holding that defendant could not challenge district court’s refusal to include particular question in jury questionnaire because defendant did not request such question
How later courts described this case
- holding that defendant could not challenge district court’s refusal to include particular question in jury questionnaire because defendant did not request such question
- holding that refusal to include particular question in jury questionnaire was not error so long as parties themselves had opportunity to ask question during voir dire
- “A statement about how a defendant’s death would make the family member suffer is not relevant to an individualized determination of defendant’s culpability and may be properly excluded. . . . ‘The specific questions whether family members would prefer that defendant not be executed or believe that a death sentence will stigmatize them are not, however, strictly relevant to the defendant’s character, record or individual personality.’”
- duress is not a defense to murder or attempted murder under California law, but noting that California has yet to decide whether duress is a defense to conspiracy to commit murder
Written by the judges who cited it.
The opinion
KENNARD, J.,
Concurring and Dissenting.—I join the majority in upholding defendant’s conviction for murder (Pen. Code, § 187) with the special circumstance of multiple murder (Pen. Code, § 190.2, subd. (a)(3)). I write separately, however, to point out a problem with the analysis of one guilt phase issue: the trial court’s exclusion of the testimony of cult expert Randy Cemy.
Because I disagree with the majority’s conclusion that the prosecutor’s biblical argument calling for death did not prejudice defendant, I would reverse the judgment of death.
I
At the time of the murder, defendant was 21 years old and a submissive member of an occult, satanic cult headed by codefendant Gerald Cruz. Defendant was subjected to a process of mind control that included regular sleep deprivation, severe physical punishment, sexual humiliation, and minimization of contact with his family. Defendant acted as the cult’s “slave,” doing household chores, cooking, bathing Cruz’s children, acting as a handyman, and staying up at night to guard the cultists’ camp. He sought Cruz’s permission for even the most trivial of matters. Defendant’s diary showed *307 that he had internalized many of Cruz’s values: Defendant wrote of the desire to sacrifice himself so that Cruz’s health would improve and he expressed gratitude for Cruz being “merciful” when Cruz refrained from having him beaten.
Cruz was angry at Franklin Raper, whom Cruz accused of bringing in illegal drugs and attracting drug users to the vicinity of the cultists’ camp. One day, Cruz decided to kill everyone at Raper’s residence. Cruz gave the cultists, including defendant, exact orders on what to do and threatened to kill anyone who “messed up.” When victim Emmie Paris encountered defendant in Raper’s kitchen, she began to scream. Cruz ordered defendant to shut her up, and he handed defendant a knife. Defendant killed Paris with the knife. Defendant was convicted of the murder of Paris. Other cult members killed three other people at the house; defendant was convicted as an accomplice to those killings.
II
At the guilt phase of defendant’s capital trial, the trial court refused to let retired Deputy Sheriff Randy Cemy testify “as an expert in the study of cults, in the mind control of members of cults, how cults operate and what effect it has on the members.” (Cemy later testified at the penalty phase.)
After a hearing to determine Cemy’s qualifications as an expert, the trial court acknowledged that Cemy was a qualified expert on cults, and that the subject of cult behavior was one beyond common knowledge and could suitably be addressed by an expert opinion. The court, however, barred Cemy from testifying before the jury at the guilt phase, explaining: “Penal Code Section 28 requires that such evidence regard a . . . mental disease, mental defect or mental disorder of the defendant. The Court is not satisfied that Mr. Cemy has the expertise to testify that mind control, if any, brought about by being a member of a cult is a mental disease, mental defect, or mental disorder as to Mr. Vieira or as to any other person.” Defense counsel then said, “I never intended to ask him if anyone had a mental disease, disorder, or defect.” The trial court replied: “I understand. But to get to [CALJIC No.] 3.32 [the jury instruction incorporating Penal Code section 28], the testimony has to relate to a mental defect, mental disorder, or mental disease or it’s irrelevant.”
The trial court could well have concluded that defendant, notwithstanding his disclaimer, was offering Cemy’s testimony as evidence of mental disease, defect, or disorder, and that such testimony was inadmissible, either because Cemy was not qualified to render an opinion on these mental states or because it was testimony of diminished capacity barred by Penal Code section 28. The problem is that the trial court did not decide whether defendant was offering evidence of mental disease, defect, or disorder. *308 Instead the court assumed that, to be admissible, evidence relating to the mental elements of a crime must be evidence of mental disease, defect, or disorder.
That assumption was incorrect. Penal Code section 28 limits only the use of evidence offered to show mental disease, mental defect, or mental disorder; such evidence may not be introduced to show that a defendant lacked the capacity to form any mental state essential to a charged crime, but it is admissible on the issue of whether or not the accused actually formed the required mental state. 1 There is no rule that evidence offered to show the absence of a mental state essential to first degree murder must be evidence of a mental disease, a mental defect, or a mental disorder. To the contrary, a defendant who does not have a mental disease, mental defect, or mental disorder may still lack the mental state required to commit a specific intent crime, and is entitled to present evidence from which the jury could infer the absence of the requisite mental state. Even if cult expert Cemy was not qualified to testify as to mental disease, defect, or disorder, he might still be qualified to testify about cult behavior, testimony from which the jury could draw inferences about defendant’s mental state at the time of the murders.
But even if the trial court erred in barring cult expert Cerny from testifying for the defense at the guilt phase, that error was harmless. Although the jury could have relied on Cemy’s testimony to infer absence of premeditation, in light of the evidence that defendant was a willing participant in the killings—he agreed to the plan to kill anyone found at the Raper residence, he laughed when he described the murder of Emmie Paris, and he told his girlfriend that the victims deserved to die—it is not reasonably probable that the jury would have done so. (See People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ].)
Moreover, the jury eventually heard defendant’s expert evidence when Cemy testified at the penalty phase of the trial and explained how cults use isolation, sleep deprivation, punishment, and occult ritual to dominate and control the minds of their members. The jury nevertheless returned a death verdict.
Ill
At the penalty phase of defendant’s capital trial, the prosecutor argued to the jury that certain biblical passages justified imposition of the death *309 penalty: “People from time to time have a problem because they say, ‘Gee, in the Bible it says, “Thou shall not kill,” and “Vengeance is mine sayeth the Lord. I will repay.” ’ That’s found in Romans. But in the very next passage . . . , it goes on and calls for capital punishment and says, ‘[t]he ruler bears not the sword in vain for he is the minister of God, a revenger or to execute wrath upon him that doeth evil.’ He’s talking about the ruler, the government, whatever.
“Now, the Judeo-Christian ethic comes from the Old Testament—I believe the first five books—called the Torah in the Jewish religion. And there are two very important concepts that are found there. And that’s, one, capital punishment for murder is necessary in order to preserve the sanctity of human life, and, two, only the severest penalty of death can underscore the severity of taking life.
“The really interesting passage is in Exodus, chapter 21, verses 12 to 14: ‘Whoever strikes another man and kills him shall be put to death. But if he did not act with intent but they met by act of God, the slayer may flee to a place which I will appoint for you.’ Kind of like life without possibility of parole, haven, sanctuary. ‘But if a man has the presumption to kill another by treachery, you shall take him even from my altar to be put to death.’ There is no sanctuary for the intentional killer, according to the Bible.
“Now, I’ll leave it at that. That was just in the event any of you have any reservations about religion in this case.”
In People v. Slaughter (2002) 27 Cal.4th 1187, 1208-1209 [ 120 Cal.Rptr.2d 477 , 47 P.3d 262 ] (Slaughter), the same prosecutor as involved here presented the same biblical argument for the death penalty. This court unanimously held that in making this argument, the prosecutor committed misconduct. But, according to the majority in Slaughter , there was no prejudice to the defendant. It reasoned: “Biblical references that rival in length those in the present case were found harmless in People v. Wash [(1993)] 6 Cal.4th 215, 261 [ 24 Cal.Rptr.2d 421 , 861 P.2d 1107 ], because after making the biblical references, ‘the prosecutor embarked upon a lengthy and detailed argument devoted exclusively to the evidence in aggravation .... He did not return to the subject of God or religion, but instead urged a sentence of death based upon defendant’s moral culpability for the crimes in light of the statutory factors.’ ” (Slaughter, supra, 27 Cal.4th at p. 1211 .)
I dissented in Slaughter , joined by Justice Moreno. The dissent stated: “The majority’s assertion that the prosecutor’s improper argument must be considered harmless because it was ‘part of a longer argument that properly focused upon the factors in aggravation and mitigation’ [citation] makes little sense. Under that logic, prosecutors may freely refer to biblical authority when making their penalty arguments to juries in capital cases, secure in the *310 knowledge that this court will never reverse a resulting death judgment for this misconduct, provided only that the prosecutors also present an argument focusing on the statutory aggravating and mitigating factors. Appeals to divine authority in jury arguments in capital cases are prejudicial when jurors for whom the aggravating and mitigating factors appear closely balanced use religious considerations to resolve their doubts, as the prosecutor’s improper argument invites them to do.” ( Slaughter, supra, 27 Cal.4th 1187, 1228 (conc. & dis. opn. of Kennard, J.).)
Like the majority in Slaughter, supra, 27 Cal.4th 1187 , the majority here considers the prosecutor’s improper biblical argument harmless because it was only a part of the prosecutor’s total peroration, which focused primarily on the aggravating and mitigating factors. (Maj. opn., ante, at pp. 296-297.) Even if I were to agree that the improper argument in Slaughter, supra, 27 Cal.4th 1187 , was harmless—which I do not—the harmless nature of the Slaughter argument would not demonstrate that the improper biblical argument here was harmless.
This is not as aggravated a murder as those in Slaughter, supra, 27 Cal.4th 1187 . In Slaughter , the defendant, acting on his own initiative and for the purpose of robbery, personally shot three people, killing two of them. Defendant here personally killed one person. In doing so, he did not act on his own initiative or for his own personal benefit, but as an obedient slave to cult leader Gerald Cruz.
Moreover, here there is a statutory factor mitigating the crime that was not present in Slaughter, supra, 27 Cal.4th 1187 . Acting “under extreme duress or under the substantial domination of another person” is a mitigating factor which the jury must take into account if relevant. (Pen. Code, § 190.3, factor (g).) In this case, the evidence shows that defendant acted under the substantial domination of cult leader Gerald Cruz, who controlled every aspect of defendant’s life and threatened to kill anyone who did not follow his orders. Absent the pernicious influence of a satanic cult leader, it is doubtful that defendant would have committed murder.
The test of prejudice is whether it is reasonably possible (see People v. Michaels (2003) 28 Cal.4th 486, 538 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ]; People v. Jackson (1996) 13 Cal.4th 1164, 1232 [ 56 Cal.Rptr.2d 49 , 920 P.2d 1254 ]) that, without the prosecutor’s improper biblical argument, the jury would not have returned a verdict of death. The circumstances here meet that test. Thus, I would reverse the penalty of death.
Appellants’ petition for a rehearing was denied May 26, 2005, and the opinion was modified to read as printed above. Kennard, J., was of the opinion that the petition should be granted.
Section 28, subdivision (a), reads: “Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.”