Petition for Writ of Certiorari — Kirkpatrick v. California
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Supreme Court, uid
FILED
D941 11 4 NOV 9 1994
ss OFFICE. OF JHE GLERK
¢
N
In The
Supreme Court of the United States
October Term, 1994
¢
WILLIAM KIRKPATRICK, JR.,
Petitioner,
STATE OF CALIFORNIA,
Respondent.
+
Petition For Writ Of Certiorari
To The Supreme Court Of California
¢
PETITION FOR WRIT OF CERTIORARI
¢
Epwarp J. Horowitz
Epwarp J. Horowitz,
A Professional Corporation
11661 San Vicente Blvd.
Los Angeles, CA 90049
(310) 826-6619
Attorney for Petitioner
William Kirkpatrick, Jr.
oO llllllEEE=E=SaoEoaE=Ee=Ss=eel_l_l=aEa—e—e————————
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
1. Ina death penalty trial where the guilt and pen-
alty phases are bifurcated, may the defendant exercise his
absolute right of self-representation at the penalty phase
only?
2. If so, must the defendant assert his right to self-
representation before the guilt phase begins or may he
await the verdict at that phase and assert his right before
the penalty phase begins, so long as no undue delay in
the penalty phase would ensue?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .......ccccccuccccccccens i
TABLE OF AUTHIORITIOS .. «0. cccscccsncsacvecsens iv
OPINIONS GELOW .....ccsscccsccnteesnanswwnsseeds 2
ai ay 8) rere 2
STATUTES AND CONSTITUTIONAL AUTHORITIES
INVOLVED) 2. iscescivaccssacgsceosnns ene 3
STATEMENT OF THE CASE... ..cccvnccscssaccenus 4
A. Pretrial ProceeGings ....icescacccasnunsvaduaeus 4
B. The Guilt Phase of Gee Teil «osc suse assecvcccs 4
C. Petitioner’s Requests for Self-
Representation at the Penalty Phase ........... 5
D. The California Supreme Court’s Ruling on
the Self-Representation Issues...............++. 8
E. The Penalty Phase of the Trial...............-. 10
PRESERVATION OF ISSUES ............--+-e00-- 11
REASONS FOR CERTIORARI............---eeeeee> 11
I. THIS COURT HAS NEVER ADDRESSED THE
QUESTION WHETHER A DEFENDANT IN A
BIFURCATED DEATH PENALTY TRIAL MAY
EXERCISE HIS ABSOLUTE RIGHT OF SELF-
REPRESENTATION AT THE PENALTY
PHASE ONLY. THE PRESENT CASE IS
APPROPRIATE FOR DETERMINATION OF
THES QUESTION |. asc cacvnesanGctaiacncess
iii
TABLE OF CONTENTS - Continued
Page
Il. A DEFENDANT WHO DESIRES TO REPRE-
SENT HIMSELF ONLY AT THE PENALTY
PHASE OF A BIFURCATED CAPITAL TRIAL
SHOULD BE ALLOWED TO EXERCISE THAT
RIGHT AFTER THE GUILT PHASE CON-
CLUDES, SO LONG AS NO UNDUE DELAY
IN THE PENALTY TRIAL ENSUES..........
ROPE TLL CREE ECET ETE TTCTEE EET
iv
TABLE OF AUTHORITIES
Page(s)
CASES
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45
C28; 2 Be Gres kos hc cb neescaneeeeaeas passim
Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976), rehrg. den., 429 U.S. 875, 97
DOD. B50; TR Re BS bos hoes hae eve atatsntice = 12
Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25
eS EG Es Meee reer re ee rer 12
McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79
L.Ed.2d 122 (1984)........... cece eee e cece cence nes 14
People v. Bloom, 48 Cal.3d 1194, 259 Cal.Rptr. 669,
FPO Pe le SIs 64.0 5 00d sake ee ean eeseaeeks x 9
People v. Hamilton 45 Cal.3d 351, 247 Cal.Rptr. 31,
oe Be eee eye yey er re 9
People v. Hardy 2 Cal.4th 86, 5 Cal.Rptr.2d 796, 825
oe Ee. | Peer re rrrry Ser Peer ee rrr re 9
People v. Windham, 19 Cal.3d 121, 137 Cal.Rptr. 8,
560 P.2d 1187 (1977), cert. den., 434 U.S. 848 ..... 6, 9
CONSTITUTIONAL PROVISIONS
United States Constitution, Amendment VI........... 3
United States Constitution, Amendment XIV ......... K
STATUTES
yA a | er ee ere ree rer 2
California Penal Code section 187...............2.00: 4
California Penal Code section 190.2(a)(3)............. 4
PSS pee a ot a Mate ate Tao a Sled
Pag POE Lae ee eT ee ete ot OE Sg ey ety eee OS 2
PEE LAE ORS Ae See CNET NY, CEE £
Vv
TABLE OF AUTHORITIES - Continued
Page(s)
California Penal Code section 190.2(a)(17)(i).......... 4
California Penal Code section 190.2(a)(17)(vii)........ 4
California Penal Code section 211.................... 4
California Penal Code section 459...............000.. 4
RULES
Supreme Court Rule 13.1 .........-..sceesccsseeneces 2
Supreme Court Rule 30.1 ........6 ccc ceseeecssceeeses 2
SON ek Ee Se SERS Se RTE Ne CREM IPE ME OAR SEY SND ee
+
In The
Supreme Court of the United States
October Term, 1994
+
WILLIAM KIRKPATRICK, JR.,
Petitioner,
STATE OF CALIFORNIA,
Respondent.
+
Petition For Writ Of Certiorari
To The Supreme Court Of California
*
PETITION FOR WRIT OF CERTIORARI
¢
William Kirkpatrick, Jr., respectfully petitions for
issuance of a writ of certiorari to review the judgment
and opinion of the Supreme Court of California which
affirmed petitioner’s death sentence. At issue here are
two important questions left unresolved by this Honor-
able Court’s decision in Faretta v. California 422 U.S. 806,
95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), i.e., (1) may a defen-
dant in a bifurcated capital trial exercise his or her consti-
tutional right of self-representation at the penalty phase
only, and (2) if so, when must the defendant assert the
right? These questions were foreseen in the dissenting
opinion of Justice Blackmun (in which Chief Justice Bur-
ger and Justice Rehnquist joined): “How soon in the
criminal proceeding must a defendant decide between
1
proceeding by counsel or pro se? Must he be allowed to
switch in midtrial? . . . I assume that many of these
questions will be answered in due course.” (422 U.S. at
852.)
OPINIONS BELOW
The majority and concurring opinions of the Supreme
Court of California are officially reported at 7 Cal.4th 988,
and unofficially reported at 30 Cal.Rptr.2d 818 and 874
P.2d 248. The official report of the opinion is reproduced
as Appendix A to this petition. (App. 1-47.) The order
denying petitioner’s Petition for Rehearing is unreported
and is attached as Appendix B. (App. 48-49.)
¢
JURISDICTION
This Court has jurisdiction under 28 U.S.C. section
1257(a).
The decision of the Supreme Court of California was
filed on June 13, 1994, affirming petitioner’s 1984 convic-
tions and death sentence for murder, robbery and burgl-
ary. The Supreme Court of California denied a timely
petition for rehearing on August 11, 1994, after modifying
its opinion on a point not relevant to this Petition. (See
Appendix B.) This Petition is timely filed pursuant to
Supreme Court Rules 13.1 and 30.1.
*
STATUTES AND CONSTITUTIONAL
AUTHORITIES INVOLVED
United States Constitution, Amendment VI, provides:
“In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district
wherein the crime shall have been committed,
which district shall have been previously ascer-
tained by law, and to be informed of the nature
and cause of the accusation; to be confronted
with the witnesses against him, to have com-
pulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for
his defence.”
United States Constitution, Amendment XIV, section
1, provides:
“All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and of
the State wherein they reside. No State shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.”
*
STATEMENT OF THE CASE
A. Pretrial Proceedings.
Petitioner was charged in an information filed Sep-
tember 29, 1983, with two counts of murder in violation
of California Penal Code section 187, two counts of rob-
bery in violation of California Penal Code section 211 and
two counts of burglary in violation of California Penal
Code section 459. Inter alia, the information further
alleged special circumstances, permitting the death pen-
alty, under California Penal Code sections 190.2(a)(17)(i)
(robbery), 190.2(a)(17)(vii) (burglary), and 190.2(a)(3)
(double murder). (CT 392-399.)!
On December 30, 1983, the Public Defender’s Office
declared a conflict of interest; private counsel were
appointed to represent petitioner. (CT 422; RT A-1.) On
March 19, 1984, the trial court denied petitioner’s motion
that he be made co-counsel. (RT A-27.)
B. The Guilt Phase of the Trial.
Jury selection began on April 10, 1984 and continued
through May 2, 1984, when a jury panel and four alter-
nates were sworn. (CT 443, 477-478, 486-495; RT
171-2309.)
The guilt phase of the trial began on May 7, 1984 and
concluded on May 24. (CT 497-509; RT 2405-3600.) The
jury deliberated on May 29, 30, and 31, and June 1, 4, and
5. (CT 511, 514, 515, 526, 601; RT 3787-3806.) It returned
1 “CT” refers to the Clerk’s Transcript on Appeal. “RT”
refers to the Reporter’s Transcript on Appeal.
verdicts on June 5 which found petitioner guilty as
charged and further found that all of the special allega-
tions were true. (CT 587-602; RT 3806-3820.)
C. Petitioner’s Requests for Self-Representation at
the Penalty Phase.
Near the end of the guilt phase of the trial, petitioner
wrote several letters to the court expressing dissatisfac-
tion with his appointed counsel and requesting their dis-
missal. (RT 3803.) On June 6, 1984, the day after the jury
returned its guilt phase verdicts, a hearing was held in
chambers at which time petitioner requested that his
counsel be relieved and that he be permitted to proceed
pro se at the penalty phase. (RT 3805-3806, 3924-3925.) The
following colloquy transpired:
“THE DEFENDANT: I have discussed the
disagreements we had between us with [appoin-
ted counsel] Mr. Fountain and Mr. Del Gobbo,
and I’ve reached a point with them that I will
accept them as standby counsel. And, um,
they’ll advise me in certain matters.
“THE COURT: Is it your request at this
time to go forward in the penalty phase of this
trial representing yourself in propria persona?
“THE DEFENDANT: Yes, it is.” (RT 3925.)
The court questioned petitioner about his ability to con-
duct his own defense and warned him of some of the
dangers of self-representation. (RT 3925-3929.) In the
course of doing so, the court noted that petitioner
appeared “to have an excellent command of the English
language. You do appear to be extremely articulate.” (RT
3926.)
The court next asked if petitioner would be prepared
to go forward with the penalty phase in one week, i.e., on
Wednesday, June 13, 1984. Petitioner asked for three more
court days, i.e., until Monday, June 18, 1984. The court
responded: “All right. I am not going to quibble for a few
more days.” (RT 3929.) Then, one of petitioner’s appoin-
ted attorneys, Mr. Fountain, interrupted and argued that
petitioner had no constitutional right to represent himself
at the penalty phase. Mr. Fountain requested that he and
co-counsel Mr. Del Gobbo be permitted to continue to
represent petitioner at the penalty phase. (RT 3921-3929.)
After hearing the prosecutor’s comments, the court took
the matter under submission until Friday, June 8, 1984.
(RT 3933.)
On June 8, 1984, petitioner reiterated his request to
represent himself at the penalty phase. The court asked
him more questions regarding self-representation. (RT
3934-3935.) The court then declared that under People v.
Windham 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187
(1977), cert. den., 434 U.S. 848, it had the discretion to deny
petitioner’s motion once the trial had begun, and noted
that petitioner wanted a continuance, “albeit he’s indi-
cated it is not a long one, at least one that would cause
some disruption.” (RT 3936-3938.) The court noted that
“other than an expression of general dissatisfaction that
has been presented to this Court by the defendant in
letters after the trial had begun, there is nothing in the
record to show that the defendant at any time prior to
this trial had ever asked for pro per status.” (RT 3937.)
The court then indicated that petitioner’s appointed
counsel had performed “quite admirably” and that there
was nothing to support any incompetency on the part of
counsel. (RT 3939.) Petitioner replied that his instructions
to his attorneys regarding the subpoenaing and examina-
tion of witnesses had been ignored and that he had a
“serious lack of faith in counsel.” He stated:
“...I1 really do not feel that, um, I can trust
them at this particular point to, um, save my
life, as it were. I’d rather do it myself, which I’m
confident that I can.” (RT 3940.)
The court asked more questions about his ability to
examine witnesses, and petitioner responded:
“I know the witnesses. I know exactly what
I am going to ask them. I won’t have to con-
stantly interrupt the proceeding of the court to
relay this to the attorneys.” (RT 3942.)
Defense counsel Fountain then interrupted to tell the
court that he felt any previous conflict as to how to
conduct the penalty hearing had “been diminished some-
what” and that if petitioner would cooperate, counsel
would do their best to obtain a life sentence for him. (RT
3942-3943.)
The court then denied petitioner’s Faretta motion as
untimely and stated that the factors given by petitioner
for self-representation presented: “no overwhelming rea-
son for the court at this time to grant pro per status.” (RT
3945.)
Petitioner complained that if he were not allowed to
proceed pro se, he would not remain in the courtroom
during the penalty phase. He stated that his testimony
would be “vital.” (RT 3946-3947.) The court then called a
recess and talked to petitioner’s counsel in chambers.
After the recess, the court asked petitioner:
“It is my understanding that in lieu of being
granted pro per status, which I have indicated I
will not grant you total pro per status, it is your
desire to be granted co-counsel status in this
case for the purpose of the penalty phase of the
trial?” (RT 3945-3949.)
Petitioner accepted co-counsel status. (RT 3949.)
Petitioner’s counsel immediately asked for and the
court granted a continuance of the beginning of the pen-
alty phase to Monday, June 18, 1984, the same date that
petitioner had earlier sought as part of his request for
self-representation. (RT 3950.)
D. The California Supreme Court’s Ruling on the
Self-Representation Issues.
The majority opinion of the Supreme Court of Cali-
fornia discussed the self-representation issues and
rejected petitioner’s contentions as follows:
“Defendant argues that a criminal defen-
dant’s right to self-representation under the
Sixth and Fourteenth Amendments to the
United States Constitution, as defined and
explained by the United States Supreme Court
in Faretta v. California (1975) 422 U.S. 806 [45
L.Ed.2d 562, 95 S.Ct. 2525], extends to the pen-
alty phase of a capital trial. Recognizing that the
right of self-representation is absolute only if
asserted a reasonable time before trial begins
(People v. Windham (1977) 19 Cal.3d 121, 127-129
[137 Cal.Rptr. 8, 560 P.2d 1187]), defendant fur-
ther argues that the guilt and penalty phases of
a capital prosecution should be deemed separate
trials, so that a motion for self-representation at
the penalty phase is timely if made a reasonable
time before the penalty phase begins.
“For the purpose of assessing the timeliness
of a motion for self-representation, the guilt and
penalty phases in a capital prosecution are not
separate trials but parts of a single trial. (People
v. Hardy (1992) 2 Cal.4th 86, 194-195 [5
Cal.Rptr.2d 796, 825 P.2d 781]; People v. Hamilton
(1988) 45 Cal.3d 351, 369 [247 Cal.Rptr. 31, 753
P.2d 1109].) Accordingly, when a defendant seeks
self-representation for the penalty phase, the trial
court has discretion to grant or deny the motion if
not made a reasonable time before the guilt phase has
begun. (People v. Hardy, supra, at pp. 194-195;
People v. Bloom, supra, 48 Cal.3d 1194, 1220, [259
Cal.Rptr. 669, 774 P.2d 698 (1989)]; People v. Ham-
ilton, supra, 45 Cal.3d at p. 369.) Defendant’s
motion, made after the guilt verdicts were
returned, was addressed to the trial court’s
sound discretion.
“We reject defendant’s contention that the
trial court abused its discretion when it denied
his motion for self-representation. In ruling on a
midtrial motion for self-representation, the trial
court is to consider ‘the quality of counsel’s
representation of the defendant, the defendant's
prior proclivity to substitute counsel, the rea-
sons for the request, the length and stage of the
proceedings, and the disruption or delay which
might reasonably be expected to follow the
granting of such a motion.’ (People v. Windham,
supra, 19 Cal.3d 121, 128.) Here, the trial court’s
10
comments reveal that it carefully considered
each of these factors. It found that defense coun-
sel had performed ‘quite admirably’ in repre-
senting defendant, that the reasons defendant
gave for seeking self-representation were not
compelling, that defendant would need a con-
tinuance if granted self-representation, and that
some disruption would inevitably result. These
findings are supported by the record. Accord-
ingly, the trial court did not abuse its discretion
in denying the motion for self-representation.”
(Appendix A, pp. 15-16; 7 Cal.4th at 1006-1007.)
E. The Penalty Phase of the Trial.
The penalty phase commenced on June 18, 1984. (CT
614; RT 3954.) Six witnesses testified for the prosecution;
petitioner testified on his own behalf. (CT 614; RT
3954-4060.) Arguments were presented, first by peti-
tioner, then by the prosecutor and finally by each of
petitioner’s appointed counsel. (CT 618; RT 4062-4196.)
The jury began deliberations on June 20. (CT 619; RT
4197.) On June 21, after ten hours of deliberations, the
jurors returned a verdict of death as the appropriate
punishment. (CT 644; RT 4200-4204.)
On August 14, 1984, the trial court denied peti-
tioner’s pro per motion for an acquittal, denied defense
counsels’ motion for a new trial on the guilt and penalty
phases of the trial, and then formally sentenced petitioner
to death on the two murder counts. (CT 645-655, 677-680;
RT 4208-4236.)
11
PRESERVATION OF ISSUES
As shown in the previous discussion, the issues con-
cerning petitioner’s right of self-representation at the
penalty phase of his trial were raised and ruled upon
prior to the beginning of the penalty phase. The issues
were raised in the appellate briefing and determined on
their merits by the Supreme Court of California. (See
Appendix A, pp. 15-16; 7 Cal.4th 1006-1007.)
4
REASONS FOR CERTIORARI
I. THIS COURT HAS NEVER ADDRESSED THE
QUESTION WHETHER A DEFENDANT IN A
BIFURCATED DEATH PENALTY TRIAL MAY
EXERCISE HIS ABSOLUTE RIGHT OF SELF-REP-
RESENTATION AT THE PENALTY PHASE ONLY.
THE PRESENT CASE IS APPROPRIATE FOR
DETERMINATION OF THIS QUESTION.
In Faretta v. California, supra, 422 U.S. 806, this Court
ruled that the Sixth Amendment, made applicable to the
states by the Fourteenth Amendment, guarantees a defen-
dant in a state criminal trial the constitutional right of
self-representation and that a defendant may proceed to
defend himself or herself without counsel when he or she
voluntarily and intelligently elects to do so. (422 U.S. at
819-820.) The Court explained:
“.... Although not stated in the Amend-
ment in so many words, the right to self-repre-
sentation - to make one’s own defense
personally — is thus necessarily implied by the
structure of the Amendment. The right to defend
is given directly to the accused; for it is he who
12
suffers the consequences if the defense fails.” (422
U.S. at 819-820; emphasis added.)
“.... The right to defend is personal. The
defendant, and not his lawyer or the State, will
bear the personal consequences of a conviction.
It is the defendant, therefore, who must be free
personally to decide whether in his particular
case counsel is to his advantage. And although
he may conduct his own defense ultimately to
his own detriment, his choice must be honored out
of ‘that respect for the individual which is the life-
blood of the law.’ Illinois v. Allen, 397 U.S. 337,
350-351, 90 S.Ct. 1057, 25 L.Ed.2d 353 [1970]
(Brennan, J., concurring).” (422 U.S. at 834;
emphasis added; footnote omitted.)
Although this Court has never discussed the issue of
the absolute right of self-representation at only the pen-
alty phase of a bifurcated capital trial, reason and fairness
militate in favor of the right’s existence.2 For example,
“the personal consequences” of the penalty phase of a
capital trial are greater than those of any other penalty
that may be imposed by the law. Thus, as noted by this
Court, since the defendant “and not his lawyer or the
State” will bear those consequences, his or her choice to
exercise the right of self-representation is most critical at
the penalty phase. Our history’s and the law’s tradition of
“respect for the individual” should therefore be honored
most dutifully when the individual is choosing how to
defend his or her life in a court of law.
2 For a discussion of the nature of bifurcated capital trials,
see Gregg v. Georgia, 428 U.S. 153, 162-168, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976), rehrg. den., 429 U.S. 875, 97 S.Ct. 197, 50
L.Ed.2d 158.
13
Practical considerations also support this interpreta-
tion of the right of self-representation established by
Faretta. For example, logic and the teachings of experi-
ence show that although pro se defendants are not usually
as knowledgeable as attorneys about elements of
offenses, rules of evidence and examination of witnesses,
those factors are not as significant at the penalty phase -
compared to the guilt phase - of a bifurcated capital trial.
Similarly, we know that trials generally take longer where
the defendant is pro se. However, since the penalty phase
of capital trials is invariably much shorter than the guilt
phase, this consideration also militates in favor of a right
of self-representation limited to the penalty phase. In
summary, a pro se defendant’s legal skills are not as
important at a penalty trial because the issues are human,
not legal. Indeed, where a jury of lay persons is asked to
decide between death and life imprisonment, a lawyer’s
“help” to the defendant is not as telling as the help which
the defendant may wish to provide to himself.
Put another way, when a defendant's life is directly
involved, that is when we should have the greatest
respect and understanding for his decision to defend his
life with his own decisions and with his own words.
In addition, to the extent the law should not encour-
age defendants to exercise their right of self-representa-
tion,? a rule permitting defendants to limit exercise of
that right to the penalty phase of bifurcated capital trials
3 “It is undeniable that in most criminal prosecutions
defendants could better defend with counsel’s guidance than by
their own unskilled efforts.” (Faretta v. California, supra, 422 U.S.
at 835.)
14
would be wise. As shown by the opinion below, Califor-
nia’s rule does the opposite by requiring the defendant to
move for self-representation before the guilt phase
begins. Thus, where a California defendant’s true desire
is to take personal responsibility for his or her own
destiny only if he or she is found guilty in the initial
phase of the trial, the defendant is compelled to appear pro
se at the guilt phase, too. A rule, however, permitting
defendants to accept representation by counsel at the
guilt phase and then represent themselves if a penalty
phase ensues would necessarily limit the number of pro se
defendants at entire capital trials.
Nothing in the Faretta decision precludes adoption of -
this rule; instead, the question was left open by that
decision. And, if rule urged by petitioner is adopted, this
Court would be holding to the high value it has previ-
ously placed on the right of a defendant to represent
himself or herself and would again be honoring what
Faretta so eloquently described as “that respect for the
individual which is the lifeblood of the law.”
Finally, the merits of this petition are not affected by
the fact that, after his right of self-representation was
denied, petitioner was permitted to be “co-counsel” at the
penalty phase with his two appointed counsel. That order
resulted in a jumbled defense that met neither peti-
tioner’s wishes nor counsels’ legal desires. For example,
petitioner had to accept argument from not one, but both,
of his attorneys — argument that was in complete stylistic
contrast to the argument he was permitted to present.
Surely, this exemplifies the “cacophony” this Court
warned of in McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct.
15
944, 79 L.Ed.2d 122 (1984), rehrg. den., 465 U.S. 1112, 104
S.Ct. 1620, 80 L.Ed.2d 148, when it stated:
“We recognize, nonetheless, that the right to
speak for oneself entails more than the oppor-
tunity to add one’s voice to a cacophony of
others.” (465 U.S. at 177.)
In summary, this Court should grant this petition and
declare a defendant's constitutional right of self-represen-
tation at the penalty phase of a bifurcated capital trial.
II. A DEFENDANT WHO DESIRES TO REPRESENT
HIMSELF ONLY AT THE PENALTY PHASE OF A
BIFURCATED CAPITAL TRIAL SHOULD BE
ALLOWED TO EXERCISE THAT RIGHT AFTER
THE GUILT PHASE CONCLUDES, SO LONG AS
NO UNDUE DELAY IN THE PENALTY TRIAL
ENSUES.
The Supreme Court of California upheld the denial of
petitioner’s request to represent himself at his penalty
trial, stating as follows:
44
.... When a defendant seeks self-represen-
tation for the penalty phase, the trial court has
discretion to grant or deny the motion if not
made a reasonable time before the guilt phase
has begun. [citations.] Defendant's motion, made
after the guilt verdicts were returned, was addressed
to the trial court’s sound discretion.” (Appendix A,
p. 16; 7 Cal.4th at 1006-1007; emphasis added.)
The effect of the California Supreme Court’s ruling is
to limit the absolute right of self-representation - even
where sought only as to the penalty phase of a capital
trial - to requests made before the guilt phase begins.
16
Nothing in Faretta requires this harsh and unwise rule.
And the record in the present case demonstrates the error
in the rule because there would not have been any delay
in the penalty trial if petitioner’s motion had been
granted. As noted above at page 8, although the trial
court noted the possibility of delay in beginning the
penalty trial as a reason for denying petitioner’s motion,
the court — at the very same hearing - granted the identi-
cal brief delay at the request of petitioner’s appointed
counsel in order that those counsel could further prepare
for the penalty phase!
In addition, a rule permitting a capital defendant to
await the outcome of the guilt phase before seeking to
appear pro se at the penalty phase would allow the defen-
dant to take into account defense counsel’s performance
at the guilt phase before being required to exercise the
right of self-representation. Some defendants, satisfied
with the nature and quality of their counsels’ efforts,
would opt to continue with counsels’ representation at
the penalty phase. Other defendants, dissatisfied with
counsels’ efforts or truly desirous of defending their own
lives, would have the option of defending themselves at
the “life or death” phase. In either event, we would be
honoring “that respect for the individual which is the
lifeblood of the law.”
17
CONCLUSION
The Supreme Court of California’s opinion places an
unwise and unconstitutional restriction on a capital
defendant’s right of self-representation. Such a defendant
should be permitted to exercise this right at the penalty
phase of his or her trial so long as no undue delay is
caused and so long -as the defendant meets the other
requirements set forth in Faretta.
For all the foregoing reasons, petitioner respectfully
prays for issuance of a writ of certiorari to review these
important questions.
Respectfully submitted,
Epwarp J. Horowitz
A Professional Corporation
Epwarp J. Horowitz
Attorney for Petitioner
App. 1
APPENDIX A
IN THE SUPREME COURT
STATE OF CALIFORNIA
[No. S004642. June 13, 1994.]
THE PEOPLE, Plaintiff and Respondent, v.
WILLIAM KIRKPATRICK, Defendant and Appellant.
COUNSEL
Harvey R. Zall, Fern M. Laethem, State Public Defenders,
and Edward J. Horowitz, under appointments by the
Supreme Court, Christine Zilius Mason, Musawwir
Spiegel, George L. Mertens and Albert W. Brodie, Deputy
State Public Defenders, for Defendant and Appellant.
John K. Van de Kamp, Daniel E. Lungren, Attorneys
General, Steve White, Richard B. Iglehart and George
Williamson, Chief Assistant Attorneys General, Edward
T. Fogel, Jr., and Carol Wendelin Pollack, Assistant Attor-
neys General, Marc Alan Hart, Gary R. Hahn, Donald E.
de Nicola, William R. Weisman, William T. Harter, Marc
E. Turchin, Susan Lee Frierson and Robert C. Schneider,
Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KENNARD, J. — Defendant William Kirkpatrick appeals
from a judgment of death under the 1978 death penalty
law (Pen. Code, § 190.1 et seq.; all further statutory
references are to this code unless otherwise indicated). A
jury convicted defendant of two counts of first degree
murder (§ 187), two counts of robbery (§ 211), and two
counts of burglary (§ 459). The jury found as special
circumstances that defendant had been convicted of more
App. 2
than one offense of murder in this proceeding (§ 190.2,
subd. (a)(3)) and that the murders were committed in the
perpetration of robbery and burglary (§ 190.2, subd.
(a)(17)), and it found that defendant used a firearm to
commit the offenses (§§ 1203.06, subd. (a)(1), 12022.5).
After the jury returned a penalty verdict of death, the
trial court denied the automatic motion to modify penalty
(§ 190.4, subd. (e)), sentenced defendant to death on the
two murder counts, and stayed execution of sentence on
the remaining counts and enhancement allegations. This
appeal from the judgment of death is automatic. (§ 1239,
subd. (b).)
FACTS AND PROCEEDINGS
At about midnight on September 17, 1983, Jim Fal-
conio and Wayne Hunter were found in a closet at a Taco
Bell franchise restaurant in Burbank. Both had been shot
in the head. Hunter was dead when found and Falconio
died of his gunshot injuries 11 days later. The two victims
were Taco Bell employees and had apparently been killed
in the course of a robbery. The case against defendant,
who had formerly worked at the same Taco Bell restau-
rant, included evidence that four days earlier defendant
had obtained a gun that could have been the murder
weapon by burglarizing another former place of employ-
ment, a gas station.
The Prosecution’s Case
In late April or early May of 1983, defendant
arranged a job interview for Donald Harper at the Bur-
bank Taco Bell where defendant was then working. While
App. 3
Harper was at the Taco Bell for his interview, defendant
told Harper he was upset about being transferred to a
different Taco Bell location. Defendant said he wanted to
“get back” at Wayne Hunter (an assistant manager) and
at Fahimur Rehman (the district manager). Defendant
said he wanted to kill Rehman, to stick a gun into
Hunter’s mouth and blow his head off, and to take the
money from the register. Defendant asked Harper to
obtain the combination of the safe, but Harper merely
replied that defendant was crazy.
During the night of September 13-14, 1983, a gas
station in North Hollywood was burglarized. Defendant
had been fired from his employment at the station a few
weeks earlier. Although the station had been locked as
usual before closing on the 13th, and the burglar alarm
activated, the station was found unlocked the next morn-
ing, and the alarm disconnected, with no signs of forced
entry. A cash box and a desk drawer had been broken
open. Items taken in the burglary included currency and
coins, a .22-caliber pistol, a battery charger, and a cus-
tomer’s car stereo and equalizer. Two station employees
had seen defendant near the station shortly before it
closed on the 13th.
During the early morning of September 14, defendant
showed Manuel Rand a battery charger, a bag of coins, a
car stereo, and a .22-caliber pistol. These items were in
the back of defendant’s automobile. Defendant said that
he had burglarized a garage where he had previously
worked, and that it would “teach them a lesson” for
having fired him. On September 16, defendant asked
Rand to help him commit a robbery but Rand refused. On
the evening of September 17, defendant told Rand he was
App. 4
planning to rob the Burbank Taco Bell and asked Rand to
help. Again Rand refused. Defendant then drove to an
apartment complex where he met Eddie Salazar, known
as Solo. Salazar borrowed lipstick and rubbed it over the
tattoos on his neck. Defendant and Salazar left the apart-
ment complex, after push-starting defendant’s car, at
approximately 11 p.m.
Around 11:50 p.m., two prospective customers found
the Burbank Taco Bell open but apparently deserted.
They telephoned the police. Shortly before the police
arrived, persons gathering at the scene found the two
victims in a closet in the employee area at the back of the
restaurant. There was no money in te safe; one of the
registers was open and contained only loose coins. The
money taken was estimated to be $625. There were no
signs of a struggle. Police investigators found an
expended .22-caliber bullet in the closet.
Hunter died from a single shot to the back of the
head with a small-caliber bullet, apparently fired from a
distance of at least 18 inches. On Hunter’s left upper
cheek were a bruise and an abrasion that could have been
caused by a blow. Falconio, who was 16 years old on
September 17, was killed by a single bullet which entered
behind the right ear and exited behind the left ear.
Defendant and Salazar returned to the apartment
complex shortly after midnight. Salazar showed some
money to Gina Esqueda. Victor Saldana saw defendant
lift his shirt to reveal a gun in his waistband. Defendant
drove to Rand’s house and asked Rand’s mother to
awaken Rand. Defendant said the cops were looking for
him and that he had just killed two guys, possibly a third.
2 te ceH o
aren
“ ee es
App. 5
Rand’s mother refused to awaken Rand but she did help
defendant push-start his car. That afternoon, Rand’s
mother saw defendant holding a box containing rolls of
coins. Defendant said the rolls were money taken in a
robbery.
During that day, September 18, defendant telephoned
Fidel Saballos, who had formerly worked with defendant
at the Burbank Taco Bell. Defendant said he had a “bunch
of money” and invited Saballos to the movies. Saballos
accepted. In defendant’s car, defendant showed Saballos
a bag of coins. Defendant said he had “ripped off” the
Taco Bell the previous night and had taken $850. Defen-
dant said he had used “a .22” to kill two people, and that
he done so because he did not want any witnesses.!
Defendant was arrested on September 22. In defen-
dant’s automobile, police investigators found three .22-
caliber cartridges and the equalizer taken in the gas sta-
tion burglary. The cartridges were consistent with the
expended bullet found in the closet of the Taco Bell
restaurant.
The Defense Case
Defendant testified in his own behalf. He was from
New York City. His mother was Mexican and his father
1 To prove the facts stated in this paragraph, the prosecu-
tion relied on various out-of-court statements by Saballos,
including a tape-recorded interview with Burbank police inves-
tigators. The evidence was admitted under the hearsay excep-
tion for prior inconsistent statements after Saballos testified and
denied that defendant had made any incriminating statements
to him.
App. 6
Black. For the six months to one year before his arrest,
defendant had worded in restaurants and gas stations.
On the evening of September 13, 1983, defendant went to
a gas station where he had formerly been employed. He
talked to the employees, asking if they had anything they
wanted to sell. Defendant was then self-employed in a
kind of salvage business. Defendant said he did not enter
the station after it was closed and did not take anything
from the station. He denied any knowledge of the gas
station burglary and denied telling Rand or anyone else
he had burglarized a gas station. He testified that the
equalizer found in his car was one he had purchased in
June or July of 1983.
On the evening of September 17, 1983, defendant
went to an apartment complex where he met members of
a gang known as “Sol Trese.” He allowed several of these
individuals to use his car to “shoot” heroin. One of them
had a bag with loose .22-caliber shells. Defendant did not
own or possess a .22-caliber weapon. Defendant left
about 11:15 or 11:20 p.m. to visit a friend in Whittier. He
had car problems and spent some time searching for an
open gas station. Eventually, about 12:20 or 12:30 a.m.,
defendant purchased a new battery and battery cable.
After spending some time in a bar, defendant spent the
rest of the night in a motel room. Defendant denied
entering the Burbank Taco Bell on the night of September
17-18 and he denied having a conversation with Rand’s
mother during the early morning of September 18. Defen-
dant said he went to the movies with Saballos on Septem-
ber 18, but defendant denied having any conversation
with Saballos about a robbery or killing people.
App. 7
A service station attendant testified that he had no
independent recollection of selling a battery and cable to
defendant but that the station records indicated he had
made such a sale on September 18, 1983. The records did
not indicate the time of the sale, but they did indicate it
had occurred after a sale to a Robert Salisbury. At that
time, the attendant was working the night shift from 9
p-m. to 9 a.m.
Rebuttal
Robert Salisbury testified that during the early morn-
ing hours of September 18, 1983, he purchased a battery
at a service station. The attendants were busy doing other
things and it took about two hours to have the battery
installed. Salisbury left about 2 a.m. During the two
hours he was at the station, no other car was there having
a battery put in.
Penalty Phase
On March 8, 1983, 17-year-old Jacob D. was working
at a franchise restaurant. After finishing work that eve-
ning, he met defendant, who invited him to drink some
beer. Jacob accepted. Defendant bought some beer and
led Jacob to a red van parked near a gas station. Defen-
dant and Jacob drank beer and talked inside the van for
some time. Defendant asked Jacob to help him change a
flat tire, but as Jacob was leaning over to pick up the
spare time, defendant grabbed him around the neck,
began to choke him, and told him to take his clothes off.
At first Jacob refused, but when defendant tightened his
grip Jacob removed his clothes. Defendant removed his
¥: x
App. 8
clothes also and forced Jacob to orally copulate him and
to kiss various parts of defendant’s body. Defendant _
threatened to kill Jacob if Jacob did not comply. After
some time, both Jacob and defendant fell asleep in the
van, with defendant still holding Jacob. The following
day, Jacob told his parents what had happened.
On March 27, 1983, defendant invited 16-year-old
Stephen T. to go to a park and drink beer. Stephen
accepted. While they were drinking beer in the park,
defendant asked Stephen to assist him in robbing a man
who lived in a residence nearby. When Stephen refused,
defendant grabbed him around the neck and started to
choke him. Defendant pulled Stephen to the park rest-
room and tried to push Stephen’s head into the toilet.
Stephen managed to loosen defendant’s grip and escape
by picking defendant up and ramming him against a
sink. Stephen told his mother about the incident, and she
reported it to the police.
In May 1983, defendant left a bicycle, a calculator,
and a projector at Shirley Johnson’s house. The next
morning, defendant retrieved the bicycle and projector,
but Johnson could not find the calculator. Defendant
threatened injury to Johnson and her children as well as
damage to Johnson’s house if the calculator was not
returned to him. About two weeks later, during a tele-
phone conversation with Johnson, defendant threatened
to harm Johnson’s daughter and her two dogs if the
calculator was not returned. Johnson replied that she
would have to contact her son, who was in juvenile hall,
and she could not do so until June 19.
A, TA ENENIRTR cnr
we
App. 9
Johnson returned from work one day in the latter
part of June to find both her dogs completely paralyzed.
The dogs recovered after several weeks. Defendant tele-
phoned Johnson and said he had “taken care” of the
dogs. Defendant said Johnson had better watch out for
her daughter because defendant had not had any “white
meat” for a long time. Defendant added that he wanted
the calculator. Johnson located the calculator and
returned it to defendant.
Defendant testified that he was 23 years old in Sep-
tember 1983 and had never been convicted of a felony.
Defendant was born in Brooklyn, New York, and had
been raised by his mother. He never met his natural
father. Defendant’s stepfather, a detective-sergeant for
the New York City Police Department, had died two
years earlier. Defendant left New York in September 1980.
At defendant’s request, his attorneys did not attempt to
have his mother, who still lived in New York, testify at
the trial. Defendant did not want her or any member of
his family involved in the case.
Defendant had attended public schools through the
11th grade before dropping out. Since that time, defen-
dant had held jobs involving delivery, driving, cooking,
and management. Defendant was interested in writing,
painting, and drawing, and had ambitions of becoming a
published writer. Defendant denied being homosexual.
Defendant believed that while in prison he could make a
contribution to other inmates and to society by taking
classes and continuing with his writing. Defendant again
asserted his innocence of the capital crimes and asked the
jury to give him an opportunity, by sparing his life, to
prove he could be a constructive human being.
App. 10
C.Laims, ANALYSIS, AND RULINGS
I. Pretrial Motion for Cocounsel Status
Defendant was represented in superior court pro-
ceedings by Attorneys Albert Del Gobbo and Ray Foun-
tain. During a hearing three weeks before trial, Del
Gobbo stated that defendant had asked him to make a
motion to have defendant appointed as cocounsel and
that Del Gobbo had agreed to do so. The trial court
denied the motion, remarking that there were four attor-
neys in the case already (two for the defense and two for
the prosecution) and that “one more would not benefit it
in any way.” The court also observed that other defen-
dants who were “actually trying their own cases” needed
access to the jail’s “pro per” facilities more than defen-
dant did. Defendant maintains that the trial court abused
its discretion in denying his motion, and that the ruling
must be presumed to have prejudiced his defense.
A defendant in a criminal proceeding has a constitu-
tional right to be represented by professional counsel and
also a constitutional right of self-representation, but these
rights are mutually exclusive. (People v. Hamilton (1989) 48
Cal.3d 1142, 1162 [259 Cal.Rptr. 701, 774 P.2d 730].)
“Stated otherwise, at all times the record should be clear
that the accused is either self-represented or represented
by counsel; the accused cannot be both at once.” (People v.
Bloom (1989) 48 Cal.3d 1194, 1219 [259 Cal.Rptr. 669, 774
P.2d 698].) Here, defendant’s motion did not seek either
of the constitutionally guaranteed forms of representa-
tion. Defendant was already represented by professional
App. 11
counsel and the motion was not, either in form or sub-
stance, one for self-representation. In particular, defen-
dant did not indicate that he was dissatisfied with the
representation he was receiving or that he intended to
assume control of the case rather than merely assisting
his attorneys in its presentation. (See ibid.)
Whether a professionally represented defendant may
participate in the presentation of the case is a matter
within the sound discretion of the trial judge. (People v.
Miranda (1987) 44 Cal.3d 57, 75-76 [241 Cal.Rptr. 594, 744
P.2d 1127].) Such an arrangement should not be permitted
except upon a substantial showing that it will “promote
justice and judicial efficiency in the particular case.” (Peo-
ple v. Hamilton, supra, 48 Cal.3d 1142, 1162.) No such
showing was even attempted in this case. Defendant
maintains that the trial court gave him no opportunity to
make the required showing, but the record does not
support this assertion. We have not imposed on trial
courts a duty to expressly invite a showing in support of,
or to inquire into the reasons for, a motion for cocounsel
status (see ibid.; People v. Miranda, supra, at pp. 75-76), and
we decline to do so now. We find nothing in the record to
indicate that either defendant or his counsel desired to
add anything to counsel’s statement of the motion, much
less that they were prevented from doing so. (Cf. People v.
Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d
44].) Certainly the record does not show that the court cut
off either defendant or his counsel. On this record, we
conclude that denial of the motion was nut an abuse of
discretion. (People v. Hamilton, supra, at p. 1162; People v.
Miranda, supra, at pp. 75-76.)
App. 12
II. Voir Dire
During the death-qualification of prospective jurors,
a dispute developed between the defense and the pros-
ecution concerning the permissible scope of voir dire. The
trial court resolved the split during and immediately after
the death-qualification voir dire of prospective juror
Fasana. The court rejected the prosecutor’s position that
voir dire should be restricted to inquiry concerning the
prospective jurors’ views on the death penalty in general
or as a punishment for the offenses and special circum-
stances charged in the information. The court agreed with
defense counsel that the parties should be permitted to
ask prospective jurors whether they would always or
never vote for the death penalty in cases involving any
generalized facts, whether pleaded or not, that were
likely to be shown by the evidence at trial. The court also
ruled, however, that voir dire on unpleaded facts could
be used only to assist the parties in exercising peremp-
tory challenges and not to establish grounds for disqual-
ification.
The latter aspect of the court’s ruling was incorrect.
Although the death penalty voir dire “seeks to determine
only the views of the prospective jurors about capital
punishment in the abstract...” (People v. Clark (1990) 50
Cal.3d 583, 597 [268 Cal.Rptr. 399, 789 P.2d 127]), a chal-
lenge for cause should be sustained as to any prospective
juror whose views on capital punishment would prevent
or substantially impair the performance of the juror’s
duties as a juror in accordance with the court’s instruc-
tions and the juror’s oath (Wainwright v. Witt (1985) 469
U.S. 412, 424 [83 L.Ed.2d 841, 851-852, 105 S.Ct. 844]). A
prospective juror who would invariably vote either for or
App. 13
against the death penalty because of one or more circum-
stances likely to be present in the case being tried, with-
out regard to the strength of aggravating and mitigating
circumstances, is therefore subject to challenge for cause,
whether or not the circumstance that would be deter-
minative for that juror has been alleged in the charging
document. (See, e.g., People v. Livaditis (1992) 2 Cal.4th
759, 772-773 [9 Cal.Rptr.2d 72, 831 P.2d 297]; People v.
Pinholster (1992) 1 Cal.4th 865, 917-918 [4 Cal.Rptr.2d 765,
824 P.2d 571].)
Although the trial court’s ruling was incorrect in this
one respect, the ruling did not restrict voir dire. During
the death-qualification process, defense counsel was per-
mitted to fully explore the prospective jurorsdeath [sic]
penalty views as applied to the general facts of the case,
whether or not those facts had been expressly charged.
Even assuming that the trial court’s erroneous view of the
grounds for disqualification in some way inhibited ques-
tioning during the death-qualification phase of jury selec-
tion, counsel was free to use the general voir dire to
explore the prospective jurorsreactions [sic] to the facts
and circumstances of the case. Thus, defendant was not
prejudiced. (See People v. DeSantis (1992) 2 Cal.4th 1198,
1217-1218 [9 Cal.Rptr.2d 628, 831 P.2d 1210].)
We also reject defendant’s contention that the trial
court erred in denying a defense challenge for cause to
prospective juror Fasana. To preserve a claim of error in
the denial of a challenge for cause, the defense must
either exhaust its peremptory challenges and object to the
jury as finally constituted or justify the failure to do so.
(People v. Garceau (1993) 6 Cal.4th 140, 174 [24 Cal.Rptr.2d
664, 862 P.2d 664]; People v. Raley (1992) 2 Cal.4th 870,
& -
App. 14
904-905 [8 Cal.Rptr.2d 678, 830 P.2d 712].) Here, the
defense did not exhaust its peremptory challenges, and
the sole justification offered for failing to do so that the
trial court improperly restricted voir dire is unsupported
by the record. Accordingly, we do not review the denial
of the defense challenge for cause to prospective juror
Fasana.
III. Penalty Phase Counsel Issues
Near the end of the guilt phase, defendant wrote the
trial court to express dissatisfaction with his attorneys
and to request their dismissal. On Wednesday, June 6,
1984, after the jury had returned its guilt verdicts, the
court held a hearing at which defendant moved to repre-
sent himself in further proceedings, with the attorneys
who had been representing him acting as advisory coun-
sel. The court questioned defendant about his ability to
conduct his own defense and warned him of the dangers
of self-representation. The court inquired whether defen-
dant would be ready to proceed on the following
Wednesday, June 13, the day set for starting the penalty
phase. Defendant said he would need additional time but
only to June 18, the Monday after the date previously set.
Defense counsel urged the court to deny the motion for
self-representation because in their view self-representa-
tion would not be in defendant’s best interests. The court
then took the matter under submission.
At the hearing, the trial court denied the motion for
self-representation. After a recess, defendant indicated he
would accept cocounsel status in lieu of self-representa-
tion. The trial court granted the request for cocounsel
App. 15
status. Defendant acted as cocounsel throughout the pen-
alty phase.
Defendant contends that the trial court erred in deny-
ing his motion for self-representation, that his trial coun-
sel provided ineffective assistance by opposing his
motion for self-representation, that the trial court abused
its discretion in granting him cocounsel status, and that
the trial court did not adequately advise him of the risks
of acting as cocounsel.
A. Denial of Self-representation Motion
Defendant argues that a criminal defendant’s right to
self-representation under the Sixth and Fourteenth
Amendments to the United States Constitution, as
defined and explained by the United States Supreme
Court in Faretta v. California (1975) 422 U.S. 806 [45
L.Ed.2d 562, 95 S.Ct. 2525], extends to the penalty phase
of a capital trial. Recognizing that the right of self-repre-
sentation is absolute only if asserted a reasonable time
before trial begins (People v. Windham (1977) 19 Cal.3d
121, 127-129 [137 Cal.Rptr. 8, 560 P.2d 1187]), defendant
further argues that the guilt and penalty phases of a
capital prosecution should be deemed separate trials, so
that a motion for self-representation at the penalty phase
is timely if made a reasonable time before the penalty
phase begins.
For the purpose of assessing the timeliness of a
motion for self-representation, the guilt and penalty
phases in a capital prosecution are not separate trials but
parts of a single trial. (People v. Hardy (1992) 2 Cal.4th 86,
App. 16
194-195 [5 Cal.Rptr.2d 796, 825 P.2d 781]; People v. Ham-
ilton (1988) 45 Cal.3d 351, 369 [247 Cal.Rptr. 31, 753 P.2d
1109].) Accordingly, when a defendant seeks self-repre-
sentation for the penalty phase, the trial court has discre-
tion to grant or deny the motion if not made a reasonable
time before the guilt phase has begun. (People v. Hardy,
supra, at pp. 194-195; People v. Bloom, supra, 48 Cal.3d
1194, 1220; People v. Hamilton, supra, 45 Cal.3d at p. 369.)
Defendant’s motion, made after the guilt verdicts were
returned, was addressed to the trial court’s sound discre-
tion.
We reject defendant’s contention that the trial court
abused its discretion when it denied his motion for self-
representation. In ruling on a midtrial motion for self-
representation, the trial court is to consider “the quality
of counsel’s representation of the defendant, the defen-
dant’s prior proclivity to substitute counsel, the reasons
for the request, the length and stage of the proceedings,
and the disruption or delay which might reasonably be
expected to follow the granting of such a motion.” (People
v. Windham, supra, 19 Cal.3d 121, 128.) Here, the trial
court’s comments reveal that it carefully considered each
of these factors. It found that defense counsel had per-
formed “quite admirably” in representing defendant, that
the reasons defendant gave for seeking self-representa-
tion were not compelling, that defendant would need a
continuance if granted self-representation, and that some
disruption would inevitably result. These findings are
supported by the record. Accordingly, the trial court did
not abuse its discretion in denying the motion for self-
representation.
— —-_— —
App. 17
B. Effective Assistance of Counsel
When defendant made his motion for self-representa-
tion, his counsel made a brief statement in opposition.?
2 “Your Honor, . . . it is not in the best interests of our client
to have him represent himself at the penalty phase. [{] I’ve
given some thought as to whether or not a defendant really has
a constitutional right to defend himself at the penalty phase. [{]
We all know that if he had chosen this course of action from the
inception, he could represent himself in a capital case during the
guilt phase of the trial. [{] I would ask the court to give some
strong consideration as to whether or not the defendant at this
juncture, having been convicted of the offenses, having been
convicted of the offense he has been convicted of, really has a
constitutional right under the cases that allow pro per represen-
tation, him [sic] to represent himself at the penalty phase.
“The consequences of doing that are so potentially severe,
that I think the court, counsel, all parties involved, should lean
over backwards and do whatever they can to protect the defen-
dant’s best interests, even though the defendant may think that
his course of action was the wiser course.
“So with those comments, I would ask the court to consider
denying Mr. Kirkpatrick’s request to represent himself at the
penalty phase and allow [cocounsel] and I [sic] to go ahead and
conduct the penalty phase as we think we should for the best
interests of our client.
“We will try to get whatever cooperation we can from Mr.
Kirkpatrick. There are certain things we will not be able to do
without his cooperation; but Im [sic] afraid that if this defendant
is allowed to proceed with his own defense and [cocounsel] and
I are privy to certain things that the court and [the prosecutor]
would not be privy to, that it may very well result in this jury
sentencing him to death in the gas chamber, where I think that if
[cocounsel] and I continue to represent the defendant, we feel
that we have a very good chance of getting this jury to come
back with life in prison without the possibility of parole.
“For those reasons, I would ask the court to deny Mr.
Kirkpatrick’s request.”
App. 18
Counsel argued that it was not clear that a defendant’s
right of self-representation extended to the penalty phase
of a capital trial, that in a death-penalty case everyone
concerned should “lean over backwards” to assure that
the defendant’s interests were protected, and that private
discussions with defendant had persuaded counsel that
self-representation would likely result in a death verdict
whereas there was a “very good chance” that the jury
would opt for the alternative penalty of life in prison
without possibility of parole if counsel continued to rep-
resent defendant at the penalty phase.
Defendant argues that his trial counsel provided inef-
fective representation when they took a position in oppo-
sition to their client’s stated wish to represent himself. He
argues that just as counsel may not prevent a defendant
from testifying (People v. Robles (1970) 2 Cal.3d 205, 215
[85 Cal.Rptr. 166, 466 P.2d 710]), counsel lack authority to
oppose a client’s decision on the matter of self-represen-
tation. Defendant further argues that on questions of
representation counsel’s personal interest in continuing
representation conflicts with counsels duty of loyalty to
the client, and that this conflict of interest imposes upon
counsel a duty to refrain from arguing against the client’s
motion for self-representation.
We are not persuaded. To establish a violation of the
constitutional right to effective assistance of counsel, a
defendant must show that his counsels performance was
deficient when measured against the standard of a rea-
sonably competent attorney, and that counsel’s perfor-
mance was prejudicial in the sense that it “so undermined
the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just
App. 19
result.” (Strickland v. Washington (1984) 466 U.S. 668, 686
[80 L.Ed.2d 674, 692-693, 104 S.Ct. 2052]; id. at pp. 686-694
[80 L.Ed.2d at pp. 692-698]; see also People v. Wader (1993)
5 Cal.4th 610, 636 [20 Cal.Rptr.2d 788, 854 P.2d 80].) If a
defendant has failed to show that the challenged actions
of counsel were prejudicial, a reviewing court may reject
the claim on that ground without determining whether
counsel’s performance was deficient. (Strickland v. Wash-
ington, supra, at p. 697 [80 L.Ed.2d at pp. 699-700].)
Here, defendant has failed to show that the chal-
lenged action of counsel - opposing defendants motion
for self-representation — was prejudicial. He has not
shown a reasonable probability that the penalty verdict
would have been more favorable had counsel not
opposed his motion for self-representation. Assuming for
argument’s sake that the trial court would have granted
the motion for self-representation had counsel not
opposed it, defendant gives us no reason to believe that
denial of the motion adversely affected the presentation
of the penalty defense. As the United States Supreme
Court has observed, “the right of self-representation is a
right that when exercised usually increases the likelihood
of a trial outcome unfavorable to the defendant.”
(McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8 [79
L.Ed.2d 122, 133, 104 S.Ct. 944].) Moreover, the trial court
subsequently granted defendant cocounsel status, and as
cocounsel defendant was able to cross-examine each of
the prosecution’s witnesses and to make his own argu-
ment to the jury. Counsel also deferred to defendant's
wishes in the selection of mitigating evidence. Thus,
defendant effectively had the advantages of self-repre-
sentation. We are not persuaded that the presentation of
App. 20
the defense case would have been significantly different,
much less more effective, had the trial court granted
defendants motion for self-representation.
Defendant’s claim is no more persuasive if consid-
ered under the rubric of conflict of interest. A criminal
defendant’s right to effective assistance of counsel, guar-
anteed by both the state and federal Constitutions,
includes the right to representation free from conflicts of
interest. (Wood v. Georgia (1981) 450 U.S. 261, 271 [67
L.Ed.2d 220, 230, 101 S.Ct. 1097]; People v. Jones (1991) 53
Cal.3d 1115, 1134 [282 Cal.Rptr. 465, 811 P.2d 757].) To
establish a violation of the right to unconflicted counsel
under the federal Constitution, “a defendant who raised
no objection at trial must demonstrate that an actual
conflict of interest adversely affected his lawyer’s perfor-
mance.” (Cuyler v. Sullivan (1980) 446 U.S. 335, 348 [64
L.Ed.2d 333, 346-347, 100 S.Ct. 1708], fn. omitted.) To
establish a violation of the same right under our state
Constitution, a defendant need only show that the record
supports an “informed speculation” that counsel’s repre-
sentation of the defendant was adversely affected by the
claimed conflict of interest. (People v. Cox (1991) 53 Cal.3d
618, 654 [280 Cal.Rptr. 692, 809 P.2d 351]; Maxwell v.
Superior Court (1982) 30 Cal.3d 606, 612-613 [180 Cal.Rptr.
177, 639 P.2d 248, 18 A.L.R.4th 333].)
Here, defendant maintains that the record supports
at least an informed speculation that counsels opposition
to his motion for self-representation was motivated, at
least in part, by counsel’s financial stake in preserving
their court appointment as defendant’s legal representa-
tives. We disagree. Nothing in the record suggests that
this particular appointment was financially important for
App. 21
counsel or that counsel could not have promptly obtained
appointments representing other defendants. Moreover,
defendant stated that if the court granted him self-repre-
sentation he wanted to keep counsel in an advisory
capacity. Thus, the record does not support an informed
speculation that the defense attorneys perceived any
threat to their livelihoods, nor is there the slightest hint
that thoughts of compensation, rather than sincere con-
cern about protecting defendant’s interest in avoiding a
death judgment, in any way influenced their opposition
to defendants motion for self-representation. We are satis-
fied there was no conflict of interest.
We agree in principle, however, that defense counsel
in criminal prosecutions should refrain from formally
opposing their clients’ motions for self-representation.*
First, there is a serious question as to counsel’s standing
in this situation. Defense counsel’s primary role is to
represent the accused. When counsel oppose the client’s
own motion, either we have the anomaly of a motion
made and opposed by the same party, or we have counsel
stepping out of the assigned role as party representative.
Second, permitting counsel to oppose a client’s motion is
likely to undermine the trust that is essential to an effec-
tive attorney-client relationship, and for this reason it will
make subsequent representation more difficult in the
event the motion for self-representation is denied. Third,
3 By comparison, counsel may properly oppose a repre-
sented defendant's efforts to participate in the presentation of
the defense case. As we have explained, “the decision whether
to proceed in that fashion is a matter of tactics for professional
counsel to decide.” (People v. Hamilton, supra, 48 Cal.3d 1142,
1163.)
App. 22
“the defendant — not criminal defense counsel — has the
right to personally decide whether he or she desires to
waive a jury trial, to appeal, or to proceed pro se.”
(Burkoff, Criminal Defense Ethics (1993 rev. ed.)
§ 6.3(a)(2), p. 6-20, fns. omitted.)
This is not to say that defense counsel must suppress
misgivings and actively support the motion for seJf-rep-
resentation, or even that counsel must remain silent.
Without formally opposing self-representation, counsel
can assist the court and serve the clients best interests by
advising the client of the risks and disadvantages of self-
representation; by providing the trial court, upon request,
with relevant nonprivileged information and pertinent
legal authority; and by correcting any misstatement of
fact by the client. (See People v. Burton (1989) 48 Cal.3d
843, 855-856 [258 Cal.Rptr. 184, 771 P.2d 1270] [counsel’s
response to defendant’s motion to substitute counsel].) If
defense counsel believes the client may lack competence
to waive the assistance of counsel (see, e.g., People v. Clark
(1992) 3 Cal.4th 41, 106 [10 Cal.Rptr.2d 554, 833 P.2d 561];
but see also Godinez v. Moran (1993) _\ U.S. ___, ___ [125
L.Ed.2d 321, 331-333, 113 S.Ct. 2680, 2686-2687] [compe-
tency standard for waiving the right to counsel is the
same as for standing trial]), counsel has a legal and
ethical obligation to bring this matter to the trial courts
attention. (See People v. Harris (1993) 14 Cal.App.4th 984,
995 [18 Cal.Rptr.2d 92].)
We reject defendant’s claim that his counsel’s inter-
ference with his attempted exercise of the right of self-
representation should result in reversal of the judgment
regardless of specific prejudice. Although denial of the
constitutional right of self-representation requires this
App. 23
remedy (see McKaskle v. Wiggins, supra, 465 U.S. 168, 177,
fn. 8 [79 L.Ed.2d 122, 133]; People v. Joseph (1983) 34 Cal.3d
936, 946 [196 Cal.Rptr. 339, 671 P.2d 843]), defendant
waived his constitutional right of self-representation by
failing to assert it within a reasonable time before trial.
(Jackson v. YIst (9th Cir. 1990) 921 F.2d 882, 888; People v.
Hardy, supra, 2 Cal.4th 86, 193-194; People v. Bloom, supra,
48 Cal.3d 1194, 1220.) As we have explained, defendant
cannot show specific prejudice because there is no reason
to believe that the penalty defense would have been more
effective, or even significantly different, had the court
granted defendant’s motion for self-representation.
C. Granting Motion for Cocounsel Status
Advancing alternative theories, defendant challenges
the trial court’s order granting him cocounsel status. The
first theory assumes there is no constitutional right to
self-representation at the penalty phase of a capital case
and asserts that this principle also precludes granting the
defendant cocounsel status. The second theory assumes
the trial court has discretion to grant cocounsel status in a
proper case but declares that the trial court abused its
discretion in this case.
The first theory requires little discussion. Opinions of
this court issued after the filing of defendant’s opening
brief on this appeal establish that the accused may act as
cocounsel or waive counsel entirely at the penalty phase
of a capital case. (People v. Clark, supra, 3 Cal.4th 41, 109;
People v. Clark, supra, 50 Cal.3d 583, 617; People v. Bloom,
supra, 48 Cal.3d 1194, 1218-1224.)
App. 24
Defendant’s alternative argument, that the ruling
was an abuse of discretion, fares no better. This claim is
barred by the doctrine of invited error, which estops a
defendant from challenging a trial court ruling granting
the defendant’s own motion. (See People v. Jones, supra, 53
Cal.3d 1115, 1136; People v. Lang (1989) 49 Cal.3d 991,
1031-1032 [264 Cal.Rptr. 386, 782 P.2d 627].)
D. Advisements
Defendant contends the trial court erred in not ade-
quately advising him, before granting his motion for
cocounsel status, of the dangers of proceeding as
cocounsel.
We will assume, without deciding, that granting
defendant’s motion for cocounsel status involved a
waiver of the right to counsel,* so that it was important
4 Although the trial court formally denied defendant’s
motion for self-representation, an argument can be made that
defendant actually represented himself at the penalty phase. He
conducted all cross-examination of prosecution witnesses,
argued his case to the jury, and appears to have substantially
controlled the selection of mitigating evidence. But counsel also
argued to the jury on defendant’s behalf and may have retained
some tactical control over presentation of the defense case.
Given that a defendant cannot be both self-represented and
represented by counsel at any given time (People v. Hamilton,
supra, 48 Cal.3d 1142, 1162), a defendant who assumes self-
representation has necessarily surrendered the right to repre-
sentation by counsel, even though counsel remains available to
assist the defendant in a subordinate role. Here, we find it
unnecessary to resolve the ambiguity in the record as to
whether such a surrender of the right to counsel took place
during the penalty phase of this case.
App. 25
that defendant understand the risks of his chosen course
of action. (See People v. Jones, supra, 53 Cal.3d 1115,
1141-1142.) As we have explained, even when a defen-
dant seeks to dispense with counsels assistance entirely,
“It]he test of a valid waiver of counsel is not whether
specific warnings or advisements were given but whether
the record as a whole demonstrates that the defendant
understood the disadvantages of self-representation,
including the risks and complexities of the particular
case.” (People v. Bloom, supra, 48 Cal.3d 1194, 1225; accord,
People v. Pinholster, supra, 1 Cal.4th 865, 928-929.)
Here, the trial court had advised defendant, in con-
nection with his motion for self-representation, that the
prosecutor was a skilled and experienced opponent, that
defendant’s lack of formal legal training would put him
at a disadvantage, and that self-representation was
almost always unwise. The record also shows that defen-
dant was well aware of the nature and seriousness of the
charges against him. Accordingly, we are satisfied that
defendant was sufficiently aware of the dangers of acting
as cocounsel. No more was required.
IV. Failure to Present Mitigating Evidence
After defendant was granted cocounsel status, he
stated for the record, at his attorneys’ request, that he
would not submit to a psychiatric examination and that
he would not have his mother or any members of his
family testify or be in any way involved in the trial.
Defense counsel indicated they would respect defen-
dant’s wishes in these matters. As a result, the defense
case in mitigation did not include expert testimony about
App. 26
defendant’s mental condition, nor did it include testi-
mony from any member of defendant's family. Defendant
now contends that his trial counsel, by following defen-
dant’s directions in these matters, denied defendant his
right to a fair trial and deprived him of effective assis-
tance of counsel.
As we have repeatedly explained, an attorney repre-
senting a defendant at the penalty phase of a capital case
is not required to present potentially mitigating evidence
over the defendant’s objections. (People v. Howard (1992) 1
Cal.4th 1132, 1185 [5 Cal.Rptr.2d 268, 824 P.2d 1315];
People v. Deere (1991) 53 Cal.3d 705, 714-717 [280 Cal.Rptr.
424, 808 P.2d 1181]; People v. Lang, supra, 49 Cal.3d 991,
1031.) A defendant may choose to spare his or her rela-
tives the ordeal of testifying in a capital trial. (People v.
Lang, supra, at p. 1031.) Similarly, counsel need not
attempt to obtain and present expert psychiatric testi-
mony in the face of the defendant’s refusal to cooperate.
Finally, “a defendant who insists that mitigating evidence
~ not be presented at the penalty phase is estopped from
later claiming ineffective assistance based on counsels
acquiescence in his [or her] wishes.” (People v. Deere,
supra, at p. 717.)
V. Dog Poisoning and Threatening Telephone Calls
Defendant raises various contentions regarding the
prosecution’s penalty phase evidence, introduced over
defense objection, that defendant had threatened to harm
Shirley Johnson, her house, and her children; that he had
administered poison to Johnson’s two dogs, inducing
temporary paralysis; and that he had made telephone
App. 27
calls to Johnson during which he threatened harm to her
daughter. He maintains that administering poison to ani-
mals and threatening damage to the house are not within
any statutory aggravating factor, that evidence of the
annoying telephone calls should have been excluded
under Evidence Code section 352 as being more prejudi-
cial than probative, that admitting evidence of threats
made by telephone but not threats made in person consti-
tutes a denial of equal protection of law, that the trial
court’s instructions to the jury improperly permitted
reliance on threats or injury to property as a circumstance
in aggravation, and that the combined effect of these
claimed errors requires reversal of the judgment of death.
A. Admissibility Under Statutory Aggravating Factor
One of the statutory factors that the jury must con-
sider in determining penalty in a capital case is “[t]he
presence or absence of criminal activity by the defendant
which involved the use or attempted use of force of
violence or the express or implied threat to use force or
violence.” (§ 190.3, factor (b).) To be admissible under this
factor, a threat to do violent injury must violate a penal
statute and must be directed against a person or persons,
not against property. (People v. Phillips (1985) 41 Cal.3d 29,
72 [222 Cal.Rptr. 127, 711 P.2d 423]; People v. Boyd (1985)
38 Cal.3d 762, 776 [215 Cal.Rptr. 1, 700 P.2d 782}.) But
when the prosecution has evidence of conduct by the
defendant that satisfies these statutory requirements, evi-
dence of the surrounding circumstances is admissible to
give context to the episode, even though the surrounding
circumstances include other criminal activity that would
App. 28
not be admissible by itself. (People v. Livaditis, supra, 2
Cal.4th 759, 776-777.)
Here, the prosecution’s evidence included threats by
defendant to harm Johnson’s daughter, and, as defendant
concedes, these threats violated section 653m.° To give
context to the treats, the prosecution properly introduced
evidence of the entire “course of criminal activity” that
included these threats, including the poisoning of the
dogs and the threats of injury to property. (People v.
Cooper (1991) 53 Cal.3d 771, 841 [281 Cal.Rptr. 90, 809 P.2d
865]; see also, People v. Sully (1991) 53 Cal.3d 1195, 1243
[283 Cal.Rptr. 144, 812 P.2d 163] [injury to animals]; People
v. Pensinger (1991) 52 Cal.3d 1210, 1258-1261 [278
Cal.Rptr. 640, 805 P.2d 899] [injury to property].)
B. Evidence Code Section 352
Evidence Code section 352 gives trial courts discre-
tion to exclude evidence the probative value of which is
“substantially outweighed” by the probability that admit-
ting it will unduly prolong the proceeding, prejudice the
opposing party, confuse the issues, or mislead the jury. To
preserve a claim that a trial court abused its discretion in
not excluding evidence under this section, a party must
make a timely and specific objection when the evidence is
offered. (Evid. Code, § 353, subd. (a); People v. Morris
(1991) 53 Cal.3d 152, 205 [279 Cal.Rptr. 720, 807 P.2d 949].)
> Section 653m, as here relevant, provides: “Every person
who, with intent to annoy, telephones another and . . . addresses
to the other person any threat to inflict injury to the person...
addressed or any member of his or her family, is guilty of a
misdemeanor.” (Id., subd. (a).)
App. 29
Contrary to defendant’s assertion on appeal, the
defense did not specifically object at trial that Shirley
Johnson’s testimony about the poisoning of her dogs
probably would prolong the proceedings unduly, unfairly
prejudice defendant, confuse the issues, or mislead the
jury, or that any one or more of these negative conse-
quences substantially outweighed the testimony’s proba-
tive value. Instead, the record shows that after requesting
and receiving an offer of proof, defense counsel objected
“that this does not show any crime of violence” and that
“it’s just a lot of hearsay testimony that is not really
probative.” Although counsel’s lack of express reference
to Evidence Code section 352 is not itself fatal to defen-
dant’s claim, the stated basis of the objection was insuffi-
cient to alert the trial court that this provision was being
invoked. Rather, counsel’s claim that the evidence did not
show any crime of violence and was “not really proba-
tive” appears to be an objection for lack of relevance.
Because there was no specific objection on the grounds
set forth in Evidence Code section 352, the issue is not
preserved for review.
C. Equal Protection Claim
Invoking the principle that a capital punishment
scheme must provide a “ ‘meaningful basis for distin-
guishing the few cases in which [the death penalty] is
imposed from the many cases in which it is not’ ” (Gregg
v. Georgia (1976) 428 U.S. 153, 188 [49 L.Ed.2d 859, 883, 96
S.Ct. 2909]), defendant argues that because California’s
capital punishment scheme permits the use of annoying
telephone calls as an aggravating factor when the same
threats administered in person could not be so
App. 30
employed,® it does not provide a meaningful basis for
selecting the few cases in which the death penalty should
be imposed, and therefore our death penalty scheme vio-
lates both the Eighth Amendment ban on cruel and
unusual punishments and the Fourteenth Amendment
guarantee of equal protection of the laws.
Defendant’s argument is founded upon a mistaken
understanding of the purpose of aggravating and mitigat-
ing circumstances in our death penalty scheme. As we
have recently explained, our law uses the special circum-
stances enumerated in section 190.2 to circumscribe the
class of persons eligible for the death penalty. (People v.
Bacigalupo (1993) 6 Cal.4th 457, 467-470 [24 Cal.Rptr.2d
808, 862 P.2d 808].) The aggravating and mitigating cir-
cumstances specified in section 190.3 perform a different
function. “A factor in aggravation . . . is simply a circum-
stance which may or may not affect one or more juror’s
moral, normative judgment regarding the appropriate
penalty for a defendant who has been convicted of a
death-eligible crime.” (People v. Pensinger, supra, 52 Cal.3d
1210, 1261.) For this purpose, factor (b) of section 190.3
appropriately permits the trier of penalty to consider
6 It is no longer the case, if it ever was, that threats of death
or great bodily injury can be criminal acts only if made by
telephone. Section 422, enacted in 1988, imposes criminal sanc-
tions for this conduct without regard to how the threat is com-
municated. A previous version of section 422 was enacted in
1977 (see Stats. 1977, ch. 1146, § 1, pp. 3684-3685), but this court
had declared it unconstitutionally vague before the events at
issue is this case. (People v. Mirmirani (1981) 30 Cal.3d 375, 388
{178 Cal.Rptr. 792, 636 P.2d 1130].)
App. 31
evidence of threats of violence only when those threats
violate a penal statute.
D. Jury Instructions
The trial court instructed the jury that before it could
consider as an aggravating circumstance the evidence
that defendant had made “threatening telephone calls” to
Shirley Johnson and had “[a]dminister[ed] poison to ani-
mals,” it was necessary that the jurors be satisfied beyond
a reasonable doubt that defendant had committed “such
criminal acts.” To assist the jurors in making this deter-
mination, the court defined the crime of “threatening
telephone calls” in these terms: “Every person who, with
intent to annoy telephones another and addresses to such
other person any threat to inflict injury to the person or
property of the person addressed or any member of his
family, is guilty of a crime.” Defendant maintains that
these instructions improperly permitted the jury to con-
sider threats to injure animals and other property as an
aggravating circumstance.
We agree that the court should have modified the
instructions to delete references to poisoning animals and
threatening injury to property. As we have already noted,
factor (b) of section 190.3 encompasses only those threats
of violent injury that are directed against a person or
persons. (People v. Boyd, supra, 38 Cal.3d 762, 776.) But we
are satisfied that there is no reasonable possibility these
instructional errors affected the penalty verdict. (People v.
Brown, (1988) 46 Cal.3d 432, 448 [250 Cal.Rptr. 604, 758
P.2d 1135].) The testimony regarding defendant's threats
to damage Johnson’s house and the nonfatal poisoning of
App. 32
the dogs was brief and unemotional, and it was properly
admitted and properly considered to provide context to
the threat to Shirley Johnson’s daughter. The testimony
was insubstantial in comparison to the testimony regard-
ing the threats to Shirley Johnson’s daughter, the evi-
dence concerning the Jacob D. and Stephen T. incidents,
and the evidence of the two capital murders. (See People
v. Pinholster, supra, 1 Cal.4th 865, 962-963 [explaining why
erroneous admission of nonviolent or noncriminal con-
duct is generally not prejudicial].) There is no reasonable
possibility that the instructions permitting the jury to
consider the dog poisoning and threats to property as
separate circumstances in aggravation, rather than as pro-
viding context to the threat to the daughter, induced any
juror to vote for death rather than life without possibility
of parole.
VI. Victim Impact Argument
During penalty phase argument to the jury, the pros-
ecutor referred to the likely suffering of the friends and
family members of the two persons defendant had
killed.? Relying on the United States Supreme Court’s
7 To the extent that sympathy or pity is part of a defense
argument, I would like to indicate that sympathy and pity in
this case cuts both ways.
“There is sympathy and pity for the people involved in this
case.
“There were two young men who were murdered. Those
two young men were absolutely innocent individuals. They had
hopes. They had dreams.
“One of them at the age of 16 really never had a chance to
live, never had a chance to love, never really had a chance to
App. 33
decision in Booth v. Maryland (1987) 482 U.S. 496 [96
L.Ed.2d 440, 107 S.Ct. 2529], defendant argues that the
prosecutors statements violated his rights under the
Eighth Amendment to the federal Constitution.
After defendant’s opening brief was filed, the United
States Supreme Court largely overruled Booth v. Maryland,
supra, 482 U.S. 496 (Payne v. Tennessee (1991) 501 U.S. 808
[115 L.Ed.2d 720, 111 S.Ct. 2597]), and this court has
subsequently held that under state law the immediate
effects of a capital crime on the victims family constitute
a “circumstance[ ] of the crime” (§ 190.3, factor (a)) that
the prosecutor may elicit and argue at the penalty phase
of a capital trial (People v. Edwards (1991) 54 Cal.3d 787,
fulfill what he wanted out of life. To the extent that you are
asked to consider sympathy and pity, I would say, fine; but look
at it both ways, at both sides. To the extent you are asked to
consider sympathy or pity, look at who else was killed at the
Taco Bell.
“It wasn’t just Jim Falconio, it wasn’t just Wayne Hunter
who was killed there. It was their families.
“It is a very painful thing for me to do to have to call
somebody’s best friend, in the case of John Hess, and to talk
abut his best friend being killed.
“It was even more painful to call the mother of the child
who was murdered. It is not something I like to do. I dont [sic]
enjoy watching somebody suffer on the witness stand; some-
body totally innocent up there on the witness stand; but to the
extent that pity, to the extent that sympathy is going to enter
into this case, I ask you to that extent consider both sides.
“I am sure Mrs. Falconio, I am a parent, most of you are too —
“[Defense objects; objection overruled.]
“As a parent dreams for her child, dreams of becoming a
grandparent, these dreams were also killed at the Taco Bell as
well as something she will have to live with for the rest of her
life. That is something that will never go away.”
App. 34
833-836 [1 Cal.Rptr.3d 696, 819 P.2d 436]). The argument
need not be based upon specific testimony of the victim’s
family members describing their emotions; the prosecutor
can urge the jury to draw reasonable inferences concern-
ing the probable impact of the crime on the victim and
the victim’s family. (See, e.g., People v. Montiel (1993) 5
Cal.4th 877, 934-935 [21 Cal.Rptr.2d 705, 855 P.2d 1277];
People v. Sandoval (1992) 4 Cal.4th 155, 190-191 [14
Cal.Rptr.2d 342, 841 P.2d 862]; People v. Wrest (1992) 3
Cal.4th 1088, 1107-1108 [13 Cal.Rptr.2d 511, 839 P.2d
1020]; People v. Raley, supra, 2 Cal.4th 870, 917.) Here, the
prosecutor’s argument was well within the boundaries of
permissible victim impact argument set by this court. (See
People v. Howard, supra, 1 Cal.4th 1132, 1190-1191.)
VII. Failure to Define “Aggravating” and “Mitigating”
During the first day of penalty phase deliberation,
the jury sent the court a note requesting “the legal defini-
tions for aggravating and mitigating circumstances as
they apply to the instructions in making the determina-
tion of this sentence.” After discussing the note with
counsel and defendant, the trial court summoned the jury
and responded to the note with these words: “You have
been given all the legal definitions you need. All other
words have their common definitions.” Defendant con-
tends the court committed prejudicial error in so
responding.
This court has previously determined that “aggrava-
ting” and “mitigating” are commonly understood terms
that the trial court need not define for the jury. (People v.
Johnson (1993) 6 Cal.4th 1, 50 (23 Cal.Rptr.2d 593, 859 P.2d
App. 35
673]; People v. Wader, supra, 5 Cal.4th 610, 659; People v.
Lang, supra, 49 Cal.3d 991, 1036; People v. Malone (1988) 47
Cal.3d 1, 55 (252 Cal.Rptr.525, 762 P.2d 1249].) Adhering
to our previous determination, we reject defendant’s con-
tention.
VIII. Penalty Determination Instruction
The trial court instructed the jury on the penalty
determination process in these words:
“After having heard and received all of the evidence,
and after having heard and considered the arguments of
counsel, you shall consider, take into account and be
guided by the aggravating and mitigating circumstances
upon which you have been instructed. [{] If you conclude
that the aggravating circumstances outweigh the mitigat-
ing circumstances you shall impose a sentence of death.
However, if you determine that the mitigating circum-
stances outweigh the aggravating circumstances, you
shall impose a sentence of confinement in the state prison
for life without the possibility of parole.”
Defendant contends this instruction was erroneous
because it implied that penalty determination was a
mechanical process of deciding whether there were more
bad than good things about defendant rather than deter-
mining which of the alternative punishments was more
appropriate under all the relevant circumstances.
The challenged instruction is a pattern instruction
(CALJIC former No. 8.84.2 (4th ed. 1979 rev.)) that closely
tracks language found in section 190.3. In People v. Brown
(1985) 40 Cal.3d 512, 541-544 [220 Cal.Rptr. 637, 709 P.2d
App. 36
440], we held that the statutory language and instructions
based upon that language did not unconstitutionally
withdraw from the jury its discretion to select the appro-
priate penalty. We cautioned, however, that the instruc-
tion is potentially misleading in two respects. “First, the
jury might erroneously infer that it could perform the
balancing or weighing process in a mechanical fashion by
comparing the number of factors in aggravation with
those in mitigation, or by an arbitrary assignment of
weights to the factors. Second, the jury might fail to
understand that a juror is not required to vote for the
death penalty unless, as a result of the weighing process,
the juror personally determines that death is the appro-
priate penalty under all the circumstances.” (People v.
Hayes (1990) 52 Cal.3d 577, 642 [276 Cal.Rptr. 874, 802
P.2d 376].) In pre-Brown cases like this one, in which the
jury was instructed in the language of section 190.3, we
examine the entire record of the penalty proceeding to
assure that the jury was not misled to defendant's preju-
dice in either of these ways. (52 Cal.3d 642.)8
The jury was not misled into believing that the bal-
ancing or weighing process was to be performed in a
mechanical fashion. In their arguments to the jury, neither
the prosecution nor the defense suggested that the jurors
could discharge their duties by merely counting the
aggravating and mitigating factors to determine which
8 We decline to decide whether this record review is still
necessary after the United States Supreme Court’s decisions in
Blystone v. Pennsylvania (1990) 494 U.S. 299 [108 L.Ed.2d 255, 110
S.Ct. 1078] and Boyde v. California (1990) 494 U.S. 370 [108
L.Ed.2d 316, 110 S.Ct. 1190]. (See People v. Gonzalez (1990) 51
Cal.3d 1179, 1231, fn. 30 [275 Cal.Rptr. 729, 800 P.2d 1159].)
App. 37
predominated numerically, or by assigning weight to the
factors in an arbitrary manner.’ Rather, the arguments to
the jury stressed that the jurors had discretion to decide
what weight to assign to each of the factors shown by the
evidence.
For example, the prosecutor argued that the special
circumstance of robbery murder should be considered as
aggravating, but “depending upon you as individuals
and how you assess it, you will assess it as more or less
aggravating as compared to other types of robbery-mur-
der.” The argument of defense counsel made the same
point explicitly: “It is very important that you understand
that in weighing these factors you and you alone decide
what weight to give each factor, that is, it is emphatically
not a question of mere numbers of how many aggrava-
ting and how many mitigating factors there are. Rather,
you have to decide not only which factors are present,
but how important each factor is.”
Nor was the jury misled into believing that the
weighing process could be divorced from a decision as to
the appropriateness of the death penalty. The prosecutor
repeatedly reminded the jury that the aim of the entire
process was to determine “the appropriate and just pen-
alty in this case.” Defense counsel also referred fre-
quently to the importance of focusing on whether death
was an appropriate penalty in this case.
9 At one point the prosecutor spoke of “adding” the aggra-
vating circumstances, but immediately retracted the statement.
(“It’s simply a weighing process where you add up — not add
up, but you consider the factors in aggravation against the
factors in mitigation.”)
App. 38
We find nothing in the arguments of counsel, in the
other instructions to the jury, or in any other part of the
record that could have caused a reasonable juror to mis-
apprehend the penalty determination process or the
scope of the jury’s discretion to determine penalty. There
was no error under People v. Brown, supra, 40 Cal.3d 512.
IX. Failure to Reinstruct the Jury
Defendant contends that the trial court erred in fail-
ing to repeat at the penalty phase the instructions it gave
at the guilt phase regarding the presumption of inno-
cence, the meaning of reasonable doubt, and the require-
ment that the verdicts reflect the individual opinions of
each juror.
As we have explained, a reasonable juror would
assume that “generic” instructions given at the guilt
phase continue to apply at the penalty phase, and there-
fore it is not prejudicial error for the trial court to fail to
reiterate those instructions. (People v. Hawthorne (1992) 4
Cal.4th 43, 73-74 [14 Cal.Rptr.2d 133, 841 P.2d 118]; People
v. Wharton (1991) 53 Cal.3d 522, 600 [280 Cal.Rptr. 631,
809 P.2d 290]; People v. Brown, supra, 46 Cal.3d 432, 460.)
And we have expressly rejected the contention that the
trial court on its own initiative must reinstruct the jurors
at the penalty phase on the presumption of innocence as
applied to unadjudicated crimes offered as circumstances
in aggravation. (People v. Benson (1990) 52 Cal.3d 754,
809-810 [276 Cal.Rptr. 827, 802 P.2d 330].)
App. 39
X. Failure to Instruct on Jury Unanimity as to Unadjudi-
cated Crimes
Defendant contends the trial court erred in not
instructing, on its own initiative, that the jury could
consider evidence of unadjudicated crimes as an aggrava-
ting circumstance under factor (b) of section 190.3 only if
the jurors unanimously agreed that defendant was guilty
of those crimes.
As defendant acknowledges, we have rejected this
contention many times. (See, e.g., People v. Alcala (1992) 4
Cal.4th 742, 809 [15 Cal.Rptr.2d 432, 842 P.2d 1192]; People
v. Johnson (1992) 3 Cal.4th 1183, 1245 [14 Cal.Rptr.2d 702,
842 P.2d 1].) Defendant provides no persuasive reason to
reconsider our determination of this issue.
XI. Evidence of Unadjudicated Crimes
Recognizing that we have often held to the contrary,
defendant contends that admitting evidence of unadjudi-
cated crimes as circumstances in aggravation deprives a
capital defendant of due process of law and imposes cruel
and unusual punishment in violation of the Eighth and
Fourteenth Amendments to the United States Constitu-
tion. We adhere to our prior decisions on this point. (See,
e.g., People v. DeSantis, supra, 2 Cal.4th 1198, 1251-1252;
People v. Balderas (1985) 41 Cal.3d 144, 204-205 [222
Cal.Rptr. 184, 711 P.2d 480].)
XII. Instruction Including Inapplicable Mitigating Factors
Defendant urges us to reconsider previous holdings
that it is not error for the trial court to list all statutory
App. 40
mitigating factors, including factors not applicable to the
case being tried, when instructing the jury at the penalty
phase. (See, e.g., People v. Danielson (1992) 3 Cal.4th 691,
718 [13 Cal.Rptr.2d 1, 838 P.2d 729]; People v. Hardy, supra,
2 Cal.4th 86, 203.) We decline to reconsider these deci-
sions.
XIII. Denial of Motion to Modify Penalty
Denying the automatic motion to modify penalty
(§ 190.4, subd. (e)), the trial court gave this statement of
reasons:
“After weighing all the evidence and after consider-
ation of all the factors set forth in Penal Code Section
190.3, this court concludes and adjudges beyond a rea-
sonable doubt, that the defendants aggravating circum-
stances far outweigh any mitigating circumstances.
“IT have considered the circumstances of the crimes
for which the defendant stands convicted and the exis-
tence of any special circumstances found to be true.
“The crimes of robbery and murder which took place
on September 17, 1983 were particularly aggravating [sic].
“The evidence showed that the defendant, William
Kirkpatrick, planned to rob the Taco Bell restaurant in
Burbank and intended to leave no witnesses.
“Although Lyndel Wayne Hunter and James Falconio
offered no resistance to the robbery, they were summarily
removed to the closet of the restaurant and needlessly
and senselessly murdered, one by one, execution style,
shot in the head by a calculating, cold-blooded murderer.
App. 41
“Mr. Falconio was only sixteen years old.
“The true amoral and cold-hearted character of Wil-
liam Kirkpatrick was obvious throughout the trial and
perhaps most dramatically shown by his statement to
Cora Rand in reference to the condition of James Fal-
conio, in which Kirkpatrick stated, ‘I hope the damn kid
dies.’
“The evidence presented by the People in the penalty
phase showing the presence of criminal activity by the
defendant which involved the use or attempted use of
force or violence was aggravating beyond a reasonable
doubt.
“The assault upon Stephen T[.], the threats to Mrs.
Johnson’s daughter, the poisoning of her dogs, and the
sexual assault upon Jacob D[.], all proven beyond a rea-
sonable doubt, are all aggravating circumstances.
“There was no evidence that the defendant was
under the influence of extreme mental or emotional dis-
turbance.
“The victims of those murders did not consent to nor
were they participants in the defendant’s homicidal con-
duct other than to be victims.
“There was not any moral justification nor any exten-
uation for the defendant’s conduct, nor could he reason-
ably believe there was.
“The defendant did not act under extreme duress or
under the substantial domination of another.
“There was no evidence that the defendant at the
time of the offense had his capacity to appreciate the
App. 42
criminality of the conduct impaired as a result of mental
disease or defect or the effects of intoxication.
“The evidence showed that the defendant was not a
mere minor participant but was in fact the shooter.
“The only possible factors in mitigation are the lack
of any prior felony convictions and the defendant's age of
y
“There were no other circumstances which extenuate
the gravity of the crime even though not a legal excuse.
“As I have stated earlier, the circumstances in aggra-
vation far outweigh those in mitigation.
“The motion for modification of the verdict imposing
the death penalty is denied.”
After the denial of the modification motion, but
before the court pronounced sentence, the court heard
testimony from John Hess (a close friend of victim
Hunter) and Rose Falconio (the mother of victim Fal-
conio). These witnesses expressed their opinions that
defendant should be executed for his crimes.
Defendant contends that the trial court prejudicially
erred in (1) relying upon evidence that defendant had
poisoned Shirley Johnson’s dogs, (2) ignoring evidence
that defendant was intoxicated at the time of the crimes,
and (3) receiving victim impact evidence.
As we have explained, evidence that defendant poi-
soned Shirley Johnson’s dogs was properly admitted to
provide context to defendant’s threats against Johnson’s
daughter. Thus, the trial court properly considered it, and
App. 43
the trial court’s brief reference to the incident does not
indicate that the court gave it undue weight.
Under factor (h) of section 190.3, the penalty jury is
to consider “[w]hether or not at the time of the offense
the capacity of the defendant to appreciate the criminality
of his conduct or to conform his conduct to the require-
ments of law was impaired as a result of . . . the affects
[sic] of intoxication.” Here, the trial court expressly found
that defendant's “capacity to appreciate the criminalty of
the conduct” was not impaired by intoxication, but defen-
dant complains that there was no similar finding that his
capacity to “conform his conduct to the requirements of
law” was unimpaired. The omission appears to be an
oversight in an otherwise thorough review of the statu-
tory factors, but the omission does not constitute error.
The trial court’s statement of reasons is sufficient to per-
mit thoughtful and effective appellate review. No more is
required. (People v. Clark, supra, 3 Cal.4th 41, 172.)
To the extent that defendant may be contending that
the trial court was required to find that intoxication was a
mitigating circumstance, we reject the contention. Evi-
dence that defendant was intoxicated at the time of the
murders was slight and unpersuasive. The trial court
could properly find that defendant was not intoxicated
(See People v. Thomas (1992) 2 Cal.4th 489, 543-544 [7
Cal.Rptr.2d 199, 828 P.2d 101].)
Finally, there was no error or prejudice in the trial
court’s decision to permit testimony by a friend and a
relative of the victims after the court had denied the
motion to modify penalty. (People v. Duncan (1991) 53
Cal.3d 955, 981 [281 Cal.Rptr. 273, 810 P.2d 131]; People v.
App. 44
Babbitt (1988) 45 Cal.3d 660, 724-725 [248 Cal.Rptr. 69, 755
P.2d 253].)
XIV. Constitutional Challenge to Death Penalty Law
Defendant contends that the death penalty law
unconstitutionally delegates to each district attorney the
power to decide which defendants shall be sentenced to
death by means of the prosecutors’ decisions to charge or
not to charge special circumstances and to seek or not to
seek the death penalty in those cases in which special
circumstances are charged and found. We disagree. As we
have explained, “prosecutorial discretion to select those
eligible cases in which the death penalty will actually be
sought does not in and of itself evidence an arbitrary and
capricious capital punishment system or offend princi-
ples of equal protection, due process, or cruel and/or
unusual punishment.” (People v. Keenan (1988) 46 Cal.3d
478, 505 [250 Cal.Rptr. 550, 758 P.2d 1081]; accord, People
v. Ashmus (1991) 54 Cal.3d 932, 980 [2 Cal.Rptr.2d 112, 820
P.2d 214].) Similarly, we conclude that the death penalty
law does not violate the constitutional principle of sep-
aration of powers by delegating sentencing authority to
the prosecutor. Ultimate sentencing power remains at all
times with the judicial branch.
App. 45
DISPOSITION
The judgment is affirmed.
Lucas, C.J., Arabian, J., Baxter, J., George, J., and
Klein, J.,* concurred.
MOSK, J. — I concur in the judgment. After review, I have
found no reversible error or other defect.
I write separately, however, because I cannot concur
in the majority opinion’s discussion, or lack of discussion,
of three troubling issues.
The first is defendant’s claim of ineffective assistance
under the Sixth Amendment to the United States Consti-
tution and article I, section 15 of the California Constitu-
tion based on trial counsels opposition to his penalty
phase motion to exercise his Sixth Amendment right of
self-representation under Faretta v. California (1975) 422
U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]. The majority’s
analysis leads ineluctably to a determination of no preju-
dice, based on the assertion that “ ‘the right of self-
representation is a right that when exercised usually
increases the likelitood of a trial outcome unfavorable to
the defendant.’” (Maj. opn., ante, at p. 1009, quoting
McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8 [79
L.Ed.2d 122, 133, 104 S.Ct. 944].) But it is settled that a
violation of this right by the trial court “is not amenable
to ‘harmless error’ analysis” and for that reason “cannot
be harmless... . ” (McKaskle v. Wiggins, supra, 465 U.S. at
* Presiding Justice, Court of Appeal, Second Appellate Dis-
trict, Division Three, assigned by the Acting Chairperson of the
Yudicial Council.
App. 46
p. 177, fn. 8 [79 L.Ed.2d at p. 133].) Is it true, as the
majority imply, that a violation of this same right by the
defendant's own attorney is virtually harmless per se? It
may be that “defendant waived his [absolute] constitu-
tional right of self-representation by failing to assert it
within a reasonable time before trial.” (Maj. opn., ante, at
p. 1011.) But he still retained at least a qualified constitu-
tional right of self-representation. The record reveals that
he would most likely have been allowed to proceed pro
se had not his attorneys expressed opposition.
The second troubling issue is defendant’s claim that
the trial court erred by refusing the jury’s request during
penalty deliberations for a definition of the crucial
instructional terms “aggravating” and “mitigating.” The
majority’s response is insufficient. It is true that “[t]his
court has previously determined that ‘aggravating’ and
‘mitigating’ are commonly understood terms that the trial
court need not define for the jury.” (Maj. opn., ante, at p.
1018.) That determination is perhaps sound when the jury
does not express any lack of such “common understand-
ing.” The matter is otherwise when - as here - it does.
The cases cited by the majority cover the situation in
which the jury does not make an expression of this sort.
They do not extend further.
The third troubling issue is defendant’s claim that
Penal Code section 190.3, which governs the penalty
phase of a capital trial, violates the guaranty of equal
protection of the laws contained in the Fourteenth
Amendment to the United States Constitution and article
I, section 7 of the California Constitution by “allow[ing]
proof of threats of violence as an aggravating circum-
stance where such threats are made over the telephone
App. 47
but not where they are otherwise communicated. In effect
this creates two classifications of persons: one subject to
aggravation at the death penalty trial because threats of
violence were made over the telephone, and one not
subject to aggravation based on violent threats made by
some other means.” “[W]hen reviewing legislative classi-
fications under the equal protection clauses of the Cali-
fornia and United States Constitutions, the legislation
under examination is generally clothed in a presumption
of constitutionality. However, once it is determined that
the classification scheme affects a fundamental interest or
right [or involves a suspect classification] the burden
shifts; thereafter the state must first establish that it has a
compelling interest which justifies the law and then dem-
onstrate that the distinctions drawn by the law are neces-
sary to further that purpose.” (People v. Olivas (1976) 17
Cal.3d 236, 251 [131 Cal.Rptr. 55, 551 P.2d 375], italics in
original.) Obviously, the classification between “tele-
phonic” and “nontelephonic” threats and threateners
affects life itself. And life, of course, is the most funda-
mental of fundamental interests. (See ibid.) “[C]an the
challenged sentencing scheme withstand application of
the strict scrutiny standard?” (ibid.) The majority do not
even address the question.
But, with all that said, neither in these matters nor in
any other can I find grounds for reversal. Hence,
although I do not concur in the majority opinion, I do
concur in the judgment.
*
App. 48
APPENDIX B
CR23921
S004642
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
IN BANK
(Filed Aug. 11, 1994)
THE PEOPLE, Respondent
V.
WILLIAM KIRKPATRICK JR., Appellant
Petition for rehearing DENIED.
Opinion modified.
/s/ Lucas
Chief Justice
App. 49
COPY
IN THE SUPREME COURT OF CALIFORNIA
PEOPLE,
Plaintiff and Respondent. 5004642
v Super. Ct. No.
| A 590144
WILLIAM KIRKPATRICK, JR.,
Los Angeles County
MODIFICATION
OF OPINION
(Filed Aug. 11, 1994)
Defendant and Appellant.
ee
THE COURT:
The opinion herein, appearing at 7 Cal.4th 988, is
modified as follows:
The last sentence of the first full paragraph on page
1010 [App. 21-22] is revised to read:
Third, “the defendant — not criminal defense counsel
— has the right to personally decide whether he or she
desires . . . to appeal, or to proceed pro se.” (Burkoff,
Criminal Defense Ethics (1993 rev. ed.) § 6.3(a)(2), p. 6-20,
fns. omitted.)
This modification does not affect the judgment.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.