Appendix — Calderon v. United States District Court for the Central District of California

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APPENDIX 1

People v. Beeler (1995)

9 Cal.4th 953, 39 Cal.Rptr.2d 607; 891 P.2d 153

[No. 010164. Apr 10, 1995.]

THE PEOPLE, Plaintiff and Respondent, v.

RODNEY GENE BEELER, Defendant and Appellant.

SUMMARY

A jury convicted defendant of one count of first

degree murder (Pen. Code, § 187) and one count of

burglary (Pen. Code, § 459) committed with the

personal use of a firearm (Pen. Code, § 12022.5). The

jury also found to be true the special circumstance that

the murder was committed during a burglary (Pen.

Code, § 190.2, subd. (a)(17)(vii)). The jury returned a

verdict of death. Before sentencing, defendant alleged

he had newly discovered evidence that he suffered from

Organic brain damage. The trial court granted multiple

continuances of the sentencing hearing for defendant to

attempt to develop this evidence. However, the court

ultimately denied defendant further continuances and a

new trial, and the court entered a judgment of death.

(Superior Court of Orange County, No. C-60966,

Robert R. Fitzgerald, Judge.)

The Supreme Court affirmed the judgment in its

entirety. The court held that the trial court did not err

by failing to remove a juror who had expressed an

uncertainty of her ability to fulfill her duties, but who

subsequently indicated an ability to serve. It held that

the prosecution did not fail to preserve exculpatory

evidence. The court also held that the trial court did not

abuse its discretion by admitting testimony regarding the

victim’s autopsy report by a pathologist who did not

conduct the autopsy. The court further held that the

trial court’s instructions on intent to kill, as to the

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felony-murder special circumstance, were sufficient, and

that the evidence was sufficient to support a finding of

intent to kill.

As to penalty phase issues, the court held that the

death penalty verdict was not coerced by reason of the

trial court’s decision to have the jury continue

deliberations with a juror whose father had died, instead

of dismissing the juror and selecting an alternate. The

court held that the trial court did not err by refusing to

allow defendant’s counsel to examine a licensed clinical

psychologist on the effect of a death penalty on

defendant’s family. The court further held that jailers’

seizure of defendant’s 50-page manuscript of his life did

not prevent him from presenting a complete defense

during the penalty phase. The court held that the death

penalty was not disproportionate as applied to

defendant. The court also held that the trial court’s

instructions did not lead to confusion of aggravating and

mitigating factors. The court further held that the trial

court did not err in failing to dismiss the special

circumstance allegation as a sanction for the destruction

of defendant’s juvenile records in Nevada. The court

also held that the trial court did not err in denying

defendant further continuances or a new trial

concerning the alleged organic brain damage. The court

finally held that whether it was ineffective assistance of

counse] for trial counsel] to fail to investigate the

possibility of brain damage was properly left to a habeas

corpus proceeding.

(Opinion by The Court. Separate concurring and

dissenting opinions by Mosk, Kennard and Baxter, JJ.)

HEADNOTES

(1) Jury §26—Excusing of Jurors—Trial Court’s

- Discretion to Remove Juror—Juror Who Expressed

Doubts About Ability to Fulfill Duties.—In a capital

homicide prosecution, defendant’s constitutional rights

were not violated by the trial court’s failure to remove a

juror who had expressed, in a telephone conversation

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with the court clerk, an uncertainty of her ability to

fulfill her duties, but who subsequently indicated to the

court an ability to serve. A juror’s inability to perform

his or her functions must appear in the record as a

demonstrable reality, and bias may not be presumed.

The record reflected no demonstrable reality that the

juror was unable to serve as a juror. Moreover, under

Pen. Code, § 1089, which allows a trial court to remove

a juror on a finding of good cause, the determination of

good cause is one calling for the exercise of the court’s

discretion, and if there is any substantial evidence

supporting that decision, it will be upheld on appeal.

Substantial evidence supported the trial court’s

determination that the juror could fulfill her duty. In

response to careful questioning by the court, she made

clear her belief that she could be impartial and was able

to serve despite her prior misgivings. In that

circumstance, the trial court was within its discretion not

to remove her from the jury.

(2a, 2b) Criminal Law (1993) §45.2—Rights of

Accused —Fair Trial—Failure to Preserve

Evidence—Autopsy of Homicide Victim.—In a capital

homicide prosecution, the autopsy of the victim was not

inadequate, and thus defendant’s due process rights

were not violated. Autopsy photographs showed

discolorations on the victim’s hands, and the pathologist

testified that the discolorations had not been examined.

Thus, the pathologist could not tell whether the

discolorations were bruises or whether they occurred

close to the time of death. Defendant, who had shot the

victim while burglarizing his house, asserted that this

failure undermined his ability to substantiate his claim

that the victim was shot in the heat of a struggle, and

thus the killing was not intentional. This evidence would

not have had any meaningful exculpatory value. If an

examination had revealed the victim’s hands were

bruised during the burglary, such evidence would not

point necessarily to the conclusion he had struggled with

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defendant. Moreover, even that conclusion would have

aided defendant only minimally, if at all. That the victim

was struggling to protect himself or his home did not by

itself negate the finding that he was intentionally killed.

Further, defense counsel’s argument to the jury made

no reference to the discolorations and did not suggest

the victim had been bruised during an alleged struggle.

(3a, 3b) Criminal Law (1993) §45.2—Rights of

Accused—Fair Trial— Failure to Preserve

Evidence—Test-firing of Rifle.—In a capital homicide

prosecution, the prosecution did not destroy evidence by

test-firing a rifle found in the victim’s house so as to

violate defendant’s due process rights. Defendant

asserted the test-firing destroyed material exculpatory

evidence by precluding a determination whether the

rifle had been fired by the victim on the day of the

killing. First, defendant made no showing that such a

determination was not made. Even if no such

determination was made, defendant failed to show the

test-firing precluded the further testing he claimed

should or could have been done. Further, defendant

failed to establish the existence of any subsequent

laboratory test that would have shown whether the rifle

was fired on the day of the killing, and thus defendant

could not fairly charge the prosecution with precluding

testing that may not have been possible. Moreover, even

if the test-firing precluded further testing and such

testing would have shown the rifle was fired the day of

the killing, defendant failed to show the testing would

have had any exculpatory value that would have

reasonably been apparent to the police.

(4) Criminal Law (1993) §45.2—Rights of

Accused —Fair Trial— Failure to Preserve Evidence.—The

federal constitutional guaranty of due process imposes a

duty on the state to preserve only such evidence that

might be expected to play a significant role in the

suspect’s defense. To meet this standard of

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constitutional materiality, evidence must both possess an

exculpatory value that was apparent before the evidence

was destroyed and be of such a nature that the

defendant would be unable to obtain comparable

evidence by other reasonably available means. The

state’s responsibility is further limited when the

defendant’s challenge is to the failure of the state to

preserve evidentiary material of which no more can be

said than that it could have been subjected to tests, the

results of which might have exonerated the defendant.

In this circumstance, unless a criminal defendant can

show bad faith on the part of the police, failure to

preserve potentially useful evidence does not constitute

a denial of due process of law. The presence or absence

of bad faith by the police for purposes of the due

process clause must necessarily turn on the police’s

knowledge of the exculpatory value of the evidence at

the time it was lost or destroyed.

(S5a-Sc) Homicide

§54—Evidence— Admissibility —- Hearsay —Testimony

Regarding Autopsy Report by Pathologist Who Did Not

Conduct Autopsy Criminal Law (1993)

§414—Evidence— Admissibility —- Hearsay — Business

Records.—In a capital homicide prosecution, the trial

court did not abuse its discretion by admitting the

testimony regarding the victim’s autopsy report by a

pathologist who did not conduct the autopsy. The court

admitted the report under the business record exception

to the hearsay rule (Evid. Code, § 1271). The court was

aware that the pathologist who conducted the autopsy

left the coroner’s office under unfavorable terms, but, by

admitting the report, the court impliedly found that the

report was trustworthy. Since the court acted within its

discretion in finding the report trustworthy, the absence

of the pathologist who conducted the autopsy did not

violate defendant’s right to confront witnesses.

Furthermore, the testimony did not contain the hearsay

medical opinions of the pathologist who conducted the

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autopsy. The report contained a factual account of the

bullet’s entry into the victim’s body, including the fact

that it pierced the victim’s heart. This did not prejudice

defendant, since there was no dispute that the victim

died from a gunshot wound.

(6) Criminal Law (1993)

§414—Evidence—Admissibility — Hearsay — Business

Records.—Pursuant to Evid. Code, § 1271, which

provides that a document is admissible as a business

record only if the sources of information and method

and time of preparation were such as to indicate its

trustworthiness, the proponent of the evidence has the

burden of establishing trustworthiness. The trial court,

however, has wide discretion in determining whether a

sufficient foundation has been laid to qualify evidence as

a business record. On appeal, exercise of that discretion

can be overturned only upon a clear showing of abuse.

(7) Criminal Law (1993)

§414—Evidence— Admissibility —- Hearsay — Business

Records— Medical Opinion.—Some medical opinion

contained in a medical report is not admissible under

the business records exception to the hearsay rule (Evid.

Code, § 1271). To be admissible under the business

records exception, the evidence must be a record of an

act, condition, or event. A medical conclusion is not an

act, condition, or event, and it may or may not be based

upon conditions, acts, or events observed by the person

drawing the conclusion. However, some diagnoses are a

statement of a fact or a condition. For example, a

diagnosis that a man has suffered a compound fracture

of the femur is a record of what the person making the

diagnosis has seen. But this is not true where the

diagnosis is but the reasoning of the person making it

arrived at from the consideration of many different

factors.

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(8a, 8b) Homicide

§78—Trial—Instructions—Intent—Felony-murder Special

Circumstance.—In a capital homicide prosecution, which

was conducted at a time when the rule was that a

felony-murder special-circumstance finding required

proof of the defendant’s intent to kill, the trial court’s

instructions on intent were sufficient. First, the special

circumstance instruction specifically advised the jury that

it must find that defendant intended to kill a human

being. Further, the trial court’s instructions did not

improperly lead the jury into believing that implied

malice was sufficient to establish intent to kill for the

purpose of the special circumstance. Although the court

earlier instructed the jury that implied malice was

sufficient to establish the mental state for the underlying

murder charge, the special circumstance instruction did

not refer to a killing with malice, and, therefore, the

instruction would not have caused the jury to refer to

the earlier instruction on murder. The language of the

implied malice definition is inconsistent with the

instruction requiring a finding of intent to kill.

Moreover, the prosecutor’s closing argument explaining

the intent-to-kill requirement foreclosed any realistic

possibility of the jury believing it did not have to find

intent to kill for the special circumstance.

(9) Criminal Law (1993) §244—Instructions—Court’s

Explanation of Instruction.—In the absence of a party’s

request, a trial court is under no obligation to amplify or

explain an instruction.

(10) Homicide

§66 —Evidence— Sufficiency —Felony-murder Special

Circumstance—Intent.—In a capital homicide

prosecution, which was conducted at a time when the

rule was that a felony-murder special circumstance

finding required proof of the defendant’s intent to kill,

there was sufficient evidence to support a finding of

intent to kill the victim, whose house defendant was

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burglarizing at the time of the killing. The prosecution

asserted that two shots from a .22-caliber revolver were

fired from the house, but only one bullet was

conclusively found to have come from the revolver,

rather than the victim’s rifle, and there was only one

bullet hole in the screen door. Thus, the evidence did

not mandate, but also did not preclude, the inference

the prosecution asserted. The trajectory of one bullet

and an indentation on the lawn that appeared to show

where a knee struck the ground led to the inference

that at least one bullet, and possibly both, had been

fired from the house, and that one bullet struck the

victim. Also, the fact that the victim was shot in the

back from a distance of more than two feet led to the

inference that he was shot while fleeing. Further, the

fact that the bullet pierced the victim’s heart did not by

itself prove that defendant aimed for the heart, but it

permitted that inference.

(lla, 11b) Criminal Law (1993) §236—Trial—Jury

Deliberations— Replacement of Juror During

Deliberations—Continuing Deliberations With Juror

Whose Father Died Jury §26—Excusing of Jurors.—In

the penalty phase of a capital homicide prosecution, a

death penalty verdict was not coerced by reason of the

trial court’s decision to continue deliberations with a

juror whose father had died. After hearing of the

father’s death, the court commenced a proceeding in

which defendant and all counsel were absent, and the

court sent the juror back to deliberate for one hour

until it was time for the juror to leave to go to the

airport. The court determined that if the jury could not

reach a verdict in that time, the jury was to resume

deliberations six days later upon the juror’s return. This

was not abuse of discretion. To the contrary, the court

accommodated the juror to the fullest extent by offering

to recess the trial and to truncate the deliberations on

the day in question so that the juror could leave town.

Also, the court could observe the juror’s demeanor, and

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there was nothing to indicate that there was any

communication between the court and the juror that

was not included in the record but which might have

cast doubt on the juror’s ability to proceed. Also,

although a more detailed inquiry may have been

beneficial, none was required, as a court’s discretion in

deciding whether to discharge a juror encompasses the

discretion to decide what specific procedures to employ

including whether to conduct a hearing or detailed

inquiry. Finally, there was no evidence of coercion: the

juror did not request to be discharged or to be excused

from deliberating that day, and there is no presumption

that a juror who has suffered a loss in the family is

unable to discharge the duties of a juror.[See 5 Witkin

& Epstein, Cal. Criminal Law (2d ed. 1989) § 2875.]

(12) Jury §26—Excusing of Jurors—Trial Court’s

Discretion to Remove Juror —Review.—A trial court’s

decision whether to discharge a juror for good cause

under Pen. Code, § 1089, is subject to review under the

abuse-of-discretion standard.

(13) Criminal Law (1993) §236—Trial—Jury

Deliberations— Replacement of Juror During

Deliberations—Continuing Deliberations With Juror

Whose Father Died—Court’s Ex Parte Communication

With Juror Jury §26—Excusing of Jurors.—In the

penalty phase of a capital homicide prosecution, the

trial court did not err by engaging in an ex parte

communication with a juror whose father had died.

After hearing of the death, the court commenced a

proceeding in which defendant and all counsel were

absent, and the court sent the juror back to deliberate

for one hour until it was time for the juror to leave to

go to the airport. The court determined that if the jury

could not reach a verdict in that time, the jury was to

resume deliberations six days later upon the juror’s

return. If the juror was distressed and had a pressing

need to arrange his affairs, the situation might have

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been exacerbated if the court had refused even to speak

with him until counsel arrived at the court. It is not

error for a trial court to engage in a brief,

administrative communication when informed of a death

in a juror’s family. Reality and common sense dictate

that a court be allowed to learn what has happened.

Although a court at some point might err by going

beyond what is administratively necessary, that point

was not reached in this case.

(14) Criminal Law (1993)

§521.3—Punishment—Penalty Trial of Capital

Prosecution — Evidence— Mitigating Evidence— Effect of

Death Penalty on Defendant’s Family.—In the penalty

phase of a capital homicide prosecution, the trial court

did not err by refusing to allow defendant’s counsel to

examine a licensed clinical psychologist on the effect of

a death penalty on defendant’s family. The psychologist

had worked in the State of Nevada prison system for

nine years as a psychologist, superintendent of a

women’s prison, and warden of a maximum security

prison. He testified he had the opportunity during this

period to interview the families of people on death row.

Even if evidence of the effect of a death penalty on the

defendant’s family is constitutionally pertinent mitigation

evidence, the proposed testimony was not admissible,

because the psychologist had no personal knowledge of

defendant’s family. The most that he could have stated

would have been his opinion regarding the effect on

those families of whom he did have personal knowledge.

This would have been an opinion regarding the death

penalty in general. Such an opinion would not be

relevant to the proper inquiry, which is to tailor the

defendant’s punishment to his or her responsibility and

moral guilt.

(15) Criminal Law (1993)

§521.3—Punishment— Penalty Trial of Capital

Prosecution —Evidence— Mitigating Evidence— Seizure of

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Defendant’s Written Notes.—Jailers’ seizure of

defendant’s 50-page manuscript of his life did not

prevent him from presenting a complete defense in the

penalty phase of defendant’s capital homicide

prosecution. Trial counsel had brought the matter to the

court’s attention, and the court had ordered that the

manuscript be kept under seal by the court. However,

although appellate counsel was unable to obtain the

manuscript, nothing in the record suggested that trial

counsel had ever requested access to the manuscript or

that it was unavailable to the defense at the penalty

phase of the trial. Thus, the seizure, even if improper,

did not prejudice defendant. Also, prejudice was lacking

in other respects. First, although defendant asserted that

the loss was irreparable because he suffered from

severe organic brain damage and thus there was a

question whether he could reproduce the work product,

that assertion assumed as a fact that he was, in fact,

brain damaged. Moreover, appellate counsel did not

assert that defendant ever actually attempted to rewrite

or reconstruct the work, or explain why trial counsel

could not have obtained the same information by

interviewing defendant. Second, defendant did not assert

that the manuscript would itself have been admissible,

but only that it would have assisted counse! at trial.

Third, defendant did not point to any mitigating

evidence that he was unable to introduce as a result of

the seizure of the manuscript.

(16) Homicide §101—Punishment— Death

Penalty —Proportionality.—The death penalty was not

disproportionate punishment of defendant, who was

convicted of one count of first degree murder and one

count of burglary, committed with the personal use of a

firearm, with the special circumstance that the murder

was committed during a burglary. The jury found that

defendant was the actual killer and that he intended to

kill. Accordingly, the imposition of the penalty of death

on defendant did not violate U.S. Const., 8th Amend.

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Further, defendant had a history of violent crime, having

previously robbed and raped a woman. He did not lead :

a law-abiding life, since he had three burglary i

convictions. More important, even if defendant had no ;

criminal past, he was a killer who entered an innocent

stranger’s home and burglarized it. The resident

inadvertently returned home, interrupted the crime, and,

after struggling, was shot in the back. The killer left the

victim to die. Furthermore, neither defendant’s abused

childhood, his own family’s circumstances, nor his

nine-year interlude from crime rendered

disproportionate a death penalty for defendant’s killing

of the innocent victim under the circumstances of this

case.

(17a, 17b) Criminal Law (1993)

§523.6—Punishment— Penalty Trial of Capital

Prosecution — Instructions—Aggravating

Evidence—"Catchall” Provision as Confusing

Aggravating and Mitigating Factors.—In the penalty

phase of a capital homicide prosecution, the trial court’s

instructions did not lead to confusion of aggravating and

mitigating factors. The court instructed with the 1986

revision of CALJIC No. 8.84.1, which included the

language of Pen. Code, § 190.3, factor (k), directing the

jury to consider "any other circumstance which

extenuates the gravity of the crime even though it is not

a legal excuse for the crime and any sympathetic or

other aspect of the defendant’s character or record that

the defendant offers as a basis for a sentence less than

death, whether or not related to the offense for which

he is on trial." In addition, the court instructed "the list

of factors which I have just read to you contains every

aggravating factor which you may consider." Nothing in

the additional instruction suggested that § 190.3, factor

(k), could be considered as an aggravating factor, and

the language of the § 190.3, factor (k), instruction

negated any such meaning. Further, the court instructed

the jury that the absence of any mitigating factor is not

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an aggravating factor. Thus, it was not likely that the

jury believed it was to consider extenuating evidence as

aggravating evidence.

(18) Criminal Law (1993)

§521.3—Punishment— Penalty Trial of Capital

Prosecution — Evidence— Mitigating Evidence —"Catchall"

Provision.—The language of Pen. Code, § 190.3, factor

(k), which directs the trier of fact, in determining the

appropriateness of the death penalty, to consider any

circumstance that extenuates the gravity of the crime

even though it is not a legal excuse for the crime, refers

only to circumstances that extenuate the gravity of the

crime, and not to circumstances that enhance it.

(19) Criminal Law (1993)

§244—Instructions— Ambiguous Instructions. — The

proper standard for scrutinizing ambiguous jury

instructions is to inquire whether there is a reasonable

likelihood that the jury misconstrued or misapplied the

words. }

(20a, 20b) Criminal Law (1993) $45.2—Rights of

Accused —Fair Trial— Failure to Preserve

Evidence—Capital Defendant’s Juvenile Records.—In a

capital homicide prosecution, the trial court did not err

in failing to dismiss the special circumstance allegation

as a sanction for the destruction of defendant’s juvenile

records in Nevada. Despite a Nevada law that appeared

to require the sealing and retention of such records, the

records were destroyed nearly 20 years prior to the

capital prosecution. Defendant moved to dismiss the

allegation on the ground that the destroyed records may

have provided mitigating evidence. Regardless of

whether the destruction by the Nevada authorities was

proper under that state’s law, at the time those records

were destroyed neither the records themselves nor their

destruction had any cognizable nexus whatsoever with

the present case. Thus, there was no constitutionally

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improper conduct. As suggested by the trial court, when

the records were destroyed, the Nevada officials could

not reasonably have been expected to foresee the

records might contain some mitigating evidence 20 years

later.

(21) Criminal Law (1993) §45.2—Rights of

Accused —Fair Trial-~Failure to Preserve

Evidence— Constitutional Requirements.—The federal

constitutional guaranty of due process imposes a duty

on the state to preserve only such evidence that might

be expected to play a significant role in the suspect’s

defense. To meet this standard of constitutional

materiality, evidence must possess an exculpatory value

that was apparent before the evidence was destroyed.

Unless a criminal defendant can show bad faith on the

part of the police, failure to preserve potentially useful

evidence does not constitute a denial of due process of

law. The presence or absence of bad faith by the police

for purposes of the due process clause must necessarily

turn on the police’s knowledge of the exculpatory value

of the evidence at the time it was lost or destroyed.

(22) Homicide §101—Punishment—Death

Penalty—Automatic Motion to Modify Verdict—Trial

Court’s Reading of Probation Report Before

Sentencing.—In a capital homicide prosecution, no

prejudicial error resulted from the trial court’s reading

of defendant’s probation report before ruling on the

automatic application for modification of a verdict of

death. The preferable procedure is to defer reading the

probation report until after ruling on the application. In

making that ruling, the judge is limited to consideration

of the evidence that was before the penalty jury. The

probation report had not been admitted into evidence.

However, absent a contrary indication in the record, the

reviewing court assumes the trial court was not

influenced by the report in ruling on the application.

The record in this case showed the trial court relied

;

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only on the evidence, not the probation report.

Moreover, the court carefully reviewed the evidence,

including the aggravating and mitigating circumstances

and concluded that, considering all of the evidence, the

factors in aggravation, beyond all reasonable doubt,

overwhelmingly outweighed those in mitigation. On

these facts, there was no error and no prejudice.

(23) Criminal Law (1993)

§214—Trial—Continuance— Sentencing Hearing

—Discretion of Trial Court.—The granting or denial of a

continuance during trial traditionally rests within the

sound discretion of the trial judge. The burden is on the

defendant who challenges the denial of a continuance to

establish an abuse of judicial discretion. In exercising its

discretion, an important factor for a trial court to

consider is whether a continuance would be useful, and

to demonstrate the usefulness of a continuance a party

must show both the materiality of the evidence

necessitating the continuance and that such evidence

could be obtained within a reasonable time.

(24) Criminal Law (1993)

§215—Trial—Continuance— Sentencing Hearing

~Grounds—To Ascertain Effect of Defendant’s Alleged

Organic Brain Damage.—In a capital homicide

prosecution, in which the jury had rendered a verdict of

death, and in which the court had granted defendant

multiple continuances to investigate the significance of

posttrial allegations that defendant suffered from

organic brain damage, the trial court did not abuse its

discretion in denying defendant’s request for another

continuance. First, counsel’s declaration in support of

the request was all the court had before it, and that

declaration was equivocal. It repeatedly stated that the

so-called newly discovered evidence "appears relevant"

and "suggests" problems with defendant’s mental state.

Moreover, counsel seemed to assume that proof of

some type of organic brain damage would be relevant to

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a material issue. Counsel’s declaration permitted only

speculation in that regard. Second, there was no

adequate showing that the evidence, even if material,

could be obtained within a reasonable time. The lengthy

delays and prior continuances permitted serious doubt

whether the additional time requested would have

yielded meaningful evidence.

(25a, 25b) Criminal Law (1993) §461—New

Trial—Grounds— New Evidence—Capital Defendant’s

Posttrial Allegations of Organic Brain Disorder.—In a

capital homicide prosecution, in which the jury had

rendered a verdict of death, the trial court did not

abuse its discretion in denying defendant’s motion for a

new trial based on alleged newly discovered evidence

that defendant suffered from severe organic brain

damage. Defendant failed to show that a different result

would be probable on retrial. The motion for a new

trial, including the issue of a probable different outcome

on retrial, must be decided on the evidence actually

before the court at that time, not on the basis of

evidence that might be developed. All the court had

before it was counsel’s vague and equivocal declaration

regarding the alleged results of the brain testing. It was

so tenuous that it clearly did not make a different

outcome probable, or even remotely likely. An affidavit

that is so vague and general supports the denial of a

motion for new trial. Moreover, counsel’s declaration

did not comport with the statutory requirement for a

new trial motion (Pen. Code, § 1181), and defendant did

not produce a single affidavit by any witness who could

have presented credible evidence of his alleged organic

brain damage, submitting instead only the declaration of

counsel.

(26) Criminal Law (1993) §465—New

Trial—Procedure— Discretion of Trial Court.—In ruling

on a motion for new trial based on newly discovered

evidence, the trial court considers the following factors:

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that the evidence, and not merely its materiality, be

newly discovered; that the evidence be not cumulative

merely; that it be such as to render a different result

provable on a retrial of the cause; that the party could

not with reasonable diligence have discovered and

produced it at the trial; and that these facts be shown

by the best evidence of which the case admits. Unless a

clear abuse of discretion is shown, a denial of the

motion will not be interfered with on appeal.

(27) Homicide §101—Punishment— Death

Penalty —Automatic Motion to Modify Verdict—Trial

Court’s Consideration of New Mitigating Evidence.—In

denying defendant’s automatic motion to modify a

verdict of death, the trial court did not err in failing to

consider defendant’s posttrial claim that he suffered

from organic brain damage. Defendant asserted that

ruling on the motion was error in that the court either

failed to consider pertinent relevant evidence, or if it

had considered the evidence, the court would

improperly be considering evidence not before the jury.

In other words, defendant claimed that the trial court

could not rule on the motion. However, there was no

evidence for the court to consider. Defendant's

"evidence" was no more than a vague and speculative

declaration of counsel.

(28a, 28b) Criminal Law (1993) §110—Rights of

Accused—Failure to Investigate Capital Defendant’s

Brain Damage.—In a capital homicide prosecution,

defendant was not provided with ineffective assistance

of counsel as a result of counsel's failure to investigate

his alleged organic brain damage. At trial, two experts

testified that defendant suffered from disassociative

memory loss, and one of them also testified that

defendant had suffered physical, emotional, and sexual!

abuse by his stepmother. This was not sufficient to

cause defense counsel to investigate a possible

neurological link to defendant’s mental problems.

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Further, counsel was not deficient for failing to produce

posttrial expert evidence concerning defendant’s

possible brain damage. There was no evidence, other

than counsel’s declaration supporting a request for a

continuance, that defendant in fact had brain damage.

Even if counsel had a duty to investigate defendant’s

alleged blackouts, nothing in the record, and only bare

speculation as to the outcome of any investigation,

suggested that counsel failed to meet that duty.

Moreover, defendant failed to establish anv prejudice

from the fact that the jury did not hear of his brain

damage, since he never established the fact of the brain

damage.

(29) Criminal Law (1993) §104—Rights of

Accused~—Competence of Defense Council— Burden of

Proof.—To establish entitlement to relief for ineffective

assistance of counsel, the burden is on the defendant to

show trial counsel failed to act in the manner to be

expected of reasonably competent attorneys acting as

diligent advocates, and it is reasonably probable that a

more favorable determination would have resulted in

the absence of counsel’s failings.

COUNSEL

Pierce O’Donnell, under appointment by the Supreme

Court, Kenneth A. Freeling, Clara A. Pope, John

Schaeffer, Steve Rottman, Wilmer Harris and Kaye,

Scholer, Fierman, Hays & Handler for Defendant and

Appellant.

Daniel E. Lungren, Attorney General, George

Williamson, Chief Assistant Attorney General, Gary W.

Schons, Assistant Attorney General, Keith I. Motley and

Patti W. Ranger, Deputy Attorneys General, for

Plaintiff and Respondent.

OPINION

MAJORITY:

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THE COURT.— Defendant Rodney Gene Beeler was

convicted of one count of first degree murder (Pen.

Code, § 187) and one count of burglazy (Pen. Code, §

459) committed with the personal use of a firearm (Pen.

Code, § 12022.5). The jury found to be true the special

circumstance that the murder was committed during a

burglary. (Pen. Code, § 190.2, subd. (a)(17)(vii).) The

jury returned a verdict of death. This appeal is

automatic. (Pen. Code, § 1239, subd. (b).) We affirm

the judgment in its entirety.

Guilt Phase Facts

1. The Prosecution

The prosecution’s theory of the case was that

defendant entered the unoccupied residence of Anthony

Joseph Stevenson (Tony) to commit a burglary, that

Tony returned home and discovered defendant, and

that, as Tony fled the house, defendant shot him. The

key prosecution evidence was as follows:

Shortly before 11 a.m. on December 30, 1985, Tony

was found lying on a lawn near the house where he

resided with his brothers Dino Stevenson (Dino) and

Michael Stevenson (Michael) in the City of Orange.

Tony had been shot in the back. Police and paramedics

were called to the scene. Tony died on the lawn.

The house’s rear sliding-glass door had been pried

open with a screwdriver. The house, including the

brothers’ bedrooms, had been ransacked. Bullets for

Tony’s .22-caliber semiautomatic Marlin rifle were

strewn across his bed. The rifle was shattered on the

hallway floor. Michael’s bedroom door had a large gash

that was attributed to the butt of Tony’s rifle.

Missing from the house were jewelry (including a

gold chain and an Italian gold charm), a 35-millimeter

camera, $1,200 in cash, a dark blue gym bag, and Dino’s

fake Rolex watch. Also taken was Michael’s .22-caliber

single-action Ruger revolver, which he had kept

unloaded under his bed with two bullets nearby.

A - 20

A fingerprint identified as being defendant’s was

found on the top of a metal file cabinet in the southwest

bedroom.

An autopsy showed that Tony died from a single

gunshot wound—a .22-caliber long-rifle bullet that

entered the left side of his back at an upward 45-degree

angle, struck his left lung, and pierced his heart. There

was no exit wound. The muzzle was more than two feet

away from Tony when the shot was fired. The bullet was

not fired from Tony’s .22-caliber rifle but could have

been fired from a .22-caliber single-action Ruger

revolver similar to the one taken from Michael’s

bedroom. (That gun was never recovered.)

Police found a bullet hole in a car parked on the

street in front of the Stevenson house. The car’s owner

testified she had parked the car at that location about

9:30 the morning of the killing. Ballistics tests showed

the bullet was consistent with a .22-caliber long-rifle

projectile, but police could make no further conclusions

as to the nature or source of the bullet because of

extensive damage to it caused by passing through the

car door. In particular, they could not determine

whether it had been fired from either Michael’s revolver

or Tony’s rifle.

The front, main door of the Stevenson house was

open, but the screen door was closed. The screen door

had what appeared to be a small bullet hole, although

no gun powder residue was found on the screen. Police

ran a string from the hole in the screen door to the

bullet hole in the car door and concluded that the bullet

found in the car could have been fired from inside the

house through the screen door into the car.

The homicide investigator conducting the string

experiment found on the "very well taken care of and

landscaped and trimmed" front !awn of the Stevenson

residence an indentation, “a rounded portion where it

appeared something had fallen down, possibly a knee,

right into the lawn underneath the string. And then right

next to the indentation, the rounded portion, there was

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a disturbance where the grass had actually been pulled

up." (Italics added.) The implication was that Tony had

been shot from inside the house as he was running

across the yard trying to escape from a burglar.

Tony and his brothers resided at 1144 Everett

Street. Floyd Raney resided at 1104 Everett Street.

About the time of the killing, Raney was in his garage,

with the door open, when he heard a motor running. He

went into his driveway and saw a pickup truck parked

directly across the street. Defendant approached

Raney’s garage. He wore pale blue jeans and what

appeared to be a solid blue shirt. Defendant asked

Raney, “My cat jumped the wall in your backyard.

Would you look back there, please, and see if my cat is

back there?" Raney stepped into his backyard to look

for the cat, but when he returned to the garage,

defendant "was takin’ off across the street in the truck."

At trial, Raney identified a photograph of defendant’s

truck as being similar to the truck Raney saw that day.

Everett Street runs east to west. The parallel street

immediately to the south is East Rose Avenue. A block

wall, about six feet high, runs between the backyards of

the houses on the south side of Everett and those on

the north side of East Rose. Lavada Hoskins resided at

1115 East Rose. The common wall ran along the rear

edge of her backyard. The morning of the killing, Mrs.

Hoskins was in her backyard, talking to her next-door

neighbor, Mrs. Fern Awalt. Both women saw a man

walking along the top of the block wall. Mrs. Awalt

recalled the time as being between about 10:30 a.m. and

11:30 a.m. Neither woman saw the man’s face, but Mrs.

Hoskins recalled him wearing a blue plaid shirt and

carrying a small, dark sports bag. Mrs. Awalt did not see

a bag, but she recalled the man was wearing work pants

and a shirt that were solid blue. Mrs. Awalt required

eyeglasses to read and was not wearing her glasses when

she saw the man on the wall.

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Neither Hoskins, Awalt, nor Raney saw any other

unknown persons in the area at the approximate time of

the killing. 4

Defendant worked at a laminated products

company (the company) as a senior line operator. Jim

Anderson also worked at the company and reported to

defendant. Anderson recalled that defendant left work

carly the day of the killing, about 10 a.m., and did not

return until the afternoon.

Calvin Brunsting, the company’s manager in charge

of time cards, testified that defendant’s card for

December 30, 1985, indicated that he clocked into work

that day at approximately 5:45 a.m. Sometime after

December 30, 1985, defendant asked Brunsting to write

on defendant’s card the time he left on December 30

and the time he came to work the following day.

Defendant said he had forgotten to punch the clock for

those times. Brunsting complied with defendant’s

request and indicated on defendant’s card for December

30 that he left work at 3:40 p.m.

John Lorenzi worked with defendant. Lorenzi

testified that, one day between Christmas and New

Year’s Eve 1985, defendant said to him at work, "John,

let me ask you a hypothetical question. If I was—if you

were robbing somebody’s house, someone who lived

there caught you in the act, would you shoot him?"

Lorenzi replied, "Why? Did you kill somebody?"

Defendant became upset and responded, "No, asshole."

Defendant later had a similar exchange with

co-worker Jim Anderson, asking him, "Hypothetically

speaking, if you were robbing a house and the guy came

home—the guy that lived there, this is, came home and

you had a gun, would you shoot him?" Anderson

replied, "No, I wouldn’t. I wouldn’t put myself in that

position to begin with. Why, did you do something, did

you kill somebody?" Defendant denied having done so

and walked away.

Sometime after January 1, 1986, defendant

attempted to sell Dino’s watch to Anderson for $500.

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On January 7, 1986, defendant sold to an acquaintance

the Italian gold charm taken from the Stevensons’

house. Defendant’s employer provided lockers for its

workers. Police found in defendant’s locker the camera

and lens taken from the house.

2. The Defense

The primary defense theory was that defendant’s

employment supervisor, Mitchell Jackley, participated in

the burglary and was the actual killer. Jackley was

granted immunity in exchange for testifying for the

prosecution at defendant’s preliminary hearing. At trial,

the defense called him to testify. Jackley denied killing

Tony Stevenson. Defendant attacked Jackley on two

basic fronts: (1) Jackley’s intimate knowledge of the

crime details suggested he may have been the killer; (2)

Jackley had been charged with a similar crime several

years earlier, but after he testified for the prosecution in

that case, charges were dismissed.

A. Jackley’s knowledge

Jackley testified he had breakfast with defendant

the day of the killing and afterward authorized

defendant to leave work. Later in the day, defendant

allegedly told Jackley that defendant had entered the

Stevenson house and killed Tony Stevenson. Sometime

thereafter, Jackley stole the key to defendant’s work

locker, observed a camera, and handled it with silk

gloves so that he would not leave fingerprints on it.

On January 9, 1986, Jackley anonymously called

police and implicated defendant in the Stevenson killing.

Jackley claimed he called anonymously because he was

concerned he might be implicated in the crime for two

reasons. First, Jackley had been in the victim’s house on

at least one social occasion before the killing and was

afraid his fingerprints might be found there. (Jackley’s

wife was acquainted with Dino Stevenson.) Second,

Jackley testified he had been charged with a prior

murder. Jackley also admitted to having received stolen

—— sl

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goods from defendant, i.e., a ring that defendant had

allegedly stolen during a rape and robbery.

Jackley told police that defendant gave the

following account of the crime to Jackley: "The way he

explained it to me is that while he was in the house,

that is, ah, ah, Tony apparently’s his name, came in and

brought his—brought his dog in? Ya. Called his dog. His

dog was with him. Rodney was saying his dog was with

him and he thought he was calling some friends or

somethin’ and then—what the fuck else did he say?—he

said right after that took place, Rodney apparently was

in one of the bedrooms, he said or somethin’, and went

behind the corner or somethin’ like that .... And the guy

[Tony] went into his room. He [defendant] told me he

[Tony] came out with a goddamn ah rifle and told him

he was gonna beat the shit out of him with it, and he’s

gonna to do [sic] bodily damage.... And he [defendant]

said somethin’ to the effect that they got into an

altercation in the hallway, and that the guy came at him

with a rifle, used it like a club-."

Jackley testified to other details of the crime,

allegedly told to him by defendant: defendant had "hit"

two rooms in the Stevenson house and was in a third

when he was interrupted by Tony. Defendant took a

.22-caliber revolver from the house and shot Tony in the

back with a hollow-point bullet as Tony was running

away from the house. Tony fell on the front lawn.

Defendant escaped the area "down a brick wall running

on the back of" the Stevenson house. He had left his

truck idling. He had a conversation with a person

outside the house at the end of the wall. (This last

reference was apparently to the conversation between

Floyd Raney and defendant.)

B. Jackley’s prior crimes

Jackley, his wife, and two of his acquaintances were

arrested in 1974 in connection with a robbery-murder in

South Carolina. Jackley admitted he had previously

committed a burglary with one of these acquaintances

A-25

but denied involvement in the killing. As in the present

case, one of the South Carolina defendants allegedly

confessed the killing to Jackley, an anonymous call was

made to police implicating that defendant, Jackley knew

many details of the crime, and he had received stolen

goods from those defendants. The South Carolina

charges against Jackley, however, were dropped after he

testified for the prosecution against his acquaintances.

Jackley admitted to three other burglaries in which

(1) he knew the victims, (2) the items taken were

similar to those taken from the Stevenson house, and

(3) his fingerprints were not found in any of the houses.

Based on these similarities to the present crime,

defendant argued that one could reasonably conclude

Jackley was the killer and the principal burglar in this

case.

Penalty Phase Facts

1. The Prosecution

The prosecution presented evidence of defendant's

three prior burglary convictions—in 1971, 1974, and

1976. The prosecution also presented evidence that

defendant raped a female newspaper carrier early one

morning in 1985. Defendant forced her to remove her

clothing, to fellate him, and to engage in vaginal

intercourse. He boasted in vulgar language to a

co-worker later that day of having had sexual

intercourse with the woman after robbing her.

2. The Defense

Members of defendant’s family, former neighbors, a

psychologist, and a psychiatrist, among others, testified

he was subjected for several years to extreme

psychological, physical, verbal, and sexual abuse by his

stepmother. She often called defendant "a little bastard."

She repeatedly beat him with sticks, belt buckles, and

brushes and threw him down a flight of stairs with his

hands tied. (His father also beat him.) She sometimes

A - 26

chained him to a basement post for several days, forced

him to urinate and defecate in his underpants, and then

beat him for that as well. She smeared his feces on his

face and held his hands over flames. She once pulled his

thumbs from their sockets. She forced him to eat fruit

preserves until he vomited.

Dr. Lenore Walker, a licensed psychologist, testified

to defendant’s recounting of abuse by his stepmother.

According to Dr. Walker, the stepmother told defendant

she wanted him to look like a girl, she dressed him in

her daughter’s panties and dresses and made him wash

dishes while dressed like a girl. She tied a string around

his penis, "... pulling it in back of him so that you

couldn’t see he had a penis in front of him, and tying

the penis to his waist and telling him he looked better

that way.... [1] Then she moved into giving him enemas,

using Vaseline and taking a tampon, at first just a clean

tampon, and then she would use her own soiled, bloody

tampons and insert them in his anus.... [1] In addition,

she would make him insert tampons in her vagina so

she was having him touch her as well, and she would

make him fondle her vagina area and have him lick her

vagina area so she could reach a climax.... [1] She would

also masturbate him at that age—as he got older, some

of it is progressing as he got older—between the

two-year period of time of 10 and 12, but not allow him

to reach an orgasm. When he was a little older and he

would reach an orgasm, she would take the semen and

smear it all over his face and he would be punished for

that. In addition, in order to prevent him from reaching

a climax, she would squeeze his testicles, and he

remembers that being done with great pain to him.

Later on, she would have intercourse with him and

insert his penis in her vagina but not allow him to reach

an orgasm.”

Defendant was eventually taken from his family and

lived in foster homes, mental hospitals, a youth authority

facility in Nevada, and finally prison.

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Dr. Walker further testified that she believed

defendant had in fact been sexually molested as he

described. She believed that because of his past he

suffered a variety of mental maladies, including

schizophrenia and disassociation, which in general might

best be described as comparable to, but more severe

than, post-traumatic stress syndrome. Dr. Walker stated

that defendant is very confused, with guilt feelings and a

need to be punished, and that his tendency to steal was

not motivated by greed, but by a compulsion he could

not control. Defendant told her he would often wake up

in the middle of a burglary and not know what he was

doing there.

John Cahill, a counselor at a Nevada youth camp

where defendant had been incarcerated, testified, "Well,

I'd say he was picked on by the other boys. He was—he

was kind of a pitiful character and tended to be easily

manipulated and generally picked on."

Dr. Ernest Noble, a psychiatrist employed by the

California Department of Corrections, testified that he

had examined defendant in 1971 during one of his

incarcerations: "I felt that he had been brought up in a

very highly chaotic home environment. And I felt his

stepmother was extremely vicious to him.... I felt in

some ways that she had set up a template in his head

for prison or incarceration very early ...." Dr. Noble also

observed that defendant’s thumbs appeared to be

distorted, thus tending to confirm his description of

having had them pulled from their sockets.

Dr. Stephen Wells, a clinical psychologist who

examined defendant and reviewed his records, also

testified to a lengthy history of abuse: "Given the nature,

the prolonged administration and the severity of the

mental, the physical, and the sexual abuse, I would say

that taken all together, it was almost an impossible

group of experiences to recover from. The physical

abuse alone, which his stepmother admitted to me when

I saw her in Utah itself, was profound and extreme...."

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Dr. Wells further testified that defendant suffered

severe emotional problems caused by the abuse.

Defendant had two minor children. Defendant’s

wife testified that he was a loving father. Dr. John

Selden, a clinical psychologist, testified he had been

treating defendant’s five-year-old son for numerous

behavioral problems. His son seemed very attached to

him. Defendant’s family was under great stress from

medical and financial problems. Dr. Selden believed

defendant was very concerned for his children’s welfare.

Discussion

Defendant’s primary contention on appeal is that he

suffers from severe organic brain damage. Based on that

assertion, he raises several arguments against the guilt

verdict, the special circumstance finding, and the death

sentence. Because the arguments based on alleged brain

damage relate to all phases of the trial, we will first

address defendant’s other challenges directed only to

the guilt phase. Second, we shall turn to the special

circumstance and penalty phase issues that are not

based on the brain damage allegation. Third, we shall

resolve defendant’s multiple contentions based on the

alleged brain damage.

Guilt Phase Issues Other Than Alleged Brain

Damage

1. Juror McCoskey

On May 26, 1988, shortly before the trial’s guilt

phase began, Juror McCoskey telephoned the court

clerk to say "she was not sure that she could fulfill her

duties as a juror ... [t]he nature of the case itself was

very upsetting to her...." The clerk noted that McCoskey

"had broken down and was crying on the phone." On

May 31, the court informed counsel of McCoskey’s

emotional outburst, recommended that she be excused,

and asked counsel to stipulate accordingly. Defense

counsel agreed and asked the court to seat an alternate

A - 29

juror. The prosecutor declined the court’s request. The

court then questioned McCoskey about her ability to

serve as a juror. She had an apparent change of heart,

apologized for her emotional phone call, and stated that

she believed herself to be able to serve. The court

refused to seat an alternate juror. The proceeding was

i as follows:

"(Court]: Ms. McCoskey, my clerk received the

phone call from you which she tells me you were very

distraught about possible service on this case?

"[Juror]: I think I was kind of in a state of shock,

but I’m all right—.

"[Court}: You no longer fee] that you have any kind

of disabling factors with regards to sitting on the case?

What was it that troubled you?

"[Juror]: I-I think I was in a state of shock that I

was on it. You said our possibilities were one in eight,

and the seriousness of it, and I think-—I think I could be

fair.

"[Court}]: You do realize—you’ve gone through the

whole thing with us, and the private communication with

you without all the other jurors present—that ultimately

there may be a problem through serving and sitting in

judgment of this defendant. Is that what’s bothering you,

and is that what caused you concern, the gravity of

responsibility as a juror?

"(Juror]: Yes. And I had to—I really had to stop

and think about that, but I’m okay—

"[Court]: Is there anything about the

communication that we’ve talked to you privately, now,

that you need to add to or any further concern?

"{Juror]}: No.

"[Court]: So in a fair sense, if we sit through this

case and you believe the person is not guilty, will you

have any problem with voting not guilty?

"([Juror]}: No.

"[Court]: And I’m talking about the trial we’re

about to start now?

"{Juror]: Right.

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"{Court]: And if it turns out that you’re convinced

beyond a reasonable doubt that he’s guilty from the

evidence that you receive, would you have any problems

in voting guilty? "[Juror]: No, no problems.

"{Court]: Now once we get into the penalty phase

of the trial, if we ever do, you know we're going to hear

good things and bad things about the man’s life. When

we've finished with that you go through that weighing

process in the end, if we ever get to that phase of the

trial, will you have the ability to come back with a just

verdict regardless of what the consequences may be?

"[Juror]}: Yes.

"[Court]}: So, in other words, if your conscience tells

you that the appropriate verdict is life without parole,

you can vote that way?

"[Juror]: Yes.

"{Court}: And if your conscience tells you that the

death penalty is the appropriate verdict, you think you

can vote that way, too?

"[Juror): Yes.

[Court]: Is there anything else, now, you need to

discuss with the court?

"[Juror]: I’m very sorry, your honor.

{Court}: Okay. All right. I don’t mean to embarrass

you, and because we've talked to you privately that

shouldn’t affect any of your decisions in any regard

throughout this case. Okay?

"[Juror]}: Okay.

"{Court]}: ’'m sorry that you became so emotionally

charged with the responsibilities.

"[Juror]}: I just didn’t know if I would be, you know,

able to—able to—the different things I heard, you

know—not being fair, I know I could be fair.

"[Court}: Is there something at home that’s going to

be a problem?

"[Juror]: No.

"{Court}: ... All right. Let me give you one last

chance, now. If you want off this case, I have a

suspicion that the attorneys will stipulate that you be

Lie Dette eS

A-3l

excused. If you’re satisfied that you can do the job,

that’s another thing. "[Juror]: I feel I can do it."

(1) Defendant contends Juror McCoskey was

emotionally unable to fulfill her duties and that the trial

court’s refusal to dismiss McCoskey violated defendant's

federal constitutional rights to due process (U.S. Const.,

5th & 14th Amends.), an impartial jury (U.S. Const., 6th

Amend.), and a reliable penalty determination (U.S.

Const., 8th Amend.). We reject the contentions.

"A juror’s inability to perform his or her functions

.. Must appear in the record as a ‘demonstrable reality’

and bias may not be presumed." (People v. Thomas

(1990) 218 Cal.App.3d 1477, 1484 [267 Cal.Rptr. 865],

citing People v. Collins (1976) 17 Cal.3d 687, 696 [131

Cal.Rptr. 782, 552 P.2d 742]; People v. Compton (1971)

6 Cal.3d 55, 60 [98 Cal.Rptr. 217, 490 P.2d 537].) The

record reflects no demonstrable reality that McCoskey

was unable to serve as a juror. Moreover, under Penal

Code section 1089, which allows a trial court to remove

a juror on a finding of good cause, "The determination

of ’good cause’ in this context is one calling for the

exercise of the court’s discretion; and if there is any

substantial evidence supporting that decision, it will be

upheld on appeal." (People v. Thomas, supra, 218

Cal.App.3d at p. 1484.) Substantial evidence supports

the trial court’s determination that McCoskey could

fulfill her duty. In response to careful questioning by the

court, she made clear her belief that she could be

impartial and able to serve despite her prior misgivings.

In that circumstance, the trial court was within its

discretion not to remove her from the jury. (People v.

Goldberg (1984) 161 Cal.App.3d 170, 192 [207 Cal.Rptr.

431] [no good cause to discharge juror who ultimately

recanted her initially claimed inability to judge

impartially]; People v. Franklin (1976) 56 Cal.App.3d 18,

25-26 [128 Cal.Rptr. 94] [same].)

2. Alleged Failure to Investigate and Preserve

Evidence

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(2a),(3a) Defendant contends the prosecution

violated his right of due process by failing to preserve

(or, as he puts it, by destroying) two critical pieces of

exculpatory evidence. First, he asserts the victim’s

autopsy was inadequate because discolorations on the

victim’s hands were not excised and examined. Second,

defendant contends the prosecution destroyed material

exculpatory evidence by test-firing the rifle found at the

crime scene.

As defendant acknowledges, trial counsel failed to

object to the alleged shortcomings in the autopsy or the

rifle testing. The objections are thus waived and cannot

be raised on direct appeal. (Evid. Code, § 353; People v.

Gallego (1990) 52 Cal.3d 115, 179-180 [276 Cal.Rptr.

679, 802 P.2d 169]; People v. Coleman (1988) 46 Cal.3d

749, 777-778 [251 Cal.Rptr. 83, 759 P.2d 1260].)

(4) We also reject these contentions on the merits.

The federal constitutional guarantee of due process

imposes a duty on the state to preserve only such "...

evidence that might be expected to play a significant

role in the suspect’s defense. To meet this standard of

constitutional materiality, see United States v. Agurs

[(1976)], 427 U.S. [97], at 109-110 [49 L.Ed.2d 342,

353-354, 96 S.Ct. 2392], evidence must both possess an

exculpatory value that was apparent before the evidence

was destroyed, and be of such a nature that the

defendant would be unable to obtain comparable

evidence by other reasonably available means."

(California v. Trombetia (1984) 467 U.S. 479, 488-489

[81 L.Ed.2d 413, 422, 104 S.Ct. 2528], fn. omitted

(Trombetta); People v. Webb (1993) 6 Cal.4th 494,

519-520 (24 Cal.Rptr.2d 779, 862 P.2d 779]; People v.

Johnson (1989) 47 Cal.3d 1194, 1233 [255 Cal.Rptr. 569,

767 P.2d 1047].) The state’s responsibility is further

limited when, as in the present case, the defendant’s

challenge is to "... the failure of the State to preserve

evidentiary material of which no more can be said than

that it could have been subjected to tests, the results of

which might have exonerated the defendant." (Arizona y.

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Youngblood (1988) 488 U.S. 51, 57 [102 L-Ed.2d 281,

289, 109 S.Ct. 333].) In this circumstance, "unless a

criminal defendant can show bad faith on the part of

the police, failure to preserve potentially useful evidence

does not constitute a denial of due process of law." (/d.,

at p. 58 [102 L.Ed.2d at p. 289].) "The presence or

absence of bad faith by the police for purposes of the

Due Process Clause must necessarily turn on the

police’s knowledge of the exculpatory value of the

evidence at the time it was lost or destroyed." (/d., at p.

57, fn. * [102 L.Ed.2d at p. 288].) Applying these

principles to the two items in question, we find no

constitutionally improper conduct by the police because

the items had no then-apparent exculpatory value.

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A. Discolorations on the victim’s hands

(2b) Autopsy photographs showed discolorations on

the victim’s hands. The prosecution’s pathologist

testified on cross-examination that he could not

determine whether these discolorations were bruises or

whether they occurred close to the time of death

because the discolored areas had not been excised from

the victim’s body and examined microscopically.

Defendant contends this failure to examine the

discolorations undermined his ability to substantiate his

claim that the victim was shot in the heat of a struggle

and that the killing was not intentional. He asserts the

crime scene evidence, for example, the shattered rifle in

the hallway, indicated a struggle and that bruises on the

victim’s hands would have been the "physical evidence

necessary to link him [the victim] to that struggle."

Even with the benefit of hindsight, we are not

persuaded the evidence would have had any meaningful

exculpatory value. If an examination had revealed the

victim’s hands were bruised during the burglary, such

evidence would not point necessarily to the conclusion

he had struggled with defendant. Moreover, even that

conclusion would have aided defendant only minimally,

if at all. That the victim was struggling to protect

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himself or his home does not by itself negate the finding

that he was intentionally killed. One could just as

reasonably conclude to the contrary—that he was killed

because he was Struggling. The lack of exculpatory value

is also demonstrated by defense counsel’s argument to

the jury. Emphasizing various aspects of the crime scene

evidence in detail, counsel argued that the killing was

not intentional. Counsel did not refer, however, to the

discolorations on the victim’s hands and did not suggest

the victim had been bruised during the alleged struggle.

Even if viewed in the light most favorable to defendant,

the best that can be said is that the evidence of bruising

might have had some minimal exculpatory value. That is

not enough. The constitutional duty to preserve

evidence is “limited to evidence that might be expected

to play a significant role in the Suspect’s defense."

(Trombetta, supra, 467 U.S. 479, 488 [81 L.Ed.2d 413,

422], italics added, fn. omitted.) We find to be

farfetched the notion that a jury would find anything

significantly exculpatory in the fact, if it was a fact, that

a resident was shot while Struggling to defend himself

and his home from a burglar. We therefore cannot

conclude that the police were aware during their

investigation of any exculpatory value in possible bruises

on the victim’s hands.

B. Test-firing of the rifle

(3b) Defendant contends a test-firing of the rifle

found in the victim’s house destroyed material

exculpatory evidence by precluding a determination

whether the rifle had been fired by the victim on the

day of the killing. We reject this contention for several

reasons, including defendant’s failure to establish as a

factual predicate that the testing he seeks was not done.

Stanley Slonina, employed as a firearms specialist in the

Orange County Sheriff’s crime laboratory, testified he

recovered and examined the rifle at the crime scene on

the day of the killing. Defense counsel did not ask

Slonina on cross-examination if he checked the

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temperature of the rifle, smelled gunpowder, or

conducted any other field examination to determine if

the rifle had been recently fired. Even if we assume,

however, that no such determination was made,

defendant also fails to show the test-firing precluded the

further testing he claims should or could have been

done. Perhaps most obvious by omission is defendant’s

failure to establish the existence of any subsequent

laboratory test that would have shown whether the rifle

was fired on the day of the killing. Defendant cannot

fairly charge the prosecution with precluding testing that

may not have been possible. Moreover, even if we

assume to be true defendant’s factual premise that the

test-firing precluded further testing and that such testing

would have shown the rifle was fired the day of the

killing, defendant has failed to show the testing would

have had any exculpatory value that would have

reasonably been apparent to the police. (See, e.g.,

People v. Webb, supra, 6 Cal.4th 494, 518-520 [rejecting

the defendant’s contention that police should have

preserved a revolver].) Evidence the rifle was fired the

day of the killing would not have established it was fired

by the victim—the key to defendant’s claim. Moreover,

we find most attenuated the notion that defendant could

establish a lack of intent by showing a Struggle based on

the fact that the victim might have fired the rifle. As

with the claim regarding the discolorations on the

victim’s hands, the victim’s struggle to protect himself or

his home does not itself negate the finding he was

intentionally killed. Evidence that the rifle was fired the

day of the killing would not have played "a significant

role in the suspect’s defense." (Trombetta, supra, 467

U.S. 479, 488 [81 L.Ed.2u 413, 422], italics added, fn.

omitted.)

3. Admission of Autopsy Report

(Sa) Dr. George Bolduc, the pathologist who

conducted the autopsy on the victim, did not testify. The

prosecution instead called a pathologist who did not

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participate in the autopsy to testify regarding the

autopsy report, which, despite defendant’s objection,

was admitted into evidence under Evidence Code

section 1271, the business records exception to the

hearsay rule. Defendant contends admission of the

report was error for several reasons: (1) the prosecution

failed to establish the autopsy report’s trustworthiness;

(2) Dr. Bolduc was not unavailable and should have

been required to testify; (3) admission of the report into

evidence without an Opportunity for defendant to

cross-examine Dr. Bolduc violated defendant’s

constitutional right of confrontation; and (4) the report

contained inadmissible medical opinion. We conclude

the report was properly admitted into evidence.

A. Trustworthiness

Evidence Code section 1271 states that a document

is admissible as a business record only if "[t]he sources

of information and method and time of preparation

were such as to indicate its trustworthiness.” (Evid.

Code, § 1271, subd. (d).) (6) The proponent of the

evidence has the burden of establishing trustworthiness.

(People v. Diaz (1992) 3 Cal.4th 495, 534-535 [11

Cal.Rptr.2d 353, 834 P.2d 1171); 3 Witkin, Cal.

Evidence (3d ed. 1986) Introduction of Evidence at

Trial, § 1726, p. 1681.) The trial court, however, has "...

wide discretion in determining whether sufficient

foundation is laid to qualify evidence as a business

record. On appeal, exercise of that discretion can be

overturned only upon a clear showing of abuse." (People

v. Lugashi (1988) 205 Cal.App.3d 632, 638-639 [252

Cal.Rptr. 434].)

(Sb) We find no abuse of discretion in this case.

Dr. Fukumoto, a pathologist who had worked in the

same office as Dr. Bolduc, testified, albeit over

defendant’s confrontation-clause objection, regarding the

autopsy procedures of the office and further testified

that standard operating procedures were followed in the |

Stevenson autopsy and in the documentation of the

8 Bite PEDROS

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autopsy. Moreover, the trial court was aware that Dr.

Bolduc had apparently left the coroner’s office under

unfavorable conditions. Before the report was admitted

into evidence, the testifying pathologist acknowledged

on cross-examination that Dr. Bolduc had caused "quite

a bit of consternation" in a prior murder case by basing

his conclusion regarding the cause of death on a police

report rather than on medical evidence. By admitting

the report into evidence, the court impliedly found the

report to be trustworthy nevertheless. The terms under

which Dr. Bolduc departed the coroner’s office and his

asserted misconduct in a prior, unrelated case were facts

for the trial court to consider—and, indeed, might even

raise questions—but they did not mandate a finding that

the autopsy report in this case was untrustworthy.

B. Dr. Bolduc’s unavailability

Defendant contends admission of the report was

error because it "was premised on the puzzling

conclusion that Dr. Bolduc was unavailable." Defendant

does not clearly explain the point of this assertion, but

he seems to contend that because the report was not

sufficiently trustworthy to be admitted under Evidence

Code section 1271 his constitutional right of

confrontation entitled him to cross-examine Dr. Bolduc

regarding the report. (Evidence Code section 1271 itself

States no requirement that the person who prepared the

business record testify regarding its contents.) We

rejected a similar contention in People v. Clark (1992) 3

Cal.4th 41, 158 [10 Cal.Rptr.2d 554, 833 P.2d 561], in

which the physician who conducted an autopsy and

prepared the report died before being called to testify

about his report. A different physician was permitted, as

in the present case, to testify about the report over the

defendant’s objection. We explained that the report was

properly admitted into evidence as an official record

under Evidence Code section 1280. Thus, "The contents

of Dr. Carpenter’s [the examining physician’s] report

were admitted under a ‘firmly rooted’ exception to the

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hearsay rule that carries sufficient indicia of reliability to

satisfy the requirements of the confrontation clause." (3

Cal.4th at p. 159; see also People v. Demes (1963) 220

Cal.App.2d 423, 442 [33 Cal.Rptr. 896] [no error in

allowing physician other than the examining coroner io

testify regarding autopsy report]; People v. Wardlow

(1981) 118 Cal.App.3d 375, 388 [173 Cal.Rptr. 500]

[same].)

The same principle obtains in the present case even

though the report was admitted under Evidence Code

section 1271, the business records exception to the

hearsay rule, rather than under Evidence Code section

1280, the official records exception. "[T]he cases require

the same showing of trustworthiness in regard to an

official record as is required under the business records

exception.... Section 1280 constitutes the law declared in

these cases by explicitly requiring the same showing of

trustworthiness that is required in Section 1271." (Cal.

Law Revision Com. com., Deering’s Ann. Evid. Code

(1965 ed.) § 1280, p. 438 [citations omitted].) In light of

our conclusion that the trial court was within its

discretion in finding Dr. Bolduc’s report sufficiently

reliable to be admitted under Evidence Code section

1271, defendant’s right of confrontation was not

violated.

C. Medical opinion

Defendant briefly asserts the autopsy report was

inadmissible because it contained Dr. Bolduc’s medical

opinions, for example, the cause of the victim’s death.

We disagree for several reasons. First, defendant did

not raise this objection at trial. Rather, he objected to

admission of the autopsy report on the ground it was

not subject to the business record exception under

Evidence Code section 1271. The present objection, i.e.,

that the report contained Dr. Bolduc’s opinions, is

therefore waived.

Second, defendant even now does not specify the

opinions to which he objects except Dr. Bolduc’s

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opinion regarding the cause of death. We decline to

address an objection to unspecified opinions.

Third, Dr. Bolduc’s conclusion regarding the cause

of death was not inadmissible opinion. (7) To be sure,

some medical opinion has been deemed inadmissible

under the business records exception of Evidence Code

section 1271. (People v. Reyes (1974) 12 Cal.3d 486,

502-503 [116 Cal.Rptr. 217, 526 P.2d 225] [psychiatric

opinion not admissible}; People v. Terrell (1955) 138

Cal.App.2d 35, 57 [291 P.2d 155] [physician’s opinion

that patient had criminal abortion not admissible].) The

reasoning in those cases was that, to be admissible

under the business records exception, the evidence “...

must be a record of an act, condition, or event; a

conclusion is neither an act, condition or event; it may

or may not be based upon conditions, acts or events

observed by the person drawing the conclusion..." (138

Cal.App.2d at p. 57.) As the Terrell court explained,

however, “It is true that some diagnoses are a statement

of a fact or a condition, for example, a diagnosis that a

man has suffered a compound fracture of the femur is a

record of what the person making the diagnosis has

seen but this is not true where the diagnosis is but the

reasoning of the person making it arrived at from the

consideration of many different factors." (138

Cal.App.2d at p. 58; People v. Reyes, supra, 12 Cal.3d

486, 503 [holding inadmissible a subjective psychiatric

opinion and noting the distinction made in Terrell, supra,

138 Cal.App.2d 35, 57].) (Se) The same reasoning

obtains in the present case. Dr. Bolduc’s conclusion

regarding the cause of death—a bullet wound to the

heart—was based on his direct observation and is no

different in kind from a diagnosis of a broken femur,

the example noted in Terrell of an observed fact.

Indeed, all of Dr. Bolduc’s relevant conclusions are of

this type. He concluded in his report that: (1) "There is

an entrance gunshot wound of the posterior left chest

[ie., the back]...." (2) "This is a distant gunshot wound

entrance.... The wound is free of gunpowder, burns or

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stippling." (3) The shot pierced the heart. (4) "The

direction of the [bullet] track is forwards, up 45 degrees

and left to right 10 degrees." None of these conclusions,

including that regarding the cause of death, was

inadmissible under Evidence Code section 1271.

Fourth, even assuming, solely for discussion, that

Dr. Bolduc’s conclusion regarding the cause of

death—the only opinion to which defendant specifically

objects—was inadmissible opinion, it was harmless. We

note People v. Williams (1959) 174 Cal.App.2d 364 [345

P.2d 47], a murder case in which, as in the present cezse,

a physician testified regarding the contents of an

autopsy conducted by another physician. The court

observed, "[T]he sole and only purpose served by the

records in the trial was to establish the cause of death.

Appellant certainly was not prejudiced by this testimony

because neither at trial nor here, does he seriously

challenge the fact that the life of the deceased was

terminated by a gunshot wound." (/d., at p. 391.)

Likewise here, Dr. Bolduc’s conclusion that the victim

died from a gunshot wound to the heart is not disputed.

Nor does defendant dispute Dr. Bolduc’s conclusion that

the victim was shot in the back. Similarly, criminalist

Richard Brown testfied independently of the autopsy

report that the distance from the gun muzzle to the

victim was at least two feet. Admission of these

conclusions was not prejudicial to defendant.

Special Circumstance Issues Other Than Alleged

Brain Damage

Defendant contends the special circumstance

finding of murder in the commission of a burglary (Per.

Code, § 190.2, subd. (a)(17)(vii)) must be set aside for

three reasons: (1) improper instructions, (2) insufficient

evidence, and (3) his alleged brain damage. We at this

point address the instructions and evidence but will later

discuss the brain damage contention in connection with

the other issues related to that allegation. Before

proceeding, we note this case is subject to the holding cf

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Carlos v. Superior Court (1983) 35 Cal.3d 131, 153-154

[197 Cal.Rptr. 79, 672 P.2d 862] (Carlos), that a

felony-murder special circumstance required proof of

the defendant’s intent to kill. We later overruled Carlos

by holding that intent to kill must be charged and

proved only where the defendant was an aider and

abettor to the homicide and not the actual killer.

(People v. Anderson (1987) 43 Cal.3d 1104, 1138-1147

[240 Cal.Rptr. 585, 742 P.2d 1306].) We subsequently

held, however, that for crimes committed during the

period between Carlos and Anderson, the Carlos

requirement of an intent to kill would govern. (People v.

Fierro (1991) 1 Cal.4th 173, 227 [3 Cal.Rptr.2d 426, 821

P.2d 1302].) The killing in this case was during that

period.

1. Instructions on Special Circumstance

(8a) A finding of implied malice is not sufficient to

establish the intent-to-kill requirement of Carlos, supra,

35 Cal.3d 131. (People v. Ramos (1984) 37 Cal.3d 136,

148, fn. 3 [207 Cal.Rptr. 800, 689 P.2d 430].) Defendant

contends the trial court incorrectly “left the impression

that implied malice was sufficient to establish the

requisite intent to kill." We are not persuaded.

The trial court instructed the jury with respect to

the special circumstance as follows: "To find that the

special circumstance, referred to in these instructions as

murder in the commission of a burglary is true, it must

be proved ... that the defendant intended to kill a human

being or intended to aid another in the killing of a

human being.... [1] The only evidence of whether

defendant specifically intended to kil! Mr. Stevenson is

circumstantial evidence. You may only find that the

special circumstance alleged is true if the proved

circumstances are not only consistent with the theory

that Mr. Beeler had the specific intent to kill Mr.

Stevenson, but cannot be reconciled with any other

rational conclusion. [%] Also, if the evidence as to

whether defendant had the required specific intent to kill

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Mr. Stevenson is susceptible of two reasonable

interpretations, one of which ... points to the existence

of specific intent and the other of which points to the

absence of specific intent, it is your duty to adopt that

interpretation which points to the absence of specific

intent." (Italics added.)

Defendant contends this instruction was insufficient

in two respects. Before turning to the merits of those

contentions, we note his acknowledgment that "...

defense counsel did not object to the intent to kill

instruction in the lower court." Defendant contends this

failure to object does not constitute a waiver because

under Penal Code section 1259, "The appellate court

may also review any instruction given, refused or

modified, even though no objection was made thereto in

the lower court, if the substantial rights of the defendant

were affected thereby." As we shall explain below, we

find no merit to defendant’s objections to the

instructions. We therefore need not decide the

procedural question of whether those objections were

properly preserved under Penal Code section 1259. We

note, however, that what defendant appears to be

asserting is that the trial court should have explained

the special circumstance instruction. (9) In the absence

of a request, however, a trial court is under no

obligation to amplify or explain an instruction. (People v.

Bonin (1989) 47 Cal.3d 808, 856 [254 Cal.Rptr. 298, 765

P.2d 460]; People v. Anderson (1966) 64 Cal.2d 633, 639

[51 Cal.Rptr. 238, 414 P.2d 366].) We shall nevertheless

address the merits of defendant’s contentions.

(8b) He first contends, barely in passing, "The court

failed to explain that ‘intent to kill’ means the intent to

take the life of a human being.” This contention is

belied by the record. As stated above, the special

circumstance instruction included the explicit

requirement that "the defendant intended to kill a

human being..."

Defendant more vigorously contends the trial court

failed to instruct the jury that implied malice was not

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sufficient to establish a specific intent to kill and that

the error failed to channel the jury’s discretion, thus

violating the Eighth Amendment to the federal

Constitution. He points to the trial court’s earlier

instruction regarding the murder charge that, "When it

is shown that a killing resulted from the intentional

doing of an act with implied malice, no other mental

state need be shown to establish the mental state of

malice aforethought." Defendant contends the absence

of an instruction that intent to kill requires more than a

finding of implied malice may have caused the jury

reasonably to conclude "that implied malice was

sufficient to establish the specific intent to kill." We

reject the contention. The special circumstance

instruction did not refer to a killing with malice and thus

would not have caused the jury to refer to the definition

of malice as now suggested by defendant. Moreover, the

special circumstance instruction repeatedly and explicitly

referred to a "specific intent to kill." The earlier

instructions regarding malice stated, " "Malice’ is express

when there is manifested an intention unlawfully to kill

a human being. [9] ’Malice’ is implied when the killing

results from an unjustified intentional act, the natural

consequences of which are dangerous to life, where it is

shown that the defendant consciously disregarded the

high degree of probability that the act would result in

death." The language of the implied malice definition is

simply not consistent with the notion of a specific intent

to kill. Thus, even if the jury did refer to the definition

of malice, nothing in that definition would have

suggested that implied malice was congruent with a

specific intent to kill. Moreover, the prosecutor’s

closing argument foreclosed any realistic possibility of

the jury not believing they had to find intent to kill for

the special circumstance. "The defendant intended to

kill the human being. Now, that is the difference

between felony-murder and special circumstance."

Describing a chart shown to the jury, he further

explained, "As you can see, first of all, on the chart here

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with the counts and the crimes, I have ‘felony-murder’

in red down where ‘special circumstance’ is, I also have

it in red up where ‘murder’ is, but under ‘special

circumstance’ I have ‘intent to kill’ with that, and that is

supposed to show the distinction between the two. [9]

You can find the defendant guilty of felony-murder in

the first degree and conceivably, not even looking at

these facts here, but conceivably find the defendant not,

or the special circumstance not true, even though it’s

felony-murder related, because of the intent to kill; that

[ie., intent] is needed."

We reject defendant’s contention the jury was

perhaps misled by the instructions into finding the

felony-murder special circumstance to be true based

only on a showing of implied malice.

2. Evidence of Specific Intent to Kill

(10) Defendant contends the special circumstance is

not supported by substantial evidence and thus violates

the California and federal constitutional due process

guaranties. He agrees, however, with respondent that

the general standard of review of this factual question is

whether ™... after viewing all the evidence in the light

most favorable to the prosecution’ any rational trier of

fact could have found the elements of the crime beyond

a reasonable doubt." (People v. Edwards (1991) 54

Cal.3d 787, 813 [1 Cal.Rptr.2d 696, 819 P.2d 436].)

Respondent asserts three reasons why the finding of a

specific intent to kill is supported.

(1) Respondent contends defendant fired two shots

from a single-action revolver while standing inside the

house.— Defendant asserts the evidence does not show

that both shots were fired from the revolver or that they

were fired from inside the house. One bullet was

retrieved from the victim’s body; the other bullet was

found lodged in a parked car across the street from his

house. The bullet recovered from Tony’s body was not

fired from Tony’s .22-caliber rifle but could have been

fired from a .22-caliber single-action Ruger revolver

A-45

similar to the one taken from Michael’s bedroom. Thus,

respondent is correct that the evidence supports an

inference at least one shot was fired from the revolver.

The bullet in the car, however, was extensively damaged

by impact, and the only conclusion that could be drawn

from laboratory testing was that the bullet was

consistent with a .22-caliber long-rifle projectile. That

bullet could have been fired from either Michael’s

revolver or Tony’s rifle. Defendant is therefore correct

that respondent overstates the evidence by asserting it

establishes that two shots were fired from the revolver.

Respondent is likewise too expansive in asserting that

the evidence establishes the two shots were fired from

inside the house. There was only a single bullet hole in

the front screen door.

Although the evidence does not mandate the

inferences on which respondent relies, it does permit

those inferences. The fact there was only one bullet hole

in the screen door does not necesarily refute the

inference that both shots were fired from inside the

house. One of the shots could have been fired while the

door was open or while the shooter was perhaps

standing in the doorway. Trajectory testing showed that

“It was consistent for someone to have fired a weapon

inside the residence, have a clear line of fire and hit the

car out in front of the residence." This clearly permits

the inference that at least one shot was fired from

inside the residence. Moreover, in connection with the

same test, police found in the front lawn an indentation

directly underneath the string used to measure the

trajectory, "a rounded portion where it appeared

something had fallen down, possibly a knee, right into

the lawn underneath the string. And then right next to

the indentation, the rounded portion, there was a

disturbance where the grass had actually been pulled

up." The lawn indentation permitted the inference the

victim was shot and fell in the line of trajectory from the

house to the car. This, in turn, would support the

inference that both shots were fired from the same

Aa

location, i.e., from inside the house. Moreover, the

bullet retrieved from the victim’s body could have been

fired from the revoiver, and the bullet from the car was

the same type of projectile as the bullet retrieved from

the victim’s body. The foregoing evidence taken as a

whole clearly permits the inferences that two shots were

fired from the revolver and that they were both fired

from inside the house. Most important, the dispute over

how many shots were fired from which weapon and

from what location is largely beside the point. At a bare

minimum, the record supports inferences that defendant

fired two shots, one of which struck the victim in the

back.

(2) Respondent contends the victim was shot in the

back while fleeing from defendant, who was in the act of

burglarizing the victim’s home.— Defendant contends

there is no credible evidence of where the victim was

when he was shot. Defendant points to testimony by the

prosecution’s pathologist that he could not state "the

exact position the gun was in when the gun was fired or

the exact position the deceased was in when the gun

was fired." Defendant seems to suggest that the victirn

may have been shot inside the house rather than outside

on the lawn and that, if he was shot inside, that fact

would support the theory of a struggle with defendant,

which might negate specific intent. The evidence at least

equally, however, also supports the inference sought by

the prosecution. Defendant’s contention is also beside

the point. The evidence showed the victim was shot in

the back from a distance of at least two feet. This

plainly supports an inference that he was shot while

fleeing.

(3) Respondent contends the fatal shot pierced the

victim's heart.~To be sure, the precise location of the

internal wound does not by itself necessarily establish

that defendant aimed for the victim’s heart or thai he

intended to kill, but this evidence does at least permit

that inference. That is sufficient. Moreover, the far

more persuasive fact is that the victim was shot in the

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back in the area of the heart. Evidence the bullet

pierced the heart added little to the prosecution’s case.

In short, differing inferences could have been

drawn from the evidence, and the jury might have found

the special circumstance not to be true, perhaps based

on defendant’s suggestion there was a struggle or on

some other theory. But that is not the point. If the

evidence reasonably justifies the finding of the jury, the

reviewing court’s opinion that the evidence could also

be reconciled with some contrary view does not warrant

a reversal of the finding. (Jackson v. Virginia (1979) 443

U.S. 307, 316-320 [61 L.Ed.2d 560, 571-574, 99 S.Ct.

2781]}.) We hold the special circumstance finding is

amply supported by substantial evidence.

Penalty Phase Issues Other Than Alleged Brain

Damage

1. Death of Juror Coley’s Father

Defendant contends the penalty verdict was

coerced because the trial court improperly required a

juror to continue deliberating despite his father’s death.

On Tuesday, July 12, 1988, after two days of penalty

deliberations, one of the jurors, Michael Coley,

informed the court by telephone that the juror’s father

had died. The following proceeding took place later that

morning in the judge’s chambers outside the presence of

counsel for both sides:

“The Court: Juror Coley called in this morning,

indicated there was a death in his family. Other than

that, no other formal message other than he expected to

fly out of state at two o’clock in the afternoon today. |

asked the clerk to get hold of him and find out the

particulars of it. Court called both counsel. Neither have

honored their 20-minute call. They've gone to

Westminster Court. The court has been able to contact

one of the parties, I believe, and they were beyond an

hour limit. The court is going to cause the jury to begin

deliberations again. I’m simply making a record of the

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information I’ve received from this juror, and that is

that the family member that is deceased is his father,

they have a close relationship, he needs to be there, and

he will be back—Monday?

"Juror Coley: Monday.

"The Court: The court’s going to cause the jury to

begin deliberations again and we’ll recess early for the

convenience of this juror, sometime before noon. And

after I speak to the attorneys, the probability is that I

will not excuse this juror and will not place an alternate

in his seat and will expect that we will begin.

deliberations again on Monday. So even if the attorneys

do not show, that is the information that Mr. Coley will

have and he will be required to come back on Monday,

unless there’s some other severe family problem that

you notify us of by phone. Okay? :

"Juror Coley: Okay."

Shortly thereafter, about 10:20 a.m., all counsel

arrived, and the court provided them with a transcript

of the earlier conference between the court and Juror

Coley. Defense counsel expressed concern: "Mr.

Barnett: I ask the court to seat the alternate juror. I’m

afraid that by terminating deliberations sometime before

noon the jury may feel some sense of urgency in

reaching a verdict today. Or if they don’t reach a verdict

today, that if they have to come back next week that’s

going to put them beyond our estimate and they may

feel forced to reach a verdict." The estimate to which

counsel referred was the court’s earlier representation

during jury selection that "It’s possible that we could go

a couple of weeks into July and the outermost

probability is that the middle of July would terminate

the responsibility of the juries [sic] on the case." The

Monday on which the court proposed to resume

deliberations would have been July 18.

Defense counsel and the prosecutor then explained

they had arrived a few minutes late for the meeting with

Juror Coley because they had been together in another

courthouse. The court responded: "Excellent. I’m not

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angry at you folks.... Had the court known that, I

wouldn’t have talked to the juror privately." Defense

counsel then explained his concern that the juror might

draw a negative inference from the court’s comment to

the juror that counsel had not appeared in response to

the court’s call. The court agreed: "You're probably

right. What would you ask the court to do?"

Counsel requested that the juror be excused,

explaining that his primary concern was not the prior

reference to counsel’s absence, but the effect of allowing

Juror Coley to continue deliberations: “Mr. Barnett:

The problem is, your honor, that the court gave him no

instructions as to, I suppose—that’s how to deal with the

other jurors with respect to his present problem. In

other words, we don’t know what he’s told them; that

he’s informally told them, hey, we’re gonna be off, or I

have to catch a ... plane at 2:00, or I have to come back

next week if we don’t reach a verdict this morning.

What time was the court planning on excusing the jury

today?

"The Court: In 20 minutes.

"Mr. Barnett: One additional point or argument for

the excusal of Mr. Coley, is that there’s no way to

predict the impact of the death of a family member, no

way for counsel, the court, or the juror himself, the

effect that may have on him in the penalty phase of a

death case."

The court stated it would reconvene the jury in

open court at 1] a.m. to clear up any misimpression

about why counsel had not been present earlier. Before

that time, however, the jury returned a verdict.

Defendant reiterated his objection that the verdict had

been coerced. The court overruled the objection, stating

"I don’t believe there’s any factor of coercion." The

court then queried the jury:

"The Court: Prior to the court inquiring about the

verdict, the court is aware that juror number eight, Mr.

Coley, had a death in his family and that he was going

to have to leave the area at two o’clock this afternoon.

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Did any of the jurors feel the pressure of that incident

in arriving at your verdict? Directed at Mr. Wilcox the

foreman.

"Jury Foreman: No, I don’t believe so, your honor.

"The Court: If any juror now feels that they need

additional time to discuss the case or reconsider the

verdict because of the pressure of time, I'll hear from

any juror. Any juror that has a feeling like that, please

raise your hand. Did the fact that Mr. Coley was going

to be excused and there was a probability that we would

begin the case anew on Monday the 18th, have anything

to do with the verdict that you’ve reached, Mr. Wilcox?

"Jury Foreman: No, Sir.

"The Court: Do any of you feel in any way

differently than that, that there might be some

impropriety in the verdict because of the press of time?

If so, please raise your hand."

(11a) Defendant contends the trial court’s handling

of this matter constituted error in two respects. His

primary contention is that Juror Coley should not have

been allowed to deliberate further that day and that the

penalty verdict was coerced under the circumstances.

He also asserts the trial court "committed constitutional

error in engaging in a private conversation with a juror

outside the presence of Beeler or his counsel." There

was no error.

(12) A trial court’s decision whether to discharge a

juror for good cause under Penal Code section 1089 is

subject to review under the abuse-of-discretion standard.

(People v. Ashmus (1991) 54 Cal.3d 932, 986-987 [2

Cal.Rptr.2d 112, 820 P.2d 214] {Ashmus); In re Mendes

(1979) 23 Cal.3d 847, 852 [153 Cal.Rptr. 831, 592 P.2d

318] (Mendes).) (11b) Nothing in the record shows an

abuse of discretion in this case. To the contrary, the

court accommodated Juror Coley to the fullest extent by

offering to recess the trial and to truncate deliberations

on the day in question so that he could leave town.

Likewise, the trial court was in the best position to

observe the juror’s demeanor. Nothing in the record

A-51

indicates there was any Communication between the

court and Coley that was not included in the record but

which might have cast doubt on Juror Coley’s ability to

proceed. Penal Code section 190.9 requires that all

proceedings in a capital case must be conducted on the

record with a court reporter present. "It is presumed

that official duty has been regularly performed." (Evid.

Code, § 664.) The presumption obtains in this case.

We do not suggest that a more detailed inquiry by

the court would have served no purpose. For example,

if Juror Coley had been questioned regarding his state

of mind or if he had stated affirmatively on the record

his ability and willingness, or lack thereof, to proceed,,

such information would assist us in determining whether

the trial court abused its discretion in allowing Coley to

continue deliberating. Although such inquiry is

preferred, it is not required. As we explained in Ashmus,

supra, 54 Cal.3d 932, 987, a hearing is not quired in all

circumstances. The court’s discretion in deciding

whether to discharge a juror encompasses the discretion

to decide what specific procedures to employ including

whether to conduct a hearing or detailed inquiry.

(Accord, Mendes, supra, 23 Cal.3d 847, 852.)

Moreover, the record supports no inference that

Juror Coley was coerced. He did not request to be

discharged. Neither did he object to the trial court’s

decision to allow deliberations to continue briefly. To

accept defendant’s claim of jury coercion, we would

have to assume without any evidence in the record that

Juror Coley was so distracted by his father’s death that

he felt compelled to return a speedy verdict or that

other jurors were aware of the situation and were

somehow affected by it. We may not properly make

such assumptions. The inability to perform the functions

of a juror ™... must appear in the record as a

demonstrable reality ...."" (Mendes, supra, 23 Cal.3d 847,

852, quoting People v. Compton (1971) 6 Cal.3d 55, 60

[98 Cal.Rptr. 217, 490 P.2d 537].) Nothing in the record

shows a "demonstrable reality" that Juror Coley was

soi

A - 52

unable to discharge his duties or that he felt coerced to

return a verdict. We reiterate that the record does not

indicate a request by Juror Coley to be discharged or

even to be accommodated by not having to deliberate

that day. Moreover, Juror Coley already had reserved a

flight when he informed the court of his father’s death.

The court made clear that Juror Coley would be

allowed to leave sufficiently early that day to travel to

the airport for his flight. Coley agreed to the court’s

proposal. Nothing in the record suggests that Coley

asked for additional time, disagreed with the court’s

proposal, or was subjected to any time pressure.

Similarly, the record does not indicate that any other

juror was affected by the circumstances.

We have not previously had the same situation

before us, i.e., a case in which a juror continued

deliberating after a family death, but we have dealt with

the converse, i.e., a juror who was discharged because of

a family death. In Mendes, supra, 23 Cal.3d 847, the

defendant objected to the trial court’s having excused

without a hearing a juror who requested to be excused

because his brother had died the previous night. In a

later capital case, the trial court summarily discharged

during penalty deliberations a juror whose mother had

died the preceding night. (Ashmus, supra, 54 Cal.3d 932,

986-987.) We upheld the discharge in both cases, but

those results do not support defendant’s claim of

coercion in this case. In both those cases, the jurors

requested discharge from the jury. The issue in both was

whether the trial court abused its discretion in granting

the juror’s request, We held in both cases that a hearing

to determine good cause for the discharge was not

required because good cause was so clearly established

under the circumstances. By contrast, Juror Coley did

not request to be discharged or even that deliberations

not resume the day he informed the court of his father’s

death.

Apparently, defendant would have us assume as a

matter of law that the death of a juror’s parent is so

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A- 53

debilitating that the juror is presumptively unable to

deliberate. Perhaps some jurors would be thusly

affected. We do not gainsay the intuitive conclusion that

a person is likely saddened by the death of his or her

parent. Indeed, we have recognized that a family death

_ can be difficult for a juror. (Mendes, supra, 23 Cal.3d

847, 852; Ashmus, supra, 54 Cal.3d 932, 987.) That

recognition does not mean that every juror is equally

affected or that such difficulty, even when it arises,

necessarily renders the juror unable to perform his or

her duties.

(13) We need only briefly note defendant’s

secondary contention that the trial court erred by

engaging in an ex parte communication with Juror

Coley. (This contention seems directed to the fact of the

communication rather than to its substance. To the

extent defendant objects to the substance of the

communication, that objection relates to the alleged

coercion of Juror Coley. We have rejected that

contention as explained above.) If, as defendant

contends, albeit without any support in the record,

Coley was distressed and had a pressing need to arrange

his affairs, the situation might have been exacerbated if

the court had refused even to speak with him until

counsel arrived at the court. It is simply not error for a

trial court to engage in a brief, administrative

communication when informed of a death in a juror’s

family. Reality and common sense dictate that a court

be allowed to learn what has happened. (See, e.g.,

Ashmus, supra, 54 Cal.3d 932, 986-987; Mendes, supra,

23 Cal.3d 847, 852.) Of course, a court at some point

might err by going beyond what is administratively

necessary, but that point was not reached in this case.

2. Effect of Death Penalty on Defendant’s Family

(14) Defendant contends the trial court erred by

refusing to allow defendant’s counsel to examine Robert

Lippold on the effect of a death penalty on defendant’s

family. Lippold was a licensed clinical psychologist. (He

A - 54

performed a psychological evaluation of defendant’s

mother in 1964 for the juvenile court in Salt Lake City,

Utah, and he testified in the present action regarding

that evaluation. That portion of his testimony is not

relevant to this issue.) Lippold later worked in the State

of Nevada prison system for nine years as a

psychologist, superintendent of a women’s prison, and

warden of a maximum security prison. He testified he

had the opportunity during this period to interview the

families of people on death row.

We have not previously decided explicitly whether

evidence of the effect of a death penalty on the

defendant’s family is “constitutionally pertinent

mitigation" evidence. (People v. Cooper (1991) 53 Cal.3d

771, 844, fn. 14 [281 Cal.Rptr. 90, 809 P.2d 865]; People

v. Fierro, supra, 1 Cal.4th 173, 241; People v. Bacigalupo

(1991) 1 Cal.4th 103, 143 [2 Cal.Rptr.2d 335, 820 P.2d

559].) Again, we need not decide this because, even if

such evidence might otherwise be admissible, Lippold’s

proposed testimony was not admissible because he had

no personal knowledge of defendant’s family. The most

that Lippold could have stated would have been his

opinion regarding the effect on those families of whom

he did have personal knowledge. This would have been

an opinion regarding the death penalty in general. Such

an opinion would not be relevant to the proper inquiry,

which is to tailor the defendant’s punishment "to his

personal responsibility and moral guilt." (Enmund v.

Florida (1982) 458 U.S. 782, 801 [73 L-Ed.2d 1140, 1154,

102 S.Ct. 3368], italics added.) "The focus in a penalty

phase trial of a capital case is on the character and

record of the individual offender." (People v. Johnson,

supra, 47 Cal.3d 1194, 1249.) The court did not err in

excluding Lippold’s proposed testimony based on his

experience with other families.

3. Seizure of Defendant’s Written Notes

(15) According to defendant, he spent considerable

time at his trial counsel’s request preparing an

A-55

approximately 50-page manuscript of his life story for

use during the penalty phase, but the document was

taken by jailers from his prison cell. (Respondent does

not dispute defendant’s statement of the facts regarding

the seizure.) Counsel, who had not seen the manuscript,

brought this to the court’s attention at an in camera

proceeding from which the prosecutor was excluded.

The court ordered that the manuscript be produced and

kept under seal by the court.

Defendant’s appellate counsel assert they requested

the manuscript after trial, but that the court was unable

to produce it. Defendant contends the seizure and loss

of the manuscript deprived him of an opportunity to

present a complete defense during the penalty phase.

He further contends the loss was irreparable because his

alleged serious brain damage raises a question of

whether he has the ability to reproduce the work.

Before turning to the merits, we first explain the

status of the record. Defendant is correct that the trial

court ordered defendant’s jailers to place the

manuscript in the court’s custody so that it could be

kept under seal. Later, on March 19, 1990, appellate

counsel filed a request to review the transcripts of all in

camera proceedings, including the November 13, 1987,

hearing at which the court ordered production of the

manuscript. The trial court’s order did not purport to

grant or deny the request but stated that all in camera

transcripts had been forwarded to this court. Defendant

moved for reconsideration. The trial court denied that

motion, again stating that the transcripts had been sent

to this court. After further investigation and

communication with this court, defendant again sought

reconsideration, correctly explaining that no transcripts

had been sent to this court. This was confirmed by the

superior court clerk. Finally, the trial court granted

defendant’s request to review the manuscript that had

been placed under seal.

According to defendant, however, the manuscript

was still not produced. The trial record contains no

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further references to this matter, so defendant’s

assertion cannot be verified. Relying on this omission,

respondent contends we should not address the issue of

the seized manuscript. Although respondent is

technically correct that the record does not prove the

manuscript was withheld from appellate co-nsel, we

have no reason to doubt appellate counsel’s assertion

they were not provided with the manuscript. Indeed,

respondent does not dispute that the manuscript has

been lost, either by the jail or the trial court. In light of

the uncertainty, which appears not to be attributable to

defendant’s counsel, we shall address the claim on the

merits.

Assuming that, as defendant contends, the

manuscript was never produced to his appellate counsel,

we nevertheless reject the claim on the merits.

Defendant contends that, but for the seizure of the

manuscript, it would have been available for his defense

at trial. This assertion, however, assumes it was in fact

not available for his defense. As explained above, the

trial court ordered the jailers to submit the manuscript

to the court. Although the manuscript may now be

missing, we decline to speculate whether it was

unavailable to counsel during trial. Nothing in the

record suggests that trial counsel ever requested the

manuscript during the penalty phase. We thus find no

error.

Moreover, if trial counsel had so little interest in

the manuscript that they did not even seek to read the

manuscript themselves, we see no merit in defendant’s

contention on appeal that the manuscript’s seizure

somehow restricted his penalty phase defense. Thus, the

seizure, even if improper, did not prejudice defendant.

Prejudice is lacking in other respects. First, appellate

counsel contend defendant suffers from severe organic

brain damage, which raises serious concerns about his

ability to reproduce that work product. This assertion

assumes as a fact that defendant is brain damaged.

Moreover, the assertion of prejudice is important for

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what it does not say. Appellate counsel do not contend

defendant attempted to rewrite or reconstruct the life

story that was allegedly the subject of the manuscript.

The contention is only that he may have been unable to

do so. That is not a showing of prejudice. (It also seems

a bit stretched to contend that defendant, although

brain damaged, composed a 50-page life story but that

the same brain damage precluded him from doing so a

second time.) Second, counsel do not assert that the

manuscript would itself have been admissible, but only

that it would have assisted counsel] at trial. Counsel fail

to explain to this court why trial counsel could not have

obtained the same information regarding defendant’s

background by interviewing him. Third, defendant does

not point to any mitigating evidence that he was unable

to introduce as a result of the seizure of the manuscript.

Put differently, he does not show how the manuscript

was material or irreplaceable.

4. Alleged Cumulative Guilt Phase Errors Affecting

Penalty Verdict

Defendant contends there were multiple errors

during the trial’s guilt phase that raised serious

questions about the finding that he intentionally killed

the victim. In particular, he points to: (1) the absence of

substantial evidence that defendant intentionally killed

Tony, (2).the prejudicial failure to present evidence of

defendant’s organic brain damage, (3) improper

instruction on the intent-to-kill requirement of the

felony-murder special circumstance, (4) improper

destruction of exculpatory evidence, and (5) the seizure

of the life story manuscript from his cell. (The last

assertion is curious because defendant raises the alleged

seizure only in connection with the penalty phase. In

this portion of his brief, however, he seems to contend it

was guilt phase error.) Defendant contends "there is a

reasonable possibility that a penalty jury would return a

verdict other than death," absent these errors. (Boldface

in original.) Defendant does not, however, explain with

A- 58

any particularity how these alleged errors affected the

penalty verdict other than to say that they cast doubt on

the finding that he intentionally killed the victim. That

argument relates, not to the penalty determination, but

to the special circumstance finding itself. In short, the

point of defendant’s argument is not clear. In any event,

it is misplaced because we have rejected these claims of

guilt phase error. If none of the claimed errors were

individual errors, they cannot constitute cumulative

errors that somehow affected the penalty verdict.

Finally, as we have often noted, defendant "is entitled

to a "fair trial not a perfect one." (People v. Miranda

(1987) 44 Cal.3d 57, 123 [241 Cal.Rptr. 594, 744 P.2d

1127], quoting Schneble v. Florida (1972) 405 US. 427,

432 (31 L.Ed.2d 340, 345-346, 92 S.Ct. 1056].) If

defendant means to suggest the guilt phase was

somehow so flawed that it was unfair and thereby

influenced the penalty verdict, we reject that contention

as well.

5. Death Penalty as Disproportionate

(16) Defendant contends the death penalty is

disproportionate to his crime and circumstances and

thus violates the constitutional proscriptions of crue] and

unusual punishment. (U.S. Const., 8th & 14th Amends;

Cal. Const. art. I, § 17.) We disagree. The jury found

that he was the actual killer and that he intended to kill.

"Accordingly, the imposition of the penalty of death on

defendant does not violate the Eighth Amendment."

(People v. McLain (1988) 46 Cal.3d 97, 121, fn. 7 [249

Cal.Rptr. 630, 757 P.2d 569].)

The facts do not cast doubt on this general

proposition. Defendant points to the following aspects

of the killing: "Beeler had no prior history of violent

crimes. There were no eyewitnesses to the killing.

Beeler did not know the victim. There was no evidence

the burglar was armed when he entered the victim’s

house. The prosecution conceded that Stevenson

returned home during the course of a burglary and

SL ee

A - 59

attacked the burglar with his rifle, with sufficient force

to cause a large gash in the door of Michael Stevenson’s

room. There was substantial evidence of a struggle

between the victim and his killer, and the victim was

shot once with a handgun owned by the victim’s brother.

The prosecution even acknowledged that the intruder

left the victim’s house without knowing whether the

victim was dead or simply wounded."

Defendant’s characterization of the evidence is

flawed. The assertion that defendant had no history of

violent crime is false and misleading. It is false because

he had previously robbed and raped a woman. That is

violence. Defendant’s view is misleading to the extent it

suggests a law-abiding life because he had three

burglary convictions. More important, even if we

otherwise accept defendant’s characterization of the

facts, these are hardly circumstances that demonstrate,

or even suggest, the death penalty is inappropriate.

Rather, they tell a story of a killer who entered the

home of an innocent stranger and burglarized it. The

resident inadvertently returned home, interrupted the

crime, and, after struggling, was shot in the back. The

killer left the victim to die.

Defendant also contends the death penalty is

inappropriate and "shocks the conscience" in light of his

horrible childhood, his brain damage, his efforts to

provide for his family, and the fact that his most recent

prior conviction was nine years old. We are not

persuaded. Neither his childhood, his own family’s

circumstance, nor his interlude from crime renders

disproportionate a death penalty for this defendant’s

killing of this innocent victim under the circumstances of

this case. We consider separately the alleged brain

damage (post, at pp. 1001-1010), but at this juncture we

need note only that (1) there is insufficient evidence in

the record on appeal to support the conclusion that

defendant does in fact suffer organic brain damage; and

(2) evidence of brain damage would not necessarily

render the death penalty cruel or unusual. (People v.

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Poggi (1988) 45 Cal.3d 306, 348 [246 Cal.Rptr. 886, 753

P.2d 1082}; cf. Penry v. Lynaugh (1989) 492 U.S. 302,

330-335 [106 L.Ed.2d 256, 285-289, 92 S.Ct. 1056]

[Execution of a mentally retarded defendant is not

categorically prohibited by the Eighth Amendment.].)

Moreover, we know nothing from the record in this case

of the specifics of the alleged damage and what effect, if

any, it might have had on defendant’s mental state or

actions.

6. Alleged Penalty Phase Instruc.onal Errors

Defendant asserts three errors in the penalty phase

jury instructions. He first contends the trial court

incorrectly “left the impression that implied malice was

sufficient to establish the requisite intent to kill" for the

felony-murder special circumstance. That contention is

more properly considered in connection with the guilt

and special circumstance issues, and we have rejected it

in that part of the opinion. (Ante, at pp. 982-986.) We

turn now to defendant’s two remaining contentions.

A. Alleged confusion of aggravating and mitigating

factors |

(17a) The trial court instructed the jury with the

1986 revision of CALJIC No. 8.84.1, which set forth the

factors for the jury to consider in rendering its penalty

verdict. The instruction included the language of Penal

Code section 190.3, factor (k) (hereafter factor (k)),

which directed the jury to consider "[a]ny other

circumstance which extenuates the gravity of the crime

even though it is not a legal excuse for the crime and

any sympathetic or other aspect of the defendant’s

character or record that the defendant offers as a basis

for a sentence less than death, whether or not related to

the offense for which he is on trial...." (18) "The

language of factor (k) refers to circumstances which

extenuate the gravity of the crime, not to circumstances

which enhance it." (People v. Boyd (1985) 38 Cal.3d 762,

775 [215 Cal.Rptr. 1, 700 P.2d 782].) Defendant does

A - 61

not object to CALJIC No. 8.84.1. (17b) He contends,

however, the court erred by giving an additional

instruction that "The list of factors which I have just

read to you contains every aggravating factor which you

may consider." He asserts this statement wrongly

instructed the jury that factor (k) could be an

aggravating factor as well as a mitigating factor. We are

not persuaded.

Defendant requested the additional instruction to

which he now objects. Respondent contends the error, if

any, was therefore invited. We need not decide whether

there was invited error because the instruction of which

defendant now complains was not error. As defendant

explained in requesting the instruction, it was a correct

statement of the law to the extent it made clear the jury

could consider only those aggravating factors identified

in CALJIC No. 8.84.1. (People v. Boyd, supra, 38 Cal.3d

762, 775.) Nor can the additional instruction reasonably

be read even to suggest that factor (k) could be

considered as an aggravating factor. To be sure, as the

trial court noted, the proposed instruction could have

been more clearly written. "The second sentence in

defendant’s proposed [instruction] two is inaccurate

which reads ‘In other words, the factors I have just read

to you are the only factors you may consider in

aggravation’—because there are factors in mitigation

also there." The court, however, deleted this sentence

with defendant’s consent. Nothing in the remainder of

defendant’s additional instruction could fairly be taken

to mean that factor (k) could be an aggravating factor.

The factor (k) instruction itself negated any such

meaning. The jury was instructed that factor (k) was

“any other circumstance which extenuates the gravity of

the crime even though it is not a legal excuse for the

crime and any sympathetic or other aspect of the

defendant’s character or record that the defendant offers

as a basis for a sentence less than death, whether or not

related to the offense for which he is on trial." (Italics

added.) The language of factor (k) could not, even with

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the additional instruction, have led a juror to view factor

(k) evidence as an aggravating factor. The possibility of

the confusion now asserted by defendant was further

negated by the giving of his proposed instruction that:

"The absence of any particular mitigating factor is not

an aggravating factor, and you must not consider the

absence of any of the enumerated mitigating factors as

a factor in aggravation." In short, to accept defendant’s

view, we would have to conclude that a juror would

believe that he or she was to consider extenuating

evidence as aggravating evidence. We reject that view as

being unrealistic. (19) The proper standard for

scrutinizing ambiguous jury instructions is to inquire "...

whether there is a reasonable likelihood that the jury

misconstrued or misapplied the words ...." (People v.

Clair (1992) 2 Cal.4th 629, 663 [7 Cal.Rptr.2d 564, 828

P.2d 705].) There was no such likelihood in this case.

B. Refusal of defendant’s proposed instruction on

weighing

Defendant asserts error in the trial court’s refusal

to deliver his proposed jury instruction No. 10, which

stated, "You may return a verdict of life imprisonment

without the possibility of parole even if the aggravating

factors you find [to be] true outweigh the mitigating

factors you find to be true. This is so because your

sympathy or compassion for the defendant or for his

family, or any other single mitigating factor, can,

standing alone, justify a sentence of life imprisonment

without the possibility of parole." The refusal was not

error. We rejected a similar argument in People v.

Edwards: “Defendant also contends the court erred in

refusing his request to instruct the jury, ‘If you

determine that the aggravating factors substantially

outweigh the mitigating factors, you may return a

finding of death or a finding of life in prison without the

possibility of parole.’ (Italics added.) In Boyde v.

California [(1990)] 494 U.S. [370] at pages 376-377 [108

L.Ed.2d at p. 326, 110 S.Ct. at pp. 1195-1196], the high

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court upheld an almost diametrically opposite

instruction—that the jury ‘shall impose’ the death

penalty if it concluded that the aggravating

circumstances outweigh the mitigating circumstances.

We expressed misgivings about the word ‘shall’ in People

v. Brown [(1985)] 40 Cal.3d at pages 544-545, and

footnote 17, and recommended that future courts

instruct as was done in this case. We have never

suggested the instruction now urged was required."

(People v. Edwards, supra, 54 Cal.3d at p. 842.) The

instruction requested by defendant in the present case

was not materially different from the one we held was

not required in Edwards. We adhere to the same view

and conclude the trial court properly refused the

instruction.

7. Assorted Previously Rejected Claims

Defendant briefly asserts six additional claims that

he acknowledges "have been rejected in recent opinions

of this Court." Two of these issues relate to defendant’s

alleged brain damage, and are resolved by our decision

on that issue. (Post, at pp. 1001-1010.) We reiterate our

rejection of these contentions as follows:

A. Legal aliens

Defendant contends the trial court erred in denying

his motion to include lawful resident aliens in the jury

pool. We have held that resident aliens are not a

cognizable group that is constitutionally required to be

included in the jury pool. (Rubio v. Superior Court

(1979) 24 Cal.3d 93, 98-100 [154 Cal.Rptr. 734, 593 P.2d

595}; see also Code Civ. Proc., § 203, subd. (a)(1)

[disqualifying "[pJersons who are not citizens of the

United States"].)

B. Intercase proportionality

Defendant contends the absence of any mechanism

for intercase proportionality review denies him the

Opportunity to show his sentence violates the Eighth

A - 64

Amendment’s proscription of crue] and unusual

punishment. (U.S. Const., 8th Amend.) We consistently

have held that such review is not constitutionally

mandated. (People v. Fierro, supra, 1 Cal.4th 173, 253.)

C. 1978 sentencing statute

Defendant contends the 1978 capital sentencing

Statute is unconstitutiona] because it lacks the following

safeguards: (1) identification of the aggravating and

mitigating factors, (2) written jury findings regarding the

aggravating and mitigating factors, (3) a burden of proof

on the prosecution to establish all aggravating factors

beyond a reasonable doubt, and (4) jury unanimity

regarding the aggravating factors. We have rejected

each of these contentions. (People v. Pensinger (1991) 52

Cal.3d 1210, 1265 [278 Cal.Rptr. 640, 805 P.2d 899]

[identification of factors not required]; People v. Cox

(1991) 53 Cal.3d 618, 692 [280 Cal.Rptr. 692, 809 P.2d

351] [no constitutional requirement of written findings,

jury unanimity, or proof beyond a reasonable doubt].)

D. Destruction of Beeler’s juvenile records

(20a) Defendant contends the trial court erred by

not dismissing the special circumstance allegation as a

sanction for the destruction of defendant’s juvenile

records in Nevada. Defendant had been a resident of

that state’s Spring Mountain Youth Camp for

approximately nine months in 1967 and 1968. Defendant

made an offer of proof that in approximately the winter

of 1969, all of defendant’s records from that camp were

intentionally burned. Despite a Nevada statute that

seemed to require the sealing and retention of all

records after the subject juvenile reached the age of 24

years, the youth authority had a policy of destroying the

records at that time. (The parties to this action disputed

whether the destruction was lawful.) According to

defendant, the destroyed records would have provided

mitigating evidence regarding his troubled background,

abused childhood, and perhaps other circumstances.

Db ceicsnse recs ce erence erm eet ere ee

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The trial court denied the motion, reasoning as

follows: "People versus Zamora [(1980)} 28 Cal.3d 88

[167 Cal.Rptr. 573, 615 P.2d 1361}, tells us not every

suppression of evidence requires a dismissal. The

remedies, if any, need only assure the defendant of a

fair trial. Lawful and proper destruction require no

sanctions. Illegal and malicious destruction may result in

a dismissal. The sanction depends on the materiality of

the evidence suppressed, or degree of materiality of the

evidence suppressed. Finally, the court must consider

the impact of the sanctions upon future cases and future

police conduct. The sanctions, if any, Must Outweigh any

benefit that the prosecution gains from the suppression.

At the same time, the court must consider the public

interest in law enforcement and a sanction that prevents

the trial, or appropriate punishment, should be

considered carefully. In this case the destruction of .

records has no sinister conduct attending the

destruction. No governmental evil can be cured by

dismissing the penalty phase proceedings. The records

of Spring Mountain Juvenile Court were destroyed by

burning in an effort to maintain confidentiality, at least

as indicated by one witness, immediately after they were

declared to be a fire hazard. It is improbable that the

Gestruction of juvenile files of this defendant give any

advantage whatsoever to the prosecution. It also

appears that the lawful [Nevada] authorities controlling

the records of defendant’s juvenile commitment at

Spring Mountain, by habit and custom, have modified

the bare written law in that the out-of-state [Nevada]

authorities properly construed the language authorizing

sealing of transcripts at age 24 to also authorize

destruction of such records to maintain confidentiality

permanently. This court, therefore, construes the law

involving the defendant's juvenile records as follows:

The framers of the [Nevada] statute never contemplated

that a defendant would, some 20 years in the future, do

a Capital murder in another state and did not intend

that their records should be maintained by the—for the

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defendant’s benefit so that he might, 20 years later,

have access to such mitigating evidence. Through

custom and practice the [Nevada] authorities could

have, would have, in fact, did lawfully destroy all the

defendant’s records presumably near age of 24.

Therefore, whatever records were destroyed earlier, are

totally irrelevant to the issue of sanctions nor are they

material. This court now rules there shall be no

dismissal of the penalty phase proceedings, nor is the

defendant entitled to any other sanction."

We agree with the trial court’s disposition of this

issue for one simple reason. Regardless of whether the

destruction by the Nevada authorities was proper under

that state’s law, at the time those records were

destroyed, which was approximately 20 years before

defendant’s trial in this action, neither the records

themselves nor their destruction had any cognizable

nexus whatsoever with the present case. (21) As

explained above in connection with another of

defendant’s claims (see ante, p. 976), the federal

constitutional guarantee of due process imposes a duty

on the state to preserve only such "... evidence that

might be expected to play a significant role in the

suspect’s defense. To meet this standard of

constitutional materiality, see United States v. Agurs

[(1976)] 427 U.S. [97], at 109-110 [49 L.Ed.2d 342,

353-354, 96 S.Ct. 2392], evidence must ... possess an

exculpatory value that was apparent before the evidence

was destroyed ...." (Trombetta, supra, 467 U.S. 479,

488-489 [81 L.Ed.2d 413, 422], fn. omitted; People v.

Johnson (1989) 47 Cal.3d 1194, 1233 [255 Cal.Rptr. 569,

767 P.2d 1047}.) "[U]nless a criminal defendant can

show bad faith on the part of the police, failure to

preserve potentially useful evidence does not constitute

a denial of due process of law." (Arizona v. Youngblood,

supra, 488 U.S. 51, 58 [102 L.Ed.2d 281, 289].) "The

presence or absence of bad faith by the police for

purposes of the Due Process Clause must necessarily

turn on the police’s knowledge of the exculpatory value

iF Apt iShadow aR Gnas Maa ie etl ial ex et oe Saal ay

LR BAO AR HS

aR a hg

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of the evidence at the time it was lost or destroyed.”

(id., at p. 57, fn. * [102 L.Ed.2d at p. 288].) (20b)

Applying these principles to the juvenile records in

question, we find no constitutionally improper conduct.

As suggested by the trial court, when the records were

destroyed, the Nevada officials could not reasonably

have been expected to foresee the records might

contain some mitigating evidence 20 years later.

8. Trial Court’s Reading of Probation Report Before

Sentencing

(22) On December 16, 1988, the trial court was

scheduled to hear several post-trial motions, including

the automatic application under Penal Code section

190.4, subdivision (e) for modification of verdict. The

court stated, "[The] court has received, read and

considered the Probation and Sentencing Report and

various letters as well as a commitment of death

submitted by the People." Defendant contends this was

prejudicial error. Defendant is correct that "the

preferable procedure is to defer reading the probation

report until after ruling on the automatic application for

modification of verdict." (People v. Lewis (1990) 50

Cal.3d 262, 287 [266 Cal.Rptr. 834, 786 P.2d 892]:

People v. Hill (1992) 3 Cal.4th 959, 1012 [13 Cal.Rptr.2d

475, 839 P.2d 984].) “In making that ruling the Judge is

limited to consideration of the evidence that was before

the penalty jury.’ (People v. Visciotti [(1992)] 2 Cal.4th 1,

78 [5 Cal.Rptr.2d 495, 825 P.2d 388].) The probation

report, of course, was not admitted into evidence."

(People v. Hill, supra, 3 Cal.4th at p. 1013.)

We nevertheless reject defendant’s contention of

error. “Absent a contrary indication in the record, we

assume the trial court was not influenced by the report

in ruling on the application." (People v. Hill, supra, 3

Cal.4th at p. 1013.) The record in this case shows the

trial court relied only on the evidence, not the probation

report or letters. Moreover, the court carefully reviewed

the evidence, including the aggravating and mitigating

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circumstances and concluded, “Considering all of the

evidence, the court’s personal assessment is that the

factors in aggravation, beyond all reasonable doubt,

overwhelmingly outweigh those in mitigation." On these

facts, we hold, "There was no error, and certainly no

prejudice.” (People v. Livaditis (1992) 2 Cal.4th 759, 787

[9 Cal.Rptr.2d 72, 831 P.2d 297]; People v. Hill, supra, 3

Cal.4th 959, 1013.)

Issues Relating to Alleged Organic Brain Damage

1. Factual Background of Brain Damage Allegation

The background of the dispute regarding alleged

brain damage is as follows: The jury returned its penalty

verdict on July 12, 1988. Sentencing was scheduled for

September 2, 1988. Defendant’s counsel obtained a

continuance of that hearing until November 4, 1988. On

that date counsel requested another continuance,

explaining they were heavily involved in another case.

Counsel also stated:

"Also there is a matter which Mr. Beeler has

brought to my attention[.] He only last week learned the

significance or possible significance in his case of a head

injury he received, subsequent symptoms that apparently

he was treated for both in prison and locally. I think we

should investigate that.

"The Court: He didn’t know he had a head injury

when he had a head injury?

"Mr. Standifer: He apparently was unconscious

after it so he didn’t know all about it, but he did not

know the significance of it and did not report it to us.

"The Court: Certainly seems to be something

addressed in the motion for new trial.

"Mr. Standifer: That’s exactly right.

"The Court: Sure.

"Mr. Standifer: And [the] point of that is that I—we

didn’t know about it, Mr. Beeler didn’t tell us about it

because he only recently learned that it might be

significant."

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The court granted the request for a continuance

until December 16, 1988. On that date, the court held

an in camera hearing. Counsel stated they had

investigated defendant’s prior report of a few isolated

blackouts, but that defendant had just told them earlier

that day he had begun suffering frequent blackouts.

Defendant raised an issue of ineffective assistance of

counsel and "wished to have another lawyer appointed

because he had not received an EKG [sic, EEG

(electroencephalogram)] and a CAT scan [computerized

axial tomography]." Counsel explained that "[aJlthough

we had doctors address issues based on the information

we had, it was our judgment to this point that those

tests were not required. Counsel explained that

defendant wanted the court to relieve his counsel or to

appoint an additional attorney. Defendant stated that he

wanted to be tested with a "CAT Scan and EEG

because I fee] there is something wrong." The court

denied the motion to relieve counsel but continued

sentencing again, until January 27, 1989, so that counsel

could further investigate the possibility of organic brain

damage.

On January 27, 1989, the court granted defense

counsel’s request for another continuance of

approximately 60 days, until March 24, 1989, to proceed

with defendant’s brain testing.

On March 24, 1989, defense counsel requested yet

another continuance. Counsel represented that

defendant had been given a PET scan (positron

emission tomography) and that counsel had received

only two days before this hearing "... a report from a

physician indicating that Mr. Beeler may have organic

brain damage and I’m asking that the motion for new

trial and sentencing be continued to May 5." Counsel

presented no evidence to substantiate his claim. Rather,

he explained only that "He [the doctor] has given me a

report, an oral report, and some documents which

indicate his conclusions regarding brain damage and I

need to have him finalize those conclusions and results

A- 70

and I need to have those results analyzed by a forensic

neurologist, and I believe that that amount of time is

necessary to complete these tasks." The prosecutor

objected, but the court concluded, "! think if I simply

order they go forward with the motion for new trial and

sentencing it would be an abuse of the court’s discretion

at this time even though it’s taken us as long as it has.

So over the objection of the People, the court grants the

continuance. I’m hoping it’s a hard and fast date for

sentencing.... [1] I’m going to suggest that the prosecutor

notify the victims that we will probably go on the Sth [of

May]. In other words, I allow the continuance to this

date with the expectation that we will go forward that

day. So let’s not come to the courtroom again with the

courtroom filled with victims and ask for a continuance

again."

Despite the court’s warning and the passing of

almost 10 months since the verdict (including 8 months

of continuances), defense counsel at the May 5, 1989,

hearing requested still another continuance, this time on

the ground that more time was needed for a defense

expert to evaluate defendant’s neurological condition.

One of defendant’s counsel submitted his own

declaration setting forth his efforts to obtain an analysis

of various tests that had been done and stated that

some doctors had told him of problems with defendant’s

brain. Counsel, however, presented no testimony of any

expert even suggesting a neurological problem. The

court denied this request for another continuance, and

proceeded to deny the motion for new trial and the

application to modify the verdict and imposed the death

sentence. Defendant contends the trial court erred by

denying: (1) the request for a sixth continuance, (2) the

motion for new trial, and (3) the application to modify

the verdict. We shall address each contention, setting

forth additional facts as necessary.

2. Denial of a Further Continuance

: ‘ ‘ i i ike item ea ins sak SOE ESN TAS WARRIOR ROE RDS Bee es Q

Sh ik ig i cia Na i a ee a ai es pike sn a NT TT ewe TI ean eR re

is Gan Le a pe EE Re Fe a Me a Or ; Ce SE ey reer Be Ma ate MRR CCE TITRE Perey ene Trey : . :

AD I pa ane IS ET My cick RS A ERLE Be OS ay a pe nag ra Ba eae ee i ; . ;

A-71

(23) "Continuances shall be granted only upon a

showing of good cause." (Pen. Code, § 1050, subd. (e).)

"The granting or denial of a continuance during trial

traditionally rests within the sound discretion of the trial

judge." (People v. Howard (1992) 1 Cal.4th 1132, 1171 [5

Cal.Rptr.2d 268, 824 P.2d 1315].) "The burden is on [the

defendant] to establish an abuse of judicial discretion

(People v. Rhines (1982) 131 Cal.App.3d 498, 506

[182 Cal.Rptr. 478].) "[A]n order of denial is seldom

successfully attacked." (5 Witkin & Epstein, Cal.

Criminal Law (2d ed. 1989) Trial, § 2502, p. 3002.) We

conclude the trial court did not abuse its discretion in

denying defendant’s May 5, 1989, request for a further

continuance.

An important factor for a trial court to consider is

whether a continuance would be useful. (Owens v.

Superior Court (1980) 28 Cal.3d 238, 251 [168 Cal.Rptr.

466, 617 P.2d 1098].) Defendant acknowledges that to

demonstrate the usefulness of a continuance a party

must show both the materiality of the evidence

necessitating the continuance and that such evidence

could be obtained within a reasonable time. (24) In this

case, defendant’s counsel failed to show either element

on the record as of May 5, 1989. First, consel’s

declaration was all the court had before nd that

declaration was most equivocal. It repear « + stated that

the so-called newly discovered evidence «pyears

relevant" and "suggests" problems with defendant’s

mental state. (Italics added.) Moreover, counsel seemed

to assume that proof of some type of organic brain

damage would be relevant to a material issue. Counsel’s

declaration permitted only speculation in that regard.

Indeed, counse] never even provided any indication

regarding whether the alleged damage was sustained

before, during, or after the trial. Second, theie was no

adequate showing the evidence, even if material, could

be obtained within a reasonable time. The lengthy

delays and prior continuances permit serious doubt

whether the additional time requested would have

A-72

yielded meaningful evidence. The declaration also

offered no assurance the requested continuance would

be sufficient, stating only that "... this doctor believes that

he can conclude the medical work needed by early

. August of this year." (Italics added.) In denying the

continuance, the court noted in its final remarks, that "I

have simply made conclusions from your failure to

present anything to the court...." We agree that counsel

failed to establish on the record that a further

continuance would have been useful. We therefore hold

that defendant has failed to show the trial court abused

its discretion when it denied his May 5, 1989, request

for a further continuance to continue to explore the

possibility that he might have brain damage that might

be relevant.

3. Motion for New Trial

(25a) Defendant contends the trial court should

have granted his motion for a new trial] based on the

allegedly newly discovered evidence of severe organic

brain damage. (26) "In ruling on a motion for new trial

based on newly discovered evidence, the trial court

considers the following factors: “1. That the evidence,

and not merely its materiality, be newly discovered; 2.

That the evidence be not cumulative merely; 3. That it

be such as to render a different result probable on a

retrial of the cause; 4. That the party could not with

reasonable diligence have discovered and produced it at

the trial; and 5. That these facts be shown by the best

evidence of which the case admits."" (People v. Delgado

(1993) 5 Cal.4th 312, 328 [19 Cal.Rptr.2d 529, 851 P.2d

811].) "[U]nless a clear abuse of discretion is shown, a

denial of the motion will not be interfered with on

appeal." (People v. McDaniel (1976) 16 Cal.3d 156,

178-179 [127 Cal.Rptr. 467, 545 P.2d 843]. (25b) We

find no abuse of discretion because defendant failed to

show that a different result would be probable on

retrial. The motion for new trial, including the issue of a

probable different outcome on retrial, must, of course,

es Pate ee ee

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be decided on the evidence actually before the court at

that time, not on the basis of evidence that might be

developed. As explained above, all the court had before

it was counsel’s extremely vague and equivocal]

declaration regarding the alleged results of the brain

testing. It was so tenuous that it clearly did not make a

different outcome probable, or even remotely likely.

This was plainly insufficient to warrant a new trial. An

affidavit that is "so vague and general" supports the

denial of a motion for new trial. (People v. Kloss (1897)

115 Cal. 567, 576 [47 P. 459] [affirming denial of new

trial in a murder case].)

Counsel’s declaration did not even comport with

the statutory requirement for a new trial motion. Penal

Code section 1181, subdivision 8 States, "... When a

motion for a new trial is made upon the ground of

newly discovered evidence, the defendant must produce

at the hearing, in support thereof, the affidavits of the

witnesses by whom such evidence is expected to be given,

and if time is required by the defendant to procure such

affidavits, the court may postpone the hearing of the

motion for such length of time as, under all the

circumstances of the case, may seem reasonable."

(Italics added.) Defendant did not produce a single

affidavit by any witness who could have presented

credible evidence of his alleged organic brain damage,

submitting instead only the declaration of counsel. "It is

to be noted that the alleged motion for a new trial,

which was made on the ground of newly discovered

evidence, was not supported by an affidavit of a witness

by whom newly discovered evidence was to be given.

(See Pen. Code, § 1181.) The affidavit was made by the

attorney for defendant. It thus appears that there was

not a sufficient legal basis for a new trial on the ground

of newly discovered evidence, and the court would have

been justified in denying the motion." (People v. Ethridge

(1962) 204 Cal.App.2d 279, 282-283 [22 Cal.Rptr. 57];

People v. Fice (1893) 97 Cal. 459, 460 [32 P. 531] [no

affidavit by the proper witness].) Likewise here,

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counsel’s declaration was insufficient under Penal Code

section 1181. It was also insufficient to show a probable

different outcome on retrial.

We conclude the trial court did not abuse its

discretion in denying the motion for a new trial based

on the allegedly newly discovered evidence of brain

damage.

4. Consideration of Neurological Evidence on

Modification Motion

(27) Defendant contends the trial court erred in

taking any action on his automatic application under

Penal Code section 190.4, subdivision (e), for

modification of the penalty verdict. He reasons as

follows: "Where relevant mitigation evidence not heard

by the jury is made available to the trial court, the trial

court cannot perform the procedural check intended by

the section 190.4 motion without either (1) improperly

ignoring relevant mitigating evidence; or (2) improperly

considering evidence not presented to the jury. Either

choice is error." In other words, as defendant would

have it, the trial court could neither grant nor deny the

application. The argument has no merit. To be sure, in

ruling on the application, the trial court shall not

consider evidence not presented to the jury. (Pen. Code,

§ 190.4, subd. (e); People v. Lewis, supra, 50 Cal.3d 262,

287.) Not true, however, is defendant’s correlative

premise that the trial court had to consider the

"evidence." He relies on People v. Robertson (1989) 48

Cal.3d 18, 53-55 [255 Cal.Rptr. 631, 767 P.2d 1109], for

the proposition that, in ruling on the automatic

application for modification, the trial court should not

exclude relevant mitigating evidence from consideration.

Robertson, however, dealt only with evidence that had

been presented to the jury. In the present case, no

evidence of the alleged brain damage was presented to

the jury. There was no evidence in that regard for the

court to consider. Under defendant’s strained and novel

view, any material brought to the court’s attention after

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trial—even if, as in this case, it is nothing more than a

vague and speculative declaration of counsel—would be

"evidence" that would preclude a trial court from ruling

one way or the other on an automatic application under

section 190.4, subdivision (e). There is no authority in

precedent or logic for that view. We reject it.

5. Effect of Alleged Brain Damage on Special

Circumstance Finding

Defendant contends the evidence of his alleged

brain damage undermines the special circumstance

finding that he had a specific intent to kill. (This case is

subject to the now-abandoned requirement of a specific

intent.) As we have explained in connection with

defendant’s other claims based on the alleged brain

damage, there was no evidence at trial of such damage.

To the extent he relies on the post-trial declaration of

his counsel, we reject the claim as well. The contention

this post-trial information casts doubt on the special

circumstance is, in effect, just a different way of arguing

that defendant’s motion for new trial should have been

granted. ‘Ve have rejected that contention, explaining

that counsel’s declaration is exceedingly vague and

general. Without deciding whether it even rises to the

level of being admissible evidence of brain damage, we

can confidently conclude that the declaration does not

in any way undermine the jury’s finding of defendant’s

specific intent. At best, the declaration Suggests that a

doctor might be able to conclude that defendant might

have brain damage that might have affected his ability

to form a specific intent to kill. This is not close to

being sufficient to raise any doubt.

6. Ineffective Assistance of Counsel

(28a) Defendant contends his constitutional right to

effective counsel was violated by his counsel’s failure to

investigate sooner his neurological condition. More

specifically, he contends counsel were inadequate in two

respects. He first contends they "were ineffective for

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failing to investigate Beeler’s neurological health during

trial." He also asserts that, "once trial counsel learned

that Beeler suffered from a severe neurological

impairment, counsel was ineffective in failing to present

expert evidence of this impairment to the court on May

5, 1989," when it denied his request for a further

continuance and his motion for new trial. (29) "To

establish entitlement to relief for ineffective assistance

of counsel the burden is on the defendant to show (1)

trial counsel failed to act in the manner to be expected

of reasonably competent attorneys acting as diligent

advocates and (2) it is reasonably probable that a more

favorable determination would have resulted in the

absence of counsel’s failings." (People v. Lewis, supra, 50

Cal.3d 262, 288.)

A. Investigation during trial —

(28b) Defendant contends the record "... is replete

with references demonstrating that counsel] had

sufficient indications of brain damage to warrant an

investigation [of his neurological health] at least by the

time of Beeler’s penalty phase trial." Defendant points

to the testimony of two of defendant’s penalty phase

witnesses that he claims should have triggered this

inquiry. We are not persuaded.

Dr. Lenore Walker, a forensic psychologist, testified

defendant suffered from disassociation, i.e., events of

memory loss or unawareness of what he was doing. Dr.

Stephen Wells, another psychologist, also testified "...

there appears to be a very much an element of what is

called dissociation [sic] involving memory consciousness,

a person is—person’s awareness of what he is doing."

The psychologists did not testify that they suspected any

organic brain damage. Nothing in the record supports a

conclusion that evidence of memory loss and

disassociation should have alerted counsel to a need for

neurological testing for organic brain damage. Nor did

defendant’s own psychologists testify that such testing

was needed.

id ie

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Dr. Walker also testified that, when defendant was

a child he was subjected to terrible physical, emotional,

and sexual abuse by his stepmother. A childhood

neighbor testified likewise, recounting among other

things an incident in which defendant was pushed down

a flight of stairs. Defendant points to his "long history of

mental health problems" and contends this history

should have triggered some investigation into a possible

neurological link to those problems. Again, nothing in

the record supports the conclusion that defendant’s

terrible childhood and prior diagnoses supported an

inference of organic brain damage that would warrant

neurological testing.

In short, the record does not support defendant’s

contention that the evidence at trial should have caused

his counsel to seek neurological testing.

B. Investigation after trial

Defendant also challenges counsel’s performance

after the penalty verdict was returned, asserting their "...

lack of diligence in procuring an expert witness to

enlighten the court about his organic brain damage."

This contention assumes as its premise that defendant in

fact does suffer from organic brain damage. The record

on appeal does not support that inference. As we have

explained in detail above in connection with other

contentions based on the alleged brain damage (ante, at

pp. 1003-1005), the record contains not a single

declaration by any competent expert that defendant has

any brain damage of any kind. The only information in

that regard is his counsel’s declaration seeking a sixth

continuance. Whether counsel could offer competent

testimony regarding brain damage is most doubtful.

(Evid. Code, § 720.) But, even if we assume, solely for

discussion, that counsel’s declaration could be

considered as being evidence, the declaration itself was

tenuous hearsay at best. The record does not establish

that defendant suffers from organic brain damage. We

therefore cannot conclude that counsel were ineffective

Pere nee ee

A - 78

for not "... procuring an expert witness to enlighten the

court about his [defendant’s] organic brain damage.”

Because the record does not establish that defendant in

fact suffers from organic brain damage, the question of

whether his counsel should have obtained an expert’s

opinion about that brain damage is a question that must

be raised, if at all, in a petition for writ of habeas

corpus. We cannot on appeal conclude that counsel

should have obtained expert opinion regarding a “fact”

that is not demonstrated in the record to be a fact.

Perhaps defendant means to contend counsel

became aware of defendant’s brain damage when they

learned of defendant’s alleged blackouts and thus should

have obtained expert opinion regarding the brain

damage. Again, this view assumes too much. The

occurrence of the blackouts—even if true—does not

establish brain damage. Likewise, counsel’s knowledge

of the blackouts did not mean that counsel knew of

brain damage.

Viewed most favorably to defendant, his argument

may be construed as follows: when they learned of

defendant’s blackouts, counse] should more promptly

have obtained expert opinion regarding whether the

blackouts were caused by organic brain damage. Even in

this light, however, the argument fails. First, it begins

with the assumption that a defendant’s claim of

blackouts necessarily imposes on counsel, and the trial

court as well, a duty to obtain sophisticated neurological

testing to determine whether the defendant has brain

damage. This record is insufficient to support such a

broad and inflexible rule. One can easily foresee its

consequences. Merely by claiming after trial a blackout

or series of them, a defendant would be entitled to

brain testing that might, as in this case, take months to

complete. Delay is not the only concern. Such testing

might not establish any brain damage, and even if some

damage were proven, whether it would be of any legal

consequence is entirely speculative at best. Second,

defendant’s view is also factually flawed because it

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assumes that a person’s blackouts, without more,

necessarily create a medical need for neurological

testing. Defendant fails, however, to establish on the

record any such medical protocol.

We acknowledge, however, that, perhaps in an

abundance of caution, the trial court in this case

authorized neurological testing, and counsel undertook

to obtain that testing. Defendant assumes that, once the

task was undertaken, counsel had a duty to diligently

pursue the matter. Only for the purpose of discussion

and without stating any broad rule, we will accept that

assumption as being correct. We cannot conclude from

this record, however, that counsel were not diligent.

Doing so would require us to speculate in detail as to

the circumstances faced by counsel and their actions.

We decline to so speculate.

For the same reason, defendant fails to establish

any prejudice from counsel’s alleged failures, whether

during or after trial. The faulty premise of defendant’s

argument is also its faulty conclusion. His premise is

that he suffers severe brain damage, and his conclusion

is that he was prejudiced because the jury was not told

of the brain damage. This argument must fail on appeal

because defendant has failed to establish brain damage

on the record. At best, all we know from the record is

his counsel’s characterization of what the brain testing

might show. That is not a sufficient basis on which we

can conclude that "it is reasonably probable that a more

favorable determination would have resulted in the

absence of counsel's failings." (People v. Lewis, supra, 50

Cal.3d at p. 288.) To the contrary, we cannot make an

informed decision regarding what effect, if any, the

alleged brain-damage evidence might have had on the

jury because we do not know what that evidence would

show, indeed, whether it would show any brain damage.

The only "evidence" of brain damage in the

appellate record is counsel’s declaration. We doubt

defendant means to suggest that the jury’s verdict would

have been different if they had been provided with

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counsel’s declaration. If, however, that is his contention,

we reject it. It seems obvious that a jury would be most

skeptical of counsel’s lay statements regarding his

client’s neurological condition. Such information would

not be from an unbiased source. Nor would it be from a

knowledgeable source. Indeed, whether counsel would

even be competent to testify is doubtful. (Evid. Code, §

720.)

Moreover, apart from the fact that the information

was from counsel, we cannot conclude the substance of

the information contained in counsel’s declaration would

have made a more favorable result reasonably probable.

As we have already explained, the record does not

sufficiently establish that defendant suffers from any

neurological malady, much less one that might have

affected the verdict. We are asked to speculate how a

jury might h

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