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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1867%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1099

## Text

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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.

A- 18

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:

A- 19

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

A-21

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.

A -22

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.

4
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A- 23

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

A - 24

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.

A-27

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...."

A - 28

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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A - 30

"{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

A - 32

(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.

A - 33

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

A- 40

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

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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

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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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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

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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

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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

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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1867%3A3. Public record. Not legal advice.