# People v. Harris

> California Supreme Court · August 29, 2005 · 33 Cal. Rptr. 3d 509

URL: https://www.frixlaw.com/law-library/cases/9788517

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. MAURICE LYDELL HARRIS, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 29, 2005
- **Citations:** 33 Cal. Rptr. 3d 509; 37 Cal. 4th 310; 2005 Daily Journal DAR 10560; 118 P.3d 545; 2005 Cal. Daily Op. Serv. 772; 2005 Cal. LEXIS 9546
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kennard
- **Judges:** Chin, Kennard
- **Cited by:** 309 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9788517

## Opinion text

KENNARD, J., Concurring and Dissenting.
With respect to the guilt phase of defendant’s capital trial, I join the majority in upholding the convictions for the attempted murder of Bernard Canto (Pen. Code, §§ 187, 664), 1 the murders of Alicia Allen (Canto’s fiancée) and her 17-week-old fetus (§ 187), and other crimes not pertinent here, as well as the jury’s findings that defendant committed the murders under the special circumstances of felony-murder robbery, felony-murder burglary (§ 190.2, subd. (a)(17)(A), (G)), and multiple murder (§ 190.2, subd. (a)(2)). I write separately to clarify the problem with the trial judge’s questioning of defendant in front of the jury during defendant’s testimony on his own behalf at the guilt phase. The majority says that it does “not endorse all of the trial court’s questioning,” and acknowledges that “some of it [was] inappropriate,” but it provides no guidance as to which questions were improper or why. (Maj. opn, ante, p. 350) As I will explain, certain of the court’s questions may well have conveyed to the jury the judge’s opinion that defendant’s testimony was not credible. In doing so, the judge became an advocate for the prosecution, abandoning the neutrality required of a judge. The error, however, was harmless.
With respect to the penalty phase of trial, I conclude that the trial court committed prejudicial error when it excluded certain evidence proffered by defendant. I therefore disagree with the majority’s holding that the court properly excluded this evidence, and I dissent from the majority’s affirmance of the judgment of death.
I
During the evening of August 9, 1994, Bernard Canto was found on a sidewalk near the apartment complex where defendant lived. He had been shot three times, but he survived. Later that night, neighbors saw two men come to the house where Canto lived with his fiancée, Alicia Allen. One of the men went inside. The neighbors later heard shots and saw the two men fleeing; one of them was limping. When police officers came to the house, they found the body of Allen, who had been shot twice in the head. The house had been ransacked. When defendant was arrested, he had a gunshot wound in his leg, and he had a large quantity of cocaine.
*368 Before defendant’s capital trial, Canto was murdered in Chicago. At the guilt phase of the trial, the prosecution had Canto’s preliminary hearing testimony read to the jury. In that testimony, which the jury evidently believed, Canto said that defendant asked for a ride to his apartment, promising to repay $1,500 that he owed Canto. When they arrived, however, defendant suddenly shot Canto three times and left him lying outside the apartment complex. Canto also said that after Allen’s killing some money was missing from the home he shared with Allen and that he had told defendant, before Allen’s murder, that he kept a large amount of money there.
The prosecution also presented the testimony of Regina Mills, with whom defendant stayed after Allen’s murder. She testified that defendant told her that he was injured in a shootout that occurred in a robbery, and that he had shot a woman who he thought was pregnant.
Testifying in his own defense, defendant denied shooting either Canto or Allen. He said that Canto was a drug dealer; that he himself was a “middle man” who put together buyers and sellers of cocaine and marijuana; and that on the morning of the shootings Canto had telephoned him that he had buyers who wanted a kilogram of cocaine. Defendant said that he told Canto he would buy the cocaine and bring it to Canto, but that he actually delivered a kilogram of fake cocaine to Canto, who gave defendant $16,000 and said he wanted four more ounces of cocaine as soon as possible.
Defendant further testified that when he returned to the Canto/Allen house with the last cocaine order, armed strangers tied his hands. He said he managed to break free, but then two men grabbed him, one of them shot him in the leg, and he heard the other man exclaim that the shot hit him too. According to defendant, the gunman then tried to shoot defendant in the face, but the gun jammed and defendant ran away. He insisted that he never saw Allen that night and that he did not know she had been killed until he read about it in the newspaper.
The defense argued that the two men who defendant said had attacked him at the Canto/Allen home must have killed Allen, and that they were the same two men whom neighbors saw fleeing from the home shortly after shots were fired. According to the defense, the limping man who fled from the home was not defendant (as the prosecution had claimed), but the man who (according to defendant’s testimony) was hit by the bullet that wounded defendant in the leg.
*369 H
After defendant’s testimony at the guilt phase of trial, the prosecutor cross-examined him. The trial court then asked defendant a series of questions. Defendant contends that some of these questions could have conveyed to the jury that the trial court was on the side of the prosecutor. I agree.
“ ‘The law of this state confers upon the trial judge the power, discretion and affirmative duty . . . [to] participate in the examination of witnesses whenever he believes that he may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions, in allowing a witness his right of explanation, and in eliciting facts material to a just determination of the cause.’ ” (People v. Carlucci (1979) 23 Cal.3d 249, 256 [ 152 Cal.Rptr. 439 , 590 P.2d 15 ], quoting Gitelson, A Trial Judge’s Credo (1966) 7 Santa Clara L.Rev. 7, 13-14.)
In asking such questions, however, “the trial court must not undertake the role of either prosecutor or defense counsel.” (People v. Carlucci, supra, 23 Cal.3d at p. 258.) “The examination should relate to material matters and be conducted impartially, so that the jury will not receive improper inferences as to the judge’s opinions on the case.” (3 Witkin, Cal. Evidence (4th ed. 2000) § 82, p. 116; see also People v. Camacho (1993) 19 Cal.App.4th 1737, 1744 [ 24 Cal.Rptr.2d 286 ].) “The trial judge’s interrogation ‘must be . . . temperate, nonargumentative, and scrupulously fair.’ ” (People v. Hawkins (1995) 10 Cal.4th 920, 948 [ 42 Cal.Rptr.2d 636 , 897 P.2d 574 ].) The judge “may not ask questions to convey to the jury his opinion of the credibility of a witness” (People v. Rigney (1961) 55 Cal.2d 236, 241 [ 10 Cal.Rptr. 625 , 359 P.2d 23 ]) and “must not become an advocate for either party” (ibid.).
Here, the trial court’s examination of defendant began with these questions:
“Court: When you were in [Canto and Allen’s] house, you say you heard a gun go off? Who did you figure was being shot?
“Defendant: I thought I was being shot at.
“Court: At some point did it dawn on you that perhaps somebody else had been shot in the house?
“Defendant: No.
“Court: Never did?
*370 “Defendant: No.” (Italics added.)
The trial judge’s question—“Never did?”—did nothing to clarify the evidence. Defendant had already answered that it had not occurred to him that anyone in the house had been shot, and the judge’s question merely compelled defendant to repeat his answer. Viewed in isolation, this initial part of the judge’s questioning would be a trivial matter. But this was simply the first instance of a recurring theme throughout the trial judge’s questioning of defendant, in the course of which defendant had to repeat answers he had already given, answers that seemed damaging to the defense.
The trial court’s examination continued:
“Court: Did you think that Mr. Canto might be in there?
“Defendant: Yes, I figured it was a possibility he was in there.
“ Court: You didn’t see him, though?
“Defendant: No.
“Court: Did you think the young lady [Canto’s girlfriend, Allen] might be in there?
“Defendant: No, because I haven’t seen her. I didn’t see her earlier when I was there.
“Court: You didn’t think she was home?
“Defendant: No, I didn’t.
“Court: Did you ever call the house later on to see if anybody got killed?
“Defendant: No, I didn’t.
“Court: Why not?
“Defendant: Just never crossed my mind.
“Court: Didn’t?
“Defendant: No.
“Court: Weren’t you curious?
*371 “Defendant: I was more distraught.” (Italics added.)
The trial judge’s first question that I have italicized—“Didn’t?”—once again compelled defendant to repeat testimony apparently damaging to the defense. The judge then immediately asked a largely rhetorical question— “Weren’t you curious?”—that may have conveyed to the jury that the judge did not believe defendant’s testimony.
The court went on:
“Court: In the next couple of days did you ever call [Canto and Allen’s] house or try to contact Mr. Canto?
“Defendant: Like I said, I believe it was the next day that I read the newspaper.
“Court: You said two days later.
“Defendant: I believe it was either that day or the next day.
“Court: It wouldn’t be in the next morning’s paper since it happened so late.
“Defendant: I couldn’t say for sure. I couldn’t say what day it was.
“Court: You never called to find out what happened?
“Defendant: No.
“Court: Never did?
“Defendant: No.
“Court: You were ignorant of it until you read it in the paper?
“Defendant: Yes.” (Italics added.)
The trial court’s question, “You never called to find out what happened?” was argumentative. The judge had already asked that question, and defendant had answered it. Replying to this repetitive question, defendant again said he had not called Canto at his home to find out what had happened. The court then rhetorically asked, “Never did?” This was the third time the court had asked defendant whether he had called, in addition to the questions about why he had not done so. The judge’s concluding question—“You were *372 ignorant of [the shooting of Allen] until you read it in the paper?”—simply repeated an answer defendant had earlier given.
The judge’s repetitive questions to defendant did not “ ‘aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions, in allowing a witness his right of explanation, and in eliciting facts material to a just determination of the cause.’ ” (People v. Carlucci, supra, 23 Cal.3d at p. 256 .) Rather, they served only to highlight for the jury implausible aspects of defendant’s testimony, thus improperly conveying to the jury the judge’s view that defendant’s testimony was not credible. (See People v. Rigney, supra, 55 Cal.2d at p. 241 .)
Nevertheless, reversal is not required. Defendant did not object to the trial court’s questions. (See People v. Corrigan (1957) 48 Cal.2d 551, 556 [ 310 P.2d 953 ] [“It is settled that a judge’s examination of a witness may not be assigned as error on appeal where no objection was made when the questioning occurred”].) Moreover, the evidence of guilt was strong, and defendant’s claim of innocence was unpersuasive. Although the trial court should not have asked questions revealing its disbelief of defendant’s story, the weaknesses in that story would have been apparent to the jury, particularly after the prosecutor pointed them out in his closing argument. Thus, it is not “reasonably probable” (People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ]) that the jury would have reached a different result at the guilt phase of defendant’s trial if the trial court had not asked the improper questions I discussed earlier. Nor were the court’s questions so damaging or unfair as to violate defendant’s right to a fair trial under the Fourteenth Amendment to the federal Constitution.
Ill
Before trial, the prosecution moved to exclude all evidence tending to show that Canto, the victim of the attempted murder, was dealing drugs that were kept in the home he shared with murder victim Allen, his fiancée, and that Allen knew this. Below, I briefly describe the most significant defense evidence that the prosecution sought to exclude:
(1) Deborah Chambers, who was Canto’s former wife and the mother of his three children, had lived with Canto for 10 years. She was expected to testify for the defense that Canto never held a “regular job,” yet had “a lot of money,” that he traveled extensively, and that she ended her relationship with him approximately one year before the murders in this case because “she believed his drug dealing activities placed her and her children in danger.” Chambers also would testify that she warned Canto’s fiancée Allen, that Canto was a drug dealer, and that if Allen remained with Canto she would run the risk of getting killed.
*373 (2) Canto’s neighbors saw extensive foot traffic at Canto’s house at all hours of the day and night.
(3) After the murders, police found three bulletproof vests at Canto’s home, one of which had a bullet hole in it.
(4) Two defense witnesses were prepared to testify that Canto always carried a gun.
(5) After the preliminary hearing but before trial in this case, Canto was murdered in Chicago by one Melvin Walford. In his confession, Walford said that he, Canto, and another man had been trafficking in cocaine for several years; that on the day Canto was killed the three of them were in Canto’s car when Canto accused Walford of stealing from him; that after angry words were exchanged, Canto ordered Walford out of the car; and that Walford, angry at being ordered out of the car, pulled out his gun and shot Canto several times, killing him.
All of this proffered testimony—except for the neighbors’ testimony about the foot traffic at the Canto/Allen home—was excluded both at the guilt phase and at the penalty phase. Although the majority acknowledges that some of this defense evidence should have been admitted at the guilt phase to support defendant’s claim of innocence, it concludes that the evidence was irrelevant at the penalty phase. I disagree with the latter conclusion.
Based on the evidence proffered by defendant, considered along with defendant’s guilt phase testimony that he and Canto were drug dealers, the jury could have concluded: (1) Canto was a dealer who dealt drugs out of his and Allen’s home; (2) although there was no evidence that Allen herself was dealing drugs, she knew Canto kept drugs for sale in their home, and they jointly possessed them (see, e.g., People v. Saldana (1984) 157 Cal.App.3d 443, 455 [ 204 Cal.Rptr. 465 ] [“the prosecution was able to prove that [the defendant] had . . . possession of the heroin since it was found in the bedroom over which he exercised joint dominion and control”]; People v. Crews (1952) 110 Cal.App.2d 218, 220 [ 242 P.2d 64 ] [evidence of narcotics and paraphernalia found in “open sight” in their home “was sufficient to support the finding of joint possession of husband and wife”]; see generally People v. Newman (1971) 5 Cal.3d 48, 52 [ 95 Cal.Rptr. 12 , 484 P.2d 1356 ]; People v. Harrington (1970) 2 Cal.3d 991, 998 [ 88 Cal.Rptr. 161 , 471 P.2d 961 ]); (3) defendant knew that Canto and Allen kept drugs and the profits from drug sales in their home; and (4) defendant killed Allen and tried to kill Canto to obtain the drugs and money.
The excluded defense evidence about Canto’s activities as a drug dealer and about Allen’s knowledge of the drug dealing and her joint possession of *374 the drugs was admissible on two grounds. It was admissible under factor (a) of section 190.3, which allows the prosecution and the defense to introduce evidence pertaining to “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding,” and it was admissible to rebut the victim impact evidence that the prosecution presented.
As used in factor (a) of section 190.3, the phrase “the circumstances of the crime” is broadly defined. It “does not mean merely the immediate temporal and spatial circumstances of the crime. Rather it extends to ‘[t]hat which surrounds materially, morally, or logically’ the crime.” (People v. Edwards (1991) 54 Cal.3d 787, 833 [ 1 Cal.Rptr.2d 696 , 819 P.2d 436 ]; see also People v. Smith (2005) 35 Cal.4th 334, 352 [ 25 Cal.Rptr.3d 554 , 107 P.3d 229 ].) Here, Canto’s activities as a drug dealer, and Allen’s knowing acquiescence in those activities, were circumstances that surrounded both morally and logically the murders of Allen and the fetus she was carrying, in particular because the presence of the drugs and the cash proceeds from drug sales provided the motive for the robbery murders.
The evidence was also admissible to rebut the prosecution’s victim impact evidence. In Payne v. Tennessee (1991) 501 U.S. 808 [ 115 L.Ed.2d 720 , 111 S.Ct. 2597 ], the United States Supreme Court held that in capital prosecutions the Eighth Amendment’s prohibition of cruel and unusual punishment does not bar presentation of evidence “about the victim and about the impact of the murder on the victim’s family,” and that a state may properly conclude that such evidence “is relevant to the jury’s decision as to whether or not the death penalty should be imposed.” ( 501 U.S. at p. 827 .) The court explained that “[v]ictim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities.” (Id. at p. 825.) The court acknowledged a concern “that the admission of victim impact evidence permits a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy” (id. at p. 823), but the court thought this concern unfounded: “As a general matter, however, victim impact evidence is not offered to encourage comparative judgments of this kind—for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim’s ‘uniqueness as an individual human being,’ whatever the jury might think the loss to the community resulting from his death might be.” {Ibid.)
Here, the prosecution’s case in aggravation at the penalty phase relied heavily on victim impact testimony showing the effect of Allen’s death on her mother and grandmother. As part of this testimony, the jury learned that in *375 high school Allen had been a cheerleader who was on the debate team and loved to dance. Defendant should have been permitted to add to this portrait by presenting evidence that Allen’s fiancé, Canto, was a drug dealer who kept drugs and drug money at their apartment, and that Allen was aware of and acquiesced in this drug dealing and, by reasonable inference, benefited financially from it.
Does the erroneous exclusion of this evidence require reversal of the death judgment? Under state law, error at the penalty phase of a capital trial requires reversal of a death judgment if there is a reasonable possibility that the error affected the penalty verdict. (People v. Jackson (1996) 13 Cal.4th 1164, 1232 [ 56 Cal.Rptr.2d 49 , 920 P.2d 1254 ].) This standard “is the same, in substance and effect, as the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ].” (People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11 [ 131 Cal.Rptr.2d 468 , 64 P.3d 762 ].) In adopting this strict standard, the court has recognized the inherent difficulty of making prejudice determinations for penalty phase errors: “A capital penalty jury ... is charged with a responsibility different in kind from . . . guilt phase decisions: its role is not merely to find facts, but also—and most important—to render an individualized, normative determination about the penalty appropriate for the particular defendant—i.e., whether he should live or die.” (People v. Brown (1988) 46 Cal.3d 432, 448 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ].) “As the representative of the ‘community at large, the jury applies “its own moral standards to the aggravating and mitigating evidence” ’ to determine if death or life [imprisonment without parole] ‘ “is the appropriate penalty for [that] particular offense and offender.” ’ ” (People v. Mendoza (2000) 24 Cal.4th 130, 192 [ 99 Cal.Rptr.2d 485 , 6 P.3d 150 ].)
Here, the evidence erroneously excluded by the trial court is unlike the mitigating evidence customarily offered by the defense at the penalty phase of a capital case in that it pertained primarily to the behavior of the victims, not the defendant. Some jurors might well reject such evidence as irrelevant or unpersuasive, or even be offended by a perceived attempt to attack the character of the victims. Other jurors, however, may have viewed the evidence that attempted murder victim Canto was a drug dealer and that murder victim Allen allowed Canto to sell illegal drugs from the apartment they shared and benefited financially from the illegal drug sales as significantly weakening the aggravating force of the prosecution’s victim impact evidence and as making the murders of Allen and her fetus marginally less heinous. I cannot say beyond a reasonable doubt that the jury here would not have viewed the evidence in this way, nor can I say beyond a reasonable doubt that consideration of this evidence would not have affected the penalty verdict, causing at least some jurors to select the penalty of imprisonment for life without possibility of parole. Apart from the circumstances of the crimes *376 and the victim impact evidence, the only circumstance in aggravation suggested by the prosecution was defendant’s one prior felony conviction, for drug possession. Because the case in aggravation was not overwhelming, I conclude that the error in excluding the evidence was prejudicial and that the judgment should be reversed as to penalty.
Appellant’s petition for a rehearing was denied October 19, 2005. Kennard, J., did not participate therein.
Unless otherwise indicated, all section references are to the Penal Code.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9788517. Public record. Not legal advice.