People v. Zambrano

KENNARD, J., Concurring and Dissenting.

At the guilt phase of defendant’s capital trial, the jury found him guilty of the first degree murder of Luis Reyna, with a special circumstance finding that Reyna was killed to prevent him from testifying as a witness; the jury also found him guilty of the attempted murders of Robert and Barbara Mishell. I agree with the majority’s affirmance of these convictions.

I disagree, however, with the majority’s affirmance of defendant’s sentence of death rendered at the penalty phase. In my view, the trial court erred in refusing defense counsel’s request to ask prospective jurors if they would invariably impose the death penalty in a case involving dismemberment of the murder victim’s body. A second error occurred when, in closing argument at the penalty phase, the prosecutor quoted passages from the Bible as authority for the death penalty. These errors prejudiced defendant, undermining confidence in the fairness of the penalty phase of defendant’s capital trial. Therefore, I would reverse the judgment of death.

*1199 I

Before trial, defense counsel asked the trial court to include in the jury questionnaire a statement to prospective jurors that the murder victim had been dismembered and a question asking them how it would affect their “philosophical view of the death penalty.” Counsel expressed concern that the fact of the victim’s dismemberment “might impel” a juror “to vote for death without regard to any other mitigating circumstances” that might be presented. The trial court denied the request. The court told defense counsel that it would “not permit” counsel “to go into any of the factual issues, including but not limit[ed] to the dismemberment.” The court explained: “The only facts of the case that the jury will be permitted to know in voir dire” are those “in the information.” The trial court’s ruling thus made it clear that the court would not add to the juror questionnaire any questions about dismemberment and that it would not allow defense counsel to pursue such questions during voir dire. Defense counsel’s voir dire of prospective jurors made no mention of dismemberment.

At the guilt phase, a parade of witnesses testified to the circumstances in which murder victim Luis Reyna’s body parts were found, recovered, medically examined, and identified. Kelly Morrison described how, while taking a walk in a wooded area of Contra Costa County on July 18, 1988, he saw a human hand along the trail. Contra Costa Sheriff’s Deputy Ricky Johnson recovered the hand and delivered it to the county coroner’s office, where it was fingerprinted. Wayne Schultz, a reserve officer with the Berkeley Police Department, reported smelling “something dead” while on an early morning jog on July 24, 1988. Returning to the brush-covered area two days later during daylight hours, Schultz spotted something on the slope below the road, and through binoculars saw that it was a naked body. When Deputy Johnson recovered the body, it was missing its head and both hands. On July 29, 1988, Sergeant Dennis Burke of the Berkeley Police Department concluded that a print from the thumb on the severed left hand matched a latent thumbprint recovered from documents found among Reyna’s possessions. Some eight months later, on March 17, 1989, James McDonald was hiking down a deer trail in the same area when he came upon a human skull lacking its lower jaw. The skull bore no traces of skin, flesh, or hair.

On July 27, 1988, before the skull was found, forensic pathologist Louis E. Daugherty conducted an autopsy of the body and of the recovered left hand. The wrists and head had been “completely cut” from the body, but Daugherty was able to match the recovered left hand to the left forearm of the body. Paul Hermann, a pathologist with the Alameda County Coroner’s Office, testified that markings on the severed portion of the neck suggested that the head had been removed with a small saw. Rodger Heglar, a forensic *1200 anthropologist who in August 1988 had examined portions of the murder victim’s vertebra, testified that portions of the third vertebra exhibited incision marks “consistent with saw marks,” and that similar markings appeared on the left forearm.

Defendant’s own testimony at the guilt phase substantiated the findings of the expert witnesses. He admitted driving to the area with Reyna’s dead body on the seat next to him and dismembering it to make identification more difficult. After an unsuccessful attempt with a hatchet, he took a hacksaw from his toolbox, and severed both of Reyna’s hands at the wrists; he then held Reyna’s head with his left hand and used his right hand to saw off the head.

II

“A criminal defendant is entitled to a trial by jurors who are impartial and unbiased. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.)” (People v. Roldan (2005) 35 Cal.4th 646, 689 [ 27 Cal.Rptr.3d 360 , 110 P.3d 289 ].) To assure that impartiality, jury selection includes questioning of prospective jurors in a process called voir dire. “Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled.” (Rosales-Lopez v. United States (1981) 451 U.S. 182, 188 [ 68 L.Ed.2d 22 , 101 S.Ct. 1629 ].)

“The due process clause of the Fourteenth Amendment requires the sentencing jury in a capital case to be impartial to the same extent required at the guilt phase.” (People v. Blair (2005) 36 Cal.4th 686, 741 [ 31 Cal.Rptr.3d 485 , 115 P.3d 1145 ].) In a capital case, a prospective juror who “would invariably vote either for or against the death penalty because of one or more circumstances likely to be present in the case being tried, without regard to the strength of aggravating and mitigating circumstances,” is not impartial and must be excused for cause. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005 [ 30 Cal.Rptr.2d 818 , 874 P.2d 248 ]; accord, People v. Coffman and Marlow (2004) 34 Cal.4th 1, 46-47 [ 17 Cal.Rptr.3d 710 , 96 P.3d 30 ]; People v. Cash (2002) 28 Cal.4th 703, 719-720 [ 122 Cal.Rptr.2d 545 , 50 P.3d 332 ]; People v. Ervin (2000) 22 Cal.4th 48, 70 [ 91 Cal.Rptr.2d 623 , 990 P.2d 506 ]; People v. Earp (1999) 20 Cal.4th 826, 853 [ 85 Cal.Rptr.2d 857 , 978 P.2d 15 ].) To determine during voir dire whether prospective jurors are impartial in this sense, “either party is entitled to ask prospective jurors questions that are specific enough to determine if those jurors harbor bias, as to some fact or circumstance shown by the trial evidence, that would cause *1201 them not to follow an instruction directing them to determine a penalty after considering aggravating and mitigating evidence.” (People v. Cash, supra, at pp. 720-721 .)

Here, the murder victim’s dismemberment by defendant was “a general fact or circumstance” likely to elicit a strong emotional response from the jurors. (People v. Cash, supra, 28 Cal.4th at p. 721 .) Before trial, defense counsel asked the trial court to include in the jury questionnaire a statement telling prospective jurors that the murder victim had been dismembered and a question asking them how it would affect their “philosophical view of the death penalty.” Voir dire at the outset of trial would have revealed whether this “general fact or circumstance” would cause any juror to invariably vote for the death penalty, without considering mitigating evidence presented by defendant.

The majority insists that the dismemberment of the victim’s body was not a circumstance “that could cause a reasonable juror . . . invariably to vote for death, regardless of the strength of the mitigating evidence.” (Maj. opn., ante, at p. 1122.) I disagree. The fact of dismemberment may be of great significance to a prospective juror. Undoubtedly, there are prospective jurors who consider the integrity of the body of a deceased person to be extremely important. The history of torts is rife with lawsuits brought by relatives alleging mishandling of the bodies of their loved ones. (See, e.g., Christensen v. Superior Court (1991) 54 Cal.3d 868 [ 2 Cal.Rptr.2d 79 , 820 P.2d 181 ]; Conroy v. Regents of University of California (2007) 151 Cal.App.4th 132 [ 59 Cal.Rptr.3d 661 ]; Aguirre-Alvarez v. Regents of University of California (1998) 67 Cal.App.4th 1058 [ 79 Cal.Rptr.2d 580 ]; Saari v. Jongordon Corp. (1992) 5 Cal.App.4th 797 [ 7 Cal.Rptr.2d 82 ]; Cohen v. Groman Mortuary, Inc. (1964) 231 Cal.App.2d 1 [ 41 Cal.Rptr. 481 ].) Thus, the trial court here erred in not permitting defense counsel to ask the prospective jurors whether the murder victim’s dismemberment would affect their views on the choice of penalty.

Relying on People v. Roldan, supra, 35 Cal.4th 646 , the majority asserts the trial court’s ruling was within its discretion. Roldan is not on point. As Roldan observed, the defense in that case failed to identify what topics it wanted explored in the trial court’s supplemental questioning of prospective jurors. (Id. at p. 693.) Moreover, the murder in that case occurred during an armed robbery (id. at p. 664), and neither the circumstances nor the manner of killing were markedly different from those committed during other armed robberies.

The majority here, noting that the parties disagreed about the circumstances surrounding the dismemberment of Reyna’s body, reasons that if the *1202 trial court had permitted the defense to question prospective jurors about the fact of dismemberment, “the prosecutor could strongly argue he should be permitted to explore in more detail how prospective jurors might react to all the anticipated evidence on that issue,” which “could have led to a lengthy examination of prospective jurors about specific details of the case.” (Maj. opn., ante, at p. 1123.) Not at all. Defense counsel here sought only to explore juror attitudes toward the subject of dismemberment in general. There was no need to mention the factual details about when, where, and how this dismemberment occurred.

Because the trial court refused defense counsel’s request to question the prospective jurors about their views on dismemberment, the record does not reveal whether any of the individuals who wound up serving on the jury in this case “held the disqualifying view that the death penalty should be imposed invariably and automatically” on a defendant who had dismembered his victim’s body. (People v. Cash, supra, 28 Cal.4th at p. 723 .) Therefore the error cannot be discounted as harmless, and reversal of the judgment of death is compelled. (Morgan v. Illinois (1992) 504 U.S. 719, 739 [ 119 L.Ed.2d 492 , 112 S.Ct. 2222 ]; People v. Cash, supra, at p. 723 .)

in

In closing argument at the penalty phase, the prosecutor cited the Bible as authorizing capital punishment. He told the jury: “The commandment to put murderers to death is universal.” And he quoted Genesis chapter 9, verse 6: “[Wjhoever sheds the blood of man, by man shall his blood be shed, for in his image did God make man.” The prosecutor then summarized two concepts he perceived in that verse: “[F]irst is that capital punishment for murderers is necessary to preserve the sanctity of human life, and second being it is man’s obligation to do it.” (Italics added.) Thus, he argued, “[o]nly the severest of punishments can underscore the severity of taking a life,” and imposing “any lesser penalty means that the taking of life is not that serious an offense.” In the prosecutor’s view, the biblical text quoted meant that “[preserving the life of a murderer compromises the value of life,” a point he said was reiterated in these two other biblical passages: “He who fatally strikes a man shall be put to death” (Exodus 21:12), and “[y]ou shall not make reparations for the soul of a murderer who deserves to die, and he shall be put to death” (Numbers 35:31). (See People v. Samuels (2005) 36 Cal.4th 96, 133, fn. 6 [ 30 Cal.Rptr.3d 105 , 113 P.3d 1125 ] [same biblical passages cited in argument].) In essence, the prosecutor here argued to the penalty phase jurors that the Bible not only authorized but required them to return a verdict against defendant at the penalty phase of death. A lesser sentence, he asserted, was to shirk their obligation and cheapen the value of human life.

*1203 A prosecutor’s argument to the jury that the Bible authorizes or demands the death penalty for murder creates the risk that “ ‘such argument may “diminish the jury’s sense of responsibility for its verdict and . . . imply that another, higher law should be applied in capital cases, displacing the law in the court’s instructions.” ’ ” (People v. Hughes (2002) 27 Cal.4th 287, 389 [ 116 Cal.Rptr.2d 401 , 39 P.3d 432 ]; see also People v. Wash (1993) 6 Cal.4th 215, 261 [ 24 Cal.Rptr.2d 421 , 861 P.2d 1107 ]; People v. Samuels, supra, 36 Cal.4th at p. 134; People v. Slaughter (2002) 27 Cal.4th 1187, 1226 [ 120 Cal.Rptr.2d 477, 47 P.3d 262 ] (dis. opn. of Kennard, J.).)

Because defense counsel here did not object to the prosecutor’s argument, defendant has forfeited the right to claim that the prosecutor’s comments were misconduct. But counsel’s failure to object violated defendant’s constitutional right to the effective assistance of counsel. Defense counsel may have decided not to object because he intended to reply to the prosecutor’s argument with a biblical argument of his own; however, that is not a legitimate tactical purpose for failing to object. As I explained in a previous dissenting opinion: “[I]t is improper to answer one impermissible argument not based on the facts or the law applicable to the case with another impermissible argument not based on the facts or the law applicable to the case. A religious argument against the death penalty is no more acceptable at the penalty phase of a capital case than a religious argument in favor of the death penalty. ... It follows that defense counsel’s decision to respond to the prosecutor’s religious argument by relying on opposing religious authority cannot be considered a legitimate tactical choice that would excuse his failure to object to the prosecutor’s impermissible religious argument.” (People v. Wash, supra, 6 Cal.4th at p. 283 (conc. & dis. opn of Kennard, J.), citations omitted; see also People v. Slaughter, supra, 27 Cal.4th at p. 1227 (conc. & dis. opn. of Kennard, J.).)

Here, the prosecutor’s appeal to biblical authority invited the penalty phase jurors to disregard their duty to follow the trial court’s instructions to weigh the mitigating and aggravating evidence in deciding penalty, whether death or life without parole. Accordingly, the prosecutor’s improper biblical argument may well have permitted one or more jurors to overlook the defense evidence in mitigation, causing the juror or jurors to vote for death without weighing that mitigating evidence against the prosecution’s evidence in aggravation. Thus, the prosecutor’s improper reliance on biblical authority prejudiced defendant.

*1204 I would reverse the judgment of death in light of the two prejudicial errors: the one just discussed, and the other pertaining to defense counsel’s request to question prospective jurors about their attitudes toward dismemberment of the murder victim’s body.