 399.) “[T]he caller’s
report was contemporaneous, a factor that ‘has long been
treated as especially reliable.’ ” (Ibid.) In addition, the caller
identified himself and appears to have given his phone number
and described what he was wearing, circumstances that
enhanced his credibility. (Id., at p. 982 [“private citizens who
report criminal activity generally have no bias or motive other
than good citizenship, and therefore tend to be reliable”].) His
“use of the 911 emergency system” is a further “indicator of
veracity” because the recording and tracing features of that
system “provide some safeguards against making false reports
with immunity.” (Navarette, at p. 400; see Brown, at p. 982.)
Based on the informant’s report, a security guard was able to
locate the suspects and follow them to their vehicles, which were
then described to police and broadcast to responding officers.
Sergeant Sellman observed two vehicles matching this
description, and further observed that one vehicle was closely
following the other, and assisted Officer Brandt in stopping the
vehicles. “An officer may arrest or detain a suspect ‘based on
information received through “official channels.” ’ ” (Brown, at
p. 983.) The totality of these circumstances was sufficient to
create a reasonable suspicion that the persons in the vehicles
were stun gun robbery suspects and to detain them.
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(2) Probable cause to arrest
Travis contends that there was no probable cause to arrest
him other than on a misdemeanor warrant. However, the
outstanding misdemeanor warrant was a sufficient basis for
Travis’s arrest. (§ 836, subd. (a) [“A peace officer may arrest a
person in obedience to a warrant . . . .”]; Utah v. Strieff (2016) __
U.S. __, __ [136 S.Ct. 2056, 2062] [once the officer discovered the
arrest warrant, he had an obligation to arrest the defendant].)
Moreover, probable cause existed to arrest Travis for the
stun gun robberies. (Maryland v. Pringle (2003) 540 U.S. 366,
370 [“A warrantless arrest of an individual in a public place for
a felony . . . is consistent with the Fourth Amendment if the
arrest is supported by probable cause”].) “To determine whether
an officer had probable cause to arrest an individual, we
examine the events leading up to the arrest, and then decide
‘whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to’ probable cause.”
(Id. at p. 371.) An arrest remains lawful under the Fourth
Amendment even when the “criminal offense for which there is
probable cause to arrest” is different from the “offense stated by
the arresting officer at the time of arrest.” (Davenpeck v. Alford
(2004) 543 U.S. 146, 148, 153; see id. at p. 155 [“Those are
lawfully arrested whom the facts known to the arresting officers
give probable cause to arrest”].)
Here, as noted, Officer Hyland had probable cause to
arrest Troy Rackley for the Quik Stop Market stun gun robbery
because he had been positively identified as a perpetrator by the
victim. Moreover, we have previously concluded based on the
same evidentiary hearing on which we rely here that informant
Cynthia’s January 28 report to Detective Boyles — which
included information that “Danny” Silveria, “John,” “Matt”
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Jennings, and “Chris” were perpetrators of the stun gun
robberies, and that “Troy” also associated with that group —
was reasonably corroborated. (People v. Spencer (2018)
5 Cal.5th 642, 664–666 (Spencer).) This information about the
four alleged perpetrators was broadcast to all police units on
January 28. In addition, on January 29, a different informant,
whose identity was known to Officer Hyland, told 911 that stun
gun robbery suspects, including “Troy,” were at the Oakridge
Mall. This information, along with (1) the presence of Travis
driving a car at the Oakridge Mall in which Troy Rackley was a
passenger, and in which a large amount of cash in one fanny
pack and rolled coins in a different fanny pack was found, and
(2) the circumstance that Travis’s car was closely followed by a
car driven by Silveria that was found to contain a stun gun, the
weapon used in the January 24, 1991 robberies, would likely
persuade an objectively reasonable police officer that Travis had
committed the felony of robbery. (See Maryland v. Pringle,
supra, 540 U.S. at pp. 371–372 [given that the defendant was
one of three men riding in a car in the early morning, $763 of
rolled-up cash was in the glove compartment directly in front of
the defendant, and baggies of cocaine were behind the backseat
armrest and accessible to all three men, and none of the three
men offered any ownership information with respect to the
cocaine or money, it was “an entirely reasonable inference from
these facts that any or all three of the occupants had knowledge
of, and exercised dominion and control over, the cocaine,” and
thus “a reasonable officer could conclude that there was
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probable cause to believe [the defendant] committed the crime
of possession of cocaine, either solely or jointly”].)9
(3) Search of Travis’s vehicle
Travis asserts that the warrantless search of his vehicle was
controlled by Arizona v. Gant (2009) 556 U.S. 332, and was not
justified under that standard. We disagree.
At the time of Travis’s 1991 arrest, prevailing United
States Supreme Court law held that “when a policeman has
made a lawful custodial arrest of the occupant of an automobile,
he may, as a contemporaneous incident of that arrest, search the
passenger compartment of that automobile” and any closed
containers found within that space. (New York v. Belton (1981)
453 U.S. 454, 455, 460–461.) Travis does not argue that the
search of his vehicle was invalid under Belton. Rather, he
asserts this case is controlled by Arizona v. Gant, supra,
556 U.S. at pages 343, 351, in which the high court revisited
Belton, and held that a warrantless search incident to the lawful
arrest of a recent occupant is justified only (1) “when the
arrestee is unsecured and within reaching distance of the
passenger compartment at the time of the search,” or (2) “when
it is ‘reasonable to believe evidence relevant to the crime of
arrest might be found in the vehicle.’ ” The 1991 search here
was after Belton and before Gant. “[S]earches conducted in
9
Because we conclude there was probable cause to arrest
Travis for robbery, we need not address Travis’s argument that
because there was no probable cause to arrest him for robbery,
and he was not provided an opportunity to post bail on his arrest
for the misdemeanor traffic warrant, his subsequent statements
to police should have been suppressed.
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objectively reasonable reliance on binding appellate precedent
are not subject to the exclusionary rule.” (Davis v. United States
(2011) 564 U.S. 229, 232; see id. at pp. 239–240 [searches
conducted after Belton and before Gant, and in compliance with
Belton, are not subject to the exclusionary rule].)
In sum, the trial court properly denied the motion to
suppress.
2. Asserted Denial of Hardship Request
Travis contends that the trial court erroneously denied
Alternate Juror No. 1’s hardship request. We reject the claim.
After Travis’s jury and alternate jurors were sworn, and
before opening statements, two jurors, including Juror No. 6,
were discharged, and Travis and the prosecutor stipulated to
reopen jury selection to choose two additional alternates.10
Travis’s remaining jury was called to the courtroom, and the
court explained these developments. The court then asked:
“Everybody’s employer knows that you’re here eight months?
Nobody is going to have a problem with that?” Juror No. 12
asked what would happen if she were laid off during trial and
described her work situation. At sidebar, the court gave counsel
the opportunity to stipulate to her removal, which they declined.
10
We have held that the trial court lacks discretion to reopen
jury selection after the jury has been sworn. (People v. Cottle
(2006) 39 Cal.4th 246, 249.) No challenge is raised on appeal
to this procedure. Rather Travis simply challenges the seating
of Alternate Juror No. 1 for a discharged juror, a procedure
that was consistent with that described by Penal Code
section 1089 and Code of Civil Procedure sections 233 and 234.
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The court told Juror No. 12 her situation was too speculative to
warrant her removal.
Alternate Juror No. 1, an engineer, informed the court
that his employer had determined the project on which he was
working was “expected to take additional time and will require
that I keep working on it” because there was insufficient time to
train someone else. He observed “[e]ngineers usually work
between 80 to 100 hours a week,” and that “during this time of
the project . . . that means I will be working 50 hours outside of
the courtroom, if there’s a concern for attentiveness on the time
off in the courtroom based on that information.” In response to
the court’s inquiry, he identified his company, and explained he
would be working on Monday through Sunday from 6:00 p.m. to
1:00 a.m. until the project was done. He was not asked how long
the project was expected to last before completion.
Travis did not request that the court ask Alternate Juror
No. 1 further questions, or seek his removal. Shortly thereafter,
Alternate Juror No. 1 was selected, without objection, to replace
Juror No. 6.
This claim is therefore forfeited on appeal. (People v.
Rangel (2016) 62 Cal.4th 1192, 1212 (Rangel) [the defendant did
not move for the juror’s discharge and the claim is therefore
forfeited on appeal].) Although in response to the court’s inquiry
Alternate Juror No. 1 described a development in his schedule,
he did not request that he be discharged. Nor, although counsel
had just met at sidebar regarding a different juror and had been
offered the opportunity to stipulate to her removal, did Travis
seek to have Alternate Juror No. 1 discharged after his new
schedule was revealed, or object to the trial court later seating
him in the place of Juror No. 6.
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3. Instructional Error
Silveria contends the trial court erred in instructing the
jury on first degree murder because the indictment, which
charged him with murder in violation of section 187, only
charged him with second degree murder. We have repeatedly
rejected substantially similar claims, and Silveria cites no
persuasive reason to revisit our conclusions. (People v. Ghobrial
(2018) 5 Cal.5th 250, 284–285; People v. Contreras (2013) 58
Cal.4th 123, 147–148.) Nor, as Silveria further contends, was
greater specificity in pleading required under Apprendi v. New
Jersey (2000) 530 U.S. 466. (Ghobrial, at p. 285; Contreras, at
pp. 148–149.)
B. Penalty Retrial Issues
1. Joint Penalty Retrial
As noted, both penalty juries deadlocked, and defendants
were retried before a single penalty jury. Defendants contend
the trial court erroneously denied their severance motions
seeking separate penalty retrials.11 We conclude there was no
abuse of discretion in denying defendants’ severance motions,
nor did any gross unfairness occur as a result of the joint penalty
retrial.
a. Factual background
In support of their penalty retrial severance motions,
defendants called two expert witnesses. Justice Charles
Campbell, who sat as a visiting judge on the Texas trial and
11
Defendants also sought separate juries, and to the extent
they raise that claim on appeal, we reject it for the same reasons
we conclude that the trial court did not abuse its discretion in
denying defendants’ motions for separate penalty retrials.
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intermediate appellate courts, and who had previously served
as a justice on the Texas Court of Criminal Appeals and as a
Texas prosecutor, testified as an expert on capital cases. Justice
Campbell stated it was common Texas practice to try each
defendant in a capital case separately. In his view severance
was necessary for each defendant to receive the jury’s individual
consideration, and either severance or separate juries “avoid[ed]
the pitfalls” he had “noticed in the Supreme Court
jurisprudence,” and were preferable to a limiting instruction to
separately consider the defendants. Justice Campbell opined
that if two defendants were equally culpable for a heinous crime,
but one had heinous post-arrest “activity,” it would be more
difficult for the jury to draw a distinction between the two
defendants because the potential “spillover effect . . . is pretty
great.”
Charles Gessler, who had worked as a Los Angeles County
deputy public defender for 31 years, testified as an expert on
severance and on capital case defense tactics. He opined it was
“more difficult for two defendants . . . joined together to get a
fair and individualized determination by the jury than it is for
an individual single defendant.” He was also of the view that “if
the culpability is about equal in the crime,” and if the jury is
“going to give death to one [defendant], it is very likely that they
would then give death to the other [defendant] even if the
aggravation and mitigation is different because the crime is the
thing that they are most interested in.” When the mitigating
evidence is similar, it “loses all individuality” and is viewed by
the jury as a “standard defense ploy.” In his view, if two
defendants remain friends in jail although one defendant
misbehaves, jurors will view the continuing friendship as
evidence that this misbehavior is condoned. Moreover, if both
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defendants have a religious conversion, and there is evidence of
hypocrisy by one defendant, “it would take the other person
down with him.” Gessler also believed it was difficult for some
jurors to distinguish which mitigating and aggravating evidence
applied to which defendant. In his view, no two capital
defendants should be tried jointly before the same penalty jury,
and the facts in this case “enhance the likelihood” of unfair jury
verdicts.
The trial court denied the severance motions, and noted in
so doing that it had found unpersuasive the expert testimony.
It stated: “The Court believes that it is capable of properly
instructing the jury and is capable of ensuring a fair jury, who
will follow the Court’s instructions, will be chosen. . . . [T]he
Court believes that properly instructed jurors will give each
defendant their individualized attention.”
b. Analysis
Section 1098 states in relevant part: “When two or more
defendants are jointly charged with any public offense, whether
felony or misdemeanor, they must be tried jointly, unless the
court order separate trials.” This section illustrates the
Legislature’s “strong preference for joint trials,” including joint
penalty phase trials. (People v. Wimbush (2017) 2 Cal.5th 402,
455; see id.at pp. 457–458; People v. Ervin (2000) 22 Cal.4th 48,
96 [penalty phase severance motion].) “Joint proceedings are
not only permissible but are often preferable” when, as here, the
“defendants’ criminal conduct arises out of a single chain of
events. Joint trial may enable a jury ‘to arrive more reliably at
its conclusions regarding the guilt or innocence of a particular
defendant and to assign fairly the respective responsibilities of
each defendant in the sentencing,’ ” and conserves judicial
resources. (Kansas v. Carr (2016) 577 U.S. __, __ [136 S.Ct. 633,
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645].) “We review a trial court’s denial of a severance motion for
abuse of discretion based on the facts as they appeared at the
time the court ruled on the motion.” (People v. Avila (2006)
38 Cal.4th 491, 575.) “[E]ven if a trial court acted within its
discretion in denying severance, ‘ “the reviewing court may
nevertheless reverse a conviction where, because of the
consolidation, a gross unfairness has occurred such as to deprive
the defendant of a fair trial or due process of law.” ’ ” (People v.
Thompson (2016) 1 Cal.5th 1043, 1079 (Thompson).)
Silveria contends that section 1098 does not apply here
because defendants were not “jointly charged” within the
meaning of that section, but rather separate juries adjudicated
their guilt and then deadlocked on penalty. There was one
indictment jointly charging both defendants. The fact that
separate juries adjudicated their guilt and deadlocked on
penalty does not alter the fact that they remained jointly
charged. “The use of dual juries is a permissible means to avoid
the necessity for complete severance. The procedure facilitates
the Legislature’s statutorily established preference for joint trial
of defendants and offers an alternative to severance when
evidence to be offered is not admissible against all defendants.
(§ 1098; People v. Harris (1989) 47 Cal.3d 1047, 1075.)” (People
v. Cummings (1993) 4 Cal.4th 1233, 1287; see § 190.4,
subds. (b), (c), (e).) As the court stated in its pretrial ruling
severing the trial of defendants from that of Spencer and
Jennings: “By this ruling, the Court is not ordering four
separate trials. The Court is hereby ordering two trials — two
defendants in each trial. Each trial will have two separate juries
and therefore, each defendant will have a separate jury.”
Travis contends, based on the expert testimony at the
severance motion hearing, that the trial court abused its
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discretion in denying his motion because the jury was unable to
make an individualized sentencing determination regarding
Travis and Silveria. We have recently rejected “similar
empirical evidence,” concluding it does not “rebut the
presumption that jurors are presumed to understand and accept
the court’s instructions.” (People v. Erskine (2019) 7 Cal.5th
279, 301 (Erskine).) Moreover, Travis’s argument has been
largely foreclosed by the high court’s 2016 conclusion that joint
penalty trials do not violate the Eighth Amendment right to an
individualized sentencing determination, and that limiting
instructions such as those given here “ ‘often will suffice to cure
any risk of prejudice.’ ” (Kansas v. Carr, supra, 577 U.S. at p. __
[136 S.Ct. at p. 645].) Nor, in particular, did the circumstance
that Travis and Silveria both relied on Reverend Charon to
testify regarding their religious conversion preclude an
individualized sentencing determination. The fact that
defendants were housed in the same county jail, and that jails
may not employ numerous ministers, is one that would be easily
understood by the jurors.
Travis asserts that the trial court acknowledged the jury
would not be capable of following its admonitions regarding
severance because it had previously denied his motion to allow
a former juror and former alternate juror from the first penalty
phase to testify at the penalty retrial. He asserts that if the jury
could not follow instructions regarding the testimony of a former
juror and alternate juror, then it could not follow instructions to
individually assess each defendant’s appropriate sentence. But
Travis’s comparison of the severance issue to the issue regarding
testimony by former jurors is inapt: As we observe below, the
trial court was reasonably concerned testimony by the former
juror and alternate risked confusing the penalty retrial jury as
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to its task, and opened the possibility that “the [prosecutor]
could then call death voting jurors in rebuttal.” (Post, at
pt. II.B.5.a.2.) Travis does not explain what admonition would
alleviate these concerns.
Nor did events at the joint penalty retrial cause such gross
unfairness to defendants as to deprive them of a fair trial or due
process of law. (Thompson, supra, 1 Cal.5th at p. 1079.)
Silveria contends “there was a substantial risk that the single
jury’s penalty determination against Travis could improperly
influence its penalty decision regarding” Silveria. Silveria
contends that such prejudice was demonstrated by evidence that
Travis, unlike Silveria, stabbed Madden repeatedly, and by
evidence introduced only against Travis, such as Travis’s plan
to escape from jail, and his letter to a Manson family member
describing how Travis “enjoyed every moment” of stabbing
Madden.12
“In Kansas v. Carr, supra, 577 U.S. at p. __ [136 S.Ct. at
p. 644], the high court rejected a similar claim.[13] Carr involved
two defendants who were brothers. (Id. at p. __ [136 S.Ct. at
p. 637].) The older brother claimed he was prejudiced at their
12
Silveria also contends that the joint penalty retrial
allowed the jury to consider evidence of Travis’s willingness to
kill a jail guard during the planned escape, but we see no such
testimony in the cited portion of the record. Rather, Travis
replied, “No” when asked if there was “ever any plan to harm”
the correctional guard for the area where the escape had been
planned to occur, and that Travis only learned long after the
escape plan had been thwarted that there had been a plan to
harm the officer.
13
This discussion of Kansas v. Carr is drawn from our recent
discussion of a similar claim in People v. Beck and Cruz (2019)
8 Cal.5th 548, 600 (Beck and Cruz).
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joint penalty trial ‘by his brother’s portrayal of him as the
corrupting older brother,’ and by his brother’s cross-
examination of their sister, who equivocated about whether the
older brother had admitted to her he was the shooter. (Id. at
p. __ [136 S.Ct. at p. 644].) The younger brother claimed that
‘he was prejudiced by evidence associating him with his
dangerous older brother, which caused the jury to perceive him
as an incurable sociopath,’ and by the jury’s observation of his
older brother in handcuffs. (Id. at p. __ [136 S.Ct. at p. 644; see
id. at p. __ [136 S.Ct. at p. 644, fn. 4].)
“The high court held that joint capital sentencing
proceedings do not violate the Eighth Amendment right to an
individualized sentencing determination. (Kansas v. Carr,
supra, 577 U.S. at p. __ [136 S.Ct. at p. 644].) Although the due
process clause protects defendants against unduly prejudicial
evidence that would render a trial fundamentally unfair, that
standard was not met by the ‘mere admission of evidence that
might not otherwise have been admitted in a severed
proceeding.’ (Id. at p. __ [136 S.Ct. at pp. 644–645].) The high
court observed that the trial court had instructed the jury that
it must give ‘ “separate consideration to each defendant” ’ and
that evidence admitted as to one defendant should not be
considered as to the other defendant. (Id. at p. __ [136 S.Ct. at
p. 645].) The high court presumed that the jury followed these
instructions, while observing such limiting instructions ‘ “often
will suffice to cure any risk of prejudice.” ’ (Ibid.) Moreover, the
high court concluded that the penalty verdicts were not a result
of the challenged penalty evidence against one brother or the
other, but of the guilt phase evidence of ‘acts of almost
inconceivable cruelty and depravity.’ (Id. at p. __ [136 S.Ct. at
p. 646].)” (Beck and Cruz, supra, 8 Cal.5th at p. 600.)
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Likewise here, the trial court instructed the jury during
the prosecutor’s case-in-chief that evidence regarding Travis’s
letter to Watson “is limited to Mr. Travis only.” At the end of
the penalty phase, the court instructed the jury: “In this penalty
trial of defendants Travis and Silveria, you must consider the
penalty verdicts entirely separately for each of the two
defendants. While you may consider the parts played by each of
the two defendants in the murder and compare it to the part
played by the other defendant, you absolutely may not
determine a verdict for either of the defendants in terms of the
verdict rendered to the other defendant. In other words, you
may not allow your verdict as to one defendant to [a]ffect your
verdict as to the other defendant. You must endeavor to reach
separate verdicts as to each defendant in accordance with the
aggravating and mitigating circumstances applicable to that
defendant only, and in accordance with the rest of these
instructions.” It further instructed the jury as to evidence of
Travis’s escape preparations that “[u]nder no circumstances
may you discuss or consider this evidence in any way as to Mr.
Silveria.” We presume it understood and followed these
instructions.14 (People v. Hajek and Vo (2014) 58 Cal.4th 1144,
1178 (Hajek and Vo).)
In sum, defendants fail to demonstrate that the trial court
abused its discretion in denying defendants’ severance motions,
or that gross unfairness occurred as a result of the joint penalty
retrial.
14
Silveria further contends that the denial of his
severance motion precluded him from introducing mitigating
evidence in his statement to police. We address and reject that
claim in part II.B.5.c.
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2. Excusals for Cause
Silveria contends that the trial court wrongfully excused
for cause Prospective Juror No. J-56 based on his death penalty
views. Silveria and Travis contend that the trial court
wrongfully excused for cause Prospective Juror Nos. E-45 and
F-77 on this same basis. We reject the claim.
A trial court should only dismiss a prospective juror for
cause if the prospective juror’s views on the death penalty would
“ ‘prevent or substantially impair’ ” that person from performing
the duties of a juror. (People v. Caro (2019) 7 Cal.5th 463, 481.)
We review the trial court’s sustaining of a challenge to a
prospective juror based on views about the death penalty for
substantial evidence. (Beck and Cruz, supra, 8 Cal.5th at
p. 607; Caro, at p. 481.)
We consider each of the challenged excusals under these
standards.
a. Prospective Juror No. J-56
On his questionnaire, when asked if he had any “beliefs
that would affect in some way [his] ability or willingness to serve
as a juror in this case,” Prospective Juror No. J-56 answered,
“Yes,” explaining, “I would have a difficult time saying that
another human being should be put to death.” When asked if
there was “anything about the nature of this case that would
make it difficult or impossible for [him] to be a fair and impartial
juror,” he answered, “Yes,” explaining, “I do not think that I
could assign the death penalty to someone.” When asked his
general feelings about the death penalty, he again answered: “I
do not think that I could award the death penalty to someone.
A person should not take another person’s life.” When asked
under what circumstances he believed the death penalty was
appropriate, he answered, “I cannot think of any circumstance
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that the death penalty is appropriate.” When asked if he felt
“the death penalty should never be imposed for murder,” he
answered, “No,” explaining, “There might be some combination
that might lead me to believe that the death penalty is
warranted. At the moment, I cannot think of one, and hope that
I never do.” J-56 answered “Yes” when asked if he could follow
instructions to consider “all of the circumstances surrounding
the crime” and “concerning the defendant and his background”
before deciding on the penalty, but when asked what he would
“want to know about a defendant before deciding” on penalty, he
answered, “This is hard to explain since I cannot see myself ever
awarding the death penalty,” before giving examples of desired
information. He answered “No” when asked if he could set aside
his own personal feelings and follow the law, explaining: “[I]t
would be hard to keep my feelings about sentencing another
person to death from my final analysis (and yet follow[] the law
as it was explained).” He answered “Yes” when asked if he had
any home or work problems “that might interfere with [his]
ability to concentrate during this trial,” noting in part “the
expected stress of knowing that I am part of the decision process
for awarding [the] death penalty.”
Before voir dire, the trial court explained to the
prospective jurors, including Prospective Juror No. J-56, that
the defendants had been found guilty of a murder that was not
necessarily premeditated and that two special circumstances
had been found true. It also identified the two possible penalties
and the factors that the jury could consider in determining
which penalty to choose, defined mitigating and aggravating
evidence, described the weighing process, and explained that “to
return a judgment of death, each of you must be persuaded that
the aggravating circumstances are so substantial in comparison
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with the mitigating circumstances that it warrants death
instead of life without the possibility of parole.”15
On voir dire, Prospective Juror No. J-56 stated he would
keep an open mind, listen to all of the evidence, and would not
automatically vote for either penalty. When discussing his
questionnaire, J-56 reiterated that he did not believe “somebody
should be able to take somebody else’s life.” He added, “I think
I also mentioned in there that there might be a situation where
I think a death penalty would be — or somebody’s life could be
taken, but I can’t think of any offhand.” The court explained
that under California law there was no presumption as to which
penalty was appropriate and described the circumstances under
which a juror could vote for the death penalty. It then asked, “If
your personal beliefs or feelings were to be in conflict with the
California law, do you think you’d be able to set aside your
personal beliefs and feelings for this particular trial for this
purpose, or do you think that’s something you couldn’t do?” J-
56 replied, “I think it would be very hard for me to do.”
In response to questioning by defense counsel, Prospective
Juror No. J-56 explained that he could follow “the guidelines
that the judge sets up for aggravated and mitigated . . . and
come to a conclusion based on those. But even once I come to
that conclusion, if it happens to be death, I would still have a
hard time.” In response to further questioning he said he would
be capable of voting for the death penalty, adding, “But, like I
said, it would be very hard for me to then go through with it and
to cause another person to die because of the result.” In
response to questioning by the prosecutor, J-56 described
15
Similar opening instructions were given before the voir
dire of Prospective Juror Nos. E-45 and F-77.
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himself as a “person who’s reluctant to award the death penalty
even though he . . . might decide that the facts and the
guidelines are met.”
The prosecutor challenged Prospective Juror No. J-56 for
cause and trial court sustained the challenge, stating that “the
juror could not tell us that . . . he was willing to temporarily set
aside his own personal views. It would be difficult, but he didn’t
say he could do that and that is consistent with his answers in
the questionnaire. . . [T]he Court finds that he is substantially
impaired.”
No error appears in excusing Prospective Juror No. J-56
for cause. Although he expressed a willingness to consider all of
the evidence, keep an open mind, and follow the instructions, he
also expressed concern he would not be a fair and impartial juror
because of his views on the death penalty, and observed that he
would find it difficult to vote for the death penalty even if he
determined it was the appropriate verdict. On his
questionnaire, J-56 answered “No” when asked if he could set
aside his own personal feelings and follow the law, explaining:
“[I]t would be hard to keep my feelings about sentencing another
person to death from my final analysis (and yet follow[] the law
as it was explained).” On voir dire he was asked, “If your
personal beliefs or feelings were to be in conflict with the
California law, do you think you’d be able to set aside your
personal beliefs and feelings for this particular trial for this
purpose, or do you think that’s something you couldn’t do?” He
replied, “I think it would be very hard for me to do.” He
described himself as a “person who’s reluctant to award the
death penalty even though he . . . might decide that the facts
and the guidelines are met.” Substantial evidence supports the
trial court’s finding that J-56’s ability to follow the law would be
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substantially impaired. (See People v. Wall (2017) 3 Cal.5th
1048, 1063 [upholding excusal of a prospective juror who
“repeatedly expressed uncertainty not as to her own views on
the death penalty or the appropriateness of the death penalty in
any particular case, but as to her ability to impose a death
sentence”]; People v. Duenas (2012) 55 Cal.4th 1, 12 [“Comments
that a prospective juror would have a ‘hard time’ or find it ‘very
difficult’ to vote for death reflect ‘a degree of equivocation’ that,
considered ‘with the juror’s . . . demeanor, can justify a trial
court’s conclusion . . . that the juror’s views would “ ‘prevent or
substantially impair the performance of his duties as a
juror . . . .’ ” ’ ”].)
Moreover, the trial court was in a position, which we are
not, to observe Prospective Juror No. J-56 as he gave his
responses. (Uttecht v. Brown (2007) 551 U.S. 1, 9 [“Deference to
the trial court is appropriate because it is in a position to assess
the demeanor of the venire, and of the individuals who compose
it, a factor of critical importance in assessing the attitude and
qualifications of potential jurors”].) Although Silveria asserts
no deference should be accorded because the court did not
expressly state that it had granted the challenge for cause
because of J-56’s observed demeanor, the court unquestionably
weighed the prospective juror’s credibility and qualification to
serve in its thorough voir dire questioning and in relying on that
voir dire to sustain the challenge. (See People v. Flores (2020)
9 Cal.5th 371, 388 (Flores) [“The trial court was in the best
position to observe [prospective juror] S.M.’s demeanor, vocal
inflection, and other cues not readily apparent on the record,
and we reasonably infer that the trial court based its decision
not only on what S.M. said, but also on how he said it”]; People v.
Stewart (2004) 33 Cal.4th 425, 451 (Stewart) [“a trial judge who
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observes and speaks with a prospective juror and hears that
person’s responses (noting, among other things, the person’s
tone of voice, apparent level of confidence, and demeanor),
gleans valuable information that simply does not appear on the
record”]; see also People v. Wilson (2008) 44 Cal.4th 758, 835
(Wilson) [“In evaluating the testimony of the 12 jurors, the trial
court necessarily had to assess their credibility”].)
Substantial evidence supports the court’s ruling.
b. Prospective Juror No. E-45
On his questionnaire, in response to the question, “Is there
anything about the nature of this case that would make it
difficult or impossible for you to be a fair and impartial juror
here,” Prospective Juror No. E-45 answered “Yes,” and wrote,
“[M]y views on the death penalty.” When responding to a
question about his “general feelings regarding the death
penalty,” E-45 wrote, “I do not believe that the death penalty is
a deterr[e]nt to murder. I am not sure if we have the right to
take a life for a life.” He was “strongly against” the death
penalty because he did not believe it “does anything to stop a
crime and that being incarcerated for life is penalty enough.”
When asked whether his views about the death penalty had
changed substantially in the last few years, he answered, “Yes,”
explaining, “I find myself thinking there ‘may’ be special cases
where it should be considered.” He answered, “Yes” when asked
if he adhered to “any religious or philosophical principle that
would affect [his] ability to vote for the death penalty as a
judgment in this case,” explaining, “I don’t believe ‘we’ should
play God.” E-45 also answered, “Yes” when asked if he would
always vote for life imprisonment without the possibility of
parole and reject death, “regardless of the evidence presented”
at the penalty retrial, explaining, “I don’t believe that the death
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penalty is the appropriate punishment.” When asked “[u]nder
what circumstances, if any,” he believed “that the death penalty
is appropriate,” he answered, “It would have to be for someone
who is the epitome of evil.” When asked if he could see himself,
“in the appropriate case . . . choosing the death penalty,” he
answered, “No,” explaining, “I cannot at this time but if give[n]
clear cases where it should be applied, I might be able to
consider it.”
On voir dire, the trial court asked Prospective Juror No. E-
45, “[W]hen you initially went back there to deliberate, do you
think you would be able to go back there with both penalties as
possibilities?” E-45 replied, “Yes — well, I guess on the death
penalty I have some issues with that, but I think I could look at
what the law requires and — ” The court asked, “Would you
automatically be closed off as to one penalty when you initially
went back there?” E-45 replied, “It’s hard to say. Right now,
yes, but I haven’t seen . . . the evidence, the circumstances.” The
court said, “From reading your questionnaire, I gather that you
do not favor the death penalty, necessarily?” E-45 answered,
“Right.” The court asked: “You would have more favor toward
life without parole. What we want to make sure of is that jurors
are not closed off to either penalty, that they actually could
conscientiously consider both penalties as possibilities, again,
without knowing anything about the facts of the case.” E-
45 said: “[P]robably the death penalty would be harder. I guess
I would need to see more evidence than for the life in prison. So
they’re not equally balanced.” The court subsequently asked:
“Assume that the evidence in this case showed that the
defendants had deliberately participated in the multiple
stabbing of the victim in this case during the course of a robbery
and the victim died. . . . [B]ased on that assumption: Do you
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think that you would always vote for life without parole and
reject the death penalty despite any aggravating evidence that
may be presented during the course of the trial?” E-45 replied,
“Yes, I think I would vote for life without parole, right.” The
court asked, “Do you think you would ever vote for death based
on that assumption?” E-45 said, “Probably not at this point, no.”
The prosecutor challenged Prospective Juror No. E-45 for
cause. The court continued voir dire, asking E-45, “Going back
to that assumption, the multiple stabbing during a robbery, the
victim died and so on. In a situation like that, could you even
consider the death penalty?” E-45 replied: “Personally, no. But
I guess if I were instructed as far as what the law should be,
then I might have to look at . . . changing my beliefs a little bit.
I guess I could consider the death penalty.” The court
subsequently explained that California law “expresses no
preference for either penalty. There is no presumption as to
which penalty is appropriate in this case.” After further
colloquy it asked, “[D]o you think that the death penalty could
be appropriate in a case such as this, without knowing anything
about the case, other than that one assumption?” E-45 replied,
“I guess, just with that one assumption, probably not
appropriate.” The court dismissed E-45, finding that he “is in
fact substantially impaired because of his views on the death
penalty and it would prevent him from fulfilling his role as a
juror according to his oath and the instructions.”
No error appears in excusing Prospective Juror No. E-45
for cause. On his juror questionnaire he stated he was “strongly
against” the death penalty, and that he would always vote for
life imprisonment without the possibility of parole and reject
death, “regardless of the evidence presented” at the penalty
retrial. Although he believed the death penalty was appropriate
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for “someone who is the epitome of evil,” he said on voir dire it
was “probably not appropriate” for a stabbing death during a
robbery. Moreover, “the mere theoretical possibility that a
prospective juror might be able to reach a verdict of death in
some case does not necessarily render the dismissal of the juror”
erroneous. (People v. Martinez (2009) 47 Cal.4th 399, 432
(Martinez.)
Travis asserts that Prospective Juror No. E-45 did not
“indicate he could never vote for” the death penalty.
Nonetheless, E-45’s “answers provided substantial evidence
that [he] could not fairly consider both sides.” (Thompson,
supra, 1 Cal.5th at p. 1075.) On his juror questionnaire, when
asked, “Is there anything about the nature of this case that
would make it difficult or impossible for you to be a fair and
impartial juror here,” E-45 answered “Yes,” and wrote, “[M]y
views on the death penalty.” He answered “Yes” when asked if
he adhered to “any religious or philosophical principle that
would affect [his] ability to vote for the death penalty as a
judgment in this case,” explaining, “I don’t believe ‘we’ should
play God.” E-45 also answered “Yes” when asked if he would
always vote for life imprisonment without the possibility of
parole and reject death, “regardless of the evidence presented”
at the penalty retrial, explaining, “I don’t believe that the death
penalty is the appropriate punishment.”
On voir dire, the court asked Prospective Juror No. E-45:
“Assume that the evidence in this case showed that the
defendants had deliberately participated in the multiple
stabbing of the victim in this case during the course of a robbery
and the victim died. . . . [B]ased on that assumption: Do you
think that you would always vote for life without parole and
reject the death penalty despite any aggravating evidence that
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may be presented during the course of the trial?” (Italics added.)
E-45 replied, “Yes, I think I would vote for life without parole,
right.” The court asked, “Do you think you would ever vote for
death based on that assumption?” E-45 said, “Probably not at
this point, no.” The court subsequently asked, “[D]o you think
that the death penalty could be appropriate in a case such as
this, without knowing anything about the case, other than that
one assumption?” E-45 replied, “I guess, just with that one
assumption, probably not appropriate.” This colloquy,
particularly Juror E-45’s response that he would always vote for
life without parole “despite any aggravating evidence that may
be presented,” provides substantial evidence to support the trial
court’s ruling.
Moreover, “ ‘ “[t]here is no requirement that a prospective
juror’s bias against the death penalty be proven with
unmistakable clarity.” ’ ” (People v. Abilez (2007) 41 Cal.4th
472, 497.) As the high court has observed, many prospective
jurors “simply cannot be asked enough questions to reach the
point where their bias has been made ‘unmistakably clear’;
these [prospective jurors] may not know how they will react
when faced with imposing the death sentence, or may be unable
to articulate, or may wish to hide their true feelings. Despite
this lack of clarity in the printed record, however, there will be
situations where the trial judge is left with the definite
impression that a prospective juror would be unable to faithfully
and impartially apply the law.” (Wainwright v. Witt (1985)
469 U.S. 412, 424–426, fn. omitted (Witt).)
Substantial evidence supports the trial court’s ruling.
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c. Prospective Juror No. F-77
On his questionnaire, when asked his general feelings
about the death penalty, Prospective Juror No. F-77 answered,
“Against it.” He answered “Yes” when asked if he held any
“religious or philosophical principle that would affect [his]
ability to vote for the death penalty as a judgment in this case,”
explaining, “The involuntary taking of another’s life is wrong.”
He answered “Yes” when asked if he had any beliefs that would
affect his ability or willingness to be a juror, explaining: “I
believe our [s]ociety might be better off without the Death
Penalty. As a moral matter I do not see that the State has a
right to take a life any more than an individual does. Some
States have made mistakes. I doubt if the Death Penalty deters
murder. I believe the existence of the Death Penalty gives a
sanction to murder in [s]ociety.” He answered “No” when asked
if he would always vote for life imprisonment “regardless of the
evidence presented,” explaining, “I am open to the evidence.”
When asked under what circumstances he believed the death
penalty was appropriate, he answered: “Hard to come up with
any. Death Penalty appears to be state-sanctioned murder.” He
answered “Yes” when asked if he believed “the death penalty
should never be imposed for murder.” He answered “No” when
asked if he could see himself rejecting life imprisonment and
choosing the death penalty, explaining, “Sitting here now I
cannot see it but I would always listen to other people’s points-
of-view.” He answered “Yes” when asked if he could set aside
any preconceived notions about each penalty and his personal
feelings and follow the law.
On voir dire, in response to the court’s inquiry, Prospective
Juror No. F-77 said he would try to keep an open mind regarding
penalty until after he had heard all of the evidence, counsel’s
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arguments, and the instructions. After noting that F-77 had
said he was against the death penalty, the court asked if he
would be able to vote for that penalty if after hearing the
evidence and engaging in deliberation he thought it was
appropriate. F-77 replied: “I would want to keep an open mind
and I would listen to arguments. If my opinion on the matter is
wrong and I’m persuaded that it’s wrong, then I would change
my opinion.” When asked if he were “closed off” to the death
penalty, F-77 observed, “If somebody were to present me with
an argument that I found overwhelming and persuasive, then
my opinion would change.” He explained, “If I were persuaded
by another person’s argument that my position was wrong, then
I would change my position.” He identified Charles Manson,
whom he described as “a monstrous person with no feelings of
remorse,” as a person for whom the death penalty might be
appropriate “if one was going to make an exception and say one
should have the death penalty.” In response to the prosecutor’s
inquiry, F-77 affirmed that he considered the death penalty to
be state sanctioned murder. The prosecutor subsequently asked
F-77, “[I]t sounds like you already have a position that you
would have to be talked out of; is that fair?” He replied, “I would
want to listen to all the evidence and I would want to listen to
how that evidence had impacted other people and I would see
whether my position was wrong.”
The prosecutor challenged Prospective Juror No. F-77 for
cause, and the trial court sustained the challenge, stating:
“[T]he Court finds that the juror is substantially impaired. He
has a position and his position is that he would have to be
convinced otherwise. He is not here with an open mind. And
the Court finds that his attitudes and answers and feelings
would make it impossible or at least substantially impair him
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from being a juror in this case and properly acting as a juror in
accordance with the law and his oath.”
Travis contends that “the trial court erroneously believed
that an acknowledged aversion to the death penalty
automatically disqualified” Prospective Juror No. F-77. As can
be seen, the record is otherwise and supports the trial court’s
finding that F-77 would not fairly consider both penalties.
Although he answered “Yes” when asked on his questionnaire if
he could set aside any preconceived notions about each penalty
and his personal feelings and follow the law, and said on voir
dire he would try to keep an open mind regarding penalty until
after he had heard all of the evidence, counsels’ arguments, and
the instructions, F-77 made other statements that provided
substantial evidence to support the trial court’s ruling. On F-
77’s questionnaire he answered “Yes” when asked if he believed
“the death penalty should never be imposed for murder.” He
also answered “Yes” when asked if he held any “religious or
philosophical principle that would affect [his] ability to vote for
the death penalty as a judgment in this case,” explaining, “The
involuntary taking of another’s life is wrong.” He answered “No”
when asked if he could see himself rejecting life imprisonment
and choosing the death penalty, explaining, “Sitting here now I
cannot see it but I would always listen to other people’s points-
of-view.” On voir dire, F-77 described the death penalty as
“state-sanctioned murder.” Although he said he would “keep an
open mind,” he also indicated he already had an opinion on the
issue of penalty. He would require an “overwhelming and
persuasive” argument during jury deliberations to change his
view, an attitude that belies the concept of keeping an open
mind while listening to the evidence and entering deliberations.
Although he identified Charles Manson as one person for whom
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the death penalty might be appropriate, again “the mere
theoretical possibility that a prospective juror might be able to
reach a verdict of death in some case does not necessarily render
the dismissal of the juror” erroneous. (Martinez, supra,
47 Cal.4th at p. 432.)
Nor, as Travis further contends, does the circumstance
that in cases such as People v. Ramirez (2006) 39 Cal.4th 398,
448–449, in which we upheld the trial court’s ruling retaining a
prospective juror who favored the death penalty, but who “would
not ‘necessarily be committed from the outset to the imposition
of the death penalty’ ” (id. at p. 449), and who “assured the court
multiple times that he would not automatically vote for the
death penalty and would, instead, reach a decision based upon
all of the evidence” (id. at p. 448), demonstrate that F-77 was a
“suitable juror[].” Although the prospective juror in Ramirez
initially said that “if the defendant were convicted of first degree
murder and found to be eligible for the death penalty, he would
vote to impose the death penalty unless he were convinced
otherwise” (id. at p. 447), upon further examination the
prospective juror “acknowledged that he would weigh and
consider the evidence presented and base his decision on that
evidence and would not vote ‘automatically’ for anything,”
“denied that he would always vote to impose the death penalty
for first degree murder ‘no matter what the circumstances that
led to that conviction,’ ” and “stated that he would not
‘necessarily be committed from the outset to the imposition of
the death penalty.’ ” (Ibid.) When asked by the trial court if the
prospective juror found beyond a reasonable doubt a defendant
guilty of first degree murder and found true a special
circumstance allegation, “ ‘would that put you in a position
where in every case would you always vote for the death
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penalty,’ ” the prospective juror responded: “ ‘I don't think I
could say in every case. I will have to judge each case by its own
merits.’ ” (Ibid.) While there are some similarities between the
statements in Ramirez and the statements at issue here, there
are several crucial differences as well: Notably, unlike in
Ramirez, Prospective Juror No. F-77, described the death
penalty as “state-sanctioned murder,” and stated that he would
require an “overwhelming and persuasive” argument during
jury deliberations to change his view.
d. Standard for assessing substantial impairment
Silveria contends that the trial court erroneously used a
different standard to assess whether Prospective Juror Nos. A-
69, B-17, C-47, C-67, and G-68, who supported the death
penalty, were substantially impaired, than for Prospective Juror
Nos. J-56, E-45, and F-77, who opposed the death penalty. He
claims for that reason the trial court’s rulings are entitled to no
deference. We reject the claim.
As a preliminary matter, we note that Silveria does not
challenge the trial court’s rulings denying his challenges for
cause against Prospective Juror Nos. A-69, B-17, C-47, C-67,
and G-68. Hence these rulings are not before us. Although he
attempts to do so in a footnote in his reply, “ ‘[i]t is axiomatic
that arguments made for the first time in a reply brief will not
be entertained because of the unfairness to the other party.’ ”
(Rangel, supra, 62 Cal.4th at pp. 1218–1219.) Even assuming
for the sake of argument that the claim was preserved, none of
the challenged jurors served on the penalty retrial jury, hence
Silveria fails to demonstrate prejudice from any erroneous
denial of his challenges for cause. (People v. Bell (2019)
7 Cal.5th 70, 94 (Bell) [“Where no challenged panelist actually
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served on defendant’s jury, ‘ “there is no basis for us to conclude
that the jury empaneled was anything but impartial” ’ ”].)
Silveria does, however, more broadly assert that the trial
court used a different standard to assess whether five
prospective jurors who supported the death penalty were
substantially impaired than it did for three prospective jurors
who opposed the death penalty. In making this claim, Silveria
essentially contends that the trial court was biased in its death-
qualification rulings. He does not point to any place in the
record where he objected below on the ground of judicial bias to
the manner in which the trial court conducted voir dire for these
prospective jurors. Indeed, following the voir dire of Prospective
Juror No. B-17, Silveria’s counsel expressly asserted that the
trial court had been evenhanded in its application of the
substantially impaired standard. Counsel also observed that
earlier that day the court had excused on its own motion several
prospective jurors who it had determined would automatically
vote for the death penalty.
Assuming the claim is preserved on appeal, it is meritless.
“Witt has long been the law and it is clear the court was aware
of the appropriate standard to apply.” (People v. Thomas (2011)
52 Cal.4th 336, 361.) We have concluded, after careful review of
the respective questionnaires and voir dire of Prospective Juror
Nos. J-56, E-45, and F-77, that the trial court’s rulings
sustaining the prosecutor’s challenges are supported by
substantial evidence. (See ante, pt. II.B.2.a–c.) We have also
reviewed the court’s voir dire of Prospective Juror Nos. A-69, B-
17, C-47, C-67, and G-68, none of whom served on the penalty
retrial jury, and see no indication that the court showed bias in
evaluating whether these prospective jurors or Prospective
Juror Nos. J-56, E-45, and F-77 were substantially impaired.
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Rather, as to each of these prospective jurors, the court
conducted thorough voir dire examination to determine whether
the prospective juror was qualified to serve and permitted
counsel to ask further questions regarding possible
disqualifying bias.
Silveria asserts that Prospective Juror No. A-69 was more
adamant in his view favoring the death penalty than “some”
prospective jurors (presumably referring to Prospective Juror
Nos. J-56, E-45, and F-77) were in their view opposing the death
penalty, but the court denied the challenge for cause as to A-69
because he said he could consider a life imprisonment penalty.
Silveria asserts that the circumstance that the court sustained
the challenge as to prospective jurors who opposed the death
penalty, “even though they said they could consider the death
penalty,” demonstrates the court’s bias against the defense.
Silveria similarly claims that if Prospective Juror No. B-17 was
not substantially impaired because he would not automatically
vote for the death penalty, then Prospective Juror Nos. J-56, E-
45, and F-77 who opposed the death penalty were not
substantially impaired because they were not “automatically
pro-life,” and that if Prospective Juror No. “C-47’s responses
were sufficient to save him from exclusion . . . , then certainly
the responses of the pro-life” Prospective Juror Nos. J-56, E-45,
and F-77 “should have saved them as well.” As to Prospective
Juror No. G-68, Silveria simply asserts that the trial court
denied the defense challenge “because, although G-68 was
biased in favor of the death penalty, he was not so biased in this
case.”
These summary assertions fail to consider the prospective
jurors’ statements in the context of the entire voir dire.
Prospective Juror No. A-69 said that although his mind was
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leaning toward being closed off to the possibility of a verdict of
life imprisonment “knowing that the defendants have been
convicted of murder in the first degree and two special
circumstances,” he would want to hear the mitigating evidence
before reaching a penalty decision, and he could conscientiously
consider and weigh that evidence. He also explained that his
questionnaire opposition to the penalty of life imprisonment
without the possibility of parole had been based on a
misunderstanding that parole was available for such a sentence.
Having learned otherwise during voir dire, A-69 said a verdict
of life imprisonment was now “definitely” more possible.
Prospective Juror No. B-17 said that he would “have to listen
to . . . the testimony” and “make a judgment based on that,”
agreed with the prosecutor he was “someone who would want to
hear all the evidence in a case before rendering” a decision, could
think of no reason why he could not be fair to both sides in the
case, and said he had not provided an answer on the
questionnaire regarding his reasons for supporting or opposing
the death penalty because he had “no preference one way or the
other.” Although he had answered “Yes” when asked on his
questionnaire whether the death penalty should be mandatory
for murder, he said on voir dire there could be extenuating
circumstances that would make the death penalty inappropriate
and that he would want to hear and could conscientiously
consider the mitigating evidence before reaching a verdict.
Prospective Juror No. C-47, who supported the death penalty,
agreed with the court that he would be able to “keep an open
mind” and “not make up [his] mind until [he had] heard all the
evidence in court and the arguments from the attorneys and the
instructions on the law and had a chance to go back and
deliberate with [his] fellow jurors.” He also agreed with the
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court that he would be able to “listen with an open mind to all
the evidence that was presented” and “conscientiously consider
both penalties as possibilities in this case at this point right now
without knowing anything else.”
By contrast, as delineated above, although Prospective
Juror No. J-56 expressed a willingness to consider all of the
evidence, keep an open mind, and follow the instructions, he also
expressed concern he would not be a fair and impartial juror
because of his views on the death penalty, and observed that he
would find it difficult to vote for the death penalty even if he
determined it was the appropriate verdict. Likewise, although
he acknowledged there could be circumstances in which the
death penalty would be appropriate, he was unable to articulate
on his questionnaire or on voir dire what those might be. He
also observed that the “stress” from knowing he would be
participating in the decision whether to impose the death
penalty would affect his ability to concentrate during the trial.
Prospective Juror No. E-45 stated on his juror questionnaire
that he was “strongly against” the death penalty, and that he
would always vote for life imprisonment without the possibility
of parole and reject death, “regardless of the evidence presented”
at the penalty retrial. Although he believed the death penalty
was appropriate for “someone who is the epitome of evil,” he said
on voir dire it was “probably not appropriate” for a stabbing
death during a robbery. Prospective Juror No. F-77 described
the death penalty as “state-sanctioned murder,” and said he did
not believe it should be imposed for murder. He would require
an “overwhelming and persuasive” argument during jury
deliberations to change his view, an attitude that is the
antithesis of having an open mind while listening to the
evidence and entering deliberations. Although he identified
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Charles Manson as one person for whom the death penalty
might be appropriate, again “the mere theoretical possibility
that a prospective juror might be able to reach a verdict of death
in some case does not necessarily render the dismissal of the
juror” erroneous. (Martinez, supra, 47 Cal.4th at p. 432.) And
once again, many prospective jurors “simply cannot be asked
enough questions to reach the point where their bias has been
made ‘unmistakably clear,’ ” but “[d]espite this lack of clarity in
the printed record . . . there will be situations where the trial
judge is left with the definite impression that a prospective juror
would be unable to faithfully and impartially apply the law.”
(Witt, supra, 469 U.S. at pp. 424–426.)
Silveria asserts that the trial court should have recognized
that Prospective Juror No. A-69’s credibility was suspect “when
he claimed to have acquired a new understanding of the
meaning of life without parole during voir dire” because the jury
questionnaire described the sentence as “Life Without the
Possibility of Parole.” “Making such credibility determinations
fell squarely within the trial court’s province.” (Bryant, Smith
and Wheeler, supra, 60 Cal.4th at p. 403; see ibid. [“The trial
court’s view that Number 80 would not automatically vote in a
particular way does not establish that the court applied an
improper or even a different standard than with other
prospective jurors”].)
Silveria asserts that Prospective Juror No. C-67 never
said “he could set aside his preconceived notions about the death
penalty and follow the law,” yet the defense challenge for cause
was denied. By contrast “the judge granted the prosecutor’s
challenges for cause of three pro-life potential jurors even
though they said they could put aside their preconceived notions
about the death penalty.”
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The United States Constitution “does not dictate a
catechism for voir dire, but only that the defendant be afforded
an impartial jury.” (Morgan v. Illinois (1992) 504 U.S. 719, 729,
italics omitted.) Considering Prospective Juror No. C-67’s voir
dire in its entirety, although he may not have said the precise
statement that he could “set aside his preconceived notions
about the death penalty and follow the law,” he said “Yes” when
asked by the court if he would “be able to keep an open mind,”
“not make up your mind until you’ve heard all the evidence from
all the attorneys here in court, the arguments from the
attorneys and the instructions on the law from the Court,” and
go to the jury room for deliberations “with both penalties as
possibilities.” Although he “lean[ed] in favor of the death
penalty,” C-67 answered “Yes” when asked by the court if he
would be able to listen to the mitigating “evidence with an open
mind and be able to conscientiously consider and weigh that
evidence in reaching a penalty phase determination.” C-67 also
replied, “Yes,” when asked by the prosecutor, “Would you be
willing, if you are selected as a member of this jury, to consider
all of the evidence that comes into this courtroom, listen to it
with an open mind, listen to the law the Court instructs on,
listen to the arguments of counsel and then go back into the jury
room, evaluate that evidence during the process of deliberation
and arrive at a verdict as to the appropriate penalty even if
that’s a difficult thing to do; could you do that?” When asked by
the prosecutor, “Is there anything that would prevent you from
being fair and impartial in this case?” C-67 replied, “I can’t
think of anything.” Thus, contrary to Silveria’s assertion, the
circumstance that C-67 did not expressly state that he could “set
aside his preconceived notions about the death penalty and
follow the law” fails to demonstrate that the trial court used a
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different standard to evaluate substantial impairment for C-67
than it did for Prospective Juror Nos. J-56, E-45, and F-77.
By contrast, as delineated above, Prospective Juror No. J-
56 said, “[I]t would be very hard for me” when asked if he would
be able to set aside “personal beliefs or feelings” that were “in
conflict with the California law.” He also observed that he could
follow “the guidelines that the judge sets up for aggravated and
mitigated . . . and come to a conclusion based on those. But even
once I come to that conclusion, if it happens to be death, I would
still have a hard time.” Prospective Juror No. E-45 answered,
“Probably not at this point, no,” when asked if he would ever
vote for the death penalty in a case where “the defendants had
deliberately participated in the multiple stabbing of the
victim . . . during the course of a robbery and the victim died.”
When asked if he could “even consider the death penalty” in that
situation, E-45 replied: “Personally, no. But I guess if I were
instructed as far as what the law should be, then I might have
to look at . . . changing my beliefs a little bit. I guess I could
consider the death penalty.” Prospective Juror No. F-77
described the death penalty as “state-sanctioned murder,” said
he would require an “overwhelming and persuasive” argument
during jury deliberations to change his view, and identified
Charles Manson as one person for whom the death penalty
might be appropriate.
Silveria asserts the trial court’s rulings sustaining the
prosecutor’s challenges for cause are not entitled to deference
because the court did not expressly state that it had granted the
challenges for cause to Prospective Juror Nos. J-56, E-45, and F-
77 because of their observed demeanor. As discussed above, the
court unquestionably weighed the prospective jurors’ credibility
and qualification to serve in its thorough voir dire questioning
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and reliance on that voir dire to both sustain the challenges to
Prospective Juror Nos. J-56, E-45, and F-77 and to reject
Silveria’s challenges for cause to Prospective Juror Nos. A-69, B-
17, C-47, C-67, and G-68. (See Flores, supra, 9 Cal.5th at p. 388
[“The trial court was in the best position to observe [prospective
juror] S.M.’s demeanor, vocal inflection, and other cues not
readily apparent on the record, and we reasonably infer that the
trial court based its decision not only on what S.M. said, but also
on how he said it.”]; Stewart, supra, 33 Cal.4th at p. 451 [“a
trial judge who observes and speaks with a
prospective juror and hears that person’s responses (noting,
among other things, the person’s tone of voice, apparent level of
confidence, and demeanor), gleans valuable information that
simply does not appear on the record”]; see also Wilson, supra,
44 Cal.4th at p. 835 [“In evaluating the testimony of the
12 jurors, the trial court necessarily had to assess their
credibility”]; see ante, at pp. 64–65.)
In sum, no judicial bias in evaluating whether Prospective
Juror Nos. J-56, E-45, F-77, A-69, B-17, C-47, C-67, and G-68
were substantially impaired is demonstrated.
3. Removal of Juror No. 4
Silveria and Travis contend the trial court erroneously
removed Juror No. 4. We reject the claim.
On her juror questionnaire, Juror No. 4 was asked if she
knew or had heard of any anticipated witnesses appearing on a
10−page list, including “Leo Charon.” She did not circle
Reverend Charon’s name. On February 13, 1997, Juror No. 4
told courtroom personnel during a recess that she now realized
she knew Reverend Charon. After the rest of the jury had left
for the day, and in a hearing with the court and counsel, Juror
No. 4 explained that her husband had worked at CityTeam
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Ministries in the recovery program with Reverend Charon. She
had known Reverend Charon for about 10 years and had
socialized with him. She said, “I don’t know him intimately, but
I just know he’s a good man,” adding “I didn’t know if that would
have any effect on me.” Travis’s counsel mentioned that
Reverend Charon had been gone from CityTeam for about four
to five years, and Juror No. 4 said, “So has my husband.” The
court asked, “Is there anything about your friendship or
knowledge, your conversations or whatever with [Reverend]
Charon that would affect your ability to be fair and impartial
both to the prosecution and the defense in this case?” Juror
No. 4 replied, “I don’t think so.” The court asked, “Would you be
able to listen to Reverend Charon . . . with a
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