Petition for Writ of Certiorari — Thomas Potts, Petitioner v. California
Supreme Court briefAug 17, 2019
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No. ______
_______________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2018
______________
THOMAS POTTS, Petitioner,
v.
STATE OF CALIFORNIA, Respondent.
______________
ON PETITION FOR A WRIT OF CERTIORARI TO
THE CALIFORNIA SUPREME COURT
______________
PETITION FOR A WRIT OF CERTIORARI
Michael P. Goldstein
Counsel of Record for Petitioner
PMB 9122
5000 MacArthur Blvd.
Oakland, CA 94613
Telephone: (510) 910-7220
mpgoldstein@earthlink.net
QUESTION PRESENTED
CAPITAL CASE
Where a criminal defendant is charged with robbery (and thus death-eligible robbery-murder)
and the jury must decide whether the prosecution proved robbery, simple theft, or only knowing
possession of stolen property, does the Due Process requirement of proof beyond a reasonable doubt
permit the jury to be instructed that, if the defendant possessed recently stolen property and there was
other “slight” corroboration of the robbery charge, it could find him guilty of robbery? Or does the
instruction unconstitutionally relieve the jury of finding contested elements of the greater offense,
such as whether any theft was a goal of an attack or an opportunistic taking after the victim was
assaulted for other reasons?
i
ii
TABLE OF CONTENTS
PAGE
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL PROVISION INVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Proceedings in the Trial Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Lower Court Review of the Issue Raised Here. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Evidence Elicited at Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The Crime Scene. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Inculpatory Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Gaps in the Prosecution Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Petitioner’s Cooperation With Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The Parties’ Theories of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
I.
IN A LARGE JURISDICTION WHICH CURRENTLY INCARCERATES 220,000
PEOPLE AND ARRESTS 17,000 ANNUALLY FOR ROBBERY, JURORS ARE
BEING RELIEVED OF THE NECESSITY TO FIND KEY ELEMENTS OF THE
OFFENSES IN MANY TRIALS FOR ROBBERY AND ROBBERY-MURDER
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A.
Diluting the Reasonable-doubt Standard Is Structural Error; Moreover, If the
Jury Is Invited to Apply an Inference to Assist it in Finding That Standard
Met, Due Process Is Violated Unless it Is More Likely than Not That the
Conclusion Flows from the Predicate Fact . . . . . . . . . . . . . . . . . . . . . . . . 11
B.
Possession of Recently Stolen Property and “Slight” Corroboration Cannot
Prove Guilt of Robbery Beyond a Reasonable Doubt. . . . . . . . . . . . . . . . 12
C.
California’s Justifications for the Instruction Are Illogical and Unreasonable
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
II.
THERE IS A JURISDICTIONAL SPLIT ON THE QUESTION PRESENTED
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A.
A Few Courts Have Taken California’s Approach. . . . . . . . . . . . . . . . . . 20
B.
This Court Has Previously Urged Caution in this Area . . . . . . . . . . . . . . 22
C.
Other Jurisdictions Disagree With the California Approach . . . . . . . . . . 22
iii
III.
Despite Revision of the Instruction Since Petitioner’s Trial, California Still Gives
Juries an End-Run Around the Winship Standard in Robbery and Robbery-Murder
Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
APPENDIX
Opinion of the California Supreme Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Order denying rehearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
TABLE OF AUTHORITIES
CONSTITUTIONAL PROVISIONS
U.S. Const., 14th Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11–12, 16, 18, 19
STATUTES
28 U.S.C. § 1257. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Cal. Penal Code § 1239. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
FEDERAL CASES
Barnes v. United States, 412 U.S. 837 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 22
Boyde v. California (1990) 494 U.S. 370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Cage v. Louisiana, 498 U.S. 39 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18
Connecticut v. Johnson, 460 U.S. 73 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Estelle v. McGuire, 502 U.S. 62 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
In re Winship, 397 U.S. 358 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Pendergrast v. United States (D.C. Cir. 1969) 416 F.2d 776 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
iv
Sullivan v. Louisiana, 508 U.S. 275 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Carter, 522 F.2d 666 (D.C. Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. Jones, 418 F.2d 818 (8th Cir. 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
United States v. Rubio-Villareal, 967 F.2d 294 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Victor v. Nebraska, 511 U.S. 1 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
STATE CASES
Action Apartment Ass’n, Inc. v. City of Santa Monica 41 Cal.4th 1232 (2007) . . . . . . . . . . . . . . 17
National Ins. Underwriters v. Carter, 17 Cal.3d 380 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
People v. Baskerville, 60 N.Y.2d 374, 469 N.Y.S.2d 646 (1983) . . . . . . . . . . . . . . . . . . . . . 23, 25
People v. Bolden, 29 Cal.4th 51 5 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
People v. Duckins, 59 Ill.App.3d 96, 375 N.E.2d 173 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
People v. Franco, 180 Cal.App.4th 713 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
People v. Gamache, 48 Cal.4th 347 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
People v. Green, 27 Cal.3d 1 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
People v. Hampton, 758 P.2d 1344, 1355 (Col. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
People v. Marshall, 15 Cal.4th 34 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
People v. McFarland, 58 Cal.2d 748 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
People v. Najera, 43 Cal.4th 1132 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
People v. Parson, 44 Cal.4th 332 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
People v. Powloski, 311 Ill. 284, 142 N.E. 551 (1924). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
People v. Prieto, 30 Cal.4th 226 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
People v. Smithey, 20 Cal.4th 936 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19
People v. Yeoman, 31 Cal.4th 93 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
v
State v. Foust, 482 S.W.3d 20 (Tenn.Crim.App. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
State v. Hickson, 25 N.C.App. 619, 621, 214 S.E.2d 259 (1975) . . . . . . . . . . . . . . . . . . . . . . . . 23
State v. Rhymes 107 Ariz. 12, 480 P.2d 662 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
JURY INSTRUCTIONS
California Jury Instructions, Criminal, CALJIC No. 2.15 . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Florida Standard Jury Instructions, Criminal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Judicial Council of California, Criminal Jury Instructions: CALCRIM (2019) . . . . . . . . . . . 25, 26
OTHER AUTHORITIES
California Department. of Justices, Criminal Justice Statistics Center, Crime in California: 2018
(July 2, 2019), Table 20, p. 24, https://data-openjustice.doj.ca.gov/sites/default/files/2019-07/
Crime%20In%20CA%202018%2020190701.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Prison Policy Initiative, Correctional Control 2018: Incarceration and Supervision by State
(2018), https://www.prisonpolicy.org/reports/correctionalcontrol2018_data_ appendix.html. . . 11
vi
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2018
______________
THOMAS POTTS, Petitioner,
v.
STATE OF CALIFORNIA, Respondent.
______________
PETITION FOR A WRIT OF CERTIORARI
______________
THOMAS POTTS respectfully prays that a writ of certiorari issue to review the decision of
the California Supreme Court, which affirmed his conviction and death sentence.
OPINION BELOW
The California Supreme Court opinion is reported at 6 Cal.5th 1012, 436 P.3d 899, 245
Cal.Rptr.3d 2, and reprinted in the Appendix. There were no other opinions or published orders.
JURISDICTION
The judgment of the California Supreme Court was rendered on March 28, 2019. App. 1. A
timely petition for rehearing was denied May 22, 2019. App. 87.
The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).
1
CONSTITUTIONAL PROVISION INVOLVED
Section 1 of the Fourteenth Amendment provides, in pertinent part, “No state shall . . .
deprive any person of life, liberty, or property, without due process of law . . . .”
//
//
2
STATEMENT OF THE CASE
Petitioner Thomas Potts seeks review of a California Supreme Court order affirming a
conviction of two counts of first-degree murder and one each of first-degree robbery and grand theft,
which resulted in two death sentences and a 25-year-to-life term of imprisonment, along with a fine
of $10,000.
Proceedings in the Trial Court
Fred and Shirley Jenks were found dead in their home in a residential neighborhood of
Hanford, California, August 5, 1997. They were victims of a large number of blows, apparently
inflicted with both the blade and the hammer-head sides of a hatchet, as well as a knife or knives.
Much of Mrs. Jenks’s jewelry was missing, although much was left, as was $113 in cash in an open
drawer in an office which had been gone through. No one saw or heard what happened to the
Jenkses, nor did anyone inculpate himself or herself. Any hypothesis as to who killed them, why, and
how, had to be inferred from the circumstances.
Petitioner Thomas Potts had worked for the Jenkses sometimes as a handyman and cleaning
person. He was charged with murdering them and tried in 1998 on two counts of murder, one count
of robbery arising out of the same incident, and a grand theft charge relating to the stealing of a
valuable ring from the home of another housecleaning client. After a five-day trial, the matter was
submitted to the jury. The instructions given by the court included the pattern instruction CALJIC
No. 2.15, permitting an inference of guilt of robbery (including as robbery pertained to the degree
of the murder and a robbery-murder death-eligibility factor [see Reporter’s Transcript “RT”
3
2264–2266]) from evidence that the defendant was in possession of recently stolen property,
provided that there was “slight corroboration” of guilt. RT 2338–2339.1, 2
The jury returned guilty verdicts on all four counts. Clerk’s Transcript (“CT”) 9: 2649–2651;
10: 2710–2715. After a brief penalty phase, the jury returned a death sentence. CT 10: 2716–2718,
2875–2875, 2881–2882. The trial court sentenced petitioner to death on each murder charge and a
term of 25 years to life for grand theft, staying a similar term for the robbery because the crime was
a factor in determining the death sentences. It also imposed a $10,000 fine. CT 10: 2928–2936.
Lower Court Review of the Issue Raised Here
At trial there was no objection to the instruction at issue. However, California does not
condition the right to appellate review of alleged instructional error affecting a defendant’s
“substantial rights” on an objection having been made at trial. People v. Franco, 180 Cal.App.4th
713, 719 (2009). Accordingly, both respondent and the California Supreme Court addressed the
matter on the merits without raising a question of procedural default. Respondent’s Brief 53–57;
App. 42–44.
1
“If you find that a defendant was in conscious possession of recently stolen property, the fact
of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the
crimes of robbery and grand theft. Before guilt may be inferred there must be corroborating evidence
tending to prove defendant’s guilt. However, this corroborating evidence need only be slight and
need not by itself be sufficient to warrant an inference of guilt.
“As corroboration you may consider the attributes of possession, time, place, and manner,
that the defendant had—that the defendant had an opportunity to commit the crime charged, the
defendant’s conduct, a false account of how he acquired possession of the stolen property, and any
other evidence which tends to connect the defendant with the crime charged.” RT 11: 2338–2339.
2
The instruction qualifies possession by conscious. In this context, however, conscious
simply refers to knowledge that one is in possession of an item, eliminating situations where another
might have surreptitiously placed it among the person’s possessions. It does not specify knowledge
of the item’s having been stolen. See People v. Najera, 43 Cal.4th 1132, 1138 (2008).
4
In California, capital convictions are reviewed by the state supreme court, with no
intermediate tribunal examining the case. Cal. Penal Code § 1239. In that court, petitioner contended,
among other things, that it was federal constitutional error to apply the instruction to either the
robbery or the grand theft charges, i.e., that the jury should have been told at most that the
evidentiary factors named could support the lesser charge of possession of stolen property, knowing
it to have been stolen. Thus part of the discussion in his opening brief was under the subheadings,
“Instructing that Only ‘Slight’ Evidence Other than Possession Meets the Prosecution’s Burden
Substitutes a Standard Far Lower than that Required by In re Winship,” Appellant’s Opening Brief
(“AOB”) 122; “The instruction Shortcuts the Reasonable-Doubt Determination,” AOB 122; and
“Under Controlling Precedent, the Instruction Sets Out an Irrational Permissive Inference.” AOB
130. Petitioner set forth this Court’s Fourteenth-Amendment jurisprudence on instructions relating
to the reasonable-doubt standard and on instructions offering permissive inferences, AOB 121–122,
131, and argued that the instruction at issue violated both. AOB 119–144. The constitutional claim
was further argued in subsequent briefing. Appellant’s Reply Brief 110–124, Appellant’s
Supplemental Opening Brief 24–30, Appellant’s Supplemental Reply Brief 28–37.
The court rejected petitioner’s contentions summarily:
Defendant contends this instruction lowered the People’s burden of proof. He
similarly asserts the instruction permitted the jury to draw an irrational inference, in
violation of his right to due process. “We have previously rejected the same
arguments, concluding that CALJIC No.2.15 appropriately permits — but does not
require — jurors to infer guilt of burglary, robbery, or theft from the possession of
stolen property plus some corroborating evidence, and that it does not violate due
process or reduce the burden of proof.” [Citations.] We see no persuasive reason to
revisit or distinguish our precedent.
App. 43.
5
Evidence Elicited at Trial
The Crime Scene
The severely injured bodies of Shirley and Fred Jenks, reported to be 72 and 73 years old,
respectively, RT 6: 1397–1398, 1440, were found in a bloody scene in their Hanford home on
August 5, 1997. Fred’s body had 28 wounds about the head as well as 9 stab wounds, inflicted with
a knife, in the area of the left shoulder blade. RT 6: 1398, 1400–1401, 1409, 1415. A pathologist
concluded that a narrow-bladed hatchet with a hammer head opposite the blade, like that used by a
roofer or lather, caused many of the wounds, some of which were “chop” injuries, some, blunt-force
trauma. RT 6: 1399, 1401–1413, 1427–1429. Shirley’s body had four chop wounds to the head,
causing deep fractures. RT 7: 1441–1442, 1446–1447. When she was near death, or shortly after
death, she received seven stab wounds to the chest, apparently from a knife. RT 7: 1442, 1445–1448.
After death, in all likelihood, two more incisions were made: slashing wounds high across the throat,
practically from ear to ear. RT 5: 1107; 7: 1442, 1445, 1448. Where Fred was assaulted, there was
not only a pool of blood, but spatters on the walls and ceiling. RT 5: 1193–1194, RT 6: 1256–1266;
Trial Exhibits (“Exs.”) 23–32. Partially sticking out of the pocket of Fred’s robe, which was next
to the body, were three or four dollar bills. RT 5: 1195–1197; Ex. 3. About 200 items of Shirley’s
jewelry were taken, but much was left behind. RT 6: 1309–1310, 1319; see also RT 10: 2141–2144.
In a room in the Jenks house used as an office, a locked file cabinet was damaged. RT 5: 1201. In
an open center desk drawer there was still $113 in cash. RT 5: 1200–1201; 6: 1307.
Inculpatory Evidence
Petitioner, an African-American man, then 48 years old, had worked for Fred Jenks as a
handyman and house cleaner, on an occasional, on-call basis. RT 7: 1530, 1534. Sometimes he rode
his bike to the Jenks residence, but more often Fred would pick him up. RT 7: 1534–1535.
6
(Petitioner did not own a car; he got around by bicycle or walking. RT 7: 1556.) Near the time of
the crimes he was short of funds to buy groceries or pay the tab he ran at a liquor store. RT 7:
1528–1530, 1535–1538; RT 9: 2057. The evidence on which the prosecution relied to identify him
as the perpetrator of the killings included petitioner’s having pawned two of the two hundred items
of jewelry taken from the house,3 and the presence on his glasses—after police handling of them—of
minute specks of blood consistent with Fred’s DNA profile.4 RT 5: 1149, 1154; RT 6:
1276–1278, 1313–1314; RT 8: 1703–1710, 1719, 1748, 1766–1769, 1773–1774, 1776, 1782;
Ex. 71. Petitioner owned a roofer’s hatchet and, as a handyman, often had it with him in a duffel bag
that he carried. RT 5: 1115–1118; RT 7: 1467–1472, 1546–1548, 1575–1576. However, prosecution
witnesses established that his had a smooth, square hammer head, maybe 3/4" wide, opposite the
blade, RT 5: 1115–1117; 7: 1546–1548, 1576, while a blunt-force bruise on Fred Jenks’s body that,
with the chop wounds, made the pathologist think of a roofer’s hatchet was round, 1 1/4" in
diameter, and cross-hatched. RT 6: 1403, 1427–1429.
There was also evidence of a watch found at the scene and bloody footprints made by what
may or may not have been Nike shoes. Compare RT 6: 1243–1244, 1248–1249, 1267–1269 (lead
investigator describes exhibits as showing “Nike” in the heel portion) with Exs. 12, 17, 35–38
(“Nike” not visible in the exhibits) and RT 8: 1799 (jury expresses concern about not seeing “Nike”
when the exhibit was projected in the courtroom). Petitioner’s ex-girlfriend testified that the watch
was like one that he owned, that sometimes fell from his wrist, and that he was not wearing two days
3
RT 8: 1809–1810, 1812–1817, 1819–1822, 1828, 1835–36, 1839–1841, 1844–1845,
1848–1852, 1860–1862; RT 10: 2114–2120.
The lead investigator gave contradictory explanations of why he examined the
glasses, noticed a pinhead-sized speck on the dark-tinted lenses (RT 5: 1149, 1154; 6:
1276–1278, 1314), and then seized them for testing. Compare RT 6: 1277, 1313 with RT 6:
1313–1314.
4
7
after the crimes. RT 7: 1541–1544, 1552. She also stated that he had owned Nike shoes recently, but
both she and her son (to whom the shoes had previously belonged) said that the word “Nike” was
in the instep portion of the sole, not the heel. RT 7: 1544–1545, 1568–1569, 1605–1607. She
supplied some of the testimony providing a motive (poverty), RT 7: 1528–1530, 1535–1538, and
suggested that a few of petitioner’s clothes were missing. RT 7: 1549–1551, 1582. There was no
evidence that the footprints at the crime scene were examined by a criminalist. There had been no
attempt to determine the size of the shoes that left the prints. RT 6: 1310.
Gaps in the Prosecution Case
A consensual search of petitioner’s apartment about 30 hours after the homicides was aimed
at recovering anything that might have had signs of blood on it. None of his clothing did, nor did the
blue duffel bag, in which he habitually carried his hammer/hatchet and other items, although officers
examined it closely for blood. RT 10: 2098, 2104–2110; RT 11: 2381–2382, 2433–2434. An
extremely intensive search a week later produced no women’s jewelry, no clothing that gave any
indication of involvement in the crime, no indications of blood around any of the drains, none of the
cutlery that the Jenkses’ son-in-law thought was missing, and nothing pertaining to the Jenkses’ bank
accounts5. RT 10: 2133–2139, 2149–2154.
In a later search, petitioner’s bicycle was seized in the belief that the Department of Justice
laboratory could find blood traces even if it had been washed down, as was the duffel bag, but no
evidence of blood on either was produced, despite a senior criminalist’s best efforts. RT 10:
2135–2138; 2194–2196.
5
Detectives were interested in the last category of items because ATM cards and financial
information were in the home office area that had been ransacked. RT 10: 2152.
8
The parties agreed that the perpetrator had spent a long time in the Jenks house. See RT 11:
2398, 2434; see also 5: 1203, 1206. A state fingerprint expert spent four hours there and collected
20 to 30 latent prints, including many bloody prints lifted from the drain board in the bathroom,
where the perpetrator was thought to have washed up. RT 8: 1883, 1883–1885; see also 5: 1058.
Many more items were collected and brought to the laboratory to be processed for latent prints as
well. RT 6: 1370–1375 (specifying some items and “quite a few boxes”); RT 8: 1889 (“a bunch of
paper and plastic items” and “numerous other items”). No prints belonging to petitioner were found.
RT 8: 1881, 1886.
The expert was not asked to try to identify the prints he had obtained, other than looking for
a match for petitioner, the victims, or two other named individuals. This was the case even though
he had unidentified prints and a computer database which he could have searched for matches. RT
8: 1895–1897. The watch found at the scene was apparently not tested for fingerprints. RT RT 6:
1370. The expert did not check the car in the garage for prints, RT 8: 1897–1898, although its door
had been left open, resulting in a dead battery. RT 5: 1171, 1207. There was no attempt to find prints
in the room used as an office in the Jenks house, although it appeared that the thief had gone through
it. RT 8: 1898; see RT 5: 1200–1201; 6: 1307. No attempt was made to see if third persons had
handled the ring and pendant that appellant pawned after the thefts. RT 8: 1830–1831.
The prosecution provided no evidence of hair, skin cells, fibers, or bodily fluid residues that
it could connect with petitioner, although hair and fibers were recovered from Shirley’s body. RT
13: 2689.
Petitioner’s Cooperation With Police
Investigators woke petitioner to interview him less than 36 hours after the homicides, at 3:00
a.m. August 5. He invited them in, answered some questions, and agreed to go voluntarily to the
9
police station to talk more. He was cooperative there as well, and he gave his consent to a search of
his apartment. RT 10: 2098, 2104–2106. Two days later a detective visited him again. Petitioner
invited him to come in and sit down and later left voluntarily with him, again for further questioning
at the police station. RT 10: 2147–2149.
The Parties’ Theories of the Case
As to what had happened, the primary prosecution theory was that petitioner, short of funds
because of alcohol and gambling addictions, went to the home intending to rob and kill his
employers. Despite a crime scene and bodies which seemed to show frenzied attacks, carried out in
daylight,6 and in a manner which had to have bloodied the perpetrator as well and carried a high risk
of causing screams that would have alerted the neighbors, the prosecution hypothesized that this was
a well-planned, coolly-executed robbery-murder. RT 11: 2381–2382, 2411–2412.
Nothing in the circumstances tended to exclude an alternate theory. There was indirect
evidence (at the guilt phase, direct at penalty) of petitioner’s mental illness. RT 7: 1529, 1531,
1535–1536 (though only 48, he received a monthly social security check, which was mailed to the
ex-girlfriend and listed her as a payee); RT 13: 2721, 2793–2796 (petitioner suffered from paranoid
schizophrenia). If the perpetrator was petitioner, he may have shown up seeking work, or an advance
against future work, to ameliorate his financial straits, been rebuffed in a manner he experienced as
provocative (e.g., Fred’s offering him the three or four dollars found with his body), flown into a
rage, struck Shirley when she reacted to the attack on Fred, and taken valuables after both were
6
The prosecution contended that the evidence showed that the events took place early in the
evening, August 4. RT 5: 1050–1052.
10
incapacitated or dead. This would not have been robbery or premeditated murder,7 in which case the
homicide would not have been death-eligible under California law.8
REASONS FOR GRANTING THE WRIT
I.
IN A LARGE JURISDICTION WHICH CURRENTLY INCARCERATES 220,000
PEOPLE9 AND ARRESTS 17,000 ANNUALLY FOR ROBBERY,10 JURORS ARE
BEING RELIEVED OF THE NECESSITY TO FIND KEY ELEMENTS OF THE
OFFENSES IN MANY TRIALS FOR ROBBERY AND ROBBERY-MURDER
A.
Diluting the Reasonable-doubt Standard Is Structural Error; Moreover, If the
Jury Is Invited to Apply an Inference to Assist it in Finding That Standard Met,
Due Process Is Violated Unless it Is More Likely than Not That the Conclusion
Flows from the Predicate Fact
The due process clause of the Fourteenth Amendment requires a jury to be instructed that the
state may not obtain a criminal conviction without proving each element of the offense beyond a
reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). The burden is a high one: the state must
“convinc[e] a proper factfinder of [a defendant’s] guilt with utmost certainty.” Ibid.; see also
7
In California robbery requires the defendant to have formed the intent to steal either before
or during, rather than after, the application of force to the victim, and to have applied the force for
the purpose of accomplishing the taking. People v. Bolden, 29 Cal.4th 51 5, 556 (2002). The same
is true for robbery to elevate a homicide to first-degree felony murder, People v. Marshall, 15 Cal.4th
34, 37 (1997), and to make it death-eligible via the robbery-murder “special circumstance.” People
v. Green, 27 Cal.3d 1, 54, 61 (1980).
8
Petitioner’s attorney spent most of his time arguing that identity was not proven, RT 11:
2417–2441, but he also pointed out that the homicides looked more frenzied than planned and that
the jury could not know that the intent to steal existed when the perpetrator attacked the victims. RT
2441–2443.
9
Prison Policy Initiative, Correctional Control 2018: Incarceration and Supervision by State:
Data Appendix (December, 2018) https://www.prisonpolicy.org/reports/correctionalcontrol2018
_data_ appendix.html.
10
California Department. of Justices, Criminal Justice Statistics Center, Crime in California:
2018 (July 2, 2019), Table 20, p. 24, https://data-openjustice.doj.ca.gov/sites/default/files/2019-07/
Crime%20In%20CA%202018%2020190701.pdf.
11
Jackson v. Virginia, 443 U.S. 307, 315 (1979) (factfinder must “reach a subjective state of near
certitude” of defendant’s guilt). Instructions which dilute the burden to less than the reasonabledoubt standard violate due process. Cage v. Louisiana, 498 U.S. 39 (1990). Such error is reversible
per se. Sullivan v. Louisiana, 508 U.S. 275 (1993).
If a group of instructions includes explanations which water down the reasonable doubt
standard, the inclusion of an appropriate instruction as well does not vitiate the error. Cage v.
Louisiana, supra, 498 U.S. 39. An instruction is infirm if there is a reasonable likelihood that a juror
could understand it to permit a lower standard of proof than that contemplated by In re Winship,
supra. Victor v. Nebraska, 511 U.S. 1, 6 (1994). A reasonable likelihood does not mean “more likely
than not”; it only means that there must be “more than speculation” that an instruction could have
been understood to lower the prosecution’s burden. Boyde v. California (1990) 494 U.S. 370, 380;
see also Victor v. Nebraska, supra, 511 U.S. at 6 (citing the discussion of Boyde in Estelle v.
McGuire, 502 U.S. 62, 72 & n. 4 (1991)).
When an instruction offers a jury a permissive inference (“if you find one fact true, you may
infer another from it”), federal due process demands a rational connection between the fact proved
and the one which the jury is told it may infer. This means there must be “substantial assurance that
the presumed fact is more likely than not to flow from the proved fact on which it is made to
depend.” Leary v. United States (1969) 395 U.S. 6, 36; see also Ulster County Court v. Allen (1979)
442 U.S. 140, 165–167, and n. 28.
B.
Possession of Recently Stolen Property and “Slight” Corroboration Cannot
Prove Guilt of Robbery Beyond a Reasonable Doubt
In California, as elsewhere, robbery is distinguished from the lesser crime of theft by two
elements: the wrongful taking must have been from the person possessing it or their immediate
presence, and it must have been accomplished by force or fear. As to the force or fear element, even
12
if the victim was assaulted, a taking is only a theft, not a taking accomplished by force, if the
perpetrator developed an intent to steal only after acting forcibly upon the victim, rather than before
or during that act. People v. Bolden, supra, 29 Cal.4th 515, 556. Force must have been applied for
the purpose of accomplishing the taking. Ibid. Similarly, a reasonable doubt regarding after-acquired
intent negates both the robbery element of a felony-murder allegation based on robbery, as well as
a robbery-murder special circumstance. People v. Marshall (1997) 15 Cal.4th 1, 37; People v.
Green, 27 Cal.3d 1, 52, 53–54 (1980). In other words, one who opportunistically decides to take
property only after disabling, for other reasons, the person possessing it, has committed theft and,
presumably, an assaultive offense, but not robbery. Petitioner’s jury was basically11 so instructed,
along with the elements of the lesser offense of theft. CT 9: 2673–2676.
The trial court also instructed petitioner’s jury, in the words of CALJIC No. 2.15, that
robbery and grand theft could not be proved by conscious possession of recently stolen property
alone, a principle that they would have understood from the instructions on the elements of those
crimes and the reasonable-doubt standard if the recent-possession subject had never been addressed.
The bulk of the instruction, however, went on to explain that the jury could find guilt from such
possession as long as there was also some slight corroboration, giving what, to the extent that they
refer to evidence in the case, the California court would recognize under other circumstances to be
argumentative examples, in an instruction which is already argumentative.12 See People v. Hughes
11
The CALJIC instruction on after-acquired intent erroneously stated that intent need only
be formed by the time of the taking (as opposed by the time of the application of force), but the
California Supreme Court held, “The jury was elsewhere ‘adequately informed concerning the point
in time the intent to steal must have been formed’ [citation]” via other instructions. App. 45–46.
By accepting the court’s holding on this point for the purposes of the argument in this
petition, petitioner is not committing himself to doing so in any future proceedings.
12
The text of the instruction, as given to petitioner’s jury, is quoted in full on page 4, footnote
(continued...)
13
(2002) 27 Cal.4th 287, 361 (instructions inviting jury to draw inferences favorable to a party from
specified evidence are improperly argumentative). The instruction takes what was once a rule of
thumb for appellate review of the sufficiency of evidence to support a conviction for knowing
possession of stolen property, later extended to theft,13 see, e.g., People v. McFarland (1962) 58
Cal.2d 748, 754–759, and see also Barnes v. United States, 412 U.S. 837 (1973), and transforms it
into a principle that a jury can be instructed that it may find all the elements of robbery true, beyond
a reasonable doubt, from the mere fact of possession, plus any slight corroboration of the charge.
From the jury’s perspective, the only reasonable interpretation had to be not that the instruction
contradicted the general rule about the prosecution’s burden of proving each element of the offenses
beyond a reasonable doubt, but that it spelled out how that rule could be applied in a particular
situation.
The California court has long recognized that possession can occur innocently.14 People v.
Najera, supra, 43 Cal.4th at 1138. Possession plus “slight” corroboration of the charged offense
cannot, therefore, automatically permit “the factfinder . . . to reach a subjective state of near certitude
of the guilt of the accused.” Jackson v. Virginia, supra, 443 U.S. 307, 315. “Only half of the problem
12
(...continued)
1, above.
13
In United States v. Jones, 418 F.2d 818 (8th Cir. 1969), the court noted that, where the
charge is theft, not robbery, there seemed to be little controversy about offering a permissible
inference that a defendant’s participation in the theft may be inferred—at least with appropriate
cautions about the prosecution’s burden and about factual issues such as how soon after the theft
the defendant was found in possession. However, “[i]t would appear that these inferences arose at
common law because of the similar characteristics of the crimes of larceny and that of receiving
stolen merchandise.” Id. at 827, n. 9 (citing authorities). Therefore “[t]he substantive difference
between the crimes of robbery and receipt later caused” some learned 19th-Century authorities to
caution against extending the inference to robbery. (Ibid.)
14
As noted previously, this is true of “conscious possession,” the term used in the instruction.
Conscious here simply refers to knowledge that one is in possession of an item, not that the item was
stolen. See People v. Najera, supra, 43 Cal.4th at 1138.
14
. . . has been solved when guilty possession fixes the identity of the offender. There remains the
question of the nature of his offense.” (People v.Galbo (1916) 218 N.Y. 283, 290 (Cardozo, J.).
Thus, since “slight” corroboration will typically go also to identity or to at most one element of the
offense, and since, as was true here, more than one of these will frequently be at issue, it is often a
logical impossibility that all bases will be covered at all, much less covered to the exclusion of
reasonable doubt. For example, corroboration may go only to identity, which is the only fact which
possession helps prove as well. Indeed, the only clear corroboration in petitioner’s case (need,
opportunity, DNA on glasses) went to the identity of the perpetrator; his jury was relieved of
deciding whether the manner of the killings showed a pre-existing intent to rob. It is manifestly
untrue that possession and, for example, opportunity, alone could eliminate all doubts as to whether
petitioner was the one who originally took the jewelry, whether he did so at the time of the fatal
crimes or took only the two items he pawned on a prior occasion and got rid of them when the
homicides hit the news, and whether the taking August 4 was a robbery or an opportunistic
postmortem theft.
The instruction stands reality on its head. In circumstances like petitioner’s, possession
corroborates other evidence of the charged offenses, rather than coming so close to proving all their
elements beyond a reasonable doubt that only slight additional corroboration is required. This may
be less true in the crime of possession of stolen property, where, as noted above, the rule seems to
have originated. Perhaps the principle can legitimately reach theft itself and even burglary, under
some circumstances. But clearly the instruction collapsed the distinction between theft and robbery.
For when it comes to robbery, possession and slight corroboration (like the opportunity to steal)
show nothing about, e.g., the temporal relationship of the use of force to formation of the intent to
steal.
15
Giving the instruction violated the federal constitution in two ways. It invited a finding of
guilt on evidence that did not necessarily meet the reasonable-doubt standard. Victor v. Nebraska,
supra, 511 U.S. 1, 6. And it offered the jury an irrational permissive inference, one in which the fact
inferred (there were no reasonable doubts as to petitioner’s guilt of robbery, versus theft or receiving
stolen property) was not made more likely than not. Leary v. United States, supra, 395 U.S. 6, 36.
C.
California’s Justifications for the Instruction Are Illogical and Unreasonable
The court below responded to the contention made here as follows:
“We have previously rejected the same arguments, concluding that CALJIC No.2.15
appropriately permits — but does not require — jurors to infer guilt of burglary,
robbery, or theft from the possession of stolen property plus some corroborating
evidence, and that it does not violate due process or reduce the burden of proof.”
People v. Grimes (2016) 1 Cal.5th 698, 730; see also People v. Letner and Tobin
(2010) 50 Cal.4th 99, 189 [“the jury separately was instructed regarding the elements
of both robbery and theft, and there was no suggestion in the challenged instruction
that the jury need not find that all of the elements of robbery (or theft) had been
proved beyond a reasonable doubt”].) We see no persuasive reason to revisit or
distinguish our precedent.
App. 43.
This did not rebut the claim of error. As to the quotation from Grimes, Petitioner did not and
does not complain that the instruction required a finding of guilt; the problem is that it permitted it
on insufficient evidence.
As to the bracketed quotation from Letner and Tobin—an assertion that the instruction does
not absolve the jury from finding all the elements of robbery proven beyond a reasonable doubt—this
can also be answered easily. The court failed to recognize that most of the instruction tells the jury
that possession plus slight corroboration are enough to convict on theft-related charges. The
California court has recognized this previously,15 and here the prosecutor emphasized that fact in
15
See, e.g., People v. Grimes, supra, 1 Cal.5th at 731 (the instruction expresses the rule on
(continued...)
16
argument, observing that—per the instruction—possession plus the opportunity to steal “meets our
burden.”16 If possession and slight corroboration are sufficient, there is in fact no need to find that
the property was taken by force, and from the personal possession of the victims.
The appellate court’s shift from acknowledging that the instruction expresses what is
sufficient to warrant conviction to claiming that it does not absolve the jury of its duty to decide if
each element was proven—when in fact it does give them a simpler route to conviction—ignores the
likelihood that the jury would intuitively apply the common-sense principle, used frequently by
courts in construing contracts17 and statutes,18 that the particular (here, how to find guilt of robbery)
controls over the general (need to find elements of offenses true). See also United States v. RubioVillareal, 967 F.2d 294, 300 (9th Cir. 1992) (general instructions on how to determine guilt do not
cure giving of an erroneous permissive-inference instruction). Moreover, the opinion does not
acknowledge the rule that the giving of a proper reasonable doubt instruction does not save an
15
(...continued)
what is sufficient “to warrant conviction”); see also People v. Gamache, supra, 48 Cal.4th 347, 375
(describing the instruction as discussing what is sufficient to sustain a conviction).
16
“There’s an instruction that possession of stolen property, of recently stolen property is not
by itself sufficient to permit an inference that the defendant is guilty of robbery or grand theft. That
may seem a little strange to you because it’s logical if they've gotten the stolen property, it’s pretty
good evidence that they're the thieves. The law acknowledges that, but says you need just a little bit
more and says you need slight evidence to establish the robbery or the theft. And it gives you some
examples, but it only requires slight evidence, and that slight evidence need not be of—well, slight,
not of great weight.
“One of the examples they give is simply we have to show not only that he had the stolen
property, but he had the opportunity to steal it. And that meets our burden.” RT 11: 2379–2380.
17
See National Ins. Underwriters v. Carter, 17 Cal.3d 380, 386 (1976) (construing
contract—particular controls over the general).
18
Action Apartment Ass’n, Inc. v. City of Santa Monica 41 Cal.4th 1232, 1246 (2007)
(statutory construction—particular controls over the general).
17
instructional package which includes explanations which eviscerate that standard. Cage v. Louisiana,
supra, 498 U.S. 39.
In People v. Grimes, supra, one of the cases on which the California court relied in its
summary disposition of petitioner’s case, the court in turn relied on People v. Gamache, 48 Cal.4th
347 (2010); People v. Parson, 44 Cal.4th 332 (2008); and People v. Smithey, 20 Cal.4th 936 (1999).
These support the court’s position that it has previously rejected attacks on the instruction but
provide no firmer basis for doing so.
Parson asserted, “there is nothing in the instruction that directly or indirectly addresses the
burden of proof, and nothing in it relieves the prosecution of its burden to establish guilt beyond a
reasonable doubt,” citing People v. Prieto (2003) 30 Cal.4th 226, 248. People v. Parson, supra, 44
Cal.4th at 355–356. Prieto did state that, but it and Parson overlooked that the instruction need not
address the burden of proof directly to impact it; it does so by telling the jury the requirements for
finding guilt of the specified charges. Any such statement is an explication of the burden of proof.
People v. Parson also addressed a permissive-inference contention:
Moreover, the instruction did not create a permissive presumption that violated due
process, because “‘reason and common sense’” justified the suggested conclusion
that defendant’s conscious possession and use of recently stolen property tended to
show his guilt of robbery and burglary.
People v. Parson, supra, 44 Cal.4th at 356, emphasis added. Unfortunately, the instruction does not
merely state the obvious point that possession can tend to show guilt; it says that possession alone
is insufficient to permit an inference of guilt but that, with slight corroboration, it is sufficient.
Reason and common sense do not justify that conclusion.
In People v. Gamache, supra, 48 Cal.4th 347, the court also observed that the instruction
does not require the jury to convict. Other than that, it relied only on an assertion that “reason and
common sense” justify the inference permitted by the instruction, partially quoting authority which,
18
again, when read in full, turns out to have claimed only that the evidence in question tended to show
guilt, in light of the specific corroborating evidence in that case. People v. Gamache, supra, 48
Cal.4th at 375, quoting People v. Yeoman, 31 Cal.4th 93, 131 (2003).
People v. Smithey, supra, 20 Cal.4th 936, the third and final case relied on in People v.
Grimes, supra, reiterated earlier holdings that there is “no error in giving the instruction—and no
constitutional violation—when there was corroborating evidence sufficient to permit the jury to find
beyond a reasonable doubt possession of stolen property and intent to steal.” 20 Cal.4th 936, 977.
This is beside the point. Even if there is additional evidence that a reviewing court finds could have
been sufficient to convict, a jury told that it could infer guilt of robbery merely from possession and
slight corroboration may have relied on that instruction, rather than taking the time to evaluate all
the evidence and determine if its implications excluded all reasonable doubts. Cf. Connecticut v.
Johnson, 460 U.S. 73, 85–86 (1983) (“An erroneous presumption on a disputed element of the crime
renders irrelevant the evidence on the issue because the jury may have relied upon the presumption
rather than upon that evidence”) (plur. opn.). Otherwise, Smithey contained no reasoning not dealt
with above in the discussion of other cases.
Besides citing Parson, Gamache, and Smithey, the only reasoning contained in the precedent
on which the court below relies in petitioner’s case, People v. Grimes, is that “‘[p]ossession of
recently stolen property is so incriminating that to warrant conviction there need only be, in addition
to possession, slight corroboration in the form of statements or conduct of the defendant tending to
show his guilt.’ (People v. McFarland (1962) 58 Cal.2d 748, 754.)” People v. Grimes, supra, 1 Cal.
5th 698, 731. As petitioner pointed out to the California Supreme Court,19 however, McFarland
made no attempt to include robbery in its analysis; it specifically named theft, burglary, and receiving
19
Appellant’s Opening Brief 127–129, Appellant’s Supplemental Opening Brief 27–28.
19
stolen property as the crimes that could be proven in that manner. Even then, additional proof in the
form of a false explanation or remaining silent when silence was incriminating was required.
Nothing in the case supports allowing a jury to treat the additional elements required to prove
robbery as also proven by mere possession plus some slight corroboration. People v. McFarland,
supra, 58 Cal.2d 748, 755.
The cases discussed above exhaust California’s attempts to justify its rule. None contains
reasoning which defeats the obvious fact that the instruction offers the jury an easier alternative to
conviction that finding every element of robbery proven to the constitutional standard.
II.
THERE IS A JURISDICTIONAL SPLIT ON THE QUESTION PRESENTED
There is a split in the jurisdictions on the question presented here. Either California and the
states taking a similar approach are—as petitioner maintains—permitting robbery and deatheligibility determinations to be made on an unfair and completely irrational basis, or other states and
the federal courts are unnecessarily depriving prosecutors of a useful and permissible tool. This
Court should decide which is the case.
A.
A Few Courts Have Taken California’s Approach
Case law in this area is difficult to find, probably because so few courts even consider
handling it as California does. It is clear, however, that there are other states which offer juries the
option of finding guilt of robbery from unexplained possession of stolen property. Moreover,
California is a very large jurisdiction that charges 17,000 people with robbery annually and currently
incarcerates 220,000 people overall (see p. 11 and nn. 9, 10, above), and its divergence from others
in itself creates an important question of law.
People v. Powloski, 311 Ill. 284, 142 N.E. 551 (1924) summarily approved, in a robbery
prosecution, an instruction that unexplained possession of stolen property “soon after the theft. . .
20
is sufficient to authorize a conviction” unless other facts raise a doubt. The court did not explain
why, other than by citing larceny cases and a larceny/burglary case where the larceny could only have
been committed via burglary. In People v. Duckins, 59 Ill.App.3d 96, 375 N.E.2d 173 (1978), the
court also found no prejudicial error in an instruction permitting an inference of guilt of armed
robbery based on possession of recently stolen property. It noted that the purpose of the permitted
inference was only to establish identity, not the force element of robbery, without explaining how
the jury was to know that in the absence of language to that effect, and it relied on the fact that the
jury was otherwise correctly instructed on the elements of robbery. However, the court noted that
the instruction would be “more precise and less debatable” if it conditioned applicability of the
inference on a separate jury finding that there had been an armed robbery. People v. Duckins, supra,
375 N.E.2d at 98–99.
In the unpublished proceedings in Wilkins v. Sec’y, Dept. of Corrections, Case No. 4:14-cv154-WS-GRJ (N.D. Fla. Feb. 16, 2017), a magistrate judge’s Report and Recommendations recited
that, in his state appeal, the defendant complained that “the trial court abused its discretion by
instructing the jury that possession of recently stolen property may justify a conviction of robbery”
and that Florida’s District Court of Appeal affirmed without opinion. Id. at 12. (The magistrate
found the federal habeas corpus action procedurally defaulted and did not reach the merits.) On the
other hand, while the Florida Standard Jury Instructions approved by that state’s supreme court
permit instructing, “Proof of possession of recently stolen property, unless satisfactorily explained,
gives rise to an inference that the person in possession of the property knew or should have known
that the property had been stolen,” Fla. Standard Jury Instructions, Crim. No. 14.1, there is no such
option in the robbery instruction. Id., Crim. No. 15.1.
21
In State v. Rhymes 107 Ariz. 12, 480 P.2d 662 (1971), a robbery prosecution, the court
approved an instruction permitting the jury to infer the defendant’s guilt from unexplained
possession of recently stolen property, finding no due process violation, because there is a rational
connection between the conclusion and the fact proven. 480 P.2d at 666–667.
B.
This Court Has Previously Urged Caution in this Area
In Barnes v. United States, supra, 412 U.S. 837, 843–844, this Court observed, “that an
inference of guilty knowledge may be drawn from the fact of unexplained possession of stolen
goods” is a “traditional common-law inference deeply rooted in our law.” The instruction challenged
in that case told the jury that unexplained possession of recently stolen property permits “reasonably
draw[ing] the inference and find[ing], in the light of the surrounding circumstances shown by the
evidence,” that the possessor knew the property had been stolen; that they were not required to make
the inference; and that other elements of the offense (which were specified in the instruction) must
be found beyond a reasonable doubt. (Id., at 840, n. 3.) The Court affirmed, not on the basis of the
reasonableness of the inference in the abstract, but on the basis of its reasonableness under the
circumstances of the case. (Id. at 845–846.)
The Court in Barnes also made a point of stating, “We do not decide today whether a judgeformulated inference of less antiquity or authority may properly be emphasized by a jury instruction.”
(Id. at 846, n. 11.) That, of course, is exactly what California, Illinois, Arizona, and perhaps others
are doing, by extending the inference well past guilty knowledge of a possessor, to all the elements
of robbery and offering the inference without the cautions about finding the other elements true.
C.
Other Jurisdictions Disagree With the California Approach
In New York, if conflicting evidence could be read to have established or not established that
the defendant in possession of recently stolen property acquired it in a robbery, versus a lesser crime,
22
it is reversible error to “[t]o charge only that from unexplained or falsely explained possession of part
of the robbery proceeds the jury could infer that defendant was [‘]the criminal[’] . . . .” What was
missing was language “explaining . . . further that defendant, if guilty at all, could be found guilty
of either robbery or possession of stolen property . . . .” People v. Baskerville, 60 N.Y.2d 374, 380,
384; 469 N.Y.S.2d 646 (1983). In other words, even though the jury clearly was instructed on the
lesser offense, treating possession as a reason to convict of the greater was reversible error.
In Colorado a jury may be told “that the defendant’s recent and unexplained possession of
the stolen property could serve as the basis for an inference that the defendant took the money,” but
not “that such recent and unexplained possession could also serve as the basis for inferring the other
essential elements of the crime of aggravated robbery and thus could be sufficient in and of itself to
justify a guilty verdict to aggravated robbery.” People v. Hampton, 758 P.2d 1344, 1355 (Col. 1988),
emphasis added. Moreover, the possession instruction approved in Hampton “expressly admonished
the jury that ‘[y]ou must, of course, find each and every element of each of the crimes charged,
including identity, in order to find the Defendant guilty.’” (Ibid.)
Similarly, the model instruction approved in Pendergrast v. United States (D.C. Cir. 1969)
416 F.2d 776, 790–791, emphasizes more than once that the inference related to identity may only
be applied if the government has proved every element of robbery itself beyond a reasonable doubt.
North Carolina permits instructing “that if and when it is established that there was an armed
robbery in which property was stolen, then the possession of such recently stolen property raises a
presumption of fact that the possessor is guilty of the armed robbery.” Thus, unlike in petitioner’s
case, the presumption or inference cannot be used to prove that the taking was an armed robbery.
State v. Hickson, 25 N.C.App. 619, 621, 214 S.E.2d 259 (1975).
23
Similarly, a Tennessee court upheld an instruction informing the jury that it could reasonably
infer, from possession, that the defendant committed a robbery only if it first found beyond a
reasonable doubt that the defendant gained possession through theft “and you also find beyond a
reasonable doubt that the theft could only have been accomplished through robbery. . . .” State v.
Foust, 482 S.W.3d 20, 53–55 (Tenn.Crim.App. 2015). The instruction also contained numerous
cautions not employed in California.20
In United States v. Carter, 522 F.2d 666 (D.C. Cir. 1975), the crimes associated with a theft
were other than robbery, but the case is analogous and the court’s reasoning is still pertinent. The
appellant did not challenge the applicability of an inference from recent possession to theft, and the
court noted authority upholding it. Id. at 678–679 and nn. 43–44. But it was error to instruct the jury
that it could find the defendant “guilty of the crimes charged,” where those included not only theft,
but possession of a Molotov cocktail, burglary while armed with it, and attempted arson. (A device
with a scorched wick had been found near the place from which property had been taken.) Id. at
679–680. Because possession of the stolen goods did not support an inference that defendant
possessed, carried, or tried to use the ignition device, the instruction “sanctioned inferences that the
jury might not have felt to be warranted by the evidence, absent the instruction.” (Ibid.) The same
problem arises when possession is offered to a jury as practically sufficient grounds for robbery and
robbery-murder.
20
These were: that the jury is “never required” to make the permitted inference, that it is for
the jury to determine whether the facts warrant the inference, that possession may be explained by
circumstances or evidence independent of any offered by the defense, and that the longer the interval
between the taking and the point where the defendant was found in possession, “the more doubtful
becomes the inference,” along with a reminder of the prosecution’s burden of proof. State v. Foust,
supra, 482 S.W.3d 20, 53–54.
24
Even in the more typical case where the issue is theft versus merely receiving stolen property,
New York permits only a far more cautious instruction than California.
[T]he jury must be charged that if they find that defendant had possession of recently
stolen property for the possession of which he has offered no explanation or an
explanation which they find to be untrue, they may, although they are not required
to, infer that defendant was guilty of a crime and must then weigh the evidence
before them to determine whether it establishes beyond a reasonable doubt that the
defendant participated in the theft of the property or received it after it was stolen
with knowledge of that fact . . . .”
People v. Baskerville, supra, 60 N.Y.2d 374, 380, 383; see also United States v. Jones, supra, 418
F.2d 818 (robbery verdict not supported by substantial evidence where possession, false explanation
of possession, and suspicious behavior left “the government attempt[ing] to justify the conviction
for the aggravated offense on the same evidence that is only equally consistent with guilt of a lesser
crime,” namely, knowingly receiving stolen property. Id. at 824.
Clearly there is a division among U.S. jurisdictions as to what is constitutionally permissible.
III.
Despite Revision of the Instruction Since Petitioner’s Trial, California Still Gives Juries
an End-Run Around the Winship Standard in Robbery and Robbery-Murder Cases
In 2005 the quasi-official CALJIC instructions, of which CALJIC No. 2.15 was a part, were
officially replaced another set, called CALCRIM. CALCRIM No. 376 both repeats and somewhat
ameliorates the defect in the CALJIC instruction.21 It still permits conviction of robbery upon proof
21
“If you conclude that the defendant knew (he/she) possessed property and you conclude that
the property had in fact been recently (stolen/extorted), you may not convict the defendant of <insert
crime> based on those facts alone. However, if you also find that supporting evidence tends to prove
(his/her) guilt, then you may conclude that the evidence is sufficient to prove (he/she) committed
<insert crime>.
“The supporting evidence need only be slight and need not be enough by itself to prove guilt.
You may consider how, where, and when the defendant possessed the property, along with any other
relevant circumstances tending to prove (his/her) guilt of<insert crime>.
“[You may also consider whether <insert otherappropriate factors for consideration>.]
“Remember that you may not convict the defendant of any crime unless you are convinced
that each fact essential to the conclusion that the defendant is guilty of that crime has been proved
(continued...)
25
of possession of recently stolen property, as long as there is “slight” supporting evidence of the
defendant’s guilt; permits argumentatively inserting examples, from the evidence, of possible
corroboration; and states specifically that such a combination of evidence is “sufficient to prove”
guilt. To its authors’ credit, however, it concludes, “Remember that you may not convict the
defendant of any crime unless you are convinced that each fact essential to the conclusion that the
defendant is guilty of that crime has been proved beyond a reasonable doubt.” But these are
contradictory directives, and it is left to jurors to decide which to follow. Either possession plus some
other “slight” evidence permits them to convict of robbery, or they must determine that all the
evidence proves every element of that crime beyond a reasonable doubt. The latter choice would
require them to assume that the entire instruction is an unnecessary detour, telling them nothing they
would not already know from other instructions.
In any event, the revised instruction did not go into effect until more than seven years after
petitioner’s 1998 trial. As his case shows, the California Supreme Court is still quite behind in its
heavy capital caseload and still affirming death sentences where robbery-murder convictions were
obtained with the aid of the infirm CALJIC instruction.
//
//
21
(...continued)
beyond a reasonable doubt.”
Citing authority on the scope of crimes for which the comparable CALJIC instruction at
issue here could be used, the Bench Notes for the instruction state, “The instruction may be given
when the charged crime is robbery, burglary, theft, or receiving stolen property.” 1 Judicial Council
of California, Criminal Jury Instructions: CALCRIM 149 (2019).
26
CONCLUSION
California offers juries the option of convicting a defendant of robbery—and with it deatheligible murder—upon proof that may well consist of evidence only showing that there was a theft
and that the defendant was the thief. It is apparently an outlier in this regard, but one with a criminal
justice system that impacts a very large number of citizens, and as the cases cited on pages 20–22,
above, show, other courts can stumble into the error. This Court should intervene to decide whether
imprisoning or executing people on such a basis accords with due process of law or is an
unconstitutional, all-too-easy process for convicting them.
DATED: August 16, 2019
Respectfully submitted,
/s/
Michael P. Goldstein,
Counsel of Record for Petitioner
27
APPENDIX
Opinion of the Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Order Denying Rehearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
28
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS POTTS,
Defendant and Appellant.
S072161
Kings County Superior Court
97CM2167
March 28, 2019
Chief Justice Cantil-Sakauye authored the opinion of the court,
in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger, and
Simons* concurred.
Justice Liu filed a concurring opinion in which Justice Cuéllar
concurred.
*
Associate Justice of the Court of Appeal, First Appellate
District, Division Five, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. POTTS
S072161
Opinion of the Court by Cantil-Sakauye, C. J.
This case arises from the robbery and murder of an elderly
couple found dead in their home. A jury convicted defendant
Thomas Potts of two counts of first degree murder, one count of
first degree robbery, and one count of grand theft (from a
different victim). (Pen. Code, §§ 187, subd. (a) [murder], 211
[robbery], 487, subd. (a) [grand theft].)1 The jury found that
defendant knew or reasonably should have known that each
murder victim was at least 65 years old. (§ 667.9, subd. (a)
[elderly victim enhancement].) The jury also found true two
different special circumstance allegations — multiple murder
and robbery murder — and returned verdicts of death at the
close of the penalty phase. (§ 190.2, subds. (a)(3) [multiple
murder], (a)(17) [robbery murder].) As relevant here, the trial
court found true two prior felony offense allegations; imposed a
four-year determinate term based on the age of the victims;
imposed a $10,000 restitution fine; denied the automatic motion
to modify the verdict; and sentenced defendant to death.
(§§ 190.4, subd. (e) [automatic motion], 1202.4 [restitution].)
This appeal is automatic. (§ 1239, subd. (b).) We modify the
judgment by striking the four-year determinate term and
otherwise affirm.
1
All unspecified statutory references are to the Penal Code.
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
I. BACKGROUND
A. Guilt Phase
1. Prosecution case
a. Crime scene
Fred and Shirley Jenks made their home in Hanford,
California. A florist attempted to deliver them flowers on the
morning of August 5, 1997. When the Jenkses’ doorbell went
unanswered, the florist entrusted the flowers to a neighbor
rather than leaving them to wilt outside in the summer heat.
That evening, the neighbor went to see whether the
Jenkses were home.
When their doorbell again went
unanswered, the neighbor peered through a glass portion of the
front door. Inside, she saw Fred’s body — with blood on the floor
and splattered on the wall. Police later discovered Shirley’s
body in the master bedroom. The evidence adduced at trial
suggested that Fred and Shirley had each been attacked with a
hatchet-type weapon and at least one knife. There was no
dispute that the attacks likely occurred the previous day, after
1:00 p.m.
Detective Darrell Walker led the homicide investigation.
He observed that drops of blood near Fred’s body reached as high
as a roughly ten-foot-tall ceiling. Near the body, Walker saw a
small metallic pin of the sort used to connect a watch band to a
watch face. The watch on Fred’s wrist had pins intact.
Underneath him, however, was a watch with a missing pin and
a partially detached band.
Bloody shoeprints were found at the scene. The prints had
a wavy pattern and at least some bore the word “Nike.” A print
2
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
similar to those seen in several portions of the house also
appeared on Fred’s back.
Investigators found an open cutlery drawer in the Jenkses’
kitchen. One knife was discovered in the Jenkses’ pantry,
sticking out of a package of cookies. The kitchen sink contained
a short-bladed paring knife and a knife sharpener, both of which
tested positive for blood. The blood on the sharpener could have
come from Fred, but could not have come from Shirley. A longerbladed boning or filet-type knife was found in the Jenkses’
master bedroom, with blood on the knife’s handle. Neither Fred
nor Shirley was excluded as a potential blood contributor.
The knife in the master bedroom was found underneath
various boxes. Although some valuables remained in the room,
portions of it had been “ransacked” — with empty jewelry trays
and more than 30 empty jewelry boxes left behind. All told, it
appeared that at least 200 pieces of jewelry had been taken. By
contrast, a different bedroom was found “basically immaculate.”
No direct evidence indicated how the perpetrator entered
the Jenkses’ home. The only window or exterior door that was
unlocked, however, was the front door, and glass panes made it
possible to see who was outside that door before opening it.
There were no signs of forced entry.
b. Causes of deaths
Armand Dollinger, M.D., performed both autopsies. He
testified that Fred suffered “numerous contusions, bruises,
abrasions, lacerations, and . . . stab wounds.” Twenty-eight
separate wounds were visible on the top and back of Fred’s head.
Several of his fingers were nearly amputated. His chest had
been stabbed nine times, causing six wounds to his lungs. His
3
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
ribs were fractured in a manner consistent with “[s]omebody
forcibly jumping or stomping on . . . either the front or the back
of the chest.”
Dr. Dollinger opined that the instruments used to attack
Fred likely included a knife and “a narrow-bladed hatchet” with
a round hammer on the back. It was possible that Fred was
stabbed with both the shorter knife in the kitchen sink and the
longer knife in the master bedroom. The shorter knife alone
may not have been long enough to cause some of Fred’s injuries.
Dr. Dollinger identified Fred’s cause of death as “open
cranial injuries due to multiple blunt trauma and stab wounds
of the head. Other contributing conditions, multiple stab
wounds of posterior chest with penetrating wounds of the
lungs.” Blood found in Fred’s pleural cavity indicated to Dr.
Dollinger that Fred was “probably alive when he sustained stab
wounds to the chest,” though Dr. Dollinger acknowledged that
prior head wounds “might have” killed Fred instantly and
collectively left him, “if not already dead, [then] almost dead and
dying.”
Shirley suffered three main types of injuries. She was
struck four times in the head with a hatchet-type weapon,
fracturing her skull and causing brain tissue to extrude from a
wound. She was stabbed at least six times in the chest,
puncturing her heart. And she was twice slashed across the
throat.
Dr. Dollinger described for the jury what he believed to be
the sequence of wounds that caused Shirley’s death: “It’s my
opinion that she was down on her back, unconscious, dying, as
a result of the wounds to her head when the stab wounds were
incurred. She was near — certainly near death at that time
4
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
because there was very little bleeding into the chest. I feel that
she was actually probably dead at the time the slashing wounds
were made. I can’t be absolutely certain on that, they could all
have been postmortem . . . , but she was near death or dead at
the time the chest wounds were incurred and the slashing
wounds of the throat.” The longer knife found in the bedroom
could have caused Shirley’s stab and slash wounds.
c. Thomas Potts
Defendant Thomas Potts worked as a part-time
handyman and house cleaner.
Fred Jenks was one of
defendant’s clients. Because defendant did not own a car, Fred
would usually pick him up for work. Otherwise, defendant
would ride his bicycle.
Roughly six months before the murders, Sergeant Darrel
Smith “contact[ed]” defendant while defendant was cycling
down an alleyway. Smith testified that defendant was carrying
a dark duffel bag containing a small axe or hatchet, which had
a blunt edge opposite the blade. Defendant claimed to use the
hatchet for construction work and left with the tool. The
following month, a different officer stopped defendant.
Defendant was carrying a gym bag containing pawn receipts,
plus “a small hatchet” with a roughly 5-inch blade opposite
something “like a hammer.” Defendant again left with the tool.
Diana Williams, defendant’s friend and former roommate,
saw him nearly every day. She confirmed that defendant owned
a hatchet with a blade and “a hammer part.” Sometime during
the month before the murders, defendant moved into a new
apartment. Williams saw him use the hatchet in his new home
to hammer speaker wire into place.
5
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
Diana also described some of defendant’s other belongings.
When her son Quentin outgrew a pair of Nike shoes, he gave
them to defendant. Diana also had been with defendant when
he purchased the watch that he wore “every day.” She was
familiar with it because “the watch pin that would keep the band
on” would detach, and she at least twice helped him reinsert the
pin.
d. Events preceding the killings
Defendant received a Social Security payment on the first
of every month. Diana Williams was his payee. On August 1,
three days before the killings, she received the payment (around
$600) and gave it to defendant.
Defendant was a customer at a Hanford liquor store. The
store permitted him to maintain a charge account, with payment
due every 30 days. Defendant would ordinarily pay the prior
month’s bill on the first of each month; he paid his May ’97 bill
on June 1 and his June ’97 bill on July 1. On Friday, August 1,
however, defendant did not pay his $140 bill for July. According
to the store’s owner/operator, defendant instead called that day
to say that he would be in to pay his tab the following Monday
or Tuesday.
Williams returned from an out-of-town trip on Sunday,
August 3rd at around 4:00 p.m. Later that evening, at
defendant’s apartment, she and he watched a movie that he had
rented. Williams estimated that they met around 5:00 p.m. and
were together for two to three hours.
The next day, August 4th, defendant and Williams went
grocery shopping together around 11:00 a.m. Defendant told
Williams that “he didn’t have any money” because he had gone
6
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
to a casino in Lemoore. She did not see him after around 2:00
p.m. As noted, the People and the defense agreed that the
Jenkses were likely killed that day after 1:00 p.m.
e. Events after the killings
The day after the killings, on August 5th, defendant and
Williams saw each other for coffee before 9:00 a.m. She returned
home from work before noon. Williams believed she saw
defendant again that day, though she was not sure when or for
how long.
Oscar Galloway testified that he occasionally gave people
rides in his car for a few dollars. He took defendant to a casino
in Lemoore “a couple of times.” Because his memory of the
events of early August 1997 had faded, an investigator read
from a report he made of an interview with Galloway a few days
after the killings. According to the report, Galloway said that
on August 5, the day after the killings, he took defendant to a
casino and to a destination in downtown Hanford near “the
Cottage Bar on Seventh Street.”
The evidence adduced at trial suggested that defendant
visited a Hanford pawnshop “[o]n Seventh” that day. A
pawnshop employee explained that transactions required photo
identification and a thumbprint from the person seeking to
pawn property. She identified two pawn slips concerning
transactions by Thomas Potts at 1:50 p.m. on August 5. A
fingerprint analyst testified that the prints on the relevant
pawn slips matched defendant’s prints. Defendant pawned a
ring for $15 and a pendant for $35 — an amount less than his
liquor store tab, which he did not pay. At trial, Shirley Jenks’s
sister testified that the pawned items belonged to Shirley. The
7
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
Jenkses’ bodies were not discovered until after 7:00 p.m. on
August 5th.
Two officers went to defendant’s apartment at around 3:00
a.m. on August 6th, the morning after the bodies were
discovered, although the record suggests that the officers were
not yet aware of the aforementioned pawn transactions.
Defendant voluntarily accompanied the officers to a police
station, where he was questioned for about 20 or 30 minutes.
When asked about his hatchet, defendant said he thought he
lost it in his recent move. The officers returned defendant to his
apartment and obtained defendant’s consent to search. The
search revealed a blue duffel bag, but no hatchet, no Nike shoes,
and no bloody items.
Diana Williams testified that she and defendant likely
met for coffee later that morning, sometime between 8:00 and
9:00 a.m. She went to work and returned home before noon.
Defendant came to her apartment. Defendant, Williams, and
her son Quentin watched the noon news together; defendant and
Quentin in the living room, Williams possibly in the kitchen,
about 10 or 12 feet away. News of the Jenkses’ deaths came on
the television. Although the evidence at trial suggested that the
newscast made no mention of a hatchet, Quentin asked
defendant two or three times where his hatchet was. Williams
testified that she “th[ought] [defendant] avoided . . . the
question,” though she did not recall precisely how he did so.
Quentin testified at trial, however, that defendant said “he [did
not] want to discuss that around here because somebody might
have bugged the inside of [the] wall.” At the preliminary
hearing, Quentin claimed that defendant said, “I don’t want to
talk about it anymore” — despite having not yet discussed it.
8
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
That evening, defendant and Williams ran an errand
together. On the way back, she asked him what time it was.
“[H]e said that he didn’t have his watch on, and he never goes
anywhere without his watch . . . .”
That same day, according to the report of the interview
with driver Oscar Galloway, defendant returned to Galloway’s
residence to retrieve a duffel bag he had left in the back of
Galloway’s car. The time of day is not clear from the record.
According to the report, “Galloway noted that the bag did not
look as packed as the day before when Potts got out of his car
and left for a while.”
Williams believed she saw defendant the following day
(Thursday), although she was not sure at what time or for how
long. That day, an officer went to the aforementioned pawn shop
“to pick up the police department copies of all pawn slips since
the first part of August.” He gave the slips with the name
Thomas Jerry Potts on them to an investigator, who then
retrieved the pawned jewelry.
Police arrested defendant the day after obtaining the
jewelry. He was wearing eyeglasses at the time. Detective
Walker removed the glasses from defendant’s face and
examined them for possible trace evidence. Walker saw “what
appeared to be either a rust spot or a droplet of blood.” Later
DNA testing revealed that a combination of Fred Jenks’s and
defendant’s genetic material accounted for the DNA on the
glasses. An expert explained that it would be “[n]ot at all”
surprising to find defendant’s DNA on his own glasses.
Assuming that defendant’s DNA was on his glasses, the expert
continued, the odds of another person completing the DNA
profile on the glasses and contributing nothing more were 1 in
9
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
1.78 million Caucasians; 1 in 2.26 million African Americans; or
1 in 1.82 million Hispanics. Fred Jenks’s death certificate
described him as Caucasian.
The day of defendant’s arrest, Detective Walker spoke
with Diana Williams. She described defendant’s watch before
Walker showed her the watch found at the crime scene. When
Walker then showed her the watch, she identified it as
defendant’s.
Near the end of that month, Williams cleaned out
defendant’s apartment, essentially moving him out. She did not
find Nike shoes, the hatchet, a “fairly new” “pair of jeans . . . he
used to wear all the time,” a “fairly new” Wilson shirt, or his
watch.
f. Grand theft (count 4)
Before the Jenkses were killed, defendant cleaned the
home of Viola Bettencourt and her companion Frank.
Bettencourt wore a ring one day and placed it in a container on
her dresser when she returned home. Defendant came to clean
the next day. The day after he cleaned, Bettencourt noticed that
the ring was missing. When defendant returned to clean the
following week, she accused him of taking the ring. Defendant
denied the allegation, saying, “[n]o, I don’t do things like that.”
He did not hit, threaten, or do anything that frightened her.
Defendant cleaned for another hour or two, but Bettencourt did
not hire him after that.
A pawn slip suggested that on June 26, 1997 — the same
day of the week that Bettencourt believed defendant took her
ring — defendant pawned a ring at about 3:00 pm. The
description of the property pawned was consistent with a ring
10
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
that Bettencourt identified as her own. Defendant apparently
received $100 for the ring; paid $114.50 on July 1, 1997, to get
the ring back; and pawned it again at a different shop that same
day for $125. Police retrieved the ring, which Bettencourt
identified as her own. Bettencourt’s ring appraised for $1,250
in 1967 and reappraised for $3,500 in August 1997.
2. Defense case
The thrust of the defense was that defendant did not kill
the Jenkses. Cross-examination focused on alleged gaps or
inconsistencies in the prosecution’s evidence, including
testimony regarding the characteristics of defendant’s hatchet;
whether the blood on defendant’s glasses was analyzed
correctly; and the lack of evidence that defendant tracked home
blood or had otherwise been at the crime scene. For example,
defense counsel elicited testimony that a fingerprint analyst had
lifted an estimated 15 to 20 usable prints from the crime scene
and was able to eliminate defendant as having left any of those
prints.
The only witnesses called by the defense had already
testified during the prosecution’s case-in-chief. Two witnesses
discussed how an intensive search of defendant’s apartment
after his arrest failed to yield evidence that he was involved in
the Jenkses’ killings. Another conceded that no blood was found
on defendant’s bicycle. Diana Williams clarified when and
where she saw defendant during the relevant period. And
Quentin admitted that the comment he claimed to hear
defendant make while watching the news should have been
heard by his mother, who had denied hearing it. No evidence
was presented regarding defendant’s whereabouts after he left
Williams’s company on the day of the killings.
11
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
B. Penalty Phase
1. Prosecution case
At the penalty phase, the People presented evidence that
defendant had sexually assaulted three women, including
Shirley Jenks. The People also elicited victim impact testimony
and introduced documents revealing that defendant had
suffered several prior convictions.
a. Sexual assaults
Carol T. testified that in 1979, when she was 16 years old,
she moved to California with her boyfriend and began searching
for a job. When she was waiting at a bus stop, defendant offered
her a ride in the car he was driving. He took her to pick up job
applications. By late afternoon, Carol had asked him several
times to take her home. Defendant did not do so; eventually, he
instead took her to his apartment, which she did not wish to
enter. When they arrived inside, defendant shut the door and
put a straight razor to Carol’s throat. He then raped her and
attempted forcible anal penetration. Carol eventually escaped
from the apartment by jumping out a second-story bathroom
window. Cross-examination focused on the fact that defendant
had been drinking, and possibly smoking marijuana, before the
assault.
Diane H. was acquainted with defendant through his
then-wife Lori, who sometimes babysat on Diane’s behalf. One
evening in February 1980, at around 9:00 or 10:00 p.m.,
defendant came to Diane’s house alone, intoxicated, and
uninvited. Diane was home with her two young children, but
her husband was incarcerated at the time. She let defendant in
and offered him coffee to help sober him up, “so he could go
12
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
home” without “get[ting] a drunk driving.” After he was let in,
defendant brought Diane to the ground and choked her. He then
forced her to have intercourse with him, stopping only when her
two-year-old child woke up and came into the living room. After
the child returned to bed, defendant raped Diane approximately
twice more. Cross-examination focused solely on the fact that
defendant was drunk at the time.
Sexual Assault Response Team (SART) nurse Georgeanne
Green examined Shirley’s corpse for evidence of sexual assault.
Green observed suspicious injuries that were consistent with
forced penetration. Additionally, Forensic Pathologist Thomas
Bennett reviewed Dr. Dollinger’s autopsy report, a SART case
summary, and photographs Green took during her examination.
He concluded that although no semen was recovered from
Shirley’s body, there was “clearly . . . evidence of forced sexual
penetration of Shirley Jenks.” Her injuries, he testified, could
have been inflicted as early as two hours prior to her death, or
as late as a few minutes after her death. If she were conscious
during the assault, she would have felt pain.
Bennett was not sure what “instrument” caused Shirley’s
injuries. “Could it be a finger? Yes. Could it be a broom handle?
Yes. Could it be a penis? Yes. It’s not specific.” Crossexamination elicited that Bennett did not find evidence of any
nontissue blunt object (such as a broom, as opposed to a body
part). Bennett further acknowledged that it was possible to
examine a man to determine whether he had engaged in forcible
sexual activity, and that such examination was done in this
case. The People presented no evidence suggesting that the
examination yielded inculpatory information. During closing
argument, however, the prosecutor observed that a videotape of
the crime scene showed Shirley’s body at the edge of the bed,
13
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
legs spread, without underwear, “and her nightgown is pulled
up, over up across her waist, exposing her private area.”
b. Victim impact
Clarence Washington was the Jenkses’ son-in-law,
through marriage to their daughter Debra. He had introduced
defendant (his cousin) to the Jenkses, who had high praise for
defendant’s work and “really liked him a lot.”
Clarence and the Jenkses were close. He had previously
lived with them for about a year, vacationed with them every
year for the eight years preceding their deaths, spoke with them
approximately every other day, and sometimes referred to them
as Mom and Dad. Fred Jenks was a father figure to Clarence,
whose own father had succumbed to cancer around 1992. At the
time of trial, Clarence was taking antidepressant medication
and had “been in intensive outpatient therapy.”
Clarence also testified that Debra was quite close to her
parents. She and Shirley Jenks, Clarence explained, were “more
of sisters, best friends, than mother and daughter”; they were
“extremely close” and spoke perhaps two or three times per day.
Debra and Clarence learned of the Jenkses’ deaths as the result
of a TV report. A friend of Debra saw a news story about a
couple who had been killed, which showed parts of the Jenkses’
home and a car belonging to Fred. The friend called Debra, who
was (and, earlier that day, had been) unable to reach her parents
by phone. According to Clarence, Debra went “ballistic.” He
took her to a psychiatric care facility the next morning. She
stayed in that facility for 22 days, was “released for a short
period,” entered another psychiatric facility, was again released,
entered another psychiatric facility, “and then right now she’s
heavily medicated.” Debra, Clarence testified, is now “almost
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Opinion of the Court by Cantil-Sakauye, C. J.
an invalid. I have to care for her just about 24 hours a day.”
“She has no will to live, and at times she has urinated and
defecated on herself.” “She’s said she’s not suicidal, but some of
her actions warn me to think that she is.”
Billie Lou Hazelum, Shirley Jenks’s sister, also testified.
Hazelum explained that Fred and Shirley had a “[v]ery good”
relationship; they were “[l]ike love birds.” She and Shirley, too,
had a “[w]onderful,” close friendship. When they were together,
they would “go shopping, talk about old times[,] [d]ance in the
morning when we’d get up to music.” She thought about Shirley
and Fred constantly. She even had to replace her cutlery, which
reminded her of one of the knives used in the murders.
Hazelum had also had a close relationship with the
Jenkses’ daughter Debra. She thought of Debra as one of her
own daughters and as a good friend. Since the murders,
however, Debra had been unwilling to see Hazelum, because
Hazelum resembled Shirley.
c. Prior convictions
The People introduced certified documents indicating that
defendant had been convicted of perjury, auto theft, statutory
rape (regarding Carol T.), and twice convicted of robbery.
Aside from the statutory rape conviction, defendant had
not been convicted of sexually assaulting either Carol T. or
Diane H. Carol T. left California before she was due to appear
in court. Diane H. did not report her assault to the police.
Among other things, she was afraid that if her husband became
aware of the assault, he would kill defendant, “[a]nd then [her]
babies would have been without a dad.”
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2. Defense case
Defense counsel called only two witnesses during the
penalty phase. Psychiatrist Norberto Tuason, M.D., assessed
defendant about four months before the killings. Defendant
complained of paranoia, and that he was hearing voices “again.”
Dr. Tuason concluded that defendant “suffered from chronic
paranoid schizophrenia,” with which defendant had been
previously diagnosed. Dr. Tuason was also concerned that
defendant abused alcohol. Concluding that defendant was
treatable and did not require hospitalization, Dr. Tuason
prescribed medication and recommended that defendant follow
up with him in two months. At the follow-up meeting about two
months before the killings, defendant told Dr. Tuason, “ ‘The
voices went away.’ ” Dr. Tuason further explained, however,
that it is often difficult to ensure that paranoid schizophrenics
stay on their medication, and he made clear that “symptoms can
recur within a day or two once the medication has been missed.”
Among other things, cross-examination explored whether
alcohol use might explain defendant’s symptoms. Dr. Tuason
admitted that, although his diagnosis was unchanged, excessive
alcohol use alone could explain defendant’s symptoms even if
defendant did not suffer from schizophrenia. When asked on
recross-examination, “[H]ow do you know it’s not alcohol abuse
instead of schizophrenia?,” Tuason responded, “I don’t know.
You would not know.” Cross-examination also revealed that
defendant was aware and logical during his interview with Dr.
Tuason and that defendant was capable of knowing right from
wrong.
Moreover, although Dr. Tuason concluded that
defendant had “subnormal intelligence,” his conclusion was
based solely on defendant’s description of his academic
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performance, rather than an IQ test or a review of academic
records.
Dr. Tuason told the jury that defendant had been
examined by a social worker on August 10, 1997, several days
after the murders. The social worker indicated that defendant
was “ ‘currently medically noncompliant,’ ” which, Tuason
explained, means in the field that defendant was not taking
medication as recommended. That notwithstanding, defendant
reportedly “ ‘denie[d] any hallucinations, suicidal ideations or
homicidal thoughts’ ”; was “ ‘[n]ot exhibiting any psychotic
behaviors’ ”; and did not “ ‘present an immediate danger to self
or others.’ ”
Defendant’s mother Lula also testified.
Lula and
defendant’s father separated when defendant was about two
years old. Defendant “loved his father and he couldn’t
understand why his father wasn’t there.”
Lula moved the family to Los Angeles when defendant was
about two-and-a-half years old. She raised him as a single
mother until he was about 14 years old, after which she
remarried. Defendant was a “good boy” until he was about 16,
when he began getting in trouble, “joyriding in cars and things
like that.” She and defendant’s stepfather then brought him
back to Hanford (where he had been born), apparently at
defendant’s request. According to Lula, defendant believed he
would be able to stay out of trouble in a small town. He also
“loved his cousins” in the Hanford area and “wanted to be
around them.”
Lula asked the jury to spare her son’s life. Even after he
found trouble, she testified, she knew him to be “a quiet,
easygoing person” who “loved his family a lot.” He loved and
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tried to protect his mother and sister. He came to know and love
his stepfather. He was kind, loving, and compassionate with his
own son. “My son didn’t kill those people,” she testified, “[h]e’s
not that kind of a person.” Defendant, she added, was “brought
up God fearing,” and during his incarceration, “[h]e’s reading
the bible, he’s praying.”
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant concedes that the evidence adduced at trial
provides “an arguably satisfactory” answer to the question of
who killed the Jenkses. Indeed. The evidence inculpating
defendant as the killer included the blood on his glasses; the
jewelry he pawned before the Jenkses’ bodies were discovered;
the lack of indicia of forced entry; his missing watch, found
under Fred Jenks’s corpse; the hatchet supposedly lost in his
move, yet seen in his new apartment; and his refusal to answer
Quentin’s questions about where the hatchet could be found.
That said, a conclusion that defendant killed the Jenkses does
not itself imply that he is guilty of murder in the first degree.
Instead, defendant is guilty of two counts of first degree murder
only if each killing (1) was premeditated and deliberate or
(2) occurred during the commission or attempted commission of
robbery. (See § 189 [first degree murder]; People v. Daveggio
and Michaud (2018) 4 Cal.5th 790, 847-849 (Daveggio).)
Defendant contends that the evidence was insufficient to
support either theory. We disagree. Viewing the evidence in the
light most favorable to the prosecution, we conclude that a
rational trier of fact could have found, beyond a reasonable
doubt, that the killings were deliberate and premeditated, and
that they occurred during the commission of a robbery. (Jackson
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v. Virginia (1979) 443 U.S. 307, 319; see also People v. Rangel
(2016) 62 Cal.4th 1192, 1212 [discussing standard of review];
People v. Rodriguez (1999) 20 Cal.4th 1, 11 [same].)
1. Premeditation and deliberation
“A murder that is premediated and deliberate is murder
of the first degree.” (People v. Jurado (2006) 38 Cal.4th 72, 118
(Jurado).) “ ‘In this context, “premeditated” means “considered
beforehand,” and “deliberate” means “formed or arrived at or
determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.” ’ ”
(Ibid.) “ ‘An intentional killing is premeditated and deliberate
if it occurred as the result of preexisting thought and reflection
rather than unconsidered or rash impulse.’ ” (Ibid.; see also
People v. Anderson (1968) 70 Cal.2d 15, 24-34 (Anderson).) “The
true test is not the duration of time as much as it is the extent
of the reflection. Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly
. . . .” (People v. Thomas (1945) 25 Cal.2d 880, 900.) Such
reflection may be revealed by planning activity, motive, and the
manner of the killings, among other things. (See Anderson, at
pp. 26-27; People v. Perez (1992) 2 Cal.4th 1117, 1125 (Perez);
People v. Brooks (2017) 3 Cal.5th 1, 59; People v. Koontz (2002)
27 Cal.4th 1041, 1081 (Koontz); People v. Thomas (1992) 2
Cal.4th 489, 517.)
The evidence that defendant arrived at the Jenkses’ home
carrying a weapon suggests that the murders were planned.
(See People v. Salazar (2016) 63 Cal.4th 214, 245; People v.
Wharton (1991) 53 Cal.3d 522, 547; Perez, supra, 2 Cal.4th at p.
1128.) Although police had stopped defendant at least twice
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while he had his hatchet, Diana Williams’s testimony suggested
that defendant did not carry it routinely.
Defendant also had a motive to kill the Jenkses: to
facilitate the taking of Shirley Jenks’s jewelry. (Cf. Perez, supra,
2 Cal.4th, at p. 1128 [“the conduct of defendant after the
stabbing, such as the search of dresser drawers [and] jewelry
boxes . . . would appear to be inconsistent with a state of mind
that would have produced a rash, impulsive killing”].)
Defendant had previously taken jewelry from Bettencourt, who
accused him of doing so. He had opportunity to know, from
cleaning for the Jenkses, that Shirley owned significant
amounts of jewelry — and apparently knew enough to
“ransack[]” a room containing significant amounts of jewelry
while leaving another room “basically immaculate.” A rational
trier of fact could conclude that defendant killed the Jenkses so
that he could take their jewelry without risk that they would
identify him as the culprit. (Cf. Perez, at p. 1126 [“it is
reasonable to infer that defendant determined it was necessary
to kill Victoria to prevent her from identifying him”].)2
The manner of the killings also supports a finding of
premeditation and deliberation. The attack — involving
multiple weapons, numerous stabs and slashes, and,
apparently, a knife-sharpening interlude — was undoubtedly
“prolonged.” (People v. Sandoval (2015) 62 Cal.4th 394, 425; cf.
People v. Streeter (2012) 54 Cal.4th 205, 244 [manner of killing
suggested premeditation and deliberation where “defendant’s
2
Evidence bearing on whether the intent to steal was
formed before the killings is addressed post, in part II.A.2. The
evidence of premeditation and deliberation would be sufficient
even if this motive were ignored.
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acts occurred in stages”].) In particular, the attacks with the
knives suggest deliberation, not only because they came later,
but also because “plunging a lethal weapon into the chest
evidences a deliberate intention to kill.” (Anderson, supra, 70
Cal.2d at p. 27.) Further, a jury could quite reasonably infer
that a person who followed a horrific double homicide by opening
a package of cookies was not surprised and dismayed by what
he had done, as one who acted impulsively might be. The
evidence of premeditation and deliberation was particularly
strong with respect to Shirley’s murder, because defendant had
to travel through the house to reach her after attacking Fred
near the front door. (Cf. People v. Cage (2015) 62 Cal.4th 256,
277 [manner of killing suggested premeditation and
deliberation when, “instead of then leaving the home, defendant
stepped over or around Bruni’s bloody body and proceeded up
the stairs to David’s room”].)
On appeal, defendant encourages us to speculate about
what might have happened inside the Jenkses’ home, in service
of an argument that the jury could not have ruled out his
speculative hypotheticals beyond a reasonable doubt. We are
not persuaded. Defendant’s appellate briefing suggests, for
example, that he may have gone to the Jenkses’ house to work
and killed in a spontaneous fit of rage. But the Jenkses were
found dressed in night clothes, not as though they were
expecting company. Further, Diana Williams testified that
defendant ordinarily told her when he would be working, which
he did not do in the week or so before the killings: “Q. In the
week or so before [the day the bodies were discovered], did
[defendant] mention anything about going to work for the
Jenks? [¶] A. No. [¶] Q. Did he normally tell you when he
was going to be working? [¶] A. Yes. [¶] Q. And he didn’t tell
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you? [¶] A. No.” In this context, the fact that officers found a
few bloody dollars on Fred Jenks’s body would not have required
rational jurors to conclude that the murders were the
spontaneous result of a job gone bad, rather than premeditated.
Moreover, this theory calls for further speculation that
(i) defendant had a legitimate reason for arriving with a hatchet
(which would seem unnecessary for mere housekeeping work);
that (ii) defendant was somehow and for some reason enraged;
and that (iii) the Jenkses died before defendant formed a
deliberate and premeditated intent to kill them. As to this last
premise, even if the Jenkses were dead by the time of the knife
attacks, postmortem conduct can still be probative of a
defendant’s state of mind before the fatal wounds were inflicted.
(See, e.g., People v. Manibusan (2013) 58 Cal.4th 40, 89; cf.
Perez, supra, 2 Cal.4th at p. 1127 [“[D]efendant would not have
known the precise moment of death or which wound would cause
it.
Moreover, the jury could reasonably infer that the
postmortem wounds were inflicted to make certain the victim
was dead.”].) A theory that a person killed in a fit of rage is
undermined by proof that, after ample opportunity for
reflection, the person decided that continuing a violent attack
was appropriate.
Defendant’s appellate briefing also suggests that perhaps
he went to the Jenkses’ home to solicit a cash advance. But the
evidence indicated that he and Fred Jenks had communicated
via telephone in the past, making an unannounced drop-in seem
unnecessary. Nor is it clear why defendant would need to bring
his hatchet to request an advance innocently. And here, too,
there is a wide gulf between (1) a theory that defendant showed
up for an innocuous reason and (2) the violent killings revealed
by the evidence. (Cf. People v. Zamudio (2008) 43 Cal.4th 327,
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361, fn. 18 (Zamudio) [“It seems extremely unlikely that a truly
peaceful person who has no history of violence and is on very
friendly terms with his victims would fly into a homicidal rage
simply because his victims decline his request for a second loan
and criticize his spending choices”].) We of course agree with
defendant that the prosecution bore the burden of proof beyond
a reasonable doubt. But a reasonable jury could find that
burden satisfied notwithstanding his string of suppositions.
The evidence, in short, was sufficient to support findings of
premeditated and deliberate murders.
2. Robbery
Defendant further contends that the evidence was
insufficient to support a conclusion that the killings occurred
during the commission of a robbery. (See § 189 [“All murder
that is . . . committed in the perpetration of . . . robbery . . . is
murder of the first degree”].) “Robbery is the felonious taking of
personal property in the possession of another, from his person
or immediate presence, and against his will, accomplished by
means of force or fear.” (§ 211.) “[A] conviction of robbery cannot
be sustained in the absence of evidence that the defendant
conceived his intent to steal either before committing the act of
force against the victim, or during the commission of that act; if
the intent arose only after the use of force against the victim,
the taking will at most constitute a theft.” (People v. Morris
(1988) 46 Cal.3d 1, 19; see also People v. Lindberg (2008)
45 Cal.4th 1, 28 [discussing robbery-murder special
circumstance].) Defendant argues that no rational jury could
rule out the possibility, beyond a reasonable doubt, that
defendant formed his intent to take the Jenkses’ property only
after the acts of force had concluded. We again disagree.
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“ ‘ “[W]hen one kills another and takes substantial
property from the victim, it is ordinarily reasonable to presume
the killing was for purposes of robbery.” ’ ” (People v. Jackson
(2016) 1 Cal.5th 269, 346 (Jackson); see also People v. Johnson
(2015) 60 Cal.4th 966, 988 [“The jury could readily conclude
defendant intended to steal when he entered the victim’s house
with a weapon and beat her to death. It did not have to conclude
he killed the victim for no apparent reason and only then
decided to steal.”].) Here, the evidence indicated that defendant
took a substantial amount of jewelry from the Jenkses’ home,
some of which he pawned even before the bodies were
discovered. Moreover, although the Bettencourt theft did not
involve force, the incident lends support to a determination that
defendant intended to take jewelry from the Jenkses’ home
before he inflicted the fatal blows. (See Jackson, at p. 346 [“The
jury can also infer a defendant’s intent to steal from his
commission of other similar crimes”].)
Notably, even defense counsel’s hypothetical reasons why
defendant may have been at the Jenkses’ home center on an
attempt to acquire funds, whether through work or by
requesting an advance. Even if defendant had been provoked
into a rage — because no paying work was available, or because
no cash advance would be made — the evidence would support
a conclusion that the killings occurred during the commission of
a robbery if defendant formed the intent to take the jewelry
while killing the Jenkses. A rational jury applying the beyonda-reasonable-doubt standard could rule out a hypothetical
scenario in which defendant dropped in for an unannounced
social visit (with a hatchet, at a time when the Jenkses were in
their night clothes); became sufficiently enraged to brutally
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Opinion of the Court by Cantil-Sakauye, C. J.
murder the people he was visiting; and then decided, as an
afterthought, to take the jewelry.
To conclude that the evidence of a preexisting intent to
steal was sufficient to prove the crime of robbery, it is not
necessary to rely on the evidence that defendant lacked money
to go grocery shopping and had recently pledged to pay his
liquor-store debt. But these circumstances further confirm that
the evidence of robbery was sufficient. Recall that three days
before the killings, defendant called a liquor store to say that he
would pay his debt on Monday, August 4 (the day the Jenkses
were killed) or Tuesday, August 5 (the day he pawned some of
Shirley Jenks’s jewelry). As noted, Diana Williams’s testimony
indicated that as of August 4, defendant “didn’t have any money
to go grocery shopping.” These facts support an inference that
defendant (whose schedule appeared to be flexible) did not
merely lack time to pay the liquor store on or right after August
1, but instead, that he lacked the resources. More importantly,
these facts suggest that defendant expected to acquire resources
sufficient to cover his $140 tab — by the day of, or after, the
Jenkses were killed. A rational trier of fact could understand
this evidence to point toward a preconceived plan to rob.
Defendant urges us to ignore these details in our analysis
of the sufficiency of the evidence, asserting that “poverty is such
poor evidence of a motive for theft, much less robbery and
murder, that it is not even admissible on that issue.” This
argument misses the mark twice over. First, it is true that “a
defendant’s poverty generally may not be admitted to prove a
motive to commit a robbery or theft; reliance on such evidence
is deemed unfair to the defendant, and its probative value is
outweighed by the risk of prejudice.” (Koontz, supra, 27 Cal.4th
at p. 1076; see also, e.g., People v. Clark (2011) 52 Cal.4th 856,
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928-930.) But the evidence here was admitted, and its probative
value bears on the sufficiency of the evidence at trial, regardless
of the risk of prejudice that came with it. (Cf. Lockhart v. Nelson
(1988) 488 U.S. 33, 40 [reversing a conviction because evidence
was improperly admitted at trial is not equivalent to reversing
for insufficient evidence, even if, without that evidence, the
proof adduced at trial would have been insufficient].) Our case
law has taken similar evidence of a defendant’s particularized
need or desire for resources into account. (See, e.g., Jackson,
supra, 1 Cal.5th at p. 346 [“the jury could infer . . . that
Jackson’s need for cash motivated him to break into Myers’s
house”]; Zamudio, supra, 43 Cal.4th at p. 360 [“there was ample
evidence here that defendant killed the Bensons and took their
property because he needed or wanted money”]; People v.
Sakarias (2000) 22 Cal.4th 596, 619.)3
Second, this evidence did not merely show that defendant
was impoverished. Instead, it revealed a baseline of his finances
— whatever their state — and showed that he expected to
acquire enough money to cover a debt that exceeded his current
ability to pay. It is the expected acquisition of funds in the near
future that makes these circumstances probative, not the mere
fact of poverty. (Cf. People v. Kelly (1901) 132 Cal. 430, 431-432
[“Generally, evidence of the wealth or poverty of a defendant is
not admissible; but the sudden possession of money,
immediately after the commission of a larceny, by one who
3
Although defendant’s opening brief raises 18 separately
numbered issues on appeal, a challenge to the court’s
discretionary admission of this evidence is not among them —
perhaps because defendant appears to acknowledge that no
objection was made below.
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Opinion of the Court by Cantil-Sakauye, C. J.
before that had been impecunious, is clearly admissible as a
circumstance in the case”].)
To be sure, defendant’s call to the liquor store did not
necessarily imply that he planned to take the Jenkses’ property.
The call was made before he told Diana Williams that he had
lost his money at the casino, and it is possible that he lost his
money after the call but before speaking with Williams. It also
appears that defendant did not pay the debt, perhaps because
the jewelry he pawned yielded less than the amount he owed.
Regardless, details surrounding the call — defendant’s
deviation from the norm of paying on the first of the month, yet
apparent expectation of having money a few days later —
provide additional circumstantial evidence in support of the
jury’s verdict.
B. Reasonable Doubt Instruction
Defendant raises several arguments concerning the
definition of “reasonable doubt” provided to the jury. He claims
that a pattern instruction inadequately defined that concept.
He further contends that the instruction was undermined both
by asserted prosecutorial misconduct and by the trial court’s
comments during jury selection. Even assuming defendant’s
claims are preserved for our review, we perceive no reversible
error.
1. CALJIC No. 2.90
“The federal Constitution’s due process guarantee
‘protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged.’
[Citation.]
The
Constitution ‘does not require that any particular form of words
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Opinion of the Court by Cantil-Sakauye, C. J.
be used in advising the jury of the government’s burden of proof,’
but it does require that, ‘ “taken as a whole, the instructions . . .
correctly conve[y] the concept of reasonable doubt to the jury.” ’
[Citation.] What matters, for federal constitutional purposes, is
‘whether there is a reasonable likelihood that the jury
understood the instructions to allow conviction based on’
insufficient proof.” (Daveggio, supra, 4 Cal.5th at pp. 839-840.)
The jury was instructed with CALJIC No. 2.90. The court
advised: “A defendant in a criminal action is presumed to be
innocent until the contrary is proved, and in case of a reasonable
doubt whether his guilt is satisfactorily shown, he is entitled to
a verdict of not guilty. This presumption places upon the People
the burden of proving him guilty beyond a reasonable doubt.
[¶] Reasonable doubt is defined as follows: It is not a mere
possible doubt; because everything relating to human affairs is
open to some possible or imaginary doubt. It is that state of the
case which, after the entire comparison and consideration of all
the evidence, leaves the minds of the jurors in that condition
that they cannot say they feel an abiding conviction of the truth
of the charge.” We have “repeatedly upheld” this instruction
“against constitutional challenge.” (Daveggio, supra, 4 Cal.5th
at p. 840; see also, e.g., People v. Lucas (2014) 60 Cal.4th 153,
294-299 (Lucas).)
Defendant complains that the instruction “merely tells
the jurors that they need to expect to remain convinced of the
truth of the charge for a prolonged period (‘abiding conviction’),
without telling them how convinced they must be.” We perceive
no error. “An instruction cast in terms of an abiding conviction
as to guilt . . . correctly states the government’s burden of proof.”
(Victor v. Nebraska (1994) 511 U.S. 1, 14-15 (Victor); see also
People v. Romero (2015) 62 Cal.4th 1, 42; People v. Brown (2004)
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33 Cal.4th 382, 392; Lisenbee v. Henry (9th Cir. 1999) 166 F.3d
997, 999-1000.) Defendant advances no persuasive reason to
depart from this well-settled rule, notwithstanding his
complaint regarding a prosecutor’s discussion of the instruction.
(See ante, at part II.B.2.)
Defendant also complains of the instruction’s statement
that a defendant “is presumed to be innocent until the contrary
is proved, and in the case of a reasonable doubt whether his guilt
is satisfactorily shown, he is entitled to a verdict of not guilty.”
(Italics added.) Defendant argues that the term “until” implies
that the People will inevitably satisfy their burden. We
disagree. The word “until” can refer to a condition that may
never be satisfied. No reasonable juror would have understood
the instruction to suggest that the People would inevitably
satisfy their burden of proof, because “the instruction . . .
expressly dictates what should occur in the event the jury finds
a reasonable doubt.” (Lucas, supra, 60 Cal.4th at p. 296.)
2. Asserted prosecutorial misconduct
The case against defendant was tried by two prosecutors,
Michael Reinhart and Gayle Helart. Defendant contends that
Helart committed misconduct during the rebuttal portion of
closing argument, lowering the People’s burden of proof. There
was no error.
a. Background
Because defendant’s challenge to Helart’s rebuttal
argument draws on the context in which that argument was
made, we begin by describing the arguments that preceded hers.
Deputy District Attorney Reinhart delivered the initial
portion of the People’s closing argument. In pertinent part, he
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argued: “Lastly, on the idea of these instructions and the law, I
know they may have sounded like the instructions on how to do
— how to program your VCR or stereo. They get rather
complicated and convoluted. But at the core of them, they’re
really based on common sense. And if you’re back there and you
find yourself going against your common sense, you say
something like, well, we know he’s guilty, but the instructions
say this, so does that mean that we have to find him not guilty?
If you find yourself going against your common sense, going off
on places where you really don’t think common sense tells you
you should be going, stop. Come back, ask the judge to clarify
them. Don’t go down too far a road because you may be
misreading or reading too much into the instructions. They
really are based on common sense, and, again, if you’re violating
your common sense, you’re going against something you just
think, hey, this don’t sound right, ask the Judge. That’s very
common to do. Be sure you understand the instructions.”
After Reinhart concluded, defendant’s trial counsel
delivered closing argument.
In pertinent part, counsel
contrasted proof by a preponderance of the evidence, proof by
clear and convincing evidence, and proof beyond a reasonable
doubt. He continued, “If you go back into that jury room and
you tell yourself and your colleagues agree, you know, I’m pretty
sure he did it, you have to enter verdicts of not guilty because
the law says you’ve got to be more than pretty sure.”
Deputy District Attorney Helart responded as follows:
“Defense tried to do this, I don’t know, hierarchy of reasonable
doubt, and boy, when the defense does the hierarchy it just
sounds like preponderance is way down here, and clear and
convincing is kind of here, and beyond a reasonable doubt is
clear up here, high as Mt. Everest. That’s sort of what the
30
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Opinion of the Court by Cantil-Sakauye, C. J.
inference is, kind of like a bar chart or something. Well, you
know, we could do a bar chart the other way, and let’s start with
beyond a reasonable doubt right down here, and then you could
go beyond a shadow of a doubt right there, and beyond any doubt
right here, and absolutely certain up here, and then way up here
is one hundred percent certain. So you see that’s not really very
helpful. You can kind of manipulate bar charts any way you
want to and that’s not helpful. [¶] But in your consideration of
reasonable doubt don’t ever come back and tell a prosecutor,
‘Gosh, you know, we believed he was guilty, but —.’ Don’t do that.
If you believe he’s guilty today and you’ll believe he’s guilty next
week then that’s that abiding conviction that’s going to stay with
you. And ‘beyond a reasonable doubt’ is defined in the jury
instructions it’s not a mere possible doubt; anything open to
being human has some possible or imaginary doubts. It’s what’s
reasonable.” (Italics added to the language challenged on
appeal.)
b. Analysis
Defendant argues that the portion of Helart’s rebuttal
emphasized above diminished the reasonable doubt standard.
The claim is not preserved for our review. “A claim of
prosecutorial misconduct is ordinarily preserved for appeal only
if the defendant made ‘a timely and specific objection at trial’
and requested an admonition.” (Daveggio, 4 Cal.5th at p. 853;
see also, e.g., People v. Centeno (2014) 60 Cal.4th 659, 674
(Centeno); People v. Green (1980) 27 Cal.3d 1, 27-35.) Defendant
neither objected nor requested an admonition. These failures
could be excused if an objection would have been futile or a
request for admonition ineffectual. (See, e.g., Daveggio, at
p. 853.) But we have no reason to doubt that the trial court
would have sustained any meritorious objection, nor to doubt
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that any prejudice could have been cured by an admonition
emphasizing that the jury should follow the court’s instructions
and disregard the statements at issue.
Defendant contends that he “is not precluded from raising
for the first time on appeal a claim asserting the deprivation of
certain fundamental, constitutional rights.” (People v. Vera
(1997) 15 Cal.4th 269, 276.) But he identifies no authority
indicating that such a right is at issue here, and we have
repeatedly applied our ordinary forfeiture rule to claims that a
prosecutor misstated the reasonable doubt standard. (See, e.g.,
People v. Barnett (1998) 17 Cal.4th 1044, 1156; People v.
Anderson (1990) 52 Cal.3d 453, 472; People v. Gonzalez (1990)
51 Cal.3d 1179, 1214-1215.)
Defendant likewise fails to identify any authority
indicating that forfeiture concerns are irrelevant because his
claims concern “ ‘a pure question of law which is presented by
undisputed facts.’ ” (People v. Hines (1997) 15 Cal.4th 997,
1061.) Defendant’s interpretation of that exception to the
forfeiture rule would seem to imply that any issue reviewable de
novo may be raised for the first time on appeal, even when, as
here, information about the prosecutor’s intonation would be
relevant, but is not revealed by the trial transcripts. Such an
exception would allow a defendant to invalidate an entire trial
based on a claim of prosecutorial misconduct that could have
been easily remedied by a timely objection and an admonition.
We decline to extend the exception to the circumstances
presented here, or to excuse the forfeiture as a matter of
discretion.
Even assuming that there was no forfeiture (or that we
should reach the merits regardless, as a matter of discretion),
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there was no error. A claim of prosecutorial misconduct may
have merit even absent proof that a prosecutor had “a culpable
state of mind.” (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
For this reason, “[a] more apt description of the transgression is
prosecutorial error.”
(Ibid.)
Such error occurs when a
prosecutor misstates the law by, for example, making remarks
that would “absolve the prosecution from its prima facie
obligation to overcome reasonable doubt on all elements.”
(People v. Marshall (1996) 13 Cal.4th 799, 831; accord People v.
Cortez (2016) 63 Cal.4th 101, 130 (Cortez).) For such remarks to
constitute error, however, it is not enough that the remarks
could be construed as improper. (People v. Winbush (2017) 2
Cal.5th 402, 480.)
Instead, “[a] defendant asserting
prosecutorial misconduct must . . . establish a reasonable
likelihood the jury construed the remarks in an objectionable
fashion.” (People v. Duff (2014) 58 Cal.4th 527, 568; see Cortez,
at pp. 130-134; see, e.g., Centeno, supra, 60 Cal.4th at p. 665
[finding such a likelihood when “the prosecutor used a visual
display” — an outline of California — “to illustrate the standard
of proof”].)
In context, it is not reasonably likely that jurors
understood Helart’s remarks in an objectionable fashion. A
reasonable juror would interpret the argument as a whole as
carrying the general import that an abiding conviction is one so
strongly held that it lasts, rather than one that is fleeting and
might weaken in the near future. As context reveals, the
argument was framed in response to the defense’s “hierarchy of
reasonable doubt”; jurors, Helart argued, should not be misled
into acquitting based on that hierarchy (“ ‘Gosh, you know, we
believed he was guilty, but — ’ ”), but should instead rely on the
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Opinion of the Court by Cantil-Sakauye, C. J.
actual meaning of “ ‘beyond a reasonable doubt,’ ” a phrase
“defined in the jury instructions.”
Our recent decision in Cortez supports this conclusion.
The prosecutor in that case stated: “ ‘The court told you that
beyond a reasonable doubt is not proof beyond all doubt or
imaginary doubt. Basically, I submit to you what it means is
you look at the evidence and you say, “I believe I know what
happened, and my belief is not imaginary. It’s based in the
evidence in front of me.” ’ ” (Cortez, supra, 63 Cal.4th, at p. 130,
italics added.) After an objection, the prosecutor added,
“ ‘[t]hat’s proof beyond a reasonable doubt.’ ” (Ibid.)
Faced with a claim of misconduct, we “observe[d] that the
challenged remarks, viewed in isolation, were incomplete at
best. They informed jurors that their ‘belief’ about what had
happened had to be ‘based in the evidence’ rather than
‘imaginary.’ ” (Cortez, supra, 63 Cal.4th at p. 131.) “Although
this is a correct statement of the law,” we continued, “it does not
alone suffice as a definition of the beyond-a-reasonable-doubt
standard.” (Ibid.) Viewing the argument and instructions as a
whole, however, we found no misconduct. (Id., at pp. 133-134.)
We explained, “given that the challenged comments were brief
and constituted a tiny, isolated part of the prosecution’s
argument, that the prosecution was responding to defense
counsel comments, that the prosecution expressly referred the
jurors to the instruction they had on reasonable doubt, that both
the court and defense counsel properly defined ‘reasonable
doubt’ numerous times, and that the jury had written
instructions during deliberations that properly defined the
standard, we find no reasonable likelihood the jury construed or
applied the prosecution’s challenged remarks in an
objectionable fashion.” (Ibid.)
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Opinion of the Court by Cantil-Sakauye, C. J.
There was likewise no error here. True, this case is not
precisely the same as Cortez; for example, defense counsel did
not object to Helart’s remarks. But those remarks were brief,
they were made in response to defense counsel’s comments, and
they referred jurors to the court’s instructions. Moreover, the
court instructed jurors, both immediately after they were sworn
and before the start of closing arguments, that “[i]f anything
concerning the law said by the attorneys in their arguments or
at any other time during the trial conflicts with my instructions
on the law, you must follow my instructions.” (Cf. Cortez, supra,
63 Cal.4th at p. 131.) To guide their deliberations, jurors were
also provided with a copy of this instruction and with CALJIC
No. 2.90. (Cf. ibid.) We presume not only that jurors follow
instructions in general (Daveggio, supra, 4 Cal.5th at p. 821),
but also “that jurors treat the court’s instructions as a statement
of the law by a judge, and the prosecutor’s comments as words
spoken by an advocate in an attempt to persuade” (People v.
Clair (1992) 2 Cal.4th 629, 663, fn. 8; accord Cortez, at p. 131).
We have no reason to deviate from those presumptions here, and
note that, despite Prosecutor Reinhart’s invitation, the jury did
not request clarification of the reasonable doubt instruction.
Under these circumstances, it is not reasonably likely the jury
construed the remarks in an objectionable fashion, nor that “the
jury understood the instructions to allow conviction based on”
inadequate proof. (Victor, supra, 511 U.S. at p. 6.)4
4
Defendant further claims that the “don’t ever come back
and tell a prosecutor” statement suggested “that jurors would be
accountable to the prosecution after they reached their verdict.”
This claim is also not preserved for our review. In any event, it
is not reasonably likely that jurors understood the comment in
35
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Opinion of the Court by Cantil-Sakauye, C. J.
3. Trial court’s comments during jury selection
During jury selection, the trial court gave prospective
jurors an example of when someone might draw a conclusion
based on circumstantial evidence. Defendant contends that, in
doing so, the trial court diluted the reasonable doubt standard.
a. Background
Before prospective jurors received questionnaires, the
trial court used CALJIC No. 2.90 to instruct them about the
presumption of innocence and the burden of proof beyond a
reasonable doubt. After the questionnaires were completed, a
prosecutor asked whether the attorneys would be permitted to
question prospective jurors “during general voir dire.” When the
trial court indicated that it “had not intended to permit that,”
the prosecutor asked the court to add “two questions . . . to its
list.” The first question concerned whether jurors would be
biased in favor of the defense because more people would be
sitting at the prosecution’s table at trial. Defense counsel
objected, and the court refused to ask the question.
The prosecutor’s second request concerned the burden of
proof. The prosecutor explained to the court: “[I]t appears that
a number of these jurors, notwithstanding the Court having
already instructed that the burden of proof is beyond a
the way defendant claims. Helart clearly did not want the jury
to acquit based on a less-than-reasonable doubt, and
communicated her view that doing so would be a mistake. But
her brief, isolated comment could not reasonably be understood
to threaten adverse consequences for jurors.
Finally, because the prosecutor’s remarks were not
erroneous, trial counsel was not ineffective for declining to
object to them.
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Opinion of the Court by Cantil-Sakauye, C. J.
reasonable doubt for the guilt phase, have expressed opinions
that because it’s a death penalty case it would require guilt
beyond a shadow of a doubt, at least expressed by one, one said
like a hundred percent. There is at least enough of them to raise
a concern by us that they would not follow the law.” The court
responded, in pertinent part, “I do intend to include a discussion
of circumstantial evidence and I intend to remind the jurors or
to inform the jurors that a consideration of circumstantial
evidence is no different in a death penalty case than it is in any
other trial. . . . [I]f a juror either indicates here or has indicated
in their written declarations that they’re going to have a
problem utilizing those conventional criteria for evaluating
circumstantial evidence and following the Court’s instructions
on burden of proof, then I’ll — we’ll individually examine them.”
Defense counsel did not object, nor probe the connection between
the prosecutor’s requested question (regarding the burden of
proof) and the court’s anticipated question (regarding
circumstantial evidence).
Four panels of prospective jurors were called to the
courtroom. The court illustrated for each panel the concept of
circumstantial evidence. Before doing so, the court explained
the purpose of the illustration, with statements like, “One of the
types of evidence that people sometimes are a little confused
about is the evidence that we call circumstantial evidence. . . .
There’s nothing mystical about circumstantial evidence, and the
best way to approach this would be just to give you a simple
example.”
The example that most strongly supports defendant’s
claim of error went as follows: “Let’s assume that you or your
spouse prepared . . . a raspberry pie and you set that on the
counter to cool. There’s nobody home except you and your nine37
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
year-old child, and you tell the child to stay away from that pie,
that you have company coming that evening and you don’t want
the pie to be messed up, keep their fingers out of it. And then
you leave and you go about your tasks. Nobody else comes or
goes from the house. An[] hour or two later you come back into
the kitchen and somebody has stuck their finger in that pie, and
you go look for the child, and sure enough, there’s your nineyear-old in the bedroom and he or she has raspberry pie filling
on their lower lip. I don’t think you’d have any trouble figuring
out what happened to that pie. Now, that’s circumstantial
evidence, sure, but I think most moms or dads would arrive at a
conclusion beyond any reasonable doubt under those
circumstances that that child was the one who got into that pie.”
(Italics added.) It appears two seated jurors heard this version
of the illustration.
Other versions did not include the
“reasonable doubt” language, instead stating, for example, “I
don’t think any of you would have a problem figuring out what
happened to that pie.”
b. Discussion
In assessing defendant’s argument that the trial court’s
raspberry pie example diminished the reasonable doubt
standard, the relevant question is whether “ ‘there is a
reasonable likelihood that the jury understood the instructions
[as a whole] to allow conviction based on’ insufficient proof.”
(Daveggio, supra, 4 Cal.5th at p. 840.) There is not.
Defendant claims there is a reasonable likelihood that the
raspberry pie example caused prospective jurors to believe their
“task was to determine what had actually happened in the case
before them, as opposed to whether the prosecution had made a
sufficient case for [defendant’s] guilt.” We disagree. The trial
38
PEOPLE v. POTTS
Opinion of the Court by Cantil-Sakauye, C. J.
court explained to each of the four panels of prospective jurors
that its example illustrated the concept of circumstantial
evidence. We have no reason to doubt that jurors understood
this point. The example was merely a portion of the guidance
provided to prospective jurors — let alone seated jurors — and
the balance of the court’s instructions made clear that the
People bore the burden of proof beyond a reasonable doubt. (See,
e.g., CALJIC No. 2.90; see also Daveggio, supra, 4 Cal.5th at p.
842 [comments made during jury selection are less significant
than instructions at the close of evidence].)5
Defendant is on somewhat firmer ground when he
complains that the court’s example “compared the jurors’ duty
to decision-making in ordinary life,” though only to the extent
that he challenges the court’s statement that “most moms or
dads would arrive at a conclusion beyond any reasonable doubt
under those circumstances that that child was the one who got
into that pie.” We perceive no error.
We have explained that “jurors should not be instructed to
convict based on the level of certainty needed to make decisions
‘in the ordinary affairs of life.’ ” (Daveggio, supra, 4 Cal.5th at
p. 841, quoting People v. Brannon (1873) 47 Cal. 96, 97; but cf.
Victor, supra, 511 U.S. at p. 19; Holland v. United States (1954)
348 U.S. 121, 140; Hopt v. Utah (1887) 120 U.S. 430, 439.)
“Because people often act in important matters notwithstanding
substantial uncertainty, the fear is that defining proof beyond a
reasonable doubt in relation to a person’s willingness to act,”
even “in the weightier affairs of life,” “might understate the
5
Contrary to defendant’s suggestion, there is no reasonable
likelihood that these or other comments led the jury to believe
that it should ignore the court’s other instructions.
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Opinion of the Court by Cantil-Sakauye, C. J.
government’s burden of proof.” (Ramirez v. Hatcher (9th Cir.
1998) 136 F.3d 1209, 1214.)
The trial court’s raspberry pie example avoids the core of
this concern. The court did not communicate that if jurors had
sufficient confidence to make an ordinary or even important life
decision, then they had been convinced beyond a reasonable
doubt. The court instead provided a commonly used court
example of a fictional scenario and indicated that most parents
would be able to reach a beyond-a-reasonable-doubt conclusion
— having already told prospective jurors what “beyond a
reasonable doubt” means. To be clear, we do not condone the
court’s reference to the reasonable doubt standard in its
illustration of circumstantial evidence. (See Daveggio, 4 Cal.5th
at p. 844 [“We . . . reiterate that ‘modifying the standard
instruction [on reasonable doubt] is perilous, and generally
should not be done . . . .’ ”].) Nevertheless, we cannot conclude
that this brief, inartful pretrial reference to the reasonable
doubt standard — a standard the court had already defined
properly and would again define after the close of evidence —
created any “ ‘reasonable likelihood that the jury understood the
instructions to allow conviction based on’ insufficient proof.”
(Daveggio, supra, 4 Cal.5th at p. 840.) Accordingly, there was
no error.
Shifting away from his arguments regarding the burden
of proof beyond a reasonable doubt, defendant further complains
that the trial court’s comments “violated the evenhandedness
which due process demands.” This contention is meritless. To
the extent defendant claims that the court was not, in fact,
evenhanded, the comments he identifies fall far short of
establishing that claim. Here, the court had reason to be
concerned that at least some jurors were unaware of the rules
40
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Opinion of the Court by Cantil-Sakauye, C. J.
governing capital trials. The court’s effort to “disabuse” jurors
of a possible misconception — in a manner the defense did not
find objectionable — in no way hints at partiality. The claim
also overlooks examples of the trial court’s conduct that were
favorable to defendant, including the court’s efforts to limit any
unduly prejudicial effect of the crime scene video and
photographs, and, close in time to the comments at issue here,
the court’s refusal to ask one of the questions requested by the
prosecution.
To the extent defendant claims the court conveyed to
jurors an appearance of partiality, the claim also lacks merit.
The court’s hypothetical, though lengthy and colloquial, did not
concern a fact pattern like the case before the prospective jurors,
and nothing the court said could reasonably be viewed as a
comment on the evidence. Moreover, this claim plucks the
court’s comment from context.
Before jurors filled out
questionnaires, for example, the court explained that “we have
no idea if we will ever get to the penalty phase of this trial.” It
further emphasized that “[t]he fact that the defendant is in court
for trial or that charges have been made against him is no
evidence whatsoever of his guilt. You are to consider only
evidence properly received in this courtroom in determining the
guilt or innocence of the defendant.” The court also instructed
seated jurors with CALJIC No. 2.01, which explains when
circumstantial evidence is insufficient to support a conviction.
And, immediately before the seated jurors began their
deliberations, the court instructed them with CALJIC No. 17.30:
“I have not intended by anything I have said or done, or by any
questions that I may have asked, or by any ruling I may have
made, to intimate or suggest what you should find to be the
facts, or that I believe or disbelieve any witness. [¶] If anything
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Opinion of the Court by Cantil-Sakauye, C. J.
I have done or said has seemed to so indicate, you will disregard
it and form your own conclusion.” We have no persuasive reason
to doubt that the jurors followed this instruction.
It may be preferable, as defendant asserts, to use more
neutral examples to illustrate the concept of circumstantial
evidence, rather than inculpatory fact patterns. (See, e.g.,
CALCRIM No. 223 [“[I]f a witness testifies that he saw someone
come inside wearing a raincoat covered with drops of water, that
testimony is circumstantial evidence because it may support a
conclusion that it was raining outside”].) Even if the court’s
framing was error, however, it was plainly harmless under any
potentially applicable standard.
C. Other Claims of Guilt-phase Instructional Error
Defendant complains of several other instructions given
during the guilt phase of his trial. Even assuming his claims of
error are preserved for our review, none has merit.
(Cf.
Daveggio, supra, 4 Cal.5th at p. 840 [explaining that whether
failure to object was excused under section 1259 turned on the
merits of the claim, and thus “proceed[ing] to consider the
merits”].)
1. Burden of proof regarding robbery and grand theft
The jury was instructed with CALJIC No. 2.15. The court
advised: “If you find that a defendant was in conscious
possession of recently stolen property, the fact of that possession
is not by itself sufficient to permit an inference that the
defendant is guilty of the crimes of robbery and grand theft.
Before guilt may be inferred there must be corroborating
evidence tending to prove defendant’s guilt. However, this
corroborating evidence need only be slight and need not by itself
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Opinion of the Court by Cantil-Sakauye, C. J.
be sufficient to warrant an inference of guilt.
[¶] As
corroboration you may consider the attributes of possession[ —
]time, place, and manner[,] that the defendant had . . . an
opportunity to commit the crime charged, the defendant’s
conduct, a false account of how he acquired possession of the
stolen property, and any other evidence which tends to connect
the defendant with the crime charged.” This pattern instruction
is “generally favorable to defendants; its purpose is to emphasize
that possession of stolen property, alone, is insufficient to
sustain a conviction for a theft-related crime.” (People v.
Gamache (2010) 48 Cal.4th 347, 375.)
Defendant contends this instruction lowered the People’s
burden of proof. He similarly asserts the instruction permitted
the jury to draw an irrational inference, in violation of his right
to due process. “We have previously rejected the same
arguments, concluding that CALJIC No. 2.15 appropriately
permits — but does not require — jurors to infer guilt of
burglary, robbery, or theft from the possession of stolen property
plus some corroborating evidence, and that it does not violate
due process or reduce the burden of proof.” (People v. Grimes
(2016) 1 Cal.5th 698, 730; see also People v. Letner and Tobin
(2010) 50 Cal.4th 99, 189 [“the jury separately was instructed
regarding the elements of both robbery and theft, and there was
no suggestion in the challenged instruction that the jury need
not find that all of the elements of robbery (or theft) had been
proved beyond a reasonable doubt”].) We see no persuasive
reason to revisit or distinguish our precedent. Considering “the
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Opinion of the Court by Cantil-Sakauye, C. J.
entire charge to the jury,” there was no error. (People v. Holt
(1997) 15 Cal.4th 619, 677.)6
2. After-acquired intent and robbery
Defendant contends that by instructing the jury with
CALJIC No. 9.40.2, the court misled jurors into believing that
they could find defendant guilty of robbery even if his intent to
take the Jenkses’ property arose after his use of force was
complete. We disagree.
CALJIC No. 9.40.2 provides: “To constitute the crime of
robbery, the perpetrator must have formed the specific intent to
permanently deprive an owner of [his] [her] property before or
at the time that the act of taking the property occurred. If this
intent was not formed until after the property was taken from
the person or immediate presence of the victim, the crime of
robbery has not been committed.” Defendant rightly observes
that it is possible for someone to form an intent to permanently
deprive another of property before “the act of taking the
property” is complete, but after the use of force has concluded.
The problem with defendant’s argument is that CALJIC
No. 9.40.2 merely sets out one of several conditions necessary
for a robbery conviction, a felony murder conviction based on
robbery, or a robbery-murder special-circumstance true finding.
The jury was elsewhere “adequately informed concerning the
6
Defendant could be understood to complain of a
prosecutor’s discussion of this instruction. Any claim of
misconduct was forfeited by defendant’s failure to object and to
request an admonition in the trial court. (Daveggio, supra, 4
Cal.5th at p. 853.) Defendant does not argue that any exception
to our forfeiture rule should apply with respect to this comment,
and none is apparent.
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Opinion of the Court by Cantil-Sakauye, C. J.
point in time the intent to steal must have been formed” (People
v. Hughes (2002) 27 Cal.4th 287, 360), because it was instructed
with CALJIC Nos. 3.31 (concurrence of act and intent), 8.21
(first degree felony murder in the commission of a robbery),
8.81.17 (murder in commission of robbery), and 9.40 (robbery).
(See Jackson, supra, 1 Cal.5th at pp. 343-344; Zamudio, supra,
43 Cal.4th at p. 361; People v. Valdez (2004) 32 Cal.4th 73, 111112 & fn. 11; Hughes, at pp. 358-360, 363.) Viewing the
instructions as a whole rather than evaluating CALJIC No.
9.40.2 in isolation, there was no error.
3. Acquittal-first rule
Although a jury is free to consider greater and lesser
included offenses in whatever order it chooses (see People v.
Kurtzman (1988) 46 Cal.3d 322, 324-325), a jury may not return
a guilty verdict on a lesser offense without also acquitting the
defendant of a greater offense (see People v. Fields (1996)
13 Cal.4th 289, 309; see also People v. Anderson (2009) 47
Cal.4th 92, 114). The jury in this case was correctly instructed
on these principles: “[Y]ou are to determine whether the
defendant is guilty or not guilty of the crimes charged in Counts
1, 2, 3, and 4 or of any lesser crimes. In doing so, you have
discretion to choose the order in which you evaluate each crime
and consider the evidence pertaining to it. You may find it
productive to consider and reach a tentative conclusion on all
charges and lesser crimes before reaching any final verdicts.
However, the court cannot accept a guilty verdict on a lesser
crime unless you have unanimously found the defendant not
guilty of the charged crime.” (See CALJIC No. 17.10.)
Defendant’s trial counsel asked the court to instruct on
CALJIC No. 17.10, which describes this so-called acquittal first
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Opinion of the Court by Cantil-Sakauye, C. J.
rule. Defendant now complains, however, that the rule creates
an intolerable risk that a juror may acquiesce to a first degree
murder conviction. The hypothesized juror may believe that a
defendant is guilty of second degree murder.
But, the
hypothesis continues, a juror may perceive that fellow jurors
will be unwilling to acquit of first degree murder, and thus feel
pressured to convict of that offense rather than causing a
mistrial. (Cf. United States v. Tsanas (2d Cir. 1978) 572 F.2d
346 [“If the jury is heavily for conviction on the greater offense,
dissenters favoring the lesser may throw in the sponge rather
than cause a mistrial that would leave the defendant with no
conviction at all, although the jury might have reached sincere
and unanimous agreement with respect to the lesser charge”].)
A guilty verdict on second degree murder, with a mistrial on first
degree murder, is not an option; “the court cannot accept a guilty
verdict on a lesser crime” unless the jury has “unanimously
found the defendant not guilty of the [charged] [greater] crime.”
(CALJIC No. 17.10.)7
We have repeatedly rejected challenges to this acquittalfirst rule, albeit sometimes in the context of a different pattern
instruction. (See People v. Brooks, supra, 3 Cal.5th at pp. 81-82;
People v. Covarrubias (2016) 1 Cal.5th 838, 906; People v.
Sattiewhite (2014) 59 Cal.4th 446, 479; People v. Whisenhunt
(2008) 44 Cal.4th 174, 222-223; Jurado, supra, 38 Cal.4th at p.
125; People v. Cox (2003) 30 Cal.4th 916, 967; People v.
7
Defendant notes in passing that similar pressure may
apply when a jury is deciding whether to convict of robbery or a
lesser included offense.
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Opinion of the Court by Cantil-Sakauye, C. J.
Nakahara (2003) 30 Cal.4th 705, 715.) We decline to reconsider
our precedent.8
In light of defendant’s thorough and thoughtful briefing on
the subject, however, we make one observation. The choice
defendant hypothesizes is far afield from requiring a jury to
choose between convicting a defendant of a capital crime or
convicting him of nothing at all. (Cf. Beck v. Alabama (1980)
447 U.S. 625, 627 [death sentence may not be imposed “ ‘after a
jury verdict of guilt of a capital offense, when the jury was not
permitted to consider a verdict of guilt of a lesser included noncapital offense, and when the evidence would have supported
such a verdict’ ”].) We presume that jurors follow instructions.
There is far less reason to doubt that they will do so when the
alternative is a mistrial rather than an acquittal — let alone to
believe that they will violate their duty to follow the instructions
by convicting of first degree murder rather than by entering a
compromise acquittal on that greater charge and agreeing to
convict only of second degree murder. The risk of erroneous
conviction is particularly diminished because jurors remain free
to discuss second degree murder before reaching a verdict on
first degree murder; they can acquit of first degree murder with
confidence that the defendant will still be convicted of a serious
offense.
In any event, it is difficult to imagine that the acquittalfirst rule had any effect in this case. There is no reason to
believe the rule would have caused jurors to unanimously find
8
Because this claim fails on the merits, it is unnecessary
for us to analyze whether trial counsel’s request that the
instruction be given invited any error or forfeited the claim of
error. (See People v. Bramit (2009) 46 Cal.4th 1221, 1246.)
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true the robbery-murder special-circumstance allegation. That
finding thus confirms that the jury unanimously believed
defendant was guilty of at least felony murder.
4. Burden of proof regarding the degree of murder
Defendant contends that another pattern instruction
“tended to,” among other things, “place the burden of raising a
doubt” as to the degree of murder on the defense. We are not
persuaded.
The instruction at issue informed the jury: “If you are
convinced beyond a reasonable doubt and unanimously agree
that the crime of murder has been committed by a defendant,
but you unanimously agree that you have a reasonable doubt
whether the murder was of the first or of the second degree, you
must give defendant the benefit of that doubt and return a
verdict fixing the murder as of the second degree as well as a
verdict of not guilty of murder in the first degree.” (See CALJIC
No. 8.71 (6th ed. 1996).)
Defendant complains that this “instruction stated, in
effect, that the jury had to find a doubt in order to make the
crime of the second degree,” and thus “implied that the default
finding was first-degree murder.” “And if the jury had to be
convinced of a doubt to reduce the charge,” he continues, “the
further implication was that the defendant was the party to do
the convincing, by raising one.”9
9
The record suggests that defendant requested this
instruction, again raising the question whether any error was
invited. We again decline to resolve this question, because the
claim fails regardless.
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There is no reasonable likelihood that the jury understood
the instruction in this way. (Estelle v. McGuire (1991) 501 U.S.
62, 72 & fn. 4.) The instruction governed the jury’s conduct only
if the jury had been “convinced beyond a reasonable doubt” that
defendant was guilty of murder. In other words, the instruction
applied only if the prosecution had carried its burden of proving
murder (meaning, at minimum, second degree murder) beyond
a reasonable doubt. From that point, the instruction redounded
to the benefit of the defendant; uncertainty about the degree of
the offense would not make first degree murder the default, it
would require that the defendant receive the benefit of the doubt
— an acquittal on the first degree murder charge. (See People
v. Salazar, supra, 63 Cal.4th at p. 247 (Salazar).) Certainly, and
contrary to defendant’s contention on appeal, the instruction
was not stated solely from the viewpoint of the prosecution.
Defendant also argues that the instruction was flawed
because it “stated a need for a collective finding” of doubt,
notwithstanding his “right to each juror’s individual judgment.”
We have acknowledged that, viewed in isolation, the
instruction’s focus on whether “you unanimously agree that you
have a reasonable doubt” (CALJIC No. 8.71 (6th ed. 1996))
“carr[ies] at least some potential for confusing jurors about the
role of their individual judgments” (People v. Moore (2011) 51
Cal.4th 386, 411; id., at pp 409-412). Viewing the instructions
as a whole, however, there was no error. In context, the jury
would have understood the challenged language to refer to the
concept, discussed above, that “the court cannot accept a guilty
verdict on a lesser crime unless you have unanimously found the
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defendant not guilty of the charged crime.” (See CALJIC No.
17.10; Salazar, supra, 63 Cal.4th at pp. 247-248.)10
The jury was also instructed with CALJIC No. 17.40,
which makes clear, in pertinent part: “The People and the
defendant are entitled to the individual opinion of each juror.
[¶] Each of you must consider the evidence for the purpose of
reaching a verdict if you can do so. Each of you must decide the
case for yourself, but should do so only after discussing the
evidence and instructions with the other jurors. [¶] Do not
hesitate to change an opinion if you are convinced it is wrong.
However, do not decide any question in a particular way because
a majority of the jurors, or any of them, favor that decision.” It
is thus not reasonably likely that the jury understood the
challenged instruction in the way defendant does on appeal.
(See Salazar, supra, 63 Cal.4th at p. 248 [“Defendant’s reading
assumes the jury would disregard . . . the explicit directions of
CALJIC No. 17.40 emphasizing each juror’s duty to decide the
case as an individual”].)
5. Consciousness of guilt instruction
The jury was instructed with CALJIC No. 2.03. The court
advised: “If you find that before this trial the defendant made a
willfully false or deliberately misleading statement concerning
the crimes for which he is now being tried, you may consider
that statement as a circumstance tending to prove a
consciousness of guilt. However, that conduct is not sufficient
10
Defendant
complains
that
these
instructions
“exacerbated” each other’s effect. We agree that the instructions
jointly made clear the acquittal-first rule, but that was not error,
and we do not perceive any other.
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Opinion of the Court by Cantil-Sakauye, C. J.
by itself to prove guilt, and its weight and significance, if any,
are for you to decide.” “The cautionary nature of [this]
instruction[] benefits the defense, admonishing the jury to
circumspection regarding evidence that might otherwise be
considered decisively inculpatory.” (People v. Jackson (1996)
13 Cal.4th 1164, 1224; accord Covarrubias, supra, 1 Cal.5th at
p. 908 (Covarrubias); see also People v. Page (2008) 44 Cal.4th
1, 50 & fn. 24.) Defendant nevertheless claims that the trial
court erred by giving the instruction. We disagree.
Defendant first argues that the instruction was not
applicable to the facts of his case. It was. The morning of
August 6, the day after defendant pawned Shirley Jenks’s
jewelry, defendant spoke with two officers regarding his
hatchet. As one officer testified: “[W]e then asked him . . . could
we see the hatchet? And then he said he didn’t have it, he
thought that he lost it. [¶] We then went on to ask him where
it could have been lost or how it could have been lost? He told
us that he recently had moved from one apartment in the
complex to another apartment in the complex and he must have
lost it in the move.” By contrast, Diana Williams testified that
she had seen defendant use the hatchet in his new apartment to
hammer speaker wire into place. Moreover, also on August 6,
defendant refused to answer Quentin’s repeated questions about
where the hatchet had gone — conduct undermining defendant’s
appellate theory that his statement to police about losing the
hatchet could have been “an honest mistake.” On these facts,
the instruction was amply justified. (See People v. Russell
(2010) 50 Cal.4th 1228, 1254-1255 (Russell) [instruction was
properly given when the evidence permitted the jury to make a
rational inference that the defendant made a false statement to
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deflect suspicion away from himself].) Likewise, the instruction
did not invite the jury to draw an irrational inference.
Defendant also claims that the instruction is
impermissibly argumentative.
We have repeatedly held
otherwise and see no persuasive reason to revisit or distinguish
our precedent. (See, e.g., People v. Henriquez (2017) 4 Cal.5th
1, 34; People v. Nelson (2016) 1 Cal.5th 513, 552; People v.
Williams (2015) 61 Cal.4th 1244, 1265; People v. Bryant (2014)
60 Cal.4th 335, 438; People v. Jones (2013) 57 Cal.4th 899, 971;
People v. Bacon (2010) 50 Cal.4th 1082, 1108; People v. Page,
supra, 44 Cal.4th at pp. 49-52.) True, the evidence showed that
defendant was otherwise cooperative with officers at around the
time he claimed to have lost his hatchet. But the jury could
consider that cooperation in determining whether “[the]
defendant made a willfully false or deliberately misleading
statement.” (CALJIC No. 2.03; cf. Russell, supra, 50 Cal.4th at
p. 1253 [instruction not argumentative in case in which
“[i]mmediately following his arrest, defendant agreed to be
interviewed”]; id., at p. 1256.)
6. Requiring unanimous agreement on a theory of first
degree murder
The jury was instructed that “[i]n arriving at a verdict for
first degree murder, it is not necessary that all jurors agree on
one or more of several theories proposed by the prosecution.”
Defendant contends that the jury should have been required to
unanimously agree on which of the prosecution’s theories had
been proved beyond a reasonable doubt: premeditated and
deliberate murder, or robbery felony murder. We have rejected
this argument in the past and see no persuasive reason to revisit
the issue. (See, e.g., People v. Sattiewhite, supra, 59 Cal.4th at
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p. 479; People v. McKinzie (2012) 54 Cal.4th 1302, 1354; People
v. Valencia (2008) 43 Cal.4th 268, 289 (Valencia).) We also
observe that the jury not only convicted defendant of a
standalone robbery charge, but also found true the robberymurder special-circumstance allegation. At the very least, the
special circumstance finding “necessarily demonstrates the
jury’s determination that the defendant committed felony
murder” (People v. Gonzalez (2018) 5 Cal.5th 186, 200
(Gonzalez)), evincing unanimous agreement on at least that
theory of first-degree murder (Valencia, at p. 289).
D. Admission of Report on Galloway’s Statement
On rebuttal, an investigator read aloud from his report of
an interview with driver Oscar Galloway. Defendant contends
the report was hearsay, admitted in violation of state law and
the confrontation clause of the Sixth Amendment to the United
States Constitution. We conclude that any statutory error was
harmless at the guilt phase and that no constitutional violation
occurred.
1. Background
Detective Walker spoke with Oscar Galloway at
Galloway’s residence a few days after the killings. At trial in
June 1998, Galloway explained that he was then undergoing
cancer treatment and lacked a full and accurate recollection of
the events of early August 1997. He did, however, identify
defendant in the courtroom; testify that he had driven defendant
to a casino “a couple of times”; recall speaking with Walker; and
claim that he answered Walker’s questions honestly. Galloway
acknowledged on cross-examination that he could not recall
what he told Walker and was not able to recall when he drove
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defendant to the casino. Galloway added that his medical
problem did not “really [come] down” on him until October 1997,
about two months after the Walker interview.
Over defendant’s objection, the trial court allowed the
detective to read aloud from his report of the
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