People v. Williams

Filed 5/6/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S030553

v. )

)

GEORGE BRETT WILLIAMS, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. TA006961

____________________________________)

A Los Angeles County jury found defendant George Brett Williams guilty of

two first degree murders and found true the special circumstance allegations of

multiple murder and that the murders were committed while defendant was

engaged in the commission or attempted commission of a robbery. (Pen. Code,

§§ 187, 189, 190.2, subd. (a)(3), (17).1 The jury further found defendant guilty of

two counts of second degree robbery and found true that defendant personally

used a firearm in the commission of the felony offenses. (§§ 211, 12022.5.) After

the penalty phase, the jury returned a verdict of death. The trial court denied

defendant‘s motion for new trial (§ 1181) and for modification of the penalty

(§ 190.4, subd. (e)) and sentenced him to death. This appeal is automatic. (Cal.

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

We affirm the judgment.

1 Hereafter, undesignated statutory references are to the Penal Code.

1

INTRODUCTION

On January 2, 1990, Willie Thomas and Jack Barron were fatally shot at

close range in a house on Spring Street in Los Angeles. Their bodies were

dragged to a truck parked in the garage, where they were found when the police

arrived in response to a neighbor‘s call reporting gunshots. The prosecution‘s

theory was that defendant shot both victims in the course of a robbery that had

begun as a drug transaction. According to prosecution witnesses, earlier that

evening defendant had planned to scam the victims through a fraudulent drug

transaction at a bar parking lot by trading fake money for drugs. The victims met

defendant at the bar parking lot, but, for reasons unknown, the transaction did not

occur there. Instead, later that evening, the victims came to the Spring Street

house, which was a frequent hangout for defendant and three associates.

According to the testimony of the three associates, all of whom had pleaded guilty

in prior proceedings, defendant shot both victims. Additionally, two neighbors to

the Spring Street house testified that defendant was present at the house on the

night of the killings. The prosecution presented evidence that the pager found at

the scene of the crime was defendant‘s, and that his fingerprints were found in the

room where the victims had been shot and on the truck to which the victims‘

bodies had been dragged. The prosecution also presented evidence that defendant

fled Los Angeles after the shooting, and that, upon his return two weeks later, he

sought to pay some new acquaintances to fabricate an alibi for him for the night of

the killings.

2

I. FACTS

A. Guilt Phase

1. Prosecution Case

The prosecution presented evidence of the murders and the drug deal

surrounding it largely through the testimony of two of defendant‘s accomplices,

Patrick Linton and Dauras Cyprian.2 Their testimony was corroborated by the

testimony of other witnesses, telephone records, and physical evidence.

a. Background

Defendant socialized with Patrick Linton, Dauras Cyprian, and Dino Lee.

This group often gathered at a house on Spring Street, where Cyprian‘s half

brother, Ernie Pierre, lived.3 On the upstairs floor of the house was a vacant small

apartment, where victims Willie Thomas and Jack Barron were shot on January 2,

1990. Cyprian and his mother, Marcella Pierre, lived in a house across the street.

b. Preparations for the Drug Deal

In the week prior to the killings, defendant mentioned to Linton that he

intended to ―jack someone for some money,‖ meaning that he intended to scam

someone through a fraudulent drug deal. On the day of the killings, defendant was

socializing with Linton and Cyprian at the Spring Street house. Defendant told

Linton he was going to set up a drug deal with victims Jack Barron and Willie

Thomas. Telephone records indicated that, on the day of the killings, three calls

2 Dino Lee, the third accomplice, did not testify for the prosecution, but was

called by the defense. As summarized below in the defense case, Lee‘s testimony

also incriminated defendant and was substantially the same as the testimony of

Linton and Cyprian.

3 Ernie Pierre was not at home on the night of the murders and played no role

in the case.

3

were made between defendant‘s house and an air conditioning business called

A.R.A. Victims Barron and Thomas worked at A.R.A. Fellow A.R.A. employee

Londell Richardson testified that, on the day of the killings, he overheard a

telephone conversation by Thomas and Barron indicating that, after work, they

were planning to go to a bar to transact a drug deal involving $50,000 and three or

four kilos of cocaine.

In preparation for the drug transaction, defendant, Linton, and Cyprian went

to defendant‘s house, where defendant assembled packages of torn-up phonebook

pages, which he wrapped to resemble bundles of cash and then placed in a plastic

bag. Defendant also brought three guns, which were later found at the scene of the

crime, a .38-caliber Smith & Wesson revolver, a .380-caliber Titan automatic

pistol, and a carbine rifle.

c. Meeting at a Bar Parking Lot

Linton testified to the following events: Linton drove defendant and Cyprian

in Linton‘s truck, a blue Chevy Blazer, to the parking lot of a bar. Defendant got

out of the truck and went over to talk to Barron, whose truck was parked in the

back of the lot. Thomas stood next to Barron‘s truck. Defendant spoke with the

victims, Barron and Thomas, for 30 to 45 minutes.4 Defendant returned to

Linton‘s truck and told Linton that they were going to follow Barron and Thomas

4 For the events at the bar, in addition to the testimony of Linton and

Cyprian, the prosecution presented the testimony of Jose Pequeno, a former

coworker of Barron‘s and Thomas‘s. Pequeno worked at the bar and was present

that night. Pequeno identified Linton‘s Blazer as being there that night and

identified defendant from a photographic lineup as the person who got out of the

Blazer and talked with Barron and Thomas. Pequeno‘s in-court identification of

defendant was more tentative; he stated that he ―thought‖ defendant was the

person who had talked to Barron and Thomas in the bar parking lot that night.

4

to a house in South Gate. Barron and Thomas drove out of the parking lot

together in a blue Chevy Sprint, an A.R.A. company car that Thomas often drove.

Defendant, Linton, and Cyprian followed the Sprint as far as the freeway, but

defendant decided at the last moment not to follow it to the house in South Gate,

and told Linton to drive instead back to defendant‘s house. There they dropped

off the guns and the plastic bag of fake cash.

Cyprian gave a slightly different account than Linton of the events at the bar

parking lot, testifying as follows: While he was waiting in Linton‘s truck, he saw

a Camaro drive in. A Hispanic man got out of the Camaro and approached

Linton‘s truck. After the Hispanic man walked away, Linton said, ―That was

Tony.‖ ―Tony‖ then went over and talked to defendant and Barron. Barron left

with Tony in the Camaro. Linton, however, denied seeing someone named Tony

that night.

Jose Pequeno‘s testimony was in accord with Linton‘s that Barron and

Thomas left together in the blue Sprint.

d. Shootings at the Spring Street House

Linton and Cyprian gave substantially similar testimony concerning the

events at the Spring Street house later that night. Defendant and Linton drove to

the Spring Street house in separate cars. Defendant drove his Mercedes 190,

which he parked in the driveway.5 Linton drove his Chevy Blazer, with Cyprian

as his passenger, and parked in front of the house. Defendant, Linton, and Cyprian

stayed in front of the house drinking beer for about an hour. They eventually

made their way to the vacant upstairs apartment and continued to drink and smoke

5 Both Linton and Cyprian testified that defendant drove a Mercedes 190 on

the night of the murders.

5

marijuana. At some point, defendant received a page and made a call. Defendant

told Linton that Barron wanted to come to the house to do the drug deal. In the

meantime, Dino Lee had arrived and joined the others in the upstairs apartment.6

About 10 minutes after Lee arrived, Barron and Thomas arrived in the blue Sprint.

Defendant went outside to talk to them. Defendant returned and told Linton that

they should go to defendant‘s house to get the guns and the fake cash. They left

and returned while Barron and Thomas waited in their car parked outside.

Defendant, Linton, Barron, and Thomas then went to the upstairs apartment,

where Cyprian and Lee were waiting. Linton entered the apartment first, and

heard someone say, ―Get down.‖ Cyprian testified that defendant said, ―Don‘t

nobody move,‖ and pulled out a .38-caliber revolver. Linton was armed with a

.380-caliber weapon. Barron and Thomas lay prone on the floor. Defendant took

shoestrings out of his coat pocket and instructed the others to tie the victims‘

hands and feet. Cyprian went through the victims‘ pockets and removed their

wallets.

Defendant propped up Barron, who was now bound, against one of the walls,

with his feet in front of him and his hands behind his back. Defendant put the .38-

caliber revolver up to Barron‘s face and told him he wanted three kilos of cocaine.

At this point, defendant told Cyprian to move the victims‘ car, which was parked

in front of the Spring Street house, in case the victims‘ associates came looking for

them. Cyprian left the apartment and went to re-park the victims‘ car around the

block.

6 As Lee testified in the defense case, he had not been involved with the drug

deal meeting at the bar parking lot and came to the Spring Street house

independently.

6

Defendant told Barron to talk to his associates on the phone, say that Barron

had counted the money, and convince them to give defendant the cocaine.

Defendant warned Barron not to speak any Spanish. Kneeling and holding his

gun, defendant dialed the phone and held the receiver up to Barron‘s ear. Barron

told him that the phone was not making a connection. Still holding his gun,

defendant brought the phone down and started redialing the number. While

defendant was dialing, his gun discharged and shot Barron in the chest. Defendant

exclaimed, ―Ah, shit, Ah, shit, man.‖ Defendant then got up off his knees, walked

over to Thomas, who was lying bound on the floor across the room, and shot him

twice in the head. He then walked back over to Barron and shot him in the head

once.

After the shootings, defendant, Linton, and Lee went to the backyard, and

were standing around when Cyprian returned from moving the victims‘ car.

Linton testified that defendant told Cyprian: ―I had to kill a man, I had to kill

him.‖ Cyprian testified that defendant told him: ―I shot ‗em. It was an accident

so I killed the other one because I didn‘t want a witness.‖

Defendant proposed moving the bodies. Linton moved the Blazer from the

street into the garage of the Spring Street house and closed the garage doors. All

four of them worked to move the dead bodies of Barron and Thomas into the back

of the Blazer. Cyprian unsuccessfully attempted to clean up some of the blood on

the garage floor by throwing a bucket of water on it. Defendant and the others

were ready to drive off with the bodies, but Lee cried out a warning that the police

were coming. About 20 to 30 minutes had elapsed between the shootings and the

arrival of the police. Defendant and the three others fled, leaving the Blazer with

the victims‘ bodies in the backseat, where police discovered them.

7

e. Testimony of the Neighbors

(1) Marcella Pierre

Marcella Pierre was the mother of Dauras Cyprian (who, as described above,

was one of defendant‘s accomplices who testified against him) and of Ernie Pierre,

who lived at the house on Spring Street in which the killings occurred. Mrs. Pierre

lived with Cyprian across the street. She came to know defendant, Linton, and

Lee because they visited Cyprian almost daily in the five-month period before the

killings.

On the evening of the killings, January 2, 1990, Mrs. Pierre testified that she

had seen defendant, Linton, Lee, and Cyprian at Ernie Pierre‘s house. About

10:00 p.m., she was at her home across the street. She heard three or four sounds

that sounded like gunshots. Approximately 10 to 15 minutes before she heard

these shots, she had seen defendant, Linton, and two men she did not know

standing at the gate of the house. Immediately after the shots, she looked out her

window, but did not see anyone. Approximately five to 10 minutes after the shots,

however, she saw defendant, Cyprian, Linton, and Lee talking loudly and arguing

out on the street. She heard Cyprian ask defendant, ―What did you do that for,

man?‖ Cyprian then came across the street and filled a bucket of water from her

front yard and took the bucket back toward the house. Shortly after that, the

police arrived.

(2) Irma Sazo

Irma Sazo lived on Spring Street next door to the house where the killings

occurred. Shortly after 10:00 p.m. on the night of the killings, Sazo heard three or

four shots and telephoned the police. In the six months before the crime, Sazo had

seen defendant visit Ernie Pierre at the house almost every day. The men would

congregate in front of the house with Linton, Cyprian, and Lee. They often drank,

smoked marijuana, and played loud music late into the night.

8

On the night of the killings, Sazo arrived home at 7:00 p.m. and saw what she

recognized as defendant‘s car, a new-looking black BMW, parked next door to her

house.7 Around 10:00 p.m., she heard three or four shots coming from the house

next door. Looking out her window at the street, she saw that defendant‘s black

BMW was no longer parked there, but Linton‘s blue Chevrolet Blazer truck was

there. She then saw four individuals in the house‘s front yard, whom she later

identified as defendant, Linton, Cyprian, and Lee. When defendant moved closer

to her house and saw her watching inside, he said, ―Oh, oh, the lady is in the

window.‖ She saw Cyprian trying to open the lock on the garage door at the

house where the killings occurred. Sazo also saw Cyprian go get a bucket of water

from Marcella Pierre‘s house and bring it to the house next door.

At trial Sazo testified she saw defendant, Linton, and Lee leave the scene in

Linton‘s Blazer.8 However, the officer who interviewed her on the night of the

killings testified that she told him she did not see those three leave the scene, but

only noticed they were gone when she returned to the window after calling the

police.

f. Defendant and Cyprian Leave Los Angeles

Cyprian testified regarding his actions with defendant after the killings.

Initially Cyprian fled the crime scene by foot, but defendant picked him up in a

7 As described, post at page 16, the defense submitted evidence that

defendant had owned a black BMW, but had sold it before the night of the

killings. As noted ante at footnote 5, Linton and Cyprian testified that defendant

drove a Mercedes 190 on the night of the murders.

8 This testimony was inconsistent with the fact the Blazer containing the

victims‘ bodies was found at the scene, and with the testimony of Linton and

Cyprian.

9

car. They drove to defendant‘s house, where they removed their bloody clothing,

which they placed in a bag that they gave to defendant‘s girlfriend (later wife)

Monique Williams, who took the bag away in her car to dispose of it. Defendant

and Cyprian then drove in defendant‘s car, the Mercedes 190, to a motel in Long

Beach, where they stayed the night. The next day, defendant sold the Mercedes.

Monique drove them to buy new clothing and took them to a Travelodge where

defendant arranged to buy tickets for a flight to New York.9 Monique brought

suitcases and drove them to the airport, where defendant and Cyprian departed for

New York. In New York, they registered at the Hotel Stanford as Michael and

Mark Cole. After two or three days they moved to another hotel down the street.

After another two days, they left New York. Defendant went to the airport and

flew to an undisclosed destination, while Cyprian took a Greyhound bus to Las

Vegas. Defendant and Cyprian eventually met in Las Vegas along with their

respective girlfriends. The two couples spent two or three days together there.

Cyprian returned to Los Angeles on January 14 or 15. Defendant returned to Los

Angeles by January 17.

g. Defendant’s Attempts to Fabricate an Alibi

Raymond Valdez and his girlfriend Kathleen Matuzak testified about

defendant‘s efforts to get them to fabricate an alibi for him for the night of the

killings. In January 1990, Valdez lived with Matuzak in an apartment complex in

Wilmington. By mid-January, defendant and Monique had moved into the

complex, and Valdez had become acquainted with defendant; they frequently

9 The prosecution introduced a registration card for this Travelodge dated

January 3, 1990, and signed by defendant. A handwriting expert confirmed that it

was defendant‘s signature.

10

played pool at the apartment recreational center. Valdez and Matuzak testified

they initially knew defendant as ―Patrick,‖ and later as ―George.‖ Valdez bought

marijuana from defendant. Defendant offered Valdez $1,500 and a substantial

amount of marijuana to come to court and testify that he was with defendant on

January 2, 1990 (the night of the killings). Defendant made the same offer to

Matuzak and to another pair of neighbors. Valdez, however, had not even known

defendant on January 2, 1990.

Valdez initially agreed because he believed defendant when he said he had

been framed for the crime by a friend. After defendant was arrested, Monique

Williams frequently visited Valdez and Matuzak and talked to them about getting

their stories ―right.‖ Valdez also received about six telephone calls from

defendant while he was in jail expressing concern that Valdez and Matuzak get

their stories straight. At one point during this period, three African-American

males, who Valdez thought were Rollin 60s10 gang members, came to Valdez‘s

apartment late at night and asked Valdez whether he was still going to testify for

defendant. Defendant had told Valdez that he was a Rollin 60s gang member.

The visit made Valdez fear for his and Matuzak‘s lives. Valdez was eventually

evicted from the Wilmington apartment complex for failure to pay rent. In the

week before Valdez was to testify at defendant‘s trial, Monique ran into Valdez in

his new neighborhood and inquired whether he was still planning to testify for

defendant.11

10 Various forms of gang names are extant, and we conform to the record

throughout this opinion.

11 As specified later in the trial, this incident took place at a liquor store in

Harbor City on the third day of defendant‘s trial. In her testimony for the defense,

Monique denied seeing Valdez on that day.

11

h. Testimony About the Pager Found at the Crime Scene

The prosecution contended that the pager found at the crime scene belonged

to defendant. To prove this, the prosecution called Deitrich Francheska Pack, an

employee of Delcomber Communications, the store that sold and provided service

for the pager. Pack personally knew both defendant and defendant‘s girlfriend

Monique Williams, with whom she had attended high school. Pack knew Linton

because she had dated his cousin. Pack testified that defendant and Linton came

to the Delcomber store sometime in 1989. She identified a Delcomber‘s contract

for the purchase of a Panasonic Vanguard pager filled out by ―Patrick Cole‖ and

dated October 30, 1989. The model and serial numbers of the pager found at the

crime scene matched this contract. Pack had not, however, personally sold that

pager. At some point after defendant‘s arrest, Monique called Pack to ask her

whether she could locate and destroy the Delcomber file on ―Patrick Cole‖ in

return for $100. Pack said she did not think she could do that, and had no further

contact with Monique.

i. Monique Williams’s Testimony for the Prosecution

Monique Williams was defendant‘s girlfriend at the time of the crime and

married him after his arrest. Although defendant had many tattoos on his body

referring to the Rollin 60s gang, Monique testified that, since first meeting him at

the end of 1988, she had never known him to be a gang member. She denied that

defendant ever owned any guns, although she also stated that defendant told her he

lent Linton a gun on the night of January 2, 1990 (the night of the killings). She

maintained that defendant was constantly in her company from Christmas Eve

1989, through mid-January 1990 (including the time of the killings) and had never

12

left her presence longer than the time it took to get something from the store.12

She testified that, on January 3, 1990 (the day after the killings), Cyprian came to

their house and defendant asked her to drive Cyprian to the airport. Monique,

defendant, and Cyprian first stopped at a hotel where Cyprian picked up a suitcase.

Monique testified that she dropped Cyprian at the airport, but defendant stayed

with her in Los Angeles through January 8, 1990.13 She testified that on

January 9, 1990, she and defendant travelled to Las Vegas by Greyhound bus and

stayed there through January 15, 1990. While in Las Vegas, they saw Cyprian and

his girlfriend. Upon returning to Los Angeles, they moved into the apartment

complex in Wilmington on January 20, 1990. She admitted to speaking with

Raymond Valdez and Kathleen Matuzak about testifying falsely on defendant‘s

behalf. She denied, however, asking Deitrich Pack at Delcomber Communications

to destroy the paperwork on a pager.

j. Telephone Records

In order to further link the pager found at the crime scene with defendant, the

prosecution introduced telephone records showing that numerous phone calls were

placed to the pager from Monique Williams‘s parents‘ house between

December 1989 and January 3, 1990. The prosecution also presented phone

records to connect defendant to the victims. Records showed that, on January 2,

1990 (the day of the killings), three calls were placed from defendant‘s house to

12 Her testimony was thus contrary to that of several witnesses who testified

that defendant was present at the Spring Street house on the night of the murders.

13 Her testimony was thus contrary to Cyprian‘s testimony that defendant

checked in at a Travelodge with him and they stayed there the night before they

both flew to New York. As noted above, the prosecution admitted into evidence a

registration card for the Travelodge for January 3, 1990, signed by defendant.

13

A.R.A. Automotive Accessories, where the victims, Barron and Thomas, worked.

Two calls were made in the morning, and one in the afternoon. Phone records also

showed that, on the afternoon of the same day, one phone call was placed from

A.R.A. to defendant‘s house.

k. Condition of the Bodies

A medical examiner testified that Thomas died from two gunshot wounds to

the upper right side of his head. The presence of soot or powder burns indicated

the muzzle of the gun had been pressed against the skin when it was fired. Barron

had likewise died from two contact wounds, one behind the left ear and one in the

chest.

l. Gun Evidence

Police investigators discovered two guns in the upstairs apartment where the

killings occurred: a .38-caliber Smith & Wesson revolver, and a .30-caliber

carbine rifle. A third gun, a .380-caliber Titan automatic pistol, was found in the

garage.14 The prosecution theory was that the .38-caliber Smith & Wesson

revolver was the murder weapon.

A police investigator observed blood spatters on the .38-caliber Smith &

Wesson revolver, which were evident in a photograph of the gun taken at the

crime scene. These spatters were consistent with blood being blown back in the

opposite direction of the trajectory of a bullet. A firearms examiner analyzed the

projectiles retrieved from the bodies of both victims and determined they were

14 These are the three guns that Linton testified that defendant took from his

home. A fourth gun, a .30-caliber Röhm revolver, was found in Ernie Pierre‘s

downstairs apartment.

14

fired from either a .38 Special or a .357 Magnum revolver.15 The projectiles

recovered from the bodies had markings consistent with the .38-caliber Smith &

Wesson revolver found at the crime scene. The examiner, however, could not

conclusively determine that it was the weapon that fired the bullets because the

projectiles were damaged.

m. Fingerprints

Defendant‘s fingerprint was found on the outside driver‘s side mirror of

Linton‘s Blazer, which police discovered parked in the garage with the bodies of

the two victims in the backseat. Defendant‘s fingerprints were found on the base

of a telephone in the apartment where the shootings took place. His fingerprint

was also found on a cabinet in the apartment. Fingerprints of Linton, Cyprian, and

Lee also were found at the crime scene.

2. Defense Case

The defense contended through various witnesses, except Lee, that the

defendant was not present that night at the scene and that defendant did not

commit any of the charged crimes.

a. Dino Lee

The defense called Dino Lee, the third of defendant‘s accomplices. Lee had

not testified for the prosecution. Lee‘s testimony, however, hurt rather than

helped the defense case. Lee testified that he saw defendant shoot Barron and

15 As the examiner testified, one cannot differentiate between these two types

of guns when one has only projectiles and no cartridges for analysis. Both guns

use the same type of projectiles, although each uses a different (and incompatible)

type of cartridge.

15

Thomas.16 Lee‘s account of the evening was substantially similar to the testimony

of the prosecution witnesses Linton and Cyprian.

b. Detective Herrera

The defense called Detective Herrera, who investigated the crimes and who

had testified for the prosecution on various details of the crime scene. Herrera

testified that defendant phoned the police and voluntarily surrendered to them on

February 8, 1990.

c. Monique Williams

Monique Williams‘s defense testimony largely repeated her prosecution

testimony, namely, that she had never seen defendant with guns and had no

knowledge of his participation in any criminal activities. Additionally, she

testified defendant had sold his black BMW before Christmas 1989 (that is, before

the killings in January 1990). The defense introduced a Department of Motor

Vehicles record that showed defendant had transferred title to the BMW on

December 21, 1989. Monique testified defendant had never owned or driven a

Mercedes 190. She also specifically denied that, on the third day of defendant‘s

trial, she had approached Ray Valdez in a liquor store in Harbor City to encourage

him to testify falsely at defendant‘s trial.

16 Lee‘s initial version of the shooting differed slightly from Linton‘s. Lee

testified that defendant shot Barron twice in a row — an accidental shot followed

by an intentional shot — before he went over to shoot Thomas twice. But upon

further questioning, Lee gave the same sequence of shots as in Linton‘s testimony;

that is, defendant first accidentally shot Barron, then went over and shot Thomas

twice, then returned to shoot Barron a second time.

16

d. Ingrid Tubbs

Ingrid Tubbs was Monique Williams‘s aunt. Tubbs testified that, during the

first week of defendant‘s trial, Monique was staying at the home of Monique‘s

parents in Gardena and babysitting Tubbs‘s children. Tubbs‘s testimony was

intended to support Monique‘s denial that she had approached Ray Valdez in

Harbor City on the third day of defendant‘s trial.

e. Stipulation

The parties stipulated that, before testifying at defendant‘s trial, Linton,

Cyprian, and Lee had pleaded guilty to second degree murder on January 23,

1991, January 24, 1991, and July 9, 1990, respectively.

B. Penalty Phase

1. Prosecution Case

The prosecution presented evidence of four incidents in aggravation under

section 190.3, factor (b): three assaults and the possession of a firearm.

a. Assault on Kenneth Moore

Latrece Abraham and Kermit Richmond testified that on May 28, 1983, a

group of boys about 13 to 15 years old from the 59 Hoover Crips gang attacked a

group of bicycle riders about the same age, including Kenneth Moore. Gang

member Eddie Jackson then shot and killed Moore. Abraham testified that

defendant was among the gang members who hit and kicked Moore. A police

detective testifying as a gang expert stated that defendant was a member of the 59

Hoover Crips gang at the time of the assault on Moore. The prosecutor stipulated

that defendant was charged with and convicted of misdemeanor assault with a

deadly weapon, namely, fists and feet. He further stipulated that neither the

charge nor the conviction involved possession or personal use of a firearm.

17

b. Shots Fired at Officer Sims

Police Officer Carl Sims testified that, on December 3, 1983, shots were fired

at him. He was in full uniform standing outside his squad car when the gunfire

erupted from behind him. He saw an African-American male standing behind a

palm tree 50 to 75 feet away facing in the direction the shots were fired. When

Officer Sims aimed a shotgun at him, the suspect ran. Sims followed the suspect,

who joined a group of 10 to 11 individuals dressed in gang attire who were

attempting to get into a flatbed pickup truck. Sims ordered all of them to raise

their hands and they were taken into custody. Sims identified defendant as the

suspect behind the palm tree whom he followed to the truck. A search of the truck

revealed a fully loaded .38-caliber Smith & Wesson revolver. A search of the

defendant revealed that he had six rounds of live .38-caliber ammunition in his left

front trouser pocket. The prosecutor stipulated that no criminal charges were ever

filed against defendant in connection with this incident.

c. Robbery and Assault on Mona Thomas and her Father

Mona Thomas testified that on the evening of July 7, 1985, she and her father

were assaulted and robbed by a group of men when their car broke down. Around

30 men surrounded the car carrying guns. Someone threw a brick at the window.

Another person demanded money. The group pulled Thomas and her father from

the car. They were both beaten and bloodied.

Police Officer Michael Daly was on patrol and came across Mona Thomas

and her father immediately after the assault. She told the officer that the group

that had just assaulted her was standing in front of an apartment building about

100 feet away. As the officer approached the group, it began to disperse, but the

officer managed to detain several individuals, including defendant, whom Officer

Daly identified in court. At the scene, Mona Thomas stated that the individuals

that Officer Daly had detained were the ones who had beaten and robbed her and

18

her father. Mona Thomas was unable to identify defendant in court or identify

him from an arrest photograph from the incident.

d. Possession of Concealed Weapon

Detective Michael Bowers testified that, on December 7, 1985, he conducted

a traffic stop of defendant‘s car. He found a Smith & Wesson .38-caliber revolver

containing five live rounds inside the car, between the console and the driver‘s

seat. He arrested defendant for possession of a concealed weapon, but (as

stipulated by the prosecutor) no criminal charges were ever filed.

2. Defense Case

The defense case in mitigation presented the testimony of defendant‘s mother

and his two sisters.

Betty Williams Hill and Edna Williams Vickers, defendant‘s two sisters,

testified about defendant‘s family background, which Betty described as ―upper

middle class or upper class.‖17 Defendant‘s parents, Jessie and Charles Williams,

took in defendant as a foster child when he was about one year old, and adopted

him at age three or four. The Williams family later became foster parents for

several mentally disabled children. Defendant was friendly with these children

and would help his parents care for them. Defendant was respectful toward his

parents, and helped care for his aunt when she was ill with cancer. Defendant was

the father of five children, ranging in age at the time of trial from two to six years

of age.18 His sister described him as a ―faithful father.‖ Both sisters stated they

were unaware of defendant‘s previous arrests and gang-related activities.

17 Defendant‘s mother was a real estate broker. The house he grew up in had

six bedrooms, five baths, a den, and a living room.

18 At the time of trial, defendant was 28 years old.

19

Defendant‘s mother, Jessie Mae Williams, presented a profile of defendant

similar to that given by his two sisters. She testified that defendant had no

disciplinary problems at school, but that he dropped out of high school around the

10th or 11th grade. She stated she was unaware of defendant‘s previous arrests

and gang activity, although she did recall a time in the early 1980s when he was

incarcerated. During cross-examination, she stated she did not remember any

incidents in which the police had returned defendant to her custody after he was

arrested for criminal activity as a juvenile.

3. Rebuttal

The prosecutor entered the following stipulation: On July 2, 1980, defendant

was arrested for possession of a deadly weapon. Because defendant was a

juvenile, he was booked and transported home, where the arresting officer turned

over custody of defendant to his mother and advised her of the nature of the arrest.

II. DISCUSSION

A. Pretrial Issues

1. Asserted Batson/Wheeler Error

Trial counsel brought three separate motions under Batson v. Kentucky

(1986) 476 U.S. 79, 84-89 and People v. Wheeler (1978) 22 Cal.3d 258, 276-277

(Wheeler) in connection with the prosecutor‘s use of peremptory challenges

against five African-American women prospective jurors. The three-stage

procedure of a Batson/Wheeler motion is now familiar. ―First, the defendant must

make out a prima facie case ‗by showing that the totality of the relevant facts gives

rise to an inference of discriminatory purpose.‘ [Citations.] Second, once the

defendant has made out a prima facie case, the ‗burden shifts to the State to

explain adequately the racial exclusion‘ by offering permissible race-neutral

justifications for the strikes. [Citations.] Third, ‗[i]f a race-neutral explanation is

20

tendered, the trial court must then decide . . . whether the opponent of the strike

has proved purposeful racial discrimination.‘ ‖ (Johnson v. California (2005) 545

U.S. 162, 168, fn. omitted.)

The trial court denied all three Batson/Wheeler motions at the third stage.

Defendant contends the trial court erred. ―Review of a trial court‘s denial of a

Wheeler/Batson motion is deferential, examining only whether substantial

evidence supports its conclusions.‖ (People v. Lenix (2008) 44 Cal.4th 602, 613.)

―We presume that a prosecutor uses peremptory challenges in a constitutional

manner and give great deference to the trial court‘s ability to distinguish bona fide

reasons from sham excuses.‖ (People v. Burgener (2003) 29 Cal.4th 833, 864.)

As long as the court ―makes a sincere and reasoned effort to evaluate the

nondiscriminatory justifications offered, its conclusions are entitled to deference

on appeal.‖ (Ibid.) As explained below, we discern no error in the trial court‘s

denial of the Batson/Wheeler motions.

a. Background

(1) First Batson/Wheeler Motion

The first motion was brought after the prosecutor had exercised peremptory

challenges against three African-American women prospective jurors: H. R.,

T. C., and P. C. The prosecutor offered to justify the excusals, and the trial court

requested him to do so, remarking that ―I have to say that I did have some of them

marked that I expected to be exercised on.‖ The prosecutor explained the excusals

as follows: He employed a ratings system by which he rated the reluctance of a

prospective juror toward answering questions he had posed about the death

21

penalty, which he considered reflective of reluctance to impose that penalty.19

During individual questioning, he had rated all three prospective jurors as very

reluctant in terms of their ability to impose the death penalty. ―They would either

say, well, I think I might be able to, or I could, but their reluctance to impose it

was evident not only from the answers they gave [but also] from the time that it

took them to respond to the question, their general demeanor in answering the

questions, and my impression from each of them.‖ The prosecutor‘s general

impression from their answers was that ―in spite of what they said, they wouldn‘t

have the ability to impose it when it actually came down to it.‖ Trial counsel

noted that, of the 40 prospective jurors called to the box so far, only four were

African-American, and the prosecutor had dismissed three of them (all of whom

were women), leaving one African-American male on the jury. The trial court

denied the Batson/Wheeler motion.

(2) Second Batson/Wheeler Motion

Trial counsel made a second Batson/Wheeler motion when the prosecutor

exercised a peremptory challenge against Prospective Juror R. P., an African-

American woman. Trial counsel noted that four out of the six African-Americans

called to the box had been peremptorily challenged, and all four of them had been

women. The trial court called on the prosecutor to state his reasons. The

prosecutor said that, from R. P.‘s initial written questionnaire, he had rated her a

―two plus‖ on his reluctance scale, but downgraded her to a 1 after hearing her

voir dire responses. The prosecutor noted that he had written next to her name on

his list, ―ambivalent, no opinions,‖ which he stated was distinctive because he

19 On a scale of 1 to 5 (with 1 showing the most reluctance) he rated H. R. a

one, T. C. a 3 minus, and P. C. a 2 minus.

22

usually did not write anything next to the names. He read to the court three of

R. P.‘s voir dire responses that had given him the impression that she would be

hesitant to impose the death penalty.20

In response, trial counsel argued that R. P.‘s answers to other questions

indicated she was willing to impose the death penalty. The prosecutor replied that

his impression ―had a lot more to do with not what she said but how I read what

she was saying from being present in court with her and observing her demeanor

and the way she answered questions. It clearly isn‘t from the words that are

written down. It was my general impression from the way she answered the

questions, not what she said.‖

The trial court denied the motion. It stated that, though it had taken notes

relating to the demeanor and manner of responding of some of the prospective

jurors, it did not have any notes on R. P., but would accept the prosecutor‘s

explanation.

(3) Third Batson/Wheeler Motion

Trial counsel made a third Batson/Wheeler motion when the prosecutor

peremptorily challenged Prospective Juror R. J., an African-American woman.

Trial counsel observed that five out of six African-American prospective jurors

had thus far been challenged and noted that R. J. was on the panel at a time when

the prosecutor had accepted it. The prosecutor replied that he had accepted this

prospective juror because ―the [jury] composition was somewhat satisfactory to

me,‖ but that he reviewed his notes, and had seen that he had rated her as very

reluctant to impose the death penalty. The prosecutor‘s impression, which he

20 These voir dire responses are quoted in the part concerning R. P., post, at

pages 30-33.

23

stated was formed not only from her answers to the questions but from her

demeanor and the fashion in which she answered them, was that she would not be

able to impose the death penalty in any case.

The trial court denied the Batson/Wheeler motion. It did not recall R. J.‘s

responses and, as observed earlier, had stopped taking notes by the time she was

questioned. The trial court stated that it could only go by what the prosecutor was

saying, and it accepted the prosecutor‘s explanation.

Defense counsel then asked the trial court ―to respond to the numbers,‖

arguing that they ―speak for themselves.‖ The trial court replied, ―I have to say in

my other death penalty cases I have found that the black women are very reluctant

to impose the death penalty; they find it very difficult no matter what it is.‖ The

trial court then made clear, however, that it was not making its ruling based on that

observation.

The final composition of the jury, which the prosecutor put on the record,

was seven Caucasians and five African-Americans, of whom four were men and

one was a woman.

b. Analysis

(1) Asserted Bias of Trial Court

Defendant acknowledges the ―great deference‖ an appellate court gives to the

trial court‘s ability to distinguish bona fide reasons from ―sham excuses.‖ (People

v. Burgener, supra, 29 Cal.4th at p. 864.) Defendant argues, however, that no

deference should be given here to the trial court‘s evaluation of the prosecutor‘s

professed race-neutral reasons because, he asserts, the trial court itself was biased

against African-American women, as indicated by its comment quoted directly

above.

24

The trial court‘s observation came in specific response to trial counsel‘s

question about the numbers of such peremptories at that point in voir dire. The

court clarified that its general observation did not influence its ruling. The trial

court quickly made clear that its observation played no role in its ruling on the

Batson/Wheeler motion: ―I am just making a little point. I just wanted to tell you

my observation that I have seen this before and I can understand why. That‘s

why. But I am not making my ruling based on that.‖ Further, it was an isolated

comment, and the record as a whole does not support defendant‘s contention that

the trial court was biased against African-American women. We have no reason

to doubt that the trial court made its rulings on the Batson/Wheeler motions based

on the evidence before it. On this record, we perceive no bias on the trial court‘s

part, and we therefore grant its rulings their usual deference.

(2) Adequacy of the Trial Court’s Review of the Prosecutor’s

Race-neutral Reasons

Defendant contends the trial court failed to adequately clarify or probe the

prosecutor‘s explanations about the demeanor of the prospective jurors. In

particular, he points to the two jurors challenged in the second and third

Batson/Wheeler motions, R. P. and R. J., as to whom the trial court indicated it

had not taken notes and had no independent recollection at the time of those

Batson/Wheeler motions.

―Although we generally ‗accord great deference to the trial court‘s ruling that

a particular reason is genuine,‘ we do so only when the trial court has made a

sincere and reasoned attempt to evaluate each stated reason as applied to each

challenged juror.‖ (People v. Silva (2001) 25 Cal.4th 345, 385-386.) ―When the

prosecutor‘s stated reasons are both inherently plausible and supported by the

record, the trial court need not question the prosecutor or make detailed findings.

But when the prosecutor‘s stated reasons are either unsupported by the record,

25

inherently implausible, or both, more is required of the trial court than a global

finding that the reasons appear sufficient.‖ (Id. at p. 386.) However, we also have

stated that a trial court is not required ―to make explicit and detailed findings for

the record in every instance in which the court determines to credit a prosecutor‘s

demeanor-based reasons for exercising a peremptory challenge.‖ (People v.

Reynoso (2003) 31 Cal.4th 903, 929.) With these principles in mind, we will

review the record below of the five challenged prospective jurors.21

The prosecutor‘s stated race-neutral reason for striking the challenged

prospective jurors — reluctance to impose the death penalty — was not

―inherently implausible.‖ As we have stated, ―[a] prospective juror‘s views about

the death penalty are a permissible race- and group-neutral basis for exercising a

peremptory challenge in a capital case.‖ (People v. McDermott (2002) 28 Cal.4th

946, 970-971.) We therefore examine the record to see whether it supports the

prosecutor‘s stated race-neutral reason that these prospective jurors appeared

reluctant to impose the death penalty. The prosecutor‘s stated reason has both a

semantic aspect and a demeanor aspect, that is, a prospective juror‘s hesitancy to

impose the death penalty can be reflected in both what the prospective juror said

and how he or she said it. At certain points during his explanation the prosecutor

emphasized the demeanor aspect over the semantic aspect. As we discuss below,

the trial court stated that it did not recollect the demeanor of two of the challenged

prospective jurors, R. P. and R. J. However, as we further discuss below, the

prosecutor based his explanation on both words and demeanor. In reviewing the

21 Justice Liu‘s dissent acknowledges that the approach the majority opinion

follows is based on our precedents as expressed in People v. Silva, supra, 25

Cal.4th at pages 385-386, and People v. Reynoso, supra, 31 Cal.4th at page 929.

(Dis. opn. of Liu, J., post, at pp. 21-22.) Those decisions guide us until the United

States Supreme Court articulates a contrary rule.

26

correctness of a trial court‘s ruling on a Batson/Wheeler motion, we consider ―all

the circumstances of the case.‖ (People v. Reynoso, supra, 31 Cal.4th at p. 908,

citing Wheeler, supra, 22 Cal.3d at p. 280.) The circumstances of the case include

what the jurors said and wrote in connection with voir dire and the reasonable

inferences that can be drawn from those statements. We conclude that the record

supports the prosecutor‘s stated reasons for exercising the peremptory challenges.

(i) Prospective Juror H. R.

In her jury questionnaire, in response to a question about her general feelings

concerning the death penalty, Prospective Juror H. R. wrote: ―I feel the death

penalty should only be enforced only under certain hardcore murders.‖ As to

whether the death penalty is used too often, she wrote: ―I really don‘t know of a

case in which it was used.‖ As to whether California should have the death

penalty today, she marked ―yes,‖ and as to why, she wrote: ―Under certain

circumstances.‖ As to what she saw as the purpose of the death penalty, she

wrote: ―No comment.‖ As to her attitude toward the proposition that all

intentional unlawful and non-self-defense killings should receive the death

penalty, she circled ―disagree somewhat,‖ and wrote: ―Not everyone, but hardcore

murders.‖ As to whether she believed that life in prison without the possibility of

parole was a more severe punishment than the death penalty, she circled ―Don‘t

Know.‖

When questioned during voir dire what she meant by ―hardcore murders,‖

she replied: ―You know, like cruel murders, where they [mutilate] bodies and . . .

burn people up for no reason.‖ Asked by the prosecutor whether these were the

only types of murders as to which she personally would be able to impose the

death penalty, she answered that she was not sure, but they were the first ones that

came to mind when she thought of the death penalty. When asked further about

27

what she meant by the term ―hardcore murders,‖ she answered: ―I mean burning

of bodies and mutilating body parts, I would probably think of that, but besides

that I really can’t say what other reasons I would consider the death penalty.‖

(Italics added.)

The record supports the prosecutor‘s stated race-neutral reason for excusing

H. R. (People v. Silva, supra, 25 Cal.4th at p. 386.) Even on a cold record,

H. R.‘s comments suggest some degree of ambivalence toward the imposition of

the death penalty, especially her comments about what kind of ―hardcore murders‖

came to mind as appropriate for the death penalty.

(ii) Prospective Juror T. C.

T. C.‘s responses on the written questionnaire generally indicated willingness

to impose the death penalty. However, she answered ―yes‖ to the question

whether she would, at the penalty phase, vote for life in prison without the

possibility of parole regardless of the evidence. During voir dire, she said she had

misunderstood this question, and that she would answer no. She answered ―yes‖

to the question whether she believed that life in prison without the possibility of

parole was a more severe penalty than the death penalty. During voir dire she also

clarified that she actually believed the death penalty was more severe than life in

prison without the possibility of parole.

T. C.‘s voir dire answers reflect equivocation and hesitancy. Defense

counsel asked her: ―Some people may say the death penalty is a good thing but

wouldn‘t want to be a juror in that situation where they actually vote for it. Are

you in that particular situation?‖ T. C. answered: ―No, I wouldn‘t want to vote

for it — I mean, I would vote for it, but if, like I was on the jury, I wouldn‘t want

to put myself in that predicament to vote for a death penalty if I were a juror.‖

This lead to the following exchange:

28

―Defense counsel: If you are on this jury you‘re in that predicament. Could

you impose the death penalty.

―T. C.: I could but I wouldn‘t.

―Defense counsel: You wouldn‘t under any circumstances.

―T. C.: No.

―Defense counsel: So if you are a juror in this case you wouldn‘t impose the

death penalty under any circumstances?

―T. C.: Well, like I said, like I told her in certain situations but I can‘t say I

would just vote for the death penalty. But in certain situations.‖

The prosecutor asked T. C. whether she thought she was the type of juror

who could actually impose the death penalty if it was justified by everything she

had heard. Her answer again reflects equivocation and hesitancy: ―If I heard

everything in the evidence and if I feel that I opposed it and then I changed my

mind on it, I would overrule it, you know. Like say if I heard more evidence and I

say I was wrong in thinking this and I heard a little more and I decide that the

death penalty shouldn‘t be then I would overrule it.‖

The record supports the prosecutor‘s stated race-neutral reason for excusing

T. C. (People v. Silva, supra, 25 Cal.4th at p. 386.)

(iii) Prospective Juror P. C.

In her jury questionnaire, in response to a question about her general feelings

about the death penalty, P. C. wrote: ―It‘s fair in some cases.‖ As to whether

California should have a death penalty, she wrote: ―Have not decided as of yet.‖

As to whether every intentional unlawful and non-self-defense killing should

receive the death penalty, she circled ―agree somewhat,‖ and wrote as an

explanation: ―Every case has different circumstances.‖

29

In voir dire, when the prosecutor asked about her response that she had not

decided as yet regarding the death penalty, she answered: ―I haven‘t decided. I

really don‘t know.‖ Asked how she would vote on a ballot initiative determining

whether California should have the death penalty, she answered: ―I don‘t know if

I would.‖ Asked whether she would include the death penalty if she were the

hypothetical ruler of an island who determined the laws, she answered: ―I think I

would, yeah.‖ Asked whether, if the circumstances warranted it and after hearing

all the evidence, she could see herself imposing the death penalty on another

person, she answered: ―I think I could.‖

The record supports the prosecutor‘s stated race-neutral reason for excusing

P. C. (People v. Silva, supra, 25 Cal.4th at p. 386.) Even on a cold record, P. C.‘s

comments suggest some ambivalence and equivocation toward imposing the death

penalty, such as her indecision about whether California should have a death

penalty, and the qualification of her answers with the phrase ―I think.‖

(iv) Prospective Juror R. P.

R. P.‘s written questionnaire generally indicated a willingness to impose the

death penalty. As to her general feelings regarding the death penalty, she wrote:

―It is sometimes necessary.‖ Some of her voir dire answers, however, suggest the

equivocation and hesitancy described by the prosecutor in justifying the use of a

peremptory challenge against her. The following exchange, which the prosecutor

quoted in substantial part during the discussion of the second Batson/Wheeler

motion, reflects this:

―Prosecutor: Do you think the death penalty serves a deterrent value in our

society?

―R. P.: It‘s possible that it might. As I said it would depend on the case. It‘s

not something that I could say yes or no on without — just a broad statement.

30

―Prosecutor: I just want your feelings. Do you think the death penalty serves

a deterrent value to yourself? Do you think it does?

―R. P.: I hadn’t really pinned it down.

―Prosecutor: You don‘t have feelings one way or the other as to whether it

serves a deterrent value or not?

―R. P.: Sometimes it would and sometimes it would not. With some people it

would and with some people it would not.

―Prosecutor: In terms of your own feelings on the death penalty, you can‘t

give me any more guidance on how you feel about it other than you haven‘t really

thought about it?

―R. P.: No, I really haven’t. It is just not something that I would — could

say yes, it would, or no, it wouldn’t, because I hadn’t thought of it in that terms

seriously.‖ (Italics added.)

Based on R. P.‘s statements, we conclude the record supports the

prosecutor‘s stated race-neutral reason for excusing R. P. (People v. Silva, supra,

25 Cal.4th at p. 386.)

Defendant contends, however, that, even though the prosecutor referred in

detail to the voir dire responses quoted above, the prosecutor focused on R. P.‘s

demeanor, rather than the statements themselves. Indeed at one point, the

prosecutor stated: ―It clearly isn‘t from the words that are written down. It was

my general impression from the way she answered the questions, not what she

said.‖ Defendant contends therefore that the prosecutor‘s stated reason stands or

falls on R. P.‘s demeanor alone. Defendant acknowledges that an appellate court

normally grants great deference to a trial court‘s evaluations of demeanor.

Defendant notes, however, that the trial court stated it had stopped taking notes on

the prospective jurors after a certain point and had no notes on R. P.

Consequently, defendant contends we can grant no deference to the trial court‘s

31

ruling because it was based entirely on the demeanor of a prospective juror that it

admitted it could not recall.

We reject both premises of defendant‘s argument here. First, we reject the

contention that the prosecutor‘s stated reason of R. P.‘s hesitancy to impose the

death penalty stands or falls on her demeanor alone. As noted above, the

prosecutor quoted and referred to R. P.‘s voir dire answers. In the course of a

series of back- and forth exchanges with defense counsel, the prosecutor

emphasized the demeanor aspect and stated that it had more weight than R. P.‘s

words alone. But such remarks did not represent that he was withdrawing any

reference to the words and was depending on demeanor alone. We are not

therefore precluded from considering R. P.‘s words and the reasonable inferences

that can be drawn from them.

Second, the trial court‘s apparent lack of personal recollection of R. P.‘s

demeanor does not remove any and all basis for deference to the trial court‘s

ruling on the Batson/Wheeler motion. (Thaler v. Haynes (2010) 559 U.S. 43, __

[130 S.Ct. 1171, 1175].) Although the United States Supreme Court has stressed

the importance of a trial court‘s firsthand observation of the prospective juror‘s

demeanor (Snyder v. Louisiana (2008) 552 U.S. 472, 477), the high court has,

however, also stated that ―the best evidence of the intent of the attorney exercising

a strike is often that attorney‘s demeanor.‖ (Thaler v. Haynes, supra, 559 U.S. at

p. __ [130 S.Ct. at p. 1175].) Similarly, this court has listed contemporaneous

observations of voir dire as one among several important factors by which the trial

court can assess the credibility of the prosecutor‘s explanations: ― ‗Credibility can

be measured by, among other factors, the prosecutor‘s demeanor; by how

reasonable, or how improbable, the explanations are; and by whether the proffered

rationale has some basis in accepted trial strategy.‘ (Miller-El [v. Cockrell (2003)

537 U.S. 322,] 339.) In assessing credibility, the court draws upon its

32

contemporaneous observations of the voir dire. It may also rely on the court‘s

own experiences as a lawyer and bench officer in the community, and even the

common practices of the advocate and the office that employs him or her.‖

(People v. Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.) Even though we find

the prosecutor‘s stated race-neutral reason adequately supported by R. P.‘s

statements alone, we do not discount the trial court‘s ability to assess the

credibility of the prosecutor, even absent the trial court‘s personal recollection of

R. P.‘s demeanor.

(v) Prospective Juror R. J.

The ruling on the Batson/Wheeler motion as to R. J. raises issues similar to

those of R. P., just discussed. The prosecutor explained that his peremptory as to

R. J. was based on his impression that she would be unable to impose the death

penalty because of her answers and the demeanor and fashion in which she

answered his questions. The trial court stated that it did not recall the responses of

this prospective juror. We therefore review R. J.‘s voir dire statements to ascertain

whether they support the prosecutor‘s stated reason and conclude that they do.

R. J.‘s written questionnaire generally expressed support for the death

penalty, but contained qualifying language that can reasonably be interpreted as

showing equivocation or hesitation. As to her general feelings regarding the death

penalty, R. J. wrote: ―Capital punishment has never been a deterrent to crime but

it is necessary in our society because so many people think it is.‖ (Italics added.)

She marked ―yes‖ as to whether she felt that California should have the death

penalty today, and wrote as an explanation: ―Even though it would take a long

time between sentencing and actual execution, the penalty would be somewhat of

a solace to the friends, family of the victim.‖ (Italics added.) During voir dire, she

clarified that she did not think that capital punishment was a deterrent to crime

33

because ―there are so many people in jail for capital crimes.‖ As to whether every

intentional unlawful and non-self-defense killing should receive the death penalty,

she circled ―agree somewhat,‖ and wrote as an explanation: ―I just don’t strongly

agree or disagree so [‗]somewhat[‘] comes closest to any answer I could give at

this point.‖ (Italics added.) She marked ―don‘t know‖ in response to the question

whether she believed that life in prison without the possibility of parole was a

more severe punishment than the death penalty.

Finally, we note the fact that the prosecutor had previously accepted three

panels with R. J. on each of them, a fact that was raised during the discussion of

the Batson/Wheeler motion. Although this is not a conclusive factor, we have

stated that ―the passing of certain jurors may be an indication of the prosecutor‘s

good faith in exercising his peremptories, and may be an appropriate factor for the

trial judge to consider in ruling on a Wheeler objection.‖ (People v. Snow (1987)

44 Cal.3d 216, 225.)

(vi) Prospective Juror D. J.

As just discussed, we conclude that the record supports the prosecutor‘s

stated race-neutral reason for peremptorily challenging R. J. The record, however,

also presents the possibility that the prosecutor mistook R. J. for another

prospective juror, D. J., also an African-American woman, who happened to have

the same last name. Based on our review of the entire record, we conclude that

this act of mistaken identity is the most probable explanation of the events

disclosed in the record and that there was no violation of Batson/Wheeler.

(a) Background

As discussed, post, in part D., following defendant‘s conviction and sentence

of death, defense counsel brought a motion for new trial, the central claim of

which was ineffective assistance of counsel, but which also included a claim of

34

Batson/Wheeler error. In the hearing on the Batson/Wheeler portion of the new

trial motion, the trial court stated that it had not made a very good record on this

topic and asked the prosecutor to put on the record the notes he had taken during

juror voir dire, which had been alluded to during the sidebar discussions of the

Batson/Wheeler motions. The prosecutor stated he wished to incorporate all the

statements he made during the colloquy on the Batson/Wheeler motions as to why

he excused the jurors in the first place and he then went on to provide a

chronological narrative of the 16 peremptory challenges he had used, providing

the name and a description of each of the prospective jurors he had excused.

Relevant here is his description of the 14th challenge as being to D. J., ―a married

39-year-old black female.‖ No mention is made of R .J., who, according to her

jury questionnaire, was ―remarried‖ and 65 years old. D. J.‘s juror questionnaire

indeed indicates that she was ―married‖ and 39 years old. The prosecutor then

discussed the five prospective jurors who were the subjects of the Batson/Wheeler

motions. For the fifth African-American woman excused, he erroneously named

D. J., not R. J., and stated the following reasons: ―I‘ve got her responses 95

through 107, and 103 and I have a note to myself, ‗plus look at her responses to

my voir dire at the Hovey,‘ and I had made a challenge for cause so apparently I

felt that she shouldn‘t have been around even by the time we got to general voir

dire.‖

At the new trial motion hearing, the apparent discrepancy between the

prosecutor‘s discussion of D. J. as the fifth African-American woman juror

excused rather than R. J., as listed in the reporter‘s transcript, was not raised by

defense counsel or commented on by the trial court.22

22 As discussed in part D., post, defense counsel for the new trial motion was

an attorney named Douglas Otto, who had been appointed because the motion

(footnote continued on next page)

35

The record supports the prosecutor‘s representations regarding D. J. Her

responses in her written questionnaire about the death penalty (responses 95

through 107 as noted by the prosecutor) reflect opposition to the death penalty.

When asked about her general views regarding the death penalty, she wrote: ―I‘m

not for the death penalty. Life in prison is what I‘m for. I don‘t think know [sic]

one has right to take someone [sic] life. I feel if the person is guilty, they should

do there [sic] time.‖ She answered that her views were based on religious

conviction, and in response to the question whether California should have the

death penalty, she wrote: ―I believe that there [sic] time spent in prison . . . [is] all

the punishment we should be able to give. Death to me should be when God call

[sic] them home.‖ For question 103, (highlighted by the prosecutor in his notes),

which asked whether she would automatically, in every case, regardless of the

evidence, vote for the death penalty, she circled ―don‘t know,‖ and wrote in the

margin: ―I‘m against the death penalty.‖

In her individual voir dire, the prosecutor asked D. J. about her ―death to me

should be when God calls them home‖ comment. After a series of questions in

which she appeared to indicate that she would always vote for life in prison

without the possibility of parole in spite of the evidence, the prosecutor made a

(footnote continued from previous page)

asserted that trial counsel, Ronald J. LeMieux, had rendered ineffective assistance.

Otto had not been present during any of defendant‘s trial. LeMieux had also filed

a new trial motion based on Batson/Wheeler error and identified R. J. as the fifth

excused African-American woman based on the transcript. But LeMieux himself

had not been present during jury selection either. An associate attorney, Douglas

E. McCann, conducted jury selection. An additional factor that may have led to

the confusion of identities was that R. J. did not write her name in the space

provided on the first page of her juror questionnaire; she only signed the

questionnaire at the end.

36

challenge for cause. In a sidebar discussion, defense counsel argued that D. J.‘s

religious views were not necessarily incompatible with the death penalty. The

court then allowed defense counsel to engage in a series of questions to

rehabilitate D. J. The trial court asked her a final question to which D. J. stated

that she felt she could impose the death penalty if it was appropriate. The trial

court then asked her to return for general jury selection, impliedly denying the

prosecutor‘s excusal for cause.

(b) Analysis

In People v. Williams (1997) 16 Cal.4th 153, 188, a Batson/Wheeler motion

challenged the excusal of a juror whom the prosecutor stated he had excused ―in

error.‖ We found no violation of Batson/Wheeler, holding that ―a genuine

‗mistake‘ is a race-neutral reason.‖ (Id. at p. 189.) In another case, the prosecutor

gave a reason for excusing a juror, which, the prosecutor later discovered and

informed the court, was mistakenly based on information in the questionnaire of

another juror with the same last name. (People v. Phillips (2007) 147 Cal.App.4th

810, 814.) Citing our holding in Williams, the Court of Appeal found no violation

of Batson/Wheeler. (Phillips, at p. 819.)

Here, unlike Williams and Phillips, the court and the parties were never made

aware of the prosecutor‘s possible error in excusing the prospective juror. This

difference, however, does not in itself affect the determination whether the

prosecutor‘s excusal was based on a race-neutral reason. The information

disclosed at the new trial motion hearing strongly supports the race-neutral reason

the prosecutor gave at the time of the motion — hesitancy to impose the death

penalty. Therefore, assuming that the prosecutor mistakenly excused R. J. because

he thought she was D. J., there was no violation of Batson/Wheeler.

37

(3) Comparative Juror Analysis

Defendant argues that the excluded jurors addressed in the Batson/Wheeler

motions gave answers that were no more equivocal than the jurors who were

ultimately seated. Defendant contends that if the prosecutor were indeed as

concerned about equivocal answers and reluctance to impose the death penalty as

he professed to be, he would have struck some of the jurors he left on the jury,

because he had three peremptory challenges left when he accepted the jury.

As we have stated, comparative juror analysis must be considered for the first

time on appeal while reviewing third stage Batson/Wheeler claims when a

defendant relies on such evidence and the record is adequate to permit the

comparisons. (People v. Lenix, supra, 44 Cal.4th at p. 607.) But we have warned

of the inherent limitations of such evidence. ―On appellate review, a voir dire

answer sits on a page of transcript. In the trial court, however, advocates and trial

judges watch and listen as the answer is delivered. Myriad subtle nuances may

shape it, including attitude, attention, interest, body language, facial expression

and eye contact.‖ (Id. at p. 622.) ―A transcript will show that the panelists gave

similar answers: it cannot convey the different ways in which those answers were

given. Yet those differences may legitimately impact the prosecutor‘s decision to

strike or retain the prospective juror.‖ (Id. at p. 623.)

Defendant contends the seated jurors expressed as much or greater

―reluctance‖ to impose the death penalty compared with the African-American

women the prosecutor struck. Defendant reviews the comments of five of the

seated jurors and focuses on any statement that could possibly be interpreted as

showing some reservation or equivocation in imposing the death penalty. 23 The

23 Defendant points to the following:

(footnote continued on next page)

38

(footnote continued from previous page)

(1) When asked if she thought she could impose the death penalty against

defendant if the prosecutor asked her to, Seated Juror L. B. replied: ―Well, if he‘s

going to do it that doesn‘t mean I have to vote for death.‖ When asked if she had

the ability to impose the death penalty, L. B. stated: ―Yes, I think so.‖

(2) The following voir dire interchange between the prosecutor and Seated

Juror D. H.:

―Prosecutor: What do you think about being asked to sit on a jury where

ultimately if we get to the end I‘m going to stand up and look at you as a juror and

ask you to put this man here to death; what do you think about that?

―D. H.: Well, it‘s a big decision to make, but if the evidence is there and it‘s true,

if that‘s the decision that has to be made I think I can make it.

―Prosecutor: Okay, it would be a tough decision?

―D. H.: It would be. It‘s something you don‘t like to do.

―Prosecutor: Of course not. Do you think the death penalty serves a deterrent

value?

―D. H.: I think, I think so far as I am concerned, and that is about all I can answer,

I think so.‖

(3) Seated Juror W. J. gave the opinion that life in prison without the

possibility of parole was a more severe sentence than death because ―it would be

with them all the time, instead of giving them death and it would just be over with.

When asked about his feelings toward the death penalty, W. J. stated he thought it

would apply to really horrible crimes such as murder with no remorse. When

asked whether if he came to the conclusion that the death penalty was the

appropriate verdict, he would be able to impose it, he answered: ―Yes, I think so.‖

(4) Seated Juror L. S. did not think the death penalty should be imposed for

crimes of passion.

(5) Seated Juror B. H. told the court that he would prefer not to be a juror

because it caused him some discomfort. When asked his views on the death

penalty, he stated that be believed some people could be rehabilitated and others

could not but he would need to decide on a case by case basis. When asked

whether he would have the ability to impose the death penalty, he answered:

―Never having done it before, I believe I could. Without having that experience,

you know, it‘s kind of a hard thing to say, ‗yeah, I definitely will,‘ but I believe

that I could do that if that‘s what I felt was necessary.‖

39

People, in turn, point to statements by the same seated jurors indicating their

willingness to impose the death penalty.24 We are not persuaded by defendant‘s

argument. We see no instances in the cold record reflecting that the seated jurors

expressed as much or greater a reluctance to impose the death penalty as the

excluded prospective jurors.

(4) Prosecutor’s Comments on Exercising Challenges Against

Caucasian Prospective Jurors

Defendant points to comments the prosecutor made about challenging

Caucasian jurors as evidence that the prosecutor challenged the five African-

American women prospective jurors for race-based reasons. The prosecutor made

the following comments during the course of stating for the record the final racial

composition of the jury: ―First of all, I would like to indicate the last number of

challenges I exercised were against White jurors, to be replaced by Black jurors.

The reason they were exercised was, first of all, I wanted a greater mix of racial

diversification on this jury. [¶] Second, they just happened to be a couple of

Black jurors I rated very high because of their answers where they indicated they

had an ability to impose the death penalty in a particular case.‖ Defendant did not

raise below, nor does he now raise, a Batson/Wheeler claim based on peremptory

24 (1) L. B. said that she could impose the death penalty, that she strongly

supported the death penalty, and that she had voted for the death penalty in a

recent election.

(2) D. H. indicted she was willing to impose the death penalty.

(3) W. J. stated he could impose the death penalty if it was ―the appropriate

thing.‖ When the prosecutor directly asked if Jackson could impose the death

penalty, Jackson responded, ―Yes.‖

(4) L. S. indicated she was willing to impose the death penalty.

(5) B. H. said he could impose the death penalty in ―certain kinds of

situations.‖ He later added that he believed that he could impose the death penalty

―if that‘s what I felt was necessary.‖

40

challenges to Caucasian jurors. Defendant raises the prosecutor‘s comments only

to the extent they cast the prosecutor as someone liable to discriminate on the basis

of race. On this record, however, the prosecutor‘s comments about seeking a

greater mix of racial diversification do not appear to us to show that he

discriminated against African-American women jurors. Finally, as noted, the

ultimate composition of the jury was seven Caucasians and five African-

Americans (four men, one woman). Although ― ‗the fact that the jury included

members of a group allegedly discriminated against is not conclusive, it is an

indication of good faith in exercising peremptories, and an appropriate factor for

the trial judge to consider in ruling on a Wheeler objection.‘ ‖ (People v. Stanley

(2006) 39 Cal.4th 913, 938, fn. 7.)

2. Asserted Witt Error

Defendant contends the trial court erred in granting the prosecutor‘s for-

cause challenge to two prospective jurors, and in denying defense counsel‘s for-

cause challenge to a juror who eventually sat. As we explain, the trial court did

not err in these rulings.

The federal constitutional standard for dismissing a prospective juror for

cause based on his or her views of capital punishment focuses on ― ‗[w]hether the

juror‘s views would prevent or substantially impair the performance of his duties

as a juror in accordance with his instructions and his oath.‘ ‖ (Uttecht v. Brown

(2007) 551 U.S. 1, 7, quoting Wainwright v. Witt (1985) 469 U.S. 412, 424.)

Applying Witt, we have stated: ― ‗ ― ‗[a] prospective juror is properly excluded if

he or she is unable to conscientiously consider all of the sentencing alternatives,

including the death penalty where appropriate.‘ [Citation.]‖ [Citation.] In

addition, ― ‗[o]n appeal, we will uphold the trial court‘s ruling if it is fairly

supported by the record, accepting as binding the trial court‘s determination as to

41

the prospective juror‘s true state of mind when the prospective juror has made

statements that are conflicting or ambiguous.‘ [Citations.]‖ ‘ ‖ (People v. Blair

(2005) 36 Cal.4th 686, 743 (Blair), quoting People v. Jenkins (2000) 22 Cal.4th,

900, 987.) ―The same analysis applies to claims involving erroneous juror

exclusion or inclusion.‖ (People v. Hoyos (2007) 41 Cal.4th 872, 905.)

a. Granting of Prosecution’s For-cause Challenges

(1) Prospective Juror G. R.

Prospective Juror G. R.‘s written questionnaire expressed strong opinions

against the death penalty. As to his general feelings regarding the death penalty,

G. R. wrote: ―I do not believe the death penalty is morally just.‖ Regarding

whether he felt the death penalty was used too often, he circled ―yes‖ and wrote:

―Once is too much.‖ He marked ―no‖ to the question whether California should

have a death penalty. Concerning whether every intentional unlawful and non-

self-defense killing should receive the death penalty, he circled ―strongly

disagree‖ and explained: ―Don‘t believe in the death penalty.‖

Defense counsel sought to rehabilitate G. R. during a lengthy voir dire. G. R.

stated that he could ―see himself voting for the death penalty if that‘s what the law

had dictated.‖ Defense counsel informed him that ―the law never dictates that you

must vote for the death penalty‖ and ―always gives you that option to do what you

feel is appropriate under the circumstances.‖ G. R. stated, ―If it were completely

my option, I would not vote for the death penalty.‖ Defense counsel stated that

the law ―doesn‘t say it‘s completely your decision. It says that you‘re supposed to

impose the appropriate sentence. Appropriate will go towards the evidence that

you see.‖ G. R. stated: ―I believe I could go with the appropriate sentence.‖

The prosecutor also engaged in extensive questioning. G. R. stated that ―on a

personal level‖ he did not think the death penalty was an appropriate punishment

42

but stated that in the judgment process his prejudices would not be strong enough

to sway his decision. The prosecutor asked G. R. whether he could think of any

circumstance that would cause him to believe that the appropriate sentence for

anyone would be the death penalty. G. R. said he could think of none that would

cause him to ―personally believe‖ that the death penalty was appropriate.

After the prosecutor moved to excuse G. R. for cause, the court asked G. R.

further questions and held two sidebar conferences, in which the prosecutor and

defense counsel elaborated their positions. Defense counsel summed up the

seeming contradiction presented by G. R.‘s answers at voir dire as follows: G. R.

was personally opposed to the death penalty, could not imagine a situation in

which he personally felt it should be imposed, but also maintained he could follow

the law, do what was appropriate, and be fair and impartial.

At the second sidebar conference, the prosecutor contended that no matter

what questions he asked, G. R. would not acknowledge that the death penalty

could, under any circumstances, be the appropriate sentence. The trial court

agreed that G. R.‘s views regarding the death penalty substantially impaired his

ability to serve as a juror: ―He would like to think he was not, and he was trying

to get us to believe that he can be very objective and forget his own feelings, but

his answer keeps coming back to his own convictions. Personally, he cannot do

it.‖ Defense counsel responded that G. R. had never indicated on the record that

he could not personally impose the death penalty as a juror. The prosecutor

agreed, but added: ―[O]n a personal level he can never accept any situation as

calling for [the death penalty] being an appropriate penalty, which precluded him

from ever being faced with that issue, and that‘s why he doesn‘t have to say that.‖

The trial court agreed. Over defense counsel‘s objection, the trial court found

G. R.‘s ability to serve as a juror to be substantially impaired and excused him for

cause.

43

Defendant contends the trial court erred. We disagree. Based on our review

of the record, we uphold the ruling as fairly supported, and we accept the trial

court‘s determination as to G. R.‘s state of mind given his conflicting or

ambiguous statements.25 (Blair, supra, 36 Cal.4th at p. 743.)

(2) Prospective Juror E. C.

In her written questionnaire, Prospective Juror E. C. wrote that she had mixed

feelings regarding the death penalty, and circled ―no‖ to the question whether she

felt California should have a death penalty. During voir dire questioning, she

stated she had ―very mixed feelings‖ about the death penalty, would prefer to live

in a state that did not have the death penalty, and, if it were to come up on the

ballot, she would not vote for it. She acknowledged that, although it would be

difficult to impose the death penalty, ―if it came right down to it,‖ she ―probably

could.‖ (Italics added.) After the prosecutor pressed her on this point, however,

she equivocated in the other direction, stating she probably could not vote for a

verdict of death. When asked by the court what she meant by ―probably,‖ she

responded: ―There is still a part of me that thinks that I could but I‘m just not

25 Defendant asks us to reconsider our long-standing formulation that, if fairly

supported by the record, we will accept as binding the trial court‘s determination

as to a prospective juror‘s state of mind when the prospective juror has made

statements that are conflicting or ambiguous. (Blair, supra, 36 Cal.4th at p. 743.)

Defendant contends our formulation reverses the state‘s burden, citing Wainwright

v. Witt, supra, 469 U.S. at page 423, which states: ―it is the adversary seeking

exclusion who must demonstrate, through questioning, that the potential juror

lacks impartiality.‖ But we see no conflict with Witt, which ―does not require that

a juror‘s bias be proved with ‗unmistakable clarity.‘ ‖ (Id. at p. 424.) Despite a

―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. . . . This is why deference must be paid

to the trial judge who sees and hears the juror.‖ (Id. at pp. 425-426.)

44

certain. I‘m really not.‖ When the trial court asked whether she would prefer not

to sit on a case in which she had to make a death determination, she answered, ―I

probably shouldn‘t,‖ and began to cry.

The prosecutor challenged E. C. for cause based on her answers and

emotional reaction to the questions. Defense counsel objected, but the trial court

made a finding that her views and reactions would substantially impair the

performance of her duties as a juror. Based on our review of the record, we

uphold the ruling as fairly supported, and we accept the trial court‘s determination

as to E. C.‘s state of mind. (Blair, supra, 36 Cal.4th at p. 743.)

b. Denial of Defense For-cause Challenge: Juror R. C.

Defense counsel unsuccessfully challenged for cause R. C., who eventually

sat as a juror at defendant‘s trial. Defendant contends the trial court erred in

denying the challenge. Preliminarily, the People contend defendant has forfeited

this claim. ―[A] defendant challenging on appeal the denial of a challenge for

cause must fulfill a trio of procedural requirements: (1) the defense must exercise

a peremptory challenge to remove the juror in question; (2) the defense must

exhaust all available peremptory challenges; and (3) the defense must express

dissatisfaction with the jury as finally constituted.‖ (People v. Weaver (2001) 26

Cal.4th 876, 910-911.) As the People observe, and defendant does not contest,

although defendant had peremptory challenges available to him when R. C. was

seated on the jury, he did not use them to dismiss R. C.26 Defendant also failed to

26 After R. C. was placed in the jury box, defense counsel exercised 13

peremptory challenges before accepting the jury. He then exercised four more

peremptory challenges before again accepting the jury. He exercised his final two

peremptory challenges before the jury was finally selected with R. C. as one of the

jurors.

45

communicate his dissatisfaction regarding the jury to the trial court. Defendant

has therefore forfeited this claim. (Ibid.)

Even were we to reach the merits of this claim, we would find no error. The

trial court and the parties engaged R. C. in an extended voir dire on the issue of

whether he would automatically vote for the death penalty regardless of the

mitigating evidence at the penalty phase. In the initial rounds of questioning,

R. C.‘s answers appeared conflicting. Although he initially stated he would

automatically impose the death penalty if the aggravating circumstances

outweighed the mitigating circumstances, he later said he could impose life in

prison without the possibility of parole if he believed that sentence was

appropriate, even if the aggravating circumstances outweighed the mitigating

circumstances. When defense counsel noted that R. C. had previously stated he

would automatically vote for death if the aggravating circumstances outweighed

the mitigating circumstances, R. C. said he now wanted to retract that statement

because the prosecutor‘s explanations had made him better understand the penalty

phase process. In denying the defense motion, the trial court observed the final

round of questioning had clarified R. C.‘s position. The record supports the trial

court‘s conclusion that R. C. did not hold views that would prevent or

substantially impair the performance of his duties as a juror. (Blair, supra, 36

Cal.4th at p. 743.) To the extent R. C.‘s statements were conflicting or

ambiguous, we accept the trial court‘s determination as binding. (Ibid.)

B. Guilt Phase Issues

1. Failure to Give a Limiting Instruction Regarding Guilty Pleas of

Defendant’s Accomplices

Defendant‘s accomplices Linton, Cyprian, and Lee were charged with

noncapital first degree murder, eventually pleaded guilty to second degree murder,

and subsequently testified at defendant‘s trial. Defendant contends his United

46

States Constitution Sixth Amendment confrontation clause rights were violated

because the trial court failed to instruct the jury that it could not infer defendant‘s

guilt from the accomplices‘ guilty pleas. Defendant‘s claim fails because Linton,

Cyprian, and Lee testified in person and were subjected to defense cross-

examination. Bruton v. United States (1968) 391 U.S. 123, and its progeny, on

which defendant relies, are inapplicable, because these cases involve the use of

out-of-court statements by un-cross-examined codefendants to incriminate a

defendant at a joint trial. (See Nelson v. O’Neil (1971) 402 U.S. 622, 629-630

[codefendant‘s extrajudicial statement implicating the defendant need not be

excluded when the codefendant testifies and is available for cross-examination].)

Defendant‘s reliance on a Ninth Circuit case, United States v. Halbert (9th

Cir. 1981) 640 F.2d 1000 is also unpersuasive. Preliminarily, decisions by the

federal courts of appeal are not binding on us. (People v. Seaton (2001) 26 Cal.4th

598, 653.) Second, the premises underlying the ruling in Halbert do not apply

here. In Halbert, codefendants testified against the defendant and were asked by

the prosecutor during direct examination about their guilty pleas to conspiracy to

commit mail fraud. (Halbert, supra, at p. 1004.) Over defense objection, both of

the codefendants were allowed to tell the jury they pleaded guilty to the

conspiracy for which the defendant was on trial. (Ibid.) The Ninth Circuit

reversed, holding that, ―[w]ithout instruction, it is possible the jury could use the

pleas as evidence of [Halbert‘s] guilt,‖ and that the trial court erred by failing to

give an instruction limiting the use of this evidence to witness credibility. (Id. at

p. 1006.)

In this case, by contrast, defendant did not object to the admission of the

evidence regarding Linton‘s, Cyprian‘s, and Lee‘s guilty pleas. Indeed, he

requested and received a stipulation from the prosecution regarding the dates of

the pleas. Thus, far from objecting to the facts of the pleas as prejudicial to

47

defendant, defense counsel sought to incorporate them into the defense case.

Because defendant cites no authority that the trial court had a duty to give a

limiting instruction on its own motion, and because trial counsel failed to object to

the admission of the pleas and failed to request a limiting instruction, we find no

merit in this claim.

2. Refusal to Allow Questioning Regarding Jury Verdict as to

Accomplice Linton

Defendant contends his United States Constitution Sixth Amendment

confrontation clause rights were violated because the trial court upheld the

prosecutor‘s objection to defense counsel‘s questioning of Linton concerning the

annulled jury verdicts in his first trial. As we explain below, the trial court did not

err in upholding the objection, and defendant‘s constitutional rights were not

violated.

a. Background

Linton, who was initially charged along with defendant for the capital crimes,

was one of the main prosecution witnesses against defendant. Linton pleaded

guilty to second degree murder before defendant‘s trial. When Linton was cross-

examined during defendant‘s trial, defense counsel sought to challenge Linton‘s

credibility by asking him about the circumstances surrounding his acceptance of

the plea agreement. Linton acknowledged that he had been charged with two

counts of first degree murder for the murders of Barron and Thomas. Linton also

acknowledged that he had proceeded to trial on these charges in September 1990.

But, when defense counsel asked Linton about the verdict in that first trial, the

prosecutor objected on the grounds of relevance. The trial court sustained the

objection and then engaged in a sidebar discussion with the parties.

The parties discussed the history of Linton‘s first trial. There the jury had

convicted him of two counts of first degree murder, but the verdict was

48

subsequently overturned because of jury misconduct. Linton was tried a second

time for first degree murder (in January 1991) but, before the jury began to

deliberate, the prosecutor agreed to accept Linton‘s plea of guilty to second degree

murder.

Defense counsel stated he wanted to ask about the verdict in Linton‘s first

trial to show that the circumstances surrounding Linton‘s acceptance of his plea

agreement at the second trial reflected an implicit agreement that Linton would

testify against defendant. The text of the plea agreement contained no express

agreement that Linton must cooperate with the prosecution in a future prosecution

of defendant. Nevertheless, defense counsel argued that the guilty verdict in

Linton‘s first trial showed the strength of the prosecution case, and he contended

that the prosecutor would not have allowed Linton to plead guilty to second degree

murder absent an understanding that Linton would testify against defendant.

The prosecutor responded that he had made no promises to Linton and that

the plea agreement clearly stated that the prosecution‘s offer of a sentence of 15

years to life was ―independent of anything [Linton] chose to do later.‖ The

prosecutor also stated that, contrary to what defense counsel seemed to assume, it

was the prosecutor who had approached Linton about a plea agreement, not vice

versa. The prosecutor argued that to ask Linton why he thought the prosecutor

was willing to accept a second degree conviction after he had previously obtained

a first degree conviction would be to invite speculation.

The trial court agreed that defense counsel‘s argument concerning the

circumstances surrounding Linton‘s acceptance of the plea agreement was

speculative. Accordingly, it allowed defense counsel to ask Linton what he

thought was expected of him when he entered into the plea agreement, but

cautioned defense counsel not to ask about the verdict in the first trial because this

would require an explanation of how the verdict was nullified through jury

49

misconduct. The trial court sustained the prosecutor‘s objection, stating it did not

want defense counsel to leave ―an inference in front of the jury as to something

that cannot be explained.‖

Defense counsel resumed cross-examination of Linton and asked him,

whether, at the time he entered into the plea, he had ―some sort of understanding

or belief‖ that the prosecutor might ask him to testify against defendant. Linton

responded that, when he entered into the plea, he understood that the prosecutor

might ask him to testify in defendant‘s case, but that he was not required to do so.

b. Analysis

Defendant contends the trial court erred in sustaining the prosecutor‘s

relevancy objection to the admission of Linton‘s annulled jury verdict at his first

trial. Defendant contends that the definition of relevant evidence is broad enough

to include those verdicts. (See Evid. Code, § 210 [― ‗Relevant evidence‘ means

evidence, including evidence relevant to the credibility of a witness or hearsay

declarant, having any tendency in reason to prove or disprove any disputed fact

that is of consequence to the determination of the action.‖].) For the reasons

explained below, we disagree with defendant‘s contention.

Defense counsel‘s argument concerning the relevance of the annulled first

degree murder jury verdicts was based on the premise that these verdicts showed

the strength of the prosecution case against Linton. Defendant reasoned that

because of the strength of the case, both Linton and the prosecutor would have

expected Linton to receive the same verdict in his second trial. Defense counsel

further reasoned that because of the strength of the prosecutor‘s case against

Linton, the prosecutor was in a strong bargaining position in relation to Linton and

would have been able to dictate the terms of a plea agreement, including requiring

50

him to testify against defendant, even though this was never expressly stated in the

plea agreement.

We are not persuaded by the highly speculative nature of this argument. The

nature of the jury misconduct that necessitated nullification of the verdict is

unspecified in this record. Therefore, the fact of the nullified first degree murder

verdicts tells us nothing about the strength of the underlying case. Consider, for

example, a case in which the verdict was nullified because they were obtained by

means of lot. (See § 1181, subd. 4.) The underlying case could have been strong

or weak; the verdict in such a case would tell one nothing about the underlying

strength of the prosecutor‘s case precisely because the verdict was arrived at

through misconduct, not through the strength of the evidence. The annulled first

degree murder verdicts in Linton‘s first trial therefore do not in themselves tell us

anything about the underlying strength or weakness of the prosecutor‘s case

against Linton.27 Defense counsel failed to show the relevance of the annulled

verdicts to his argument for impeaching Linton‘s account of his acceptance of the

plea agreement. The trial court did not err in sustaining the objection.

3. Asserted Impugning of the Integrity of Defense Counsel

Defendant contends the prosecutor committed misconduct by denigrating

defense counsel during closing and rebuttal arguments. As discussed below,

defendant forfeited these claims by failure to object, and, considered on the merits,

none of the asserted actions rose to the level of misconduct.

The standards governing review of misconduct claims are settled. ―A

prosecutor who uses deceptive or reprehensible methods to persuade the jury

27 We need not and do not decide whether an annulled jury verdict can ever be

relevant legal evidence.

51

commits misconduct, and such actions require reversal under the federal

Constitution when they infect the trial with such ‗ ―unfairness as to make the

resulting conviction a denial of due process.‖ ‘ (Darden v. Wainwright (1986) 477

U.S. 168, 181; see People v. Cash (2002) 28 Cal.4th 703, 733.) Under state law, a

prosecutor who uses such methods commits misconduct even when those actions

do not result in a fundamentally unfair trial.‖ (People v. Alfaro (2007) 41 Cal.4th

1277, 1328.) ―In order to preserve a claim of misconduct, a defendant must make

a timely objection and request an admonition; only if an admonition would not

have cured the harm is the claim of misconduct preserved for review.‖ (Ibid.)

When a claim of misconduct is based on the prosecutor‘s comments before the

jury, ― ‗the question is whether there is a reasonable likelihood that the jury

construed or applied any of the complained-of remarks in an objectionable

fashion.‘ ‖ (People v. Smithey (1999) 20 Cal.4th 936, 960, quoting People v.

Samayoa (1997) 15 Cal.4th 795, 841.)

Defendant acknowledges that, concerning all of the instances he now claims

to have been misconduct, defense counsel failed to object and request an

admonition. Defendant contends that the failure to object should be excused as

futile under People v. Hill (1998) 17 Cal.4th 800, 821. And yet he fails to show

how objecting would have been futile under the circumstances of this trial.

Consequently, his claims are forfeited. (People v. Thompson (2010) 49 Cal.4th

79, 130.)

Furthermore, were we to consider the claims, we would find them to lack

merit. Defendant contends that the prosecutor‘s opening comments in the closing

argument constituted misconduct: ―I gave a lot of thought on how to proceed in

my closing argument. I had a hard time sleeping last night because part of me

really wants to come in here and attack the defense for the methods which they

used to try and mislead you, deceive you, give you false insinuations. And I

52

started by writing out all the things that he had done from the beginning in his

opening statement, from the defendant, all the way back to when he started trying

to falsify evidence. [¶] And I decided that‘s not the way to proceed in this case.

See, my obligation here is trying to present the truth to the jury. And the truth has

a way of coming out when you view everything in totality. So what I‘m going to

do is I‘m going to focus on the case which I presented . . . .‖ (Italics added.)

Defendant objects to the portions italicized above as attacking the integrity of

defense counsel, casting aspersions on him, and suggesting that he had fabricated a

defense. (See People v. Bemore (2000) 22 Cal.4th 809, 846.) Importantly,

however, the prosecutor was referring to actions of both defendant and defense

counsel. Although his syntax was a bit awkward, the reference to falsifying

evidence encompassed defendant‘s actions or actions that might reasonably be

attributed to defendant. As discussed, ante at pages 10-11, Raymond Valdez and

Kathleen Matuzak testified about defendant‘s efforts to induce them to fabricate

an alibi for him for the night of the killings. Furthermore, ante at page 12, after

defendant‘s arrest, defendant‘s wife called an employee of the pager store to ask

her to destroy the paperwork on defendant‘s pager. The prosecutor‘s comments

about defendant‘s efforts to falsify evidence were founded on evidence in the

record and fell within the permissible bounds of argument. (People v. Friend

(2009) 47 Cal.4th 1, 32.)

Turning now to the prosecutor‘s reference to defense counsel‘s opening

statement, we note that this apparently concerned defense counsel‘s remarks that

defendant had been framed for the murders by a police officer named Tony

Moreno for whom defendant had worked as an undercover informant. Although

no direct evidence was ever presented about Tony Moreno at trial, the issue was

raised in various objections entertained by the court. During Cyprian‘s testimony,

outside the presence of the jury, the prosecutor objected under Evidence Code

53

section 352 to defense‘s counsel‘s asking Cyprian whether Linton had identified

someone named ―Tony‖ as talking to defendant in the bar parking lot. (See ante,

at p. 5.) The prosecutor argued that defense counsel was attempting to confuse the

jury by implying that the ―Tony‖ mentioned by Cyprian was Tony Moreno, even

though defense counsel had presented no evidence that this ―Tony‖ was Tony

Moreno. The trial court allowed Cyprian‘s statement regarding Linton‘s reference

to ―Tony‖ to come in based on defense counsel‘s representation that defendant

would testify to Tony Moreno‘s involvement in the case. Subsequently, defense

counsel never called defendant to the stand, never called Tony Moreno to the

stand, and failed to produce any evidence indicating that Tony Moreno was

involved in the events of the capital crimes. In closing, defense counsel sought to

refer to the ―Tony‖ mentioned by Cyprian, and the prosecutor objected based on

the trial court‘s prior ruling and asked the court to strike the reference to ―Tony.‖

After reviewing the record, the trial court sustained the prosecutor‘s objection and

granted his motion to strike, finding that mentioning the name ―Tony‖ would be

asking the jury to speculate and would create confusion.

The prosecutor therefore had a basis for being concerned that defense counsel

would try to get the name of Tony Moreno in front of the jury, even though

defense counsel had presented no evidence of Moreno‘s involvement in the capital

crimes. This forms the background of the prosecutor‘s allusions to defense

counsel‘s attempts to mislead the jury. Indeed, the prosecutor‘s concern proved

prescient when, as described above, defense counsel did try to do exactly that

during closing argument.

In any event, the prosecutor‘s comments did not rise to the level of

misconduct. The prosecutor quickly shifted from the theme of defense deception

and focused on ―the case which I presented,‖ namely, evidence of defendant‘s

guilt. The same analysis also applies to the following passage of the prosecutor‘s

54

argument: ―And his defense, when he stood up in opening argument, is my client

wasn‘t there. The only thing for you to decide, was my client there. So, that‘s

what I‘m going to focus on. He says his client wasn‘t there. I say he‘s lying.‖

Although the prosecutor did state ―I say he‘s lying,‖ his remarks are reasonably

understood as a comment on the weakness of the defense evidence, which the

prosecutor went on to discuss.

Finally, defendant claims the following comment in the prosecutor‘s rebuttal

constituted misconduct: ―You see, the problem for defense counsel and for his

client is he can‘t change the phone records. He can‘t deceive the phone records.

He can‘t manipulate them. He can‘t confuse them. He can‘t cross-examine them

because . . . they speak for themselves.‖ The prosecutor‘s statements were in

response to defense counsel‘s assertion during closing argument that the telephone

records for the apartment where the killings occurred showed no calls ―after the

afternoon.‖ The prosecutor rebutted this comment by noting that Cyprian had

testified that he had called someone from that apartment‘s phone just before the

shooting and that the telephone records showed a call at 9:05 p.m. The

prosecutor‘s remarks constituted fair comment on the evidence, and fell within the

permissible bounds of argument. (People v. Friend, supra, 47 Cal.4th at p. 32.)

4. References to Facts not in Evidence

Defendant contends the prosecutor engaged in misconduct by referring to

inadmissible hearsay and facts not in evidence. Defendant‘s claims involve

references to records from New York hotels that were never admitted into

evidence. As we conclude below, none of the references constituted misconduct.

As described, ante at pages 9-10, Cyprian testified that, after the killings, he

and defendant flew to New York where they registered at the Hotel Stanford under

the names Michael and Mark Cole. The prosecutor obtained a copy of the Hotel

55

Stanford registration card, which he intended to introduce into evidence.28 The

prosecutor also obtained copies of hotel records of calls made from the room

registered to Michael and Mark Cole. The admissibility of the hotel registration

card and the hotel phone records was first raised during the prosecutor‘s case-in-

chief when he was questioning Shelia Jones, the aunt of defendant‘s wife,

concerning whether she had received any telephone calls from defendant from the

Hotel Stanford in New York. Defense counsel objected to this line of questioning,

and at a sidebar proceeding stated he objected to the introduction of the

registration card and other writings from New York in the absence of any

foundation to authenticate them as falling under the business records exception to

the hearsay rule. The prosecutor responded that he intended to produce an

employee from the Hotel Stanford to authenticate the hotel records, but that he did

not intend to use the records in questioning Jones beyond asking her whether she

had received telephone calls from defendant. Defense counsel objected to any

reference to the phone records in front of the witness, but suggested that the

prosecutor could write down the information on a legal pad and refer to that. The

jury was sent out while the prosecutor copied the information. Thereafter, the jury

returned and the prosecutor resumed questioning Jones. She denied receiving

telephone calls from defendant on January 4 or 5, 1990, stating that she was out of

town at that time.

28 The prosecutor described some details from the Hotel Stanford registration

card during his opening statement. Defense counsel did not object. Defendant

does not assert that this description of the card in itself constituted misconduct,

although, as discussed below, he contends that this ultimately misled the jury

because the card was never admitted into evidence.

56

Defendant contends the prosecutor committed misconduct by improperly

displaying the phone records within view of the jury, pulling them out of the

envelope, and permitting the jury to infer that the prosecutor would be offering

documentary evidence to underscore his assertions. What the record shows,

however, is that the prosecutor initially had some telephone records in his hands

and may have started to refer to them during his examination of Jones, but he did

not complete his question, did not have the records in his hands for more than a

few moments, and placed the items into an envelope after defense counsel

objected. We discern no misconduct in this.

The next instance at trial in which the hotel records were raised was during

Cyprian‘s testimony that, after the killings, he and defendant stayed at a

Travelodge before flying to New York. The prosecutor sought to have Cyprian

identify a receipt from the Travelodge. In a sidebar proceeding, defense counsel

objected to the prosecutor‘s questioning Cyprian about the Travelodge receipt

until it could be authenticated. Defense counsel also objected to the prosecutor‘s

asking Cyprian about a photographic enlargement of the Hotel Stanford receipt

that the prosecutor had brought to court and was apparently prepared to display to

the jury on a bulletin board. Defense counsel acknowledged that the prosecutor

could ask Cyprian if he had registered at either the Travelodge or the Hotel

Stanford, but objected to the introduction of any registration documents unless

Cyprian testified to personal knowledge of registering. The trial court agreed to

allow the prosecutor to proceed in this way. The prosecutor questioned Cyprian

about registering at the Travelodge and the Stanford, but Cyprian stated he could

not remember watching defendant fill out any registration paperwork at either

hotel.

Defendant contends the prosecutor committed misconduct by ―repeatedly

displaying the Hotel Stanford registration card blowup in open court before the

57

jury.‖ But the record does not support defendant‘s contention. Defense counsel

phrased his objection at trial as follows: ―The objection would be to asking this

witness any questions about the contents of that writing [i.e., the Travelodge

receipt] or putting that blowup on the bulletin board.‖ (Italics added.) This

phrasing indicates that the prosecutor had either not yet displayed the enlargement

to the jury or had just very recently put it up. The record therefore does not

support defendant‘s contention that the enlargement was displayed for the jury for

weeks during the trial. Defendant points to the prosecutor‘s later statement that he

had the enlargement in court ―every day since the proceedings began.‖ But taken

in context, the prosecutor was stating that he had brought the enlargement to court

every day — not that he had continuously displayed it to the jury every day. 29 We

therefore discern no misconduct.

The Hotel Stanford registration card was next mentioned at trial during the

testimony of Robert Greenwood, a handwriting expert who testified for the

prosecution. On cross-examination, defense counsel raised the issue by

questioning Greenwood about any documents he had reviewed that he had been

unable to conclude were written by defendant. Greenwood mentioned the Hotel

Stanford registration card as one such item, and defense counsel proceeded to ask

Greenwood about his comparisons of the signature on this registration card to

other documents. On redirect examination, the prosecutor asked Greenwood about

the Hotel Stanford registration card, and Greenwood clarified that he had never

attempted to compare the signature on it to any other documents because it was

29 As discussed below, the reason the prosecutor brought the enlargement to

court every day was because defense counsel had represented that defendant was

going to testify; the prosecutor was waiting until defendant took the stand to

question him about the hotel registration card.

58

crammed into a small signature box on the registration form. Defendant contends

that the prosecutor committed misconduct by eliciting testimony concerning

inadmissible evidence. We discern no misconduct. The prosecutor‘s redirect

examination briefly touched on the Hotel Stanford registration card only because

defense counsel had first raised and pursued it during defense cross-examination.

The issue of the Hotel Stanford registration card was raised one final time,

after the defense had rested its case and the prosecutor was preparing to present his

rebuttal. The defense requested an offer of proof as to the rebuttal. The

prosecutor stated that he was planning to produce the custodian of records from

the two hotels at which defendant had stayed in New York (the Hotel Stanford and

the Aberdeen Hotel) to authenticate the hotel registration cards. The prosecutor

stated that he decided not to present this evidence during his case-in-chief because

he had relied on defense counsel‘s representations that defendant would testify.

He explained that he decided to save the expense of flying witnesses from New

York to California by first attempting to get defendant to authenticate the

registration forms during cross-examination. Because defendant never took the

stand, the prosecutor now wanted to authenticate the records during his rebuttal

case. Defense counsel objected to the presentation of this evidence during

rebuttal, and the trial court agreed. The prosecutor then requested to reopen his

case-in-chief to present the evidence, which the trial court also denied.

In the course of arguing that he should be allowed to present the

authenticating evidence about the registration cards, the prosecutor reminded the

court that he had mentioned at least one of the registration cards during his

opening statement and that it would be misleading the jury if the prosecution was

not allowed to present the authenticating evidence during the rebuttal case.

Defendant points to this comment as a concession that the prosecutor‘s failure to

admit the New York hotel receipts into evidence after mentioning them in opening

59

statement was misconduct because it misled the jury. But the prosecutor was not

conceding that he had committed misconduct. Rather, he was trying to convince

the trial court of the importance of allowing him to present evidence that he

possessed, but which, for tactical reasons, he had not presented in his case-in-

chief. Defendant also points to the prosecutor‘s later comment during the new

trial motion that his decision not to produce the custodian of records for the New

York hotels during his case-in-chief was a ―tactical error.‖ Once again, this was

not a concession of misconduct, but rather the prosecutor‘s appraisal of his

decision to rely on defense counsel‘s representations that defendant would testify.

In any event, we see no possible prejudice to defendant. The prosecutor‘s

admitted tactical error had the effect of hurting only the prosecutor‘s case.

5. Instructions on Flight, and Instructions on Fabricating and

Suppressing Evidence as Evidence of Guilt

At the prosecutor‘s request, the trial court instructed the jury pursuant to

CALJIC Nos. 2.04, 2.06, and 2.52, which state that efforts to fabricate and

suppress evidence may be considered circumstances tending to show

consciousness of guilt and that flight after the crime may be considered in light of

all proved facts in deciding guilt or innocence. Defendant contends these

instructions violated the due process clause of the Fourteenth Amendment to the

United States Constitution because they allowed the jury to draw arbitrary

inferences from the evidence of defendant‘s flight and efforts to fabricate an alibi.

As defendant acknowledges, we have previously rejected this and related claims,

and we decline defendant‘s request to reconsider our past decisions. (People v.

Bacigalupo (1991) 1 Cal.4th 103, 127-128.)

60

6. Challenges to the Accomplice Testimony and the Robbery-murder

Special-circumstance Allegation

a. Adequacy of CALJIC No. 3.11

As described, Linton, Cyprian, and Lee, defendant‘s accomplices, testified

against him at trial. The trial court instructed the jury in accordance with the full

set of standard jury instructions on accomplices.30 Defendant challenges the

adequacy of CALJIC No. 3.11 (5th ed. 1988), which stated: ―A defendant cannot

be found guilty based upon the testimony of an accomplice unless such testimony

is corroborated by other evidence which tends to connect such defendant with the

commission of the offense.‖ As defendant acknowledges, the language of

CALJIC No. 3.11 closely tracks that of section 1111, which governs the treatment

of accomplice testimony and states: ―A conviction cannot be had upon the

testimony of an accomplice unless it be corroborated by such other evidence as

shall tend to connect the defendant with the commission of the offense; and the

corroboration is not sufficient if it merely shows the commission of the offense or

the circumstances thereof.‖ Defendant contends that CALJIC No. 3.11 omits

another requirement that we have frequently articulated concerning accomplice

corroboration, namely that the corroborating evidence ― ‗ ―must relate to some act

or fact which is an element of the crime.‖ ‘ ‖ (People v. Zapien (1993) 4 Cal.4th

929, 982.) Defendant contends that the reference to an ―element of the crime‖

makes this a more demanding standard than the one set out in CALJIC No. 3.11.

Defendant presents no authority for this argument. Our statement that the

corroborating evidence must ― ‗ ―relate to some act or fact which is an element of

30 The jury was instructed in accordance with CALJIC Nos. 3.10 to 3.14,

3.18, and 3.19, which defined ―accomplice,‖ instructed the jury to determine

whether Linton, Cyprian, or Lee were accomplices, and set forth the standard for

determining whether accomplice testimony was corroborated.

61

the crime‖ ‘ ‖ (People v. Zapien, supra, 4 Cal.4th at p. 982) means no more than

the evidence must ―tend[] to connect [the] defendant with the commission of the

offense,‖ as stated in CALJIC No. 3.11. As we have further stated in explaining

the corroboration requirement, ― ‗ ―it is not necessary that the corroborative

evidence be sufficient in itself to establish every element of the offense

charged,‖ ‘ ‖ and ― ‗[t]he requisite corroboration may be established entirely by

circumstantial evidence.‘ ‖ (People v. Zapien, supra, 4 Cal.4th at p. 982.) We

therefore find no merit in defendant‘s claim that CALJIC No. 3.11 inaccurately or

inadequately states the law on accomplice corroboration.

b. Adequacy of the Corroborating Evidence

Defendant contends the prosecutor presented insufficient evidence to

corroborate the accomplices‘ testimony regarding the robbery. We conclude that

the prosecution presented sufficient corroborating evidence.

The law on the corroboration of accomplice testimony is well established:

― ‗The trier of fact‘s determination on the issue of corroboration is binding on the

reviewing court unless the corroborating evidence should not have been admitted

or does not reasonably tend to connect the defendant with the commission of the

crime.‘ ‖ (People v. Abilez (2007) 41 Cal.4th 472, 505.) ― ‗The corroborating

evidence may be circumstantial or slight and entitled to little consideration when

standing alone, and it must tend to implicate the defendant by relating to an act

that is an element of the crime. The corroborating evidence need not by itself

establish every element of the crime, but it must, without aid from the

accomplice‘s testimony, tend to connect the defendant with the crime.‘ ‖ (Ibid.)

―The evidence is ‗sufficient if it tends to connect the defendant with the crime in

such a way as to satisfy the jury that the accomplice is telling the truth.‘ ‖ (People

v. Gonzales and Soliz (2011) 52 Cal.4th 254, 303.)

62

Ample, and indeed very strong, evidence corroborated the testimony of

Linton, Cyprian, and Lee and connected defendant with the robbery. The

telephone records between defendant‘s home and the victims‘ place of

employment, A.R.A., corroborated the accomplice testimony that defendant set up

the drug deal with the victims. This also was corroborated by the testimony of an

A.R.A. employee who overheard the victims say they were going to a bar to

transact a drug deal. Additionally, Jose Pequeno, who was working at the bar that

night, testified that the victims were there and talked to someone who looked like

defendant. The two neighbors of the Spring Street house crime scene, Irma Sazo

and Marcella Pierre saw defendant, Cyprian, Linton, and Lee exiting the apartment

where the robberies occurred. Defendant‘s pager was found at the crime scene.

Defendant‘s fingerprints were found in the room where the victims had been shot

and on the truck to which the victims‘ bodies had been dragged. The victims‘

wallets were found in the kitchen cabinet at the crime scene, corroborating the

accomplice testimony that the wallets were taken from the victims before they

were killed.

Furthermore, evidence of defendant‘s flight after the crimes were committed

supports an inference of consciousness of guilt and constitutes an implied

admission, which may properly be considered as corroborative of the accomplice

testimony. (People v. Zapien, supra, 4 Cal.4th at p. 983.) The nonaccomplice

evidence that corroborated defendant‘s flight includes the Travelodge receipts

showing that defendant did not go home after the crimes and the telephone records

showing that no telephone calls were made on defendant‘s home telephone from

January 3, 1990, through January 15, 1990. Defendant‘s consciousness of guilt

was further shown by the testimony of the nonaccomplice witnesses Raymond

Valdez and Kathleen Matuzak, who testified about defendant‘s attempts to induce

them to fabricate an alibi for him for the night of the killings.

63

c. Attempted Robbery Theory of the Robbery-murder Special

Circumstance

The prosecution argued to the jury that a true finding on defendant‘s robbery-

murder special-circumstance allegation could be based on either of two robbery

theories: (1) the completed robberies of the victims‘ wallets or (2) the attempted

robbery of the cocaine, which was the transaction defendant was engaged in when

he sought to compel Barron at gunpoint to tell his associates to deliver the drugs.

Defendant contends that the prosecutor‘s use of this second theory to support the

special circumstance violated defendant‘s rights because he was not given notice

of it in the charging document and because the trial court failed to instruct the jury

that it must unanimously determine the basis for the finding. As we conclude

below, defendant‘s rights were not violated.

(1) Background

The information charged defendant with two counts of murder and two

counts of robbery. Regarding the two murder counts, the information alleged a

special circumstance under section 190.2, subdivision (a)(17) — that is, murder

while ―engaged in the commission of the crime of robbery within the meaning of

Penal Code section 190.2(a)(17).‖ (Ibid.) Penal Code section 190.2, subdivision

(a)(17) in turn states this special circumstance applied to murders committed

―while the defendant was engaged in, or was an accomplice in, the commission of,

attempted commission of, or the immediate flight after committing, or attempting

to commit,‖ a robbery.

During trial, Linton and Lee testified that the victims‘ wallets were taken

from them before they were killed. In addition, the prosecution also introduced

evidence of an attempted robbery. As described, ante at pages 6-7, defendant put

a gun to the head of Barron and told him to convince his associates over the phone

that they should deliver the drugs to defendant. It was during the course of dialing

64

the phone that defendant discharged the first, apparently accidental, shot,

wounding Barron, after which defendant followed with a second shot killing

Barron.

During a discussion about proposed jury instructions, the prosecutor stated

that the robberies charged in counts three and four were based on the taking of the

victims‘ wallets. He also asserted that the jury could use the attempted robbery of

the cocaine as a basis for finding true the robbery-murder special-circumstance

allegation. The prosecutor therefore requested instructions on constructive

possession. Defense counsel objected to that instruction and to any instruction

based on either theory of robbery (that is, both the completed robbery of the

wallets and the attempted robbery of the cocaine), citing a purported lack of

evidence to support either. The trial court ruled there was sufficient evidence to

support the instructions.

During his closing argument, the prosecutor turned to the robbery-murder

special-circumstance allegation, describing both the robbery of the wallets and the

attempted robbery of the cocaine. He characterized them as ―two robberies

actually occurring at the same time‖ and argued that the jury could rely on either

to find the felony-murder special-circumstance allegation true.

(2) Asserted Lack of Notice

Defendant contends he did not have sufficient notice that the special

circumstance allegation could be based on attempted robbery because that crime

had not been charged in the information. Initially, we note that defendant has

forfeited the claim for failure to object below. (People v. Cole (2004) 33 Cal.4th

1158, 1205.) As recounted, defense counsel did object to all the instructions based

on robbery according to either theory. His objection, however, was based on the

contention that insufficient evidence supported either theory of robbery; he did not

65

object on the basis that attempted robbery had not been alleged or that he received

inadequate notice.

We also reject defendant‘s claim on the merits. ―Both the Sixth Amendment

of the federal Constitution and the due process guarantees of the state and federal

Constitutions require that a criminal defendant receive notice of the charges

adequate to give a meaningful opportunity to defend against them.‖ (People v.

Seaton, supra, 26 Cal.4th at p. 640.) Defendant received adequate notice that the

robbery-murder special-circumstance allegation could be based on robbery or

attempted robbery. As described above, the information referenced section 190.2,

subdivision (a)(17), which includes attempted robbery. Furthermore, even

assuming for the sake of argument that the information provided inadequate notice

on this point, defendant received notice of the facts underlying the attempted

robbery theory at his preliminary hearing, which we have stated generally provides

adequate notice of the prosecutor‘s theory. (People v. Cole, supra, 33 Cal.4th at

p. 1205.) At the preliminary hearing, Lee testified to the same essential facts

about the attempted robbery of the cocaine; namely, that Barron was bound and

defendant told him to call ―his people‖ to deliver the narcotics while threatening

him with a gun. At trial, defendant was given notice of the attempted robbery

theory by Linton‘s testimony and the discussions about jury instructions. This was

not a case, therefore, ―in which the prosecution ambushed the defense‖ with a

theory. (Id. at p. 1206.)

(3) Asserted Lack of Unanimity Instruction

Defendant contends the trial court erred by failing to instruct the jury that it

must unanimously decide which robbery offense — the completed robbery of the

wallets or the attempted robbery of the cocaine — supported the robbery-murder

special-circumstance allegation. We have explained that a ― ‗unanimity

66

instruction is not required when the acts alleged are so closely connected as to

form part of one transaction.‘ ‖ (People v. Benavides (2005) 35 Cal.4th 69, 98.)

Specifically, ―[t]he ‗continuous conduct‘ rule applies when the defendant offers

essentially the same defense to each of the acts, and there is no reasonable basis

for the jury to distinguish between them.‖ (People v. Stankewitz (1990) 51 Cal.3d

72, 100.) Here, as in Benavides, in which we applied the continuous conduct rule,

the ―criminal acts . . . took place within a very small window of time.‖ (People v.

Benavides, supra, at p. 98.) The testimony supported the prosecutor‘s

characterization of the event as ―two robberies actually occurring at the same

time.‖ Defendant did not offer a defense based on a showing that he committed

either the attempted robbery or the completed robbery, but not both. Rather, his

defense was that he was not present at the scene of the crime and therefore played

no role whatsoever in any of the crimes committed there. A unanimity instruction

therefore was not required. (Ibid.)31

C. Penalty Phase Issues

1. Colloquy Concerning Self-representation

Defendant contends the trial court gave him materially inaccurate

information that adversely affected his decision whether to represent himself at the

penalty phase. We conclude that the trial court engaged in a proper colloquy with

defendant concerning the dangers of self-representation, and no error occurred.

31 Defendant also contends that the trial court erred in failing to instruct the

jury that it must unanimously agree on whether the underlying felony for the

theory of felony murder was a robbery or an attempted robbery. We have held

that, although ―a jury must unanimously agree that the defendant is guilty of the

statutory offense of first degree murder beyond a reasonable doubt . . . it need not

decide which of several proffered theories of first degree murder liability governs

the case.‖ (People v. Lewis (2001) 25 Cal.4th 610, 654.)

67

a. Background

After the verdicts were read in the guilt phase, defense counsel informed the

court and the prosecutor, outside the presence of the jury, that defendant wished to

represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. Defense

counsel explained that defendant did not want him to produce any mitigating

evidence, and had instructed him in the strongest possible terms not to call any

family members to testify. Defense counsel also explained that defendant had lost

confidence in him as an attorney because he had not proved defendant was not the

shooter, had talked defendant out of testifying, and had failed to produce Tony

Moreno as a witness.32 The trial court stated it would not make an immediate

ruling on the Faretta motion, but scheduled a hearing for the next morning, and

asked defendant to consult his family about the wisdom of such a decision in the

meantime.

At the hearing, defendant confirmed that he wanted to represent himself. He

expressed disappointment that he did not get everything he wanted in the trial,

noting that he had not testified on his own behalf and that Moreno was not called

to testify. He felt that the penalty phase was scheduled to start too quickly (just

after he had been found guilty) and he did not want to ―throw his family up on the

stand‖ because they were not ready for it.

The trial court engaged in a colloquy with defendant about the dangers of

self-representation. It noted that his attorney had taken the case for the entire trial

and had announced that he was prepared to go forward. The court observed that it

did not make any sense to dismiss counsel at this important point of the trial,

especially in light of the difficulties that defendant would face in trying to prepare

32 For discussion concerning Tony Moreno, see part D., post.

68

himself for the penalty phase. It further stated that defense counsel knew all about

the case and had done ―a great job.‖ Defendant had an off-the-record discussion

with defense counsel, and then told the court he would retain defense counsel for

his representation.

b. Analysis

Pointing to the trial court‘s statements that defense counsel knew about the

case, was prepared to move forward, and was prepared for the penalty phase,

defendant contends the court gave him materially inaccurate information that

adversely affected his decision whether to represent himself. Incorporating

arguments from his claims of ineffective assistance of counsel set forth in his

related petition for writ of habeas corpus, he contends that none of the trial court‘s

statements about counsel were accurate. As discussed in part D., post, defendant‘s

petition for writ of habeas corpus is the appropriate avenue for resolution of such

claims. We reject defendant‘s attempt here to incorporate those claims as

background material that the trial court did not know and could not have known at

the time it engaged in what we view as a proper colloquy with defendant regarding

the dangers of self-representation.

That said, we also conclude the trial court‘s opinions were not inaccurate.

They were observations, based on defense counsel‘s representations, that were

certainly true in a general sense: counsel did know about the case and he was

willing and able to prepare the penalty phase. Defendant also contends that the

trial court‘s description of defense counsel as having done ―a great job‖ was

misleading. But, once again, the trial court‘s statement was a general description

based on its own observations. In People v. Jenkins, supra, 22 Cal.4th at

pages 958-963, we discussed a defendant‘s contention that the trial court coerced

him into withdrawing his motion for self-representation. As in Jenkins, we

69

likewise conclude that, instead, the record supports a conclusion that ―the court

properly advised defendant of the pitfalls of self-representation.‖ (Id. at p. 961.)

We therefore find no error in the trial court‘s colloquy with defendant.

2. Claims Concerning Factor (b) Evidence

As described ante at pages 17-19, the prosecutor presented four instances of

prior violent criminal acts as evidence in aggravation under section 190.3,

factor (b): (1) an assault on Kenneth Moore; (2) the firing of gunshots at Officer

Sims; (3) robbery and assault on Mona Thomas and her father; and (4) possession

of a concealed weapon. Defendant makes various arguments against the use of

this evidence, all of which he forfeited by failing to raise them below (People v.

Burgener, supra, 29 Cal.4th at p. 867), with the exception of his jury instruction

claim, which requires no objection. (People v. Hillhouse (2002) 27 Cal.4th 469,

503.) We also reject each claim, below, on the merits.

a. Statute of Limitations

Defendant contends that, by the time of trial, the statue of limitations had run

on the Kenneth Moore and the Officer Sims incidents, and that their use therefore

violated his right to due process and the Eighth Amendment to the United States

Constitution. Defendant acknowledges that we have held that section 190.3, factor

(b) evidence ―is not subject to exclusion on the ground that prosecution for those

acts would be barred by a statute of limitations‖ (People v. Heishman (1988) 45

Cal.3d 147, 192) but requests that we reconsider our holding. We decline to do so.

b. Asserted Violation of Double Jeopardy

Defendant notes that he pleaded guilty to misdemeanor assault in connection

with the assault on Kenneth Moore, and contends the prosecutor violated the

double jeopardy clause of the federal Constitution by presenting testimony of the

incident at defendant‘s penalty phase. Defendant acknowledges that in People v.

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Melton (1988) 44 Cal.3d 713, 756, footnote 17, we concluded that double jeopardy

does not apply ―when the details of misconduct which has already resulted in

conviction or punishment, or in dismissal pursuant to a plea bargain . . . are

presented in a later proceeding on the separate issue of the appropriate penalty for

a subsequent offense.‖ (Italics omitted.) Defendant requests that we reconsider

our holding. We decline to do so.

c. Accomplice Liability as the Basis for Factor (b) Crimes

Defendant contends that some of the evidence the prosecutor introduced

concerning the section 190.3, factor (b) crimes concerned actions committed not

by defendant, but by others. He points to evidence that Eddie Jackson was the

person who shot and killed Kenneth Moore. He also points to evidence that an

unidentified person assaulted Mona Thomas and her father with a brick. He

contends the introduction of this evidence was improper because the Legislature

did not intend to authorize accomplice liability for factor (b) crimes. He

acknowledges that in People v. Hayes (1990) 52 Cal.3d 577, 633, we stated:

―Evidence that a defendant in a capital punishment case has previously aided and

abetted a violent criminal offense is admissible under the language of factor (b) of

section 190.3, whether or not the defendant‘s actions were themselves violent,‖

and he requests that we reconsider our holding. We decline to do so. As we have

further stated: ―The sentencer in a capital proceeding is entitled to know about

other incidents involving the use or threat of violence for which the defendant is

shown to be criminally liable beyond a reasonable doubt, whether he participated

as an actual perpetrator or in some other capacity.‖ (People v. Ray (1996) 13

Cal.4th 313, 351.)

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d. Asserted Misinstruction on Accomplice Liability

Defendant contends that, even if accomplice liability is appropriate under

section 190.3, as we held in People v. Hayes, supra, 52 Cal.3d at page 633, the

trial court misinstructed the jury on the principles of accomplice liability. As

described below, at defense counsel‘s request, the trial court altered the phrasing

of CALJIC No. 8.87, which defendant now contends had the result of

misinstructing the jury on the principles of accomplice liability. We conclude that,

although the altered version of CALJIC No. 8.87 was ambiguous, there was no

reasonable likelihood the jury applied the instruction in the complained of manner.

(1) Background

CALJIC No. 8.87 is the standard jury instruction for section 190.3, factor (b)

crimes, and at trial, in relevant part, was given as follows: ―Evidence has been

introduced for the purpose of showing that the defendant has committed the

following criminal acts or activity [list of acts ] which involved the express or

implied use of force or violence or the threat of force or violence. Before a juror

may consider any of such criminal acts or activity as an aggravating circumstance

in this case, a juror must first be satisfied beyond a reasonable doubt that the

defendant did in fact commit such criminal acts or activity.‖

Before closing argument in the penalty phase, the parties discussed jury

instructions, and defense counsel questioned the applicability of this standard

instruction to the four section 190.3, factor (b) acts for which the prosecutor had

presented evidence. Specifically, defense counsel argued the standard instruction

did not apply to two of the acts, namely, the shots fired at Officer Sims and the

assault on Mona Charles and her father. He argued that the evidence supporting

those two acts amounted to only a suspicion that defendant was ―involved‖ in

them, as opposed to showing that he had ―committed‖ them. Counsel therefore

requested a change in the wording of the instruction. The prosecutor objected to

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defense counsel‘s request, arguing that circumstantial evidence showed defendant

had committed the two acts at issue.33 The trial court suggested amending the

instruction to refer to acts that defendant ―has committed or was involved in.‖

(Italics added.) The prosecutor agreed to the trial court‘s amendment.

The trial court subsequently instructed the jury as follows (italics added):

―Evidence has been introduced for the purpose of showing that the defendant . . .

has committed or was involved in the following criminal acts or activity . . . [list of

acts] . . . which involved the express or implied use of force or violence or the

threat of force or violence. Before a juror may consider any of such criminal acts

or activity as an aggravating circumstance in this case, a juror must first be

satisfied beyond a reasonable doubt that the defendant . . . did in fact commit such

criminal acts or activity or was involved in such criminal acts or activity.‖

(2) Analysis

Defendant contends that the effect of adding the ―or was involved in‖

language lowered the prosecutor‘s burden in proving the section 190.3, factor (b)

crimes. He contends the language conveyed that his mere presence at the scene of

a crime was sufficient. He asserts the trial court had a duty to clarify on its own

motion the standard for accomplice liability by instructing the jury pursuant to

CALJIC No. 3.01, as given, which stated: ―A person aids and abets the

[commission] [or] [attempted commission] of a crime when he or she: [¶] (1)

With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the

intent or purpose of committing or encouraging or facilitating the commission of

33 The prosecutor‘s point appears correct. The language of the standard jury

instruction simply states that evidence has been introduced for the prosecutor‘s

purpose of showing that defendant committed the criminal acts. The jury retains

the task of evaluating the prosecutor‘s evidence.

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the crime, and [¶] (3) By act or advice, [or, by failing to act in a situation where a

person has a legal duty to act,] aids, promotes, encourages or instigates the

commission of the crime.‖ It also informs the jury: ―Mere presence at the scene

of a crime which does not itself assist the commission of the crime does not

amount to aiding and abetting.‖

As an initial matter, defendant attempts to explain why the claim is not

forfeited in view of the circumstance that the alteration to CALJIC No. 8.87 came

at the insistence of defense counsel. Defendant contends that, although defense

counsel requested ―or involved in‖ be inserted only in the first sentence of

CALJIC No. 8.87, the trial court inserted it in both the first and second sentences.

He contends that inserting ―or involved in‖ in only the first sentence would not

have raised the problems he now complains of. There is some support in the

record for defendant‘s contention that defense counsel intended to have the trial

court insert ―or involved in‖ only in the first sentence. The trial court and the

parties never expressly addressed the issue of the second sentence. Had they done

so, defense counsel would have had to address why the phrase ―or involved in‖

could legitimately be added to the first sentence, but not the second, given that the

second sentence precisely addresses the acts mentioned in the first. Furthermore,

adding ―or involved in‖ to the first sentence but not to the second would have

created its own ambiguities — what burden of proof would apply to those criminal

acts introduced for the purpose of showing that defendant was ―involved in‖ them?

Was the jury simply to ignore them or could it consider them without any burden

of proof?

In any event, assuming the insertion of ―or involved in‖ in the instruction

created an ambiguity, we conclude that the trial court had no duty to instruct on its

own motion pursuant to CALJIC No. 3.01, nor was there a reasonable likelihood

the jury interpreted the jury instruction in the complained of manner. We have

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repeatedly held that the trial court has no duty, absent a request, to instruct on

elements of crimes proved under factor (b). (People v. Cain (1995) 10 Cal.4th 1,

72.) Defendant did not request an instruction on the elements of aider and abettor

liability in connection with the section 190.3, factor (b) crimes, but he contends

that the alteration to CALJIC No. 8.87 gave rise to a duty to so instruct. We

disagree: ―[T]he instructions were not so vital to the jury‘s evaluation of

defendant‘s prior actions as to require that they be given without a request.‖

(People v. Cain, supra, at p. 72.) As in People v. Cain, ―the jury had before it

evidence and argument from which it could rationally assess the degree of

culpability [the] defendant bore in the prior incident. The proper focus for

consideration of prior violent crimes in the penalty phase is on the facts of the

defendant‘s past actions as they reflect on his character, rather than on the labels to

be assigned the past crimes . . . .‖ (Id. at p. 73.)

Concerning the asserted ambiguity of the instruction, the United States

Supreme Court has stated: ―[I]n reviewing an ambiguous instruction . . . we

inquire ‗whether there is a reasonable likelihood that the jury has applied the

challenged instruction in a way‘ that violates the constitution.‖ (Estelle v.

McGuire (1991) 502 U.S. 62, 72; People v. Clair (1992) 2 Cal.4th 629, 663

[adopting this test for examining instructions under California law]. 34) Defendant

contends alteration of the instruction allowed the jury to find him liable as an

accomplice for merely being present at the scene of the crime during the assaults

34 The high court has applied this analysis to ambiguous instructions at both

the guilt phase (Estelle v. McGuire, supra, 502 U.S. at pp. 67-68) and penalty

phase (Boyd v. California (1989) 494 U.S. 370, 374 ) of a trial, when those

instructions implicated a federal constitutional right. We have applied this

analysis to ambiguous instructions at both the guilt and penalty phases, even when

the instructions arguably implicated only a state law issue. (See People v. Rogers

(2006) 39 Cal.4th 826, 873; People v. Frye (1998) 18 Cal.4th 894, 957, 1021.)

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on Kenneth Moore, and Mona Thomas and her father, and during the attempted

shooting of Officer Sims. But the prosecutor never made such an argument.

Rather, he argued that defendant was a direct participant in the crimes or acted

with knowledge and purpose in aiding others in the crimes. (See Middleton v.

McNeil (2004) 541 U.S. 433, 438 [reviewing court can consider that counsel‘s

arguments clarified an ambiguous jury charge, particularly when the prosecutor‘s

arguments resolve an ambiguity in favor of the defendant].) Regarding the assault

on Kenneth Moore, the prosecutor asserted: ―He [defendant] is one of the main

perpetrators of this attack on this boy [Kenneth Moore]. He‘s one of the volitional

people that is involved in kicking and beating this young boy. But for his and the

conduct of all of them collectively this boy never would have been killed because

he would have got away. It was the group atmosphere that put him in a position

where he couldn‘t escape, which led to his beating, which led to his death.‖ For

the attempted shooting of Officer Sims, the prosecutor argued that the

circumstantial evidence showed that defendant was the shooter. For the assault on

Mona Thomas and her father, the prosecutor argued that defendant had been one

of the participants in the beatings.

Defense counsel‘s closing argument likewise made clear to the jury that the

prosecutor had to show knowledge, purpose, and direct participation or assistance

in order for the jury to hold defendant responsible for the section 190.3, factor (b)

crimes. Defense counsel‘s argument was predicated on asserting that the

prosecutor had failed to show these things. Regarding the assault on Kenneth

More, defense counsel argued that it ―was certainly not my client‘s fault‖ that

Eddie Jackson shot Kenneth Moore: ―You‘ve heard no evidence that my client

instructed him to do it, encouraged him to do it or even knew that Eddie had a gun

in his pocket.‖ Counsel argued that it was ―pure speculation‖ that defendant shot

at Officer Sims, in view of the circumstance that Sims did not see who shot at him.

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Regarding the assault on Mona Thomas, counsel argued there was no proof that

defendant ―actually committed a crime.‖ Nowhere did either the prosecutor or

defense counsel imply that defendant‘s mere presence at the scene of a crime was

sufficient for the jury to find that he was ―involved in‖ the factor (b) crimes.

There was no reasonable likelihood, therefore, that the jury construed the

challenged instruction in this way. (Estelle v. McGuire, supra, 502 U.S. at p.

72.)35

e. Asserted Lack of Notice

In closing argument, the prosecutor argued that defendant‘s participation in

the assault on Kenneth Moore made him as culpable as an actual murderer, even

though defendant was only charged with and convicted of misdemeanor assault.36

Defendant claims he did not receive notice that his involvement in the assault on

35 We likewise reject several subsidiary arguments that defendant asserts

concerning the instruction. Defendant‘s discussion of the unconstitutional

vagueness of sentencing factors under Tuilaepa v. California (1994) 512 U.S. 967

is inapplicable because the asserted vagueness of section 190.3, factor (b)

generally as a sentencing factor is not at issue here; rather the issue is the asserted

ambiguity of this particular instruction. (Tuilaepa, supra, at pp. 976-977 [holding

that factor (b) is not unconstitutionally vague.]) We also reject defendant‘s

argument that the instruction violated his right to notice about the penalty phase

evidence in aggravation. Defendant received notice of all the incidents that were

presented at the penalty phase. Defendant‘s contention that the instruction‘s

asserted ambiguity expanded the scope of his accomplice liability does not

transform these incidents into new ones requiring separate notice.

36 The prosecutor stated: ―[I]t has been minimized ever since 1983 when the

defendant was charged and convicted with assault with a deadly weapon for

hitting and kicking a boy. What I‘m trying to spell out for you as a jury in terms

of his true culpability for the crime, he is a murderer. Because if someone dies

during the course of a robbery — and that‘s what I submit was going on here —

. . . his culpability for the crime was that of a murderer.‖

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Kenneth Moore would be characterized as a murder, and contends that this

amounted to lack of notice of a separate section 190.3, factor (b) crime.

Defendant did not object on the asserted ground and has therefore forfeited

the claim. (People v. Farnam (2002) 28 Cal.4th 107, 175.) Furthermore, we

reject the claim on the merits. Defendant acknowledges the prosecutor gave

notice of his intent to use the Moore assault at the penalty phase, but argues that

the prosecutor surprised him with a characterization of that evidence that he could

not have anticipated. Defendant presents no authority (and we are aware of none)

that the notice requirement of section 190.3 requires a prosecutor to give notice

about the precise way he or she will characterize or argue a noticed incident during

closing argument. As discussed in the prior part, in his closing argument defense

counsel vigorously presented his own characterization of the Moore incident,

arguing that defendant should not be considered culpable for Moore‘s death. We

conclude therefore that defendant was given proper notice.

D. Motion for New Trial Based on Asserted Ineffective Assistance of

Counsel

The trial court appointed Attorney Douglas W. Otto to assist defendant‘s trial

counsel, Ronald LeMieux, in preparing a motion for new trial. Otto was assigned

to investigate whether LeMieux was ineffective in representing defendant and to

prepare a motion for new trial on those grounds. Otto‘s motion contained

declarations from LeMieux, defendant, and others involved in the case. LeMieux

also prepared a motion for new trial, which alleged other errors that occurred at

trial. After an extensive hearing at which LeMieux, defendant, and several other

witnesses testified, the trial court denied the motions for new trial. It found that

LeMieux performed competently and that it was not reasonably probable that the

jury would have reached a different result based on the asserted errors shown by

the testimony at the hearing.

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On appeal, defendant again contends that LeMieux was ineffective.37 To

establish such a claim, he must show counsel‘s representation was ―deficient‖ in

that it ―fell below an objective standard of reasonableness‖ (Strickland v.

Washington (1984) 466 U.S. 668, 687-688) ―under prevailing professional norms‖

(id. at p. 688). In addition, defendant is required to show prejudice from counsel‘s

deficient representation — that is, defendant must demonstrate a reasonable

probability that, but for counsel‘s deficiencies, the result would have been more

favorable. (Id. at p. 694.)

Defendant acknowledges that claims of ineffective assistance of counsel are

ordinarily best raised and reviewed on habeas corpus, but argues the current case

is unusual in that there was a lengthy evidentiary hearing in support of defendant‘s

motion for a new trial, at which counsel testified and filed supporting materials.

As an initial argument, defendant contends that pursuant to United States v. Cronic

(1984) 466 U.S. 648, 659, he does not need to show prejudice because counsel

entirely failed to subject the prosecutor‘s case to meaningful adversarial testing.

We reject this contention. LeMieux gave an opening statement and closing

argument, cross-examined the prosecution‘s witnesses, objected to testimony and

exhibits, and presented a number of witnesses on defendant‘s behalf during the

guilt and penalty phases of the trial. Defendant therefore fails to show a complete

lack of adversarial testing under Cronic.

Regarding prejudice, defendant acknowledges that the only arguments related

to that issue raised at the hearing for the motion for new trial concerned the effect

the testimony of Police Officer Tony Moreno would have had if trial counsel had

37 Defendant does not challenge the trial court‘s denial of the motion for new

trial.

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called him as a witness. We discuss the Moreno testimony below and conclude

that, based on this record, even if we assume deficiency for the sake of argument,

defendant fails to demonstrate prejudice. First, however, we will briefly review

defendant‘s other ineffective assistance claims, which, we reiterate, can be fully

addressed only in a habeas corpus petition because they require investigation of

evidence outside the record in order to potentially establish prejudice.

1. Ineffective Assistance of Counsel Claims

a. Qualifications to Represent Defendant

Defendant contends LeMieux was deficient because he lacked the legal

knowledge and experience to handle a capital case, and lacked an office staff and

resources. LeMieux testified that he had practiced law (predominantly criminal

law) for 20 years before representing defendant. Although he had handled capital

cases before representing defendant, he had never litigated a penalty phase in

those cases because the defendants were either acquitted or their cases ended in a

plea. He had not received any special training in capital case work through

courses, lectures, or attending conferences, although he owned manuals from the

California Public Defender‘s Association death penalty conferences. At the time

of defendant‘s trial, LeMieux was practicing out of his house and had a small

library of law materials. He used a local law library for additional materials. He

did not have a secretary, a paralegal, or any kind of support staff.

Although LeMieux had not previously handled a capital case that resulted in

a penalty phase, this does not in and of itself establish deficient performance. (See

People v. Wright (1990) 52 Cal.3d 367, 412-413.) The admission of an attorney to

the state bar establishes that the state deems him competent to practice law in all

types of actions, and, when a defendant is represented by a licensed attorney, a

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presumption exists in favor of the effectiveness of counsel. (People v. Majors

(1998) 18 Cal.4th 385, 430-431.)

Defendant puts great emphasis on the fact that LeMieux failed to conform to

the American Bar Association Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases. These guidelines were adopted in 1989,

two years before LeMieux‘s representation of defendant. Among other things, the

guidelines include recommendations for staffing and for specialized training in

death penalty cases. As we have recently noted, however, the guidelines ―are not

congruent with constitutional standards for effective legal representation.‖ (In Re

Reno (2012) 55 Cal.4th 428, 467.) We have also noted that the United States

Supreme Court criticized the Sixth Circuit for treating the guidelines ― ‗not merely

as evidence of what reasonably diligent attorneys would do, but as inexorable

commands with which all capital defense counsel ― ‗must fully comply.‘ ‖ ‘ ‖ (Id.

at p. 468 citing Bobby v. Van Hook (2009) 558 U.S. 4, 17 (per curiam).) We

therefore reject defendant‘s argument that failure to conform to the guidelines is

sufficient to establish deficient performance by counsel.

Defendant also contends that LeMieux was deficient for hiring an associate

attorney, Douglas McCann to exclusively conduct jury selection. McCann al

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