Appendix — Calderon v. Sandoval
Supreme Court brief2001
Ask Donna
What actually matters in this document.
Text
od ”””:C“
IN THE SUPREME COURT OF THE UNITED STATES
Gourt, U.
FILED
no. 00177 4 way 222001
ARTHUR CALDERON, Warden of the California State Prison at
San Quentin, Petitioner,
ALFRED ARTHUR SANDOVAL, Respondent.
Vv.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEAL FOR THE NINTH CIRCUIT
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
VOLUME I OF I
BILL LOCKYER
Attorney General of the State of California
DAVID P. DRULINER
Chief Assistant Attorney General
MARC C. TURCHIN
Acting Senior Assistant Attorney General
SUSAN L. FRIERSON
Deputy Attorney General
KEITH H. BORJON
Supervising Deputy Attorney General
*JEFFREY B. KAHAN
Deputy Attorney General
*Counsel of Record
300 South Spring Street
Los Angeles, CA 90013
Telephone: (213) 897-2285
Fax: (213) 897-2263
Counsel for Petitioner
i
TABLE OF CONTENTS |
Description
Verdict forms and minute orders recording guilty
verdicts in case of Sandoval v. Calderon, Los
Angeles Superior Court case number A760386
Verdict forms and minute orders recording mixed
verdicts of life without the possibility of parole
and death in case of Sandoval v. Calderon, Los
Angeles Superior Court case number A760386
Trial court’s sentencing order and commitment to
death in case of Sandoval v. Calderon, Los
Angeles Superior Court case number A760386
California Supreme Court opinion in case of case
of Sandoval v. Calderon, case number S004765,
published at 4 Cal. 4" 155, 14 Cal. Rptr. 2d 342,
841 P.2d 862 (1992)
United States Supreme Court opinion in case of
Victor v. Nebraska, case numbers 92-8894, 92-
9049, published at 511 U.S. 1 (1994)
Request by Prisoner for Appointment of Counsel
in California Death Sentence Case and for Stay of
Execution for Death Sentence and supporting
documentation filed in the United States District
Court for the Central District of California in the
case of Sandoval v. Calderon (case no. CV-94-
8206-R)
Notice of Filing Death Penalty Habeas Corpus
Petition and Order Staying Execution issued by
United States District Court for the Central
District of California in the case of Sandoval v.
Calderon (case no. CV-94-8206-R)
Page
17
24
32
105
151
163
li
Cover sheet and table of contents from Petition for
Writ of Habeas Corpus filed in United States
District Court for the Central District of California
in the case of Sandoval v. Calderon (case no. CV-
94-8206-R)
Amended Petition for Writ of Habeas Corpus filed
in United States District Court for the Central
District of California in the case of Sandoval v.
Calderon (case no. CV-94-8206-R)
Unpublished orders of the United States District
Court for the Central District of California in the
case of Sandoval v. Calderon (case no. CV-94-
8206-R) denying relief
Opinion of the United States District Court for the
Ninth Circuit in the case of Sandoval v. Calderon,
case numbers 99-99010 and 99-99013
Amended Opinion of the United States District
Court for the Ninth Circuit in the case of Sandoval
v. Calderon, case numbers 99-99010 and 99-
99013
Unpublished Order of the United States District
Court for the Ninth Circuit in the case of Sandoval
v. Calderon, case numbers 99-99010 and 99-
99013, staying issuance of its mandate pending
application for writ of certiorari
Unpublished Orders of the California Supreme
Court denying habeas relief to Alfred Arthur
Sandoval in case numbers S026386 and S057548
Excerpted argument from brief of Respondent-
Cross-Appellant/Appellee in case of Sandoval v.
Calderon (United States Court of Appeals for the
Ninth Circuit case numbers 99-99010 and 99-
99013
169
177
349
373
404
442
443
445
APPENDIX A
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
| CASE NUMBER
The People of the | A760386
State of California | DEPARTMENT NUMBER
| 116
PLAINTIFF(S) |
|
|
SANDOVAL, |
ALFRED ARTHUR | VERDICT (Guilty)
|
DEFENDANT(S) |
|
We, the jury in the above-entitled action, find the Defendant
ALFRED ARTHUR SANDOVAL guilty of the crime of
MURDER, in violation of Section 187, Penal Code, a felony, as
charged in Count 1 of the information and further find it to be
MURDER of the first degree.
first/second
And further find the allegation that in the commission and
attempted commission of the above offense the said defendant,
ALFRED ARTHUR SANDOVAL, personally used a firearm,
to wit. a handgun. within the meaning of PENAL DE
SECTION 12022.5 to be TRUE.
True/Not True
FILED
FEB 12 1987
FRANK S. ZOLIN,
COUNTY CLERK
/S/
BY S. LIEBLICH DEPUTY
This 11th day of February 1987. /S/
Foreman
76V210 (Rev. 11-81) 6-85
VERDICT (Guilty)
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
| CASE NUMBER
The People of the | A760386
State of California | DEPARTMENT NUMBER
pee
PLAINTIFF(S) |
VS. |
SANDOVAL, ALFRED | VERDICT (Guilty)
ARTHUR |
|
DEFENDANT(S) _|
We, the jury in the above-entitled action, find the Defendant
ALFRED ARTHUR SANDOVAL guilty of the crime of
MURDER. in violation of Section 187, Penal Code, a felony, as
charged in Count 2 of the information and further find it to be
MURDER of the first degree.
first/second
And further find the allegation that in the commission and
attempted commission of the above offense the said defendant,
ALFRED ARTHUR SANDOVAL, personally used a firearm,
to wit, a handgun, within the meaning of PENAL CODE
SECTION 12022.5 to be TRUE.
True/Not [rue
FILED
FEB 12 1987
FRANK S. ZOLIN, COUNTY CLERK
/S/
BY S. LIEBLICH DEPUTY
This 11" day of February 1987. /S/
Foreman
VERDICT (Guilty)
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
CASE NUMBER
The People of the A760386
State of California DEPARTMENT
NUMBER
116
PLAINTIFF(S)
SANDOVAL, ALFRED
ARTHUR
VERDICT (Guilty)
|
|
|
|
|
|
VS. |
|
|
|
|
DEFENDANT(S) |
|
We, the jury in the above-entitled action, find the Defendant
ALFRED ARTHUR SANDOVAL guilty of the crime of
ATTEMPTED MURDER, in violation of Section 664/187,
Penal Code, a felony, as charged in count 5 of the
information.
And further find the allegation that in the commission and
attempted commission of the above offense the said
defendant, ALFRED ARTHUR SANDOVAL, personally
used a firearm, to wit, a handgun, within the meaning of
Penal Code Section 12022.5 to be True.
True/Not True
And further find the allegation that in the commission and
attempted commission of the above offense the said
defendant, ALFRED ARTHUR SANDOVAL, with the
specific intent to inflict such injury, did personally inflict
great bodily injury on Manuel Torres, within the meaning of
Penal Code Section 12022.7 to be TRUE.
FILED
FEB 12 1987
FRANK S. ZOLIN, COUNTY CLERK
/S/
BY S. LIEBLICH DEPUTY
This 11th day of FEBRUARY 1987. /S/
Foreman
VERDICT (Guilty)
76V210 (Rev. 11-81) 6-85
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
| CASE NUMBER
The People of the | A760386
State of California | DEPARTMENT
| NUMBER
| 116
PLAINTIFF(S) |
VS. |
|
SANDOVAL, ALFRED | XXXXXXXXXXXXXX
ARTHUR |
| SPECIAL CIRCUMSTANCE
DEFENDANT(S) | FINDING
|
We, the Jury in the above-entitled action, find the XXXXX
XX XX special circumstance alleged inthe information, to wit,
that the defendant, ALFRED ARTHUR SANDOVAL, was
convicted in this trial of multiple murder _ within the meaning of
Penal Code Section 190.2(a)(3) to be TRUE.
True/Not True
FILED
FEB. 12 1987
FRANK S. ZOLIN, COUNTY CLERK
/S/
BY S. LIEBLICH DEPUTY
This 12th day of February 1987. /S/
Foreman
SPECIAL CIRCUMSTANCE FINDING
76V210 (Rev. 11-81) 6-85
Ay CITT ee = — ——
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
DEPT. 116
Date: FEBRUARY 12, 1987 || S LIEBLICH
|| Deputy Clerk
HONORABLE: | GHALL Reporter
RICHARD P. KALUSTIAN JUDGE
J RAMSEY Deputy Sheriff
A760386 (Parties and counsel checked if present)
PEOPLE OF THE Counsel for People:
STATE OF CALIFORNIA DEPUTY DISTRICT ATTY:
VS. D. MILTON
01 SANDOVAL ALFRED Counsel for Defendant:
ARTHUR M KOPPLE/S APPLEBAUM
18704CTS 664/187 01CT
NATURE OF JURY TRIAL REM 1-17-85
PROCEEDINGS
Trial resumes from February 11, 1987 with all jurors present as
heretofore.
Jury deliberations resume at 7:50 a.m.
At 8:40 a.m. the jury returns into the courtroom in the presence
of defense counsel Kopple (all other counsel and the defendant
were not present) with a written request to view exhibits D, E,
and F. The Court answered the request by stating that the
requested exhibits were not admitted in evidence.
At 8:43 a.m. jury deliberations continue.
At 1:36 p.m. the jury returns into the courtroom in the presence
of all counsel and the defendant with the following verdicts as
to Counts 1, 2 and 5 and the special circumstance finding:
“TITLE OF COURT AND CAUSE: We, the Jury in
the above-entitled action, find the Defendant
ALFRED ARTHUR SANDOVAL guilty ofthe crime
of MURDER, in violation of Section 187, Penal
Code, a felony, as charged in Count 1 of the
information and further find it to be MURDER of the
first degree.
And further find the allegation that in the commission
and attempted commission of the above offense the
said defendant, ALFRED ARTHUR SANDOVAL,
personally used a firearm, to wit, a handgun, within
the meaning of PENAL CODE SECTION 12022.5 to
be True.
This 11th day February, 1987, Juli B. Juras, Foreman
“TITLE OF COURT AND CAUSE: We, the jury in
the above-entitled action, find the Defendant
ALFRED ARTHUR SANDOVAL guilty of the crime
of MURDER, in violation of Section 187, Penal
Code, a felony, as charged in Count 2 of the
information and further find it to be MURDER OF
the first degree.
And further find the allegation that in the commission
and attempted commission of the above offense the
said Defendant,
PAGE 1 OF 3 REM
MINUTES ENTERED
1-12-87
COUNTY CLERK
MINUTE ORDER
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
DEPT. 116
Date: FEBRUARY 12, 1987 || S LIEBLICH
|| Deputy Clerk
HONORABLE: || GHALL Reporter
RICHARD P. KALUSTIAN
JUDGE
J RAMSEY Deputy Sheriff
A760386 (Parties and counsel checked if present)
PEOPLE OF THE Counsel for People:
STATE OF CALIFORNIA DEPUTY DISTRICT ATTY:
VS. D. MILTON
01 SANDOVAL ALFRED Counsel for Defendant:
ARTHUR M KOPPLE/S APPLEBAUM
187 04CTS 664/187 01CT
NATURE OF JURY CONTINUED REM 1-17-85
PROCEEDINGS TRIAL FROM PAGE 1
ALFRED ARTHUR SANDOVAL, personally used a
firearm, to wit, a handgun, within the meaning of PENAL
CODE SECTION 12022.5 to be true.
This 11th day of February, 1987, Juli Juras, Foreman
“TITLE OF COURT AND CAUSE: We, the Jury in the
above-entitled action, find the Defendant ALFRED
ARTHUR SANDOVAL guilty of the crime of
ATTEMPTED MURDER, in violation of Section 664/187,
Penal Code, a felony, as charged in count 5 of the
information.
10
And further find the allegation that in the commission and
attempted commission of the above offense the said
defendant, ALFRED ARTHUR SANDOVAL, personally
used a firearm, to wit, a handgun, within the meaning of
Penal Code Section 12022.5 to be true.
And further find the allegation that in the commission and
attempted commission of the above offense the said
defendant ALFRED ARTHUR SANDOVAL, with the
specific intent to inflict such injury, did personally inflict
great bodily injury on Manuel Torres, within the meaning
of Penal Code Section 12022.7 to be true.
This 11th day of February 1987, Juli B. Juras, Foreman.
“TITLE OF COURT AND CAUSE: We, the Jury in the
above-entitled action, find the special circumstance alleged
in the information, to wit, that the defendant, ALFRED
ARTHUR SANDOVAL, was convicted in this trial of
multiple murder within the meaning of Penal Code
Section 190.2 (a) (3) to be true.
This 12th day of February, 1987, Juli Juras,
Foreman”
The verdict is read; re-reading as recorded is waived. The jury
is polled as to each verdict and the special circumstance finding,
respectively. All twelve jurors answer in the affirmative as to
each verdict and the special circumstance finding, respectively.
PAGE 2 OF 3 REM MINUTES ENTERED
2-12-87
COUNTY CLERK
MINUTE ORDER
oO
11
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
DEPT. 116
Date: FEBRUARY 12, 1987 || S LIEBLICH
|| Deputy Clerk
HONORABLE: || GHALL Reporter
RICHARD P.KALUSTIAN JUDGE
J RAMSEY Deputy Sheriff
A760386 (Parties and counsel checked if present)
PEOPLE OF THE Counsel for People:
STATE OF CALIFORNIA DEPUTY DISTRICT ATTY:
VS. D. MILTON
01 SANDOVAL ALFRED Counsel for Defendant:
ARTHUR M KOPPLE/S APPLEBAUM
187 O4CTS 664/187 01CT
NATURE OF JURY TRIAL REM 1-17-85
PROCEEDINGS
All verdict forms submitted to the jury as to counts 1, 2 and 5
and the special circumstance finding are filed.
At 2:47 p.m. the jury is admonished and trial is continued ‘or
further deliberations on the remaining counts to February 17,
1987 at 7:45 a.m. in this department. The defendant is ordered
to return.
MINUTES ENTERED
PAGE 3 OF 3 REM 2-17-87
COUNTY CLERK
MINUTE ORDER
12
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES FILED
FEB 23 1987
FRANK S. ZOLIN
COUNTY CLERK
BY: /S/
DEPUTY
CASE NUMBER
A760386
DEPARTMENT
NUMBER
116
The People of the
State of California
VS.
SANDOVAL, ALFRED
ARTHUR
|
|
|
|
|
PLAINTIFF(S) |
|
|
| | VERDICT (Guilty)
|
|
DEFENDANT(S) |
|
We, the jury in the above-entitled action, find the Defendant
ALFRED ARTHUR SANDOVAL guilty of the crime of
MURDER, in violation of Section 187, Penal Code, a felony, as
charged in Count 3 of the information and further find it to be
MURDER of the First degree.
first/second
And further find the allegation that in the commission and
attempted commission of the above offense the said
defendant, ALFRED ARTHUR SANDOVAL, personally
used a firearm, to wit, a handgun, within the meaning of
PENAL CODE SECTION 12022.5 to be TRUE.
True/Not True
This 23rd day of February 1987 /S/
VERDICT (Guilty) Foreman
Bd
13
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES FILED
FEB 23 1987
FRANK S. ZOLIN
COUNTY CLERK
BY: /S/
DEPUTY
| CASE NUMBER
The People of the | A760386
State of California | DEPARTMENT
| NUMBER
| 116
PLAINTIFF(S) |
VS. |
|
SANDOVAL, ALFRED | | VERDICT (Guilty)
ARTHUR |
|
DEFENDANT(S) |
|
We, the jury in the above-entitled action, find the Defendant
ALFRED ARTHUR SANDOVAL guilty of the crime of
MURDER, in violation of Section 187, Penal Code, a felony, as
charged in Count 4 of the information and further find it to be
MURDER of the First degree.
first/second
And further find the allegation that in the commission and
attempted commission of the above offense the said
defendant, ALFRED ARTHUR SANDOVAL, personally
used a firearm, to wit, a handgun, within the meaning of
PENAL CODE SECTION 12022.5 to be TRUE.
True/Not True
This 23rd day of February 1987 /S/
VERDICT (Guilty) Foreman
14
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
DEPT. 116
Date: FEBRUARY 12, 1987 || S LEFF Deputy Clerk
I
HONORABLE: || GHALL Reporter
RICHARD P. KALUSTIAN ||
JUDGE |
J RAMSEY Deputy Sheriff ||
A760386 (Parties and counsel checked if present)
PEOPLE OF THE Counsel for People:
STATE OF CALIFORNIA DEPUTY DISTRICT ATTY:
VS. D. MILTON
01 SANDOVAL ALFRED Counsel for Defendant:
ARTHUR M KOPPLE/S APPLEBAUM
18704CTS 664/187 01CT
NATURE OF JURY TRIAL REM 1-17-85
PROCEEDINGS
At 7:55 am, deliberations resume from 2/20/87 with all jurors
present as heretofore.
The jury takes their morning break from 9:35 am to 10:00 am
From 11:30 am to 1:00 pm, the jury takes their lunch break.
At 1:13 pm, the jury returns into the court with the following
verdicts:
“TITLE OF COURT AND CAUSE
We, the Jury in the above-entitled action, find the Defendant
ALFRED ARTHUR SANDOVAL guilty of the crime of
MURDER, in violation of Section 187 Penal Code, a felony, as
charged in Count 3 of the information and further find it to be
aw ne Min Vee
Oe ee eee ee
15
MURDER of the first degree.
And further find the allegation that in the commission and
attempted commission of the above offense the said defendant,
ALFRED ARTHUR SANDOVAL, personally used a firearm,
to wit, a handgun, within the meaning of PENAL CODE
SECTION 12022.5 to be true.
This 23rd day of February 1987, Juli Juras, Foreman”.
“TITLE OF COURT AND CAUSE
We, the Jury in the above-entitled action, find the Defendant
ALFRED ARTHUR SANDOVAL guilty of the crime of
MURDER, in violation of Section 187, Penal Code, a felony, as
charged in Count 4 of the Information and further find it to be
MURDER of the first degree.
And further find the allegation that in the commission and
attempted commission of the above offense the said defendant,
ALFRED ARTHUR SANDOVAL, personally used a firearm,
to wit, a handgun, within the meaning of PENAL CODE
SECTION 12022.5 to be true.
This 23rd day of February 1987, Juli Juras, Foreman.”
The verdicts are read. The jury is polled as to each count and
all jurors answer in the affirmative. The verdicts are recorded;
re-reading as recorded is not waived. The clerk re-reads the
verdicts as recorded. Instructions given and refused
Page | of 2 pages MINUTES ENTERED
2/23/87
COUNTY CLERK
MINUTE ORDER
16
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
DEPT. 116
Date: 2/23/87 || S LEFF Deputy Clerk
|
HONORABLE: || GHALL Reporter
RICHARD P. KALUSTIAN ||
JUDGE |
J RAMSEY Deputy Sheriff ||
A760386 (Parties and counsel checked if present)
PEOPLE OF THE Counsel for People:
STATE OF CALIFORNIA DEPUTY DISTRICT ATTY:
VS.
01 SANDOVAL ALFRED Counsel for Defendant:
ARTHUR
187 04cts 664/187 01CT
NATURE OF CONTD JURY REM. _ 1/17/85
PROCEEDINGS FROM PAGE TRIAL
ONE
and all verdict forms as to Counts 3 and 4 are filed.
Penalty phase is set to commence 3/2/87, 9am, and the jury is
directed to return as the above date and time.
Defendant’s motion is set to be heard 2/24/87, 9am, this
department.
Page 2 of 2 pages
REMANDED
MINUTES ENTERED
2/23/87
COUNTY CLERK
MINUTE ORDER
scacenrneeptonmnn ssn
APPENDIX B
a EEE EEDA DET EE EEE Ee
17
: SUPERIOR COURT OF CALIFORNIA,
‘ COUNTY OF LOS ANGELES
FILED
MAR 19 1987
FRANK S. ZOLIN
COUNTY CLERK
BY:M. LeJEAL DEPUTY
| |CASENUMBER
The People of the | A760386
State of California | DEPARTMENT
| | NUMBER
| 116
PLAINTIFF(S) |
VS. |
|
SANDOVAL, ALFRED | VERDICT (Guilty)
ARTHUR | (LIFE WITHOUT THE
| POSSIBILITY OF PAROLE)
DEFENDANT(S) |
We, the jury in the above-entitled action, find in COUNT IL of
the information involving Gilbert Martinez that the appropriate
punishment to be imposed_on the Defendant, ALFRED
ARTHUR SANDOVAL, is the sentence of confinement in the
State Prison for life without the possibility of parole.
This 19th day of March 1987. /S/
Foreman
VERDICT
18
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
FILED
MAR 19 1987
FRANK S. ZOLIN
COUNTY CLERK
BY:M. LeJEAL
DEPUTY
CASE NUMBER
A760386
DEPARTMENT
NUMBER
116
The People of the
State of California
VS.
VERDICT
(LIFE WITHOUT THE
| POSSIBILITY OF PAROLE)
DEFENDANT(S) |
|
SANDOVAL, ALFRED
|
|
|
|
|
PLAINTIFF(S) |
|
|
|
ARTHUR |
We, the jury in the above-entitled action, find in COUNT IL
of the information involving Anthony Aceves that the
appropriate punishment to be imposed on the Defendant,
ALFRED ARTHUR SANDOVAL, is the sentence of
confinement in the State Prison for life without the possibility
of parole.
This 19th day of March 1987, /S/
Foreman
VERDICT
Ne AK BAN ene
pene Uh MALIK Mili itn lle ret Nel
19
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
FILED
MAR 19 1987
FRANK S. ZOLIN
COUNTY CLERK
BY:M. LeJEAL DEPUTY
| CASE NUMBER
The People of the | . A760386
State of California | DEPARTMENT
| NUMBER
| 116
PLAINTIFF(S) |
VS. |
|
SANDOVAL, ALFRED | VERDICT
ARTHUR | (LIFE WITHOUT THE
| POSSIBILITY OF PAROLE)
DEFENDANT(S) |
|
We, the jury in the above-entitled action, find in COUNT Il
of the information involving Raymond Wells that the
appropriate punishment to be imposed on the Defendant,
ALFRED ARTHUR SANDOVAL, is the sentence of
confinement in the State Prison for life without the possibility
of parole.
This 19th day of March 1987, /S/
Foreman
VERDICT
20
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
FILED
MAR 19 1987
FRANK S. ZOLIN
COUNTY CLERK
BY:M. LeJEAL DEPUTY
| CASE NUMBER
The People of the | A760386
State of California | DEPARTMENT
| NUMBER
| 116
PLAINTIFF(S) |
VS. |
|
SANDOVAL, ALFRED | VERDICT
ARTHUR | (DEATH)
|
DEFENDANT(S) |
|
We, the Jury in the above-entitled action, find in COUNT IV
of the information involving Marlene Wells that the
appropriate punishment to be imposed on the Defendant,
ALFRED ARTHUR SANDOVAL, is the sentence of death.
This 19th day of March 1987, /S/
Foreman
VERDICT
ee oe ee Ser te) Wee ae
21
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
DEPT. 116
Date: March 19, 1987 || M LE JEAL Deputy Clerk
HONORABLE: || GHALL Reporter
RICHARD P. KALUSTIAN ||
JUDGE |
R ROBLEDO Deputy Sheriff ||
A760386 (Parties and counsel checked if present)
PEOPLE OF THE Counsel for People:
STATE OF CALIFORNIA DEPUTY DISTRICT ATTY:
VS. D. MILTON
01 SANDOVAL, ALFRED Counsel for Defendant:
ARTHUR M KOPPLE/S APPLEBAUM
187 04 cts; 664/187 01 ct
NATURE OF JURY (PENALTY REM 1-17-85
PROCEEDINGS TRIAL PHASE)
At 7:45 a.m. the jury resumes deliberations with all members
present.
At 9:30 a.m. the jury announces through the Bailiff they have
reached a verdict. Verdicts are sealed, counsel are notified and
jury is excused pending the attorney’s arrival.
At 12:00 all counsel, defendant and jurors are present. Sealed
verdicts are opened by Court and the following verdicts are
ready by the Clerk:
“TITLE OF COURT AND CAUSE
We, the Jury in the above-entitled action, find in Count I of the
Information involving Gilbert Martinez that the appropriate
22
punishment to be imposed on the Defendant, ALFRED
ARTHUR SANDOVAL, is the sentence of confinement in the
State Prison for life without possibility of parole.
This 19th day of March, 1987, Julieanne B. Juris, Foreman.”
“TITLE OF COURT AND CAUSE
We, the Jury in the above-entitled action, find in Count II of the
Information involving Anthony Aceves that the appropriate
punishment to be imposed on the Defendant, FRED
ARTHUR SANDOVAL, is the sentence of confinement in the
State Prison for life without the possibility of parole.
This 19th day of March, 1987, Julieanne B. Juris, Foreman.”
“TITLE OF COURT AND CAUSE
We, the Jury in the above-entitled action, find in Count III of
the Information involving Raymond Wells that the appropriate
punishment to be imposed on the Defendant, ALFRED
ARTHUR SANDOVAL, is the sentence of confinement in the
State Prison for life without the possibility of parole.
This 19th day of March, 1987, Julieanne B. Juris, Foreman.”
“TITLE OF COURT AND CAUSE
We, the Jury in the above-entitled action, find in Count IV of
the Information involving Marlene Wells that the appropriate
punishment to be imposed on the Defendant, ALFRED
ARTHUR SANDOVAL, is the sentence of Death.
This 19th day of March , 1987, Julieanne B. Juris, Foreman.”
PAGE ONE OF TWO PAGES
MINUTES ENTERED
rem 3-19-87
COUNTY CLERK
MINUTE ORDER
he Aedrhaey” ol ta Be, IM ilies
cls Aa RS AR ae IE Deln 2b i0a)as, Lteae
eee ee
jury is polled as to Count IV, with all jurors answering in the
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
DEPT. 116
Date: March 19, 1987 || M. LE JEAL Deputy Clerk
|
HONORABLE: || GHALL Reporter
RICHARD P. KALUSTIAN ||
JUDGE |
R ROBLEDO Deputy Sheriff ||
A760386 (Parties and counsel checked if present)
PEOPLE OF THE Counsel for People:
STATE OF CALIFORNIA DEPUTY DISTRICT ATTY:
VS. D. MILTON
01 SANDOVAL, ALFRED Counsel for Defendant:
ARTHUR M KOPPLE/S APPLEBAUM
187 04 cts; 664/187 01 ct
NATURE OF JURY (PENALTY REM 1-17-85
PROCEEDINGS TRIAL PHASE)
Polling of the jury is waived as to Counts I, II and III and the
affirmative. Reading of the verdicts as recorded is waived. All
verdict forms, used and unused are filed. Instructions given and
refused are filed. The jury is thanked and discharged.
Matter is continued for Sentencing hearing on May 15, 1987 in
Department “P” Norwalk. Defendant is ordered to return.
PAGE TWO OF TWO PAGES
MINUTES ENTERED
rem 3-19-87
COUNTY CLERK
MINUTE ORDER
i
APPENDIX C
24
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
DEPT.SE P
Date: June 30, 1987 || J. DOMCIK Deputy Clerk
|
HONORABLE: ||G.HALL Reporter
RICHARD P. KALUSTIAN §|| ;
JUDGE |
R. ALLEN _ Deputy Sheriff ||
A760386 (Parties and counsel checked if present)
PEOPLE OF THE Counsel for People:
STATE OF CALIFORNIA DEPUTY DISTRICT ATTY:
VS. D. MILTON
01 SANDOVAL ALFRED Counsel for Defendant:
ARTHUR M KOPPLE/
187.A 04 cts; 664/187 01 cts S APPLEBAUM
NATURE OF PROCEEDINGS REM
JUDGMENT AND SENTENCING
Hearing on Defense motion for New Trial is called. The motion
is argued and denied as further reflected in the official notes of
the court reporter.
Hearing on Defense motion to modify Verdict of Death is
called. The motion is argued and denied as further reflected in
the official notes of the court reporter.
The Court orders that a new Probation Report be prepared
deleting lines 10-12, 15-22 on page 16 of the present report
dated 6-22-87.
The defendant having been found guilty of Section 187.A
25
Penal Code and one of the circumstances pursuant to Section
190.2(a)(3) Penal Code having been found true in the manner
prescribed by law, the defendant is sentenced to DEATH, as to
Count IV, MURDER IN THE FIRST DEGREE.
Counts I, II, III, each a violation of Penal Code Section 187.A,
The defendant is sentenced to LIFE IN STATE PRISON
without the possibility of parole.
Count V, a violation of Penal Code Section 664/187.A, The
defendant is sentenced to the High term of 9 years in State
Prison, plus 3 years in State Prison as to the Great Bodily Injury
Allegations, for a total of 12 years State Prison.
The State Prison sentence in Counts I, II, III, and V is
permanently stayed upon the execution of sentence imposed in
Count IV.
The Sheriffis ordered to transport the defendant to State Prison,
to be held pending the decision upon his appeal.
The Commitment Judgment of Death is read and executed by
the Court in open court and attested to by the clerk under seal
of the court. Defendant is advised of automatic appeal.
REMANDED
MINUTES ENTERED
SEP 06-30-87
COUNTY CLERK
MINUTE ORDER
CO ies es
)
26
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
FILED
JUN 30 1987
FRANK S. ZOLIN,
COUNTY CLERK
By: /S/
DEPUTY
PEOPLE OF THE STATE ) NO. A760386
OF CALIFORNIA, ) COMMITMENT
) JUDGEMENT OF
Plaintiff, ) DEATH
V. )
ALFRED ARTHUR ) DEPARTMENT
SANDOVAL, ) SOUTHEAST P
)
Defendant(s) )
TO THE SHERIFF OF LOS ANGELES COUNTY AND
TO THE WARDEN OF THE STATE PRISON OF THE
STATE OF CALIFORNIA AT SAN QUENTIN:
BE IT REMEMBER that on the 22nd day of June, 1985,
an Information number A760386 was duly filed against the
defendant, ALFRED ARTHUR SANDOVAL, by the District
Attorney of Los Angeles County, charging said defendant with
the crimes of:
Count I: The murder of Gilbert Martinez on the 14th day
of October, 1984 in violation of Penal Code Section 187.
Count II: The murder of Anthony Aceves on the 14th day
of October, 1984 in violation of Penal Code Section 187.
Count III: The murder of Ray Wells on the 31st day of
October, 1984 in violation of Penal Code Section 187.
Count IV: The murder of Marlene Wells on the 31st day
27
of October, 1984 in violation of Penal Code Section 187.
Count V: The attempted murder of Manuel Torres on the
14th day of October, 1984 in violation of Penal Code Section
664/187.
It is further alleged that during the commission of Count
V the defendant, ALFRED ARTHUR SANDOVAL, personally
inflicted great bodily injury upon Manuel Torres within the
meaning of Penal Code Section 12022.7.
It is further alleged that during the commission of the
above offenses in Count I, II, III, IV and V, the defendant,
ALFRED ARTHUR SANDOVAL, personally used a firearm
to wit, a handgun, within the meaning of Penal Code Section
12022.5.
It is further charged and alleged that the above murders in
Count |, II, II] and IV were committed under the following
special circumstances, to wit: the defendant, ALFRED
ARTHUR SANDOVAL, has in this proceeding been convicted
of more than one offense of murder in the first or second degree
within the meaning of Penal Code Section 190.2 (a)(3).
It is further alleged that said defendant, ALFRED
ARTHUR SANDOVAL, was on or about the 25th day of
September, 1979, in the Superior Court of the State of
California, for the County of Los Angeles, convicted of a
violent felony, to wit, Assault With Intent to Murder, case
A524411, the he then served a separate term in State Prison for
said offense, and that he did not remain free of prison custody
for and did commit an offense resulting in a felony conviction
during, a period of five years subsequent to the conclusion of
said term, within the meaning of Penal Code Section 667(a),
667.5(a) and 1203 (e)(5).
Thereafter, defendant was duly arraigned, entered a plea of
not guilty to all charges, denied the prior conviction and the
special circumstances as set forth in the Information.
Thereafter, on October 28, 1986, the defendant and his
attorneys being present, the case came on for trial and the
selection of the jury was commenced.
28
Thereafter, evidence was duly presented to the trial jury as
to the issues raised by the defendant’s plea of not guilty, and his
denial of the special circumstances in the Information.
Thereafter, after the defense and prosecution concluded the
presentation of evidence, argument was made to said trial jury
by the prosecution and defense, and the court instructed said
trial jury as to the law applicable to the case.
Thereafter, on February 12, 1987 the jury returned verdicts
on Counts I, II and V as follows: Guilty on all counts; murders
to be in the first degree; true on all enhancements and speciai
circumstances found to be true.
Thereafter, on February 23, 1987 the jury returned verdicts
on Counts III and IV as follows: Guilty on both counts, murders
to be in the first degree; true on all enhancements.
Thereafter, the defendant, ALFRED ARTHUR
SANDOVAL, admitted as true the prior felony conviction
alleged pursuant to Penal Code Section 667(a), 667.5(a) and
1203(e)(5).
Thereafter, commencing on March 2, 1987 pursuant to
Penal Code Section 190.3, evidence was presented on behalf of
both the prosecution and the defense as to evidence in
aggravation and mitigation in regard to the proper penalty.
Thereafter, following arguments of all counsel and instructions
of law by the court, the said jury, on March 19, 1987, did return
a finding on each of the four murder counts as follows:
CountI: Confinement in the state prison for Life Without
the Possibility of Parole.
Count II: Confinement in the state prison for Life Without
the Possibility of Parole.
Count III: Confinement in the state prison for Life Without
the Possibility of Parole.
Count IV: Death.
Thereafter, on June 30, 1987 the defendant’s motion for a
new trial and for modification of the verdict and finding
imposing the death penalty were heard by the court and said
motions were denied, whereupon on June 30, 1987 the
29
defendant’s counsel stated there was no legal cause why
sentence should not be pronounced and the court pronounced
judgment as follows:
ALFRED ARTHUR SANDOVAL, it is the judgment and
sentence of this court for the offense of murder of victim
Marlene Wells as charged in Count IV of the information of
which you previously, to wit, on February 23, 1987, were
found guilty, the jury having found the offense of murder to be
the first degree and the jury having returned a finding that the
special circumstances alleged in the information under
California Penal Code Section 190.2(a)(3) were true; and the
jury having previously, to wit, on March 19, 1987 found that
the penalty shall be death; and this court having, on June 30,
1987 denied your motion for a new trial and application for
modification of verdict and finding imposing the death penalty;
it is the order of this court that you shall suffer the death
penalty, it is the order of this court that you shall suffer the
death penalty, said penalty to be inflicted within the walls of the
state prison at San Quentin, California, m the manner presented
by law and at a time to be fixed by this court in the warrant of
execution.
ALFRED ARTHUR SANDOVAL, it is the judgment and
sentence of this court for the offenses of murder of victims
Gilbert Martinez and Anthony Aceves as charged in Counts I
and II, respectively, of the Information of which you previously,
to wit, on February 12 1987, were found guilty, and for the
offense of murder of victim Ray wells as charged in Count II of
the Information of which you previously, to wit, on February
23, 1987, were found guilty, the jury having found the special
circumstances to be true and this court having, on June 30,
1987, denied your motion for new trial and application for
modification of verdict; it is the order of this court that you
shall suffer confinement in the state prison for Life Without the
Possibility of Parole; and for the attempted murder of Manuel
Torres with personal use of a firearm and personal infliction of
great bodily injury as charged in Count V of the Information of
eB Ne AS A tee Tita Nt ANS Ang Pt AS le ns 8
ee se ec
rs ee ee ne a
30
which you previously have been convicted on February 12,
1987, it is the order of this Court that you shall suffer a term of
9 years in state prison.
Such sentences, imposed on Counts I, II, III and V, to be
permanently stayed after execution of the sentence of death
imposed on Count IV for the murder of Marlene Wells.
ALFRED ARTHUR SANDOVAL, you are remanded to
the care, custody and control of the Sheriff of Los Angeles
County to be by him delivered to the warden of the State
Penitentiary at San Quentin, California, within 10 days from the
date hereof, in the usual course of his duties for the execution
of the sentence of the offenses of murder in the first degree
contained in the Information of which you have been found
guilty and the special circumstanced having been found to be
true, to be held by him pending the final determination of your
appeal in this matter, which is automatic, and said sentence to
be executed upon final determination of said appeal, and you
are to be held by him during said period of time, until further
order of this court. It is so ordered.
Therefore, this is to command you, the Sheriff of said
County of Los Angeles as provided in said judgment, to take
ALFRED ARTHUR SANDOVAL to the State Prison of the
State of California, and deliver him into the custody of the
warden of the said state prison; and this
FURTHER, is to command you, the Warden of the State
Prison of the State of California, at San Quentin, California, to
hold in your custody, the said ALFRED ARTHUR
SANDOVAL, pending the decision of this cause on appeal, and
upon the judgment herein becoming final, to carry into effect
the judgment of said court at a time and ona date to be hereafter
fixed by order of this court, with the State Prison, at which time
and place you shall then and there put to death the said
ALFRED ARTHUR SANDOVAL in the manner and means
prescribed by law.
In Witness Whereof, I have hereunto set my hand as Judge
of the said Superior Court, and have caused the seal of the said
31
court to be affixed hereto.
Dated, this 30th day of June
(SEAL) SUPERIOR COURT
OF THE LOS ANGELES
/S/ COUNTY
CLERK OF THE SUPERIOR COURT CALIFORNIA
Dated, this 30th day of June, 1987.
(SEAL)
SUPERIOR COURT OF
THE LOS ANGELES COUNTY
CALIFORNIA
RICHARD P. KALUSTIAN
JUDGE OF THE SUPERIOR COURT
APPENDIX D
32
THE PEOPLE, Plaintiff and Respondent,
v.
ALFRED ARTHUR SANDOVAL, Defendant and
Appellant.
No. $004765. Crim. No. 26405.
Supreme Court of California
Dec 14, 1992.
SUMMARY
Defendant was convicted of four counts of first degree murder
(Pen. Code, § 187), with a _ multiple-murder
special-circumstance finding (Pen. Code, § 190.2, subd. (a)(3)),
and one count of attempted murder (Pen. Code, §§ 187, 664).
The jury also found that defendant had personally used a
firearm in the commission of each offense (Pen. Code, §
12022.5). Defendant had fatally shot two men and had wounded
another man during a gang-related confrontation in a park, and
had fatally shot a man and a woman in their home
approximately two weeks later. The jury returned a verdict of
death for the murder of the woman, and verdicts of life
imprisonment without possibility of parole for the murders of
the three men. (Superior Court of Los Angeles County, No.
A760386, Richard P. Kalustian, Judge.)
The Supreme Court affirmed the judgment. As to guilt phase
issues, the court held that the trial court did not err in denying
defendant's motion to sever, in admitting evidence of
defendant's gang affiliation, or in excluding evidence of the
alleged culpability of third parties. The court also held that
defendant's prior conviction of assault with intent to commit
murder was properly admitted for impeachment, and that the
33
trial court properly refused to rule, in advance of defendant's
testimony, on his request to limit the scope of
cross-examination. The court further held that the prosecutor
did not commit misconduct in cross-examining a defense expert
as to his bias and suggesting to the jury that the expert was a
liar, but that the prosecutor did engage in nonprejudicial
misconduct by denigrating defense counsel during closing
argument.
As to the penalty phase, the court held that the prosecutor did
not improperly cross-examine a defense witness concerning
defendant's gang membership, and that the trial court did not err
in refusing to give defendant's proposed instruction that age
could be considered only as a mitigating factor. The prosecutor
did not engage in misconduct, the court held, when he argued
the effect of defendant's crimes on the victims and their
families, but *156 did engage in nonprejudicial misconduct by
paraphrasing a biblical passage in support of the death penalty.
The court further held that the trial court did not abuse its
discretion in refusing to declare a mistrial due to jury deadlock,
or in requiring a separate penalty verdict as to each murder
victim. (Opinion by Panelli, J., with Lucas, C. J., Kennard,
Arabian, Baxter and George, JJ., concurring. Separate
concurring and dissenting opinion by Mosk, J.)
HEADNOTES
Classified to California Digest of Official Reports
(1) Criminal Law § 202--Trial--Separate Trials on Different
Counts-- Severance Motion--Factors.
When the requirements of Pen. Code, § 954 (joinder and
severance of criminal charges), for joinder of different offenses
are satisfied, a defendant can predicate error on the trial court's
refusal to sever charges only by making a clear showing that
there is a substantial danger of prejudice requiring that the
charges be separately tried. The determination of prejudice is
dibasic Jaana
my
Stith tas te Petal € ha <I, Sahai. iy.
ity
ree ae ee
34
necessarily dependent on the particular circumstances of each
individual case, but certain criteria have emerged to provide
guidance in ruling upon and reviewing a severance motion.
Refusal to sever may be an abuse of discretion where: (1)
evidence on the crimes to be jointly tried would not be
cross-admissible in separate trials; (2) certain of the charges are
unusually likely to inflame the jury against the defendant; (3) a
"weak" case has been joined with a "strong" case, or with
another "weak" case, so that the "spillover" effect of aggregate
evidence on several charges might well alter the outcome of
some or all of the charges; and (4) any one of the charges
carries the death penalty or joinder of them turns the matter into
a capital case.
(2) Criminal Law § 202--Trial--Separate Trials on Different
Counts-- Multiple Murder Charges Arising From Different
Incidents.
In a capital homicide prosecution involving four alleged
murders committed on two different occasions, the trial court
did not err in denying defendant's motion to sever (Pen. Code,
§ 954). The fact that the evidence concerning the two incidents
may not have been cross-admissible was merely one factor
suggesting possible prejudice, and, while defendant alleged that
the evidence concerning one incident was far weaker than that
concerning the other, the prosecutor had represented to the trial
court that there would be testimony at trial linking the two
incidents and adding significantly to the strength of the weaker
case. The inflammatory effect of evidence of defendant's gang
membership *157 as to one incident was neutralized by the fact
that the victims in that incident were also gang members.
Moreover, the case was not one in which the capital charges
resulted solely from the joinder of the two incidents. Finally,
while defendant may have desired to testify only as to one
incident, he did not explain the nature of his testimony or why
he wanted to give testimony only in one case.
35
(3) Criminal Law § 649--Appellate Review--Harmless and
Reversible Error-- Particular Errors--Trial--Denial of Severance
Motion.
When a criminal defendant, on an appeal following trial, raises
an issue as to the trial court's denial of a motion to sever
multiple charges for trial (Pen. Code, § 954), the reviewing
court must consider whether, despite the correctness of the trial _
court's ruling, a gross unfairness has occurred from the joinder,
so as to deprive the defendant of a fair trial or due process of
law.
(4) Homicide § 40--Evidence--Admissibility--Evidence of
Gang Membership-- Relevance.
In a capital homicide prosecution, the trial court did not err in
admitting evidence of defendant's gang affiliation, which
established that defendant and the victims had been members of
rival gangs. The fact that the gangs purportedly had been at
peace for seven years did not eliminate gang retaliation as a
motive for defendant's crimes. On the contrary, such retaliation
appeared to have been the only plausible motive, in that the
gang of which defendant had been a member had considered a
certain park to be its territory, and defendant's victims, who had
been members of a rival gang, had been shot in that park,
without any other provocation.
[Admissibility of evidence of accused's membership in gang,
note, 39 A.L.R.4th 775.]
(Sa, Sb) Homicide § 40--Evidence--Admissibility--Third Party
Culpability.
In a capital homicide prosecution, the trial court did not err in
excluding, pursuant to Evid. Code, § 352 (trial court's discretion
to exclude evidence), evidence of the alleged culpability of third
parties, where, although the defense argued that one of the
victims had been the center of a violent criminal operation and
that any number of accomplices or rivals could have killed him,
there was no evidence of another person's actual motive to
commit the crimes. The defense had merely—raised the
possibility that others had such a motive, and, while it did
identify two persons with plausible motives, there was no
evidence linking those persons to the actual perpetration of the
crimes.
(6) Criminal Law § 292--Evidence--Admissibility--Claims and
Defenses of Accused--Third Party Culpability.
A criminal defendant *158 has a right to present evidence of
the alleged culpability of a third party if it is capable of raising
a reasonable doubt about the defendant's own guilt. That rule,
however, does not require that any evidence, however remote,
must be admitted to show a third party's possible culpability.
Evidence of another person's mere motive or opportunity to
commit the crime, without more, will not suffice to raise a
reasonable doubt about the defendant's guilt. Rather, there must
be direct or circumstantial evidence linking the third person to
the actual perpetration of the crime.
(7) Homicide § $8--Evidence--Admissibility--Documentary
Evidence--Entire Writing to Explain Part. ee
In a capital homicide prosecution in which defendant alleged
that one of the victims had been the center of a violent criminal
operation and that any number of accomplices or rivals could
have killed him, the trial court properly excluded evidence
consisting of an appointment book and weekly planners found
in the victim's home, even though the prosecution had been
permitted to introduce two slips of paper, bearing defendant's
nickname and another name, which had been found clipped to
the appointment book. Evid. Code, § 356, does provide that
where part of an act, declaration, conversation, or writing is
given in evidence, then any other act, declaration, conversation,
or writing that is necessary to make it understood may also be
given in evidence. The book and the weekly planners, however,
were not part of a writing given in evidence by the prosecution,
37
and were not necessary to an understanding of the slips of
paper.
[See 1 Witkin, Cal. Evidence (3d ed. 1986) §§ 319-320.]
(8) Criminal Law § 308--Evidence--Admissibility--Evidence
of Other Crimes or Misconduct--Exceptions to Rule of
Inadmissibility--Impeachment--Prior Conviction Involving
Moral Turpitude.
In a capital homicide prosecution, the trial court did not err in
ruling that defendant's prior conviction of assault with intent to
commit murder was admissible for impeachment purposes,
where the trial court followed the analysis of a prior California
Supreme Court decision interpreting Cal. Const., art. § 28, subd.
(f), and properly concluded that defendant's prior conviction
involved moral turpitude, and then exercised its discretion
under Evid. Code, § 352, to conclude that the probative value
of the evidence outweighed its prejudicial effect. The trial court
did note that it could not assess the impact of the prior
conviction on defendant's testimony because no offer of proof
as to that testimony had been made. It did not, however, state
that such an offer of proof was required. In fact, it noted that
California law did not require such an offer of proof at the time.
Moreover, due to the *159 similarity of the prior and one of the
charged crimes, the court offered to sanitize the prior by
allowing reference to it only as a prior felony conviction. It did
not abuse its discretion in doing so.
(9) Criminal Law § 288--Evidence--Admissibility--Discretion
of Trial Court--Proposition 8.
The intention of the drafters of Prop. 8 was to restore the trial
court's discretion as visualized by the Evidence Code and to
reject the rigid, black letter rules of exclusion that had been
grafted onto the Evidence Code by previous decisions of the
California Supreme Court.
38
(10) Criminal Law § 217--Trial--Course and Conduct of
Trial--Cross- examination of Defendant--Trial Court's Refusal
to Limit Scope.
In a capital homicide prosecution involving four murders
allegedly committed in two separate incidents, in which defense
counsel indicated that defendant desired to testify concerning
self-defense as to one incident, but not to testify at all
concerning the other incident, defendant's right to testify on his,
own behalf was not violated when the trial court refused to rule,
in advance of defendant's actual testimony, on his request to
limit the scope of cross-examination to the incident about which
he planned to testify. While defense counsel argued that the two
incidents were entirely separate and that direct and
cross-examination could be so limited, counsel gave no further
details as an offer of proof. Moreover, the prosecutor argued
that there was an evidentiary spillover between the two
incidents. Thus, the trial court acted well within its discretion in
denying defendant's request.
(11) Criminal Law § 454--Argument and Conduct of
Counsel--Prosecutor-- Closing Argument--Comment on
Witnesses--Calling Defense Expert Liar.
In a capital homicide prosecution, the prosecutor did not
engage in misconduct in cross-examining a defense forensic
psychiatrist as to his interest in helping the defense, eliciting an
admission that the expert had testified differently in other cases
concerning the distinction between alcohol and PCP
intoxication, and then arguing to the jury that the witness was
a liar on the basis of that admission. The prosecutor was entitled
to question the expert's testimonial consistency and possible
bias, and referring to testimony as "lies" is an acceptable
practice as long as the prosecutor argues inferences based on the
evidence rather than personal belief. The prosecutor's argument
met that requirement, and amounted to nothing more than
vigorous, yet fair, argument. In any event, defendant waived
- any error as to the prosecutor's comment that the expert was a
39
liar, since he failed to object to it during trial. *160
(12) Criminal Law § 448--Argument and Conduct of
Counsel--Prosecutor-- Examination of
Witnesses--Cross-examination of Defense Alibi Witness--
Concerning Defense Counsel's Assistance in Fabricating
Testimony.
In a capital homicide prosecution involving two alleged sets of
murders, the prosecutor did not improperly suggest that defense
counsel had colluded with an alibi witness in fabricating his
testimony, where the witness contended he and defendant had
traveled together to a ranch in Mexico before the second set of
murders and that defendant was there at all crucial times, and
the prosecutor, noting that the witness's arrest near the border
on the day he supposedly went to Mexico had not been revealed
during direct examination, asked the witness if defense counsel
had tried to avoid the subject. Similarly, it was not improper for
the prosecutor to ask the witness if defense counsel had
explained to him that it was necessary to state that defendant
had been'in Mexico on a certain day, and that the witness would
be liable as an accessory after the fact if he admitted that he
knew defendant had committed an earlier set of murders at the
time they supposedly went to Mexico. In any event, defendant
waived the point for purposes of appeal by failing to object at
trial and request a timely admonition.
(13) Criminal Law § 559--Appellate Review--Presenting and
Reserving Objections--Argurient and Conduct of
Prosecutor--Expressing Personal Disbelief in Testimony of
- Defense Alibi Witness.
In a capital homicide prosecution, defendant waived his
contention on appeal that the prosecutor committed misconduct
on cross-examination of a defense alibi witness by asking the
witness when he was going to stop lying, thereby expressing the
prosecutor's own personal disbelief in the witness's testimony,
where defendant failed to object to the prosecutor's question, .
40
and any harm could have been cured by a prompt admonition.
(14) Criminal Law § 448--Argument and Conduct of
Counsel--Prosecutor-- Examination of
Witnesses--Cross-examination of Defense Alibi
Witness--Improper Impeachment With Prior Drug Arrest.
In acapital homicide prosecution, defendant was not prejudiced
by the prosecutor's allegedly improper attempt to impeach an
alibi witness with evidence of a drug arrest, where the
prosecutor, in questioning the witness as to his arrest as an
accessory to murder in the present case, queried, "You were -
also arrested for something else, weren't you?", and where
defense counsel's objection to the question was sustained,
although no admonition was requested or given. The jury was
already aware that the witness had been arrested for possession
of methamphetamines, and the jury was given the standard
instruction stating that a *161 question is not evidence and that
when an objection to a question was sustained, the jurors should
not guess what the answer might have been (CALJIC No. 1.02).
(15) Criminal Law § 448--Argument and Conduct of
Counsel--Prosecutor-- Examination of
Witnesses--Cross-examination of Defense Alibi Witness--
Questioning Witness on Failure to Offer Exculpatory
Information. In a capital homicide prosecution, defendant
could not have suffered any significant prejudice from alleged
misconduct that occurred when the prosecutor cross-examined
an alibi witness about his failure to volunteer his exculpatory
information to the police prior to trial. Although defendant
contended that the prosecutor knew that the witness had been
arrested in the present case as an accessory to murder and had
invoked his right to remain silent, the witness himself explained
that that he had never told the police about the alibi because he
had refused to be interviewed, and further stated on redirect
examination that he had given the exculpatory information to
the defense attorneys and their investigators a year before the
41
trial.
(16) Criminal Law § 448--Argument and Conduct of
Counsel--Prosecutor-- Examination of
Witnesses--Cross-examination of Defense Alibi Witness--
Concerning Conversation Outside Courtroom.
In a capital homicide prosecution, there was no basis for
branding, as being in bad faith, the prosecutor's questioning
regarding a conversation between the prosecutor, defense
counsel, and an alibi witness that occurred in an elevator after
the witness had given his testimony on direct examination. The
record showed only that on the morning after the conversation
occurred, defense counsel reopened direct examination,
questioning the witness about the conversation, and the witness
testified that the prosecutor had threatened him by stating that
"someone is going to jail behind this." The prosecutor then
asked the witness whether the alleged threat had been in
response to defense counsel's question, "Well, how do you guys
like what happened in there today?" Defense counsel's objection
to the question was overruled, and the witness stated that he
only heard defense counsel say, "what's up?" None of the police
officers who overheard the conversation were — as
witnesses by either side.
(17a, 176) Criminal Law § 451--Argument and Conduct of
Counsel--Closing Argument--Denigration of Defense
Counsel--Accusing Defense Counsel of Misleading Jurors and
Perpetrating Fraud on Court.
In acapital homicide prosecution, although the prosecutor was
entitled to argue the inconsistencies in the evidence and even to
*162 characterize inconsistent testimony as "lies," it was
improper to denigrate defense counsel rather than the evidence
by referring to defense counsel's supposed attempts to mislead
the jury and by accusing defense counsel of perpetrating a fraud
on the court. Personal attacks on opposing counsel are improper
and irrelevant to the issues. The prosecutor's references to
42
counsel's reaction to particular téstimony was also improper, for
the same reason. The remarks, however, were a small part of the
prosecutor's very lengthy review of the evidence, and were
clearly recognizable as an advocate's hyperbole. Thus, there was
no reasonable probability that the jury would have reached a
more favorable result absent the objectionable comments.
[See Cal.Jur.3d (Rev), Criminal Law, § 2954; 5 Witkin &
Epstein, Cal. Criminal Law (2d ed. 1989) § 2914.]
(18) Criminal Law § 451--Argument and Conduct of
Counsel--Closing Argument--Denigration- of Defense
Counsel--Expressing Personal Opinion on Defendant's Guilt.
A prosecutor may vigorously argue his or her case, marshalling
the facts and arguing inferences to be drawn therefrom. The
prosecutor may not, however, express a personal belief in the
defendant's guilt, in part because of the danger that jurors may
assume that there is other evidence in the prosecutor's command
on which that conclusion is based. It is also improper for the
prosecutor to imply that defense counsel has fabricated
evidence or otherwise to portray defense counsel as the villain
in the case. It isnot necessary to find that such an implication
impinges upon the defendant's constitutional right to counsel.
Instead, it is sufficient to note that the defendant's conviction
should rest on the evidence, not on the derelictions of his or her
counsel. Casting uncalled-for aspersions on defense counsel
directs attention to largely irrelevant matters and does not
constitute comment on the evidence or argument as to
inferences to be drawn therefrom.
(19) Criminal Law § 559--Appellate Review--Presenting and
Reserving Objections--Argument and Conduct. of
Prosecutor--Expressing Personal Opinion on Defense Case.
In a capital homicide prosecution, in which defendant claimed
that the prosecutor engaged in three instances of misconduct in
the form of improperly expressing a personal opinion regarding
43
the defense case, defendant waived, for purposes of appeal, his
argument with respect to two of the instances, having failed to
raise timely objections to the comments at trial. As to the third
instance, the prosecutor's statement that he shook his head in
disbelief every time he thought about one defense witness's
testimony *163 was made in the context of reviewing the
discrepancies in defense testimony, and it was not likely that the
jury would have understood it as being based on ads
outside the record.
(20) Criminal Law § 455--Argument and Conduct of
Counsel--Prosecutor-- Closing Argument--Comment on
Defendant's Failure to Testify. In a capital homicide
prosecution, the prosecutor did not engage in prejudicial
misconduct during closing argument by referring to defendant's
failure to testify at trial, where the prosecutor stated that he had
forestalled defense testimony by preemptively proving that
defendant had not needed glasses at the time of the killings, and
that if that fact had not been proven, the jury would have heard
defendant claim that he shot at the victims during a fight in the
park because he was not wearing his glasses at the time and
could not see well. The trial court sustained defense counse!'s
objection and admonished the jury to disregard the comments
to the extent they reflected on defendant's failure to testify.
While the trial court overruled defendant's later objection to
similar comments by the prosecutor during rebuttal, the earlier
admonition was sufficient to cover these comments, which were
clearly harmless, having been a minor feature in the prosecutor's
lengthy argument.
(21) Criminal Law § 451--Argument and Conduct of
Counsel--Prosecutor-- Closing Argument--Referring to
Defendant's Neat Appearance in Court as Ploy.
In acapital homicide prosecution, in which defendant had worn
a suit and reading glasses and had been clean-shaven during
trial, defendant waived his claim on appeal that the prosecutor
engaged in misconduct by referring to the defendant's
courtroom appearance as a "ploy" and by asserting that
defendant did not need to wear the glasses at all times during
the trial. Defendant failed to object to the comments, and any
error could have been cured by a timely admonition. In any
event, the statements could not have had a prejudicial effect in
light of the overwhelming evidence of the killings.
(22) Criminal Law § 520--Judgment, Sentence, and
Punishment--Penalty Trial--Prosecutorial
Misconduct--Cross-examination of Defense Expert Concerning
Defendant's Gang Membership. In the penalty phase of a
capital homicide prosecution, the prosecutor did not engage in
any misconduct in cross-examining a gang consultant who had
been called by defendant to rebut evidence of defendant's *164
gang affiliation that had been properly admitted in the guilt
phase. The witness had testified that the gang to which
defendant had belonged had been reformulated into a
neighborhood association with the goal of keeping the peace,
that defendant had not been involved in gang activities after his
release from prison in 1984, the year that the murders later
occurred, and that he was working to keep other young people
out of gangs. The prosecutor was entitled to attempt to negate
that evidence by asking the witness if it was true that the gang
to which defendant belonged was one of the most violent gangs
in its area and was responsible for most of the murders in that
area in a 10-year period, including 1984, and whether defendant
had been one of the gang's most active members.
(23) Criminal Law § 448--Argument and Conduct of
Counsel--Prosecutor-- Examination of Witnesses--Defense
Reputation Witness--Cross-examination Concerning
Defendant's Bad Acts--Good Faith Requirement.
The prosecution may inquire of a defense reputation witness
whether the witness has heard of an act or conduct by the
defendant that is inconsistent with the witness's testimony, as
45
long as the People have a good faith belief that the act or
conduct about which they wish to inquire actually took place.
(24) Criminal Law § 523--Judgment, Sentence, and
Punishment--Penalty Trial--Instructions--Age as Aggravating
or Mitigating Factor. In the penalty phase of a capital homicide
prosecution, the trial court did not err in refusing to give
defendant's proposed special instruction that his age at the time
of the crimes could be considered only as a mitigating factor,
and instead giving CALJIC No. 8.84.1, which simply states that
the jury may consider the age of the defendant at the time of the
crime in determining the appropriate penalty. Mere
chronological age should not, in and of itself, be deemed either
aggravating or mitigating. The word "age" in the statutory
sentencing factor is used as a metonym for any age-related
matter suggested by the evidence or by commou experience or
morality that might reasonably inform the choice of penalty.
Thus, either counsel may argue any such age-related inference
in every case. Similarly, it was not improper for the prosecutor
to argue that it was an aggravating factor that defendant, who
was 26 years old at the time of the crimes, was old enough to
know the difference between right and wrong.
(25) Criminal Law § 522--Judgment, Sentence, and
Punishment--Penalty Trial--Argument--Impact of Crime on
Victim's Family.
The injury inflicted by a capital homicide defendant, including
evidence *165 about the victim and the impact of the crime on
the victim's family, is one of the circumstances of the crime,
evidence of which is admissible under Pen. Code, § 190.3,
factor (a). Thus, in the penalty phase of a capital homicide
prosecution, in which defendant had introduced a photograph
showing him as a young boy at his father’s funeral in order to
illustrate his difficult childhood, the prosecutor did not engage
in misconduct by teiling the jurors that when they looked at the
photograph, they should think of the funerals of defendant's
victims, and that they should think of the victims’ parents and
families.
(26a, 26b) Criminal Law § 522--Judgment, Sentence, and
Punishment-- Penalty Trial--Argument--Invoking Biblical
Passage as Support for Death Penalty.
In the penalty phase of a capital homicide prosecution, the
prosecutor engaged in misconduct during rebuttal argument by
paraphrasing a Biblical passage commonly understood as
providing justification for the death penalty, where the
prosecutor's comments were not fairly responsive to defense
counsel's closing argument. While a prosecutor may refer to
matters that are not in evidence if they are common knowledge
or are illustrations drawn from common experience, history, or
literature, he or she may not invoke higher or other law as a
consideration in the jury's sentencing determination.
Nevertheless, the prosecutor's misconduct was not prejudicial,
since the jurors deliberated for four days before indicating they
were split on all four murder counts, then deliberated another
day before returning verdicts of life without possibility of
parole on three counts and a death penalty verdict on only one
count. Under such circumstances, there was no reasonable
possibility that the jury would have reached more favorable
verdicts had the misconduct not occurred.
(27) Criminal Law § 522--Judgment, Sentence, and
Punishment--Penalty Trial--Argument--Invoking Biblical
Passage as Support for Death Penalty--Extent of Permissible
Argument. Penalty determinations are to be based on the
evidence presented by the parties and the legal instructions
given by the court. Reference by either party to religious
doctrine, commandments, or biblical passages tending to
undermine that principle is improper. While the defense in a
capital penalty trial must be allowed some latitude in its
presentation of mitigating evidence, that latitude does not
include exhortation of religious canons as a factor weighing
47
—
against the death penalty. Were the defense to present such an
argument, it would be subject to objection by the prosecution
and possible like-kind argument in rebuttal. What is
objectionable is reliance on religious authority as supporting or
opposing the death penalty. All reference to religion or religious
figures is *166 not ruled out as long as the reference does not
purport to be a religious law or commandment.
(28) Criminal Law § 261--Trial--Verdict--Rendition--Jury
Deadlock--Trial Court's Discretion to Require Further
Deliberation.
The determination of whether there is a reasonable probability
that a jury can reach an agreement on a verdict, so as to warrant
further deliberation, rests in the discretion of the trial court. The
court must exercise its power, however, without coercing thie
jury, so as to avoid displacing the jury's independent judgment
in favor of considerations of compromise and expediency. The
question of coercion necessarily depends on the facts and
circumstances of each case.
(29) Homicide § 98--Verdict, Sentence, and
Punishment--Verdict--Jury Deadlock--Trial Court's Discretion
to Require Further Deliberation.
In the penalty phase of a capital homicide prosecution, the trial
court did not abuse its discretion in refusing to declare a mistrial
under Pen. Code, § 1140 (no reasonable probability of
agreement on verdict), even though the jury had deliberated
fourteen and one-half hours, over a six-day period, before
indicating that it was split on each of the four murder counts,
and a poll of the jury revealed that no juror felt it was
reasonably possible that an agreement could be reached. Given
that the trial had lasted five months, it was not unreasonable to
request that the jury spend a little more time deliberating.
Moreover, the fact the order to continue deliberating was
unaccompanied by further instructions, and the following day
the jury reached verdicts of life imprisonment without
48
possibility of parole on three counts and a death sentence on the
fourth count did not suggest that the trial court coerced the jury
or that the verdicts resulted from compromise and expediency.
The jury may have felt that only one death verdict was
necessary, and that the one murder on which it did return a
death verdict was the most egregious, since the victim had no
involvement with defendant.
(30) Homicide § 98--Verdict, Sentence, and
Punishment--Verdict--Multiple Murders--Requiring Separate
Verdict as to Each Murder Victim.
In the penalty phase of a capital homicide prosecution, the trial
court did not err in requiring the jury to return a separate
penalty verdict as to each murder victim. A defendant who kills
more than one person may be convicted and punished for each
murder. The multiple verdicts did not obscure the overriding
constitutional value of reaching a comprehensive determination
of the appropriateness of the death penalty considering all
aggravating and mitigating evidence, nor did they invite
compromise verdicts, or place undue emphasis on the
characteristics and status of each individual victim. *167
(31) Criminal Law § 523--Judgment, Sentence, and
Punishment--Penalty Trial--Instructions--Imposition of Death
Penalty Where Aggravating Factors Outweigh Mitigating
Factors.
In the penalty phase of a capital homicide prosecution, the trial
court did not err in giving CALJIC No. 8.84.2, which states that
in order to impose the death penalty the jury must be persuaded
that the aggravating factors are so substantial in comparison
with the mitigating factors that they warrant death instead of life
in prison without possibility of parole. While that instruction
did not specifically state that the jury was required to find that
the aggravating factors outweighed the mitigating factors, the
court gave a further instruction that the weighing of the
aggravating and mitigating factors was not a mere mechanical
49
counting of factors, that the jury was free to assign whatever
moral or sympathetic value it deemed appropriate to each
factor, and that it was to consider the totality of aggravating
factors with the totality of the mitigating factors. These
instructions, taken together, were sufficient to inform the jury
that it could return a death verdict only if the aggravating
circumstances outweighed the mitigating circumstances.
COUNSEL
Eric S. Multhaup, under appointment by the Supreme Court,
and Kathy M. Chavez for Defendant and Appellant.
David Booth Beers and John Townsend Rich as Amici Curiae
on behalf of Defendant and Appellant.
John K. Van de Kamp and Daniel E. Lungren, Attorneys
General, Richard B. Iglehart and George Williamson, Chief
Assistant Attorneys General, Edward T. Fogel, Jr., Assistant
Attorney General, Carol Wendelin Pollack, Acting Assistant
Attorney General, Marc E. Turchin, William T. Harter, Susan
Lee Frierson and Sharon Wooden Richard, Deputy Attorneys
General, for Plaintiff and Respondent. .
PANELLI, J.
Defendant was convicted by a jury in the Los Angeles County
Superior Court of four counts of first degree murder (Pen. Code,
*168 § 187) [FN1] with a multiple-murder special-circumstance
finding (§ 190.2, subd. (a)(3)), and one count of attempted
murder (§§ 664/187)..The jury also found that defendant
personally used a firearm in the commission of each offense (§
12022.5).
FN1 All statutory references hereafter are to the Penal
Code unless otherwise indicated.
50
The jury returned a verdict of death as to the conviction of
murder of Marlene Wells and verdicts of life without possibility
of parole as to the convictions of murder of Gilbert Martinez,
Anthony Aceves, and Ray Wells. The appeal is automatic. (§
1239, subd. (b).)
Guilt Phase Facts
Prosecution Case.
1. Belvedere Park Murders.
About 2:30 a.m. on October 14, 1984, Adela Rodriguez and a
group of girls (Zebba, Susie, Dianne, Corine, and Yvonne),
along with Gilbert Martinez and Manuel Torres, drove to
Belvedere Park in East Los Angeles. Anthony Aceves and a
man named Jack drove to the park in another car. Once there,
the group broke up into couples. Adela walked off with Gilbert
Martinez.
Adela and Gilbert started walking back to the car after Zebba
called for them to return. A fight was about to start near the car
between people Adela did not know. As Adela was getting in
the car, Gilbert said, "Let me get my friends first." As Gilbert
approached his friends, Adela saw defendant shoot Gilbert in
the head at close range. Defendant also shot Anthony in the
head, and he shot at Manuel as the latter ran away. Defendant
turned and pointed the gun at Adela and her friend Susie. Susie
backed the car out, and drove off. Defendant's car followed
them for a short distance. The girls then returned to the park to
check on their friends. Gilbert died in Adela's arms.
Susie Martinez testified that she drove Adela and the others to
Belvedere Park on October 14, 1984. She walked around the
park with Anthony Aceves until they were called back to the
car. When they arrived at the car, she saw Carlos Tostado
fighting with someone. The fight stopped, and she noticed
defendant standing next to a brown Monte Carlo arguing or
51
talking with Anthony. Gilbert was nearby. Defendant pulled out
a gun and shot Gilbert and Anthony in the head. After Gilbert
fell to the ground, defendant shot him again. Susie did not see
Gilbert or Anthony with any weapons, nor did she them make
any aggressive gestures. *169
Carlos Tostado testified that he drove a white Monte Carlo to
Belvedere Park on October 14, 1984. Several friends were with
him. Another car drove up with four young women and three
men. Tostado fought with one of the men. As the fight was
breaking up, defendant, also known as "Chato," and Eugene
Valenzuela, also known as "Pelon," drove up in a tan Monte
Carlo. Defendant got out of the car, grabbed one of the men by
the neck and shot him. Tostado had known defendant for about
10 years and was a member of the same gang, Arizona
Marivilla. The victims belonged to a different gang, Mariana
Marivilla.
Tostado admitted that he had lied to the police when he gave
them statements on October 14, October 16, and December 12,
1984. He acknowledged that he was on probation for using
phencyclidine (PCP) at the time of his testimony.
The prosecution read the preliminary hearing testimony of
Manuel Torres, who had since died in an unrelated auto
accident. He had gone to Belvedere Park in Susie's car with
Gilbert Martinez and several young women. As they were
getting into the car to leave, Gilbert stopped to talk to a group
of people. Anthony Aceves left the car to "back up" Gilbert.
Torres heard shots and saw Anthony fall to the ground. He
himself was shot in the neck, but he did not see who shot him.
Deputy Sheriff Woodrow West went to Belvedere Park around
4 a.m. to investigate the shootings. He found a small pocket
knife on the ground near the spot where Anthony Aceves had
fallen. There were traces of blood on the knife. Deputy West
52
also found five expended .22-caliber bullet casings.
Autopsies performed on the bodies of Gilbert Martinez and
Anthony Aceves revealed that both alcohol (.09 percent) and
PCP (.033 micrograms per milliliter) were found in Martinez's
blood and that PCP (.042 micrograms per milliliter) was
detected in Aceves's liver tissue. Since Aceves died three days
after the shooting, the PCP levels in his liver and blood would
have been higher at the time of the shooting.
2. Wells Murders.
Benjamin Verduzco had known defendant for about 16 years
and had been a fellow member of Arizona Marivilla, but
Verduzco no longer belonged. He agreed to testify in exchange
for release from prison. He was placed in a protection program,
given $600 a month for room and board, and was promised a
name change.
On October 15 or 16, 1984, defendant asked Verduzco to keep
a beige and brown Monte Carlo in his garage because he was in
some kind of trouble. *170 Verduzco agreed. Defendant left the
car in Verduzco's garage and drove off with Eugene Valenzuela
in a 1969 black Chevrolet Impala.
A week later, on October 24, 1984, defendant came to
Verduzco's home. Ray and Marlene Wells arrived a few
minutes later. Defendant asked to borrow $5 from Ray Wells
and then left. That night, the police came to Verduzco's house
and seized defendant's car.
On October 31, 1984, at 12:42 a.m., Frank Bender heard
gunshots. He went to the front door of his house and looked
across the street to the residence of Ray and Marlene Wells. He
noticed that the Wellses' dog appeared frightened. He also saw
a black 1968 Chevrolet Caprice parked nearby with the engine
53
running. [FN2] Shortly thereafter, he saw a silhouette cross the
Wells yard and drive away in the car.
FN2 Bender, who is a car buff, first told police it was a
Chevrolet Impala. He determined it was a Chevrolet
Caprice after examining a book of cars. The only
difference between an Impala and a Caprice was that the
Caprice had chrome strips. He remembered the car because
it was in excellent shape.
That same night, between 1 and 2 a.m., defendant called
Benjamin Verduzco and said, "Bennie, I just did the big mouth
in." When Verduzco asked, "Who," defendant said, "Remember
the one who was there in the morning with the car." He referred
to him as "R" and did not use a name. Defendant also said,
"You know | take care of business. I had to do her, too."
Defendant killed "her" because she saw him "do R." Defendant
said, "They have gone to heaven with the angels." Defendant
said he did it so that "they wouldn't be snitching no more."
Deputy Sheriff Robert Havercroft went to the Wells residence
on the night of the murders. The rear door of the house was
closed but not locked. He found Ray Wells's body on a couch
in the living room and Marlene's body in the doorway between
the dining room and kitchen. Deputy Havercroft found no
evidence of theft, and no signs of forced entry.
Deputy Havercroft found three appointment books with many
names and addresses. Attached to one of the appointment books
were two small pieces of paper. The names "Chato" and "Pelon"
were written on one piece of paper, and the name "Moses
Verduzco" was written on the other.
Betty Phipps sold a 1968 Chevrolet Caprice to defendant in
October 1984. The car was not in running condition; defendant
told her he was going to fix it up. On October 7, 1984, a black
54
1968 Chevrolet Caprice was stolen from the Los Angeles zoo.
The stolen 1968 Chevrolet Caprice was stopped at the *171
United States-Mexico border at Tecate on December 15, 1984,
while Salvador Rubio, a member of the Arizona Marivilla gang,
was driving it. The license plate and vehicle identification
numbers that were on the car did not belong to the car. One of
the documents found in the glove compartment was a "pink
slip" or ownership certificate with the name of Betty Phipps on
the back.
Defense Case.
1. Belvedere Park Murders.
The defense presented evidence from law enforcement officers
and others regarding inconsistent statements given by Adela
Rodriguez and the other young women on the night of the
shootings. Zebba Rodriguez testified that when she was walking
back to the car she saw Gilbert Martinez, Anthony Aceves, and
Manuel Torres arguing with about three other men. She was
afraid, got in the car, heard shots, and ducked until she heard no
| more shots. When she raised her head, she saw Gilbert and
Anthony lying on the ground. She did not see who had done the
shooting. }
|
|
David Martinez testified that he went to Belvedere Park on the
night of the shooting with Carlos Tostado. He and Tostado had
spent the day cruising, drinking beer and smoking PCP.
Dr. Griffith Thomas, a pathologist, testified that PCP can cause
very bizarre and aggressive behavior. The amount of PCP in the
victims' bodies would correlate with bizarre behavior. Dr. .
Donald Trockman, a forensic psychiatrist, testified that persons
with amounts of PCP in their systems such as the victims
showed were "unpredictable people" and that they "may attack
you and try to kill you."
55
2. Wells Murders.
Detective Gene Hetzel interviewed Benjamin Verduzco on
November 1, 1984. When he told Verduzco that the Wellses
had been murdered, Verduzco appeared surprised and shocked.
Verduzco did not mention that he had received a phone call
from defendant on the night of the murders. He did not tell
police about the phone call until much later.
Ralph Ortega testified that he went to aranch in Tecate, Mexico
with defendant and several other people on October 24, 1984.
Ortega went back to Los Angeles and returned to Tecate with
his wife and children on October 30, 1984. Defendant was still
there. The next evening, October 31, Halloween, defendant and
some others took Ortega's son trick-or-treating. *172
Guilt Phase Contentions
1. Denial of Motion to Sever Counts.
Defendant contends that the trial court erred in denying his
motion to sever the Belvedere Park murders from the Wells
murders. He argued for severance on the basis that the incidents
were unrelated, not cross-admissible, and that the evidence in
the Wells charges was far weaker than that in the Belvedere
Park charges. The court denied severance based on the
prosecutor's representation that Benjamin Verduzco would
testify at trial and provide evidence of defendant's motive and
premeditation concerning the Wells murders that linked them
with the Belvedere Park murders.
Defendant renewed his motion to sever shortly before trial was
scheduled to begin. The trial court denied the motion, again in
reliance on the prosecutor's representation about Verduzco's
anticipated testimony.
Section 954 provides in pertinent part: "An accusatory pleading
56
may charge two or more different offenses ... of the same class
of crimes or offenses, under separate counts, ... provided, that
the court in which a case is triable, in the interests of justice and
for good cause shown, may in its discretion order that the
different offenses or counts set forth in the accusatory pleading
be tried separately or divided into two or more groups and each
of said groups tried separately. ..."
The statutory requirements for joinder were met here because
both incidents involved the same class of crimes-murder. (1)
Since the requirements for joinder were satisfied, defendant can
predicate error only on a clear showing of potential prejudice.
(People v. Johnson (1988) 47 Cal.3d 576, 587 [253 Cal.Rptr.
710, 764 P.2d 1087].) "The burden is on the party seeking
severance to clearly establish that there is a substantial danger
of prejudice requiring that the charges be separately tried."
(People v. Bean (1988) 46 Cal.3d 919, 938 [251 Cal.Rptr. 467,
760 P.2d 996}.)
"The determination of prejudice is necessarily dependent on the
particular circumstances of each individual case, but certain
criteria have emerged to provide guidance in ruling upon and
reviewing a motion to sever trial." (Frank v. Superior Court
(1989) 48 Cal.3d 632, 639 [257 Cal.Rptr. 550, 770 P.2d 1119].)
Refusal to sever may be an abuse of discretion where: (1)
evidence on the crimes to be jointly tried would not be
cross-admissible in separate trials; (2) certain of the charges are
unusually likely to inflame the jury against the defendant; (3) a
"weak" case has been joined with a "strong" case, or with
another "weak" case, so that the "spillover" effect of aggregate
*173 evidence on several charges might well alter the outcome
of some or all of the charges; and (4) any one of the charges
carries the death penalty or joinder of them tums the matter into
a capital case. (Ibid.; see also Williams v. Superior Court (1984)
36 Cal.3d 441, 453 [204 Cal.Rptr. 700, 683 P.2d 699].)
57
(2) Defendant bases his argument for prejudice primarily on the
absence of cross-admissibility of the two sets of offenses. He
argues that the trial court's reasoning did not establish that the
evidence of the two separate incidents would have been
admissible in its entirety had there been separate trials.
According to defendant, all it established was that there would
have been some minor evidentiary crossover as to the two
incidents. However, even if defendant is correct on this point,.
it is now clear that cross-admissibility is not the sine qua non of
joint trials. (People v. Mason (1991) 52 Cal.3d 909, 934 [277
Cal.Rptr. 166, 802 P.2d 950]; Frank v. Superior Court, supra,
48 Cal.3d at p. 641; People v. Poggi (1988) 45 Cal.3d 306, 321
{246 Cal.Rptr. 886, 753 P.2d 1082].) "While we have held that
cross-admissibility ordinarily dispels any inference of prejudice,
we have never held that the absence of cross-admissibility, by
itself, sufficed to demonstrate prejudice." (People v. Mason,
supra, 52 Cal.3d at p. 934.) "That the evidence would otherwise
be inadmissible may be considered as a factor suggesting
possible prejudice, but countervailing considerations that are
not present when evidence of uncharged offenses is offered
must be weighed in ruling on a severance motion. The burden
is on the defendant therefore to persuade the court that these
countervailing considerations are outweighed by a substantial
danger of undue prejudice." (People v. Bean, supra, 46 Cal.3d
at p. 939.)
Defendant did not carry that burden. The potential prejudice he
asserted did not rise to the level of demonstrating that the
court's denial of severance was an abuse of discretion. The court
recognized that the anticipated testimony by Verduzco added
significantly to the strength of the Wells case, thereby obviating
the danger of a "spillover" effect from the Belvedere Park
evidence. Indeed, the court suggested that it would reconsider
the severance motion if the prosecution were not able to secure
Verduzco's testimony. The inflammatory effect of defendant's
gang membership as to the Belvedere Park case was neutralized
by the fact that the victims were also gang members. Moreover,
this was not a case in which capital charges resulted solely from
the joinder of the two incidents. (Cf. Williams v. Superior
Court, supra, 36 Cal.3d at p. 454.)
Defendant also made passing reference to the fact that he had
separate defenses that would be prejudiced because he desired
to testify as to one *174 incident but not the other. Although we
have not addressed this theory of prejudice, it has been
considered by federal courts. The federal courts have ruled that
severance is not mandatory every time a defendant wishes to
testify to one charge but not to another. " 'If that were the law,
a court would be divested of all control over the matter of
severance and the choice would be entrusted to the defendant.’
" (U.S. v. Archer (7th Cir. 1988) 843 F.2d 1019, 1022.) The
need for severance does not arise in federal courts " ‘until the
defendant makes a convincing showing that he has both
important testimony to give concerning one count and strong
need to refrain from testifying on the other.’ " (Ibid.; quoting
Baker v.' United States (D.C. Cir. (1968) 401 F.2d 958, 977
[131 App.D.C. 7]; see also United States v. Valentine (10th Cir.
1983) 706 F.2d 282, 291.) Federal courts have required the
defendant to present enough informationto satisfy the court that
the claim of prejudice is genuine and to enable it to weigh the
considerations of economy and expedient judicial
administration against the defendant's interest in having a free
choice with respect to testifying. (United States v. Valentine,
supra, 706 F.2d at p. 291.)
Defendant's showing fell far short of anything that would have
satisfied the federal standards or any standard this court might
adopt. Defendant neither explained the nature of the testimony
he wished to give in the Belvedere Park case nor his reasons for
not wanting to testify in the Wells case. The trial court did not
abuse its discretion in denying severance.
59
(3) Because the issue is raised on appeal following trial, we
must also consider whether, "despite the correctness of the trial
court's ruling, a gross unfairness has occurred from the joinder
such as to deprive the defendant of a fair trial or due process of
law." (People v. Johnson, supra, 47 Cal.3d at p. 590.) Defendant
claims gross unfairness occurred as a result of the destruction of
his ability to testify as to one incident but not as to the other. He
has done no more, however, than make a bald assertion to that
effect. "One asserting prejudice has the burden of proving it; a
bald assertion of prejudice is not sufficient." (Id. at p. 591.) We
conclude, therefore, that defendant has failed to show that
denial of severance deprived him of a fair trial.
2. Use of Peremptory Challenges.
Defendant contends that the trial court erred in permitting the
prosecutor to systematically exercise his peremptory challenges
to excuse from the jury those prospective jurors who had
expressed some scruples about imposition of the death penalty.
Defendant acknowledges that we have addressed this contention
on numerous occasions and have found no constitutional
infirmity in permitting peremptory challenges by both sides on
the basis of *175 specific juror attitudes on the death penalty.
(See, e.g., People v. Caro (1988) 46 Cal.3d 1035, 1061 [251
Cal.Rptr. 757, 761 P.2d 680]; People v. Belmontes (1988) 45
Cal.3d 744, 799 [248 Cal.Rptr. 126, 755 P.2d 310].)
- Accordingly, we reject defendant's contention.
3. Evidence of Defendant's Gang Membership.
Defendant contends that the trial court erred in admitting
evidence of his gang membership because it was irrelevant and
prejudicial to his defense. Defendant objected pretrial by
moving to preclude the prosecutor from referring to his alleged
gang membership during opening statements. The prosecutor
argued that evidence of gang membership was relevant to prove
the motive for the murders at Belvedere Park. The trial court
ruled that the prosecutor had made a showing that the evidence
was admissible and denied the motion.
Defendant later moved to strike the testimony of Carlos Tostado
and Benjamin Verduzco on the ground that the prosecutor had
used them to put irrelevant and prejudicial testimony before the
jury of defendant's alleged gang membership. The trial court
denied the motion, ruling that the gang membership evidence
had not caused undue prejudice.
(4) Defendant argues that the evidence of gang membership was
irrelevant and that the prosecutor never proved a gang-related
motive for the shootings. We do not agree. The evidence
established that the victims were members of a rival gang. The
fact that the gangs purportedly had been at peace for seven
years does not eliminate gang retaliation as a motive. Indeed,
that appears to have been the only plausible motive. What we
have here is a battle over turf. The Arizona Marivilla gang
considered Belvedere Park to be its territory. The victims,
members of a rival gang, were in Arizona Marivilla territory
and were shot by a member of the Arizona gang without any
other provocation.
Defendant argues that evidence of gang membership was found
to be prejudicial and irrelevant in People v. Cardenas (1982) 31
Cal.3d 897 [184 Cal.Rptr. 165, 647 P.2d 569] and People v.
Perez (1981) 114 Cal.App.3d 470 [170 Cal.Rptr. 619].
However, here, unlike Cardenas and Perez, the evidence was far
more relevant. In Cardenas the prosecution introduced evidence
of gang membership to prove bias of defense witnesses, but bias
had already been established by other testimony. We held that
the admission of gang membership evidence was an abuse of
discretion under Evidence Code section 352 because the
evidence was of minimal probative value, cumulative, and
extremely prejudicial. In Perez, the evidence of gang
61
membership had no relevance to any issue at trial. In this case,
the court did not err in the admission of gang affiliation. *176
4. Exclusion of Evidence of Third Party Culpability.
(Sa) Defendant contends that the trial court improperly
excluded, pursuant to Evidence Code section 352, evidence of
third party culpability as to the Wells murders. We find no
abuse of the court's discretion to exclude such evidence.
Deputy Havercroft found a daily appointment book and two
weekly planners at the Wells residence. The books contained
many names and addresses. Two small pieces of paper were
clipped to the daily appointment book. The names "Chato" and
"Pelon" were written on one piece of paper, and the name
"Moses Verduzco" was written on the other piece of paper.
Defendant's nickname is "Chato." nae a8
The defense sought to prove that Ray Wells was the center of a
violent criminal operation involving drugs and stolen cars and
guns, and that any number of criminal accomplices or rivals
could have killed him. Therefore, the defense sought to
cross-examine Deputy Havercroft about the names found in the
appointment book and weekly planners and to introduce those
documents into evidence. After considerable argument and an
offer of proof, the court ruled that the evidence was
inadmissible because "it still does not point the finger at any
individual nor does it rise at all above possible ground of
suspicion."
(6) A criminal defendant has a right to present evidence of third
party culpability if it is capable of raising a reasonable doubt
about his own guilt. This rule does “not require that any
evidence, however remote, must be admitted to show a third
party's possible culpability. ... [E]vidence of mere motive or
opportunity to commit the crime in another person, without
62
more, will not suffice to raise a reasonable doubt about a
defendant's guilt: there must be direct or circumstantial
evidence linking the third person to the actual perpetration of
the crime." (People v. Hall (1986) 41 Cal.3d 826, 833 [226
Cal.Rptr. 112, 718 P.2d 99].)
(5b) The trial court properly found defendant's showing
insufficient. The defense had no evidence of another person's
actual motive to commit the crimes. Instead, the defense merely
raised the possibility that others had a motive to kill Ray and
Marlene Wells. Although the defense identified two persons
with plausible motives, they had no direct or circumstantial
evidence linking them to actual perpetration of the crimes.
The present case is similar to People v. Edelbacher (1989) 47
Cal.3d 983, 1017-1018 [254 Cal.Rptr. 586, 766 P.2d 1], where
the defense sought to *177 introduce evidence concerning the
victim's association with "Hell's Angel-type people" and drug
dealers in order to prove that someone other than the defendant
committed the crime. We affirmed the trial court's ruling that
the evidence was inadmissible. It did not identify a possible
suspect other than the defendant or link any third person to
commission of the crime, or even establish an actual motive
rather than a possible or potential motive.
Defendant's reliance on Crane v. Kentucky (1986) 476 U.S. 683
[90 L.Ed.2d 636, 106 S.Ct. 2142] is misplaced. That case bears
no similarity to the facts of the present case. Crane involved the
exclusion of testimony regarding the circumstances surrounding
the taking of the defendant's confession. The Supreme Court
held that the ruling had denied the defendant a fair opportunity
to present a defense.
(7) As an additional basis for admission of this evidence
defendant argues that the evidence was admissible pursuant to
Evidence Code section 356. That argument is also unavailing.
63
Evidence Code section 356 provides in pertinent part: "Where
part of an act, declaration, conversation, or writing is given in
evidence ..., any other act, declaration, conversation, or writing
which is necessary to make it understood may also be given in
evidence."
Contrary to defendant's contention, Evidence Code section 356
did not require admission of the appointment book and weekly
planners. Those books simply were not part of a writing given
in evidence by the prosecution. While the prosecution
introduced independent slips of paper that were clipped to the
appointment book, the book and the weekly planners
themselves were unnecessary to an understanding of the slips of
paper.
5. Admissibility of Prior Conviction for Impeachment.
(8) Defendant contends that the trial court erred in ruling that
his prior conviction for assault with intent to commit murder
would be admissible for impeachment purposes. We do not
agree. The court followed the analysis set forth in People v.
Castro (1985) 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111],
interpreting article I, section 28, subdivision (f) of the
California Constitution, which was enacted as part of
Proposition 8 in 1982. It properly concluded that defendant's
reliance on pre-Castro cases was not determinative and that
defendant's conviction for assault with intent to commit murder
involved moral turpitude. (People v. Olmedo (1985) 167
Cal.App.3d 1085, 1097-1098 [213 Cal.Rptr. 742].) The court
then exercised its discretion under Evidence Code section 352,
concluding that the probative value outweighed the prejudicial
effect. The court noted that it could not assess the *178 impact
of the prior conviction on defendant's testimony because no
offer of proof as to that testimony had been made. Contrary to
defendant's contention, the court did not state that an offer of
proof was required and, indeed, noted that California law did
64
not then require an offer of proof. [FN3] Because of the
similarity of the prior to one of the charged crimes, the court
offered to sanitize the prior by allowing reference to the
conviction only as a prior felony conviction. It did not abuse its
discretion in doing so. (See People v. Massey (1987) 192
Cal.App.3d 819, 825 [237 Cal.Rptr. 734].)
FN3 We have since held that testimony by the defendant
is a prerequisite to appellate review. (People v. Collins
(1986) 42 Cal.3d 378, 383 [228 Cal.Rptr. 899, 722 P.2d
173].) The ruling here preceded our holding in Collins,
which was to be applied prospectively only.
Defendant's reliance on pre-Castro and Proposition 8 cases is
unpersuasive. (9) As we noted in People v. Castro, supra, 38
Cal.3d at page 312, the intention of the drafters of Proposition
8 was to "restore trial court discretion as visualized by the
Evidence Code and to reject the rigid, black letter rules of
: exclusion" which had been grafted onto the code by our
decisions. Accordingly, we find no abuse of discretion in the
trial court's ruling.
6. Request for Ruling in Advance on Scope of
Cross-examination of Defendant.
(10) Defendant contends that the trial court's refusal to rule on
the scope of permissible cross-examination if he took the
witness stand to testify on the Belvedere Park murders violated
: his right to testify on his own behalf.
Before the defense rested its case, defense counsel told the court
that defendant wished to testify about the Belvedere Park
incident on October 14, 1984, but that he did not wish to testify
about the Wells murders on October 31, 1984. Counsel asked
the court to limit any cross-examination of defendant to the
Belvedere Park charges. Counsel indicated that defendant
would testify on the issue of self-defense but gave no fuer
65
details as an offer of proof. Defense counsel argued that the two
incidents were entirely separate and that the direct and
cross-examination could therefore be limited to the Belvedere
Park charges. The prosecution disagreed, asserting that there
was evidentiary spillover regarding defendant's efforts to hide
the beige and brown Monte Carlo in Verduzco's garage and Ray
Wells's apparent knowledge of the transaction. The trial court
refused to make a ruling in advance of defendant's actual
testimony, stating "whether a defendant can effectively limit the
cross- examination depends upon the direct examination and
may not be known until he testifies. The law is that a defendant
cannot artificially limit the cross- examination and direct
examination." *179
Defendant has failed to show that the court's ruling was
erroneous. None of the authorities cited is directly on point, and
none would have required the ruling sought here. Indeed, there
is authority supportive of the trial court's action. (See People v.
Keenan (1988) 46 Cal.3d 478, 410-513 [250 Cal.Rptr. 550, 758
P.2d 1081]; People v. Williams (1988) 44 Cal.3d 883, 912-913
[245 Cal.Rptr. 336, 751 P.2d 395].) The court acted well within
its discretion.
7. Cross-examination of Dr. Trockman.
Dr. Donald Trockman, a forensic psychiatrist, testified as an
expert witness for the defense in support of the self-defense
claim as to the Belvedere Park counts. Dr. Trockman testified
that there was a high correlation between ingestion of PCP and
unpredictable violence and hostility. Based on his review of the
autopsy report of Gilbert Martinez showing bruises and high
levels of PCP and alcohol in his blood, Dr. Trockman
concluded that at the time of his death, Martinez was in an
angry, aggressive, violent mood. He could not reach any
specific conclusion as to the mood of Anthony Aceves because
he had lived for three days after the shooting.
66
On cross-examination Dr. Trockman testified that the mental
state reached under the influence of alcohol is different from the
mental state reached under the influence of PCP. The prosecutor
reminded the doctor that he had testified differently in previous
cases where the person was charged with being under the
influence of PCP and asked the doctor whether his answer was
dependent on his function in the particular case.
The prosecutor asked Dr. Trockman if Gilbert Martinez was in
a violently aggressive mood during his entire period of PCP
intoxication, and was told: "The important time. The time when
he confronted the accused in this case." The prosecutor then
| asked how he knew the victim had confronted the accused and
whether the defense had told him what he had to accomplish to
dispel the prosecution case.
The prosecutor also asked Dr. Trockman whether, by his
| testimony, he tries to affect the outcome of a case. The
prosecutor queried whether the witness instructed attorneys on
the questions they should ask for dramatic effect, to maintain
the interest of the jury, and to dispel inferences of defense bias.
admission that he had testified differently in other cases about
the distinction between alcohol and PCP intoxication. Based on
the admission the prosecutor stated that the doctor "is a liar."
*180
During closing argument the prosecutor referred to the doctor's
(11) Defendant contends that the prosecutor committed
prejudicial misconduct in so questioning the doctor and in
calling him a liar during closing argument. Although defendant
objected to the questions on cross- examination, he raised no
objection during argument to the prosecutor's use of the term
"liar." Defendant has thus waived the latter point since any
harm caused by this characterization could have been cured by
a timely objection and an admonition. (People v. Green (1980)
67
27 Cal.3d 1, 27 [164 Cal.Rptr. 1, 609 P.2d 468].)
In any event, there was no prosecutorial misconduct. The
prosecutor was entitled to question the doctor's testimonial
consistency and possible bias. (People v. Meneley (1972) 29
Cal.App.3d 41, 60 [105 Cal.Rptr. 432].) Referring to testimony
as "lies" is an acceptable practice so long as the prosecutor
argues inferences based on the evidence and not on the
prosecutor's personal belief. (People v. Edelbacher, supra, 47
Cal.3d 983, 1030.) Closing argument may be vigorous and may
include opprobrious epithets when they are reasonably
warranted by the evidence. In this case, the prosecutor's
argument was based on the evidence and amounted to nothing
more than vigorous yet fair argument. (Ibid.)
Defendant's reliance on People v. McGreen (1980) 107
Cal.App.3d 504 [166 Cal.Rptr. 360] (overruled on other
grounds in People v. Wolcott (1983) 34 Cal.3d 92 [192
Cal.Rptr. 748, 665 P.2d 520]) is misplaced. In McGreen, the
prosecutor attempted to discredit the expert witness by showing
that he had received B and C grades in graduate school and that
the witness's membership in certain scientific societies was a
sham. The trial court eventually foreclosed further
Cross-examination on these grounds. The prosecutor
nevertheless persisted in the line of questioning and additionally
asserted that the witness's testimony had been stricken in
another case because it was "patently unbelievable." When
asked for authority to support the admission of such evidence
of the witness's “unbelievability," the prosecutor admitted he
had none. Additionally, during argument the prosecutor
suggested there had been an ethics investigation of the witness
and characterized the witness as an habitual liar who prostituted
his credentials for $50 an hour. (Id. at pp. 514- 517.)
In no way was the cross-examination in this case comparable to
that in McGreen. Here, the prosecutor elicited testimony
ORNS Ree F
DS
68
tending to show bias by questioning the witness about his
contrary testimony in previous cases and his interest in helping
the defense. Such cross-examination was proper. (See People v.
Rich (1988) 45 Cal.3d 1036, 1088 (248 Cal.Rptr. 510, 755 P.2d
960].) *181
8. Cross-examination of Ralph Ortega.
Defendant contends the prosecutor committed multiple
instances of prejudicial misconduct during the
cross-examination of Ralph Ortega, defendant's alibi witness in
the Wells case.
Ralph Ortega testified for the defense that he went with
defendant, Eugene Valenzuela, and others to a small ranch in
Tecate, Mexico on October 24, 1984. He testified further that he
stayed four days and returned to Los Angeles while defendant
remained at the ranch. Defendant was still there when Ortega
returned around midnight on October 30. They stayed on at the
ranch; defendant went with Ortega the next night, Halloween
eve, to take Ortega's son trick-or-treating.
On cross-examination the prosecutor elicited from Ortega that
he had been arrested about 5:45 a.m. on October 24, 1984, near
the Mexican border. He established that Ortega was not released
from custody until about 5 p.m. that evening. The prosecutor
noted that this information had not been revealed during
Ortega's testimony on direct examination and asked Ortega if
defense counsel had tried to avoid this subject. The prosecutor
made references to Ortega's decision to "fess up" because "I was
on to you" and asked if defense counsel had explained to him
that it was necessary to put defendant in Tecate around 10 or | l
a.m. on October 24. The prosecutor established that Ortega and
his friends just "hung around" the ranch. The prosecutor also
established that Ortega purchased and delivered food and
supplies to defendant and Valenzuela during their entire stay in
69
Tecate.
The prosecutor asked Ortega if counsel had explained to him
that he would be liable as an accessory after the fact if he ever
admitted that he knew that defendant had committed the
Belvedere Park murders at the time he took defendant to Tecate.
Ortega said no and denied any knowledge that defendant was
involved.
Later, when questioning Ortega about his knowledge of the
seizure of the 1968 Chevrolet Caprice at the border, the
prosecutor stated: "Are you going to stop your lying here in
court?" Defense counsel objected to the prosecutor's yelling, but
not to the question itself.
(12) Defendant contends that the prosecutor committed
misconduct by repeatedly suggesting that defense counsel had
colluded with Ortega in the fabrication of Ortega's alibi
testimony. In our view, the record, as described above, does not
support the assertion. Moreover, defendant has waived the point
by failing to object and request a timely admonition. (People v.
Green, supra, 27 Cal.3d at p. 27.) *182
(13) Defendant also claims that the prosecutor used his
cross-examination of Ortega to express his own personal
disbelief in Ortega's testimony. Defendant refers to the
questions suggesting that Ortega was lying. Again, no objection
was raised below, and the point is therefore waived since any
harm could have been cured by a prompt admonition. (People
v. Green, supra, 27 Cal.3d at p. 28.)
(14) Defendant asserts that the prosecutor improperly tried to
impeach Ortega with evidence of a drug arrest. Ortega was
arrested as an accessory to murder in this case, but he was
released from-custody after one day and charges were never
filed. When questioning Ortega about his arrest in this case, the
70
prosecutor queried, "You were also arrested for something else,
weren't you?" Defense counsel's objection was sustained. No
admonition was requested or given. Under these circumstances,
we fail to see how defendant could have been prejudiced by this
question since the jury was already aware that Ortega had been
arrested on the way to Tecate for possession of
methamphetamines. Moreover, the jury was given the standard
instruction (CALJIC No. 1.02) stating that a question is not
evidence and that they should not guess what the answer might
have been when an objection is sustained.
(15) Defendant also contends that the prosecutor improperly
questioned Ortega about his failure to volunteer his exculpatory
information to the police prior to trial. Defendant asserts that
the prosecutor was aware that Ortega had been arrested as an
accessory and had exercised his constitutional right to remain
silent. Indeed, Ortega explained that he had never told the
police about the alibi because he had refused to be interviewed.
On redirect Ortega explained that he had given his exculpatory
information to the defense attorneys and their investigator a
year before the trial. Therefore, even assuming that the
prosecutor's questioning in this area amounted to misconduct,
we conclude that defendant suffered no significant prejudice as
a result of it.
(16) Defendant complains about questions concerning remarks
made in the elevator after Ortega's testimony on direct
examination. The prosecutor, defense counsel, and Ortega had
a conversation in the elevator as they left the courthouse. No
jurors were present in the elevator. The following morning,
defense counsel reopened direct examination and questioned
Ortega about the conversation in the elevator. Ortega testified
that the prosecutor threatened him and said "someone is going
to jail behind this."
On cross-examination the prosecutor asked Ortega whether he
71
(the prosecutor) had made the alleged threat in response to a
question asked by *183 defense counsel. When Ortega
answered yes, the prosecutor asked if defense counsel had said
"Well, how do you guys like what happened in there today?"
Defense counsel objected and denied making the statement. The
objection was overruled. Ortega responded that he had heard
defense counsel say only, "What's up?"
Defendant argues that the prosecutor's question was asked in
bad faith. The claim is supported by nothing more than
defendant's bald assertion. No police officers who overheard the
conversation were called as witnesses by either the prosecution
or the defense. Since the record contains no basis for branding
the prosecutor's questioning as bad faith, we reject defendant's
contention.
9. Prosecutor's Argument.
Defendant contends that the prosecutor committed prejudicial
misconduct in a number of respects in addition to the claims
that we have already discussed. (17a) First, defendant charges
the prosecutor with improper attacks on defense counsel.
During the course of his lengthy review of the testimony of
virtually every witness, the prosecutor referred to attempts by
defense counsel to mislead the jury and, at one point, accused
defense counsel of perpetrating a fraud on the court. The
prosecutor also referred to defense theories and evidence as
"ridiculous". and "nonsense." Defendant interprets the
prosecutor's characterization of the defense testimony as lies
and concoctions, to be an accusation of defense fabrication of
evidence. Defendant also complains about the prosecutor's
repeated references to defense counsel's reaction to particular
testimony.
(18) "A prosecutor may vigorously argue his case, marshalling
the facts and arguing inferences to be drawn therefrom. (People
72
v. Fosselman (1983) 33 Cal.3d 572, 580 [189 Cal.Rptr. 855,
659 P.2d 1144].) We have held he may not express a personal
belief in defendant's guilt, in part because of the danger that
jurors may assume there is other evidence at his command on
which he bases this conclusion. (People v. Bain (1971) 5 Cal.3d
839, 848 [97 Cal.Rptr. 684, 489 P.2d 564].) We have also held
it improper for the prosecutor to imply that defense counsel has
fabricated evidence or otherwise to portray defense counsel as
the villain in the case. It is not necessary to find that such
implication impinges upon defendant's constitutional right to
counsel. (Compare People v. Turner (1983) 145 Cal.App.3d
658, 674 [193 Cal.Rptr. 614].) Instead it is sufficient to note
that defendant's conviction should rest on the evidence, not on
derelictions of his counsel. (People v. Perry (1972) 7 Cal.3d
756, 790 [103 Cal.Rptr. 161, 499 P.2d 129]; Bain, supra, 5
Cal.3d at p. 847.) Casting uncalled for aspersions on defense
*184 counsel directs attention to largely irrelevant matters and
does not constitute comment on the evidence or argument as to
inferences to be drawn therefrom." (People v. Thompson (1988)
45 Cal.3d 86, 112 [246 Cal.Rptr. 245, 753 P.2d 37].)
(17b) Defendant objected to many, but not all, of the cited
instances. For the most part, his objections were overruled. The
court did, however, sustain his objection to the accusation of
perpetrating a fraud on the court. It admonished the jury to
disregard the comment, stating that there had been no
perpetration of a fraud by any lawyer in this case. While we
agree that many of the cited remarks were improper, we do not
find them to have been prejudicial. The prosecutor was entitled
to argue the inconsistencies in the evidence and even to
characterize inconsistent testimony as "lies." (See People v.
Edelbacher, supra, 47 Cal.3d at p. 1030.) Here, however, the
prosecutor went beyond that point on several occasions,
denigrating counsel instead of the evidence. Personal attacks on
opposing counsel are improper and irrelevant to the issues. The
prosecutor's reference to counsel's reaction to particular
73
evidence was also improper for the same reason, but we do not
interpret it as a charge of fabrication of evidence. All of these
remarks were a small part of the prosecutor's very lengthy
review of the evidence presented. They were clearly
recognizable as an advocate's hyperbole. (See People v. Poggi,
supra, 45 Cal.3d at p. 340.) Accordingly, we find no reasonable
probability that the jury would have reached a more favorable
result absent the objectionable comments. (People v. Green,
supra, 27 Cal.3d at p. 36.)
(19) Defendant also contends that the prosecutor committed
misconduct because he expressed personal opinions regarding
the defense case. Defendant refers to the prosecutor's statement
that "I shake my head in disbelief every time I think about it
[Ralph Ortega's testimony]." Defendant also makes reference to
the prosecutor's statement: "They know the defendant killed
those boys. And they know he killed Ray and Marlene Wells."
Finally, defendant complains about the prosecutor's argument
about the disparities between defense promises of proof in the
opening statement and the trial evidence. Defendant waived all
but the first point by failing to raise a timely objection at trial.
(People v. Green, supra, 27 Cal.3d at p. 27.) As to the first
point, the remark was made in the context of reviewing the
discrepancies in defense testimony and was not likely to be
understood as being based on anything outside the record.
(20) Defendant further charges that the prosecutor committed
misconduct by referring to defendant's failure to testify at trial.
The prosecutor argued that he forestalled defense testimony by
preemptively proving that *185 defendant did not need glasses
at the time of the Belvedere Park offenses: "I should not have
proved to you earlier in the trial that he didn't need glasses at
the time in the park, because then you would have heard, "Well,
I was in the park, and you can see all the witnesses say I didn't
have any glasses on. And I saw one guy go do my friend in with
a knife. And another one came to me, and I thought he was
74
going to do me in. I ran over to help my friend and shot him,
and I shot him twice. I saw the other one. I couldn't see good
who was doing what to me, so I shot him. And the other one
coming at me, I shot him, too, because I just couldn't see good."
That's what you would have heard." A defense objection under
Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85
S.Ct. 1229] (Griffin) was sustained, and the court admonished
the jury to disregard the prosecutor's comments to the extent
they reflected on the defendant's not testifying. The prosecutor
referred to the glasses again in his rebuttal, stating: "And I
argued in my opening argument the fact that you would hear or
you would have heard, had we given them a little rope to hang
themselves, also you would have heard, ‘Well, I couldn't see. I
didn't have my glasses on, so therefore that's why I shot this
person and I had to shoot this person.’ " The defense objection
was overruled.
We believe that the court's initial admonition was sufficient to
obviate any Griffin concern. To the extent that the rebuttal
comment could be construed as a reference to defendant's
failure to testify, in context, it was clearly harmless. The
reference was a minor feature in this seemingly marathon
argument.
(21) Defendant contends that the prosecutor committed
misconduct by referring to defendant's courtroom appearance
(wearing a suit, wearing reading glasses, being clean-shaven) as
a "ploy" and by asserting that defendant did not need to wear
the glasses all the time during the trial. Defendant waived these
points by failing to object at trial, since any harm could have
been cured by timely objection and prompt admonition. (People
v. Green, supra, 27 Cal.3d at p. 27.) In any event, these
statements could not have had a prejudicial effect in light of the
overwhelming evidence of the Belvedere Park killings.
In sum, we find no denial of due process or a fair trial as a result
75
of any misconduct committed by the prosecutor. Both sides
seemed unduly argumentative and personal on occasion, but
such instances were not so frequent or severe as to detract from
the jury's fair consideration of the evidence.
10. Instruction on Reasonable Doubt.
In a supplemental brief, defendant argues that the instruction on
reasonable doubt, CALJIC No. 2.90, is constitutionally flawed,
citing Cage v. *186 Louisiana (1990) 498 U.S. 39 [112 L.Ed.2d
339, 111 S.Ct. 328]. Similar challenges to CALJIC No. 2.90
were raised and rejected in People v. Jennings (1991) 53 Cal.3d
334, 385-386 [279 Cal.Rptr. 780, 807 P.2d 1009] and People v.
Johnson (1992) 3 Cal.4th 1183, 1234-1235 [14 Cal.Rptr.2d 702,
842 P.2d 1]. As we noted in Jennings and Johnson, despite use
of the term "moral certainty" in CALJIC No. 2.90, the
instruction does not suffer from the flaws condemned in Cage
v. Louisiana, supra, 498 U.S. 39.
Defendant also cites Justice Mosk's criticism of CALJIC No.
2.90 in his concurring opinion in People v. Brigham (1979) 25
Cal.3d 283, 292-316 [157 Cal.Rptr. 905, 599 P.2d 100].
Recognizing that CALJIC No. 2.90 is a verbatim copy of
section 1096, Justice Mosk urged the Legislature to redraft the
definition of reasonable doubt in section 1096 to make it
intelligible to modern juries. The Legislature has not responded.
As Justice Mosk recognized, such changes must come from the
Legistature.
Penalty Phase Facts
Evidence in Aggravation.
The penalty case-in-aggravation consisted of evidence of three
prior crimes by defendant: 1) a 1978 assault upon a police
officer; 2) a 1979 conviction of assault with intent to commit
murder; and 3) a 1985 assault on a fellow jail inmate.
76
1. 1978 Assault.
Deputy Sheriff Randall Prestwich testified that on May 13,
1978, he and his partner heard gunshots in the vicinity of
Arizona Street in Los Angeles. They saw defendant and two
other men run from a house. Defendant had a shotgun. Deputy
Prestwich yelled at the men to freeze. The other two ran off, and
defendant brought the gun up to his waist and flinched, as if he
expected the gun to go off. Deputy Prestwich fired a shot at
defendant and saw defendant flinch again. Defendant turned and
ran. Deputy Prestwich caught him and arrested him for assault
on a police officer.
2. 1979 Assault.
Ernest Leos testified that on March 17, 1979, he and his son
were in their driveway when Jesse Trujillo's car stopped in front
of the driveway. Leos's son, Ernest, Jr., went over to the car and
was shot while talking to someone in the car. Defendant was
convicted of assault with intent to commit murder for this
shooting. *187
3. 1985 Assault.
Deputy Sheriff Kenneth Salazar testified that on March 21,
1985, defendant was working as a trusty in the high security
section of Los Angeles County jail. After defendant had
finished passing out and collecting breakfast trays, he was
ordered back to his cell so that Guy Walker could leave his cell
to take a shower. Walker received a razor blade and soap and
went into the shower. Defendant was then released from his cell
to complete his duties.
Deputy Lujan saw defendant run into the shower area, approach
Walker, and move his fist toward Walker's head. Deputy
Salazar saw defendant run from the shower area to the toilet
77
area. As he followed defendant, Deputy Salazar saw Guy
Walker slumped on the floor with blood on his face. Deputy
Salazar heard a toilet flush. When he reached the toilet area,
defendant was standing over a toilet. Deputy Salazar found a
small piece of razor in the doorway leading to the toilet area.
Walker's injuries could have been caused by a razor blade.
Evidence in Mitigation.
1. Walker Incident.
Guy Walker testified for defendant. He and defendant had
several arguments in March 1985 because defendant had been
named trusty and had the cell Walker wanted. Walker tried to
cut defendant's throat and to stab him. That same week,
defendant entered the shower area and they fought.
2. In-custody Behavior.
Deputy Sheriffs Ronald Hernandez and Anthony Campbell,
assigned. to the Los Angeles County jail, had never had
problems with defendant. Defendant was helpful and friendly,
and both deputies voted for him to be appointed a jail trusty.
3. Defendant's Family and Friends.
Patricia Solis struck up a friendship with defendant after she
had been dismissed as a prospective juror in the case. She
described defendant as an intelligent and sensitive person, who
cared about other people, and loved his children.
Edward Dominguez had known defendant since 1976, when he
opened his liquor store in the neighborhood. Defendant was
always a gentleman and, on one occasion, prevented a fight in
the store. *188
Richard Rodriguez, a gang consultant affiliated with the
teal tats ice ah
ee Ae
78
California Youth Authority, testified that although Arizona
Marivilla was once a street gang, since 1982 it had been
incorporated as a neighborhood association. Defendant
participated in the youth program when he was released from
prison in May 1984.
Defendant's wife and son described him as a nice, lovable man
who is a good father.
Defendant's mother, Elizabeth Luna, testified that defendant's
father, who had been abusive to her and the children, died when
defendant was six or seven. Luna then "went wild,” and began
drinking and partying. Defendant became "the man of the
house" upon his father's death, and he took care of his four
brothers and sisters, even stealing on occasion so they could eat.
Penalty Phase Contentions
1. Evidence of Gang Affiliation.
(22) Defendant contends that the erroneous admission of his
gang affiliation in the guilt phase prejudiced him in the penalty
phase because he had to call Richard Rodriguez to rebut that
evidence and the prosecutor improperly cross-examined him.
As previously noted, Richard Rodriguez testified in mitigation
that the Arizona Marivilla gang, which had been violent, was
reformulated in 1982 as a neighborhood association with the
goal of keeping the peace. He testified that after defendant left
prison in 1984 he was not involved in gang activities and that
defendant was working to keep young people out of gangs. On
cross- examination the prosecutor asked Rodriguez ifit was true
that Arizona Marivilla was one of the most violent gangs in
East Los Angeles and responsible for most of the murders in
that area from 1975 to 1985. The prosecutor also asked if
defendant was one of the most active members.
79
We find no error. First, we have already concluded that the
evidence of defendant's .gang membership was _ properly
admitted at the guilt phase. Second, the prosecutor was entitled
to attempt to negate the evidence in mitigation to the effect that
the Arizona Marivilla was now simply a peaceful neighborhood
association. (People v. Thompson, supra, 45 Cal.3d at p. 124.)
(23) It is well established that the prosecution may inquire of a
defense reputation witness whether he has heard of acts or
conduct by the defendant inconsistent with the witness's
testimony so long as the People have a good faith belief that the
acts or conduct about which they wish to inquire actually *189
took place. (People v. Siripongs (1988) 45 Cal.3d 548, 578 [247
Cal.Rptr. 729, 754 P.2d 1306].)
2. Consideration of Defendant's Age.
(24) Defendant contends that the jury was improperly allowed
by the court and prosecutor to consider his age as a factor in
aggravation. Defendant was 26 at the time of the offenses. The
court rejected defendant's special instruction stating that if
defendant's age were to be considered, it could be considered
only as a mitigating factor. The court gave CALJIC No. 8.84.1,
which permitted the jury to consider "the age of the defendant
at the time of the crime" in determining the appropriate penalty.
During the penalty argument, the prosecutor reviewed the
factors listed in CALJIC No. 8.84.1 and argued: "The age of the
defendant at the time of the crime. He 1s obviously old enough
to know the difference between right and wrong, and that's
aggravation."
Defendant acknowledges that we have rejected attacks on the
instruction given. (See, e.g., People v. Rodriguez (1986) 42
Cal.3d 730, 777-779 [230 Cal.Rptr. 667, 726 P.2d 113]; People
v. Lucky (1988) 45 Cal.3d 259, 301-302 [247 Cal.Rptr. 1, 753
P.2d 1052].) As we noted in People v. Lucky, supra, at page
302, mere chronological age should not of itself be deemed
either aggravating or mitigating: "In our view, the word ‘age’ in
statutory sentencing factor (i) is used as a metonym for any
age-related matter suggested by the evidence or by common
experience or morality that might reasonably inform the choice
of penalty. Accordingly, either counsel may argue any such
age-related inference in every case." (Ibid.)
The court did not err in rejecting defendant's proposed special
instruction, since it stated that inferences relating to defendant's
age could be considered only as a mitigating factor. Nor was
there any impropriety in the prosecutor's argument. The
prosecutor's argument that defendant was old enough to know
better, thus making it aggravating, is an age-related inference
that has been found permissible in a number of cases. (See
People v. Bonin (1988) 46 Cal.3d 659, 704-705, fn. 6 [250
Cal.Rptr. 687, 758 P.2d 1217]; People v. Brown (1988) 46
Cal.3d 432, 456-457 [250 Cal.Rptr. 604, 758 P.2d 1135].)
Defendant urges us to reexamine our construction of the age
factor in People v. Lucky, supra, 45 Cal.3d 259 and succeeding
cases, arguing that the unfettered discretion regarding how the
factor is to be considered renders it unconstitutional under the
principles of Gregg v. Georgia (1976) 428 U.S. 153 [49 L.Ed.2d
859, 96 S.Ct. 2909] and Maynard v. Cartwright (1988) 486
*190 US. 356 [100 L.Ed.2d 372, 108 S.Ct. 1853]. We rejected
a similar argument in People v. Babbitt (1988) 45 Cal.3d 660,
716 [248 Cal.Rptr. 69, 755 P.2d 253] and are not persuaded that
we should reexamine that reasoning. (See also People v.
Edwards (1991) 54 Cal.3d 787, 844 [1 Cal.Rptr.2d 696, 819
P.2d 436].)
3. Reference to Suffering by Victims and Their Families.
(25) Defendant contends that the prosecutor violated Booth v.
Maryland (1987) 482 U.S. 496 [96 L.Ed.2d 440, 107 S.Ct.
81
2529] and South Carolina v. Gathers (1989) 490 U.S. 805 [104
L.Ed.2d 876, 109 S.Ct. 2207] by urging the jury to consider
characteristics of the victims and the loss suffered by the
victims’ families. The allegedly objectionable references were
made in response to defense counsel's argument that the jury
should consider defendant's difficult childhood, including the
fact that he had to become the man of the house at the age of
eight, as illustrated by a photograph of defendant at his father's
funeral. [FN4]
FN4 Defendant's mother testified that defendant was six or
seven when his father died. The prosecutor, however,
referred to defendant as having been eight at the time of
his father's death.
The prosecutor stated: "I want you to think about this. | want
you to look at this picture very hard. When you have got it back
there in that room look at it. How hurtful it was at the time or
hurtful it is when you see it years later. But remember the
Aceves family. Replace all these faces. Put Anthony Aceves in
the casket.
"Put Anthony Aceves in that casket. Put his family around it.
Because it happened two years ago they are not victims? They
are hurt. He should be given compassion? The way he executed
that boy?
"Think about the parents and the family of Gilbert Martinez.
When they were standing around his casket and they were
crying and they were saying 'My God, how could this happen
to my child?’
"Marlene Wells. When she was on the ground and the defendant
was standing over her and putting two bullets in the back of her
head just before she is looking up at him. ‘Don't kill me.'
Begging for her life. And he shoots her brutally in the back of
82
the head.
“Think about it. They are funerals. Every time you look at this
funeral photograph produced by the defense you think of their
funerals. You think of their families. And you are called upon
to impose death in cascs like this when it's so aggravated. How
many people must he kill?" *191
During the pendency of this appeal, both Booth v. Maryland,
supra, 482 U.S. 496 and South Carolina v. Gathers, supra, 490
U.S. 805, were largely overruled. In Payne v. Tennessee (1991)
501 U.S. _ [115 L.Ed.2d 720, 111 S.Ct. 2597], the United
States Supreme Court held that the use of victim impact
evidence does not offend the Eighth Amendment guaranty of an
individualized penalty assessment in a capital trial. We have
since held that the injury inflicted by the defendant-including
evidence about the victim and the impact of the crime on the
victim's family-is one of the circumstances of the crime,
evidence of which is admissible under section 190.3, factor (a).
(People v. Edwards, supra, 54 Cal.3d 787, 833-836; People v.
Fierro (1991) 1 Cal.4th 173, 234-235 [3 Cal.Rptr.2d 426, 821
P.2d 1302}.)
The prosecutor's remarks were permissible under the principles
set forth in Payne v. Tennessee, supra, $01 U.S. ___ {115
L.Ed.2d 720, 111 S.Ct. 2597] and People v. Edwards, supra, 54
Cal.3d 787. Accordingly, defendant's claim must be rejected.
4. Biblical References.
Defendant contends that the prosecutor violated his rights to
due process, a fair trial, separation of church and state, and
freedom from cruel and unusual punishment by quoting biblical
authority in his final argument. We agree that the prosecutor's
argument was improper, but we conclude that it does- not
require reversal of the penalty judgment.
83
During final argument, defense counsel stated, inter alia: "It
seems almost to be in the theater of absurd to be talking about
life and death. I don't know what gives me the right to talk
about it .... [{]] What we have to really talk about is values,
purpose. You have to confront yourselves in terms of your own
feelings, what you demand from society, what you really
demand from Mr. Sandoval, what you demand from yourselves.
[{]] Revenge? That's really what we're talking about. When you
convicted Mr. Sandoval of these four murders and found the
special circumstances to be true, you already guaranteed one
thing. Fred Sandoval will die in the penitentiary is one of them
in the State of California. Period. He will never come out. He
will die in the penitentiary. [4] The question is is he going to die
whatever it is in three years in the gas chamber or is he going to
die of old age in the pen or is he going to die because someone
stabs him in the back in the penitentiary? But the reality is that
he is going to die in the penitentiary. That's already been
decided and you decided that.
“And in facing you again and thinking about that and thinking
about how hard your job is, how difficult your job is, in reality
you could sit, play God *192 to an individual. ... [4] In some
sense, I really don't know which is worse, execution or the gas
chamber or that kind of life in prison. But you have that power
alone. Any one of you can stop the execution alone. You have
that power. I have never held that awesome power of holding a
person's life in my hands. You have that power. You alone. [4]
You also have that responsibility that you are going to carry for
the very rest of your life whether you push that button or not.
And the bottom line is it's revenge. Because society to you
because you are society, you want to extract revenge. Or is it
bad enough to stop it and let this man live out his life in prison?
... [{] I have come to grasp it now. I looked at you in the eye
and you can look back at me. Doesn't change anything. Nothing
will bring back Anthony Aceves and Gilbert Martinez and the
two Wells. Nothing. Won't change. Bottom line is revenge. Just
84
pure and simple. Vengeance.
"If that's what you want, that's what you felt, you push the
button. An eye for an eye, a tooth for a tooth, a stripe for a
stripe, a life for a life. [4] 1 don't think society requires revenge.
I don't think that you require revenge. An eye for an eye. [{]
Ghandi [sic] said we do this eye for an eye thing, make society
require it and do it, what happens is the whole world becomes
blind. The light is shut out. That's not right. Don't shut out the
light. Don't make the world blind. Don't push that button."
The prosecutor responded to defense counsel's argument by
stating: "He told you that it's absurd to talk about life and death,
that the law is absurd, that you are playing God, that it's
revenge. [4] And that is to get you, of course, to vote for life
without the possibility of parole. Well, death is a legitimate
means of punishment in this state. It's available in this state.
You are called upon to impose it if you think it's appropriate.
You are across section of the community. People are judged by
a jury of their peers. You make that determination whether the
defendant should get the death penalty or life without the
possibility of parole. The defense wants to make that
burdensome for you. ['JEach and everyone [sic] of you from
here on must live with that decision. Push that button over
there. You must live with that decision for the rest of your
life.{"] [9] Well if it wasn't you called upon to carry out the will
of the People of the State of California, would have been
another jury, because that's our system. That's how the law is
affected in this state. [4] Don't once think that you have to feel
burdened and depressed because I voted for death. You are
doing what the law says if it's substantial, the aggravation
substantially outweighs the mitigation. Don't listen to this
lawyer talk. ..."
"Mr. Applebaum says don't play God. Let every person be in
subjection to the governing authorities for there is no authority
85
except from God and those *193 which are established by God.
Therefore, he who resists authority has opposed the ordinance
of God, and they who have opposed will receive condemnations
upon themselves for rulers are not a cause of fear for good
behavior, but for evil. Do you want to have no fear or authority?
Do what is good and you will have praise for the same for it is
a minister of God to you for good. But if you do what is evil, be
afraid for it does not bear the sword for nothing for it is a
minister of God an Avenger who brings wrath upon one who
practices evil. [J] You are not playing God. You are doing what
God says. This might be the only opportunity to wake him up.
God will destroy the body to save the soul. Make him get
himself right. ... [§] ... Let him have the opportunity to get his
soul right. That's the only way to get his attention. You are not
playing God. God ordains authority."
(26a) Defendant asserts that the material in the previous
paragraph was a paraphrase of Romans 13:1-7 and that such
reliance on biblical authority to advocate imposition of the
death penalty is improper. We agree.
The People seek to justify the argument as having been
appropriate rebuttal to defense counsel's argument. While the
question is close, we are of the opinion that the prosecutor's
argument crossed the line of permissible argument and rebuttal.
There are situations in which the prosecutor has been allowed
to make comments in rebuttal that would otherwise be
improper, when such comments are fairly responsive to the
argument of defense counsel. (See People v. McDaniel (1976)
16 Cal.3d 156, 177 [127 Cal.Rptr. 467, 545 P.2d 843] and
People v. Hill (1967) 66 Cal.2d 536, 560 [58 Cal.Rptr. 340, 426
P.2d 908]; see also United States v. Robinson (1988) 485 U.S.
25, 31-34 [99 L.Ed.2d 23, 30-33, 108 S.Ct. 864].) This,
however, is not such a situation.
Here, the prosecutor paraphrased a passage of the Bible that is
86
commonly understood as providing justification for the
imposition of the death penalty. Such argument is improper.
"The closing statements of counsel should relate to the law and
the facts of the case as each side interprets them." (People v.
Hawthorne, ante, 43, at p. 60 [14 Cal.Rptr.2d 133, 841 P.2d
118].) Though not expressly identified as such, the passage was
unmistakably biblical in style and readily recognizable by
persons schooled in the Christian religion. The prosecutor "may
state matters not in evidence that are common knowledge, or
are illustrations drawn from common experience, history, or
literature." (People v. Love (1961) 56 Cal.2d 720, 730 [16
Cal.Rptr. 777, 366 P.2d 33].) He may not, however, invoke
higher or other law as a consideration in the jury's sentencing
determination. (Jones v. Kemp (N.D.Ga. 1989) 706 F.Supp.
1534, 1559; Commonwealth v. Chambers (1991) 528 Pa. 558
[599 A.2d 630, 644].) The argument here was clearly improper
by exhorting the jury to consider factors outside section 190.3
in making its penalty determination. *194
(27) Penalty determinations are to be based on the evidence
presented by the parties and the legal instructions given by the
court. Reference by either party to religious doctrine,
commandments or biblical passages tending to undermine that
principle is improper. We recognize that the defense must be
allowed some latitude in its presentation of miti gating evidence.
Nevertheless, we do not understand that latitude to include
exhortation of religious canons as a factor weighing against the
death penalty. If the defense were to present such argument, it
would be subject to objection by the prosecution and possible
like-kind argument in rebuttal. (See United States v. Robinson,
supra, 485 U.S. at pp. 31-34 [99 L.Ed.2d at pp. 30-33].) What
is objectionable is reliance on religious authority as supporting
or opposing the death penalty. The penalty determination is to
be made by reliance on the legal instructions given by the court,
not by recourse to extraneous authority. (Jones v. Kemp, supra,
706 F.Supp. 1534, 1559.) We do not mean to rule out all
87
reference to religion or religious figures so long as the reference
does not purport to be a religious law or commandment.
(26b) Though we have found that the argument in this case
constituted misconduct, we do not find that it requires reversal
of the penalty judgment. The jurors deliberated for four days
before indicating that they were split six to six on two counts
and five to seven on the other two. After further deliberations
the next day, they returned verdicts of life without possibility of
parole on three of the counts and death on only one of the
counts. Under these circumstances, we find no reasonable
possibility that the jury would have reached more favorable
verdicts had the misconduct not occurred. (See People v.
Brown, supra, 46 Cal.3d 432, 448-449.) The result is the same
under the federal Chapman test (Chapman v. California (1968)
386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d
1065)).
5. Jury Deadlock.
Defendant contends that the trial court coerced the jury's verdict
by requiring it to continue deliberating after the jury had
declared a deadlock.
The jury retired for its penalty deliberations at 1:10 p.m. on
Thursday, March 12, 1987, and deliberated until 2:45 p.m.
Deliberations continued at 8:05 a.m. on Friday morning until
the court recessed the jury at 11:45 a.m. to allow counsel time
to submit argument on the appropriate response to a question
submitted by the jury. The jury had been given separate verdict
forms for each victim and it asked whether it could find that
different penalties are applicable to different counts. On
Monday morning, March 16, 1987, the court responded to the
jury's question by stating, “you should reach a verdict as to each
count if you can." At 8:50 a.m. the jury resumed *195
deliberations and continued until court was adjourned at 1:30
88
p.m. Deliberations continued on Tuesday, March 17, for an
hour and a half. After deliberating two and a half more hours
the next morning, March 18, the jury sent the court a note
stating, "We cannot reach a verdict. How do you proceed from
this point on, and what would you like us to do?" The court
called the jury out and asked the foreman whether there was
"any reasonable possibility, and I emphasize the word ' possible’
that the jury can arrive at a verdict as to any count given further
deliberations, the rereading of any testimony or the answering
of any question that I can answer?" The foreman answered,
"No. We have discussed that possibility, and we don't believe
that we can reach a verdict." The court then asked for the jury
division on each count and was told that it was six to six on
count 1, six to six on count 2 five to seven on count 3, and five
to seven on count 4. The court then polled each juror as to
“whether you think there is a reasonable possibility with further
deliberations you can arrive at a verdict as to any of the counts,"
and each juror replied, "No."
In a conference outside the jury's presence, the court indicated
that it wanted the jury to spend a little more time and that it
would probably declare a mistrial if the jury did not reach a
verdict the next day. The court estimated that the jury had
deliberated for about three full days and noted that a little more
time would not be unreasonable in light of the fact that the trial
had lasted five months. The court released the jury for that day
with directions to return at 7:45 a.m. the next morning. After
further deliberations the next morning, Thursday, March 19,
1987, the jury returned its verdicts of life without possibility of
parole as to counts 1, 2 and 3, and a verdict of death as to count
4.
Section 1140 provides: "Except as provided by law, the jury
cannot be discharged after the cause is submitted to them until
they have agreed upon their verdict and rendered it in open
court, unless by consent of both parties, entered upon the
89
minutes, or unless, at the expiration of such time as the court
may deem proper, it satisfactorily appears that there is no
reasonable probability that the jury can agree."
(28) "The determination whether there is reasonable probability
of agreement rests in the discretion of the trial court. (People v.
Miller (1990) 50 Cal.3d 954, 993 [269 Cal.Rptr. 492, 790 P.2d
1289]; People v. Sheldon (1989) 48 Cal.3d 935, 959 [258
Cal.Rptr. 242, 771 P.2d 1330]; People v. Rodriguez (1986) 42
Cal.3d 730, 775 [230 Cal.Rptr. 667, 726 P.2d 113]; People v.
Rojas (1975) 15 Cal.3d 540, 546 [125 Cal.Rptr. 357, 542 P.2d
229, 92 A.L.R.3d 1127]; People v. Carter (1968) 68 Cal.2d 810,
817 [69 Cal.Rptr. 297, 442 P.2d 353].) The court must exercise
its power, however, *196 without coercion of the jury, so as to
avoid displacing the jury's independent judgment ‘in favor of
considerations of compromise and expediency.’ (People v.
Carter, supra, 68 Cal.2d at p. 817.)" (People v. Breaux (1991)
1 Cal.4th 281, 319 [3 Cal.Rptr.2d 81, 821 P.2d 585].) The
question of coercion is necessarily dependent on the facts and
circumstances of each case. (Ibid.)
(29) Defendant argues that the length of time the jury had been
deliberating demonstrates that the jury had given careful
consideration to the evidence and that a mistrial would have
been warranted. (Compare People v. Rich, supra, 45 Cal.3d
1036, 1117 [court declined to declare mistrial on penalty after
jury declared itself unable to reach verdict following only one
hour of deliberation].) Defendant also cites the virtually even
split and the jurors’ individual statements against the usefulness
of further deliberations as indicating that the court should have
declared a mistrial. None of these factors, however, removed
the court's discretion to require further deliberations. The jury
had deliberated a similar amount of time in People v. Breaux,
supra, 1 Cal.4th 281, 317-320, when it was asked to continue
even though all of the jurors were negative on the prospects of
a verdict. In People v. Rodriguez, supra, 42 Cal.3d 730,
90
774-777, we found no abuse of discretion in requiring the jury
to continue deliberating after it declared itself unable to reach
a verdict following 18 days of deliberation.
As further evidence of his claim that the verdict was coerced,
defendant points to the facts that the order to continue
deliberations was unaccompanied by further explanation and
that the verdicts were reached shortly thereafter. The form of
the verdicts-three for life and one for death-is also cited as
evidence of "considerations of compromise and expediency"
(People v. Carter, supra, 68 Cal.2d at p. 817) rather than
independent judgment. We are not persuaded. Other
explanations for the difference in the verdicts are readily
apparent. The jury may have felt that only one death verdict was
necessary and that the killing of Marlene Wells was most
egregious since she had had no involvement with defendant.
Thus the difference in the verdicts may be explained by the
difference in the circumstances of the crimes. Defendant's
assertion that the verdicts should have been uniform is based on
the incorrect premise that the aggravating and mitigating
circumstances were the same as to each count. They were not.
Each murder had its own set of circumstances, which qualified
for consideration under factor (a) of section 190.3.
Nothing in the record suggests that the jury was coerced in any
way. The court made no statements that could be interpreted as
exerting pressure on any juror. The court viewed the jury as a
responsible group that took its duty seriously. The court was not
unreasonable in concluding that, in light of the *197 fact that
the trial itself had taken some five months, the jury should put
ina little more time than the fourteen and one-quarter hours it
had deliberated up to that point. The record shows no abuse of
discretion.
6. Separate Verdict Forms.
91
(30) Defendant contends that the trial court erred in requiring
the jury to return a separate penalty verdict as to each murder
victim. Defendant argues that the multiple verdicts obscured the
overriding constitutional value of reaching a comprehensive
determination of the appropriateness of the death penalty
considering all aggravating and mitigating circumstances and
invited compromise verdicts. He also claims that the multiple
penalty verdicts placed undue emphasis on the characteristics
and status of the individual victims, relying on Booth v.
Maryland, supra, 482 U.S. 496 and South Carolina v. Gathers,
supra, 490 U.S. 805. We are not convinced.
A defendant who kills more than one person may be convicted
and punished for each murder. (People v. Andrews (1989) 49
Cal.3d 200, 225 [260 Cal.Rptr. 583, 776 P.2d 285]; People v.
Ramos (1982) 30 Cal.3d 553, 587 [180 Cal.Rptr. 266, 639 P.2d
908].) Separate penalty verdicts have been returned in other
capital cases. The defendant in People v. Bittaker (1989) 48
Cal.3d 1046 [259 Cal.Rptr. 630, 774 P.2d 659] was convicted ~
of first degree murder of five victims and was given separate
death verdicts as to each murder victim. (Id. at pp. 1106, 1110,
fn. 34.) Likewise, the defendant in People v. Mattson (1990) 50
Cal.3d 826 [268 Cal.Rptr. 802, 789 P.2d 983], who was
convicted of the first degree murder of two girls, was given a
separate verdict of death as to each murder victim. (Id. at p.
838.) We are not persuaded that there is any impropriety in
requiring the jury to return a separate penalty verdict for each
capital murder count.
7. Standard for Imposition of Death.
(31) The court gave CALJIC No. 8.84.2 (1986 rev.) on the
standards for determining the penalty verdicts. Defendant
objects to the following language in that instruction: "To return
a judgment of death, each of you must be persuaded that the
aggravating factors are so substantial in comparison with the
92
mitigating factors that it warrants death instead of life in prison
without parole." Defendant complains that the instruction did
not inform the jury that a necessary condition for imposition of
the death penalty is a finding that aggravation outweighs
mitigation rather than merely being "so substantial in
comparison."
We rejected a similar challenge to this language in People v.
Breaux, supra, 1 Cal.4th at pages 315-316. There, as in this
case, the language in *198 question was preceded by
instructions that provide: "The weighing of aggravating and
mitigating factors does not mean a mere mechanical counting
of factors on each side of an imaginary scale, or the arbitrary
assignment of weights to any of them. You are free to assign
whatever moral or sympathetic value you deem appropriate to
each and all of the various factors you are permitted to consider.
In weighing the various ... factors you determine under the
relevant evidence which penalty is justified and appropriate by
considering the totality of aggravating factors with the totality
of the mitigating factors." The instructions given, in our view,
were sufficient to inform the jury that it could return a death
verdict only if the aggravating circumstances outweighed the
mitigating circumstances.
8. Cumulative Error.
Defendant contends that the cumulative effect of errors during
the penalty phase trial requires reversal of the penalty. Since we
have found only one error in the penalty phase, there is no
cumulative effect.
X
Conclusion
The judgment is affirmed.
Lucas, C. J., Kenner4, J., Arabian, J., Baxter, J., and George, J.,
concurred.
93
MOSK, J.,
Concurring and Dissenting.
I concur in the judgment as to guilt, death eligibility, and
noncapital sentence. After review, no error or other defect is
evident requiring reversal or vacation on any of these issues.
I dissent, however, from the judgment as to the sentence of
death. As will appear, there was prejudicial prosecutorial
misconduct bearing on this question.
1’
In summation at the penalty phase, defense counsel urged the
jury to fix the penalty for defendant at life imprisonment
without possibility of parole.
By contrast, the prosecutor asked for death. In the course of his
argument, he made the following comments.
"I want to respond to some of the things argued by [defense
counselj. He told you that it's absurd to talk about life and
death, that the law is absurd, that you are playing God, that it's
revenge. *199
"And that is to get you, of course, to vote for life without the
possibility of parole. Well, death is a legitimate means of
punishment in this state. It's available in this state. You are
called upon to impose it if you think it's appropriate. You are a
cross section of the community. People are judged by a jury of
their peers. You make that determination whether the defendant
should get the death penalty or life without the possibility of
parole. The defense wants to make that burdensome for you.
["]Each and everyone [sic] of you from here on must live with
that decision. Push that button over there. You must live with
that decision for the rest of your life.["]
"Well, if it wasn't you called upon to carry out the will of the
people of the State of California, would have been another jury,
because that's our system. That's how the law is affected in this
state.
"Don't once think that you have to feel burdened and depressed
because I voted for death. You are doing what the law says if
it's substantial, the aggravation substantially outweighs the
mitigation. Don't listen to this lawyer talk.
"(Defense counsel] says don't play God. [']Let every person be
in subjection to the governing authorities for there is no
authority except from God and those which are established by
God. Therefore, he who resists authority has opposed the
ordinance of God, and they who have opposed will receive
condemnations upon themselves for rulers are not a cause of
fear for good behavior, but for evil. Do you want to have no fear
of authority? Do what is good and you will have praise for the
same for it is a minister of God to you for good. But if you do
what is evil, be afraid for it does not bear the sword for nothing
for it is a minister of God an avenger who brings wrath upon
one who practices evil.["]
"You are not playing God. You are doing what God says. This
might be the only opportunity to wake him up. God will destroy
the body to save the soul. Make him get himself right. ...
"Let him have the opportunity to get his soul right. That's the
95
only way to get his attention. You are not playing God. God
ordains authority."
At this point, defense counsel objected and asked to approach
the bench, but met with summary denial. *200
II
"It is of course misconduct for a prosecutor to invoke purported
religious law in support of the imposition of the penalty of
death." (People v. Hill (1992) 3 Cal.4th 959, 1016 [13
Cal.Rptr.2d 475, 839 P.2d 984] (conc. opn. of Mosk, J.);
accord, People v. Wrest (1992) 3 Cal.4th 1088, 1107 [13
Cal.Rptr.2d 511, 839 P.2d 1020].)
"Argument of this sort by a representative of the government
offends California statutes and judicial decisions, which
establish the positive, secular law of this state as the rule
governing the choice between life and death (see People v.
Mincey (1992) 2 Cal.4th 408, 483-484 [6 Cal.Rptr.2d 822, 827
P.2d 388] (conc. & dis. opn. of Mosk, J.)). It also violates the
United States and California Constitutions-including their
respective clauses concerning establishment of religion (U.S.
Const., Amend. I; Cal. Const., art. I, § 4), cruel and unusual
punishments (U.S. Const., Amend. VIII; Cal. Const., art. I, §
17), and due process of law (U.S. Const., Amend. XIV; Cal.
Const., art. I, § 15)." (People v. Hill, supra, 3 Cal.4th at pp.
1016-1017 (conc. opn. of Mosk, J.); see also People v. Wrest,
supra, 3 Cal.4th at p. 1107 [holding that "such an argument
tends to diminish the jury's sense of responsibility for its verdict
and to imply that another, higher law should be applied in
capital cases, displacing the law in the court's instructions"].)
"It is well settled that religion may not play a role in the
sentencing process." (Jones v. Kemp (N.D.Ga. 1989) 706
F.Supp. 1534, 1559; accord, People v. Mincey (1992) 2 Cal.4th
96
408, 485 [6 Cal.Rptr.2d 822, 827 P.2d 388] (conc. & dis. opn.
of Mosk, J.); see People v. Wrest, supra, 3 Cal.4th at p. 1107.)
The jury has "a duty to apply the law of the [jurisdiction] as
given by the trial judge, not its own interpretation of the law or
its own interpretation of precepts of the Bible, in determining
whether the [defendant] should live or die." (Jones v. Kemp,
supra, 706 F.Supp. at p. 1559; accord, People v. Mincey, supra,
2 Cal.4th at p. 485 (conc. & dis. opn. of Mosk, J.); see People
v. Wrest, supra, 3 Cal.4th at p. 1107.)
The invocation of "the command of extrajudicial ‘law' from any
source other than the trial judge, no matter how well
intentioned, is not permitted." (Jones v. Kemp, supra, 706
F.Supp. at p. 1559; accord, People v. Mincey, supra, 2 Cal.4th
at p. 485 (conc. & dis. opn. of Mosk, J.); see People v. Wrest,
supra, 3 Cal.4th at p. 1107.)
Indeed, the "use ... of an extrajudicial code ... cannot be
reconciled with the Eighth Amendment's requirement that any
decision to impose death *201 must be the result of discretion
which is carefully and narrowly channelled and circumscribed
by the secular law of the jurisdiction." (Jones v. Kemp, supra,
706 F.Supp. at p. 1559; accord, People v. Mincey, supra, 2
Cal.4th at p. 485 (conc. & dis. opn. of Mosk, J.); see People v.
Wrest, supra, 3 Cal.4th at p. 1107.)
The Bible, of course, is just such an extrajudicial code. (People
v. Mincey, supra, 2 Cal.4th at p. 483 (conc. & dis. opn. of
Mosk, J.); Jones v. Kemp, supra, 706 F.Supp. at p. 1559.) Its
commands and prohibitions cannot be viewed as mere reliquiae
of a culture separated from ours by thousands of miles and
thousands of years. This is because "[t]o the average juror, ...
the Bible is an authoritative religious document ...." (Jones v.
Kemp, supra, at p. 1559; accord, People v. Mincey, supra, at pp.
483-484 (conc. & dis. opn. of Mosk, J.).)
97
It is also misconduct for a prosecutor to seek to "minimize the
jury's sense of responsibility for determining the
appropriateness of death." (Caldwell v. Mississippi (1985) 472
U.S. 320, 341 [86 L.Ed.2d 231, 247, 105 S.Ct. 2633]; accord,
People v. Wrest, supra, 3 Cal.4th at p. 1107.) "[U]nder the
Eighth Amendment 'the qualitative difference of death from all
other punishments requires a correspondingly greater degree of
scrutiny of the capital sentencing determination.'" (Caldwell v.
Mississippi, supra, at p. 329 [86 L.Ed.2d at p. 239], quoting
California v. Ramos (1983) 463 U.S. 992, 998-999 [77 L.Ed.2d
1171, 1178-1179, 103 S.Ct. 3446].) The assumption underlying
Eighth Amendment jurisprudence is that "a capital sentencing
jury recognizes the gravity of its task and proceeds with the
appropriate awareness of its 'truly awesome responsibility.’ "
(Caldwell v. Mississippi, supra, at p. 341 [86 L.Ed.2d at p.
247].) This premise is threatened when a representative of th
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.