52 Cal. 4th 610, 259 P.3d 1186, 130 Cal. Rptr. 3d 590

Filed 8/22/11 (reposted same date to correct concurring justices)



IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

S077166

v.

CRANDELL McKINNON,

Riverside County

Defendant and Appellant.

Super. Ct. No. CR69302



A jury found defendant Crandell McKinnon guilty of the first degree

1

murders (Pen. Code, ? 187) of Perry Coder and Gregory Martin and two counts of

possession of a firearm by a convicted felon (? 12021.1). The jury also found true

(1) the allegation that defendant personally used a firearm in the commission of

the murders (? 12022.5) and (2) the multiple-murder special-circumstance

allegation (? 190.2, subd. (a)(3)).

After a penalty trial, the jury returned a verdict of death. The court denied

defendant?s motion for new trial (? 1181) and automatic application to modify the

penalty verdict (? 190.4, subd. (e)) and sentenced him to death. This appeal is

automatic. (? 1239, subd. (b).) We affirm the judgment in full.

1

All further statutory references are to the Penal Code unless otherwise

indicated.


I. FACTS

A. Introduction



On January 4, 1994, defendant, a member of the Crips street gang, walked

up to Perry Coder behind the Desert Edge Motel, in Banning, and for no apparent

reason, placed his gun against Coder?s head, and shot him. Coder died almost

instantly. About five weeks later, at the nearby Meadowbrook Apartments,

defendant and Gregory Martin, a member of the Bloods street gang, argued briefly

before defendant fatally shot Martin in the head.

The prosecution presented eyewitness testimony and forensic evidence

consistent with these accounts. The Martin murder weapon was found a week

after that murder in a car driven by defendant?s girlfriend and in which defendant

was a passenger. About a month after the murders, while incarcerated in Chino

State Prison, defendant told Harold Black, a fellow inmate, that he had shot Martin

and a ?white boy? at the Desert Edge Motel.

B. Prosecution Guilt Phase Case

1. The murder of Perry Coder

On the evening of January 4, 1994, defendant, whose nickname was

Popeye, was driving a Cadillac with his friend, Orlando Hunt, in the passenger

seat. They drove to the Desert Edge Motel in Banning. The motel was located in

a high-crime area rampant with drug activities and operated as an apartment-type

complex. There was a dirt field behind the motel, to the west.

Gina Lee, who lived at the motel, saw defendant and Hunt arrive. She had

seen defendant in her room earlier that day with a black handgun. When he

arrived with Hunt that evening, defendant parked on the side of the motel, at the

north end of the lot, and he and Hunt got out of the car. Hunt spoke with Lee2 and


2

Lee and Hunt had a child together.

2


her cousin, Johnnetta Hawkins, who was with Lee. Defendant and Hunt then

walked to the back of the building. A short, White male, subsequently identified

as 23-year old Perry Coder was walking on Ramsey Street. Defendant told Hunt

?hold on, wait right [here].?

Hunt did not know Coder and thought that defendant might know him or

that the two were dealing drugs. He was unaware of any problems between

defendant and Coder. Hunt stood by a tree, approximately 47 feet from where

Coder?s body subsequently was found, and saw defendant walk up to Coder.

Without saying anything to Coder, defendant pulled a gun from his coat, extended

his right arm ?straight out? in front of his chest and shot Coder ?for no apparent

reason.? Coder immediately fell to the ground. Hunt ran from the scene.

During the same evening, Kerry Scott, who lived in Banning, was walking

westbound on Ramsey Street when he reached a field adjacent to the Desert Edge

Motel and saw Coder,3 who was walking eastbound on the same street.4 Coder

was alone and walking unsteadily. Scott walked approximately 50 yards into the

field and stood next to a tree, approximately 50 yards from where police

subsequently found Coder?s body. Scott saw defendant5 approach Coder and

stand approximately two to three feet in front of him, ?face to face.? Without

exchanging any words with Coder, defendant extended his right arm straight out,

turned his arm in and his gun to the side, and fired four shots. Coder fell to the

ground and exhibited no further movement. Scott ?took off running.?

3

Scott recognized Coder but had forgotten his name.

4

Earlier in the day, Scott walked from Banning to Cabazon, a distance of

approximately five miles. Scott frequently walked to and from Cabazon to visit a
friend.

5

Scott did not know defendant?s name and identified him as ?Popeye.?

Scott knew defendant had a sister named ?Robin.?

3


Lee was outside her motel room when she heard a gunshot and saw

defendant and Hunt running through the field. She left the area to buy drugs and

returned to her room about 30 minutes later. She saw defendant and Hunt at the

motel. Defendant ?looked kind of strange? and his eyes were ?just big and stuff.?

He appeared to be very agitated, upset, and hyper. When Lee asked defendant,

?what?s up,? he put his finger to his lips, said ?Shhhhh,? and told her somebody

was dead outside. Before they left the motel, Lee told Hawkins that when she saw

defendant outside the motel after hearing the gunshot, he threatened to kill her if

she said anything.

Thereafter, at approximately midnight, City of Banning Police Officer Bill

Caldwell, Jr., arrived on the scene and found Coder?s body lying adjacent to the

field between the roadway and the sidewalk. Coder apparently had been clutching

a jacket. The police did not recover any shell casings near the body and never

found the murder weapon.

The next day, Hunt was sleeping and rolled over to find defendant standing

in the doorway of his bedroom. Defendant told Hunt that if he said anything, ?this

could happen to you.?

On December 29, 1994, Caldwell and City of Banning Police Sergeant

Marshall Palmer interviewed defendant at Ironwood State Prison in Blythe,

regarding the Coder murder.6 The prosecution played a tape recording of the

interview for the jury. During the interview, after defendant initially denied being

in Banning in January l994, he admitted he had passed through the town that

month to see his daughter. When Caldwell and Palmer informed defendant that

three individuals witnessed him shoot Coder, defendant denied knowing Coder

and having shot him.

6

Defendant was in custody for a parole violation in an unrelated matter.

4


Daryl Garber, Chief Forensic Pathologist for Riverside County, performed

an autopsy on Coder?s body. Coder suffered a single gunshot wound to the head

and a black eye associated with the wound. The wound was a ?tight contact,?

meaning the muzzle was actually pressed tightly against Coder?s skin when the

gun was fired. The wound traversed the brain front to back, with a slightly left-to-

right and upward trajectory. The wound caused a rapid death, and there was no

other cause of death. There was no exit wound. Dr. Garber opined that the gun

inflicting the wound would have been ?pretty much level with the ground.?

Dr. Garber testified that although Coder probably had some detectable life signs

for a few minutes, he would have immediately lost consciousness, gone into a

coma for a few minutes, and then quickly died. Coder would have become

immediately incapacitated, or if he were walking at the time he was shot, he might

have continued taking at most one or two steps before falling down. Dr. Garber

recovered a bullet from Coder?s head during the autopsy.

2. The murder of Gregory Martin

During the evening of February 12, 1994, Gregory Martin was shot twice in

the head in front of the Meadowbrook Apartments in Banning. His wounds were

fatal. It was common knowledge that Martin, whose nickname was ?Moto,? was a

member of the Bloods street gang.

Palmer7 and other Banning police officers arrived at the crime scene,

secured the area, and searched unsuccessfully for relevant physical evidence.

Officers knocked on doors to see if they could locate any witnesses. Lloyd

Marcus was identified as a potential witness and was interviewed by Palmer at the

Banning Police Department, within one to one-and-a-half hours of Palmer?s

arrival at the murder scene.

7

Palmer was the detective bureau sergeant at the time of the Martin murder.

5


Marcus told Palmer that during the evening hours of February 12, 1994, he

was standing under a carport at the apartment complex when he saw two people

arguing in the street, ?something about money.? Marcus said he was able to see

them well because they were standing directly under a streetlight. Marcus

identified one of the men as ?Moto.? Initially, he could not identify the other man,

but subsequently told Palmer that his name was ?Popeye.? Marcus said Moto

asked Popeye, ?Where’s my money?? The two men began pushing each other, and

Popeye pulled a gun from his waistband and fired two rounds at Moto.

Marcus described Popeye as an adult Mexican or Asian male, ?six-two, six-

three, dark shoulder-length hair, weighing about 190 to 220 pounds.? Palmer

associated defendant with the name Popeye and knew that Martin was a Blood and

defendant was a Crip.

Palmer ?put the word out? that he needed to talk to Popeye and wanted him

brought in for questioning. Palmer and patrol officers searched for defendant at

various locations where he was known to hang out, but were unable to locate him

until months later, when defendant was in Ironwood State Prison in Blythe, on an

unrelated matter.

Riverside County Forensic Pathologist Joseph Choi conducted an autopsy

on Martin?s body. Martin suffered two gunshot wounds to his head, one just

below the eyebrow of his right eye, and the other on the back right side of his

head. The presence of gunpowder tattooing on Martin?s forehead and between his

eyelid and eyelash indicated his eye was open and the lid was folded up when the

first wound was inflicted. Dr. Choi estimated the distance between the muzzle and

the wound at the time the gun was fired to be approximately six to 12 inches. The

wound was fatal, and death occurred within minutes. Dr. Choi recovered the

bullet from the back left side of Martin?s head. The second gunshot wound was

behind Martin?s right ear and also would have been rapidly fatal.

6


On February 19, 1994, at around 11:00 p.m., Riverside County Deputy

Sheriff Peter Herrera stopped a light blue Cadillac for driving too slowly. Kimiya

Gamble, defendant?s girlfriend, was driving and defendant was in the front

passenger seat. When Herrera stopped them, there was a gun on the front seat

between them. Defendant told Gamble to put the gun in her purse, and she did

because she knew he was on parole. During a search of the car, Herrera found the

loaded gun in Gamble’s purse, which was on the front seat of the vehicle. Gamble

told Herrera she had borrowed the gun from ?some unknown person.?

Herrera arrested defendant and Gamble.8 Before they were taken to the

precinct station, and while Gamble was in the police car, defendant told her that

she should tell police she bought the gun on the street.9 Ballistics testing revealed

that the gun found during the search of the car was the Martin murder weapon.

In late February 1994, Harold Black was incarcerated with defendant at

Chino State Prison. Black grew up in Banning, was a drug user, and occasionally

associated with gang members. He knew those who claimed to be Crips and those

who claimed to be Bloods, and associated with both. Black and defendant were

acquainted with each other, but they were not friends. They were housed in the

same dormitory, and Black slept in close proximity to defendant. One night,

Black asked defendant why he was in jail. Defendant said that he was in for a gun

violation; that he and his girlfriend were riding in a car and had been pulled over;

and that he had put a gun in her purse. On another night, defendant asked Black if

he knew Moto. Black answered yes, and that he had heard Moto had been shot.

Defendant looked at Black, gave ?a little smile, and he says, ?I did it.? ?

8

The arrest report from this incident describes defendant as a 26-year-old

African-American male, five feet 10 inches tall, weighing 170 pounds.

9

Gamble subsequently was charged with, and pled guilty to, possession of a

concealed, loaded weapon.

7


Defendant said he stayed that night with a friend at the Meadowbrook Apartments,

and as he was leaving he saw Moto, crept up on him, pointed a gun at him, said,

?this is for Scotty,? and shot him in the head. Defendant said Moto ?just

crumbled, the body just fell.? Defendant also told Black that he ?shot that white

boy down at the Desert Edge motel.?

Black explained that ?this is for Scotty? referred to Scotty Ware, a Crip

who was killed at a party, supposedly by a Blood, and that defendant was a Crip.

It was common knowledge that the person who killed Ware was a Blood,

supposedly from the Pomona Island Bloods, and was hanging out in Banning.

Black said he did not hear defendant?s words when he continued to talk about the

Coder murder because he was stunned by defendant?s description of how Moto

crumbled to the ground.

In September 1995, Black ran into defendant again at the Robert Presley

Detention Center in Riverside. Defendant asked him whether the police had

contacted him and whether he had said anything. Black told him no. When he

asked defendant why, defendant said that Gregory Taylor had said something to

the police or the district attorney. During this conversation, Black recalled that he

had mentioned the shootings to Taylor. Black told defendant that he had not

talked to the police or anyone, and had not been questioned.

C. Defendant?s Guilt Phase Case

The defense presented two witnesses, Jessie James Brown and Charles

Neazer, in support of its theory of misidentification. Defendant also sought to

prove the Martin murder was not gang motivated.

On the night Coder was murdered, Brown10 and several others, including

Nona Woodson and Melva Murray, were in Brown?s room at the Desert Edge

10

At the time of trial, Brown was in custody for selling rock cocaine.

8


Motel. Brown heard one shot fired. After the shot, he waited in the room for 15

to 20 minutes before leaving. He tried to leave with Woodson in Murray?s light

blue Buick, which was parked in front of Brown?s door. The police stopped them

and arrested them for ?possession.? Brown did not see Scott or defendant?s car in

the parking lot that evening.

Neazer11 had lived in Banning off and on from 1973 through 1997. He

testified that there really was not any gang activity in the Banning area and that the

Crips and the Bloods were friends because everyone knew each other. According

to Neazer, there had never been any gang activities involving the Crips and the

Bloods in Banning.12 He and Moto hung out in Banning because each had friends

and relatives there. A few days before the murder, Neazer, Moto, and defendant

were together at the Eastside Park. They were friendly, talking and drinking.

Neazer did not believe Scotty Ware was a gang member, but if so, he may have

been affiliated with the Bloods. Neazer believed Ware was killed in late 1989 or

early 1990.

D. Prosecution Penalty Phase Case

1. Prior felony convictions (? 190.3, factor (c))

The parties stipulated that defendant was convicted of robbery (? 211) on

June 1, 1989, and being a convicted felon in possession of a handgun (? 12021.1)

on February 6, 1991.

11

Neazer ?claimed? the Bloods gang and had prior convictions for drug-

related offenses. At the time of trial, he was in custody for involuntary
manslaughter.

12

On cross-examination, when asked if he was aware that the majority of the

13 murder victims in Banning in 1994 were either Crips or Bloods, Neazer said he
was aware that ?a couple? of them were gang members.

9


2. Prior unadjudicated criminal activity involving force or violence

(? 190.3, factor (b))13

The prosecution introduced evidence of the following prior unadjudicated

criminal offenses involving force or violence, or the threat to use force or

violence, within the meaning of section 190.3, factor (b) (factor (b)).

On December 11, 1984, then 17-year-old defendant committed a robbery of

a teacher in the cafeteria of a continuation school in the Banning Unified School

District. (See pt. IV.A.3., below.)

On November 12, 1988, defendant was found to be in possession of .357-

caliber ammunition, several pieces of rock cocaine and $168 in cash, and was

arrested for possession for sale of rock cocaine. (See pt. IV.A.1., below.)

On January 23, 1991, defendant admitted ownership of a Rugar Redhawk

revolver handgun that Banning police officers found in his car and that defendant

admitted he had purchased that afternoon.

On August 10, 1992, defendant was arrested for battery stemming from a

altercation with his sister, Robin McKinnon (Robin). (See pt. IV.A.2., below.)

On February 5, 1997, defendant was found to be in possession of a metal

shank, approximately nine inches long, during a search of defendant?s cell at the

Robert Presley Detention Center in Riverside County. (See pt. IV.A.4., below.)

13

In addition to the evidence described here, the prosecution also presented

evidence in aggravation concerning a 1989 altercation between defendant and
Linda Bethune in which defendant allegedly hit Bethune. Trial counsel
subsequently moved to strike Bethune?s testimony on the ground her testimony
failed to conform to the proffer and was unreliable. The trial court granted the
motion and subsequently instructed the jury not to consider it in aggravation.

10


3. Victim impact testimony

Darlene Shelton, Coder?s fianc?e, testified that she was living with him at

the motel when he was murdered. After the police told her that Coder was dead,

she became hysterical. Shelton was pregnant with their child when he was

murdered and ?almost lost the baby? because ?his death . . . affect[ed] me so bad.?

Shelton?s other child considered Coder his father and missed him very much.

Dawn Coder, Coder?s sister, testified that she was near the scene of the

crime when Coder was murdered, and the police informed her of his death.

Thereafter, Dawn was an ?emotional wreck? for a week. The thyroid condition

she had at the time of the murder worsened. She mourned Coder?s death for a

year ?on the streets.? She missed Coder because he was no longer available to

guide her with her problems.

Suzanne Coder, Coder?s mother, testified that she was at the scene of the

murder. After hearing shots, she went outside and saw the feet of a partially

covered body in the street and knew by their size that they were Coder?s. When

the prosecutor asked her how close she was to Coder, she stated that Coder was

partially deaf and had a twin and that he and his siblings were close. After

Coder?s murder, she had ?fits of depression? and cried most of the time.

Mary Ann Martin, Martin?s sister, testified that she had another brother

who was killed within five months of Martin’s death. As a result of Martin?s

death, she no longer trusted people and stayed to herself.

E. Defendant?s Penalty Phase Case

Defendant?s mother, Janie Scott (Janie), his sister Jovina Brown, and his

estranged father, Robert Smith, testified on his behalf. Janie and Smith met when

Janie was 17 years old. Smith was married then and continued to have ongoing

relationships with other women during his relationship with Janie. Janie and

Smith had three other children: defendant?s sisters, Robin, Jovina, and Marcina.

Smith had other families and did not live with Janie and their children on a regular

11


basis. He would come by about three times a month, typically at the beginning of

each month. He took all of Janie?s welfare money and never provided financial

support. Janie and the children often went hungry. She had to rely on the charity

of family and friends to survive. When Smith was in their lives, they never

celebrated birthdays or holidays.

Smith was a serious heroin addict and injected the drug several times a day,

often in front of the children. He described how he would fund his habit by

committing armed robbery and larceny, and selling heroin.

Smith was physically abusive to Janie, frequently in front of their children.

Smith slapped Janie when she was pregnant with Jovina, and during one argument,

burnt her arm with a cigarette. Once, Smith beat Janie continuously as they

walked from their house to her sister?s house, on the other side of town. He beat

her again once they arrived. On another occasion, Smith punched Janie in the

stomach with his fist when she was seven months pregnant with defendant.

Smith began physically abusing defendant at the time he started to walk.

He beat all of the children, except Robin, with belts and electrical cords. When

defendant was two years old, Smith held him up by one hand, beat him, and threw

him in a closet. He often would shake the children like they were rag dolls, beat

them, and put them in dark closets for hours. The children were terrified of Smith.

At times, Janie would have to soak the children in Epsom salt baths in order to

close and heal the wounds Smith inflicted on them. Defendant and Jovina sought

comfort from each other.

Growing up, defendant feared Smith and began to have nightmares when he

was three years old. He would wake up from his sleep at night, screaming that

Smith was beating him. When defendant wet his bed, Smith would beat him and

make him stand in the corner, for hours, in his soiled underwear.

12


In 1971, the family lived in the projects, an area rampant with drug activity

and violent crimes, including rapes, fights, and shootings. On one occasion,

defendant and Jovina were playing outside when they witnessed someone hit a

man in the head with a baseball bat and ?there was blood everywhere.? When he

was five years old, defendant cut off part of one of his fingers. Defendant

received good grades in school.

In 1972, Smith went to prison upon his conviction for murder. He had no

further contact with Janie and their children. Thereafter, Janie became

romantically involved with Troy Scott (Troy).

Janie married Troy and, in 1975, the family moved to California. Troy

began to use heroin, sometimes in front of the children. Occasionally, they

experienced financial hardship, had little food to eat, and went without electricity

and gas.

Troy physically abused Janie, but not in front of the children. Troy also

slapped defendant and once beat him with a belt. When defendant wet the bed,

Janie often made him lie in it for a couple of days before allowing him to clean

himself. Eventually, Troy was unable to work, and the family went on welfare.

Defendant was protective of his siblings.

Around 1976, the family moved to Riverside County. Defendant continued

to do well academically and played Pop Warner football. He continued to write

poetry, which he had begun to do at an early age.

When defendant was 14 or 15 years old, he began to have trouble with the

law. He was shot in the arm, elbow, and leg. The family moved to Banning. He

became more protective of his mother.

Defendant continued to write poetry over the years, including while

awaiting trial in this case. He was a good father to his daughter, who was about

nine years old at the time of trial. Defendant was a good son to his mother, and a

13


good brother to his sisters. Defendant loves his nieces and nephews and tells them

to obey their mother and stay out of trouble.

II. PRETRIAL ISSUES

A. Denial of Severance

Defendant contends the trial court abused its discretion in denying his

pretrial motion to sever the Coder murder charge and its related firearm-

possession charge from the Martin murder charge and its related firearm-

possession charge.14 He additionally argues that, even if the trial court did not

abuse its discretion at the time it denied his motion, his joint trial actually resulted

in gross unfairness amounting to a denial of due process. As we explain,

defendant?s contentions are without merit.

Section 954 governs joinder and severance, providing in pertinent part:

?An accusatory pleading may charge . . . two or more different offenses of the

same class of crimes or offenses, under separate counts, and if two or more

accusatory pleadings are filed in such cases in the same court, the court may order

14

Defendant claims the erroneous denial of his severance motion violated his

Fifth, Eighth, and Fourteenth Amendment rights to due process, a fair trial, and
reliable verdicts. Pretrial, the trial court granted counsel?s motion to deem all of
his trial objections and motions to be made under the Fifth, Sixth, Eighth, and
Fourteenth Amendments. These additional constitutional arguments are therefore
not forfeited on appeal. (See People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
Except as otherwise indicated, defense counsel did not urge that different legal
standards governed the constitutional and nonconstitutional aspects of his
objections, but instead simply implied that insofar as the trial court?s act or
omission was wrong for the reasons actually presented to the court, it had the
additional legal consequence of violating the Constitution. In such cases, per our
standard practice, ?we resolve defendant?s multiple constitutional claims without
separate discussion. Rejection of a claim on its merits necessarily disposes of the
additional constitutional ?gloss.? (E.g., People v. Wallace (2008) 44 Cal.4th 1032,
1050, fn. 4.)? (People v. Hartsch (2010) 49 Cal.4th 472, 493, fn. 19 (Hartsch).)

14


them to be consolidated . . . . provided, that the court in which a case is triable, in

the interest 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 . . . .? When, as defendant concedes here, the statutory requirements for

joinder are satisfied, a defendant has the burden to clearly establish a potential of

prejudice sufficient to warrant separate trials. (People v. Cummings (1993) 4

Cal.4th 1233, 1283; People v. Stitely (2005) 35 Cal.4th 514, 531 (Stitely).)

?[T]he trial court?s discretion under section 954 to deny severance is

broader than its discretion to admit evidence of uncharged crimes under Evidence

Code section 1101? because, in large part, a joint trial ?ordinarily avoids the

increased expenditure of funds and judicial resources which may result if the

charges were to be tried in two or more separate trials.? (People v. Bean (1988) 46

Cal.3d 919, 935-936; accord Hartsch, supra, 49 Cal.4th at p. 493.) ?Denial of a

severance motion may be an abuse of discretion if the evidence related to the

joined counts is not cross-admissible; if evidence relevant to some but not all of

the counts is highly inflammatory; if a relatively weak case has been joined with a

strong case so as to suggest a possible ?spillover? effect that might affect the

outcome; or one of the charges carries the death penalty.? (People v. Cummings,

supra, 4 Cal.4th at p. 1283; see People v. Zambrano (2007) 41 Cal.4th 1082,

1128-1129 (Zambrano); People v. Bradford (1997) 15 Cal.4th 1229, 1315

(Bradford.) In assessing whether there was an abuse of discretion, we examine the

record before the trial court at the time of its ruling. (Zambrano, supra, at p.

1128.) Here, we conclude the trial court?s denial of severance was not an abuse of

discretion.

Defendant argues at length that the trial court erred in finding evidence

related to the two murders to be cross-admissible. We need not, and do not,

decide this question, however, because, as we hereafter explain, defendant fails to

15


establish that, notwithstanding any absence of cross-admissibility, he was unfairly

prejudiced by joinder of the two murder cases. ? ?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. Sandoval (1992) 4 Cal.4th 155, 173, quoting People v. Mason (1991)

52 Cal.3d 909, 934; see Bradford, supra, 15 Cal.4th at p. 1316.) ?[E]ven if cross-

admissibility did not support consolidation of the cases, the absence of cross-

admissibility alone would not be sufficient to establish prejudice where (1) the

offenses were properly joinable under section 954, and (2) no other factor relevant

to the assessment of prejudice demonstrates an abuse of discretion.? (People v.

Geier (2007) 41 Cal.4th 555, 577 (Geier), citing Stitely, supra, 35 Cal.4th at pp.

531-532; see Bradford, supra, 15 Cal.4th at pp. 1317-1318.) As we discuss

below, defendant fails to persuade us that factors other than the lack, if any, of

cross-admissibility, demonstrate the need for severance.

Neither murder was especially likely, or more likely than the other, to

inflame the jury?s passions. Each killing was cruel and brutal and committed for

seemingly trivial reasons. Contrary to defendant?s assertions, the proffered gang

evidence in the Martin case was not unduly inflammatory. As we explain in part

III.A.3, below, the prosecution did not proffer evidence of any specific acts of

violence between members of the gangs involved in Martin?s murder other than,

of course, evidence that his murder was connected to a prior gang-related murder.

This evidence, however, paled in comparison to the evidence of the most

prejudicial facet of the Coder murder?its absolute senselessness.

Defendant?s argument that the asserted superficial similarities between the

crimes (i.e., both victims were shot in the head, both murders were committed at

night) invited the jurors improperly to cumulate the evidence and consider the

charges in concert is unpersuasive. This was not a matter in which a weak case

16


was joined with a strong case, or with another weak case, thereby ?causing a

spillover effect that might have unfairly altered the outcome of the trial.? (People

v. Stanley (2006) 39 Cal.4th 913, 935.) Strong evidence supported both cases.

It is true, as the jury learned, that most of the prosecution witnesses had

suffered prior convictions and had substance abuse problems. Harold Black had a

pending robbery charge at the time of trial. Nonetheless, defendant confessed to

each murder, and he was identified by eyewitnesses as the perpetrator of each

crime. The eyewitness testimony in the Coder case, moreover, was materially

consistent with the forensics evidence showing that he was shot in the head at

close range and that the gun was level to the ground and pressed against his head

when defendant shot him. In addition, the forensics evidence corroborated the

testimony of Orlando Hunt and Kerry Scott that Coder took at most a couple of

steps after he was shot before he fell to the ground.

In the Martin case, the forensics evidence corroborated eyewitness Lloyd

Marcus?s statement that the killer fired two rounds at Martin at close range. Also,

the prosecution presented evidence that, within approximately one week after the

murder, defendant gave the murder weapon to his girlfriend. Thus, the evidence in

each case was equally strong. We see no possibility that the jury was improperly

influenced by the evidence of one murder in determining his guilt of the other.

Defendant correctly points out that, because the present matter is ?one in

which the joinder itself gave rise to the special circumstance allegation (multiple

murder, ? 190.2, subd. (a)(3)), . . . a higher degree of scrutiny [must] be given the

issue of joinder.? (Bradford, supra, 15 Cal.4th at p. 1318.) But the trial court here

heard counsel?s extensive argument on the issue and carefully scrutinized the

evidence. Our review of the record fails to disclose any abuse of discretion by the

trial court in denying defendant?s motion to sever.

17


Finally, defendant does not show joinder in this matter amounted to a

denial of fundamental fairness. ? ?A pretrial ruling that was correct when made

can be reversed on appeal only if joinder was so grossly unfair as to deny due

process.? ? (Hartsch, supra, 49 Cal.4th at p. 494, quoting Stitely, supra,

35 Cal.4th at p. 531.) In light of defendant?s confessions, the eyewitness

identifications of defendant as the perpetrator of each killing, and forensic

evidence that corroborated the eyewitnesses? accounts of the murders, joinder of

the murder charges did not render defendant?s joint trial fundamentally unfair.

B. Denial of Defendant?s Motion for Individual Sequestered Voir Dire

of the Prospective Jurors

Defendant contends the trial court?s denial of his motion for individual

sequestered voir dire violated his rights under the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the federal Constitution and parallel provisions of the

California Constitution. His contention lacks merit.

?In Hovey v. Superior Court (1980) 28 Cal.3d 1, 80, we stated that, to

minimize the potentially prejudicial effects of voir dire conducted in open court, in

future capital cases, the portion of the voir dire of each prospective juror involving

death qualification should be done individually and in sequestration.? (People v.

Avila (2006) 38 Cal.4th 491, 559 (Avila).) On June 5, 1990, the voters adopted

Proposition 115, which, among other things, abrogated Hovey by adding section

223 of the Code of Civil Procedure, containing a provision stating that ? ?where

practicable, [voir dire shall] occur in the presence of the other [prospective] jurors

in all criminal cases, including death penalty cases.? ? (People v. Slaughter (2002)

18


27 Cal.4th 1187, 1199 (Slaughter).) Because defendant was tried after Code of

Civil Procedure section 223 was enacted, that section controls here.15

Before trial, defendant moved for individual sequestered voir dire. He

asserted a significant possibility of prejudice existed in this case because the

circumstances of the murders of two young men would present emotional issues,

evidence of gang affiliation and rivalry would be introduced, defendant was a

young African-American man, and the nature of the death-qualification process

itself was prejudicial. The trial court summarily denied his request for sequestered

voir dire, but granted his motion for the use of a questionnaire containing 50

questions drafted by the parties.

Initially, defendant contends that any restriction on individual and

sequestered voir dire on death-qualifying issues, including that imposed by Code

of Civil Procedure section 223, violates a defendant?s rights to an impartial jury, to

15

At the time of defendant?s 1998-1999 trial, section 223 of the Code of Civil

Procedure provided: ?In a criminal case, the court shall conduct the examination
of prospective jurors. However, the court may permit the parties, upon a showing
of good cause, to supplement the examination by such further inquiry as it deems
proper, or shall itself submit to the prospective jurors upon such a showing, such
additional questions by the parties as it deems proper. Voir dire of any prospective
jurors shall, where practicable, occur in the presence of the other jurors in all
criminal cases, including death penalty cases. [?] Examination of prospective
jurors shall be conducted only in aid of the exercise of challenges for cause. [?]
The trial court?s exercise of its discretion in the manner in which voir dire is
conducted shall not cause any conviction to be reversed unless the exercise of that
discretion has resulted in a miscarriage of justice, as specified in Section 13 of
Article VI of the California Constitution.? (Added by Prop. 115, approved by
voters, Primary Elec. (June 5, 1990).) As amended effective in 2001, that section
grants counsel for each party a limited right to examine prospective jurors through
direct oral questioning. (Code Civ. Proc., ? 223, as amended by Stats. 2000, ch.
192, ? 1; see also People v. Stewart (2004) 33 Cal.4th 425, 455 & fns. 17 & 18
(Stewart).)

19


a reliable death sentence, and to the effective assistance of counsel under the

Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. Consistent

with past decisions, we reject this contention. (See, e.g., People v. Lewis (2008)

43 Cal.4th 415, 494 (Lewis); Avila, supra, 38 Cal.4th at p. 559; People v. Vieira

(2005) 35 Cal.4th 264, 287-288 (Vieira); Stitely, supra, 35 Cal.4th 514, 537.)

Defendant next contends the trial court?s summary denial of motion did not

amount to a reasoned judgment, and thus constitutes an abuse of discretion.

?Under Code of Civil Procedure section 223, the question of whether individual,

sequestered voir dire should take place is entrusted to the trial court?s discretion.

[Citations.] Discretion is abused when the questioning is not reasonably sufficient

to test prospective jurors for bias or partiality.? (People v. Tafoya (2007) 42

Cal.4th 147, 168.)

Here, we agree with the People that, although the trial court did not state its

reasons for denying defendant?s motion for sequestered voir dire, its remarks

during voir dire confirm that its denial of the motion reflected careful

consideration of the issue and that it properly exercised its discretion. Before the

commencement of voir dire, the court explained to the prospective jurors that use

of the questionnaires would save about two to three weeks in selecting a jury

because it would obviate the need to question them and listen to their answers in

open court. The court offered prospective jurors the option to discuss sensitive

subjects in private, if needed. In the context of these comments, it is apparent the

trial court thoroughly considered the issue and determined group voir dire was

adequate. The court?s denial of defendant?s motion was not outside the bounds of

reason.

Defendant additionally contends that group voir dire was not ?practicable?

within the meaning of Code of Civil Procedure section 223 because prospective

jurors were influenced by the responses of others. He observes that, during voir

20


dire, Prospective Juror S.R. expressed in front of other prospective jurors her

views that she did not think she could ever vote to impose a death sentence. The

trial court dismissed her for these views. Defendant asserts this juror?s views

suggested to other prospective jurors who favored the death penalty and wished to

serve, but feared disqualification based on their pro-death penalty views, that they

could avoid dismissal by expressing less support for the death penalty and

conveying a willingness to consider both penalties if they served.

?The possibility that prospective jurors may have been answering questions

in a manner they believed the trial court wanted to hear,? however, ?identifies at

most potential, rather than actual, bias and is not a basis for reversing a judgment.?

(Vieira, supra, 35 Cal.4th at p. 289.) Indeed, the purpose and effect of the ?group

voir dire? requirement of Code of Civil Procedure section 223 would be obviated

if nonsequestered questioning were deemed ?[im]practicable? because of the

speculative concern that one prospective juror?s death penalty responses might

influence the responses of others in the venire. It is precisely this premise of

People v. Hovey, supra, 28 Cal.3d 1, that Proposition 115?s adoption of Code of

Civil Procedure section 223 was intended to overrule. (Vieira, supra, at p. 288,

citing Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168, 1178.)

Finally, defendant asserts that the group voir dire procedure employed by

the trial court was inadequate to identify prospective jurors whose views on the

death penalty rendered them partial and unqualified to serve. As a result, he

asserts, the court was unable to determine whether any of the prospective jurors

who sat on the jury in his case held disqualifying views that impaired their ability

to judge him in accordance with the court?s instructions. Defendant, however,

does not ?describe any specific example of how questioning prospective jurors in

the presence of other jurors prevented him from uncovering juror bias.? (People v.

21


Navarette (2003) 30 Cal.4th 458, 490.) Accordingly, defendant has not

demonstrated he was prejudiced by the trial court?s use of group voir dire.

C. Excusal of Prospective Jurors for Cause

In Witherspoon v. Illinois (1968) 391 U.S. 510 (Witherspoon), the United

States Supreme Court held that a death sentence cannot be carried out if the jury

that imposed or recommended the penalty was selected by excluding prospective

jurors for cause ?simply because they voiced general objections to the death

penalty or expressed conscientious or religious scruples against its infliction.?

(Witherspoon, supra, 391 U.S. at p. 522.) In Wainwright v. Witt (1985) 469 U.S.

412 (Witt), the high court clarified the standard enunciated in Witherspoon and

held that a prospective ?juror who is substantially impaired in his or her ability to

impose the death penalty under the state-law framework can be excused for cause;

but if the [prospective] juror is not substantially impaired, removal for cause is

impermissible.? (Uttecht v. Brown (2007) 551 U.S. 1, 9 (Uttecht), citing Witt,

supra, at p. 424.) Under Witt, a prospective juror is ?substantially impaired? and

may properly be excused for cause if he or she is unable to follow the trial court?s

instruction and ?conscientiously consider all of the sentencing alternatives,

including the death penalty where appropriate.? (People v. McWhorter (2009) 47

Cal.4th 318, 340 (McWhorter).)

Defendant contends the trial court erroneously excused Prospective Jurors

R.A., J.S., R.G., G.H., and P.F. for cause based on their views regarding the death

penalty, in violation of his constitutional rights to a fair and impartial jury, due

process, and a reliable verdict under the Sixth, Eighth, and Fourteenth

Amendments. He also impliedly claims that the procedure by which the trial court

resolved the challenges for cause of these individuals was constitutionally

defective. The People argue not only that defendant?s claims lack merit but also

that defendant has forfeited both procedural and substantive challenges to the

22


excusals of the prospective jurors because his trial counsel either expressly agreed

to the procedures or rulings leading to those excusals, or affirmatively acquiesced

in them by stating that the defense would ?submit? the matters. We reject both of

defendant?s claims.

At stake here are the important interests of a capital defendant?s

constitutional right to a fair and impartial penalty trial and the People?s

expectation of, and entitlement to, finality of capital judgments. Manifestly, our

efforts in reconciling these competing interests depend, in significant part, on the

fair and orderly administration of our criminal justice system. A fundamental

tenet of our system of justice is the well-established principle that a party?s failure

to assert error or otherwise preserve an issue at trial ordinarily will result in

forfeiture of an appeal of that issue. ? ?The purpose of the general doctrine of

waiver is to encourage a defendant to bring errors to the attention of the trial court,

so that they may be corrected or avoided and a fair trial had.? ?16 (People v.

Walker (1991) 54 Cal.3d 1013, 1023, quoting People v. Melton (1990) 218

Cal.App.3d 1406, 1409.)

In People v. Velasquez (1980) 26 Cal.3d 425 (Velasquez), this court

observed that ?[t]he decisions of the United States Supreme Court and of the

California courts have unanimously ruled that Witherspoon [excusal] error is not

16

As we stated in People v. Saunders (1993) 5 Cal.4th 580: ?In this context,

the terms ?waiver? and ?forfeiture? have long been used interchangeably. . . .
[H]owever: ?Waiver is different from forfeiture. Whereas forfeiture is the failure
to make the timely assertion of a right, waiver is the ?intentional relinquishment or
abandonment of a known right.? [Citations.]? [Citation.]? (Id. at p. 590, fn. 6.)
Thus, here, we characterize the issue as whether counsel?s failure to object to the
excusals at trial forfeited, rather than waived, the issue on appeal.

23


waived by mere failure to object.?17 (Id. at p. 443.) There, we adopted the rule

that a defendant?s failure to object to a Witherspoon excusal at trial does not forfeit

the issue on appeal (the ?no-forfeiture rule ?). (Velasquez, at p. 443.) This case

presents an occasion to reconsider the validity of this rule, and, as we explain

below, we conclude that the rule finds no support in either the United States

Supreme Court or California decisional law on which it relies. For this reason,

and others that we explain in detail below, we abandon our no-forfeiture rule with

respect to Witherspoon/Witt excusal error. In addition, we require, prospectively,

counsel (or defendant, if proceeding pro se) to make either a timely objection, or

the functional equivalent of an objection (i.e., statement of opposition or

disagreement) to the excusal on specific grounds under Witherspoon/Witt in order

to preserve the issue for appeal.

1. The jury selection process and written questionnaire

At the beginning of the jury selection process, the trial court proposed to

pare down the jury pool to a size the courtroom could accommodate by using the

questionnaires defendant had requested, and helped to draft, in order to eliminate

prospective jurors whose questionnaire responses reflected death penalty views

that precluded their service in a capital case. The prosecutor concurred, and

defense counsel raised no objection.

Thereafter, during a discussion of the questionnaires, the prosecutor

expressed his understanding that the two sides had ?agreed on everything.?

Defense counsel responded, ?That?s fine, Your Honor.?

17

Because our decision in Velasquez predated the high court?s decision in

Witt, which, as stated, clarified the Witherspoon standard for excusing prospective
jurors for cause, our analysis of Velasquez below refers to ?Witherspoon? instead
of ?Witherspoon/Witt? excusal error.

24


The court read 111 completed juror questionnaires, each 21 pages long.

The court and counsel then addressed, one by one, certain prospective jurors

whom the court had preliminarily identified, by reason of their written responses,

as ?questionable.? During this process, defense counsel expressly stipulated to the

excusal of several prospective jurors, based solely on their questionnaire answers.

Thereafter, the court and counsel discussed one by one the remaining prospective

jurors, and the prosecutor stipulated to the excusals for cause of Prospective Jurors

R.A., J.S., R.G., G.H., and P.F. Counsel ?submitted? each matter. In addition,

with respect to Prospective Jurors R.A. and J.S., defense counsel declined the

court?s offer to conduct oral voir dire. The court then excused each of these

prospective jurors for cause, based solely on their questionnaire responses.

2. Discussion

a. Forfeiture

Preliminarily, insofar as defendant now claims the wording of the

questionnaires was inherently incapable of revealing that a prospective juror was

unqualified, his words or conduct during the jury selection proceedings, described

above, constituted express agreements or stipulations to the contrary. He therefore

has forfeited such a contention.

Turning now to defendant?s substantive claims that the excusals of the five

prospective jurors were improper under Witherspoon/Witt, the People insist

defendant forfeited these claims on appeal because counsel expressed no

objection, argument, or opposition, but merely ?submitted? these matters to the

trial court. In a number of our cases (e.g., People v. Lynch (2010) 50 Cal.4th 693,

733 (Lynch); People v. Hawthorne (2009) 46 Cal.4th 67, 82-83; People v.

Schmeck (2005) 37 Cal.4th 240, 262 (Schmeck)), dating back to Velasquez, supra,

26 Cal.3d 425, we expressed the rule that an appellate challenge to a

Witherspoon/Witt excusal is not forfeited by a failure to object at trial, or even by

25


counsel?s affirmative statement to the trial court that the matter is ?submitted.?

Here, by counsel?s submission of the matters to the trial court, ? ?as a practical

matter, he ?did not object to the court?s excusing the juror, but . . . also refused to

stipulate to it.? ? [Citation.]? (Lynch, supra, at p. 733.) Under our precedent,

defendant therefore did not forfeit this claim on appeal. (Ibid.)

Nevertheless, we take this opportunity to reexamine, for future purposes,

our no-forfeiture rule as established in Velasquez. As we explain, we conclude

Velasquez was based on a faulty premise and was wrongly decided. For this and

the additional reasons discussed below, we overrule People v. Velasquez, supra,

26 Cal.3d 425, to the extent it provides that failure to object to a Witherspoon

excusal at trial does not forfeit the issue on appeal.

?[A]s a general rule, ?the failure to object to errors committed at trial

relieves the reviewing court of the obligation to consider those errors on appeal.?

(Fischer et al., Appeals and Writs in Criminal Cases (2d ed. 2000) ? 1D.26,

pp. 182?183; see also 4 Cal.Jur.3d (1998) Appellate Review, ? 175, pp. 233?234.)

This applies to claims based on statutory violations, as well as claims based on

violations of fundamental constitutional rights. [Citations.] [?] The reasons for

the rule are these: ? ?In the hurry of the trial many things may be, and are,

overlooked which would readily have been rectified had attention been called to

them. The law casts upon the party the duty of looking after his legal rights and of

calling of the judge?s attention to any infringement of them. If any other rule were

to obtain, the party would in most cases be careful to be silent as to his objections

until it would be too late to obviate them, and the result would be that few

judgments would stand the test of an appeal.? ? [Citation.]? (In re Seaton (2004)

34 Cal.4th 193, 198.)

A careful review of our forfeiture analysis in Velasquez reveals that this

court established the exception to the objection requirement for Witherspoon

26


excusal error based on the mistaken assumption that post-Witherspoon decisions

of the high court and this court ruled such error is not forfeited on appeal by

failure to object at trial. (Velasquez, supra, 26 Cal.3d at p. 443, citing Maxwell v.

Bishop (1970) 398 U.S. 262 (Maxwell); Boulden v. Holman (1969) 394 U.S. 478

(Boulden); Wigglesworth v. Ohio (1971) 403 U.S. 947 (Wigglesworth); Harris v.

Texas (1971) 403 U.S. 947 (Harris); People v. Risenhoover (1968) 70 Cal.2d 39

(Risenhoover); In re Anderson (1968) 69 Cal.2d 613 (Anderson).)

This court first applied the no-forfeiture rule set forth in Velasquez in

People v. Lanphear (1980) 26 Cal.3d 814, 844-846 (Lanphear). We did so citing

Velasquez as the sole authority for excusing the defendant?s failure to object to the

Witherspoon excusals, and without mention of the majority?s rationale for

adopting the rule. (Lanphear, supra, 26 Cal.3d at p. 844.) In his dissent to the

majority?s conclusion in Lanphear, however, Justice Clark correctly observed that

each of the post-Witherspoon decisions cited in Justice Tobriner?s lead opinion in

Velasquez in support of the no-forfeiture rule involved trials that had preceded the

decision in Witherspoon (which the high court decided June 3, 1968) and as to

which the appellate or habeas corpus proceedings were pending when the opinion

was filed. (Lanphear, at pp. 844-846 (dis. opn. of Clark, J.), quoting Velasquez,

supra, 26 Cal.3d at p. 443.) As such, the defendant in each of those cases was

entitled to the fully retroactive application of the new Witherspoon standards

respecting for cause challenges. (Witherspoon, supra, 391 U.S. at p. 523, fn. 22.)

Either expressly or impliedly, the defendant?s failure to object on Witherspoon

grounds at trial was excused on appeal. (Lanphear, supra, 26 Cal.3d at p. 845; see

Maxwell, supra, 398 U.S. at p. 267; Boulden, supra, 394 U.S. at pp. 484-485;

Wigglesworth, supra, 403 U.S. 947 [judgment reversed and case remanded for

further proceedings under Witherspoon, citing Boulden and Maxwell]; Harris,

supra, 403 U.S. 947 [same]; Anderson, supra, 69 Cal.2d at p. 619 [the defendant?s

27


failure to object to the dismissals in his pre-Witherspoon trial was expressly

excused because Witherspoon made a material change in the law]; Risenhoover,

supra, 70 Cal.2d at p. 56 [relying on Anderson].) Indeed, because the

Witherspoon rule had not yet been articulated at the time of the trials in these

cases, defense counsel had no occasion to object to dismissals on Witherspoon

grounds.18

As with our jurisprudence (see, e.g., Avila, supra, 38 Cal.4th at p. 566),

decisions of the high court are not authority for issues neither considered nor

decided therein. (Cooper Industries, Inc. v. Aviall Services, Inc. (2004) 543 U.S.

157, 170 [? ?Questions which merely lurk in the record, neither brought to the

attention of the court nor ruled upon, are not to be considered as having been so

decided as to constitute precedents.? ?], quoting Webster v. Fall (1925) 266 U.S.

507, 511.) Because the question of forfeiture in post-Witherspoon trials was not

decided by Witherspoon or any of the post-Witherspoon decisions cited by the

Velasquez majority, the no-forfeiture rule adopted in that case is grounded in

neither the law, nor, as we clarify below, the facts of that case.

The United States Supreme Court first discussed the forfeiture issue in the

context of Witherspoon excusal error in Witt. (Witt, supra, 469 U.S. at p. 431, fn.

11.) There, Justice Rehnquist explained that defense counsel?s failure to object to

the dismissals of the prospective jurors did not bar federal habeas corpus review.

(Ibid.) Because the state supreme court did not dispose of the defendant?s claim

on independent state grounds (e.g., by failure to preserve the issue on appeal) and

18

We observe that our cases decided after Lanphear that apply the Velasquez

no-forfeiture rule have done so without further analysis or examination. (See, e.g.,
Schmeck, supra, 37 Cal.4th at p. 262; People v. Memro (1995) 11 Cal.4th 786, 818
(Memro); People v. Cox (1991) 53 Cal.3d 618, 648, fn. 4 (Cox), citing Velasquez,
supra, 26 Cal.3d at p. 443.)

28


reached the merits of the claim, the issue was properly before the high court.

(Ibid.)

Much more recently, the high court elaborated on the forfeiture issue in

Uttecht, supra, 551 U.S. 1. The Uttecht majority confirmed that for purposes of

federal habeas corpus review of Witherspoon/Witt excusal error in a state criminal

trial, there is ?no independent federal requirement? of a trial objection; instead,

?state procedural rules govern.? (Uttecht, at p. 18, italics added.) Nonetheless,

the Uttecht majority noted the federal habeas corpus court may take into account,

on the merits, the implications of trial counsel?s ?voluntary acquiescence to, or

confirmation of, a juror?s removal.? (Ibid.) As the majority explained, ?[b]y

failing to object, the defense [does] not just deny the conscientious trial judge an

opportunity to explain his judgment or correct any error. It also deprive[s]

reviewing courts of further factual findings that would have helped to explain the

court?s decision.? (Ibid.) Uttecht thus strongly implied that a requirement of trial

objection in Witherspoon/Witt cases is sound policy, and that the federal

Constitution does not bar the adoption of such a ?state procedural rule[ ].?

(Uttecht, at p. 18.)

Ironically, in Velasquez, this court did embrace this sound policy. In

addition to creating the no-forfeiture rule, the Velasquez majority also observed

that the trial court in that case was in fact apprised of the risk of error in excusing

the prospective juror and provided an opportunity to correct the error. We thus

impliedly held that the issue had been preserved for appeal on this additional basis.

We stated: ?[I]n the present case the trial judge was alerted to the possibility of

Witherspoon error by the prosecutor and further was informed that defendants did

not consent to the dismissal of [the prospective juror]. [Citation.] Thus the

function of an objection?to alert the court to the risk of error and permit it to

avoid that error?was essentially fulfilled. Furthermore, the court?s statement that

29


?I?m going to stand by my ruling. It?s plenty clear to me,? suggests that any formal

objection would have been futile.? (Velasquez, supra, 26 Cal.3d at p. 444; see id.

at p. 437.)

Because, as indicated, Velasquez held in the alternative that the issue was

preserved at trial (albeit atypically by both defense counsel and the prosecutor),

Velasquez?s suggestion that Witherspoon excusal error is not forfeited by failure to

object effectively was dictum. Insofar as not inherently persuasive, it thus has

little authoritative weight.

Finally, our no-forfeiture rule as to Witherspoon/Witt excusal error is

inconsistent with the requirement of an objection that applies to other jury

selection issues. We have repeatedly required that an objection be interposed in

the trial court to preserve jury selection issues other than Witherspoon/Witt excusal

error, including inadequate voir dire (People v. Foster (2010) 50 Cal.4th 1301,

1324; People v. Taylor (2010) 48 Cal.4th 574, 638 (Taylor); People v. Rogers

(2009) 46 Cal.4th 1136, 1149 (Rogers); People v. Cook (2007) 40 Cal.4th 1334,

1341-1342); failure to instruct prospective jurors regarding their civic duty to

serve in a death penalty case (People v. Mills (2010) 48 Cal.4th 158, 170); non-

Witherspoon/Witt error in excusing jurors (People v. Holt (1997) 15 Cal.4th 619,

656 (Holt) [prosecutor?s challenge for bias/conflict of interest]; People v. Mickey

(1991) 54 Cal.3d 612, 664-665 [undue personal hardship]); error in discharging a

prospective juror at his or her request (People v. Ashmus (1991) 54 Cal.3d 932,

987, fn. 16 [failure to preserve federal constitutional claim]); representative cross-

section error (People v. Ramirez (2006) 39 Cal.4th 398, 440 [composition of the

master jury list]; People v. Champion (1995) 9 Cal.4th 879, 907 (Champion),

overruled on another point in People v. Combs (2004) 34 Cal.4th 821, 860 [wage

earners systematically excluded]; People v. Fauber (1992) 2 Cal.4th 792, 816

30


[hearing impaired prospective jurors systematically excused]; Batson/Wheeler19

error (People v. Davis (2009) 46 Cal.4th 539, 583; Lewis, supra, 43 Cal.4th at

pp. 481-482; People v. Thornton (2007) 41 Cal.4th 391, 462); and improper denial

of a defendant?s challenge for cause under Witherspoon/Witt (Mills, supra, at

pp. 186-187 [defendant must use peremptory challenge to remove prospective

juror in question, must exhaust peremptory challenges, and must express

dissatisfaction with the jury as finally constituted]; People v. Wallace, supra, 44

Cal.4th 1032, 1055 [same]; but cf. People v. Hoyos (2007) 41 Cal.4th 872, 904,

fn. 16 [explicit nonjoinder in codefendant?s challenge for cause to pro-death

prospective juror did not forfeit appellate contention that juror was death

disqualified ?because failure to object does not forfeit a Witt/Witherspoon claim

on appeal?].)20

19

Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22

Cal.3d 258.
20

Our review of decisions from other jurisdictions has disclosed no example

of a rule, similar to California?s, that uniquely preserves for review, despite the
failure to object below, a claim that the record does not support an excusal under
Witherspoon/Witt. Indeed, numerous states have held such a claim is forfeited if
the defendant did not interpose a trial objection. (Clark v. Arkansas (Ark. 1978)
573 S.W.2d 622, 636-637 [general rule that failure to object at trial or by motion
for new trial waived issue on capital appeal applied to defendant?s claim of
unsupported Witherspoon excusal]; Brown v. State (Fla. 1980) 381 So.2d 690,
693-694 [defendant could not complain on appeal of unsupported Witherspoon
excusal where no objection was interposed]; Blankenship v. State (Ga. 1988) 365
S.E.2d 265, 267 [failure to object at trial waived defendant?s appellate claim of
unsupported Witherspoon/Witt excusal pursuant to Georgia court rule generally
applicable to excusals for cause]; State v. Campbell (La. 2008) 983 So.2d 810,
862-864 [where counsel, or defendant personally when representing himself,
stated ?no objection? to prospective jurors? excusal, statute and case law mandated
forfeiture for failure to make contemporaneous objection]; Scott v. State (Miss
2006) 938 So.2d 1233, 1247 [failure to object at trial or on appeal forfeited issue
under statute governing collateral postconviction relief], overruled on another
point, in Lynch v. State (Miss. 2007) 951 So.2d 549; White v. State (Miss. 1988)
532 So.2d 1207, 1215 [failure to object at trial forfeited issue on direct appeal];

(Footnote continued on next page.)

31




(Footnote continued from previous page.)

Commonwealth v. Ligons (Pa. 2009) 971 A.2d 1125, 1155 [lack of
contemporaneous trial objection resulted in forfeiture under statute governing
collateral postconviction relief]; Hodges v. Commonwealth (Va. 1972) 191 S.E.2d
794, 795 [general objection to excusal of prospective jurors for cause held
insufficient to preserve Witherspoon claim on appeal]; but cf. Carter v. State (Tex.
Crim.App. 1986) 717 S.W.2d 60, 76 [failure to state specific grounds of objection
did not constitute waiver where context made it obvious to court that objection
was on grounds the record did not support prospective juror?s death
disqualification, and no one was misled].)


We have found several decisions indicating that a failure to object below

did not bar limited review of a Witherspoon/Witt excusal issue, but these cases
arose in jurisdictions which, unlike California, recognized, as a matter of local
practice, some more general ?plain error? or ?fundamental error? exception to the
rule requiring a trial objection. (E.g., State v. Detrich (Ariz. 1997) 932 P.2d 1328,
1336 [while claim of erroneous individual Witherspoon/Witt excusal was waived
by failure to object on this specific ground, circumstances of excusal would
nonetheless be examined, under general state practice governing criminal appeals,
for fundamental error]; People v. Gacho (Ill. 1988) 522 N.E.2d 1146, 1154-1155
[Witherspoon/Witt excusal claim would be considered under state rule calling for
?plain error? review of capital penalty issues otherwise waived by failing to object
in cases where evidence is closely balanced]; State v. Keith (Ohio 1997) 684
N.E.2d 47, 56 [the absence of an objection did not preclude appellate review for
plain error of defendant?s claim of erroneous Witherspoon/Witt excusal], but see
State v. Bethel (Ohio 2006) 854 N.E.2d 150, 174-175 [despite general rule that,
regardless of objection, record in criminal case will be reviewed for plain error
affecting defendant?s substantial rights (see, e.g., State v. Barnes (Ohio 2002) 759
N.E.2d 1240, 1246-1247), claim of unsupported Witherspoon/Witt excusal was
waived by failure to object on this specific ground]; see also Douglas v. State
(Okla.Crim.App. 1997) 951 P.2d 651, 660 [by failure to object that prospective
jurors should not have been excused on Witherspoon/Witt grounds absent a motion
by the state, defendant waived all but plain error, and no such error occurred];
(State v. McDougald (N.J. 1990) 577 A.2d 419, 436 [despite lack of objection
below, ?reverse Witherspoon? claim that pro-death juror should have been
excused would be addressed pursuant to state rule requiring ?plain error? review
of capital sentencing issues affecting right to fair and impartial jury], and see also
State v. Biegenwald (N.J. 1987) 524 A.2d 130, 166 [?plain error? doctrine applies
where ?life is at stake? and error was likely to affect defendant?s substantial
rights].)

32


By applying to Witherspoon/Witt issues the usual requirement of a

contemporaneous objection, we promote fair and orderly judicial administration.

A timely objection alerts the trial court to potential Witherspoon/Witt error in the

disqualification of a prospective juror, thus enabling the court to avoid or correct

the problem before it irrevocably nullifies the entire subsequent penalty trial.21

Moreover, by requiring the defendant to advise the trial court he or she opposes

the excusal under Witherspoon/Witt in order to preserve the issue for appeal, we

eliminate the unfair risk of ?sandbagging? the court by finding it committed

reversible error of which it received no warning. Defendant offers no persuasive

reason why our requirement of a contemporaneous objection stating specific

grounds of Witherspoon/Witt excusal error should not apply.

Accordingly, for the reasons stated, we overrule People v. Velasquez,

supra, 26 Cal.3d 425 to the extent it articulates a no-forfeiture rule with respect to

Witherspoon/Witt excusal error. In any capital case tried after the finality of this

decision, counsel (or defendant, if proceeding pro se) must make either a timely

objection, or the functional equivalent of an objection, such as a statement of

opposition or disagreement, to the excusal stating specific grounds under

Witherspoon/Witt in order to preserve the issue for appeal. Nevertheless, as stated

above, because at the time of this trial we had not expressly held that an objection

is necessary to preserve Witherspoon/Witt excusal error on appeal, we do not

apply this rule here. (See People v. Scott (1994) 9 Cal.4th 331, 357-358.) We

thus proceed to the merits of defendant?s claims.

21

As noted below, the erroneous excusal of a prospective juror under

Witherspoon/Witt requires reversal of a death penalty judgment. (Gray v.
Mississippi
(1987) 481 U.S. 648, 666-668.)

33


b. The law

A ?criminal defendant has the right to an impartial jury drawn from a venire

that has not been tilted in favor of capital punishment by selective prosecutorial

challenges for cause.? (Uttecht, supra, 551 U.S. at p. 9, citing Witherspoon,

supra, 391 U.S. at p. 521.) As stated, a prospective juror in a capital case may be

excused if his or her views would ? ?prevent or substantially impair the

performance of his [or her] duties as a juror in accordance with his [or her]

instructions and his [or her] oath.? ? (Witt, supra, 469 U.S. at p. 424.) A

prospective juror?s bias against the death penalty, however, need not be proved

with ?unmistakable clarity.? (McWhorter, supra, 47 Cal.4th at p. 340.) Moreover,

?a prospective juror in a capital case may be discharged for cause based solely on

his or her answers to the written questionnaire if it is clear from the answers that

he or she is unwilling to temporarily set aside his or her own beliefs and follow the

law.? (Avila, supra, 38 Cal.4th at p. 531, italics added; accord, People v. Wilson

(2008) 44 Cal.4th 758, 787 (Wilson).)

The erroneous exclusion of a prospective juror under Witherspoon/Witt

compels reversal of the penalty verdict regardless of whether the prosecutor had

remaining peremptory challenges. (People v. Heard (2003) 31 Cal.4th 946, 965;

see Gray v. Mississippi, supra, 481 U.S. at pp. 666-668.) On appeal, we

independently review a trial court?s decision to excuse for cause a prospective

juror based solely upon that juror?s written responses to a questionnaire. (People

v. Russell (2010) 50 Cal.4th 1228, 1261 (Russell), citing Avila, supra, 38 Cal.4th

at p. 529.)

In addition to applying the above standards, we find the following

principles also are helpful in analyzing the instant trial court?s decision to excuse

the prospective jurors for cause.

As we have held in a number of our decisions, even if counsel?s failure to

object does not technically forfeit an appellate challenge to a Witherspoon/Witt

34


excusal, it does indicate counsel acquiesced and concurred that the juror could be

excused. (Lynch, supra, 50 Cal.4th at p. 733; Schmeck, supra, 37 Cal.4th at p.

262; People v. Cleveland (2004) 32 Cal.4th 704, 734-735; Memro, supra,

11 Cal.4th at p. 818; Cox, supra, 53 Cal.3d at p. 648, fn. 4; see Uttecht, supra,

551 U.S. at p. 18.) Such an inference is reinforced when, faced with a tentative

ruling that the prospective juror is excusable, as here, counsel passed up an

opportunity to question the juror further, or declined a direct offer of further voir

dire. (Witt, supra, 469 U.S. at pp. 430-431 [noting, as factor supporting excusal of

the prospective juror, that ?defense counsel did not see fit to object to [the

prospective juror]?s recusal, or to attempt rehabilitation?]; id., at pp. 434-435

[noting again that defense counsel chose not to question the prospective juror or

object to her excusal, and that ?[i]ndeed . . . it seems that at the time [she] was

excused no one in the courtroom questioned the fact that her beliefs prevented her

from sitting?]; see also id., at p. 431, fn. 11 [where state supreme court did not find

waiver for failure to object, claim will not be deemed ? ?waived? ? on federal

habeas corpus, but ?counsel?s failure to speak in a situation later claimed to be so

rife with ambiguity as to constitute constitutional error is a circumstance we feel

justified in considering when assessing respondent?s claims?]; cf. Stewart, supra,

33 Cal.4th 425, 440, 452 [stressing that counsel repeatedly objected to the

excusals, based exclusively on their questionnaire responses, of all five

prospective jurors there at issue and despite prior promises by the court was

denied all opportunity for follow-up questioning].)

When counsel failed to openly contest an excusal, we may logically assume

counsel did not oppose it. It is equally logical to assume that when, having been

advised of the court?s intention to excuse a prospective juror, counsel declined an

opportunity for further voir dire to clarify the juror?s views, counsel accepted that

the record as it stood was sufficient to support the intended ruling. These

35


assumptions also take into account that there may be subjective reasons why,

exercising the lawyer?s art and instinct, counsel would prefer to dispense with a

particular juror despite the juror?s pro-life views. Additionally, they discourage

counsel from seeking to create ?built-in error? by forcing the trial court to rule,

without guidance, on a record counsel hopes will later be found inadequate. (See

Uttecht, supra, 551 U.S. at p. 18.)

c. The merits

As we explain below, we conclude that all of defendant?s Witherspoon/Witt

claims lack merit.

(1) Challenge to the adequacy of the questionnaire

Initially, defendant contends the jury questionnaire was defective because

none of the questions ?directly address[ed] the pertinent constitutional issue? in

Witt?i.e., whether the prospective juror could temporarily set aside his or her

personal beliefs and follow the court?s instructions in determining penalty. (See

Stewart, supra, 33 Cal.4th at p. 447.) As explained above, defendant forfeited this

claim by expressing agreement in the trial court with the form of the questionnaire.

In any event, his argument lacks merit.

In Stewart, we held that ?the trial court erred by excusing for cause five

prospective jurors based upon their [written] answers to a jury questionnaire that

asked whether the prospective juror?s views on the death penalty would prevent or

make it very difficult for him or her to impose the penalty.? (Russell, supra,

50 Cal.4th at p. 1261, citing Stewart, supra, 33 Cal.4th at pp. 442, 444-445; Avila,

supra, 38 Cal.4th at p. 530.) The ?make it very difficult? language in the Stewart

questionnaire precluded the trial court from ascertaining ?whether a juror?s

response supported disqualification under the Wainwright v. Witt standard

requiring that such person?s views on the death penalty would prevent or

substantially impair that person?s ability to perform his or her duties. (People v.

36


Stewart, supra, 33 Cal.4th at pp. 444-445; Wainwright v. Witt, supra, 469 U.S. at

p. 424.)? (Russell, supra, at p. 1261.) That is not the case here.

Question No. 46 directly asked prospective jurors whether they would

?always? vote for either life or death.22 The wording of this particular question is

equivalent to that which we approved in Avila, supra, 38 Cal.4th at page 531, and

fully enabled the trial judge to ascertain whether a prospective juror was

?substantially impaired? within the meaning of Witt. (See Wilson, supra, 44

Cal.4th at p. 787.) In addition, unlike in Stewart, the questionnaire as a whole

included ?expansive and detailed questions on capital punishment and gave jurors

the clear opportunity to disclose views against it so strong as to disqualify them for

duty on a death penalty case.? (Avila, supra, 38 Cal.4th at p. 531; see Russell,

supra, 50 Cal.4th at p. 94.)

As defendant observes, the questionnaire also inquired whether prospective

jurors would have ?difficulty? in voting to impose the death penalty. Inclusion of

such a question, however, does not necessarily render a questionnaire inadequate

22

Question No. 46 read as follows: ?It is important that you have the ability

to approach this case with an open mind and a willingness to fairly consider
whatever evidence is presented as opposed to having such strongly held opinions
that you would be unable to fairly consider all the evidence presented during the
penalty phase. [?] There are no circumstances under which a jury is instructed by
the court that they must return a verdict of death. No matter what the evidence
shows, the jury is always given the option in a penalty phase of choosing life
without the possibility of parole. Assuming a defendant was convicted of a special
circumstance murder, would you:

__ a. No matter what the evidence was, ALWAYS vote for the death

penalty.

__ b. No matter what the evidence was, ALWAYS vote for life without

possibility of parole.

__ c. I would consider all of the evidence and the jury instructions as

provided by the court and impose the penalty I personally feel is appropriate.?

37


to screen for disqualified prospective jurors, provided other questions are framed

in such a way as to elicit the information necessary for a proper excusal under

Witt. (See Wilson, supra, 44 Cal.4th at p. 789.) In any event, the trial judge did

not excuse the challenged prospective jurors based solely on their answers to

question No. 46. We find no basis to conclude that the questionnaire was

inherently inadequate.

(2) Challenges for cause

Defendant urges that the questionnaire responses of Prospective Jurors

R.A., J.S., R.G., G.H., and P.F. did not clearly establish bases for their excusals

under Witherspoon/Witt. We disagree. Based on our independent review of the

record, the questionnaire responses of each of these prospective jurors, taken

together, make it clear that he or she was substantially impaired within the

meaning of Witt and thus, unable to serve as a capital juror.

(a) Prospective Juror R.A.

As discussed above, Witt held that a prospective juror may be excluded for

cause from a capital case if the juror?s views on capital punishment would

?prevent or substantially impair? the performance of his or her duties in

accordance with the juror?s oath and the court?s instructions. (Witt, supra,
469 U.S. 412, 424.) In Witt, the court thus retracted and nullified any inference

from its prior decision in Witherspoon that a prospective juror may be excluded

for cause from a capital trial, on grounds of capital penalty bias, only by indicating

with ?unmistakable clarity? that he or she would ?automatically? vote for or

against a judgment of death. (Ibid.) The high court has specified, however, that

prospective jurors cannot be disqualified merely for expressing strong views

against the death penalty. They may serve ?so long as they state clearly that they

are willing to temporarily set aside their own beliefs in deference to the rule of

law.? (Lockhart v. McCree (1986) 476 U.S. 162, 176, italics added.)

38


In several recent cases, we have addressed the circumstances in which the

trial court may excuse a prospective juror solely on the basis of answers to a

written questionnaire, without observing the prospective juror?s demeanor under

oral examination in open court. Such an excusal is permitted if the questionnaire

affords ?sufficient information regarding the prospective juror?s state of mind to

permit a reliable determination? whether the juror?s views would ? ? ?prevent or

substantially impair? ? the performance of his or her duties . . . .? (Stewart, supra,

33 Cal.4th 425, 445.) Thus, we have held that a prospective juror may be

disqualified on his or her questionnaire responses alone ?if it is clear from the

answers that he or she is unwilling to temporarily set aside his or her own beliefs

and follow the law.? (Avila, supra, 38 Cal.4th at p. 531; see Russell, supra,

50 Cal.4th at p. 1262 [same]; accord, Wilson, supra, 44 Cal.4th at p. 787 [excusal

on questionnaire answers alone ?is permissible if, from those responses, it is clear

(and ?leave[s] no doubt?) that [the] prospective juror?s views about the death

penalty would satisfy the Witt standard [citation] and that the juror is not willing

or able to set aside his or her personal views and follow the law,? italics added];

People v. Thompson (2010) 49 Cal.4th 79, 97 [same].) As stated above, where the

trial court ruled on the questionnaire alone, we review its determination de novo,

without affording the deference that would apply had the court observed the

prospective juror in person. (Avila, supra, at p. 529.)

Importantly, neither we nor the high court has asserted that any

statement?however unconvincing or ambiguous?by a prospective juror of

willingness to apply the law despite strong death penalty views bars the juror?s

excusal, even if other statements by the prospective juror clearly demonstrate that

he or she cannot do so. We have been careful to note that, even when an excusal

was based on questionnaire responses alone, the excusal may be upheld if those

answers, ?taken together,? clearly demonstrate the juror?s unwillingness or

39


inability, because of attitudes about the death penalty, to perform his or her duties

in a capital trial. (Avila, supra, 38 Cal.4th at p. 533.)

Moreover, while we have said that written questionnaire responses do

justify excusal if those responses leave no doubt the prospective juror cannot or

will not act fairly in a capital case, we have not held the converse ? that the

questionnaire responses will support excusal only if those responses establish

beyond all possible or theoretical doubt that the juror cannot apply the law and

instructions, or follow the juror?s oath, in a capital case. As Witt suggested, often

no process for assessing juror qualifications, written or oral, can achieve such an

exacting level of certainty. (Witt, supra, 469 U.S. at pp. 424-425.)

In Stewart, we confirmed that, even where the trial court considers only a

prospective juror?s written questionnaire responses, it may excuse the juror if it

has ?sufficient information . . . to permit a reliable determination? that the juror?s

death penalty views ?would ? ?prevent or substantially impair? ? the performance

of his or her duties (as defined by the court?s instructions and the juror?s

oath) . . . .? (Stewart, supra, 33 Cal.4th at p. 445, italics added.) This standard is,

of course, quite exacting when the trial court did not observe the juror?s personal

demeanor. Still, follow-up questioning for purposes of clarification and personal

observation should not be essential to a proper excusal when the record, as it

stands, makes it clear that the juror is disqualified.23

23

While we have cautioned against overreliance on written questionnaires in

an attempt to streamline the juror selection process (Wilson, supra, 44 Cal.4th 758,
790; Avila, supra, 38 Cal.4th 491, 529-530, fn. 25), we have indicated our
?appreciat[ion]? for trial courts? ?laudatory? efforts to make the ?long and tedious
business? of juror selection more efficient (Wilson, supra, at p. 790; see Avila,
supra, at p. 530, fn. 25). As stated, the appellate record in this case includes 111
completed juror questionnaires, each 21 pages long, and comments by the trial
court give the impression that 140 or more prospective jurors may have filled out
questionnaires. Records filed in this court for other death penalty appeals suggest

(Footnote continued on next page.)

40


If our de novo review of a ?written questionnaire? excusal reveals that the

prospective juror?s pro forma statement of willingness to apply

the law?particularly when that statement was itself ambiguous?was flatly

negated by other clear indications on the whole record that the juror could not be

fair, the juror?s excusal under Witt may be upheld. In such a case?and especially

where trial counsel specifically declined to contest the court?s ruling and turned

down an offer of further voir dire?we may conclude the trial court had ?sufficient

information . . . to permit a reliable determination? the prospective juror was

unqualified. (Stewart, supra, 33 Cal.4th 425, 445.) That is the situation here.

R.A.?s questionnaire responses are replete with indications that he was

vehemently and unalterably opposed to capital punishment. Asked to describe his

general feelings about the death penalty, R.A. responded, ?I don?t agree with it. I

think the state shouldn?t take a life nor do I think an individual should take

another?s life.? Asked why he felt that way, R.A. answered, ?It?s wrong to kill

people.? Asked whether his views would make it difficult to vote for the death

penalty ?in this case, regardless of what the evidence was,? R.A. responded, ?I

think it would be hard to vote for the death penalty under any condition.? R.A.

further stated he believed the purpose of the death penalty was ?punishment and

revenge.? (Italics added.)

(Footnote continued from previous page.)

that jury selection in such matters typically requires the filtering of a similar or
greater volume of prospective jurors. These realities make it understandable, and
necessary, that overburdened trial courts should employ fair and balanced means
to reduce the time and resources devoted to this process. Such efforts should not
be discouraged by the imposition of overstringent standards for excusals on the
basis of written questionnaire responses.

41


A separate inquiry on the questionnaire particularly highlighted the

intensity of R.A.?s attitudes. Asked to rate the strength of his views on a scale of

1 to 10, with 1 representing the strongest opposition to the death penalty and 10

representing the strongest support for it (the 1 to 10 scale), R.A. rated himself a

?1.?24

With respect to question No. 46, quoted above, R.A. marked ?c,? indicating

that he would ?consider all the evidence and the jury instructions as provided by

the court and impose the penalty I personally feel is appropriate.? (Italics added.)

But this response hardly constituted a clear and unqualified statement of R.A.?s

willingness and ability, despite his opposition to capital punishment, to apply the

law and evaluate the penalty choices fairly. R.A.?s response could plausibly have

conveyed only his understanding that, after ?consider[ing]? the evidence and

instructions, he was free to impose the penalty he ?personally [felt] [was]

appropriate.? In light of R.A.?s intense anti-death-penalty views, it is difficult to

see how he could ?personally feel? the death penalty was ?appropriate? in any

case. The trial court could properly conclude that R.A.?s answer to question

No. 46 did not overcome what were otherwise uniform and clear statements of

implacable resistance to imposing a judgment of death. Indeed, when viewed

together, R.A.?s answers, including his response to question No. 46, clearly

24

Asked how, if at all, his views about the death penalty had changed over

time, R.A. did state that ?I have basically become more passive due to life?s
experiences.? But this statement, suggesting only that R.A.?s opposition to the
death penalty did not dominate this stage of his day-to-day life, did not imply that
he would remain ?passive? on the issue once confronted with direct responsibility
for deciding whether to put someone to death. His other responses strongly
indicated otherwise.

42


demonstrate that, because of his views on capital punishment, he was unable to

deliberate fairly on the issue of penalty.25

Most telling is defense counsel?s reaction when the court asked what

counsel would ?like to do? about R.A. Defendant?s attorney first replied, ?We?d

submit it, Your Honor.? The following colloquy then occurred: ?THE COURT:

Do you want further voir dire? Tentatively based on [R.A.?s] answers, I would

rule that he?s impaired, substantially impaired. If you want further voir dire,

I will.? [?] MR. MACHER [defense counsel]: No, Your Honor.? By these

actions, counsel signaled concurrence in R.A.?s excusal solely on the basis of his

questionnaire answers. Even if counsel?s conduct did not forfeit, at the procedural

threshold, an appellate challenge to the excusal, it thus weighs heavily, along with

the substance of R.A.?s questionnaire responses, in favor of a determination on the

merits that the excusal was proper.


25

The concurring and dissenting opinion asserts that we find R.A.?s excusal

proper, in part, because his answer to question No. 46 did not make it clear he
would set aside his personal views on the death penalty and apply the law in
deciding penalty. But we do not so hold. On the contrary, we are satisfied that,
when his response to that question is considered with all of his other responses,
these responses, ?taken together,? make it clear he could not fairly consider the
question of penalty.


The concurring and dissenting opinion also suggests that insofar as question

No. 46 allowed R.A.?s ambiguous answer, the question itself was defective. Not
so. Question No. 46 gave prospective jurors every opportunity to indicate that
they would automatically vote for life or death. (Cf. Stewart, supra, 33 Cal.4th at
pp. 446-447 [question whether a prospective juror?s views on capital punishment
?would either ?prevent or make it very difficult? for the prospective juror ?to ever
vote to impose the death penalty? ? did not allow for determination of
disqualification under Witt].) That question No. 46 provided for a third
response?and that R.A. chose this response?does not make the questionnaire
defective. And where this answer, ?taken together? with R.A.?s other responses,
made it clear that R.A. was unable to follow the law and fairly deliberate penalty,
a finding of disqualification was proper without the need to conduct further voir
dire.

43


The record as a whole thus allowed a reliable determination, and clearly

established, that R.A. could not fairly discharge the duties of a capital juror. The

trial court did not err in excusing him.

(b) Prospective Juror J.S.

Similarly, the record as a whole clearly established that Prospective Juror

J.S. was disqualified from service under Witt. Like R.A, J.S. expressed no support

for the death penalty in his questionnaire responses, and instead, communicated

clear, unwavering opposition to this penalty option. J.S. stated that he did not

?think another human has the right to determine another[?]s death? and flatly

declared he was ?not in favor of the death penalty.? Moreover, J.S. believed that

he could not be a fair and impartial capital juror in this case because he did not

?agree with the death penalty.? Indeed, J.S. stated that he ?never ha[d] agreed

with it.? Consistent with his strong anti-death-penalty attitudes, J.S., like R.A.,

ranked himself a ?1? on the 1 to 10 scale, indicating the strongest opposition to the

death penalty. Further, J.S. indicated that because he ?couldn?t agree to put

another person to death,? deciding the question of penalty would always be

difficult for him, regardless of what the evidence presented.

J.S., like R.A., checked option ?c? in response to question No. 46, stating

his willingness to ?consider? the evidence and instructions and impose the penalty

he ?personally feel[s] is appropriate.? But this ambiguous response may have

implied his understanding that, after such consider[ation],? his personal preference

could still prevail. It did not overcome J.S.?s otherwise consistent declarations

suggesting he ?couldn?t agree? to participate in a death judgment.

Finally, as with R.A., counsel failed to express any opposition to J.S.?s

excusal, merely ?submit[ting]? the issue. Moreover, when the court indicated its

44


inclination to excuse J.S., but offered further voir dire, counsel declined.26 This

conduct, though not a technical forfeiture, demonstrated counsel?s acquiescence

and concurrence that the record, as it stood, supported J.S.?s excusal. (Lynch,

supra, 50 Cal.4th at p. 733; Schmeck, supra, 37 Cal.4th at p. 262.) Together with

the substance of J.S.?s questionnaire answers, counsel?s conduct weighs strongly

in favor of a determination that the excusal of this prospective juror was proper. It

is clear from J.S.?s questionnaire responses, taken together, that J.S. could not set

aside his views about the death penalty and perform the duties of a capital juror.

(See Witt, supra, 469 U.S. at pp. 430-431; Avila, supra, 38 Cal.4th at p. 530.)

Accordingly, the trial court did not err by excusing him.

(c) Prospective Juror R.G.

The record on a whole reflects that Prospective Juror R.G. indicated that his

clear opposition to the death penalty rendered him unable to serve as a capital

juror. Although R.G. indicated his general willingness to follow the law if his

personal feelings conflicted with the court?s instructions, when asked specifically

about his ability to be impartial in deciding whether to impose a death sentence,

however, R.G. responded negatively. That is, he selected option ?b? in answer to

question No. 46, quoted above, vowing to always vote for a penalty of life without

possibility of parole if guided by his personal feelings, regardless of what the

evidence showed. R.G.?s personal expressions confirmed his resolve to never

26

With respect to J.S., the following colloquy between court and counsel

occurred: ?THE COURT: [J.S.] [i]ndicates, ?Don?t think another human has the
right to determine another?s death. Couldn?t agree to put another person to death.
Not in favor of the death penalty.? [?] Indicates ? but he does indicate under
[question No. 46] [?c?] that he would consider all the evidence. [?] So I?ll submit
it to the defense. Do you want further voir dire? [?] MR. MACHER [defense
counsel]: Your Honor, we would submit on that one. [?] THE COURT: No
further voir dire? [?] MR. MACHER: Correct, Your Honor. [?] THE COURT:
All right. The Court finds he?s substantially impaired based upon his answers.?

45


impose the death penalty. R.G. described his general feelings about the death

penalty in simple, unambiguous terms: ?Thou shal[l] not kill,? explaining that

?man is not God.? Also, R.G. believed that ?[n]o one has the right to kill another

human being as despicable as that person might be.? In expressing his opinion

about the death penalty in practical terms, R.G. stated the death penalty ?only

serves to sell newspapers? and was ineffective as punishment.

In sum, R.G.?s questionnaire responses, taken together, make it clear that he

was unable to set aside his views on the death penalty, follow the law and the trial

court?s instructions, and fairly consider the death penalty. Our conclusion is not

altered by R.G.?s self-rating as a 10 on the 1 to 10 scale described above,

indicating he strongly favored the death penalty. None of his responses to any of

the other questions on the questionnaire that solicited his personal views on the

death penalty reflected this similar level of support. The trial court properly

excused R.G. for cause.

(d) Prospective Juror G.H.

With respect to Prospective Juror G.H., we conclude that her answers to the

questionnaire clearly indicated that she could not fulfill the duties of a capital

juror. Although G.H. expressed a general willingness to follow the trial court?s

instructions in spite of any personal feelings or beliefs to the contrary, she also

exhibited unyielding general opposition to the death penalty based on her religious

and moral beliefs and stated she would always vote for a life sentence, regardless

of the evidence. G.H. expressed her stance against the death penalty as follows:

?Only God has the right to take a life?; ?The more I study the word of God, I find

it more difficult to put someone else in a position to die?; ?No one is to take a

life?; and ?When one believes that God created us to follow him and Jesus by

faith?it would be difficult to follow man?s law.? Seemingly contradictory to

these sentiments is the rating she gave herself, an 8, on the 1 to 10 scale described

46


above, indicating she was moderately in favor of the death penalty. When asked

to explain this rating, however, she stated that this level of support was essentially

reserved for the situation, unlike here, where ?[the victim] was my family

member? because ?it would be difficult not wanting that person [i.e., the killer] to

suffer.? Such sentiment, though, does not dilute the otherwise clear impression

from G.H.?s questionnaire responses that she was otherwise patently opposed to

the death penalty. Taken together, G.H.?s questionnaire answers make it clear that

she would be unable to set aside her religious and moral convictions against the

death penalty and follow the law in determining penalty. The trial court properly

dismissed her for cause.

(e) Prospective Juror P.F.

Prospective Juror P.F.?s questionnaire responses, taken together, reflected

intense opposition against the death penalty that permitted a reliable determination

that he was unable to fairly consider the evidence and adhere to the trial court?s

instructions in determining penalty. Preliminarily, we note P.F. stated that, in

general, he would have difficulty sitting in judgment of another individual because

he was unable to be impartial in light of his religious or moral beliefs. On the

other hand, when he expressed his views specifically regarding the death penalty,

P.F. gave the clear impression that he would experience no difficulty resolving the

question of punishment always in favor of a life sentence. When asked to rank his

level of support for the death penalty, he marked 1 on the 1 to 10 scale, meaning

he strongly opposed penalty, because he believed ?it is wrong to take a life.?

Although P.F. indicated his general willingness to follow the law in spite of any

personal feelings that might conflict with the court?s instructions, his response to

question No. 46, ?b,? clearly indicated his unwillingness to disregard his firm

opposition to the death penalty in order to fairly consider the question of penalty.

No matter what the evidence established, P.F. indicated that he would always vote

47


for life without the possibility of parole. Thus, P.F.?s questionnaire responses

clearly demonstrate that he was disqualified from service under Witt. P.F. was

properly excused for cause.

III. GUILT PHASE ISSUES

A. Admission of Gang Evidence

Defendant contends on multiple grounds that the trial court erroneously

admitted gang evidence offered in support of the prosecution?s theory that the

Martin murder was gang motivated. Initially, he asserts that the gang evidence

was irrelevant to the joined murder charges and that, under Evidence Code section

352, its probative value was substantially outweighed by a risk the jury would

infer from this evidence his criminal disposition to commit the charged murders.

In addition, defendant contends that the evidence was excludable on grounds of

hearsay and lack of foundation. As we explain below, we conclude that the gang

evidence was properly admitted.

1. Procedural background and preservation of issues

Pretrial, the defense moved to exclude ?any and all evidence of gang

membership and activities of the defendant? as irrelevant and unduly prejudicial

under Evidence Code section 352, and asked the trial court to read the preliminary

hearing transcript in anticipation of the hearing on the motion. The prosecutor

made an offer of proof, based solely on the preliminary hearing testimony of

jailhouse informant Harold Black, that defendant was a member of the Crips street

gang and killed Martin, purportedly a member of the Bloods gang, in retaliation

for a Blood having killed a purported fellow Crip (Scotty Ware) more than a year

before the Martin murder. Denying the defense motion, the trial court ruled that

the evidence was relevant to the Martin murder and that its admission would not

deny defendant due process.

48


At trial, the prosecutor presented evidence in support of its theory that

Martin?s murder was gang motivated through the testimony of Kerry Scott, Harold

Black, and Sergeant Palmer. Defendant objected to Scott?s testimony on grounds

of relevance, lack of foundation, hearsay, and undue prejudice. In overruling

defendant?s objections, the trial court indicated generally it would permit this type

of evidence. Defendant thereafter did not object on these grounds to similar

evidence conveyed through Black?s and Palmer?s testimony.

Defendant acknowledges that he did not object to Black?s testimony but

asserts any objections would have been futile and would only have reinforced the

incompetent evidence in the minds of the jurors. We have reviewed the record

and agree that any objections to Black?s testimony based on grounds similar to

those upon which he objected to Scott?s testimony would have been equally

unsuccessful. Defendant, therefore, is excused from having failed to object to the

admission of Black?s testimony regarding defendant?s purported gang membership

and gang activities in Banning. (See, e.g., People v. Hill (1998) 17 Cal.4th 800,

821 [a defendant is excused from making a timely objection to asserted

prosecutorial misconduct or a request for admonition if either would be futile];

People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1365, & fn. 8 [where counsel?s

hearsay objection was overruled as to one statement, same objection to similar

statements was unnecessary and, hence, the failure to object to the latter statement

did not waive the asserted error for appeal].)

2. Gang evidence

Kerry Scott testified that he was a member of the ?94 Street Swamp?

Bloods gang out of Los Angeles in 1994 and had relatives who were members of

the Crips gang. He frequently talked with people in the parks in East Banning

49


and, based on these conversations, learned who was a gang member and what

particular gang set each claimed.27 Scott went to Banning High School with

defendant and saw him ?all the time on the streets of Banning.? Scott knew

defendant claimed the Crips gang based on defendant?s ?gang signs? and his

?Grape Street Watts? tattoo, which referred to a Crips gang in Los Angeles. Scott

had spoken with Ware, who claimed to be a Crip. Scott testified that ?the word

out on the street was Scotty Ware was killed by a Blood,? and that he had talked to

members of the Bloods and the Crips about Ware?s death. Scott stated that Ware

was killed before Martin?s murder.

Black testified he was acquainted with, but not a ?close friend? of,

defendant, and occasionally saw him in Banning. Within a few weeks after

Martin?s murder, he and defendant were incarcerated in the same dormitory in

Chino State Prison and, during a conversation, defendant confessed he had killed

Martin. Defendant told Black that, on the day before Martin?s murder, he visited a

friend at the Meadowbrook Apartments. He saw Martin the next morning in the

parking lot, and ?creeped up on him,? pointed his gun at Martin, said, ?This is for

Scotty,? and then shot him in the head. Before this conversation, Black had

learned of Martin?s death through either a phone conversation or a letter he had

received in prison. In addition, Black testified that ?[Ware] was a Crip, and

[Martin] was a Blood? and that Ware was ?killed at a party, supposedly by a

member of the Blood[s] gang.?

Sergeant Palmer testified that he had personally interviewed about 100

gang members in Banning about ?various gang things,? including who was in a

27

To ?claim? a gang is synonymous with declaring membership in, or

allegiance to, a gang.

50


gang and the particular gang he or she claimed. He stated it was common

knowledge that Martin was a Blood and that defendant was a Crip. Palmer was

aware of the homicide of a person known as Scotty Ware that occurred in

Banning, though Palmer was not the investigator on that case.

3. Discussion

In general, ?[t]he People are entitled to ?introduce evidence of gang

affiliation and activity where such evidence is relevant to an issue of motive or

intent.? [Citation.]? (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)

?[E]ven where gang membership is relevant,? however, ?because it may have a

highly inflammatory impact on the jury trial courts should carefully scrutinize

such evidence before admitting it.? (People v. Williams (1997) 16 Cal.4th 153,

193, citing Champion, supra, 9 Cal.4th at p. 922.) On the other hand, ? ?[b]ecause

a motive is ordinarily the incentive for criminal behavior, its probative value

generally exceeds its prejudicial effect, and wide latitude is permitted in admitting

evidence of its existence.? [Citation.]? (Gonzalez, supra, 126 Cal.App.4th at p.

1550.) On appeal, we review for abuse of discretion a trial court?s ruling on

whether evidence is relevant, not unduly prejudicial, and thus admissible.

(Williams, supra, 16 Cal.4th at p. 197.)

Here, the gang evidence was properly admitted. In attempting to establish

defendant?s motive and intent for simply walking up to Martin and shooting him,

the prosecution was entitled to give context to defendant?s statement to Black that,

just before he killed Martin, he told Martin, ?This is for Scotty.? As noted, Palmer

testified, based on his professional understanding of Banning gangs, that defendant

was a Crip and Martin was a member of a rival gang, the Bloods; Palmer indicated

this was common knowledge within the Banning gang culture. According to

Kerry Scott, the ?word on the street? was that, some time prior to Martin?s murder,

Ware, a Crip, had been killed by a Blood. Palmer confirmed that a ?Scotty Ware?

51


had been the victim of a homicide in Banning. The jury was entitled to infer from

this evidence that when defendant, a Crip, shot Martin, a Blood, ?for Scotty,? he

was acting in retaliation for Ware?s murder, which he thought had been committed

by a Blood.

Defendant insists there was no adequate foundation, beyond inadmissible

hearsay, for the premise that Ware was a Crip who had been killed by a Blood. It

is true that the information supplied by Kerry Scott and Harold Black about

Ware?s murder, and its gang implications, was apparently based on rumor and

gossip. But the purpose of testimony about the ?word on the street? concerning

the murder of ?Scotty Ware? was not to establish that this street gossip was true.

(Cf. People v. Staten (2000) 24 Cal.4th 434, 455-456.) Instead, this evidence was

properly admissible for the relevant nonhearsay purpose of showing defendant had

heard information about Ware?s murder and its gang implications ?on the street,?

that defendant believed what he had heard, and that he thus had reason, in his own

mind, to kill Martin ?for Scotty.?

Nor was the evidence inadmissible simply because the prosecution failed to

establish, by direct means, that defendant had heard the rumors about Ware?s

death or the gang-related circumstances surrounding it. Ample evidence

confirmed defendant?s gang membership, his gang identity, and his association

with other gang members in Banning. Under these circumstances, and especially

considering defendant?s specific reference to ?Scotty? as he shot Martin, the jury

could readily infer defendant?s familiarity with the information about Ware that

was circulating ?on the street.?

Moreover, the gang evidence was a relatively minor component of the

prosecution?s case, and was not unduly inflammatory. It did not emphasize the

general violent nature of gang activity or suggest that defendant?s gang

membership predisposed him to violent crimes, but instead focused narrowly on

52


the prosecution?s theory for why defendant might have had a specific reason to kill

Martin. Under these circumstances, we are persuaded no error occurred in the

admission about evidence of a gang-related motive for Martin?s murder.28

B. Investigator Buchanan?s Memorandum to the Prosecutor

Defendant contends the trial court violated state law, as well as his rights

under the Sixth, Eighth, and Fourteenth Amendments, by denying his request to

introduce evidence of a memorandum written by District Attorney Investigator

Buchanan to the prosecutor in support of his defense of evidence fabrication.

Specifically, he argues the evidence is relevant to (1) Buchanan?s intent to threaten

to charge Kimiya Gamble as an accessory and his conduct in conformity,

(2) Gamble?s motive to testify falsely against defendant, and (3) Buchanan?s intent

to interview Harold Black and Johnnetta Hawkins for the purpose of pressuring

them to change their stories about their knowledge of defendant?s involvement in

the murders. As we explain below, the trial court may have erred, in part, but no

reversible prejudice resulted.

1. Factual and procedural background

As stated, one week after the murder of Martin, a deputy sheriff stopped

Gamble for driving too slowly. A loaded gun was found in Gamble?s purse.

Defendant was a passenger in the car. Gamble initially told police that she owned

the gun.

In May 1996, after ballistics testing revealed the gun was the Martin

murder weapon, District Attorney Investigator Buchanan sent a memorandum to

the prosecutor about the progress of the investigation (the Buchanan

28

Given our conclusion that the gang testimony of Scott and Black was

properly admitted for a nonhearsay purpose, defendant?s claim that his
constitutional right to confrontation was violated also fails. (Crawford v.
Washington
(2004) 541 U.S. 36, 60, fn. 9.)

53


memorandum). The first paragraph of the memorandum acknowledged that

defendant ?did not possess? the murder weapon when he was arrested, but

expressed Buchanan?s belief that defendant ?probably stuck it in [Gamble?s]

purse? at the time the couple was stopped. The second paragraph, noting that

Gamble had already pled guilty to a concealed-weapons charge in the matter,

indicated Buchanan’s intent to ?find? Gamble and ?make a [witness] out of her,?

or to ?arrest her? as an accessory to Martin?s murder. The third paragraph stated

Buchanan?s intent to interview Harold Black (then in Folsom Prison) and to find

and interview Johnnetta Hawkins (then believed to be in Las Vegas).29

On May 30, 1996, Buchanan interviewed Gamble, who stated that the gun

belonged to defendant and that he told her to put it in her purse as police

approached the car. At trial, Gamble testified consistently with this statement.

She also testified that, during her interview with Buchanan, he explained to her

that if she had anything to do with the crime, she could be charged as an

accessory. Gamble denied that Buchanan threatened or pressured her in any way

to state that defendant owned the gun and testified that she ?freely gave? him her

statement.

Out of the presence of the jury, trial counsel moved to introduce the

Buchanan memorandum into evidence as relevant to prove that, before trial,

Buchanan interviewed Gamble with the intent to threaten to charge her as an

29

The memorandum stated as follows: ?John ? [?] As you can tell by this

[police] report Defendant did not possess the handgun at the time of his arrest.
However, I think he probably stuck it in the female?s purse at the time of the car
stop. [?] I will find this gal (Kimiya Gamble) and make a wit [sic] out of her. Or
arrest her for 32 P.C. She apparently pled out to the 12025/12031 PC charge and
took 36 months probation. [?] As of now, Steve Gomez and I plan to go to
Folsom and interview Harold Black & Las Vegas to locate and interview Johnetta
Hawkins on May 1 & 2. [?] Buck [?] I?m keeping an envelope for def.
discovery.?

54


accessory in the Martin murder unless she recanted her statement to police that she

owned the gun and instead stated it belonged to defendant. The prosecutor

objected that the memorandum contained irrelevant material, but he agreed that

the second paragraph was relevant to impeach Buchanan regarding any threats he

may have made to Gamble. The trial court ruled that only the statements

contained in the second paragraph of the memorandum were relevant and that the

defense could impeach Buchanan with them if Buchanan denied on the stand that

he threatened Gamble or discussed the possibility she could be charged as an

accessory if she was involved in the murder. Counsel then stated that, in light of

the court?s ruling, and for tactical reasons, the defense would not call Buchanan as

a witness and attempt to impeach him on this point.

On appeal, defendant contends the trial court erroneously confined use of

the Buchanan memorandum to impeachment of any testimony Buchanan might

give on the witness stand. Defendant asserts that the statements in the first two

paragraphs were independently admissible under the state-of-mind exception to

the hearsay rule as substantive proof that Buchanan intended to, and did, pressure

Gamble to recant her statement to police and testify the gun belonged to

defendant. (Evid. Code, ? 1250, subd. (a)(2).) Defendant also contends the

memorandum was admissible for the nonhearsay purpose of showing Gamble

relented under Buchanan?s pressure and stated falsely that defendant owned the

gun. Finally, defendant contends the memorandum was admissible to show

Buchanan intended to interview Harold Black and Johnetta Hawkins with the

similar intent to pressure those witnesses to change their stories about their

knowledge of defendant?s involvement in the Coder and Martin murders. We

review a trial court?s ruling on the admissibility of evidence for abuse of

discretion. (People v. Riggs (2008) 44 Cal.4th 248, 290 (Riggs).)

55




2. Forfeiture

The People urge at the outset that defendant forfeited any claim the

contents of the Buchanan memorandum were relevant, not simply to impeach

Buchanan?s denials of improper pressure, but as substantive proof of such

pressure, because defendant did not present this theory to the trial court. Defense

counsel was hardly articulate on the point, and the issue of forfeiture is thus close,

but we conclude the claim was not forfeited.

Counsel did advise the court that the defense intended to call Buchanan,

question him about his interview of Gamble, and confront him with the

memorandum. Counsel?s argument for use of the memorandum centered

primarily around this theory. However, counsel also advised that ?this is [not]

merely and should [not] be merely relegated to the theory of impeachment. [?]

We believe this goes to Mr. Buchanan?s intent . . . . And it indicates he has

documented his intent and it is at least circumstantial evidence of what attempts,

perhaps, were made . . . . We believe it is relevant on more than just the theory

and issue of impeachment.? The obvious relevance of circumstantial evidence that

Buchanan improperly pressured Gamble was to refute Gamble?s claims that she

was not pressured, and to raise the inference that the pressure applied influenced

her admission, at odds with her prior statements, that defendant told her to hide the

gun. Accordingly, we conclude, the issue was adequately preserved.

On the other hand, we agree defendant has forfeited his appellate challenge

to the trial court?s refusal to admit the third paragraph of the Buchanan

memorandum, which expressed Buchanan?s intent to find and interview Harold

Black and Johnnetta Hawkins. The trial court ruled that this paragraph was

?totally irrelevant.? But defense counsel made no attempt whatever to challenge

or rebut the court?s conclusion. Indeed, counsel?s argument for use of the

Buchanan memorandum focused exclusively on the Kimiya Gamble interview,

and did not mention Black or Hawkins at all. Under such circumstances,

56


defendant did not preserve for appeal his current claim that paragraph three was

relevant and admissible because it indicated an intent to pressure Black and

Hawkins, like Gamble, to change their stories.

Notwithstanding our conclusion that defendant has forfeited certain of the

arguments he now raises, we proceed to the merits of these claims.

3. Merits

a. Buchanan?s asserted intent to pressure Gamble during her police

interview

In essence, defendant argues, with respect to Buchanan?s interview of

Gamble, that the first two paragraphs of Buchanan?s memorandum were relevant,

and were admissible under the state-of-mind exception to the hearsay rule (Evid.

Code, ? 1250),30 not only to impeach any disclaimers Buchanan might assert on

the witness stand, but also to prove circumstantially that Buchanan acted in

conformity with his expressed intent by pressuring Gamble to say that the Martin

murder gun was defendant?s, and that defendant told her to put it in her purse

when the police stopped her car. In turn, defendant asserts, evidence that

Buchanan exerted such pressure on Gamble was relevant to impeach her trial

testimony by suggesting, contrary to her denials, that she experienced such

pressure, succumbed to it, and thus falsely incriminated defendant. Contrary to

the trial court?s ruling, defendant insists, he was not limited to using the contents

30

Evidence Code section 1250 provides in pertinent part: ?(a) Subject to

Section 1252 [statement made under circumstances indicating untrustworthiness],
evidence of a statement of the declarant?s then existing state of mind . . .
(including a statement of intent, plan, motive, design . . . ) is not made
inadmissible by the hearsay rule when: [?] (1) The evidence is offered to prove
the declarant?s state of mind . . . at that time or at any other time when it is itself
an issue in the action; or [?] (2) The evidence is offered to prove or explain acts or
conduct of the declarant.?

57


of Buchanan?s memorandum to impeach testimonial denials by Buchanan that he

improperly pressured Gamble.

Defendant?s claim that the first two paragraphs of the Buchanan

memorandum were thus admissible as substantive proof he acted on the intent

therein expressed has probable merit. (See People v. Griffin (2004) 33 Cal.4th

536, 575-579 [under state-of-mind exception to hearsay rule, 12-year-old murder

victim?s statement to friend that she intended to confront the defendant if he

molested her again was admissible to prove she did confront him prior to the

murder]; see also, e.g., People v. Majors (1998) 18 Cal.4th 385, 404-405 [murder

victim?s statement of intent to conduct drug deal with people from Arizona on the

night he was killed was admissible, under state-of-mind exception to hearsay rule,

to prove he carried out such intent].) As defendant suggests, the first two

paragraphs of the memorandum, read together, permit the reasonable inference

that Buchanan followed through on his stated intent to threaten her with

prosecution as an accessory in order to get her to admit that defendant hid, or told

her to hide, the murder weapon in her purse.

We need not finally resolve the issue, however, for any error in failing to

admit this evidence was harmless by any applicable standard. As we have

indicated elsewhere, the admissible evidence that defendant was Martin?s killer

was extremely strong. Lloyd Marcus, an eyewitness to the fatal shooting of

Martin, identified the killer by defendant?s nickname of ?Popeye.? Defendant

admitted to Harold Black that he crept up on Martin and shot Martin in the head.

The ballistics evidence was consistent with Marcus?s eyewitness account of two

bullets fired at close range. One week after the killing, the murder weapon was

found in a car driven by defendant?s girlfriend, and in which he was a passenger.

Given the other evidence, the fact that the gun was in his girlfriend?s purse, rather

than on his person, and that she initially sought to protect him by claiming

58


ownership, was not likely to persuade a rational jury that defendant was not

associated with the weapon.

Moreover, aside from any support the Buchanan memorandum might have

provided, the defense was able to cross-examination Gamble effectively about the

truthfulness of her claim that the murder weapon belonged to defendant. In

particular, the defense elicited that at the time she and defendant were arrested,

Gamble claimed the gun was hers, and that she subsequently pled guilty to

possession of the weapon. Counsel questioned Gamble closely on why she was

willing to enter such a plea if the gun was not hers. She answered that the judge

told her she would need a lawyer to contest the charge, but was then confronted

with her signed plea waiver form indicating that she was entitled to a free

appointed attorney if she could not afford to retain one. She finally admitted she

was seeking to purchase a firearm at the very time the murder weapon was found

in her purse.

Under these circumstances, it appears clear that introduction of the

Buchanan memorandum would not have altered the jury?s perception of Gamble?s

credibility, or otherwise undermined its acceptance of the powerful evidence that

defendant was Martin?s killer. No basis for reversal appears.

b. Black?s and Hawkins?s interviews with Buchanan

Defendant also contends the trial court erred in ruling that the third

paragraph of Buchanan?s memorandum, in which he expressed his intention to

interview Harold Black and Johnnetta Hawkins, was irrelevant. As in the

preceding argument, he contends the paragraph was relevant to establish his

defense of evidence fabrication. Assertedly, jurors could infer from the evidence

that Buchanan intended to pressure both witnesses to change their stories about

their knowledge of defendant?s involvement in the crimes, and accordingly, that

their testimony was unreliable. But Buchanan?s memorandum did not suggest any

59


intent to pressure Black or Hawkins to make any particular statements. It simply

recited that Buchanan intended to locate and interview these witnesses. Hence, the

trial court ruled correctly that this paragraph of the memorandum was irrelevant

and thus, inadmissible.

C. Evidence of Orlando Hunt?s Polygraph Test Results

Defendant contends the trial court erred by admitting polygraph evidence in

violation of state law and his rights to a fair trial and a reliable verdict under the

Sixth, Eight, and Fourteenth Amendments. We agree, as we must, that error

occurred, but find no reversible prejudice.

1. Factual and procedural background

On direct examination by the prosecutor, Orlando Hunt stated that during

his initial police interviews he denied any knowledge of the Coder murder because

he was afraid for his safety and that of his family. Hunt further testified that, after

a subsequent interview in San Bernardino, he decided to tell investigators the truth

about witnessing defendant shoot Coder. On cross-examination, counsel asked

Hunt whether he changed his story and implicated defendant because the

prosecutor pressed him and threatened to charge him with the murder. Hunt

answered that he decided to tell the truth because his conscience bothered him.

Thereafter, out of the presence of the jury, the prosecutor sought to

introduce evidence that Hunt took and failed a polygraph test in order to establish

his state of mind when he decided to tell police the truth about witnessing the

murder. Defense counsel objected that the test results were inadmissible under

Evidence Code section 351.1, and that their admission would improperly place a

?stamp of approval? upon the version of events to which Hunt ultimately testified.

The trial court overruled the objection, reasoning the proffered evidence was

relevant to Hunt?s credibility because he might have changed his story about his

60


knowledge of the crime based on information he received that he had failed, or

that led him to believe he had failed, the polygraph test.

Subsequently, on redirect examination, the prosecutor elicited from Hunt

that he initially told police both truth and lies about his knowledge of the murder.

He stated he later took a polygraph test, after which the polygraph examiner

informed him the results showed he had ?told the truth about some ? on certain

things, and then lied on certain things.? The examiner then told Hunt to ?just go

ahead and tell the truth.? Hunt said that, after he thought about what the examiner

told him, he decided to tell the truth for ?the first time? about being an eyewitness

to the murder, and did so during his December 19, 1995, interview with the

prosecutor and Buchanan.

2. Discussion

a. Error analysis

Defendant contends the trial court should have excluded evidence that Hunt

was given a polygraph examination about his knowledge of, and involvement in,

the Coder murder, and that the examiner informed him he had answered certain

unspecified questions falsely. We agree this evidence should have been excluded.

Evidence Code section 351.1 prohibits the admission of polygraph evidence

in criminal cases absent a stipulation.31 (People v. Wilkinson (2004) 33 Cal.4th

31

Evidence Code section 351.1 provides: ?(a) Notwithstanding any other

provision of law, the results of a polygraph examination, the opinion of a
polygraph examiner, or any reference to an offer to take, failure to take, or taking
of a polygraph examination, shall not be admitted into evidence in any criminal
proceeding, including pretrial and post conviction motions and hearings, or in any
trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or
adult court, unless all parties stipulate to the admission of such results. [?] (b)
Nothing in this section is intended to exclude from evidence statements made
during a polygraph examination which are otherwise admissible.?


61


821, 842, 845-846; accord, People v. Samuels (2005) 36 Cal.4th 96, 128

(Samuels).) This section ?codifies a rule that this court adopted more than 30

years ago . . . in which we said that polygraph test results ?do not scientifically

prove the truth or falsity of the answers given during such tests.? ? (People v.

Espinoza (1992) 3 Cal.4th 806, 817 (Espinoza).) The statutory ban against

admission of polygraph evidence ? ?is a ?rational and proportional means of

advancing the legitimate interest in barring unreliable evidence.? ? ? (People v.

Hinton (2006) 37 Cal.4th 839, 890 (Hinton), quoting People v. Maury (2003)

30 Cal.4th 342, 413; see also U.S. v. Scheffer (1998) 523 U.S. 303, 314 [a per se

rule excluding all polygraph evidence ?offends no constitutional principle?].)

The state?s exclusion of polygraph evidence is adorned with no exceptions,

and its stricture on admission of such evidence has been uniformly enforced by

this court and the Court of Appeal. (See, e.g., Samuels, supra, 36 Cal.4th at p. 128

[evidence that defendant cooperated with police by offering to take, and passing,

polygraph examination was not admissible to refute prosecution?s evidence that

she was uncooperative during investigation]; People v. Burgener (2003)

29 Cal.4th 833, 870-872 (Burgener) [on retrial of penalty phase, evidence that a

third party?s polygraph test results were inconclusive was not admissible for

impeachment]; People v. Fudge (1994) 7 Cal.4th 1075, 1122 [no exception for

favorable mitigating polygraph evidence at the penalty phase]; People v. Price

(1991) 1 Cal.4th 324, 419 [evidence that prosecution witness twice failed

polygraph examination offered for impeachment was inadmissible]; People v.

Morris (1991) 53 Cal.3d 152, 193-194 [evidence that a prosecution witness had

failed a polygraph examination was not admissible to support the defense theory

that she was actual killer]; People v. Kegler (1987) 197 Cal.App.3d 72, 84-90

[same].)

62


The People contend the evidence was properly admitted, not to endorse or

attack the credibility of answers given during a polygraph examination, but to

explain why Hunt, in his postpolygraph statement to police, changed his story

about his involvement in the murder and implicated defendant as the killer. The

People assert that because such evidence was relevant to Hunt?s credibility, this

court should recognize a state-of-mind exception to Evidence Code section 351.1

for this limited purpose. We find this argument unpersuasive. (See People v. Lee

(2002) 95 Cal.App.4th 772, 790-791 (Lee) [declining to recognize exception to

ban on polygraph evidence offered to explain prosecution witness?s state of mind

in changing postpolygraph statement to police and as relevant to impeachment of

witness?s recantation of the statement at trial]; see also People v. Thornton (1974)

11 Cal.3d 738, 763-764 [evidence of a defendant?s willingness to take a polygraph

test is inadmissible as a ?badge of innocence? to bolster his credibility]; accord,

Espinoza, supra, 3 Cal.4th at pp. 817-818; People v. Basuta (2001) 94

Cal.App.4th 370, 389 (Basuta) [evidence that a prosecution witness agreed to take

a polygraph examination after giving the police a statement was inadmissible to

bolster her credibility].) Accordingly, the trial court?s admission of the polygraph

evidence was erroneous.

b. Prejudice analysis

Though admission of the polygraph references was error, we are persuaded,

under the circumstances of this case, that no reversible prejudice arose. The

instant matter is materially distinguishable from the two cases on which defendant

primarily relies, Lee and Basuta.

In Lee, supra, 95 Cal.App.4th 772, before the sole witness to the murder

provided his initial statement to police, he was administered a police polygraph

examination in which he denied having knowledge of the murder. (Id. at pp. 776,

782.) The examiner informed the witness that he had failed the test and that there

63


was a probability he was the shooter. Thereafter, during a tape-recorded

interview, the witness provided the examiner a statement in which he identified

the defendant as the shooter. (Id. at pp. 783-785.) At trial, he denied he had

witnessed the murder. (Id. at p. 776.) The prosecutor was permitted to play the

witness?s tape-recorded polygraph examination and his interview under the theory

this evidence was relevant impeachment material bearing on the witness?s state of

mind to explain why he subsequently changed his story and identified the

defendant as the killer. (Id. at pp. 790-791.)

On appeal, the reviewing court rejected the prosecutor?s theory of

admissibility and concluded admission of the polygraph evidence was prejudicial

error under Evidence Code section 351.1. (Lee, supra, 95 Cal.App.4th at pp. 790-

791.) The Lee court affirmed there is no state-of-mind exception to the statute?s

proscription against use of such evidence in criminal proceedings. (Id. at p. 791.)

The error was deemed prejudicial because ?[t]he polygraph evidence lent an

unreasonable impression of credibility? to the witness?s identification of the

defendant as the killer in an otherwise weak case. (Id. at p. 792.) As the Court of

Appeal noted, jurors heard no evidence of the lack of certainty of polygraph

results. On the other hand, the prosecutor informed them that ?his [polygraph]

machine [w]as a piece of space age technology, as reliable as a calculator, ?state-

of-the-art,? ?high tech stuff,? and ?copyrighted by [the] Johns Hopkins University

applied physics laboratory . . . the same people that monitor the spacecraft.? ? (Id.

at p. 792.)

Similarly, in Basuta, supra, 94 Cal.App.4th 370, the defendant, a home day

care operator, was convicted of assault charges stemming from the death of a 13-

month-old toddler by shake-induced injuries. Other than the defendant, the sole

percipient witness to the events leading to the death of the toddler was the

defendant?s housekeeper. She initially told police investigators that the toddler

64


fell and hit his head when another child pushed him. (Id. at pp. 376-379.)

Thereafter, during a police interview, the witness accused the defendant of shaking

the toddler. At the conclusion of the interview, the witness offered to take a

polygraph examination.32 (Basuta, at pp. 388-389.) At trial, the prosecutor

elicited testimony about the victim?s offer from a detective who participated in the

interview. (Id. at p. 389.)

The Court of Appeal concluded admission of the witness?s offer to take a

polygraph test was prejudicial and warranted reversal of the defendant?s

conviction. It reasoned the jury?s decision on the witness?s credibility was central

to the prosecution?s case, and the detective?s testimony ?had a high potential to

affect the jury?s resolution of that issue.? (Basuta, supra, 94 Cal.App.4th at p.

390.) The jury could have found the sole percipient witness credible based on a

belief that her willingness to take the polygraph examination reflected her

confidence in its results, or could have inferred that the prosecution decided to

bring the charges once persuaded that the witness was credible by her offer to take

a polygraph test. (Ibid.)

Here, by contrast, we agree with the People that erroneous admission of

evidence of Hunt?s polygraph examination was harmless under any standard. (See

Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46

Cal.2d 818, 836.) Unlike in Lee, defendant suffered no prejudice from any

?unreasonable impression of credibility? the polygraph test results themselves

might have bestowed on Hunt?s identification of defendant as the killer. (Lee,

supra, 95 Cal.App.4th at p. 792.) Kerry Scott unequivocally identified defendant

32

The prosecutor informed the trial court that the witness took and passed a

polygraph examination, but defendant noted the results were inconclusive and
tended to show deception. (Basuta, supra, 94 Cal.App.4th at p. 379.)

65


as Coder?s killer and corroborated Gina Lee?s presence in or near the field in back

of the motel. Also, Lee testified consistently with Scott that defendant was in the

field when Coder was shot and that he left the area immediately thereafter. Lee

also corroborated Hunt?s testimony that Hunt was with defendant at the motel

shortly before the murder occurred, and that he and defendant ran from the murder

scene immediately after the shooting. Further, Scott?s testimony substantially

agreed with the pathologist?s findings that Coder was shot in the head at close

range and fell to the ground after taking a step or two, at most, after being shot.

In addition, unlike in Basuta, jurors would not have concluded that Hunt

agreed to take the polygraph because he had confidence in the test result; he

admitted he initially told police a mixture of truth and lies about his involvement

in the murder. (See Basuta, supra, 94 Cal.App.4th at p. 390.) Nor would they

have concluded Hunt?s testimony was believable merely because he took the test;

among other things, Hunt testified against defendant despite threats by defendant

and defendant?s sister Robin to harm him if he did so. (Ibid.)

Moreover, unlike the housekeeper in Basuta, Hunt was not the sole

percipient witness to the crime at issue; hence, the jurors in this case would not

have credited Hunt?s testimony based on their belief the prosecutor would not

have prosecuted defendant if he had doubts about Hunt?s credibility. (Ibid.)

Indeed, the jury was aware that the prosecutor did have reservations about the

credibility of this witness. During Hunt?s post-polygraph interview (the audio tape

recording of which was played for the jury), the prosecutor threatened to prosecute

Hunt for Coder?s murder, and told him, albeit falsely and presumably merely to

add force to this threat, that four witnesses said he was standing next to defendant

when the victim was shot. Also, jurors were informed that Hunt was a drug user

with a felony record, a factor that weighed against finding Hunt credible merely

because he willingly underwent a polygraph test. Reversal is not required.

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D. Witness Intimidation Evidence

Defendant contends the trial court violated state law and his Sixth, Eighth,

and Fourteenth Amendment rights to a fair trial and reliable verdict when it

admitted evidence of (1) a threat by defendant?s sister Robin to harm Orlando

Hunt if he testified against defendant and (2) defendant?s threat to kill Gina Lee if

she spoke about the Coder murder. The claim is without merit.

1. Assertedly erroneous admission of Robin McKinnon?s threats to

harm Hunt

a. Factual and procedural background

On direct examination by the prosecutor, Orlando Hunt testified that, on the

day after the Coder murder, defendant appeared at his bedroom doorway and told

him that ?if you say anything this could happen to you.? Hunt further testified that

in January 1995, during his first interview with police, he lied about what he knew

about the murder because he feared defendant would harm him and his family if

he cooperated with the police. Hunt also told the jury that during his second

police interview in December 1995, while he was in custody in an unrelated case,

he decided to tell the truth about his knowledge of the murder. Hunt said he

changed his mind (after discussing the results of his polygraph test with the

examiner, see discussion, ante) because his conscience was bothering him. He felt

the murder was wrong, he explained, because it ?happened for no apparent

reason.?

On cross-examination, Hunt said he talked to police about the murder for

the additional reason that he felt he would be protected from defendant if he did

so.33 He further stated that about two or three weeks after his December 25, 1995,

33

During his initial police interview Hunt and the prosecutor discussed

Hunt?s fear that defendant would harm him or his family if he cooperated with
police in this case. The prosecutor discussed the steps he would take to provide

(Footnote continued on next page.)

67


release from custody, he had a ?problem? at a party he attended. He did not

elaborate on this event.

On redirect examination, Hunt repeated that he went to a party after his

release from custody, and trial counsel objected on the ground he had received no

discovery of this evidence.

Out of the presence of the jury, the prosecutor acknowledged he ?probably?

had not provided counsel discovery of the evidence. Nonetheless, the prosecutor

noted, Hunt?s reference to an incident at a party had been elicited by defense

counsel on cross-examination. The prosecutor made an offer of proof that during

one of his conversations with Hunt, Hunt mentioned that Robin had confronted

him at a party in Banning. Robin told Hunt he would be hurt if he testified against

defendant. Hunt said he was then hit on the head with a bottle, knocked to the

ground and kicked, and felt threatened.

Defense counsel argued that evidence of the incident relating to the party

should be excluded because (1) the prosecutor failed to provide notice to trial

counsel, (2) the evidence was not relevant, given the lack of proof defendant

authorized the threat, and (3) even if the evidence was relevant, it was cumulative

and unduly prejudicial within the meaning of Evidence Code section 352. The

prosecutor replied that evidence Hunt was threatened by a member of defendant?s

family was relevant to his credibility.

The court ruled the evidence was admissible as to Hunt?s credibility.

Defense counsel thereafter asked the court to give the jury a limiting instruction

and, when it agreed, asked the court to draft an instruction ?off the cuff.?

(Footnote continued from previous page.)

protection for Hunt and his family as well as the possibility that Hunt would be
placed in the witness relocation program.

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When redirect examination resumed, Hunt testified that sometime during

1996 or 1997 he went to a party in Banning, and Robin confronted him, cursing

and asking, ?What?s going on with my brother? Are you going to tell on my

brother?? Hunt told her he did not want to talk about it. As he turned his head,

she hit him with a bottle, and an unidentified male kicked him in the face. When

asked if ?they? made any other statements to him, Hunt answered, ?If I go to

court, something will happen to me, if I testify.? Hunt testified he later was

treated at Banning Pass Hospital for bumps on his head and a ?gash.? The trial

court thereafter instructed the jury: ?[T]his evidence was introduced as it bears

upon the witness?s state of mind and his demeanor and manner while testifying.

There is no evidence that the defendant assisted or played any role in the alleged

assault.?

b. Discussion

?Evidence that a witness is afraid to testify or fears retaliation for testifying

is relevant to the credibility of that witness and is therefore admissible.

[Citations.] An explanation of the basis for the witness?s fear is likewise relevant

to [his or] her credibility and is well within the discretion of the trial court.

[Citations.]? (Burgener, supra, 29 Cal.4th at p. 869; accord, People v. Guerra

(2006) 37 Cal.4th 1067, 1141-1142 (Guerra); see also People v. Olguin (1994) 31

Cal.App.4th 1355, 1369 [the jury is ?entitled to know not just that the witness was

afraid, but also, within the limits of Evidence Code section 352, those facts which

would enable them to evaluate the witness?s fear?]; see also generally Evid. Code,

? 780.) ?[T]here is no requirement to show threats against the witness were made

by the defendant personally or the witness?s fear of retaliation is ?directly linked?

to the defendant.? (Guerra, supra, at p. 1142, citing People v. Gutierrez (1994) 23

Cal.App.4th 1576, 1588.) Here, defendant contends the trial court should have

69


excluded the evidence of Robin?s threat against Hunt on several grounds, each of

which we consider in turn.

(1) Asserted discovery delay

Defendant initially argues that evidence of Robin?s threat should have been

excluded because the prosecutor delayed discovery of this evidence. (See

generally ? 1054 et seq. [criminal discovery chapter].) However, although the

prosecutor conceded he had failed to provide discovery of this evidence to

counsel, ?[i]t is defendant?s burden to show that the failure to timely comply with

any discovery order is prejudicial, and that a continuance would not have cured the

harm.? (People v. Pinholster (1992) 1 Cal.4th 865, 941.) Defendant sought no

continuance, and he made no showing that his defense would have been different

had he been provided timely discovery of evidence of Robin?s threat. Therefore,

the trial court did not abuse its discretion by failing to exclude this evidence on

this basis.

(2) Assertedly cumulative evidence

Next, defendant argues evidence of Robin?s threat should have been

excluded under Evidence Code section 352 as cumulative of other evidence that

Hunt was concerned about the consequences he might suffer for implicating

defendant as Coder?s killer.34 Hunt testified that on the day after the Coder

murder, defendant threatened to kill him if he talked about the crime. In addition,

the audio recording of Hunt?s initial police interview, which was played to the jury

34

Evidence Code section 352 provides: ?The court in its discretion may

exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.?

70


as part of the prosecution?s case, also revealed that Hunt feared defendant would

retaliate against him and his family if he testified at defendant?s trial.

?Evidence that is identical in subject matter to other evidence should not be

excluded as ?cumulative? when it has greater evidentiary weight or probative

value.? (People v. Mattson (1990) 50 Cal.3d 826, 871, citing People v. Carter

(1957) 48 Cal.2d 737, 748-749.) Here, as defendant concedes, evidence that

Robin threatened and assaulted Hunt was similar in kind to that of defendant?s

threat and was additionally probative of Hunt?s credibility because it established

that Hunt testified notwithstanding multiple threats to harm him if he did so. In

addition, evidence Robin violently attacked Hunt in making the threat also proved

her sincerity and ability to harm Hunt. The evidence of Robin?s threat,

accompanied by a violent assault, was more powerful in that defendant used only

his voice to threaten Hunt.

Moreover, defendant was placed in custody after he made the threat and,

absent evidence to the contrary, no longer reasonably posed a threat of physical

harm to Hunt. Under these circumstances, evidence that Robin threatened and

violently attacked Hunt in an effort to dissuade him from testifying demonstrated a

more serious threat to Hunt, and thus was more probative of his credibility than

evidence that defendant merely verbally threatened him in an effort to achieve the

same result. (Cf. Hinton, supra, 37 Cal.4th at p. 888 [proof of a series of crimes

relevant to character for truthfulness is more probative of credibility than a single

lapse].) The evidence was not excludable on this ground. 35

35

Defendant additionally asserts that, in addition to being cumulative, Hunt?s

testimony of Robin?s threat and attack was unreliable because the prosecutor
offered no evidence to corroborate it. He failed to object at trial on this ground
and therefore has forfeited this issue on appeal. Nonetheless, the reliability of
Hunt?s testimony was a question for the jury and went to the weight of the
evidence, not its admissibility. (See People v. Anderson (2001) 25 Cal.4th 543,

(Footnote continued on next page.)

71


(3) Undue prejudice; inadequate admonition

Defendant finally argues that evidence of Robin?s threat should have been

excluded as unduly prejudicial under Evidence Code section 352 because it posed

a substantial danger the jury would speculate that defendant authorized the attack

and threat. To the contrary, as stated above, the trial court admonished the jurors

that the evidence was admitted as bearing on Hunt?s credibility, and that there was

no evidence of defendant?s involvement in the threat and attack on Hunt.

Defendant nonetheless contends the admonition was inadequate because it did not

instruct the jurors that they could not infer defendant was involved in the threat

and attack, that they could not consider the evidence in any way against defendant,

and that they could consider the evidence to determine only whether Hunt feared

testifying because he was threatened. His contentions lack merit.

We ?credit jurors with intelligence and common sense? (People v.

Coddington (2000) 23 Cal.4th 529, 594) and presume they generally understand

and follow instructions (Holt, supra, 15 Cal.4th at p. 662). We think it highly

unlikely the jurors understood they could infer defendant authorized or

orchestrated the threat and attack, because there was no evidence from which the

jurors reasonably could draw this inference, and they were instructed evidence of

his involvement did not exist. Further, because the trial court instructed them the

evidence was admitted as bearing on Hunt?s state of mind and demeanor in

testifying, the jurors also understood from the instruction that, logically, the

evidence was not relevant to Hunt?s credibility unless they found the preliminary

fact that he was afraid to testify because he was threatened and attacked.

(Footnote continued from previous page.)

587 [reliability of witness?s testimony is a jury question that affects the weight of
the evidence and not its admissibility.].)

72


In any event, a defendant who believes an instruction requires clarification

or modification must request it. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1140

(Rodrigues).) Defendant neither objected to, nor sought clarification of, the ?off

the cuff? limiting instruction his counsel requested. Finally, we note that the

prosecutor did not argue the jury should consider the evidence of Robin?s threat

and assault for any improper purpose. Under all these circumstances, defendant

manifestly fails to show a reasonable likelihood the jury misinterpreted and

misapplied the limiting instruction.

Accordingly, the trial court did not abuse its discretion in refusing to

exclude evidence that Robin threatened and attacked Hunt in an effort to

intimidate him from testifying.

2. Gina Lee?s out-of-court statement

As noted, Gina Lee testified that at the time of Coder?s murder she was

outside her motel room; she heard a gunshot and saw defendant and Hunt run from

the motel grounds. Johnnetta Hawkins testified on direct examination by the

prosecutor that she could not recall Lee?s demeanor when Lee thereafter returned

to the room. The prosecutor was permitted to impeach Hawkins?s testimony on

this point with her prior out-of-court statement to Detective Buchanan that ?Lee

said defendant had said he would kill her if she said anything about the Coder

murder.?

Defendant does not dispute that Hawkins?s prior statement was admissible,

under the prior inconsistent statement exception to the hearsay rule (Evid. Code, ?

1235), as proof of what Hawkins observed about Lee?s demeanor and emotional

state. Defendant contends, however, that in admitting Hawkins?s prior statement

for this purpose, the court erroneously admitted for its truth the portion of this

statement that comprised Lee?s prior statement to Hawkins, i.e., that ?defendant

had said he would kill [Lee] if [Lee] said anything about the Coder murder.?

73


Defendant urges that because Lee?s statement to Hawkins was not inconsistent

with Lee?s own testimony, it could not be admitted, under the prior inconsistent

statement exception to the hearsay rule, to prove that what Lee said was true.

Even if defendant is correct, however, we conclude any error in admitting

evidence that defendant threatened Lee was harmless by any applicable standard.

a. Factual and procedural background

Following Lee?s testimony, and outside the presence of the jury, the

prosecutor offered to prove Hawkins told Investigator Buchanan that when Lee

returned to the motel room after Coder?s murder, she seemed scared and said she

had been threatened by defendant not to say anything about what she had seen.

The prosecutor sought admission of Lee?s out-of-court statement to Hawkins on

the ground that it fell within the hearsay exception for prior inconsistent

statements. Defense counsel objected on the ground the statement did not qualify

under the exception. The court ruled that Lee?s statement to Hawkins was

inadmissible because the prosecutor had not established it was inconsistent with

Lee?s testimony, in that Lee had not denied, on the stand, that defendant

threatened her.

Thereafter, on direct examination by the prosecutor, Hawkins testified that

she could not remember Lee?s demeanor when Lee returned to the motel room

immediately after Coder?s murder, because the murder had occurred many years

before her testimony. When the prosecutor asked whether her memory would be

refreshed if she read the statement she had given Investigator Buchanan, Hawkins

claimed, ?No, it would not.?36 The prosecutor questioned whether Hawkins told

the investigator that Lee was ?very scared? when she returned to the motel room.

36

Buchanan interviewed Hawkins a few days before she testified, while she

was in custody on another matter.

74


Hawkins answered, ?She probably was. We was all scared. We had a murder

scene.? Hawkins further testified that she could not ?now? remember that Lee

appeared to be scared, and then told the prosecutor, ?No, you cannot make me say

I seen her being scared.?

On its own motion, the court called counsel to sidebar and advised the

prosecutor that ?based upon [Hawkins?s] testimony in response to your last several

questions, . . . you [may] ask whether or not Gina Lee said that the defendant

threatened her because that?s [contradictory] to [Hawkins?s] testimony.? In

essence, the court ruled that Hawkins?s prior statement to Buchanan (i.e., that Lee

told Hawkins defendant had threatened to kill her) came within the hearsay

exception for prior inconsistent statements and was admissible to impeach

Hawkins. At this point, defense counsel stated that ?for the record, we object to

that.? The objection was overruled. When the testimony resumed, the prosecutor

elicited from Hawkins that she told Buchanan of hearing from Lee that,

immediately after the murder, defendant told Lee he would kill her if she said

anything about the killing.

b. Discussion

As stated, defendant correctly does not dispute that, in light of Hawkins?s

evasive testimony that she could not remember and would not say that Lee

appeared to be scared when she returned to her room after the gunshot, Hawkins?s

prior inconsistent statement to Buchanan was admissible, under the hearsay

exception for prior inconsistent statements, both to impeach the credibility of

Hawkins?s contrary trial testimony and for the truth of the implication, in

Hawkins?s earlier statement, that Lee seemed frightened. (Evid. Code, ? 1235; see

People v. Garcia (2008) 168 Cal.App.4th 261, 289; cf., People v. Morgan (2005)

125 Cal.App.4th 935, 938-939, 943.) Defendant claims, however, that the trial

court erred when it admitted, as included within Hawkins?s statement to

75


Buchanan, the substance of Lee?s declaration to Hawkins that defendant had

threatened Lee.

As defendant points out, Lee?s extrajudicial statement to Hawkins was

hearsay insofar as admitted for the truth of Lee?s claim that defendant had made

such a threat. Defendant is correct in asserting that no exception to the hearsay

rule, including the exception for prior inconsistent statements, permitted admission

for that purpose of Lee?s statement to Hawkins, because Lee was never asked on

the stand about such a threat, and thus never denied receiving one.

The People urge that the substance of what Lee told Hawkins about

defendant?s threat, as reported by Hawkins to Buchanan, was admitted only for the

proper, limited purpose of confirming that Lee seemed afraid when she returned to

the motel room shortly after the Coder murder. However, the record does not

make clear that this is so, or that the jury so understood.37

In ruling, on its own motion, that the prosecutor could impeach Hawkins

with her prior statement to Buchanan, the trial court did not limit the prosecutor to

eliciting only the portion of this statement that dealt with Lee?s demeanor.

Instead, the court allowed the prosecutor to obtain Hawkins?s admission she had

told Buchanan of Lee?s report that defendant warned Lee to keep quiet about the

murder. The jury received no instruction limiting its consideration of this

evidence to the issue of Lee?s emotional state in the aftermath of the shooting.

Thus, an out-of-court statement that defendant threatened Lee came into evidence

37

Indeed, evidence narrowly limited to Lee?s emotional state immediately

after the shooting was cumulative and highly collateral. That someone who had
just witnessed a murder was agitated and upset seems unremarkable. Moreover,
Lee herself had already admitted on the stand that she was afraid to testify, had
lied at the preliminary hearing because she was ?scared,? and lied to the police
eight or nine months after the shooting because she was frightened.

76


without any overt restraint on the jury?s ability to consider that statement for its

truth.

Nonetheless, we find no basis to disturb the judgment. Any error in

admitting the ?threat? evidence was harmless by any applicable standard.

Defendant?s identity as the person who walked up to Coder and shot him dead was

confirmed by the independent testimony of two eyewitnesses ? Orlando Hunt,

himself the subject of similar threats by both defendant and defendant?s sister, and

Kerry Scott. Despite the alleged threat against her, Lee gave eyewitness testimony

that also substantially incriminated defendant. Defendant admitted to Harold

Black that he shot and killed Coder. Thus, insofar as the threat to Lee implicated

defendant further by suggesting his consciousness of guilt, the evidence was

cumulative and of minor value.

On the other hand, evidence of defendant?s threat against Lee did not

unduly bolster her credibility. Though it implied she testified in the face of

defendant?s menace, other, properly admitted evidence established that fact. Lee

herself testified that she was afraid of defendant because he was the type of person

who ?just goes off.? Under the circumstances, any error in admitting hearsay

evidence that defendant threatened Lee was harmless beyond reasonable doubt.

Defendant also contends that because the prosecution?s case against him in

each murder case was close, and because evidence of Lee?s statement that

defendant threatened her suggested he committed the Coder murder, admission of

her statement, even if nominally probative on the issue of her credibility, was an

abuse of discretion under Evidence Code section 352 because it unfairly bolstered

the prosecution?s case in the Martin murder. He also contends the evidence

suggested he was generally violent and thus permitted an unfair inference that he

likely committed both murders. Here again, however, defendant failed to object

on this ground to admission of the threat evidence. He thus forfeited the issue for

77


purposes of appeal. (E.g., People v. Alexander (2010) 49 Cal.4th 846, 905.) In

any event, for the reasons stated above, we find no prejudice warranting reversal

of the judgment.

E. Jury Instructions

1. Trial court?s failure to provide CALJIC No. 2.01 on its own motion

Defendant contends the trial court?s failure to instruct the jury on its own

motion on the legal principles that controlled the jury?s consideration of

circumstantial evidence violated state law and his rights to due process, a fair trial

by jury, and a reliable guilt determination under the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the federal Constitution. Specifically, he claims the

trial court should have instructed the jury with CALJIC No. 2.01 (Sufficiency of

Circumstantial Evidence?Generally)38 in light of Kimiya Gamble?s testimony

that the gun found in her purse during a traffic stop one week after the murder

(i.e., the Martin murder weapon) was owned by defendant.

38

At the time of trial, CALJIC No. 2.01 provided as follows: ?[A] finding of

guilt as to any crime may not be based on circumstantial evidence unless the
proved circumstances are not only (1) consistent with the theory that the defendant
is guilty of the crime, but (2) cannot be reconciled with any other rational
conclusion. [?] Further, each fact which is essential to complete a set of
circumstances necessary to establish the defendant?s guilt must be proved beyond
a reasonable doubt. In other words, before an inference essential to establish guilt
may be found to have been proved beyond a reasonable doubt, each fact or
circumstance upon which such inference necessarily rests must be proved beyond
a reasonable doubt. [?] Also, if the circumstantial evidence as to any particular
count is susceptible of two reasonable interpretations, one of which points to the
defendant?s guilt and the other to his innocence, you must adopt that interpretation
which points to the defendant?s innocence, and reject that interpretation which
points to his guilt. [?] If, on the other hand, one interpretation of such evidence
appears to you to be reasonable and the other interpretation to be unreasonable,
you must accept the reasonable interpretation and reject the unreasonable.?

78


The People argue that this issue is forfeited for purposes of appeal under

the invited error doctrine, noting defense counsel argued in closing that the Martin

murder was not primarily a circumstantial evidence case. ?When a defense

attorney makes a ?conscious, deliberate tactical choice? to [request or] forego a

particular instruction, the invited error doctrine bars an argument on appeal that

the instruction was [given or] omitted in error.? (People v. Wader (1993)

5 Cal.4th 610, 657-658; see People v. Tate (2010) 49 Cal.4th 635, 695, fn. 32

(Tate); People v. Valdez (2004) 32 Cal.4th 73, 115.)

Here, the record on appeal reveals that when the parties conferred with the

trial court regarding the proposed jury instructions, trial counsel was silent when

the prosecutor indicated that he wanted to withdraw his request for CALJIC No.

2.01. For purposes of the invited error doctrine, however, the absence of a request

is not equivalent to an express tactical objection. (E.g., People v. Wickersham

(1982) 32 Cal.3d 307, 333 (Wickersham).)

The People nonetheless assert this court properly may review the entire

record and determine that trial counsel?s comment in closing argument that the

Martin murder case was not primarily a circumstantial evidence case demonstrates

he believed CALJIC No. 2.01 was inapplicable and thus failed to request the

instruction as a matter of trial tactics. To the contrary, our review of the record on

the question before us is limited to that portion concerning the formulation of the

instructions provided to the jury.39 (Cf. Wickersham, supra, 32 Cal.3d at pp. 333-

39

Even assuming we may properly review the closing argument in this case to

determine whether trial counsel deliberately refrained from requesting, or
objecting to the omission of, CALJIC No. 2.01 for tactical reasons, we disagree
with the People?s assertion that, based on counsel?s comment in closing argument,
we may infer that counsel believed the instruction was inapplicable. Significantly,
for this point, trial counsel emphasized the circumstantial nature of the
prosecution?s evidence of defendant?s possession of the Martin murder weapon

(Footnote continued on next page.)

79


334 [declining to ?infer from the record as a whole that defense counsel made a

deliberate tactical decision not to request instructions? complained of].)

Therefore, because trial counsel expressed no deliberate tactical purpose in failing

to request CALJIC No. 2.01, the invited error doctrine does not apply.

In any event, we find no error. The trial court is required to give CALJIC

No. 2.01 on its own motion when the prosecution relies substantially on

circumstantial evidence to prove guilt. (People v. Yeoman (2003) 31 Cal.4th 93,

142, citing People v. Wright (1990) 52 Cal.3d 367, 406 (Wright); People v.

Yrigoyen (1955) 45 Cal.2d 46, 49.) Conversely, the instruction need not be given

when circumstantial evidence is merely incidental to and corroborative of direct

evidence, due to the ?danger of misleading and confusing the jury where the

inculpatory evidence consists wholly or largely of direct evidence of the crime.?

(People v. Jerman (1946) 29 Cal.2d 189, 197; see Yeoman, supra, at p. 142;

Yrigoyen, supra, at p. 50.)

The primary prosecution evidence in the Martin murder case was Harold

Black?s testimony that during a conversation with defendant while both were

imprisoned in Chino, defendant admitted he shot Martin in the head, and Sergeant

Palmer?s testimony that eyewitness Lloyd Marcus identified defendant as Martin?s

killer. The prosecution?s circumstantial evidence related essentially to defendant?s

possession of the murder weapon one week after Martin was killed. Though the

incriminating effect of this evidence was indeed substantial, it complemented, and

was merely corroborative of, defendant?s admissions. The trial court thus was not

obligated to instruct on circumstantial evidence. (Wright, supra, 52 Cal.3d at

(Footnote continued from previous page.)

one week after the murder and argued there was no ?connection? between
defendant?s possession of that weapon and the possession of that weapon by
Martin?s killer one week earlier.

80


p. 406 [instruction on circumstantial evidence is not required for circumstantial

evidence merely corroborative of direct evidence of a defendant?s extrajudicial

admissions].)

Defendant disagrees and contends that the exception recognized in People

v. Wright does not apply here because the gun evidence was central to the

prosecution?s case.40 He reasons that, given the gun evidence, the jurors would

have dismissed any doubts they may have had about Black?s and Palmer?s

credibility, because, if defendant possessed the gun one week after the murder and

failed to establish any other plausible explanation for possessing it, the jurors

would have concluded he was the killer. But again, the fact that strong

circumstantial evidence bolsters, corroborates, or supports the direct evidence of

guilt does not mean CALJIC No. 2.01 must be given sua sponte.

Nor did the prosecution rely primarily on ?a pattern of incriminating

circumstances? to prove defendant?s guilt. (See People v. Williams (1984) 162

Cal.App.3d 869, 875 [CALJIC No. 2.01 must be given where the direct evidence

is a small part of the prosecution?s case or ?the defendant?s guilt is to be inferred

from a pattern of incriminating circumstances?].) Defendant?s unequivocal

40

As part of his argument, defendant suggests that we may consider the

?quality? of the evidence in assessing whether the prosecution substantially relied
on circumstantial evidence to prove his guilt. Specifically, he contends that where
the quality of the direct evidence is weak, and the quality of the circumstantial
evidence is strong, the prosecution has substantially relied on the circumstantial
evidence. He provides no persuasive authority for our consideration of such a
factor in analyzing whether instruction on circumstantial evidence was required.
Indeed, defendant?s suggestion appears to go to the weight of the evidence, a
question which is within the exclusive province of the jury. (Evid. Code, ? 312,
subd. (b) [?Subject to the control of the court, the jury is to determine the effect
and value of the evidence addressed to it, including the credibility of witnesses?];
People v. Sanders (1995) 11 Cal.4th 475, 531 [the jury is assigned the exclusive
function of resolving questions of fact, credibility of witnesses, and the weight to
be accorded evidence].)

81


admission to murdering Martin was the basis of the prosecution?s case.

Accordingly, the trial court did not err by failing to instruct the jury with CALJIC

No. 2.01.

Finally, defendant suffered no federal constitutional violations because the

federal Constitution does not require trial courts to instruct on the evaluation of

circumstantial evidence when, as here, the jury is properly instructed on the

reasonable doubt standard. (Holland v. United States (1954) 348 U.S. 121, 140;

see also Victor v. Nebraska (1994) 511 U.S. 1, 7-17 [approving California?s

instruction defining reasonable doubt]; see also People v. Rogers (2006)

39 Cal.4th 826, 886.)

2. Asserted unconstitutionality of CALJIC Nos. 2.02, 2.03, 2.21.2,

2.22, 2.27, 2.51, and 8.20

Defendant claims that the cumulative effect of various standard instructions

in this case concerning the reasonable doubt standard ? CALJIC Nos. 2.02

(Sufficiency of Circumstantial Evidence), 2.03 (Consciousness of Guilt ?

Falsehood), 2.21.2 (Witness Willfully False), 2.22 (Weighing Conflicting

Testimony), 2.27 (Sufficiency of Testimony of One Witness), 2.51 (Motive), and

8.20 (Deliberate and Premeditated Murder) ? violated his right to due process, a

trial by jury, and a reliable capital trial. (U.S. Const., 6th, 8th & 14th Amends.;

Cal. Const., art. I, ?? 7, 15-17.)41 We previously have rejected similar claims, and

defendant offers no persuasive reason to reconsider them here.

41

The parties jointly requested that the trial court give CALJIC Nos. 2.02,

2.21.2, 2.22, 2.27, 2.51, and 8.20. The People assert that because defendant
requested these instructions, the invited error doctrine bars him from complaining
on appeal that the instructions were erroneously given. The record does not
reveal, however, that trial counsel expressed a deliberate tactical purpose in jointly
requesting these instructions. Thus, the invited error doctrine does not apply.
(People v. Moon (2005) 37 Cal.4th 1, 28 [the defendant, who jointly requested
standard instruction, did not invite error].)

82


Thus, we summarily reaffirm that CALJIC Nos. 2.02, 2.21.2, 2.22, 2.51,

and 8.20 do not unconstitutionally lessen the prosecution?s burden of proof

(People v. Friend (2009) 47 Cal.4th 1, 53 (Friend) [CALJIC Nos. 2.02, 2.21.2,

2.22, 2.51, 8.20]; Guerra, supra, 37 Cal.4th at p. 1139 [CALJIC Nos. 2.02, 2.21.2,

2.22, 2.51]; Stewart, supra, 33 Cal.4th at p. 521 [CALJIC No. 2.02]; People v.

Nakahara (2003) 30 Cal.4th 705, 714-715 [CALJIC Nos. 2.21.2, 2.22, 8.20]);

CALJIC No. 2.03 is not impermissibly argumentative and does not permit the jury

to draw improper permissive inferences (Taylor, supra, 48 Cal.4th 574, 630;

McWhorter, supra, 47 Cal.4th at p. 377); and CALJIC No. 2.27 does not

impermissibly lessen the prosecution?s burden of proof when read in context of

other instructions, including the instruction defining proof beyond a reasonable

doubt. (People v. Turner (1990) 50 Cal.3d 668, 697; see also Friend, supra, at p.

53.)

3. CALJIC No. 2.71

The prosecutor introduced evidence of various admissions made by

defendant during his in-custody police interview, as well as the following evidence

of unrecorded pretrial statements by defendant that tended to implicate him in the

Coder and Martin murders: (1) Johnnetta Hawkins?s police statement and ultimate

testimony that, according to Gina Lee, defendant threatened on the night of the

Coder murder to kill Lee if ?she said anything?; (2) Orlando Hunt?s testimony that

during the day after the Coder murder, defendant warned Hunt not to say anything

or ?this could happen to you?; and (3) Harold Black?s testimony that while he and

defendant were incarcerated together in Chino State Prison in 1994, defendant told

Black he killed Coder and Martin.

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The parties jointly asked the trial court to provide the jury with CALJIC

No. 2.71, which instructs the jury to view a defendant?s admissions with caution.42

At the conference on the proposed instructions, the court addressed the

applicability of the cautionary language of the instruction (i.e., the bracketed

paragraph) as follows: ?How about the bracketed portion of 2.71, the last

paragraph? ?Evidence of an oral admission of the defendant not made in court

should be viewed with caution.? I believe there?s an instruction under [CALJIC

No.] 2.71 that applies to a situation where the statement is not tape-recorded.?

The prosecutor responded, ?Right. I think that?s supposed to be taken out in a

situation like ours.? Trial counsel agreed. Thereafter, the trial court omitted the

cautionary language when it instructed the jury with CALJIC No. 2.71. Defendant

contends the trial court erred, in violation of state law and his rights to a fair and

reliable capital trial under the Eighth and Fourteenth Amendments, by failing to

instruct the jury on its own motion that the evidence of defendant?s unrecorded

admissions should be viewed with caution.43 We find no prejudicial error.

42

At the time of trial, the standard version of CALJIC No. 2.71 read: ?An

admission is a statement made by [a] [the] defendant which does not by itself
acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial,
but which statement tends to prove [his] [her] guilt when considered with the rest
of the evidence.


?You are the exclusive judges as to whether the defendant made an

admission, and if so, whether that statement is true in whole or in part.


?[Evidence of an oral admission of [a] [the] defendant not made in court

should be viewed with caution.]?

43

The People contend defendant is barred from presenting this issue on

appeal under the doctrine of invited error because trial counsel agreed the
cautionary language of CALJIC No. 2.71 should be omitted. The People are
mistaken. The trial court and the parties recognized that, as discussed below, the
cautionary language applied when evidence of the defendant?s unrecorded
admissions is admitted. Although the prosecutor thereafter impliedly requested
the cautionary language be omitted, the subsequent remarks of the court and

(Footnote continued on next page.)

84


It is well established that the trial court must instruct the jury on its own

motion that evidence of a defendant?s unrecorded, out-of-court oral admissions

should be viewed with caution. (People v. Mungia (2008) 44 Cal.4th 1101, 1134;

Slaughter, supra, 27 Cal.4th 1187, 1200; People v. Mayfield (1997) 14 Cal.4th

668, 776.) The purpose of the cautionary language in CALJIC No. 2.71 is to assist

the jury in determining whether the defendant ever made the admissions.

(Slaughter, at p. 1200; People v. Ervine (2009) 47 Cal.4th 745, 781 (Ervine);

People v. Livaditis (1992) 2 Cal.4th 759, 784.) For this reason, the cautionary

language is inapplicable to defendant?s recorded admissions. (Slaughter, supra, at

p. 1200; Mayfield, supra, at p. 776.)

Defendant?s oral threat to Lee that he would kill her if ?she said anything?

reasonably tended to prove his guilt of Coder?s murder and therefore satisfied the

definition of an admission under CALJIC No. 2.71. Similarly, defendant?s

warning to Hunt that if he said anything, ?this could happen to you,? and his

statements to Black that he killed Coder and Martin, each qualified as admissions

under this instruction. We thus agree with defendant that the trial court erred in

failing to instruct the jury on its own motion to view with caution these unrecorded

admissions.

In determining whether the failure to instruct requires reversal, ?[w]e apply

the normal standard of review for state law error: whether it is reasonably probable

the jury would have reached a result more favorable to defendant had the

(Footnote continued from previous page.)

counsel during this colloquy are ambiguous as to whether the prosecutor intended
this language be omitted as to defendant?s recorded or unrecorded admissions. In
any event, because defendant did not express a tactical basis for omission of the
cautionary language, he invited no error. (Wickersham, supra, 32 Cal.3d at p.
330.)

85


instruction been given.? (People v. Carpenter (1997) 15 Cal.4th 312, 393; see

People v. Dickey (2005) 35 Cal.4th 884, 905; People v. Stankewitz (1990)

51 Cal.3d 72, 94.) ? ?Since the cautionary instruction is intended to help the jury

to determine whether the statement attributed to the defendant was in fact made,

courts examining the prejudice in failing to give the instruction examine the record

to see if there was any conflict in the evidence about the exact words used, their

meaning, or whether the admissions were repeated accurately. [Citations.]? ?

(People v. Dickey, 35 Cal.4th at p. 905, quoting People v. Pensinger (1991) 52

Cal.3d 1210, 1268.) This court has held to be harmless the erroneous omission of

the cautionary language when, in the absence of such conflict, a defendant simply

denies that he made the statements. (See People v. Dickey, supra, 35 Cal.4th at p.

906.) Further, when the trial court otherwise has thoroughly instructed the jury on

assessing the credibility of witnesses, we have concluded the jury was adequately

warned to view their testimony with caution. (Id. at pp. 906-907.)

Here, there was no conflict in the evidence about the precise words used,

their meaning, or whether the admissions were repeated accurately. Defendant

simply denied making the statements. In addition, the instructions given

sufficiently alerted the jury to view the testimony of Hawkins, Hunt, and Black

with caution. Defendant suffered no prejudice by any omission. (See People v.

Dickey, supra, 35 Cal.4th at pp. 906-907.)

With respect to defendant?s statement to Black, in particular, defendant

asserts that CALJIC No. 3.20,44 which the trial court did give at defendant?s

44

As provided in this case, CALJIC No. 3.20 read as follows: ?The

testimony of an in-custody informant should be viewed with caution and close
scrutiny. In evaluating this testimony, you should consider the extent to which it
may have been influenced by the receipt of, or expectation of, any benefits from
the party calling that witness. This does not mean that you may arbitrarily
disregard this testimony, but you should give it the weight to which you find it to

(Footnote continued on next page.)

86


request, did not adequately advise the jury to scrutinize Black?s testimony,

because it did not admonish the jury about both Black?s status as an in-custody

informant and the fact that Black was purporting to relay an admission by

defendant. We are not persuaded. Because Black was the only jailhouse

informant who testified, the jury reasonably understood that CALJIC No. 3.20

applied to only his testimony. This instruction advised the jury to consider with

caution his testimony regarding defendant?s admissions. Logically, that caution

would extend to any claim by Black that defendant admitted to Black he murdered

Martin. Thus, CALJIC No. 3.20 effectively provided the cautionary language that

was omitted from CALJIC No. 2.71. The jurors also were instructed under

CALJIC No. 2.71 that they were the exclusive judges of whether defendant made

these admissions. Under these circumstances, the omitted cautionary language

was superfluous and would not have contributed significantly to the jury?s

consideration of the instructions given.

Accordingly, there is no reasonable probability the jury would have

returned a more favorable verdict in the absence of the instructional error.

4. CALJIC No. 17.41.1

The trial court instructed the jury with CALJIC No. 17.41.1, which

provides: ?The integrity of a trial requires that jurors, at all times during their

deliberations, conduct themselves as required by these instructions. Accordingly,

should it occur that any juror refuses to deliberate or expresses an intention to

(Footnote continued from previous page.)

be entitled in the light of all the evidence in this case. [?] [?In-custody informant?
means a person, other than a codefendant, percipient witness, accomplice, or
coconspirator whose testimony is based upon statements made by a defendant
while both the defendant and the informant are held within a correctional
institution.]?

87


disregard the law or to decide that case based on penalty or punishment, or any

other improper basis, it is the obligation of the other jurors to immediately advise

the court of the situation.? Defendant contends that by so instructing the jury, the

trial court violated his Sixth and Fourteenth Amendment rights to due process and

a fair and impartial trial.

In People v. Engelman (2002) 28 Cal.4th 436, 439-440 (Engelman), this

court held ?the instruction does not infringe upon [a] defendant?s federal or state

constitutional right to trial by jury or his state constitutional right to a unanimous

verdict,? though in the exercise of our supervisory power, we disapproved use of

this instruction in future trials. (Id. at p. 449.)

Defendant fails to persuade us to reconsider our conclusion in Engelman

that the mere use of CALJIC No. 17.41.1 in a pre-2002 trial such as his was not

constitutional error requiring that we disturb the judgment. In addition, he points

to nothing in the record of this case that indicates any juror refused to deliberate or

expressed an intention to disregard the law or to decide the case on an improper

basis. (See People v. Brown (2004) 33 Cal.4th 382, 393 (Brown), citing People v.

Ortiz (2003) 109 Cal.App.4th 104, 119, fn. 7.) No basis for reversal appears.

F. Cumulative Effect of Guilt Phase Errors

Defendant contends the cumulative effect of all alleged errors in parts II.A.,

III.A.-D., E.1, and E.3 above was prejudicial and violated his rights to a fair trial

and reliable jury verdicts under the Eighth and Fourteenth Amendments. As

noted, we have identified no single instance of prejudicial error. Defendant fails

to convince us that even if no individual error was prejudicial in isolation, the

combination of trial errors rendered his trial fundamentally unfair. Hence, his

assertion of cumulative prejudice fails.

88


IV. PENALTY PHASE ISSUES

A. Prior Unadjudicated Criminal Activity Involving Force or Violence

(? 190.3, Factor (b))

Defendant argues the trial court erred in admitting evidence, in aggravation

of penalty, of the following unadjudicated criminal activity under section 190.3,

factor (b): (1) during a November 12, 1988, arrest, defendant possessed bullets

and rock cocaine; (2) defendant broke his sister Robin?s television and made a

subsequent statement to the police that could be construed as an implied threat

against her; and (3) on or about December 11, 1984, defendant committed a

battery and a robbery in a high school cafeteria. As to the further evidence

presented by the prosecution under factor (b) that defendant violated section 4502

by possessing a shank?a prison-made stabbing weapon?while confined in a

penal institution, he asserts that the court erred by omitting the ?knowledge

element? from the instruction on this offense, and by failing to instruct the jury on

the sufficiency of circumstantial evidence regarding this incident. Defendant

contends the cumulative effect of the alleged errors violated state law as well as

his rights under the Fourth, Sixth, Eighth, and Fourteenth Amendments.

As explained below, each contention lacks merit. The trial court properly

admitted the evidence and it correctly instructed the jury. In any event, any error

was harmless.

1. Evidence of defendant?s possession of bullets and rock cocaine

Section 190.3, factor (b) (factor (b)), permits aggravating evidence of a

defendant?s criminal conduct (aside from the capital offense) involving actual or

threatened force or violence. Pursuant to factor (b), the prosecution introduced

evidence that, on November 12, 1988, around 4:00 p.m., then Banning Police

Officer Marshall Palmer and two other Banning police officers were dispatched to

Eastside Park based on information provided by an anonymous tip. The

89


dispatcher relayed that an anonymous informant reported that a group of African-

American males were in the park, standing near a blue Mercedes. Two of the men

had handguns. One of the subjects was not wearing a shirt and the other was

wearing all black, including a black cap. Eastside Park was a known as a

?hangout? for drug users and dealers. At the park, Palmer observed a group of 10

to 15 African-American males, including defendant, standing or sitting around a

Toyota pickup. For officer safety purposes, the officers detained the members of

the group and ordered them to place their hands on the truck. Each individual

complied. As Palmer approached the group, Orlando Hunt, who was sitting on a

bench 10 to 15 yards away with another male, began to walk away. When one of

the other officers twice called to him, Hunt pulled a .357 Magnum handgun from

his waistband and threw it on the ground. The other officers performed a patdown

search of the others in the group for weapons.

Officer Shubin, who searched defendant, felt objects that he believed were

bullets in defendant?s upper right jacket pocket. Because the pocket was deep and

the jacket was bulky, and because defendant matched the description of one of the

suspects provided by the tipster, the officer put his hand deeper into the same

pocket in order to do a more thorough search for a gun and to recover the objects

he believed were bullets. While recovering the objects, the officer retrieved a

plastic Tupperware container. The officer opened the container and found that it

held six rocks resembling rock cocaine. Defendant?s pockets also contained

twelve .357-caliber bullets and $168 in cash. Defendant was placed under arrest

for possession for sale of cocaine.

Before the January 1999 commencement of the penalty phase of his capital

trial, defendant moved on two grounds to exclude the evidence that bullets and

rock cocaine were found on his person in November 1988. First, he sought, under

section 1538.5, to suppress this evidence as the product of an unreasonable search

90


and seizure in violation of the Fourth Amendment. Second, he asserted that his

possession of the bullets was not admissible under factor (b) as ?criminal activity

. . . involv[ing] the use or attempted use of force or violence.? After holding an

evidentiary hearing (see People v. Phillips (1985) 41 Cal.3d 29, 72-73, fn. 25), the

trial court denied the motion, finding that the search and seizure were

constitutional, and that the evidence was admissible under factor (b).

When the evidence was introduced in the penalty trial, defendant again

protested that it did not demonstrate violent criminal activity for purposes of factor

(b). The trial court disagreed, explaining it had found the evidence admissible as

sufficient to show defendant aided and abetted Hunt in a violation of section

12025, carrying a concealed firearm. Thereafter, over defendant?s objection, the

court instructed the jury on the elements of a section 12025 violation, and of

aiding and abetting, and explicitly advised that the November 1988 incident could

be considered under factor (b).

On appeal, defendant renews his claims that admission of evidence of the

November 1988 incident was improper under the Fourth Amendment and section

190.3, factor (b). As to the second issue, defendant further claims that even if the

evidence was admissible on an aiding and abetting theory, the trial court failed to

provide, sua sponte, adequate instructions on the limits of circumstantial evidence

in this context.

We need not determine the merits of these claims, for we are persuaded that

admission of evidence of defendant?s November 1988 possession of bullets and

rock cocaine was harmless on the issue of penalty by any applicable standard.45

45

The People do not contend that defendant was precluded, in his January

1999 penalty trial, from moving, on constitutional grounds, to suppress evidence
arising from an unrelated incident that occurred over 10 years earlier. A statutory
suppression motion must be timely brought, and, once denied, can only be

(Footnote continued on next page.)

91


Aside from the 1988 ?bullets and cocaine? incident, the prosecution?s aggravating

evidence demonstrated defendant?s well-established history of using force and

violence. These examples included a violent battery and threats of further

violence against his own sister, and a robbery and battery he committed in his

school cafeteria. Importantly, the cold-blooded, cruel, and senseless murders of

Coder and Martin sealed defendant?s fate. He walked up to Coder, placed a gun

against his head, and brazenly shot him. He similarly murdered Martin by

shooting him in the head, in an act of revenge for the unexplained death of a

fellow gang member, remote in time. There is no reasonable possibility that any

erroneous admission of evidence that defendant once possessed bullets while

engaged in selling cocaine would have affected the jury?s penalty decision.

(Footnote continued from previous page.)

renewed under specified circumstances. (? 1538.5, subd. (h); see, e.g., People v.
Frazier
(2005) 128 Cal.App.4th 807, 829; People v. Ramos (1997) 15 Cal.4th
1133, 1163.) However, section 1538.5 appears to assume that the motion will be
brought in the criminal action directly related to the search and seizure of the
evidence at issue. Defendant was never charged with any offense arising from the
November 1988 incident, and the record does not disclose whether he had any
prior opportunity and incentive to contest the validity of the search that led to
discovery and seizure of the bullets and rock cocaine on his person. As indicated,
the People do not contest the procedural propriety of defendant?s suppression
motion, and the record does not indicate whether the Fourth Amendment issues
defendant now asserts could and should have been raised at an earlier time.
Moreover, it is at least arguable that a defendant may move, in a trial on capital
charges, to suppress evidence, offered in aggravation of punishment, which was
unconstitutionally obtained in an unrelated prior incident for which he or she
sustained no conviction. (Cf., e.g., People v. Horton (1995) 11 Cal.4th 1068,
1134-1136 [in capital case, defendant may collaterally attack, by motion to strike,
prior conviction tainted by ?fundamental? constitutional defect].) For these
reasons, and because, as explained below, we find the admission of this evidence
harmless in any event, we will assume, though we expressly do not decide, that the
suppression motion was proper.

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2. Evidence of defendant?s battery of his sister, Robin

The prosecution presented evidence that, on August 10, 1992, Banning

Police Officer Lowell Wheeler interviewed defendant?s sister, Robin McKinnon,

regarding a crime she reported. Robin stated that she stood behind defendant in

her bedroom and that defendant hit her in her face with his right hand, which was

in a cast. She said that he then began to choke her and that they struggled. After

Robin broke loose from his grip, she called police. Approximately 20 minutes

later, Wheeler returned to Robin?s home in response to another call from her. She

had reported that defendant was breaking her property. As Wheeler entered the

residence through the front door, he observed defendant breaking a small portable

television. After defendant was transported to the police station, he spontaneously

said, ?You can keep me for a week or a month, but when I get out I’m going to

take care of it.?

Defendant contends the trial court erred in admitting evidence under factor

(b) that he damaged his sister?s television, and that, later, he said to police that

?[y]ou can keep me for a week or a month, but when I get out I?m going to take

care of it.? He argues that his breaking of his sister?s property did not constitute

criminal activity involving force or violence within the meaning of this factor.

Also, he contends that his statement to police after he battered his sister was not

part of a continuous course of criminal activity involving force or violence.

In People v. Kirkpatrick, this court held that evidence of the defendant?s

threats to property was properly admitted as relevant to the prosecution?s evidence

that defendant made a threatening phone call in violation of Penal Code section

653m. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014.)

The circumstances here are similar in kind. Defendant committed a violent

battery against his sister. (? 243.) His conduct in returning to his sister?s

residence and breaking her television provided context to this incident, because it

explained why he was arrested 20 minutes after the officers had decided not to

93


arrest him for battery?that is, the officers returned to the house only because

Robin had reported during the interim that he was ?breaking her property.? In

addition, the statement defendant made to police after his arrest, although a

noncriminal act, was made sufficiently close in time to constitute a continuous

course of conduct that was probative of an understanding of the violent potential

of his battery against his sister as well as his willingness to resort to violence in the

future. (Cf., People v. Kipp (2001) 26 Cal.4th 1110, 1114; id. at pp. 1133-1134

[evidence that defendant threatened to kill a sheriff?s sergeant who had assisted in

subduing him during his unsuccessful escape was admissible under factor (b)

because it was relevant to ?an understanding of the violent potential of defendant?s

attempted escape?].)

In any event, any error in admitting this evidence was harmless. The

prosecution presented additional evidence that defendant hit his sister?s face with

the cast on his right hand and choked her. The murders of Coder and Martin

themselves were especially cruel and senseless. Under these circumstances, it is

not reasonably possible that the jury would have rendered a different verdict had

the challenged evidence been excluded. (See People v. Jackson (1996) 13 Cal.4th

1164, 1232.)

3. Evidence of defendant?s battery and robbery in the high school

cafeteria.

The prosecution offered the following evidence as proof defendant had

committed a robbery and battery. On December 11, 1984, 17-year-old defendant

bought some beef jerky in the cafeteria of a ?continuation school? in the Banning

Unified School District. Upon discovering that the jerky was stale, he told the

cashier that he wanted his money back. The cashier refused to refund his money

because he had opened the packaging. Defendant then threatened to take a box

containing money that the cashier kept in front of her. She replied, ?If you do,

you’ll go to jail. . . . go ahead.? Defendant took the box and started to walk out of

94


the cafeteria. When a teacher stopped him in front of the exit door, defendant

shoved the teacher, took the money box, and exited through the door.

Defendant claims the evidence was insufficient to establish the elements of

robbery. He further contends that the incident did not amount to an act involving

the degree of force or violence necessary for its admission under factor (b), and

was not relevant to the penalty determination under the Eighth and Fourteenth

Amendments. He is wrong on both counts.

a. The robbery

Defendant contends the trial court erroneously admitted evidence of the

cafeteria incident under factor (b), because it was insufficient to prove the

elements of robbery. Specifically, he argues that the cashier consented to his

taking of the money box and that he did not engage in conduct amounting to force

or fear.

?Robbery is ?the felonious taking of personal property in the possession of

another, from his person or immediate presence, and against his will,

accomplished by means of force or fear.? (? 211; see People v. Scott (2009) 45

Cal.4th 743, 749 . . . .) A defendant who does not use force or fear in the initial

taking of the property may nonetheless be guilty of robbery if he uses force or fear

to retain it or carry it away in the victim?s presence. (People v. Gomez (2008) 43

Cal.4th 249, 256, 264; People v. Estes (1983) 147 Cal.App.3d 23, 27.)? (People v.

Bradford (2010) 187 Cal.App.4th 1345, 1349.) That is, ?[a] robbery is not

completed at the moment the robber obtains possession of the stolen property.

The crime of robbery includes the element of asportation, the robber?s escape with

the loot being considered as important in the commission of the crime as gaining

possession of the property. . . . [A] robbery occurs when defendant uses force or

fear in resisting attempts to regain the property or in attempting to remove the

property from the owner?s immediate presence regardless of the means by which

95


defendant originally acquired the property.? (People v. Estes (1983) 147

Cal.App.3d 23, 27-28.)

?A robbery cannot be committed against a person who is not in possession

of the property taken or retained. [Citation.] Possession may be actual or

constructive. [Citation.] ?A person who owns property or who exercises direct

physical control over it has possession of it, but neither ownership nor physical

possession is required to establish the element of possession for purposes of the

robbery statute.? [Citation.] ? ? [T]he theory of constructive possession has been

used to expand the concept of possession to include employees and others as

robbery victims.? ? [Citation.] [?] [A]ll employees on duty have constructive

possession of their employer?s property and may be separate victims of a

robbery.? (People v. Bradford, supra, 187 Cal.App.4th at pp. 1349.) In addition,

?persons other than employees may be robbery victims if they have a ? ?special

relationship? with the owner of the property such that the victim had authority or

responsibility to protect the stolen property on behalf of the owner.? [Citation.]

Formulated another way, the question is whether the prospective victim ?may be

expected to resist the taking.? [Citation.]? (Ibid.)

Preliminarily, we address defendant?s contention that because the cashier

told him to ?go ahead? and take the money box, she consented to the taking. To

the contrary, the record reveals that defendant obtained the money box without her

consent. When he complained to the cafeteria cashier about his stale beef jerky

and requested a refund, she responded that she could not refund his money

because he had opened the food packaging. Clearly unhappy with the manner in

which the cashier resolved his complaint and her refusal to refund his money,

defendant then decided that he would refund his money himself by taking the

money box. Only after he told the cashier of his intent to do so did she relinquish

96


her possession of the box and surrender it, warning defendant that if he took it, he

would go to jail. There was no consent.

Next, evidence that defendant thereafter pushed the teacher stationed at the

exit door of the cafeteria before he escaped through the door rendered his taking a

robbery. Even if this on-duty teacher?who presumably was positioned at the

door to monitor activities in the cafeteria?did not have actual possession and

control of the cash box, the teacher had constructive possession of the property.

We have confirmed that, regardless of their specific responsibilities, on-duty

employees have constructive possession of their employer?s property for purposes

of a robbery. (People v. Scott (2009) 45 Cal.4th 743, 752, 754.) No reason

appears to exclude school employees from this sound principle. Thus, defendant?s

act of shoving the teacher out of his way in his effort to escape the cafeteria with

the money box completed a robbery of the teacher. (See People v. Bradford,

supra, 187 Cal.App.4th at pp. 1349-1350; People v. Estes, supra, 147 Cal.App.3d

at pp. 27-28.)

b. The battery

In the alternative, defendant contends that, if the evidence of the cafeteria

incident was insufficient to prove that he robbed the teacher but sufficient to prove

he battered her, the battery did not involve the degree of force or violence required

for admission under factor (b). We disagree. ?Whether [defendant?s] acts were

serious enough to be given weight in the penalty determination is a matter for the

jury to decide.? (People v. Smith (2005) 35 Cal.4th 334, 369.) Because the jury

was properly instructed to consider this circumstance, there was no error in

admitting the evidence.

4. Asserted erroneous instruction regarding the shank incident

On February 5, 1997, during a search of defendant?s cell at the Robert

Presley Detention Center in Riverside County, a correctional officer discovered a

97


metal shank, approximately nine inches long, in between the ceiling and a light

fixture. The shank could be pulled out of the space by pulling on the attached

string. The parties stipulated that when the search was conducted, defendant was

the only person housed in the cell, that he had lived there for about six months,

and that other inmates previously had been housed in the cell. The cells were

searched at least once a week, and were inspected more frequently if there was a

reason to search. Correctional officers routinely searched the light fixtures when

conducting cell searches.

Defendant contends the trial court erred by failing to instruct jurors on the

knowledge element of the crime of possession of a weapon by a prisoner, a

violation of section 4502. (See, e.g., People v. Strunk (1995) 31 Cal.App.4th 265,

272.) He further urges the court was obliged to instruct, under CALJIC No. 2.01,

that if the evidence reasonably supported an inference defendant did not

knowingly possess the shank, the jury must so find. In both instances, defendant

demonstrates no prejudicial error.

Here, the trial court instructed the jury regarding the section 4502 violation

as follows: ?Every person who while, . . . confined in, while being conveyed to or

from any penal institution, or while under the custody of officials, or officers or

employees of any penal institution, possesses or carries upon his person or has

under his custody and control any instrument or weapon, commonly known as a

shank, is guilty of violation of Penal Code Section 4502, a crime. [?] In order to

prove this crime, each of the following elements must be proved: [?] 1. A person

was confined in or being conveyed to or from any penal institution or under the

custody of officials, officers or employees of a penal institution. And 2. while so

confined, being conveyed or under that custody, possessed or carried upon his

person or under his custody or control a weapon known as a ?shank.? ?

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The court also provided the general intent instruction, CALJIC No. 3.30:

?In the crimes of Battery, possession of a concealed firearm, and possession of a

weapon by a prisoner, there must exist a union or joint operation of act or conduct

and general criminal intent. General criminal intent does not require an intent to

violate the law. When a person intentionally does that which the law declares to

be a crime, [he] [she] is acting with general criminal intent, even though [he] [she]

may not know that [his] [her] act or conduct is unlawful.?

Any error regarding the failure to instruct the jury on the knowledge

requirement was thus harmless. Manifestly, if the jury concluded that defendant

intentionally possessed the shank, it necessarily concluded that he knowingly

possessed it.

Equally harmless was any error in failing to instruct, under CALJIC No.

2.01, that if the evidence was reasonably susceptible of an inference that defendant

lacked knowledge of the shank, the jury must accept that interpretation. In light of

the evidence that defendant?s cell, particularly including the light fixture, had been

frequently searched since defendant became the cell?s sole occupant, no

reasonable jury would infer that he was unaware of the shank?s placement there.

5. Asserted cumulative error

Defendant claims that the cumulative effect of the above-asserted errors

was prejudicial and violated his rights under the Eighth and Fourteenth

Amendments to a fair penalty trial and a reliable verdict. We conclude, however,

that singly, or in combination, any such errors we have identified or assumed did

not cause reversible prejudice.

B. Denial of Defendant?s Motion To Limit The Victim Impact

Evidence

Defendant moved to limit the scope of victim-impact evidence to evidence

about the victims of which defendant was aware, or to evidence that was admitted

99


during the guilt phase. In the alternative, he requested that the trial court give a

special instruction regarding the jury?s consideration of this evidence. At the

hearing held on the motion, and based on the prosecutor?s offer of proof of the

witnesses he intended to call to testify, the court denied both motions.

On appeal, defendant initially complains that the victim impact evidence

admitted in this case should have been excluded because the testimony included

information not within defendant?s knowledge at the time the crimes were

committed. He contends that in order to minimize the prejudicial effect of victim

impact evidence, such evidence should be limited to testimony (1) of a single

witness (see State v. Muhammad (1996) 145 N.J. 23, 678 A.2d 164, 180); (2)

describing the effect of the murder on a family member who was present at the

scene during or immediately after the crime; and (3) concerning consequences of

the crime that were known or reasonably apparent to the defendant at the time he

committed the crime. In addition, defendant contends that an interpretation of

?circumstances of the crime? so broad as to permit the admission of the victim

impact evidence admitted here would render that aggravating factor

unconstitutionally overbroad and vague. (U.S. Const., 8th & 14th Amends.; Cal.

Const., art. I, ?? 7, 15, & 17.)

This court previously has rejected arguments ?that victim impact evidence

must be confined to what is provided by a single witness (People v. Zamudio

(2008) 43 Cal.4th 327, 364), that victim impact witnesses must have witnessed the

crime (People v. Brown (2004) 33 Cal.4th 382, 398), and that such evidence is

limited to matters within the defendant?s knowledge (People v. Pollock (2004) 32

Cal.4th 1153, 1183).? (People v. Carrington (2009) 47 Cal.4th 145, 196-197

(Carrington).) We also have concluded that ?construing section 190.3, factor (a)

to include victim impact evidence does not render the statute unconstitutionally

100


vague or overbroad.? (Id. at p. 197.) Defendant provides no persuasive argument

for reconsideration of these decisions.

Next, defendant contends admission of the victim impact evidence here was

?emotionally charged? and its admission rendered his trial fundamentally unfair,

in violation of his rights to due process of law and to a reliable penalty

determination. (U.S. Const., 8th & 14th Amends.) As we have stated, ?[i]n a

capital trial, evidence showing the direct impact of the defendant?s acts on the

victims? friends and family is not barred by the Eighth or Fourteenth Amendments

to the federal Constitution. (Payne v. Tennessee (1991) 501 U.S. 808, 825-827.)?

(People v. Pollock, supra, 32 Cal.4th at p. 1180; accord, People v. Burney (2004)

47 Cal.4th 203, 258 (Burney).) ?Payne reasoned that the prosecution has a

legitimate interest in counteracting the relevant mitigating evidence that the

defendant must be allowed to introduce. [Citation.] The federal Constitution bars

victim impact evidence only if it is ?so unduly prejudicial? as to render the trial

?fundamentally unfair.? [Citation.] State law is consistent with these principles.

Unless it invites a purely irrational response from the jury, the devastating effect

of a capital crime on loved ones and the community is relevant and admissible as a

circumstance of the crime under section 190.3, factor (a). [Citations.]? (People v.

Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057 (Lewis and Oliver).)

Here, the testimony of the victims? family members and friends was

essentially limited to explaining the direct impact of the murders and describing

?the residual and lasting impact [the victims? family members and friends]

continued to experience.? (Brown, supra, 33 Cal.4th at p. 398.) Coder?s fianc?e,

Darlene Shelton, testified that she became hysterical when police informed her of

Coder?s death. She was pregnant with his child when he was murdered, and her

emotional reaction to his murder caused her difficulty during this pregnancy.

Coder?s sister, Dawn, testified that she was an ?emotional wreck? during the week

101


following Coder?s murder and mourned his death for a year. She also attributed

the worsening of her thyroid condition to her distraught condition caused by his

death. Coder?s mother, Suzanne, described the horror she experienced seeing

Coder?s partially covered body at the scene. She testified that Coder was partially

deaf, had a twin, and was close to his siblings. Coder?s murder had caused her to

experience ?fits of depression.? Martin?s sister, Mary Ann, testified that another

brother had died within six months of Martin?s death and that as a result of

Martin?s murder, she no longer trusted people. This evidence did not exceed the

bounds of admissible victim impact evidence set forth in People v. Edwards

(1991) 54 Cal.3d 787, 836. (See also People v. Boyette (2002) 29 Cal.4th 381,

444-445 (Boyette).)

Finally, defendant contends the trial court erred by refusing his request to

instruct the jury that the victim impact evidence must relate to the specific harm

caused by defendant?s crimes.46 We disagree. In People v. Ochoa (2001)

26 Cal.4th 398 (Ochoa), this court rejected the defendant?s claim that the trial

court erred by refusing to give a similar instruction.47 We reasoned that ?[t]he

46

Defendant?s proposed special instruction read as follows: ?Evidence has

been introduced for the purpose of showing the specific harm caused by
[defendant]?s crimes. Such evidence, if believed, was not received and may not be
considered by you to divert your attention from your proper role of deciding
whether he should live or die. You must face this obligation soberly and
rationally, and you may not impose the ultimate sanction as the result of an
irrational, purely subjective response to emotional evidence and argument.?

47

The proposed instruction in Ochoa stated: ? ?Evidence has been introduced

for the purpose of showing the specific harm caused by the Defendant’s crimes.
Such evidence was not received and may not be considered by you to divert your
attention from your proper role of deciding whether the Defendant should live or
die. You must face this obligation soberly and rationally, and you may not impose
the ultimate sanction as a result of an irrational, subjective response to emotional
evidence and argument. On the other hand, evidence and argument on emotional

(Footnote continued on next page.)

102


proposed instruction would not have provided the jury with any information it had

not otherwise learned from CALJIC No. 8.84.1 . . . .? (Ochoa, at p. 455; accord,

Hartsch, supra, 49 Cal.4th at p. 511.) The jury here was given CALJIC No.

8.84.1 and, thus, was provided sufficient guidance regarding this aspect of penalty

deliberations. Any additional complaint by defendant that the trial court should

have admonished the jury to disregard or limit its consideration of evidence of the

possible effects of the victim?s death, on the ground that such speculation is

improper, has been forfeited by his failure to request an admonition at trial. (See

Carrington, supra, 47 Cal.4th at p. 197 [defendant?s failure to request an

admonition forfeited his claim that the trial court should have admonished the jury

to ignore or limit its consideration of evidence of the possible effect of the victim?s

death on her mother?s health].)

C. CALJIC No. 8.85

Defendant contends CALJIC No. 8.85 (Penalty Trial ? Factors for

Consideration), the standard instruction that describes the section 190.3

aggravating and mitigating factors the jury is to consider in deciding whether to

impose a sentence of death or life imprisonment without possibility of parole, is

constitutionally defective for various reasons. Identical claims have previously

been rejected, as follows.

As applied, section 190.3, factor (a) (circumstances of the capital crime) is

not unconstitutionally vague and does not result in the arbitrary and capricious

imposition of the death penalty. (Tuilaepa v. California (1994) 512 U.S. 967, 975-

(Footnote continued from previous page.)

though relevant subjects may provide legitimate reasons for the Jury to show
mercy to the Defendant.? ? (Ochoa, supra, 26 Cal.4th at p. 455.)

103


976; Ervine, supra, 47 Cal.4th at p. 810; People v. Salcido (2008) 44 Cal.4th 93,

165 (Salcido).)

The trial court is not required to instruct the jury that the absence of a

mitigating factor cannot be considered as an aggravating factor (Riggs, supra, 44

Cal.4th at p. 328) or to instruct the jury with CALJIC No. 8.85 without deleting

inapplicable factors (People v. Farnam (2002) 28 Cal.4th 107, 191-192.)

The trial court is not obligated to advise the jury which statutory factors are

relevant solely as mitigating circumstances and which are relevant solely as

aggravating circumstances. (People v. Farnam, supra, 28 Cal.4th 107, 192.)

The use of the restrictive adjective ? extreme? in the instruction on section

190.3, factors (d) and (g) does not unconstitutionally limit the jury?s consideration

of mitigating evidence. (People v. Perry (2006) 38 Cal.4th 302, 319.)

The trial court?s failure to require the jury to make written findings

regarding the aggravating factors it found under CALJIC No. 8.85 does not

preclude meaningful appellate review. (Geier, supra, 41 Cal.4th at p. 620; see

also People v. Perry, supra, 38 Cal.4th at p. 320 [CALJIC No. 8.88].)

As defendant offers no persuasive reason to reconsider these decisions, we

adhere to our conclusions.

D. CALJIC No. 8.88

Defendant claims CALJIC No. 8.88,48 the principal sentencing instruction,

is unconstitutional on various grounds. We have consistently rejected identical

claims, and defendant advances no persuasive reason to revisit our decisions.

48

The court instructed the jury under CALJIC No. 8.88 as follows: ?It is now

your duty to determine which of the two penalties, death or confinement in the
state prison for life without possibility of parole, shall be imposed on the
defendant. [?] After having heard all of the evidence, and after having heard and
considered the arguments of counsel, you shall consider, take into account, and be

(Footnote continued on next page.)

104


Thus, CALJIC No. 8.88 is not unconstitutional or impermissibly vague

because it (1) uses the ?so substantial? standard to compare aggravating factors

with mitigating factors (Rogers, supra, 46 Cal.4th at p. 1179; People v. Parson

(2008) 44 Cal.4th 332, 371 (Parson)); (2) requires the jury to determine whether

the death penalty is ?warranted? rather than ?appropriate? (People v. Lindberg

(2008) 45 Cal.4th 1, 52; Boyette, supra, 29 Cal.4th at p. 465); (3) fails to direct the

jury that it must return a verdict of life without possibility of parole if it

determines the aggravating circumstances do not outweigh the mitigating

circumstances (People v. Hughes (2002) 27 Cal.4th 287, 405); (4) fails to direct

the jury that if the mitigating circumstances outweigh those in aggravation, it must

return a sentence of life imprisonment without the possibility of parole (Parson,

supra, at p. 371; Geier, supra, 41 Cal.4th at pp. 618-619); (5) fails to advise the

jury that it may return a verdict of life imprisonment without possibility of parole

(Footnote continued from previous page.)

guided by the applicable factors of aggravating and mitigating circumstances upon
which you have been instructed. [?] An aggravating factor is any fact, condition
or event attending the commission of a crime which increases its guilt or enormity,
or adds to its injurious consequences which is above and beyond the elements of
the crime itself. A mitigating circumstance is any fact, condition or event which
does not constitute a justification or excuse for the crime in question, but may be
considered as an extenuating circumstance in determining the appropriateness of
the death penalty. [?] In the weighing of aggravating and mitigating
circumstances does not mean a mere mechanical counting of factors on each side
of an imaginary scale, or the arbitrary assignments 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 circumstances you determine under the relevant evidence which
penalty is justified and appropriate by considering the totality of the aggravating
circumstances with the totality of the mitigating circumstances. [?] To return a
judgment of death, each of you must be persuaded that the aggravating
circumstances are so substantial in comparison with the mitigating circumstances
that it warrants death instead of life without parole.?

105


even if the mitigating factors outweigh the aggravating factors (Rogers, supra,

46 Cal.4th at p. 1179; People v. Hovarter (2008) 44 Cal.4th 983, 1028); or (6) fails

to instruct the jury that neither party bears the burden of persuading it of the

appropriateness or inappropriateness of the death penalty (Friend, supra,

47 Cal.4th at p. 90; People v. Hayes (1990) 52 Cal.3d 577, 643).

E. Defendant?s Requested Special Instructions Regarding the Scope of

the Jury?s Consideration of Aggravating and Mitigating Evidence

Defendant contends the trial court violated state law and his Eighth and

Fourteenth Amendment rights to a fair and reliable penalty determination by

denying his request for instructions clarifying the scope of aggravating and

mitigating evidence the jury could consider as well as the scope of the jury?s

sentencing discretion. As explained below, we find no prejudicial error.

1. CALJIC Nos. 8.84 and 8.88

Defendant asked the trial court to explain to the jury that a special

circumstance renders a defendant death eligible, but the appropriate penalty is

entirely up to the jurors. The proposed instruction, however, was duplicative of

CALJIC Nos. 8.84 and 8.88. CALJIC No. 8.84 informed the jurors in this case

that state law required that a defendant found guilty of a special circumstance

murder be punished by death or confinement in prison for life without the

possibility of parole and that ?you must now determine which of these penalties

shall now be imposed on the defendant.? (Italics added.) CALJIC No. 8.88

further advised the jurors that ?you determine under the relevant evidence which

penalty is justified and appropriate.? (Italics added.) The trial court thus properly

denied this requested instruction.

2. CALJIC No. 8.85

Defendant proposed a supplement to CALJIC No. 8.85 to instruct jurors

that they were prohibited from ?double counting? the same facts under section

106


190.3, factor (a), as both a circumstance of the crime and as a separate and distinct

matter in aggravation of penalty.

When requested, a trial court should provide such an instruction. (People v.

Monterroso (2004) 34 Cal.4th 743, 789.) Here, however, the trial court?s refusal

to do so was not prejudicial. We have explained that CALJIC No. 8.85 does not

inherently encourage the jury to ?double count? the same facts, contrary to

defendant?s argument. (Monterroso, at pp. 789-790; see also Ervine, supra, 47

Cal.4th at p. 811.) Further, because the prosecutor did not mislead the jury or

otherwise suggest it engage in improper double counting, the absence of an

instruction cautioning against double counting does not require reversal.

(Monterroso, supra, at p. 790.)

Defendant additionally asked the trial court to modify CALJIC No. 8.85 to

explain, with regard to section 190.3, factor (k), that the enumerated mitigating

circumstances are only examples, that the jurors could consider any other

circumstances as reasons for not imposing death, that a single mitigating factor

alone may be sufficient to reject death as the appropriate penalty, that the jurors

need not be unanimous in finding mitigating factors, and that mitigating factors

need not be proved beyond a reasonable doubt but may be supported by any

evidence, no matter how weak.

The trial court properly denied defendant?s requested modification.

Pursuant to the standard version of CALJIC No. 8.85, the trial court instructed the

jury that it could consider, take into account, and be guided by, among other

things, ?[a]ny other circumstance which extenuates the gravity of the crime even

though it is not a legal excuse for the crime and any sympathetic or other aspect of

the defendant?s character or record that the defendant offers as a basis for a

sentence less than death, whether or not related to the offense for which he is on

trial. You must disregard any jury instruction given to you in the guilt or

107


innocence phase of this trial which conflicts with this principle.? (CALJIC No.

8.85, factor (k).) We have repeatedly held that this instruction ?adequately

instructs the jury concerning the circumstances that may be considered in

mitigation, including sympathy and mercy.? (Burney, supra, 47 Cal.4th at p. 261;

see People v. Butler (2009) 46 Cal.4th 847, 875; People v. Valencia (2008)

43 Cal.4th 268, 309.) In addition, the proposed instruction was unnecessary and,

in large part, argumentative. Therefore, the trial court was not obligated to give it.

(See People v. Lucero (2000) 23 Cal.4th 692, 729; see also People v. Hines (1997)

15 Cal.4th 997, 1067-1068.)

3. CALJIC No. 8.88

Defendant requested that CALJIC No. 8.88 be supplemented to inform the

jurors that they could return a life verdict even in the absence of mitigating factors

and despite the presence of aggravating factors.

The trial court did not err in refusing to supplement this instruction as

requested, as we have previously rejected a similar claim. (See Rodrigues, supra,

8 Cal.4th 1060, 1192.) In any event, CALJIC No. 8.88 adequately advises jurors

on the scope of their discretion to reject death and to return a verdict of life

without possibility of parole. (Stitely, supra, 35 Cal.4th at p. 574.)

4. Mercy and sympathy

Defendant requested an instruction that would have informed the jurors that

they could spare defendant?s life based on mercy or sympathy alone. But such an

instruction is not required; indeed, the jury may be admonished that it should not

decide the penalty on the basis of ?mere,? or ?factually untethered,? sympathy.

(People v. Tate, supra, 49 Cal.4th at p. 711; see also, e.g., People v. Gonzalez

(1990) 51 Cal.3d 1179, 1275; California v. Brown (1997) 479 U.S. 538, 542-543.)

Under CALJIC No. 8.88, the jury was properly instructed, in part, that ?[it]

is free to assign whatever moral or sympathetic value you deem appropriate to

108


each and all of the various factors you are permitted to consider.? In addition, the

jury was informed under CALJIC No. 8.85 that it could consider ?any sympathetic

or other aspect of the defendant?s character or record that the defendant offers as a

basis for a sentence less than death.? No error occurred.

5. Deterrence and cost

Defendant faults the trial court for refusing his request to instruct the jury

that, in determining the appropriate penalty, it could not consider (1) whether the

death penalty is a deterrent, or (2) the cost to the state of execution versus life

imprisonment. We have said that, although a trial court would not err in giving

the requested instruction, its refusal to do so is not prejudicial when such

considerations are not raised at trial. (People v. Bacigalupo (1991) 1 Cal.4th 103,

146; People v. Thompson (1988) 45 Cal.3d 86, 132; see also Ochoa, supra, 26

Cal.4th at p. 456.) Here, only defense counsel commented on the issues of

deterrence and cost during argument, briefly mentioning to the jury that these

issues were not listed among the aggravating and mitigating factors that it could

consider in making its penalty determination. The prosecutor never suggested the

contrary. Under these circumstances, the trial court?s refusal to give this

instruction was harmless.

F. Constitutional Challenges to California?s Death Penalty Law and

Related Instructions

Defendant argues that California?s death penalty law and related

instructions are unconstitutional in various respects. This court has consistently

rejected similar claims, and defendant offers no persuasive reason for

reconsidering these holdings.

?[C]ategorizing as especially deserving of the ultimate penalty those

offenders who kill two or more victims in one criminal event is not arbitrary,

unfair or irrational, and performs the necessary narrowing of the pool of potential

109


offenders required by the Eighth Amendment to the United States Constitution.?

(Boyette? supra, 29 Cal.4th at p. 440.)

The jury?s consideration of unadjudicated criminal conduct in fixing the

penalty under section 190.3, factor (b), does not violate a defendant?s state or

federal constitutional rights to due process, equal protection, and a reliable penalty

determination. (McWhorter, supra, 47 Cal.4th at p. 378; Brown, supra, 33 Cal.4th

at p. 402.) In addition, this court has ?long recognized that, as ? ?[section 190.3,

factor] (b) imposes no time limitation on the introduction of ?violent? crimes; the

jury presumably may consider criminal violence which has occurred at any time in

the defendant?s life.? ? ? (People v. Williams, supra, 16 Cal.4th at p. 233, quoting

People v. Douglas (1990) 50 Cal.3d 468, 529, quoting People v. Balderas (1985)

41 Cal.3d 144, 202, original italics.) Also, the jury may consider evidence of

juvenile violent criminal misconduct as an aggravating factor under section 190.3,

factor (b). (People v. Roldan (2005) 35 Cal.4th 646, 737; People v. Lucky (1988)

45 Cal.3d 259, 296.)

?The absence of procedural safeguards utilized by other states in the

operation of their death penalty laws does not render California?s law

unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments.

[Citations.] As we have repeatedly concluded, ? [t]he jury need not make written

findings, or achieve unanimity as to specific aggravating circumstances, or find

beyond a reasonable doubt that an aggravating circumstance is proved (except for

other crimes), that aggravating circumstances outweigh mitigating circumstances,

or that death is the appropriate penalty.? ? (People v. Beames (2007) 40 Cal.4th

907, 934, quoting People v. Morrison (2004) 34 Cal.4th 698, 730; People v. Blair

(2005) 36 Cal.4th 686, 753.)

With the exception of prior violent offenses and prior convictions under

section 190.3, factors (b) and (c), respectively, the court is not required to instruct

110


regarding the burden of proof or to instruct the jury that there is no burden of proof

at the penalty phase. (People v. Cruz (2008) 44 Cal.4th 636, 681; Parson, supra,

44 Cal.4th at p. 370.) The United States Supreme Court?s decisions in

Cunningham v. California (2007) 549 U.S. 270, Blakely v. Washington (2004) 542

U.S. 961, Ring v. Arizona (2002) 536 U.S. 584, and Apprendi v. New Jersey

(2000) 530 U.S. 466, do not affect California?s death penalty law or otherwise

require reconsideration of the foregoing decisions. (Friend, supra, 47 Cal.4th at p.

89; Salcido, supra, 44 Cal.4th at p. 167; see also People v. Morrison, supra, 34

Cal.4th at p. 731.)

The trial court?s failure to inform the jury that there is a presumption of life

does not violate a defendant?s constitutional rights to due process, to be free from

cruel and unusual punishment, to a reliable determination of his sentence, and to

equal protection of the law under the Fifth, Eighth and Fourteenth Amendments to

the federal Constitution. (Parson, supra, 44 Cal.4th at p. 371; People v. Abilez

(2007) 41 Cal.4th 472, 532.)

The death penalty statute is not unconstitutional for failing to provide

intercase proportionality review. (Zambrano, supra, 41 Cal.4th at p. 1187; Lewis

and Oliver, supra, 39 Cal.4th at p. 1067.)

Because ?capital defendants are not similarly situated to noncapital

defendants, the death penalty law does not violate equal protection by denying

capital defendants certain procedural rights given to noncapital defendants.?

(People v. Cruz, supra, 44 Cal.4th at p. 681; see People v. Manriquez (2005)

37 Cal.4th 547, 590.)

Defendant?s death sentence violates neither international law nor his rights

under the Eighth and Fourteenth Amendments to the federal Constitution, as no

authority ?prohibit[s] a sentence of death rendered in accordance with state and

federal constitutional and statutory requirements.? (People v. Hillhouse (2002)

111


27 Cal.4th 469, 511.) Unless a defendant establishes his trial involved prejudicial

violations of state or federal constitutional law, we need not consider the question

whether he also suffered violations of international law. (People v. Bolden (2002)

29 Cal.4th 515, 567)

G. Cumulative Effect of Guilt Phase and Penalty Phase Errors

Defendant contends that the cumulative effect of the guilt and penalty phase

errors violated his federal and state constitutional rights to a fair trial and reliable

jury verdicts and requires reversal of his conviction and death sentence. We reject

the contention. As noted, we have found no error that was individually

prejudicial. Having carefully reviewed the record, we are persuaded that the

cumulative effect of any such errors was also harmless.

V. DISPOSITION

The guilt and penalty judgments are affirmed.

BAXTER, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
CHIN, J.
CORRIGAN, J.
TURNER, J.*



____________________
* Presiding Justice, Court of Appeal, Second Appellate District, Division Five,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

112






CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.

I fully endorse the majority?s preliminary holdings that, with regard to

defendant?s claim the trial court improperly excused Prospective Juror R.A. for

cause under the Witt standard (Wainwright v. Witt (1985) 469 U.S. 412 (Witt)),

under our precedents defendant did not forfeit this claim on appeal by failing to

object (maj. opn., ante, at p. 26), but that, in the future, a defendant in a capital

case must make a timely objection or the functional equivalent to preserve the

issue for appeal (id. at p. 33). Although the ?no objection required? rule of People

v. Velasquez (1980) 26 Cal.3d 425 is a venerable one, and one on which the court

has recently relied (see People v. Bivert (2011) 52 Cal.4th 96, 112 [?We have held

the failure to object does not forfeit a claim raised on appeal pursuant to . . . Witt

. . . .?]), I am persuaded by the majority?s discussion that the rule is ripe for

reconsideration, and that?as a rule applicable prospectively only?we should

require parties to make their objections known before they may on appeal

challenge the excusal of a juror under the Witt standard.

With respect to the merits of the trial court?s dismissal of Prospective Juror

R.A. for cause, however, I disagree with the majority?s conclusion the juror?s

written responses to the jury questionnaire alone, with no oral, face-to-face

questioning to clarify his views, demonstrated it was clear and left no doubt he

would be unable to temporarily set aside his views about the death penalty ?in

deference to the rule of law.? (Lockhart v. McCree (1986) 476 U.S. 162, 176; see

1


also People v. Wilson (2008) 44 Cal.4th 758, 787.) Because, as the majority

acknowledges (maj. opn., ante, at p. 34), ?[t]he erroneous exclusion of a

prospective juror under [the Witt standard] compels reversal of the penalty verdict

regardless of whether the prosecutor had remaining peremptory challenges,?

I conclude the trial court?s dismissal of Prospective Juror R.A. requires reversal of

the penalty judgment in this case. On this basis, I dissent.

I.

As the majority observes, a prospective juror in a capital case may be

excused if the juror?s views would ? ?prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his

oath.? ? (Witt, supra, 469 U.S. at p. 424, quoted by the maj. opn., ante, at p. 34.)

The extent to which a trial court can properly make this determination without

actually speaking to the prospective juror, relying solely on reading the juror?s

written responses in the jury questionnaire, has found its way to this court several

times in recent years, no doubt because jury questionnaires have become a

standard practice in capital case trials. As we have recognized, written jury

questionnaires can streamline the ?long and tedious business? of choosing jurors

in a capital case, and ?[p]rudent use of written jury questionnaires can be a

valuable addition to the process, serving as a screening tool during death

qualifications of jurors.? (People v. Wilson, supra, 44 Cal.4th at p. 790.) The

devil, of course, is in the details. (People v. Thompson (2010) 49 Cal.4th 79, 96-

97 [when using a jury questionnaire to help choose jurors in a capital case, ? ?[t]he

legitimate pursuit of laudatory efficiency should not be transformed into an

arbitrary pursuit of speed for its own sake.? ?].)

We first addressed the issue in People v. Stewart (2004) 33 Cal.4th 425.

In Stewart, we reversed the penalty judgment on the facts of that case, but further

suggested that it might not ever be a justifiable practice to excuse a prospective

2


juror for cause based solely on his or her written responses, which often take the

form simply of boxes checked on a form. (Id. at pp. 449-450.) Less than two

years later, however, we retreated from that position and specifically rejected

Stewart?s suggestion that some in-person questioning was mandatory, holding that

?nothing in Stewart indicates that an excusal without oral voir dire is improper

where the prospective juror?s answers to a jury questionnaire leave no doubt that

his or her views on capital punishment would prevent or substantially impair the

performance of his or her duties in accordance with the court?s instructions and the

juror?s oath.? (People v. Avila (2006) 38 Cal.4th 491, 531, italics added (Avila).)

Thus, in Avila, we held ?a prospective juror in a capital case may be discharged

for cause based solely on his or her answers to the written questionnaire if it is

clear from the answers that he or she is unwilling to temporarily set aside his or

her own beliefs and follow the law.? (Ibid., italics added.)

Subsequent cases adopted the holding in Avila. In People v. Wilson, supra,

44 Cal.4th at page 787, this court held that ?reliance on written responses alone to

excuse prospective jurors for cause is permissible if, from those responses, it is

clear (and ?leave[s] no doubt?) that a prospective juror?s views about the death

penalty would satisfy the Witt standard . . . .? (Italics added; accord, People v.

Thompson, supra, 49 Cal.4th at p. 97.) In People v. Russell (2010) 50 Cal.4th

1228, 1263, we held the trial court ?did not err by excusing . . . seven prospective

jurors based solely on their clear and unequivocal written responses to the

questionnaire.? (Italics added.)

Accordingly, the standard for assessing on appeal the trial court?s decision

to dismiss Prospective Juror R.A. solely on the basis of his written responses in his

jury questionnaire is whether it was clear and left no doubt he was unable or

unwilling to put aside his views against the death penalty and follow the law. In

this case, R.A. indicated he was strongly opposed to the death penalty and would

3


have difficulty applying it. The majority finds this stated opposition sufficient to

satisfy the test for excusing a juror under the Witt standard without any

clarification that might come from questioning the juror in person.

I disagree. That a juror strongly opposes the death penalty and states he or

she would have difficulty applying it is the starting point of our inquiry, not the

ending point. As we explained in People v. Wilson, supra, 44 Cal.4th at pages

785-786: ?[T]he mere fact a prospective juror, in a written questionnaire, checked

a box or otherwise expressed a personal opposition to the death penalty does not

permit the court to automatically disqualify him or her from the jury. ?Decisions

of the United States Supreme Court and of this court make it clear that a

prospective juror?s personal conscientious objection to the death penalty is not a

sufficient basis for excluding that person from jury service in a capital case under

[Wainwright v.] Witt, supra, 469 U.S. 412. In Lockhart v. McCree (1986) 476

U.S. 162, 176 . . . , the high court observed that ?not all those who oppose the

death penalty are subject to removal for cause in capital cases; those who firmly

believe that the death penalty is unjust may nevertheless serve as jurors in capital

cases so long as they clearly state that they are willing to temporarily set aside

their own beliefs in deference to the rule of law.? Similarly, in People v. Kaurish

(1990) 52 Cal.3d 648, 699 . . . , we observed: ?Neither Witherspoon [v. Illinois

(1968) 391 U.S. 510 . . .] nor [Wainwright v.] Witt, . . . nor any of our cases,

requires that jurors be automatically excused if they merely express personal

opposition to the death penalty. The real question is whether the juror?s attitude

will ? ?prevent or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.? ? (Wainwright v. Witt, supra, 469

U.S. at p. 424, fn. omitted.) A prospective juror personally opposed to the death

penalty may nonetheless be capable of following his oath and the law. A juror

whose personal opposition toward the death penalty may predispose him to assign

4


greater than average weight to the mitigating factors presented at the penalty

phase may not be excluded, unless that predilection would actually preclude him

from engaging in the weighing process and returning a capital verdict.? (Italics

added.)? [Citation.]? (Underscoring added.)

The majority reasons that R.A.?s written answers do not clearly show that

he could set aside his views and apply the law. (Maj. opn., ante, at p. 42.) But

that is not the test. In order for the trial court to excuse a prospective juror on the

written record alone, without oral voir dire, the clarity in the record must be that

the prospective juror could not set aside his or her views against the death penalty.

An excusal without any oral voir dire is permitted only ?if it is clear from the

answers that he or she is unwilling to temporarily set aside his or her own beliefs

and follow the law.? (Avila, supra, 38 Cal.4th at p. 531, italics added.) By instead

reasoning the trial court?s excusal of R.A. was justified because the record does

not clearly show he could set aside his views, the majority has reversed the

applicable test, thereby making it easier to remove those prospective jurors who

lean against capital punishment. In so doing, the majority neither acknowledges

the change nor proffers any legal authority in support; nevertheless, trial courts

now will be encouraged to forgo oral questioning of prospective jurors who hold

negative views about the death penalty and simply assume they are excludable

under Witt unless the record clearly shows otherwise. That is not the law.

(Lockhart v. McCree, supra, 476 U.S. at p. 176; People v. Wilson, supra, 44

Cal.4th at p. 785.)

To be sure, R.A.?s written answers indicated he held strong views against

the death penalty. But he also acknowledged he could follow the law and the

court?s instructions, that nothing would prevent him from doing so in this case,

and given three choices in question No. 46, declined to indicate he would

?ALWAYS? vote for the death penalty irrespective of the evidence or

5


?ALWAYS? vote for a life sentence, but instead chose the third alternative

provided by the questionnaire: ?I would consider all of the evidence and the jury

instructions as provided by the court and impose the penalty I personally feel is

appropriate.? (Maj. opn., ante, at p. 37, fn. 22 [reproducing the entirety of

question No. 46].) On this record, one cannot say ?it is clear from [R.A.?s]

answers that he . . . is unwilling to temporarily set aside his . . . own beliefs and

follow the law.? (Avila, supra, 38 Cal.4th at p. 531, italics added.)

In support of its contrary conclusion, the majority devalues R.A.?s answer

to question No. 46, both by emphasizing that we must consider R.A.?s answers in

their totality (maj. opn., ante, at p. 41 [purporting to evaluate ?the whole record?]),

and by characterizing his response that he would consider all of the evidence and

would not ?ALWAYS? vote for life, as a ?pro forma? answer (ibid.). The totality

of R.A.?s responses, however, includes his answer to question No.46, which

affirms that he would set aside his personal views and follow the law.1 Moreover,

the concept of a ?pro forma? response?as opposed evidently to some more

trustworthy or sincere response?injects a new element into the law never before

articulated. It also is meaningless. On a cold record, to determine that any

particular answer to a multiple choice question is ?pro forma? rather than sincerely

felt is impossible.

The design of jury questionnaires has not yet evolved to the point where the

answers elicited are always sufficiently clear and unambiguous to permit

determination of a juror?s qualifications for Witt purposes. Question No. 46 in the

questionnaire used in this case is a good example. No doubt prospective jurors

1

The totality of his answers also includes R.A.?s statement, in response to a

question asking if his views about the death penalty have changed over time, that
he had ?become more passive due to life?s experiences,? suggesting a lessening of
his opposition to the penalty.

6


choosing they would ?ALWAYS? vote for a sentence of life or a sentence of

death, irrespective of the evidence, were deemed excludable without the need of

further clarification, and rightly so. (See People v. Wilson, supra, 44 Cal.4th at

pp. 783, 788-790 [by checking they would ?ALWAYS? vote for life in prison

?[n]o matter what the evidence was,? jurors indicated they were excludable under

Witt]; Avila, supra, 38 Cal.4th at pp. 531-533 [same].) Prospective Juror R.A.,

however, rejected those two choices and chose the third alternative; that is, he

indicated he would consider all of the evidence and the jury instructions and

would vote for ?the penalty I personally feel is appropriate.? By concluding this

answer was insufficient to require further inquiry of R.A. and forestall his

summary dismissal from the jury panel, the majority necessarily treats question

No. 46 as a question with no right answer.

Moreover, in dismissing question No. 46 because it allows jurors to choose

a penalty they ?personally feel is appropriate? (maj. opn., ante, at p. 42, italics

omitted), the majority?s reasoning leads them to a logical contradiction. If, as the

majority seems to think, question No. 46, answer ?c? does not fairly ask jurors if

they can or will set aside their personal views, consider the evidence and the jury

instructions, and follow the law, then the questionnaire fails to ask the key

question under Witt: Can the juror set aside his or her personal views and apply

the law, or would the person?s views about capital punishment ? ?prevent or

substantially impair the performance of his duties as a juror in accordance with his

instructions and his oath.? ? (Witt, supra, 469 U.S. at p. 424.) Without a response

to that question, a juror?s Witt qualification cannot be determined without a

clarifying oral inquiry.

In addition, the record shows many prospective jurors who were not

dismissed from the jury based solely on their written responses answered question

No. 44a concerning support for the death penalty by circling either ?9? or ?10,?

7


indicating their strong support. Some of these jurors?like R.A.?also checked

?c? for their answer to question No. 46, indicating they would consider the

evidence and jury instructions and vote for ?the penalty I personally feel is

appropriate.? The retention of these strongly pro-death-penalty jurors suggests the

trial court found that checking answer ?c? to question 46 was informative and

relevant for Witt purposes.

Had the trial court questioned R.A. in person, observed his facial

expressions and his demeanor, evaluated his vocal inflections and general bearing,

and then made a conclusion about the depth of his understanding of his duty as a

juror as well as his sincerity?in short, his state of mind?the court?s conclusion

as to his qualification would be virtually unassailable on appeal.2 With no such

factual finding as to R.A.?s true state of mind following an in-person examination,

however, we are left simply with his inconsistent written answers. By finding

R.A. was excludable under the Witt standard, the majority?without

acknowledging it?is making a selective credibility determination based on his

written responses, accepting some of his answers (e.g., his opposition to the death

penalty) as reflecting his true state of mind while discounting others (e.g., that he

would consider all of the evidence and vote for the appropriate penalty) as less

indicative of his true beliefs. To conclude it was clear and left no doubt that

R.A.?s written responses rendered him excludable under Witt, the majority applies

a selective evaluation of the record and thereby undermines defendant?s

constitutional right to an impartial jury.


2

People v. Abilez (2007) 41 Cal.4th 472, 497 (following oral voir dire, a trial

court?s evaluation of a prospective juror?s state of mind is binding on the appellate
court). ?Deference to the trial court is appropriate because it is in a position to
assess the demeanor of the venire, and of the individuals who compose it, a factor
of critical importance in assessing the attitude and qualifications of potential
jurors.? (Uttecht v. Brown (2007) 551 U.S. 1, 9.)

8


II.

On this record, reviewing the question de novo as we must (People v.

Thompson, supra, 49 Cal.4th at p. 100; Avila, supra, 38 Cal.4th at p. 529), we

cannot be confident Prospective Juror R.A.?s views concerning the death penalty,

as expressed solely in his written responses to the jury questionnaire, would have

prevented or substantially impaired his ability to perform the duties of a juror ? ?in

accordance with his instructions and his oath? ? (Witt, supra, 469 U.S. at p. 424),

or that he was not ?willing to temporarily set aside [his] own beliefs in deference

to the rule of law? (Lockhart v. McCree, supra, 476 U.S. at p. 176). That is, on

this record, the People cannot show it is clear and leaves no doubt that R.A.?s

views about the death penalty would satisfy the Witt standard. (People v. Wilson,

supra, 44 Cal.4th at p. 787.) By holding otherwise, the majority contravenes

defendant?s ?right to an impartial jury drawn from a venire that has not been tilted

in favor of capital punishment by selective prosecutorial challenges for cause.?

(Uttecht v. Brown, supra, 551 U.S. at p. 9.)

For these reasons, I dissent.

WERDEGAR, J.

9




See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. McKinnon
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S077166
Date Filed: August 22, 2011
__________________________________________________________________________________

Court:
Superior
County: Riverside
Judge: Patrick F. Magers

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and C. Delaine
Renard, Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Ivy Fitzpatrick, Douglas P. Danzig and
Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.













Counsel who argued in Supreme Court (not intended for publication with opinion):

C. Delaine Renard
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Robin Derman
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92100
(619) 645-2285