Filed 2/3/11



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S093456

v.

Sonoma County

ALEX DALE THOMAS,

Super. Ct. No. SCR-29622

Defendant and Appellant.

____________________________________)



Defendant Alex Dale Thomas, a substitute janitor at Rio Linda High

School, raped and murdered 18-year-old student Michelle Montoya. Defense

counsel did not contest that defendant killed the victim, but denied that he raped

her, suggesting defendant had engaged in consensual sex with the victim, then

killed her in a panic because he believed he had committed statutory rape and, as a

convicted felon, could be sent to prison for life under the Three Strikes law.

Defendant was convicted of murder with the special circumstance that the murder

was committed during the commission of rape, and was sentenced to death. This

appeal is automatic. (Pen. Code, ? 1239, subd. (b).)1 For the reasons that follow,

we affirm the judgment.


1

All further undesignated statutory references are to the Penal Code.


I. FACTS

An information filed on November 21, 1997 in Sacramento County

Superior Court charged defendant with murdering Michelle Montoya on May 16,

1997 (? 187, subd. (a)), with the special circumstance that the murder was

committed during commission of the crime of rape (? 190.2, subd. (a)(17)(C)), and

with raping the victim (? 261). The information further alleged that defendant

personally used a deadly or dangerous weapon in committing the murder

(? 12022, subd. (b)) and that both the murder and the rape were serious felonies

(? 1192.7, subd. (c)). The information alleged that defendant had suffered eight

prior convictions, including convictions for the serious felonies of voluntary

manslaughter, robbery, and exploding a destructive device with intent to injure.

The trial court denied defendant?s motion for a change of venue and the

Court of Appeal summarily denied defendant?s petition for writ of mandate. We

stayed the trial and granted review on August 18, 1999, and transferred the matter

to the Court of Appeal with directions to issue an alternative writ of mandate. On

March 17, 2000, counsel stipulated to a change of venue to Sonoma County. On

July 5, 2000, jury trial commenced in Sonoma County Superior Court.

A. Guilt Phase

1. Prosecution?s Case

The victim, Michelle Montoya, was a senior at Rio Linda High School who

had just turned 18 years old. On Friday, May 16, 1997, she stayed after school to

meet with her English teacher about a research paper she was writing. She

mentioned that she needed to make a telephone call to arrange for a ride home, but

declined her teacher?s offer to use her cell phone. The victim left the meeting

about 3:30 p.m.

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The victim telephoned her stepfather, Joseph Schleeter, sometime between

3:30 and 3:45 p.m. to ask for a ride home. Schleeter told her that it would be 10 or

15 minutes before he could come; she replied she would find her own ride home

and hung up. Schleeter later drove to the victim?s school and waited for her, but

left when she did not appear.

A few minutes before 3:00 p.m., Robert Erickson had locked the doors to

his shop classroom, room L-1. In Erickson?s office adjoining the shop classroom,

there was a telephone that he sometimes let students use to arrange rides.

Defendant was working as a substitute janitor that day and was assigned to

clean shop classroom L-1. About 4:00 p.m., janitor Robert Simpkins was walking

with fellow janitor Faruq Shirley when they heard a loud sound, like a door slam.

They went to investigate and saw defendant leaving a bathroom near the shop

classroom. Simpkins noticed that defendant no longer was wearing the shirt that

he had worn over his tank top at the beginning of the shift.

Simpkins left to resume cleaning, and defendant called Shirley over and

asked him for a cigarette. Shirley said he did not smoke and began to leave, but

defendant asked Shirley to accompany him to the ROTC classroom and show him

how it should be cleaned. Shirley was surprised by the request, because defendant

had cleaned the ROTC room the previous day, but he briefly went to the room

with defendant and described what should be done. Shirley then left, but a short

time later, defendant yelled and ran to him, saying there was something he had to

see. Defendant ran to shop classroom L-1 with Shirley following. They entered

the room and Shirley saw the victim lying on the floor. Shirley ran out of the

room to find Simpkins, with defendant following him.

Shirley and defendant ran up to Simpkins and told him they had found

someone who had been hurt in the shop classroom. Simpkins used his walkie-

3


talkie to contact the office and have someone call 911. Simpkins entered the shop

and found the victim lying facedown.

Officer Ruben del Hoyo of the Grant School District Police Department

arrived about 10 minutes later. He entered the shop classroom and saw the victim

lying on the floor with a puddle of blood around her head. She was fully clothed

and wearing a backpack. He determined that she did not appear to be breathing,

and left the room just as other emergency personnel were arriving. Officer del

Hoyo spoke to defendant, who appeared ?very nervous? and was ?sweating

excessively from his forehead.? Defendant said he had found the victim and

turned her over, then ran to get help when he saw that she was dead.

Paramedics arrived at 4:12 p.m. The victim was not breathing and had no

pulse. She was lying facedown on her backpack, which was twisted around in

front of her. She had large wounds on her forehead and the back of her head, and

her throat had been cut. The victim was pronounced dead in the ambulance while

being transported to the hospital.

Deputy Sheriff Michael Abbott and his partner Deputy Sheriff Ken

Harbuck arrived at the crime scene at 4:15 p.m. Deputy Abbott approached

defendant and told him he wanted to talk to him about the incident. Defendant

replied: ?I?m convicted and I won?t go to court about this.? Defendant said that

he had entered the shop classroom to empty the trash can and discovered the

victim?s body. He touched her shoulder and then wiped his hand on his shirt,

which was in his back pocket. When the victim did not move, he ran to get help.

Defendant pointed out some blood on his pants, which he said had gotten on him

when he slipped while running out of the classroom. Deputy Abbott asked

defendant whether there were any weapons in the classroom. Defendant laughed

and said, ?The whole room is full of weapons.? Another deputy collected

4


defendant?s shoes, as well as his shirt from his back pocket. Defendant had a

scratch on his hand.

Criminalist Faye Springer examined the crime scene and found a used

tampon in a paper cup with resin in the bottom, sitting on top of a work counter.

No semen was found on this tampon. A crowbar found at the scene had been

wiped down but still had blood on it. A trail of defendant?s bloody shoe prints led

from the victim?s body to the tool cabinet where the crowbar was found. A tiny

paint chip recovered from a blood spot on defendant?s clothing matched a sample

of paint from the crowbar.

An autopsy revealed that the cause of the victim?s death was blunt force

trauma to the head, consistent with a blow from a crowbar. ?Basically the skull

was just shattered.? There was a vertical laceration above the left eyebrow that

extended down to bone and was ?associated with an underlying fracture of the

skull.? A second horizontal laceration on the left temple extended down to bone.

The largest laceration ?extended from the mid-occipital region of the head to

involve the ear? and was ?associated with a fracture and through that fracture the

brain was actually visible.? In addition to a black eye and wounds to her hands,

arms, legs, and feet, the victim had two cuts on her neck and had been stabbed in

the back three times.

There were no signs of sexual trauma. The victim was wearing a tampon

and a Maxi-pad. The Maxi-pad was blood-soaked, but not the tampon. DNA

analysis of semen found on this tampon matched defendant. A DNA analysis of

blood taken from the crowbar matched the victim, and fragments of the victim?s

tissue were recovered from defendant?s pants.

An expert in analyzing bloodstain patterns testified that the pant legs below

the knee of the jeans defendant had been wearing on the day of the murder

revealed both ?high velocity blood splatter,? which indicated defendant had been

5


within a foot or two of the victim when she suffered a blow of force greater than a

normal blow from a fist, as well as ?medium velocity splatter,? which was

?consistent with a bludgeoning or beating.? The expert also examined the

undershorts defendant had been wearing and found ?transfer type? bloodstains that

were consistent with blood being deposited on the shorts from a source such as

bloody fingers. Fibers recovered from the inside of defendant?s undershorts were

consistent with fibers from the victim?s underpants, her skirt, and her Maxi-pad.

2. Defense Case

In his opening statement, defense counsel conceded that defendant had

engaged in sex with the victim, but claimed it had been consensual and suggested

defendant then killed the victim because he feared that he had committed statutory

rape and, if convicted, would receive a life sentence under the Three Strikes law.

Sherry Arndt, a registered nurse who specialized in examining victims of

sexual assault, testified that the victim displayed ?no visible injuries that are

consistent with forced sexual contact.?

A woodshop teacher who had been present at the high school until about

3:45 p.m. on the day of the murder testified he did not hear anyone yell or scream.

Brent Turvey, an expert in crime scene reconstruction, testified that the

police conducted an inadequate investigation. His review of the evidence

suggested the victim had consented to sexual intercourse and defendant had then

killed the victim in an unplanned burst of anger.

B. Penalty Phase

1. Prosecution Case

Kelly Minix testified for the prosecution that in 1997 she had worked at a

truckstop at which defendant was employed. One day, after Minix had finished

her job, defendant followed her to her automobile and, while she was seated in the

6


driver?s seat, leaned into the vehicle and sucked on her neck, leaving a bruise. She

cursed, and defendant backed out of the automobile, apologized, and left.

Defendant?s former wife, Delores Thomas, testified that in August 1994,

defendant had punched her in the face during an argument.

Former Los Angeles County Deputy Sheriffs Lee Woods and Richard

Calzada testified that in 1985 defendant had slashed the throat of fellow prisoner

Vincent McCowan while both men were incarcerated in the Los Angeles County

jail. Sergeant Gerald Franks testified that in 1986 he was working as a

correctional counselor in the reception center of the California Institution for Men

in Chino, and interviewed McCowan. Sergeant Franks asked McCowan if he had

any enemies in the prison system. McCowan named defendant and explained that

defendant had slashed his throat when they both were incarcerated in county jail.

Sergeant Franks later interviewed defendant, who ?reluctantly verified? that he

had assaulted McCowan.

Estella Black testified that in 1984, defendant had robbed her, her daughter,

and her son-in-law at gunpoint in front of her apartment in Los Angeles.

In 1978, defendant shot 12-year-old Samantha Mims as she lay in her bed

next to her younger brother. She survived, but suffered severe injuries, including

the loss of one kidney and part of her small intestine. Mims does not know why

defendant shot her.

When defendant was 17 years old, he pled guilty to possession of an

inflammatory device, or Molotov cocktail and was sent to the California Youth

Authority (now Division of Juvenile Justice). Later, defendant pled guilty to an

attempted robbery of James Moore and robbery of Seifeddin Khalatbary.

Defendant also had been convicted of the voluntary manslaughter of Daniel

White. A portion of the preliminary hearing testimony was read to the jury,

reflecting that defendant approached the victim when he was in the driver?s seat of

7


his truck, pointed a gun at him, and demanded that the victim give him his ?rock?

(which was a term for cocaine) or $25. When the victim attempted to drive away,

?a shot went off? and the victim was shot and killed.

The victim?s mother, Pam Schleeter, testified that the victim, whom she

described as her ?best friend,? was survived by a younger sister and brother. The

victim had been a soccer player who had many friends, and she was a good and

helpful daughter who performed acts of kindness for neighbors and her teachers.

Schleeter described the devastating impact her daughter?s death had on her and her

family. She had wanted to die when her daughter was killed and she still was

taking antidepressants.

Darcie Purcell testified she had been the victim?s friend and described how

loving and close the victim?s family had been. The victim was friendly, outgoing,

and hard working. In addition to attending school, she had held two jobs to help

support her family.

2. Defense Case

Patrick Ridgle testified that he had been defendant?s friend since they were

children. Defendant often stayed with Ridgle?s family because defendant?s

mother drank and was verbally abusive.

Nita Sims, Ridgle?s younger sister, testified she also had known defendant

since they were children and had unsuccessfully attempted to teach defendant to

read. Their relationship later became romantic and she gave birth to his daughter,

Antoinette. Sims testified that defendant?s mother was an alcoholic who smoked

crack cocaine and that her six-month-old daughter had suffered burns on her thigh

while in the care of defendant?s mother.

8


Defendant?s daughter, Antoinette Thomas, testified that she saw defendant

periodically as a child but no longer had contact with him. Defendant?s mother

had burned her with a cigarette when she was a child and later tried to beat her.

Defendant?s cousin, Lawana Choyce, recounted the history of defendant?s

family.

Clinical neuropsychologist Nell Riley testified that he conducted an

extensive examination of defendant. Defendant was illiterate and his IQ varied

between 58 when he was tested at age 15 and 68 when Riley tested him. These IQ

scores placed him between the first and second percentile of the general

population.

Dr. Joseph Wu, a psychiatrist, interpreted a report of a PET scan (positron-

emission tomography) conducted on defendant?s brain in September 2000 that

revealed an abnormal pattern of brain activity called ?hypo-frontality which means

low frontal lobe metabolism relative to the rest of the brain.? The abnormality in

defendant?s frontal lobe functioning is similar to abnormalities found in a test

group of subjects who had committed homicide. Dr. Wu testified that someone

with that type of brain function abnormality ?would have an impaired ability,

likely, to regulate their aggressive impulses.?

Alice Spivey testified that she is a mother whose eldest son is a few years

younger than defendant. She saw defendant on television after his arrest, became

concerned that he might need a friend, and began to visit him in jail. He treated

her like a gentleman and helped her by listening to her problems. She loves

defendant as if he were her son and he calls her ?mom.?

Dr. Gretchen White, a forensic clinical psychologist, prepared a

?psychosocial history? of defendant. Defendant?s great-great grandmother was

born into slavery. His mother and father were Ida Mae and Roy Lee Thomas, and

he had four brothers. Defendant?s mother drank heavily and consorted with other

9


men. When defendant was young, she left her husband and moved with her sons

to South Central Los Angeles, and collected welfare. Defendant had no contact

with his father from the time he was seven or eight years old until he was 30 years

old. Dr. White received information that defendant?s home was ?poorly kept,?

that his mother often was intoxicated, that she would yell at her children, throw

things at them, put them out of the house, and call the police on them.

Defendant?s mother demanded money from her children, knowing their only

source of income was theft. Dr. White formed the opinion that defendant?s family

?was extremely dysfunctional,? stating: ?So basically you have an individual who

is damaged and impaired; who is living in a family that is not able to provide even

a modicum of structure and nurturance within an environment which itself is very

depleted and destructive.? Defendant?s mother was deceased at the time of trial.

Defendant joined the Hoover Street Crips gang when he was 12 years old.

He began committing crimes and was declared a ward of the court when he was 14

years old. He spent his 18th birthday in a California Youth Authority facility,

turned 21 years old in county jail, then spent the next 10 years in prison.

A videotape was played of a conditional examination of Ruthie Mae Mack.

She met defendant when he was 13 years old and became friends with her son,

Patrick. She is also the mother of Nita Sims, with whom defendant had his

daughter, Antoinette Thomas. Defendant lived with her family for a time.

Defendant could not read or tell time, yet Mack described defendant as ?a very

smart young man.?

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II. DISCUSSION

A. Jury Selection Issues

1. Exclusion of Prospective Jurors Who Disfavor the Death Penalty

Defendant contends the trial court erred in removing for cause four

prospective jurors who expressed reservations about the death penalty, thereby

violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to

the United States Constitution and article I, section 16 of the California

Constitution.

A prospective juror in a capital case may be removed for cause if his or her

views on capital punishment ?would ?prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his

oath.? ? (Wainwright v. Witt (1985) 469 U.S. 412, 424.) Because prospective

jurors ?may not know how they will react when faced with imposing the death

sentence, or may be unable to articulate, or may wish to hide their true feelings?

(id. at p. 425), ?deference must be paid to the trial judge who sees and hears the

juror? and must determine whether the ?prospective juror would be unable to

faithfully and impartially apply the law.? (Id. at p. 426.) We have adopted this

standard for determining whether excusing for cause a prospective juror in a

capital case based on the prospective juror?s views on capital punishment violates

the defendant?s right to an impartial jury under article I, section 16 of the

California Constitution. (People v. Griffin (2004) 33 Cal.4th 536, 558; People v.

Ghent (1987) 43 Cal.3d 739, 767.)

?On appeal, we will uphold the trial court?s ruling if it is fairly supported

by the record, accepting as binding the trial court?s determination as to the

prospective juror?s true state of mind when the prospective juror has made

statements that are conflicting or ambiguous. [Citations.]? (People v. Mayfield

11


(1997) 14 Cal.4th 668, 727.) ?In many cases, a prospective juror?s responses to

questions on voir dire will be halting, equivocal, or even conflicting. Given the

juror?s probable unfamiliarity with the complexity of the law, coupled with the

stress and anxiety of being a prospective juror in a capital case, such equivocation

should be expected. Under such circumstances, we defer to the trial court?s

evaluation of a prospective juror?s state of mind, and such evaluation is binding on

appellate courts. [Citations.]? (People v. Fudge (1994) 7 Cal.4th 1075, 1094.)

We will examine the removal of each prospective juror in turn.

i. Prospective Juror No. 6-353

Prospective Juror No. 6-353?s juror questionnaire revealed that she gives

music lessons in her home and is an ordained minister who holds a masters degree

in theology. She checked the responses indicating that she was ?Moderately

against? the death penalty and ?Strongly in favor? of ?the penalty of life without

the possibility of parole in cases of special circumstance murder.? In answer to

the question whether she would ?always vote for life in prison without parole

regardless of the facts and circumstances,? the prospective juror did not select

either ?Yes? or ?No? and instead wrote in: ?I don?t truthfully know.?

During voir dire, Prospective Juror No. 6-353 stated she ?lean[ed] very

strongly towards wishing there were not a death penalty,? but added that she ?also

believe[d] that you have to work with the system and the laws of the land as they

stand.? When asked by the court whether she would be ?able to impose the death

penalty in any case,? she replied: ?I don?t know the answer to that.? The court

again asked whether she would be able to impose the death penalty if she

concluded it was the appropriate penalty and the prospective juror answered: ?I

know for me I would have to go pretty close to the end of . . . my belief system to

be able to make that statement . . . . I don?t believe it?s out of the realm of

12


possibility to decide that was the proper penalty, but I think it?s unlikely I would

get there.? Prospective Juror No. 6-353 agreed with the judge?s assessment that

her voting for the death penalty was a ?theoretical possibility,? but when the court

asked if it was a ?realistic possibility,? she hesitated, saying ?it?s hard for me to

answer that.? The court reminded the juror that she had used the term ?unlikely,?

and asked whether she could use the term ?realistically rather than unlikely,? to

which the prospective juror responded: ?Probably not realistically. I think

probably for me to decide that the death penalty was appropriate, I would have to

feel that the person was so wounded and had made such bad choices that . . . a real

sense of humanity almost didn?t exist there anymore, and that . . . he or she even

within the prison system would be a real threat to other people.?

Defense counsel asked no questions and the prosecutor asked only whether

Prospective Juror No. 6-353?s views were influenced by the circumstance that her

sister worked in the prison system, which the prospective juror assured him was

not the case. Outside the presence of the prospective juror, the court rejected

defense counsel?s argument that the prospective juror could ?consider both sides?

and excused Prospective Juror 6-353 for cause, noting that ?she said there was not

probably a reasonable possibility as a matter of fact? that she could vote for the

death penalty and concluding that ?[h]er total philosophy and her body language

told me she?s substantially impaired and prevents her from following the

law . . . .?

Substantial evidence supports the trial court?s finding that Prospective Juror

No. 6-353?s views on capital punishment would substantially impair her ability to

perform the duties of a juror. In her questionnaire, Prospective Juror No. 6-353

stated she did not know whether she always would vote for a sentence of life

without the possibility of parole regardless of the evidence. During voir dire, the

prospective juror stated she did not know whether she would be ?able to impose

13


the death penalty in any case? and explained that while it was theoretically

possible that she could vote for the death penalty, it was ?[p]robably not

realistic[].? In People v. Griffin, supra, 33 Cal.4th 536, 559, we held that the trial

court properly excused for cause a prospective juror who stated on voir dire ?that

she did not know whether she ever could vote to impose the death penalty,

regardless of the state of the evidence? and another prospective juror who stated

she generally supported the death penalty but added that ?she did not know

whether she actually could vote to impose the death penalty.? (Id. at p. 560.)

ii. Prospective Juror No. 6-483

In her questionnaire, Prospective Juror No. 6-483 selected the responses

indicating that she was ?Strongly against? the death penalty and ?Strongly in

favor? of the penalty of life in prison without the possibility of parole in cases of

special circumstance murder. She explained that she felt that way because ?I feel

there have been many innocent people sent to the gas chair.? She indicated that

she would not be able to exclude from her consideration of the proper penalty the

argument that the death penalty is more expensive to the taxpayer than life without

the possibility of parole and indicated that she would always vote for life in prison

without parole, regardless of the facts and circumstances of the case. She added:

?I would not like to go through life knowing I was responsible for someone?s life.?

On voir dire, Prospective Juror No. 6-483 confirmed that she always would

vote for life in prison rather than the death penalty and explained that her

statement that she ?would not like to go through life knowing I was responsible for

someone?s life? referred only to the death penalty, adding, ?Life in prison is fine.?

She stated she ?probably? could vote for the death penalty if ?there was no doubt?

the defendant was guilty, ?but I wouldn?t be happy about it,? adding ?[I] really

don?t think I would.? The court explained that the penalty phase would be

14


conducted only if the jury had found defendant guilty beyond a reasonable doubt

and asked Prospective Juror No. 6-483 whether ?if you found a person guilty

beyond a reasonable doubt of first degree murder with special circumstances, you

could vote for the death penalty?? She replied: ?I think it would be life in

prison.?

Under questioning by defense counsel, the prospective juror repeated that

she could consider voting for the death penalty only if she ?thought he was really

really guilty. . . . [?] But there would have to be no doubt in my mind . . . .?

Defense counsel pointed out that if the prospective juror had a doubt, she could

prevent the conviction and asked whether she could vote for the death penalty if

she was part of the jury that had determined guilt. Prospective Juror No. 6-483

answered: ?I guess.?

Under questioning by the prosecutor, Prospective Juror No. 6-483 repeated

her belief that ?lately there has been a lot of DNA evidence that has gotten a lot of

people off of death row because they were innocent, and . . . to take someone?s life

and then find out that they were, you know, innocent would really be terrible.?

When asked if that meant that she would impose a standard more stringent than

proof beyond a reasonable doubt at the guilt phase of the trial, the prospective

juror answered: ?I don?t think so. I don?t know.? She stated she ?probably?

could vote for the death penalty ?if I really felt that was necessary, he was very

bad,? but added she ?would have to get used to the idea.? When asked if the state

had the right to execute someone, she answered: ?Yeah, I guess. . . . [?] But I

don?t know if I want to be responsible for someone?s death.?

Prospective Juror No. 6-483 explained that if the rest of the jury ?was for?

the death penalty, and she knew ?he was really guilty, I might go along with it. . . .

Probably would.? But when asked if she ?theoretically could? vote for the death

penalty, she answered: ?No. I probably could if I had to.?

15


Outside the presence of the prospective juror, the prosecutor made a

challenge for cause. Defense counsel submitted without argument. The court

excused Prospective Juror No. 6-483 for cause, stating: ?The juror is substantially

impaired not merely by her words but when she would shake her head no and say

?I guess,? the whole body language as well I suppose. Clearly impaired.?

Substantial evidence supports the trial court?s finding that Prospective Juror

No. 6-483?s views on capital punishment would substantially impair her ability to

perform the duties of a juror. In her questionnaire, Prospective Juror No. 6-483

stated she was ?[s]trongly against? the death penalty because ?there have been

many innocent people sent to the gas chair,? adding that she would always vote for

life in prison without parole regardless of the facts and circumstances of the case

because she ?would not like to go through life knowing I was responsible for

someone?s life.?

The prospective juror confirmed these views on voir dire and equivocated

only to the extent of allowing that she might vote for the death penalty if

defendant was ?really really guilty? and she had ?no doubt,? but explained that

even then she ?wouldn?t be happy about it? and ?really don?t think I would.? She

stated that she ?probably? could ?go along? if the rest of the jury voted for death

and defendant was ?really guilty,? but then added contradictorily when asked

whether she ?theoretically could? vote for the death penalty: ?No. I probably

could if I had to.?

We held in People v. Wash (1993) 6 Cal.4th 215, 255, that the trial court in

a capital case properly excused for cause a prospective juror who stated she could

vote for the death penalty ? ?if the evidence was overwhelming,? ? but

?consistently responded, ?I don?t know? in answer to the question whether she was

capable of voting for death if all the evidence indicated that it was the appropriate

sentence.? We relied upon the rule that ? ? ?[W]here equivocal or conflicting

16


responses are elicited regarding a prospective juror?s ability to impose the death

penalty, the trial court?s determination as to his [or her] true state of mind is

binding on an appellate court.? ? [Citations.]? (Ibid.)

iii. Prospective Juror No. 74

At the outset of voir dire, the court denied Prospective Juror No. 74?s

written request to be excused from jury service because she teaches a class for

blind, deaf, and autistic students that would be cancelled if she was required to

serve as a juror.

Prospective Juror No. 74 explained during voir dire that nearly 20 years

earlier four friends had been prosecuted for rape; two were convicted. She felt the

men were innocent and had been prosecuted only because ?the district attorney

was running for reelection and they trumped up this case to be something other

than it was,? adding that ?the press had a field day.?2 She believed that no rape

had occurred and that the victim had been ?sent in to entrap these guys.?

The prospective juror explained that she knew her friends had been treated

unfairly because the press had misrepresented some events that she had witnessed,

adding she ?wrote lots of letters, sent lots of petitions,? but was ?completely

ignored.? She thought she could base her decision in this case solely on the

evidence, but added: ?I also think that what happens out in the world is important,

too. And I was witness to some of these things that were reported wrongly in the

paper.?

Prospective Juror No. 74 also recounted an unrelated incident in which her

?daughter?s boyfriend was brutally beaten by police officers? but the officers had

?prevailed wrongfully? because in court ?the policemen, were very professional in

2

In her questionnaire, Prospective Juror No. 74 had written that what is

wrong with the criminal justice system is ?publicity.?

17


there [sic] witnessing. And my daughter?s boyfriend was, you know, the way that

he prepared for trial was to buy new Levi?s.? She felt the police officers had

engaged in ?police brutality.?

Despite these two incidents, Prospective Juror No. 74 did not feel any

general animosity against prosecutors or police officers, explaining: ?I don?t

believe they?re all abusers, but I have been witness to these two things which were

out of the ordinary.? When asked if she would disbelieve law enforcement

witnesses because of her experiences, she answered: ?I don?t know. I mean I

don?t think so. . . . [?] And I think I could accept their testimony if I believed it

was true.?

In her questionnaire, the prospective juror had indicated the criminal justice

system makes it ?easy to prosecute the innocent,? explaining on voir dire that she

was referring to the two incidents described above. She indicated that her opinion

about the death penalty had changed and wrote in the name, ?Richard Alan

Davis,?3 explaining on voir dire that she always had ?been on the fence? about

capital punishment, but now was convinced that it was appropriate in that case and

others. She doubted that a sentence of life without the possibility of parole meant

the defendant would be incarcerated for his entire life, adding ?many, so

sentenced, get out.?

During voir dire, Prospective Juror No. 74 twice answered ?I don?t know?

when asked if she would be able to vote for a sentence of death. When asked if

she could do so if she ?were convinced that it was the appropriate penalty under

the law and the facts? she replied: ?I think so.?


3

Richard Alan Davis was sentenced to death for the murder of 12-year-old

Polly Klaas. (People v. Davis (2009) 46 Cal.4th 539.)

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The prosecutor later observed that Prospective Juror No. 74 had hesitated

before saying she thought she could vote for the death penalty, and the prospective

juror responded that she ?did hesitate? because ?it?s a very heavy question,?

explaining: ?I would like to believe that if I truly believed someone was guilty

that . . . I could do that. But I don?t know.? The prosecutor asked whether

Prospective Juror No. 74 was reluctant to vote for the death penalty because she

?could never really live with yourself if you voted for the death penalty,? and the

prospective juror replied, ?I don?t know,? adding: ?I don?t know how I would feel

afterwards.? The prosecutor then asked whether the prospective juror could be

open to voting for the death penalty if the evidence supported it, to which she

answered, ?I think so.?

Outside the presence of the prospective juror, the prosecutor challenged her

for cause, stating, ?there are problems with her ability to be a fair and impartial

juror coming from several quarters. The facts on which she has provided us in

connection with her hardship claim, her prior experience with individuals whom

she believes were improperly prosecuted and in the case of them ? two of them,

convicted. And her very candid expression of difficulty with the concept of the

death penalty itself. She can?t say that she is sure that she could impose the death

penalty. She can only say that she would try and she thinks she might be able to

be sure but clearly even when I asked the question [in] as direct a fashion as I can,

she hesitated for a long time, her words are spoken with a great deal of

indecisiveness in my opinion.?

The court observed, ?This lady has a lot of problems. . . . [?] Not only for

the prosecution but a lot of problems for the defense, too.?

Defense counsel admitted he had ?questions about her? and observed that,

at first, she was ?very, very nervous, her lips were smacking . . . almost like she

was a deer in the headlights? and ?couldn?t gather her thoughts,? and had

19


difficulty understanding questions. But defense counsel felt ?she started relaxing a

little bit? and indicated ?she could vote either way.? The court interrupted to point

out, ?What I heard, though, was that she didn?t know.?

The court initially denied the prosecutor?s challenge, stating: ?I don?t think

I can grant the challenge for cause on the death penalty.? The court noted it had

?some real reservations about whether or not she is capable or willing to follow

the law and I have a strong impression she probably couldn?t or wouldn?t. And,

yet, she did answer questions.? The prosecutor agreed that her answers appeared

?to pass muster,? but they were not said in a way ?that gives me confidence.?

The next day, the court reconsidered its ruling and excused the prospective

juror for cause, stating he had read the reporter?s transcript of proceedings and was

?convinced that she could not apply the law or follow the evidence.? Relying in

part on the prospective juror?s ?body language,? the court stated it was ?convinced

she could simply not be a fair, impartial juror.? The court clarified that its ruling

was ?not just limited to the death penalty questions . . . . [?] It?s the whole thing.?

Substantial evidence supports the trial court?s order excusing Prospective

Juror No. 74. The trial court was justified in concluding that the prospective

juror?s views on capital punishment alone would substantially impair her ability to

perform the duties of a juror. Despite indicating on her questionnaire that she was

strongly in favor of the death penalty (she also indicated she was strongly in favor

of life without parole) and her statement on voir dire that the death penalty was

appropriate in some cases, Prospective Juror No. 74 was never able to state that

she would be able to vote for the death penalty, repeatedly answering ?I don?t

know.? The closest she came was stating that she thought she could vote for the

death penalty and ?would like to believe? that she could, but actually did not

know.

20


As noted above, we held in People v. Wash, supra, 6 Cal.4th 215, 255, that

a trial court in a capital case properly may excuse for cause a prospective juror

who states she does not know whether she could vote for the death penalty. The

present case presents a close call, as evidenced by the trial court?s initial denial of

the prosecutor?s challenge for cause, but the trial court?s final ruling is entitled to

deference because the ?trial court?s finding concerning a prospective juror?s state

of mind ?is based upon determinations of demeanor and credibility that are

peculiarly within a trial court?s province.? ? (People v. Schmeck (2005) 37 Cal.4th

240, 263.)

The trial court?s ruling is further supported by other indications in the

record that Prospective Juror No. 74 would not be a fair and impartial juror. The

prospective juror?s experience with the rape prosecution decades earlier had left

her with the view that the victim, the prosecutor, the defense attorney, and the

press all had behaved poorly and her efforts to correct this injustice had been

?completely ignored.? She also believed her son-in-law had been the victim of

police brutality, but that the police officers had ?prevailed wrongfully? in court.

When asked whether she could nonetheless be fair, she replied, ?I?ve never been

in this position before. And I feel that I could be honest in reviewing the evidence

and coming to a conclusion. But I?ve never been ? I don?t know. I mean, I really

don?t know. I?ve not had to be ? I?ve never had to do this.? And when asked

whether she could base her decision in the present case solely on the evidence

presented in court, she again answered equivocally, saying: I think I could do

that, but I also think that what happens out in the world is important, too.?

Even defense counsel, in opposing the prosecutor?s motion to excuse

Prospective Juror No. 74 for cause, admitted he had ?questions about her? and

acknowledged that the prospective juror was ?very, very nervous,? looked almost

like ?a deer in the headlights,? ?couldn?t gather her thoughts? and ?was having

21


trouble following . . . questions.? The court excused Prospective Juror No. 74

because she ?could not apply the law or follow the evidence? and ?could simply

not be a fair, impartial juror.? ?In general, the qualification of jurors challenged

for cause are ?matters within the wide discretion of the trial court, seldom

disturbed on appeal.? [Citation.] When, as here, a juror gives conflicting

testimony as to her capacity for impartiality, the determination of the trial court on

substantial evidence is binding on the appellate court. [Citations.]? (People v.

Kaurish (1990) 52 Cal.3d 648, 675.)

iv. Prospective Juror No. 833

In her questionnaire, Prospective Juror No. 833 selected the responses that

she was ?Strongly against? the death penalty and ?Strongly in favor? of life in

prison without parole for special circumstance murder. She explained her

opposition to the death penalty as follows: ?I am a Christian, it would be difficult

for me to sentence someone to death because of my belief in the goodness of

God?s creation.? She added: ?I?m not sure I could sentence someone to death

even if I did find them guilty.? In answer to the question whether she always

would vote for life in prison regardless of the circumstances, she wrote: ?I?m

really not sure ? my feeling is that I would find it very difficult to vote for the

death penalty.?

The court asked Prospective Juror No. 833 during voir dire whether she

was capable of voting for the death penalty if she decided that it was the

appropriate penalty, and she answered: ?I really don?t know.? The prospective

juror, who was a registered nurse, explained that she could not put herself ?in the

position of being the person that executed? the defendant, later repeating that she

could not administer the lethal injection herself.

22


The prospective juror told defense counsel she ?would consider? voting for

the death penalty, but when asked by the prosecutor if she actually could cast her

vote for the death penalty, stated: ?I don?t think so.? She told the court that by

saying ?I don?t think so,? she meant she could not vote for the death penalty and

when asked whether there was a reasonable possibility that she could vote for the

death penalty, replied: ?I don?t know. I don?t know.?

Outside the presence of the prospective juror, the court granted the

prosecutor?s motion to excuse for cause Prospective Juror No. 833, finding that

?she would be unable to faithfully and impartially apply the law and therefore is

substantially impaired.?

Substantial evidence supports the trial court?s finding that Prospective Juror

No. 833?s views on capital punishment would substantially impair her ability to

perform the duties of a juror. In her questionnaire, Prospective Juror No. 833

stated she was strongly against the death penalty and her religious beliefs would

make it difficult for her to sentence someone to death. She wrote twice that she

was not sure she could vote for the death penalty and once more that it would be

difficult for her to vote for the death penalty. During voir dire, she repeated that

she was not sure she could vote for the death penalty, indicating her reason was

that she could not administer the lethal injection herself.

Although the prospective juror told defense counsel it was possible she

could vote for the death penalty and promised that she could consider it, she then

told the prosecutor she did not think she could actually do so and twice told the

court she did not know whether she could vote for the death penalty.

As noted above, we held in People v. Griffin, supra, 33 Cal.4th 536, 560,

that the trial court properly excused for cause a prospective juror who stated on

voir dire ?she did not know whether she actually could vote to impose the death

penalty.? Prospective juror No. 833 consistently explained that, while she could

23


consider the death penalty and there was a possibility she could vote to impose it,

her religious beliefs would make it very difficult for her to vote for the death

penalty and she did not think she could do it. This amply supports the trial court?s

order excusing Prospective Juror No. 833.

2. Peremptory Challenge to African-American Prospective Juror

Defendant contends the prosecutor violated his rights under the Sixth,

Eighth, and Fourteenth Amendments to the federal Constitution and article I,

section 16 of the California Constitution by using a peremptory challenge to

remove from the jury venire the sole remaining African-American.

During voir dire, Prospective Juror No. 550, who was 31 years old, stated

that about ten years earlier, he had been involved in ?a fight? with a woman at a

party, stating ?this woman hit me and I hit her back.? He complained that when he

went to court, the public defender advised him ?to accept a three year deal in San

Quentin for spousal abuse.? The prospective juror refused and left town, but later

returned to court and ?did 30 days over at the farm.? The prospective juror also

remarked that he had had brushes with the law as a juvenile and mentioned that his

father had a long criminal record.

When Prospective Juror No. 550 was 11 or 12 years old, he and his family

were robbed at gunpoint by four men who entered their house wearing ?bee

keepers masks.? They knocked over his uncle, who was in a wheelchair, then hit

his grandmother on the head and stole her purse. The prospective juror ran to his

room, jumped out the window, and called the police from a friend?s house. When

the police arrived, ?[t]hey laughed in everyone?s faces? while his ?grandmother

was sitting there crying.? Prospective Juror No. 550 said that ?nothing ever came

of? the police investigation, but ?[t]he streets found out who . . . did it. And the

streets dealt with it.? The prospective juror explained that he was not involved

24


because he was 11 years old, but ?[t]he people who . . . allegedly robbed my

grandmother was run out of town.?

Prospective Juror No. 550 had worked for his former employer for four

months, and for the past four months had been working for a temporary

employment agency and ?build[ing] computers at home on the side.? When

defense counsel asked if serving as a juror would pose a financial hardship, the

prospective juror answered: ?Money doesn?t bother me. A lot of people get

caught behind money. They have to have it. It?s like a disease . . . .? The

prospective juror explained that he lived rent free in a van on his father?s property,

so being a juror would not pose a financial hardship because he was ?not living in

a money based world.? Prospective Juror No. 550 stated that he had gone to

school until ?about eleventh grade. I had to go out [to] work and eat after that.?

Just before counsel began to exercise their peremptory challenges, the

prosecutor informed the court that he intended to exercise a peremptory challenge

against Prospective Juror No. 550, who was the ?one African American man who

remains in the panel.? Defense counsel indicated he would object and ?make a

Wheeler-Batson motion.? Later that day, the prosecutor exercised a peremptory

challenge against Prospective Juror No. 550 and he was excused. Defendant

objected and moved for a mistrial. Defense counsel stated that ?out of our panel of

four hundred people or so,? there were two African-Americans, one of whom the

parties stipulated could be excused on the basis of hardship. Defense counsel

argued that the prosecutor?s peremptory challenge created ?its own pattern? of

excluding prospective jurors on the basis of race ?because of the sense he is the

only one.?

Without determining whether defendant had made a prima facie showing of

group bias, the court asked the prosecutor to explain his reasons and the prosecutor

stated that he exercised a peremptory challenge against Prospective Juror No. 550

25


?not because he is [B]lack, but because he is irresponsible. I feel that at age thirty-

one he is under-employed. He has not had significant employment in his life. He

now . . . lives out of his van on his father?s property.? The prosecutor noted that

the prospective juror?s father apparently had served time in prison. The prosecutor

described as ?bizarre? the prospective juror?s description of the home invasion

robbery by men wearing beekeeper hats, saying: ?I still don?t understand exactly

what happened.? The prosecutor believed Prospective Juror No. 550 had not

?been entirely forthright or at least accurate in his description of that incident. He

claims . . . he has no bias against law enforcement, but I have a doubt about that

self-stated state of mind.?

The prosecutor had obtained the prospective juror?s criminal history and

believed that the prospective juror had ?understate[d] his criminal record? failing

to mention he had misdemeanor convictions for resisting a police officer and petty

theft as well as a probation violation. The prosecutor concluded: ?In sum, I just

don?t feel that this young man has demonstrated the kind of personal responsibility

that I would like to see in a juror sitting in a capital case.?

The trial court denied defendant?s motion for mistrial, stating the court had

reread the reporter?s transcript of the voir dire of the challenged juror and

concluded ?there is just lots of reasons I think besides being [B]lack that a

challenge could be exercised.?

?[T]he use of peremptory challenges to remove prospective jurors on the

sole ground of group bias violates the right to trial by a jury drawn from a

representative cross-section of the community under article I, section 16, of the

California Constitution. This does not mean that the members of such a group are

immune from peremptory challenges: individual members thereof may still be

struck on grounds of specific bias . . . .? (People v. Wheeler (1978) 22 Cal.3d 258,

276-277.) In Batson v. Kentucky (1986) 476 U.S. 79, 89, the United States

26


Supreme Court held that ?the Equal Protection Clause forbids the prosecutor to

challenge potential jurors solely on account of their race or on the assumption that

black jurors as a group will be unable impartially to consider the State?s case

against a black defendant.?

The decision in Batson set forth a three-step procedure. ?First, the

defendant must make out a prima facie case ?by showing that the totality of the

relevant facts gives rise to an inference of discriminatory purpose.? [Citation.]

Second, once the defendant has made out a prima facie case, the ?burden shifts to

the State to explain adequately the racial exclusion? by offering permissible race-

neutral justifications for the strikes. [Citations.] Third, ?[i]f a race-neutral

explanation is tendered, the trial court must then decide . . . whether the opponent

of the strike has proved purposeful racial discrimination.? ? (Johnson v. California

(2005) 545 U.S. 162, 168, fn. omitted.)

Quoting our decision in People v. Zambrano (2007) 41 Cal.4th 1082, 1106,

defendant urges this court to ? ?assume, without deciding, that defendant did

satisfy the first, or prima facie, step of Batson and Wheeler? and proceed directly

to the second and third steps of the Wheeler/Batson analysis.? The Attorney

General agrees that because the prosecutor presented his reasons for exercising the

peremptory challenge, ?the question of whether defense counsel established a

prima facie case is immaterial.? We thus proceed to determine whether the trial

court erred in finding that the prosecutor?s reasons for exercising his peremptory

challenge against Prospective Juror No. 550 did not show purposeful racial

discrimination. (People v. Mills (2010) 48 Cal.4th 158, 174; People v. Lenix

(2008) 44 Cal.4th 602, 613, fn. 8 [?Here, the trial court requested the prosecutor?s

reasons for the peremptory challenges and ruled on the ultimate question of

intentional discrimination. Thus, the question of whether defendant established a

prima facie case is moot.?]; but see People v. Taylor (2010) 48 Cal.4th 574, 614

27


[?the trial court impliedly found defendant failed to establish a prima facie case

under Wheeler/Batson,? despite the court?s having asked the prosecutor to state

her reasons for exercising the peremptory challenge].)

?A prosecutor asked to explain his conduct must provide a ? ?clear and

reasonably specific? explanation of his ?legitimate reasons? for exercising the

challenges.? [Citation.] ?The justification need not support a challenge for cause,

and even a ?trivial? reason, if genuine and neutral, will suffice.? [Citation.]?

(People v. Lenix, supra, 44 Cal.4th 602, 613.) ? ?[W]e review a trial court?s

determination regarding the sufficiency of a prosecutor?s justifications for

exercising peremptory challenges ?with great restraint.? ? [Citation.] The trial

court?s determination is a factual one, and as long as ? ? ?the trial court makes a

?sincere and reasoned effort? to evaluate the nondiscriminatory justifications

offered, its conclusions are entitled to deference on appeal? ? ? when they are

supported by substantial evidence. [Citation.]? (People v. Catlin (2001) 26

Cal.4th 81, 117.)

Defendant argues that the trial court failed to determine whether the

prosecutor?s stated reasons for exercising the peremptory challenge were

pretextual and instead ?found in the abstract that there were ?lots of reasons . . .

besides being [B]lack that a challenge could be exercised.? ? Defendant is correct

that the pertinent question is not whether, in the abstract, there were valid reasons

the prosecutor might have relied upon in exercising the peremptory challenge, but

whether the prosecutor actually relied upon a nondiscriminatory reason. We

conclude, however, that defendant parses the trial court?s statement too closely in

arguing that the trial court failed to address the proper issue. The prosecutor stated

numerous nondiscriminatory reasons for exercising a peremptory challenge

against Prospective Juror No. 550. The trial court carefully considered

defendant?s motion for a mistrial and the prosecutor?s reasons, taking the time to

28


review the reporter?s transcript of the voir dire. In context, therefore, we conclude

that the trial court?s statement in denying defendant?s motion for a mistrial that

?there is just lots of reasons I think besides being [B]lack that a challenge could be

exercised? was an inartful way of saying that the prosecutor, in fact, had relied

upon reasons other than the prospective juror?s race in exercising the peremptory

challenge.

?When the prosecutor?s stated reasons are both inherently plausible and

supported by the record, the trial court need not question the prosecutor or make

detailed findings.? (People v. Silva (2001) 25 Cal.4th 345, 386.) In the present

case, the prosecutor?s stated reasons for exercising a peremptory challenge against

Prospective Juror No. 550 are quite plausible and are amply supported by the

record. While it would have been preferable for the trial court to have expressly

found that the prosecutor relied upon a nondiscriminatory reason, no such express

finding was required. The trial court did not err in denying the motion for a

mistrial.

B. Guilt Phase Issues

1. Miranda

Defendant contends the trial court deprived him of his rights under the

Fifth, Eighth, and Fourteenth Amendments by admitting into evidence an out-of-

court statement he made at the scene of the crime while allegedly in custody and

without having been advised of his rights as required by the decision in Miranda v.

Arizona (1966) 384 U.S. 436.

Deputy Sheriff Michael Abbott testified that he and his partner arrived at

Rio Linda High School at 4:15 p.m. on May 16, 1997, in response to a radio call.

Several police officers and firefighters were already at the scene. Deputy Abbott

went into the shop classroom and saw the victim lying in a pool of blood. He left

29


the classroom and was told by a school district police officer that defendant had

discovered the victim?s body. The officer also said that blood had been discovered

in a bathroom, and defendant had been seen washing his hands in that bathroom.

Before Deputy Abbott went to examine the bathroom, he asked a fellow deputy to

have defendant detained.

Deputy Mark Bearor approached defendant and asked him to accompany

him to his patrol vehicle, telling defendant that ?he was a witness in this crime and

that we had detectives en route and due to the severity of the crime the detectives

would probably be handling the interviews of the primary witnesses and that he

was going to be detained.? Defendant agreed and Deputy Bearor placed defendant

in the backseat in order to ?detain Mr. Thomas for the detectives . . . so that they

could interview him.? The rear doors of the patrol vehicle could not be opened

from the inside. The deputy turned up the air conditioning and closed the doors.

He did not search or handcuff defendant.

After defendant had been in the backseat of the patrol car for about 20

minutes, Deputy Abbott returned, let defendant out of the patrol car, asked him to

come to the rear of the vehicle, and asked defendant to tell him ?what had

happened that day.? Defendant replied: ?I am a convict. I won?t go to court about

this.? Deputy Abbott explained that he was not there to discuss whether defendant

would go to court; he just wanted to know what had happened. Defendant

repeated that he did not want to go to court and testify, but eventually told Deputy

Abbott that he was a substitute janitor and had worked at the school for a few

days. He discovered the victim?s body and notified two other janitors, who

notified the principal. During the interview, defendant pointed out that he had

blood on himself. Deputy Abbott spoke to defendant for about 20 to 30 minutes,

during which time an investigator collected a shirt that defendant had in his back

30


pocket. Deputy Abbott then returned defendant to the backseat of the patrol car

and went to interview another witness.

Following argument by the parties, the trial court denied defendant?s

motion to suppress evidence, finding that defendant had not been in custody when

he was interviewed by Deputy Abbott.

?In reviewing constitutional claims of this nature, it is well established that

we accept the trial court?s resolution of disputed facts and inferences, and its

evaluations of credibility, if supported by substantial evidence. We independently

determine from the undisputed facts and the facts properly found by the trial court

whether the challenged statement was illegally obtained.? (People v. Cunningham

(2001) 25 Cal.4th 926, 992.)

In Miranda, the high court held, ?the prosecution may not use statements,

whether exculpatory or inculpatory, stemming from custodial interrogation of the

defendant unless it demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination. By custodial interrogation, we

mean questioning initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of action in any

significant way.? (Miranda v. Arizona, supra, 384 U.S. at p. 444.)

Defendant argues that he was in custody for purposes of Miranda when he

was detained in the patrol car. But we need not decide whether defendant was in

custody when he was in the backseat of the patrol car, because he was not

questioned during that time. Even were we to conclude that defendant had been in

custody when he was detained in the patrol car, it does not necessarily follow that

he remained in custody when he was released from the vehicle before he was

interviewed.

In People v. Holloway (2004) 33 Cal.4th 96, police officers learned that the

defendant had been an acquaintance of the deceased rape victim and was on parole

31


for assault. The officers contacted the local parole office. When the defendant

arrived at the parole office for drug and alcohol testing, the parole officer on duty

handcuffed him and telephoned the police officers, who said they wished to speak

to the defendant and it would take about 20 minutes for them to arrive. When the

officers arrived, they were surprised to find the defendant in handcuffs and

immediately had him released. The defendant agreed to accompany them to the

police station where he was questioned and then driven home. We upheld the trial

court?s finding that Miranda warnings were not required because the defendant

had not been in custody when he was questioned, holding that ?no reasonable

person would believe under these circumstances that he was compelled to

accompany the officers or to remain with them during the interview.? (People v.

Holloway, supra, 33 Cal.4th at p. 120.)

The court in In re Joseph R. (1998) 65 Cal.App.4th 954, held that a suspect

was not in custody when questioned despite having previously been handcuffed

and detained in a patrol vehicle. A citizen told a police officer that he had seen

two boys throw rocks at a passing bus and then run into a residence. The officer

went to the residence and told one of the boys that a witness had seen him throw a

rock at a bus. When the boy denied any knowledge of the incident, the officer

handcuffed him and placed him in the back of his patrol car for about five minutes.

When the officer returned, he took the boy out of the vehicle and removed the

handcuffs. The officer suggested it was ? ?a pretty stupid thing? ? to throw rocks

at a bus, and the boy agreed, stating: ? ?Yeah, it was a pretty dumb thing for us to

do.? ? (Id. at p. 957.)

The Court of Appeal ruled that the juvenile had not been in custody when

he was questioned. The court reasoned that ?because the time during which

Joseph was restrained was extremely short, it seems likely he was handcuffed and

placed in the police car merely so the officer could maintain control of the minor

32


while he carried on another portion of his investigation.? (In re Joseph R., supra,

65 Cal.App.4th at p. 958.) It was reasonable for the officer to detain the juvenile

?pending questioning, while he tended to other details of his investigation, to make

sure the 14-year-old did not do something stupid like fleeing.? (Id. at p. 958, fn.

4.) The court distinguished cases in which a suspect was questioned while being

detained in a vehicle, stating: ?This is not to say that the minor would not have

been in custody for purposes of Miranda had he been questioned while he was still

in the car and under the officer?s control. In that case, the interrogation would

have been accompanied by restraints that are normally associated with an arrest,

thereby requiring Miranda warnings be administered. [Citations.]? (Id. at p. 958,

fn. 5.)

In holding that Joseph was not in custody at the time he was questioned, the

court relied upon the decision in People v. Taylor (1986) 178 Cal.App.3d 217,

which held that Miranda warnings were required when the suspect was questioned

following a high speed chase while being held at gunpoint surrounded by several

officers with a police helicopter overhead. (Taylor, supra, at p. 229.) The Court

of Appeal added: ?We caution we do not suggest that Miranda warnings must be

given in each instance where police officers initially use weapons or other force to

effect an investigative stop. For Miranda purposes, we think the crucial

consideration is the degree of coercive restraint to which a reasonable citizen

believes he is subject at the time of questioning. Police officers may sufficiently

attenuate an initial display of force, used to effect an investigative stop, so that no

Miranda warnings are required when questions are asked.? (Id. at p. 230.)

The trial court did not err in denying defendant?s motion to suppress his

statements made at the scene of the crime because he was not in custody for

purposes of Miranda when he was questioned.

33


2. CALJIC No. 2.28

Defendant contends the trial court violated his rights under the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the United States Constitution by

instructing the jury pursuant to CALJIC No. 2.28 (6th ed. 1996) that defendant

failed to timely disclose the evidence offered by defense expert witness Brent

Turvey and that ?[t]he weight and the significance of any delayed disclosure are

matters for your consideration.?

The ?Witness List? filed by the defense on the second day of trial, July 10,

2000, included ?Brent Turvey, M.S.? On Friday, August 18, 2000, near the end of

the People?s case-in-chief, the prosecutor announced that he had received ?no

reports? from Turvey. The following Monday, defense counsel explained that

Turvey was a crime scene reconstruction expert who had been working in Alaska.

Defense counsel had met with him on the previous Friday and they discussed

?basically what his testimony would be.? Defense counsel then left the prosecutor

a voicemail message on Sunday stating he would provide a written summary of

the witness?s expected testimony the following day.

The prosecutor moved to exclude Turvey as a witness ?for failure to

comply with the discovery laws under [section] 1054.? The prosecutor

represented that defense counsel had given him the witness?s resume and the

prosecutor?s investigator had contacted Turvey, but Turvey had refused to discuss

his proposed testimony without defense counsel?s approval. The prosecutor stated

that he was not prepared to cross-examine the witness. At that point, defense

counsel gave the prosecutor a two-page written summary of Turvey?s proposed

testimony. The trial court stated it would be a ?drastic sanction? to exclude

Turvey as a witness ?at this point in the trial? and offered instead to grant the

prosecutor a continuance to prepare for cross-examination. When the jury

returned to the courtroom, the prosecution rested.

34


Defendant called Turvey as a witness during the afternoon session that day.

Turvey testified that he holds a masters degree in forensic science and co-authored

a book entitled ?Criminal Profiling.? He had reviewed the police reports in the

present case, including photographs and one videotape, had reviewed the autopsy

reports and photographs, and recently had visited the crime scene. Turvey

surmised that defendant and the victim had engaged in sexual activity in the shop

classroom near where the used tampon was left in the paper cup, and suggested

that the victim had removed her tampon herself before the sexual activity, because

it had been carefully placed in a paper cup, whereas a rapist would have discarded

it on the floor. He further suggested the victim then moved a short distance to a

more private place near where a tampon wrapper and the victim?s purse were

discovered, to replace her clothing and insert a new tampon, where she was killed.

Turvey testified the fact that no weapon was found in defendant?s

possession suggests that he used tools found in the shop as weapons, which

suggests the murder was ?a spontaneous act born[ ] . . . of anger.? The lack of

defensive wounds on the victim?s hands indicates it was a surprise attack. The

hasty attempts to conceal the evidence, such as wiping down the crowbar,

indicates a lack of planning. Turvey used the term ?overkill,? which he defined as

?an attack which involves more force than is necessary to subdue the victim, or in

this case to kill the victim.? He testified that the overkill and lack of planning

showed that the apparent motivation for the attack was spontaneous unplanned

anger, although he could not say what had provoked the anger. Turvey criticized

the police investigation as ?incomplete.?

At the conclusion of Turvey?s direct testimony, the court asked the

prosecutor if he needed a continuance to prepare for cross-examination, and the

prosecutor replied that he wished to begin cross-examination immediately. After

Turvey was excused as a witness, the court discussed with counsel, outside the

35


presence of the jury, whether to instruct the jury pursuant to the 1996 version of

CALJIC No. 2.28. The court stated at one point that it was ?leaning? against

giving the instruction but later decided to give the instruction, describing it as ?a

relatively benign instruction? and ?a lesser sanction? than excluding Turvey?s

testimony. The court found that ?the People have, in fact, been prejudiced.?

Defendant counters that ?there is no evidence that the prosecution was prejudiced

by the late disclosure of Turvey?s findings,? noting that the prosecutor declined

the court?s offer of a continuance and extensively cross-examined the witness.

Section 1054.3, subdivision (a) provides: ?The defendant and his or her

attorney shall disclose to the prosecuting attorney: [?] (1) The names and

addresses of persons . . . he or she intends to call as witnesses at trial . . . including

any reports or statements of experts made in connection with the case . . . .?

Section 1054.5, subdivision (b), authorizes the court to ?make any order necessary

to enforce the provisions of this chapter,? including ?prohibiting the testimony of a

witness,? and further provides that ?the court may advise the jury of . . . any

untimely disclosure.?

The court instructed the jury pursuant to the 1996 version of CALJIC

No. 2.28 that ?[t]he prosecution and the defense are required to disclose to each

other before trial the evidence each intends to present at trial so as to promote the

ascertainment of the truth? and ?[i]n this case, the Defendant has failed to timely

disclose the following evidence: of Brent Turvey.? The court further instructed

the jury that ?[t]he weight and significance of any delayed disclosure are matters

for your consideration. However, you should consider whether the untimely

36


disclosed evidence pertains to a fact of importance, something trivial or subject

matters already established by other credible evidence.?4

Defendant points out that three decisions of the Court of Appeal have

criticized the 1996 version of CALJIC No. 2.28. The court in People v. Bell

(2004) 118 Cal.App.4th 249 reversed the defendant?s convictions of murder and

attempted robbery because the court instructed the jury pursuant to the 1996

version of CALJIC No. 2.28 that the defendant had failed to timely disclose

statements given by his alibi witnesses. Bell was identified in a photographic

lineup, a live lineup, and at trial by two eyewitnesses. Bell claimed that he was

out of town when the crime was committed and supported his alibi with the

testimony of three witnesses. Defense counsel, however, had not given the

prosecutor the statements of the alibi witnesses until 10 days before trial.

The Court of Appeal held that the trial court erred in instructing the jury

pursuant to the 1996 version of CALJIC No. 2.28 that ?the Defendant failed to

timely disclose? the statements of the witnesses, pointing out that ?[t]he failure

here belonged to counsel and his investigator? and ?[i]t was misleading to suggest

4

The complete instruction was as follows: ?The prosecution and the defense

are required to disclose to each other before trial the evidence each intends to
present at trial so as to promote the ascertainment of the truth. Delay in the
disclosure of evidence may deny a party a sufficient opportunity to subpoena
necessary witnesses or produce evidence which may exist to rebut the non-
complying party?s evidence. [?] Disclosures of evidence are required to be made at
least 30 days in advance of trial. Any new evidence discovered within 30 days of
trial must be disclosed immediately. In this case, the Defendant has failed to
timely disclose the following evidence: of Brent Turvey. [?] Late disclosure of the
evidence was without lawful justification; however, the Court has, under the law,
permitted the production of this evidence during the trial. [?] The weight and
significance of any delayed disclosure are matters for your consideration.
However, you should consider whether the untimely disclosed evidence pertains to
a fact of importance, something trivial or subject matters already established by
other credible evidence.?

37


that ?the defendant? bore any responsibility . . . .? (People v. Bell, supra, 118

Cal.App.4th at p. 255.) The instruction also was deficient in informing the jury

that ?[t]he weight and significance of any delayed disclosure are matters for your

consideration? (id. at p. 254), because it offered ?no guidance on how this failure

might legitimately affect their deliberations? (id. at p. 255), pointing out that there

was no evidence that the ?tardy disclosure? had actually deprived the prosecutor

?of the chance to subpoena witnesses or marshal evidence in rebuttal? (ibid.).

Finally, the jury was not told that the discovery violation was insufficient of itself

to prove guilt. ?As a result, the jurors may have concluded they were free to find

Bell guilty merely because he failed to comply with the discovery statute.? (Id. at

p. 256.)

The error in Bell was prejudicial. ?The prosecution?s case was not

overwhelming. There was no physical evidence tying Bell to the murder scene.?

(People v. Bell, supra, 118 Cal.App.4th at p. 257.) One of the two eyewitnesses

had seen the assailant for less than 20 seconds and ?[t]he credibility of the other

was impeached by the admission of evidence that she was a frequent liar and had

suffered prior misdemeanor convictions.? (Ibid.) The alibi witnesses were ?a

critical part of Bell?s case? and the prosecutor relied upon the delay in disclosing

the statements of the witnesses and on the 1996 version of CALJIC No. 2.28

during closing argument. (Bell, supra, at p. 257.)

The Court of Appeal in People v. Cabral (2004) 121 Cal.App.4th 748

followed the decision in Bell and reversed the defendant?s conviction of forging a

check provided by his employer to pay for a business expense by cashing the

check and keeping the proceeds. The court held it was reversible error to instruct

the jury pursuant to former CALJIC No. 2.28 that it could consider the ?weight

and significance? of defense counsel?s delayed disclosure of the testimony of the

38


defendant?s wife that the defendant had permission to cash the check. (Id. at

p. 753.)5

But the Court of Appeal in People v. Saucedo (2004) 121 Cal.App.4th 937

ruled that the trial court?s error in instructing the jury pursuant to the 1996 version

of CALJIC No. 2.28 did not require reversal of the resulting conviction. Saucedo

and a companion robbed three men at gunpoint and beat them severely. After the

trial had begun, defense counsel informed the prosecutor that Saucedo?s mother

and sister would testify as alibi witnesses. The court permitted the testimony but

instructed the jury pursuant to the 1996 version of CALJIC No. 2.28.

The Court of Appeal recognized that the 1996 version of CALJIC No. 2.28

was ?a problematic jury instruction? (People v. Saucedo, supra, 121 Cal.App.4th

at p. 942) and shared the concerns expressed in the decisions in Bell and Cabral.

Further, the court ?question[ed] the appropriateness of injecting matters of

compliance with pretrial procedure rules into the jury?s evaluation of the evidence

and deliberations on substantive offenses.? (People v. Saucedo, at p. 943.)

Nevertheless, the Court of Appeal ruled that the error was harmless because the

1996 version of CALJIC No. 2.28 ?was merely a vehicle for credibility challenges

that would have been made even in the absence of the instruction,? (Saucedo, at

p. 943) pointing out that the prosecutor focused in argument on the last-minute

nature of Saucedo?s alibi defense and on the credibility of the witnesses rather

than on the discovery violation. The court concluded, ?it was not CALJIC

5

The Court of Appeal in People v. Lawson (2005) 131 Cal.App.4th 1242

reversed the defendant?s conviction for possession of cocaine base because the
trial court not only erroneously instructed the jury pursuant to the 1996 version of
CALJIC No. 2.28 that the defense failed to provide discovery, but also excluded
the defendant?s sole witness from testifying, thereby forcing the defendant to
testify and allowing the prosecutor to impeach the defendant with his prior
convictions.

39


No. 2.28 that made the alibi defense implausible but its inexplicable

materialization . . . like Botticelli?s Venus emerging fully formed from the

sea . . . .? (People v. Saucedo, supra, 121 Cal.App.4th at p. 944.)

This court has not addressed the propriety of the 1996 version of CALJIC

No. 2.28, but in People v. Riggs (2008) 44 Cal.4th 248 we discussed a precursor to

that instruction. After the trial in Riggs had begun and the prosecution had

completed its case-in-chief, defendant disclosed to the prosecutor that he intended

to present two alibi witnesses. The trial court permitted the witnesses to testify,

but instructed the jury that ?[t]here has been evidence presented to you from which

you may find that there was a failure by the defense to provide timely notice to the

prosecution of the names and addresses of [the alibi witnesses]. [?] You may

consider such failure, if any, in determining the weight to be given to the

testimony of such witnesses. The weight to be given such failure is entirely a

matter for the jury?s determination.? (Id. at pp. 304-305.) We held that the trial

court did not err in giving this instruction and, in any event, any such error was

harmless.

We distinguished the Court of Appeal decision in Bell. One concern

expressed in Bell was that ?[i]t was misleading to suggest that ?the defendant? bore

any responsibility? for his attorney?s failure to provide discovery (People v. Bell,

supra, 118 Cal.App.4th at p. 255), but in Riggs, the defendant had represented

himself at trial (People v. Riggs, supra, 44 Cal.4th 248, 307). We also relied upon

the fact that the jury instruction in Riggs ?limited the inferences the jury could

draw by expressly directing the jury that it could consider a discovery violation in

assessing the weight of the alibi testimony.? (Ibid.)

In any event, we concluded that any error in giving the instruction was

harmless because the evidence of guilt ?was entirely overwhelming, especially in

comparison to the exceedingly dubious alibi testimony provided by defendant?s

40


family members. [Citation.]? (People v. Riggs, supra, 44 Cal.4th 248, 311.) And

the challenged jury instruction ?was but a small part of the prosecution?s

devastating arguments concerning the credibility of the alibi testimony.? (Ibid.)

Unlike the instruction given in Riggs, the instruction in the present case was

based upon the 1996 version of CALJIC No. 2.28 and suffers from many of the

same deficiencies identified in Bell. As in Bell, ?[i]t was misleading to suggest

that ?the defendant? bore any responsibility? (People v. Bell, supra, 118

Cal.App.4th at p. 255) for his attorney?s failure to provide discovery, and the

instruction also was deficient in informing the jury that ? ?[t]he weight and

significance of any delayed disclosure are matters for your consideration,? ?

because it offered ?no guidance on how this failure might legitimately affect their

deliberations? (id. at p. 255). As in Bell, there was no evidence that the ?tardy

disclosure? had actually deprived the prosecutor ?of the chance to subpoena

witnesses or marshal evidence in rebuttal.? (Ibid.) The prosecutor declined the

trial court?s offer of a continuance and vigorously cross-examined the expert

witness. We conclude, therefore, that the trial court erred in instructing the jury

pursuant to the 1996 version of CALJIC No. 2.28.6

We further conclude, however, that this error does not require reversal of

the conviction, because it is not reasonably probable that an outcome more

favorable to defendant would have resulted absent the error (People v. Watson

(1956) 46 Cal.2d 818, 836), and any federal constitutional error was harmless

beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24). The

evidence that defendant had sexual intercourse with the victim and then killed her


6

CALJIC No. 2.28 has since been modified to address the concerns

expressed in People v. Bell, supra, 118 Cal.App.4th 249 and its progeny.
(CALJIC 2.28 (Fall 2010 ed.). See also CALCRIM No. 306.)

41


was overwhelming, so much so that defendant did not dispute either fact.

Defendant?s primary defense was that he did not murder the victim during the

commission of rape, because the victim had consented to sexual intercourse. This

scenario, while not impossible, was highly improbable and supported by only

flimsy evidence. It strains credulity to imagine that a bright, athletic, popular

student who was in her menstrual period would consent, within a few minutes, to

have intercourse on the dirty floor of a shop classroom with a substitute janitor

nearly twice her age whom she had just met. The only evidence to which

defendant could point to support this theory was that the tampon that had been

removed from the victim prior to intercourse was found in a cup rather than on the

floor, the victim had inserted a new tampon before she was murdered, the victim

might had gotten dressed a short distance from where she was murdered, and there

was no trauma to her genitalia.

There is nothing to indicate that the jury instruction based upon the 1996

version of CALJIC No. 2.28 affected the jury?s deliberations. The prosecutor did

not mention the instruction during his argument or refer to the delay by the

defense in providing discovery. The case was not close, and the jury reached its

verdict after about one full day of deliberations. We therefore conclude that the

error was harmless.

3. Videotape of Defendant

Defendant contends the trial court violated Evidence Code section 352 and

denied him his rights to due process and a fair trial under the Fifth, Eighth and

Fourteenth Amendments to the federal Constitution by admitting into evidence a

videotape of defendant unzipping his pants and examining his genitals while being

held in an interrogation room at the jail.

42


Evidence Code section 352 vests a trial court with discretion to ?exclude

evidence if its probative value is substantially outweighed by the probability that

its admission will . . . create substantial danger of undue prejudice . . . .? ?A trial

court?s exercise of discretion in admitting or rejecting evidence pursuant to

Evidence Code section 352 ?will not be disturbed on appeal unless there is a

manifest abuse of that discretion resulting in a miscarriage of justice.? [Citation.]?

(People v. Cain (1995) 10 Cal.4th 1, 33.)

Prior to trial, defendant moved to exclude a videotape taken of him while

he was alone in an interview room at the jail shortly after his arrest. Defendant is

shown unzipping his pants and examining his pelvic area. A second segment

recorded less than an hour later shows defendant again inspecting his pelvic area

and then raising his hands to his nose several times.

Defendant argued that the videotape should be excluded under Evidence

Code section 352 because it had no probative value, would be cumulative to the

DNA evidence that defendant?s sperm was recovered from the victim?s vagina,

and would be ?gratuitously inflammatory.? The trial court denied the motion to

exclude the evidence, ruling that ?the probative value substantially outweighs any

substantial danger of undue prejudice to the defendant.?

Defendant argues that the videotape had little or no probative value because

defense counsel had conceded in his opening statement that defendant had had

sexual intercourse with the victim. Even though defendant did not contest at trial

that he had engaged in sexual intercourse with the victim, ?he pleaded not guilty to

the charges, thereby putting in issue ? ?all of the elements of the offenses.? ?

[Citation.] . . . [?] ? ?As we have said, even where the defendant concedes some

aspect of a criminal charge, the prosecution is entitled to bolster its case, which

requires proof of the defendant?s guilt beyond a reasonable doubt, by presenting

evidence of the defendant?s consciousness of guilt.? ? [Citation.]? (People v.

43


Burney (2009) 47 Cal.4th 203, 245.) The videotape showing defendant apparently

checking himself for evidence that he had had sexual intercourse with the victim

was highly relevant to show his consciousness of guilt.

Defendant argues that the videotape was unduly prejudicial because

defendant?s ?actions in examining and handling his penis . . . may well have been

viewed by some jurors as perverse or deviant behavior.? The trial court?s finding

that defendant?s actions did not resemble masturbation or exhibitionism is

supported by substantial evidence. The trial court did not abuse its discretion in

ruling that the probative value of the videotape outweighed any prejudicial effect.

4. Prosecutorial Misconduct

Defendant contends the prosecutor committed misconduct during his

closing argument at the guilt phase of the trial by telling the jury that if they did

not find the special circumstances allegation true, defendant could be sentenced to

life in prison with the possibility of parole.

During his closing argument at the guilt phase of the trial, the prosecutor

said: ?The defense strategy in this case is to beat the special circumstance. If you

don?t find Mr. Thomas guilty of rape, they win the case. . . . [I]f you don?t find

him guilty of rape, and don?t find the special circumstance to be true, that?s a win

for Mr. Thomas. Life in prison with the possibility of parole.? Defendant did not

object. The prosecutor completed his argument and the court recessed for lunch.

When the court reconvened, defendant objected to the prosecutor?s

argument outside the presence of the jury and asked that the jury be given the

standard instruction not to consider punishment in determining defendant?s guilt.

The prosecutor responded that he did not concede that his argument was improper,

but he had no objection to the court giving the standard jury instruction. With the

agreement of both parties, the court brought in the jury and after observing that

44


?it?s been asserted that [the prosecutor] referred to punishment in a portion of his

closing argument,? instructed the jury ?that in the consideration of guilt or lack of

guilt the jury cannot be influenced by punishment.? The trial judge added that he

would ?read you formal instructions on that issue at a later time.? As part of the

jury instructions at the conclusion of the guilt phase, the court instructed the jury

pursuant to CALJIC No. 8.83.2 as follows: ?In your deliberations the subject of

penalty or punishment is not to be discussed or considered by you. That is a

matter which must not in any way affect your verdict or affect your finding as to

the special circumstance alleged in this case.?

It was improper for the prosecutor to argue to the jury that defendant could

be released on parole if it did not find the special circumstances allegation true.

The prosecutor in People v. Holt (1984) 37 Cal.3d 436 argued to the jury that if it

did not find that the defendant murdered the victim during the commission of a

robbery it ? ?just guaranteed [the defendant] a parole date.? ? (Id. at p. 457, fn. 14,

italics omitted.) We held: ?A defendant?s possible punishment is not a proper

matter for jury consideration. [Citation.] ?[T]he jury is not allowed to weigh the

possibility of parole or pardon in determining the guilt of the defendant . . . .?

[Citation.]? (Id. at p. 458.)

The prosecutor?s improper argument, however, did not prejudice defendant.

In Holt, we observed that ?[a]n admonishment to the jury that they were not to

consider the question of penalty might have had a curative effect,? but ?no

admonishment was given.? (People v. Holt, supra, 37 Cal.3d at p. 458.) The

same is not true here. The trial court instructed the jury as requested by defendant

that it ?cannot be influenced by punishment? in determining defendant?s guilt.

The court reiterated this admonishment in its instructions to the jury. In People v.

Stevens (2007) 41 Cal.4th 182, the prosecutor argued to the jury that if it found the

defendant guilty of second degree murder the jury ?can never find him guilty of

45


the special circumstance. And they save his life . . . .? (Id. at p. 205.) The

defendant objected and the trial court admonished the jury to disregard the

prosecutor?s comment. The court later instructed the jury not to consider penalty

or punishment in its deliberations. We affirmed the resulting judgment of

conviction, concluding there was ?no reasonable likelihood the remark misled the

jury as to whether it could consider punishment in its guilt deliberations.

[Citation.]? (Ibid.) We also presumed that the jury followed the court?s

instruction not to consider penalty in determining the defendant?s guilt. (Id. at

p. 206.)

The trial court in the present case admonished the jury shortly after the

prosecutor?s argument not to be influenced by punishment in determining

defendant?s guilt, and later instructed the jury to the same effect. We presume the

jury followed these instructions.

Defendant also argues that the prosecutor improperly expressed his

personal belief that the death penalty was the only appropriate punishment by

arguing: ?It is important that you hold Mr. Thomas responsible at the appropriate

level. You have to put the right label on it. We have to call this crime what it

was. It?s a first degree murder and rape.?

A prosecutor may not ?express a personal opinion or belief in a defendant?s

guilt, where there is substantial danger that jurors will interpret this as being based

on information at the prosecutor?s command, other than evidence adduced at

trial.? (People v. Bain (1971) 5 Cal.3d 839, 848.) But the prosecutor in this case

did not express his personal belief and did not suggest that his remarks were based

upon evidence that was not admitted at trial.

46


5. Photographs of Defendant?s Tattoos

Defendant contends the trial court violated his rights under the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the federal Constitution by admitting into

evidence several photographs of defendant taken on the day of the murder that

depict his many tattoos.

Following defense counsel?s opening statement in which he stated that the

defense theory was that defendant had had ?consensual sex? with the victim before

he murdered her, the prosecutor asserted outside the presence of the jury that

?defendant?s appearance on that day is now in issue? and announced his desire to

?show photos of what he looked like on that day.? Defense counsel responded

that there was no need to introduce photographs because defendant was sitting 25

feet from the jury and no effort had been made to conceal his tattoos. The trial

court tentatively ruled that the probative value of photographs of defendant taken

shortly after the crime would outweigh any prejudice, noting that the jury did not

have the opportunity to view defendant in as close proximity as had the victim.

The following day, the trial court made its final ruling that the probative value of

evidence of defendant?s appearance on the day of the crime ?far outweighs the

prejudicial value.?

The prosecution later introduced several photographs of defendant taken a

few hours after he was arrested. He is wearing denim jeans and a white T-shirt. A

shot of his head and torso shows a faint ?107? tattooed in large numbers on his

forehead and several tattoos on his chest and arms. A closeup of his head shows a

tattoo of a teardrop on his neck and another tattoo of ?107? on his neck. Closeup

photographs of defendant?s arms depict numerous tattoos, including another

?107.? The court instructed the jury that the photographs ?can only be used on the

issue of consent. In other words, what [the victim] actually could see on the day in

47


question. You cannot use it for any other issue or purpose other than the issue of

consent.?

?It is within a trial court?s discretion to exclude evidence if its probative

value is substantially outweighed by the probability that its admission would

create a substantial danger of undue prejudice. (Evid. Code, ? 352.) Our review

on this issue is deferential. A trial court?s decision whether to exclude evidence

pursuant to Evidence Code section 352 is reviewed for abuse of discretion.?

(People v. Mendoza (2007) 42 Cal.4th 686, 699.)

Defendant argues that the photographs were inherently prejudicial because

they constituted ?gang evidence,? citing decisions such as People v. Cardenas

(1982) 31 Cal.3d 897, 904, in which evidence was introduced that the defendant

was a member of a criminal street gang. But in the present case, no evidence was

introduced to show that defendant?s tattoos indicated he was a member of a gang.

Defendant cites no authority, and we are aware of none, that holds that evidence of

a defendant?s tattoos, standing alone, constitutes evidence of membership in a

gang. (Cf. People v. Medina (2009) 46 Cal.4th 913, 918 [gang tattoos plus

testimony of a gang expert].)

Even if it was apparent to the jury that defendant?s tattoos indicated that he

was a member of a gang, the trial court instructed the jury that the photographs

?can only be used on the issue of consent? and not for any other purpose. We

presume the jury followed the court?s instructions. (People v. Thompson (2010)

49 Cal.4th 79, 138.)

In light of the defense theory that the victim voluntarily consented to have

sexual intercourse with defendant, evidence of defendant?s appearance at the time

was highly probative. The trial court did not abuse its discretion in admitting the

photographs into evidence.

48


6. Cumulative Error

Defendant asserts that the cumulative impact of the errors he claims

occurred at the guilt phase of trial violated his rights under the Eighth and

Fourteenth Amendments to the United States Constitution. As explained above,

the only errors that occurred during the guilt phase of the trial was that the trial

court instructed the jury pursuant to the 1996 version of CALJIC No. 2.28 (ante, at

p. 41) and the prosecutor improperly argued to the jury that defendant could be

released on parole if it did not find the special circumstances allegation true (ante,

at p. 45). As explained above, neither of these errors, standing alone, requires

reversal of the judgment. Neither error increases the impact of the other and their

cumulative impact did not deprive defendant of a fair trial or his right to due

process of law.

C. Penalty Phase Issues

1. Absence of Defense Witnesses

Defendant claims that the trial court erred in barring his investigator from

testifying to explain why certain witnesses did not testify for the defense, which

violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to

the federal Constitution.

Defendant called as a witness Dr. Gretchen White, a forensic clinical

psychologist, who prepared a ?psychosocial history? of defendant starting from

when his great-great grandmother had been born into slavery. Defendant?s mother

drank heavily, left her husband when defendant and his brothers were young, and

moved with her sons to South Central Los Angeles where she collected welfare.

Defendant?s home was ?poorly kept.? His mother often was intoxicated and

would yell at her children, throw things at them, and demand money from them

even though she knew their only source of income was theft. Dr. White formed

the opinion that defendant?s family ?was extremely dysfunctional.?

49


On cross-examination, the prosecutor questioned Dr. White about the

reliability of some of the family members she had interviewed, and Dr. White

agreed that ?There were many people that I didn?t feel were completely reliable

historians.? She also agreed with the prosecutor that ?[w]e have to rely on your

good judgment to present a balanced picture . . . . [?] Because all these other

people that you?re talking about . . . all these family members of Mr. Thomas who

had direct observation of what life was like growing up in the Thomas household

they haven?t come to court to testify, have they?? The prosecutor established that

only one of defendant?s cousins had testified and neither his father nor his brothers

had testified. Defendant did not object.

Dr. White agreed that defendant?s family members ?were extremely eager

to provide information that they perceived as helpful to Mr. Thomas in this trial?

and she had to ?assess the reliability? of the information they provided because

?they were, you know ? of course, they?re very fond of him and, yes, I would feel

that they are biased toward him.? Dr. White conceded that interviewing family

members ?is a very different atmosphere? than ?obtaining testimony under oath or

statements under the formal circumstances of like an oath, a requirement to tell the

truth.? Defendant did not object.

After the defense case was completed, the court and counsel discussed jury

instructions outside the presence of the jury. The prosecutor said he was sure he

had included an instruction concerning the failure to call all logical witnesses but

would ?request that if it?s not already in there,? and the following colloquy

occurred.

?[Defense counsel]: Your Honor, regarding the failure to call all logical

witnesses we ? it was my intent to call our investigator . . . to testify perhaps at a

later phase and I thought just to make a record not for any particular purpose but to

make a record of what we had done to secure the attendance of these people and

50


some of them are very ill, of course some of them are dead, and there are just a

whole variety of problems with getting the witnesses to come and I?m a little bit

leery of ? I?ll have to look at the instruction but if that?s going to be held against

us ?

?THE COURT: No. No. I think ? no. What we?re saying is that neither

side is required to call all witnesses. That?s the same one I read in the guilt phase.

?[Defense counsel]: Okay.

?THE COURT: What I think is being said is that was not included in his

packet.

?[Prosecutor]: Right.

?THE COURT: And it ought to be.

?[Defense counsel]: Okay.

?THE COURT: No, we weren?t ? I wasn?t suggesting that counsel is

going to be able to argue that you should have had all those people here.?

Defendant now asserts that ?the defense moved to call its investigator to

testify before the jury as to why certain witnesses did not testify in court? and

argues that the trial ?court erred in excluding the defense investigator?s

testimony.? This is not a fair characterization of the record. When the prosecutor

asked for an instruction concerning the failure to call all logical witnesses, defense

counsel mentioned that he had intended to call his investigator as a witness and

expressed concern that the instruction requested by the prosecutor would mean

that defendant?s failure to call certain witnesses was ?going to be held against us.?

The court interjected to assure defense counsel that the court would instruct the

jury only that ?neither side is required to call all witnesses.? This apparently

satisfied defense counsel and he moved on to another topic. Defendant never

moved to re-open the evidentiary portion of the penalty phase and never called his

51


investigator as a witness. Consequently, the court never was called upon to rule

upon these issues. There was no error.

Defendant also relies upon the court?s remark that it was not ?suggesting

that counsel is going to be able to argue that you should have had all those people

here,? and complains that the prosecutor later did argue that defendant?s mitigating

evidence was ?not very reliable? because the jury had ?not heard from the best

witnesses on this point? and stated: ?You would think that one of his brothers

would come in to talk about him if there was something good to say about Alex

Thomas.? Later, the prosecutor reiterated: ?If there were witnesses out there who

had good things to say about Alex Thomas, who could provide evidence that you

could consider on his behalf, they would have been here.?

Defendant did not object to the prosecutor?s remarks and, thus, has

forfeited this claim. ? ?As a general rule a defendant may not complain on appeal

of prosecutorial misconduct unless in a timely fashion?and on the same ground?

the defendant made an assignment of misconduct and requested that the jury be

admonished to disregard the impropriety. [Citation.]? ? (People v. Hill (1998) 17

Cal.4th 800, 820.) In any event, the prosecutor?s remarks were proper. ?The

prosecutor was entitled to comment on the defense?s failure to call witnesses other

than defendant.? (People v. Taylor, supra, 48 Cal.4th 574, 633.)

2. Prosecutorial Misconduct

Defendant argues that several instances of prosecutorial misconduct

deprived him of his rights under the Sixth, Eighth, and Fourteenth Amendments to

the United States Constitution.

Defendant contends the prosecutor committed misconduct by arguing, as

noted above, that defendant?s mitigating evidence was ?not very reliable? because

the jury had ?not heard from the best witnesses on this point,? and by commenting

52


upon defendant?s failure to call logical witnesses, such as defendant?s brothers,

stating: ?If there were witnesses out there who had good things to say about Alex

Thomas . . . they would have been here.?

Defendant argues that this constituted misconduct because the prosecutor

knew defendant wanted to introduce evidence explaining why he had not called

certain witnesses, but had been prevented from doing so by the court?s denial of

his motion to call his investigator as a witnesses. As explained above, however,

defendant never moved to call his investigator as a witness and the court,

accordingly, did not deny such a motion. Defendant?s argument that the

prosecutor committed misconduct is based upon an erroneous premise.

Defendant also forfeited this issue by failing to object to the prosecutor?s

argument at trial. (People v. Hill, supra, 17 Cal.4th 800, 820.) Defendant asserts

an objection would have been futile because the court already had denied

defendant?s motion to call his investigator as a witness. As explained above, the

court did not make such a ruling. Defendant further argues that he was not

required to object because no admonition could have cured the harm. Defendant

cites no authority in support of this contention and we are aware of none. (See

People v. Champion (1995) 9 Cal.4th 879, 940 [?any conceivable prejudice . . .

could have been cured by a timely objection and admonition?].)

Defendant?s second claim of misconduct was preserved for review by a

timely objection. At a hearing outside the presence of the jury, the prosecutor

called Vincent McCowan, who was in custody serving a life sentence, to testify

that defendant had attacked him while they both were in jail. McCowan

acknowledged having been in the Los Angeles County jail in 1985 but then

declined to make any further statement, explaining that he was scheduled to

appear for sentencing the following month in federal court and did not ?want to

say anything that is going to jeopardize my case.? McCowan expressed a concern

53


for his safety, saying: ?I don?t think anyone can promise me my safety at this point

because I?m still incarcerated. Anything can happen.? He stated that he would

testify only if he were released from prison. When the prosecutor later asked,

outside the presence of the jury, if he was afraid to be labeled a ?snitch,? he

replied: ?You could say that.?

Defense counsel expressed concern that McCowan not be permitted to

refuse to testify before the jury, because the jury would infer he was afraid of

defendant. The prosecutor proposed that the court inform the jury that McCowan

refused to testify and direct the jury not to speculate concerning the reasons for his

refusal. The prosecutor further stated that he would not ?argue that the jury should

infer something from his refusal.?

Rather than call McCowan as a witness, the prosecutor called Monrovia

Police Officer Lee Woods, who in 1985 had been a Los Angeles County Deputy

Sheriff working at the Men?s Central Jail. McCowan was present in court, but did

not speak, and Officer Woods pointed out a scar on McCowan?s neck that

extended from his Adam?s apple almost to his left ear. McCowan then was

removed from the courtroom and Officer Woods testified that on the morning of

July 4, 1985, he heard defendant, who was a member of the Crips street gang, yell

?Cripin? for real? several times, and saw McCowan a few feet from defendant?s

cell holding an open wound on his neck. Defendant was holding what appeared to

be a toothbrush handle. Officer Woods testified that inmates sometimes insert

razor blades into toothbrush handles to use as weapons. Officer Woods called for

assistance. When Deputy Sheriff Richard Calzada arrived, he asked McCowan

what had happened, and McCowan replied: ?Thomas in cell nineteen cut me.?

McCowan was bleeding, but not heavily.

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Thereafter, the parties discussed how the jury should be instructed

regarding McCowan?s refusal to testify. The prosecutor argued that there was

?evidence in the record of this case which would permit the inference to be drawn

that Mr. McCowan refuses to testify for fear of his own safety.? The court

instructed the jury that it was ?allowed to consider the fact that Mr. McCowan

refused to testify concerning the occasion when he sustained the injury to his neck.

In hearings outside your presence Mr. McCowan refused to answer questions even

when told by me that he would be held in contempt of court. The evidence has

already shown that Mr. McCowan is currently serving a life sentence in prison.

As a practical matter, the Court can do nothing more to convince Mr. McCowan to

testify. You cannot draw any inference from Mr. McCowan?s refusal to testify.?

Sergeant Gerald Franks testified that he was a correctional officer with the

California Department of Corrections (now Department of Corrections and

Rehabilitation) and had interviewed McCowan when McCowan was sent to

prison. McCowan had listed defendant as an ?enemy,? explaining that defendant

had cut him on the neck.

Clark Mason, a newspaper reporter for the Santa Rosa Press Democrat,

testified that he recently had interviewed defendant, who said that he expected a

man whose throat he had slashed when they both were in jail to testify against him

at the penalty phase of his trial. Defendant explained that the man was a ?snitch?

and defendant was the only one he had trusted enough to let him get close.

During argument, the prosecutor recounted Mason?s testimony that

defendant smiled as he explained that he expected a man whose throat he had

slashed was going to testify against him, adding: ?Talk about remorse. Fifteen

years later, ladies and gentlemen, he?s boasting about it.? The prosecutor further

stated: ?Vincent McCowan didn?t testify because he wouldn?t. . . . He didn?t

testify probably because he doesn?t want to be a snitch; doesn?t want to go back to

55


prison being known to have testified against Mr. Thomas. He is afraid. And Mr.

Thomas is proud of it. He is proud of the fact that he can intimidate Vincent

McCowan.? The trial court overruled defendant?s objection that the prosecutor

was arguing facts outside the record, and the prosecutor continued: ?I am pointing

out that he boasted to Mr. Mason, the reporter for the Press Democrat. . . . He

boasted about trying to kill Vincent McCowan.?

Defendant asserts that the prosecutor committed misconduct by arguing

facts that were outside the record, thus denying him his Sixth Amendment right to

confront and cross-examine witnesses. ?While counsel is accorded ?great latitude

at argument to urge whatever conclusions counsel believes can properly be drawn

from the evidence [citation],? counsel may not assume or state facts not in

evidence [citation] or mischaracterize the evidence [citation].? (People v. Valdez

(2004) 32 Cal.4th 73, 133-134.) Defendant argues that no evidence was admitted

explaining why McCowan refused to testify.

The prosecutor was permitted to draw reasonable inferences from the fact

that defendant had admitted to a reporter that he had slashed McCowan?s throat

because McCowan was a snitch. It was reasonable for the prosecutor to infer from

this evidence that McCowan ?didn?t testify probably because he doesn?t want to

be a snitch? and was afraid ?to go back to prison being known to have testified

against Mr. Thomas.? It also was reasonable for the prosecutor to characterize as

boasting defendant?s admission to the reporter that he had attacked McCowan and

to draw the inference that defendant was proud of having slashed McCowan?s

throat. Finally, it was reasonable for the prosecutor to infer that defendant was

proud that his earlier attempt to kill McCowan for being a snitch had made

McCowan too intimidated to testify against him. There was no prosecutorial

misconduct.

56


3. Evidence That McCowan Identified Defendant as His Attacker

Defendant argues the trial court violated his rights under the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the United States Constitution by

admitting into evidence Vincent McCowan?s out-of-court statement identifying

defendant as the man who slashed his throat.

As noted above, when Deputy Calzada asked McCowan what had

happened, McCowan replied: ?Thomas in cell nineteen cut me.? Deputy Calzada

described McCowan as ?obviously distressed.? Over defendant?s hearsay

objection, the trial court admitted McCowan?s statement as a spontaneous

statement.

Defendant first argues that McCowan?s statement was not properly

admitted as a spontaneous statement under Evidence Code section 1240, which

states: ?Evidence of a statement is not made inadmissible by the hearsay rule if

the statement: [?] (a) Purports to narrate, describe, or explain an act, condition, or

event perceived by the declarant; and [?] (b) Was made spontaneously while the

declarant was under the stress of excitement caused by such perception.? ? ?To

render [statements] admissible [under the spontaneous declaration exception] it is

required that (1) there must be some occurrence startling enough to produce this

nervous excitement and render the utterance spontaneous and unreflecting; (2) the

utterance must have been before there has been time to contrive and misrepresent,

i.e., while the nervous excitement may be supposed still to dominate and the

reflective powers to be yet in abeyance; and (3) the utterance must relate to the

circumstance of the occurrence preceding it.? [Citations.]? (People v. Poggi

(1988) 45 Cal.3d 306, 318.) ?Whether the requirements of the

spontaneous statement exception are satisfied in any given case is, in general,

largely a question of fact. [Citation.] The determination of the question is vested in

57


the court, not the jury. [Citation.] In performing this task, the court ?necessarily

[exercises] some element of discretion . . . .? [Citation.]? (Ibid.)

Defendant argues that McCowan?s identification of defendant was not

spontaneous because it was ?made in response to questioning, after the incident

occurred.? ? ?Neither lapse of time between the event and the declarations nor the

fact that the declarations were elicited by questioning deprives the statements of

spontaneity if it nevertheless appears that they were made under the stress of

excitement and while the reflective powers were still in abeyance.? [Citation.]?

(People v. Poggi, supra, 45 Cal.3d at p. 319.) In Poggi, the victim?s identification

of her attacker in response to questioning by a police officer 30 minutes after the

incident was held to be spontaneous. (Id. at pp. 319-320.)

In the present case, McCowan identified defendant minutes after he was

attacked when he still was bleeding and ?obviously distressed.? ?[T]he discretion

of the trial court is at its broadest? when it determines whether an utterance was

made while the declarant was still in a state of nervous excitement. (People v.

Poggi, supra, 45 Cal.3d at p. 319.) The trial court in the present case did not

abuse that discretion.

Defendant also asserts that admitting McCowan?s out-of-court statement

violated his right to confront the witnesses against him under the decision in

Crawford v. Washington (2004) 541 U.S. 36, which held that admission of a

?testimonial? out-of-court statement violates the confrontation clause unless the

defendant had a prior opportunity to cross-examine the declarant. ?While the high

court declined to precisely define what constitutes a ?testimonial? statement, it held

that, at a minimum, testimonial statements include ?prior testimony at a

preliminary hearing, before a grand jury, or at a former trial; and . . . police

interrogations.? [Citation.] The court explained that the confrontation clause

addressed the specific concern of ?[a]n accuser who makes a formal statement to

58


government officers? because that person ?bears testimony in a sense that a person

who makes a casual remark to an acquaintance does not.? [Citation.]? (People v.

Gutierrez (2009) 45 Cal.4th 789, 812-813.)

In Davis v. Washington (2006) 547 U.S. 813, the high court held that a

victim?s out-of-court statements made to a 911 operator were not ?testimonial,?

explaining: ?Statements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the primary purpose

of the interrogation is to enable police assistance to meet an ongoing emergency.

They are testimonial when the circumstances objectively indicate that there is no

such ongoing emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution.?

(Id. at p. 822.)

The present case is similar to People v. Cage (2007) 40 Cal.4th 965, 972, in

which a treating emergency room physician asked the victim ? ?what happened.? ?

The victim responded that ? ?he had been held down by his grandmother and cut

by his mother.? ? (Ibid.) We held: ?Objectively viewed, the primary purpose of

the question, and the answer, was not to establish or prove past facts for possible

criminal use, but to help Dr. Russell deal with the immediate medical situation he

faced. It was thus akin to the 911 operator?s emergency questioning of [the

victim] in Davis.? (Id. at p. 986.)

We compared the physician?s question to the interrogation performed in the

hospital emergency room by a deputy sheriff, which produced testimonial

responses. We held that the deputy sheriff was not responding to an ongoing

emergency situation: ?[B]y the time [the deputy sheriff] spoke with [the victim] in

the hospital, the incident that caused [the victim]?s injury had been over for more

than an hour. The alleged assailant and the alleged victim were geographically

separated, [the victim] had left the scene of the injury, and . . . was in no danger of

59


further violence as to which contemporaneous police intervention might be

required.? (People v. Cage, supra, 40 Cal.4th at p. 985.)

In the present case, Deputy Calzada responded to a request for assistance,

found McCowan with his throat slashed, and asked what happened. Like the 911

operator in Davis, Deputy Calzada was responding to an emergency situation.

Like the emergency room physician in Cage, he asked the victim a simple

question to determine what had occurred so he could determine what needed to be

done to address the situation. Deputy Calzada did not conduct a formal

interrogation, and McCowan?s response was not testimonial within the meaning of

Crawford.

4. Testimony of Sergeant Franks

Defendant argues the trial court violated his rights under the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the federal Constitution by permitting

Sergeant Gerald Franks of the California Department of Corrections to testify that,

while in prison, defendant admitted assaulting Vincent McCowan. Specifically,

defendant argues he was in custody when he was questioned and should have been

given the warnings required by Miranda v. Arizona, supra, 384 U.S. 436.

At a hearing outside the presence of the jury, Sergeant Franks testified that

on May 15, 1986, he was working as a correctional counselor for the Department

of Corrections. He identified documents he had authored reflecting that he

conducted an ?initial processing interview? of Vincent McCowan when McCowan

was transferred from county jail to prison. Sergeant Franks did not remember

conducting that interview, but testified that he had written a report within 30

minutes of conducting it and described his standard custom and practice in

conducting such interviews.

60


Sergeant Franks asked McCowan if he had any enemies in the prison

system, and McCowan replied that defendant was an enemy because he had

slashed McCowan?s throat while they were both in county jail. Sergeant Franks

observed a recent scar on McCowan?s neck. Sergeant Franks then summoned

defendant to his office to verify the information he had received from McCowan.

Because he was in ?a secured facility,? defendant was released from his cell and

walked unescorted to Sergeant Frank?s office without being shackled or otherwise

restrained. Sergeant Franks did not administer Miranda warnings and defendant

?somewhat reluctantly? admitted that he had assaulted McCowan in county jail.

Defendant argued that his admission should have been excluded from

evidence because he had not been advised of his rights as required by the decision

in Miranda v. Arizona, supra, 384 U.S. 436. The trial court ruled that the decision

in Miranda did not apply because defendant ?was not interrogated for

prosecutorial reasons.?

We need not decide whether defendant should have been advised of his

Miranda rights because any error in admitting into evidence defendant?s

admission to Sergeant Franks was harmless beyond a reasonable doubt. (Arizona

v. Fulminante (1991) 499 U.S. 279, 310; Chapman v. California, supra, 386 U.S.

18, 24.) Sergeant Franks?s testimony that defendant reluctantly admitted

assaulting McCowan was cumulative to other, stronger evidence establishing that

fact. Officer Woods testified that he observed McCowan with his throat slashed.

Defendant was the only other person in the immediate vicinity; he was holding an

object that could have been a weapon and was yelling a gang slogan. Deputy

Calzada testified that McCowan told him ?Thomas in cell nineteen cut me.? The

jury was permitted to observe the scar on McCowan?s neck. A newspaper reporter

testified defendant told him that he expected a man whose throat he had slashed

when they both were in jail to testify against him at the penalty phase of his trial.

61


Defendant explained that the man was a ?snitch? and defendant was the only one

he trusted enough to get close to him. In light of this evidence, we conclude

beyond a reasonable doubt that the admission of defendant?s admission to

Sergeant Franks that he assaulted McCowan, even if erroneous, was harmless

beyond a reasonable doubt.

5. Ricardo Jones?s Preliminary Hearing Testimony

Defendant contends the trial court violated his rights to due process, to

confront witnesses, and to a reliable death penalty determination under the Fifth,

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution by

erroneously admitting into evidence a transcript of the preliminary hearing

testimony of Ricardo Jones.

During the penalty phase, the People introduced as evidence in aggravation

defendant?s 1985 prior conviction for voluntary manslaughter. The prosecutor

attempted to have Ricardo Jones testify to describe the circumstances of the

offense, but was unable to locate him and instead offered into evidence a

reporter?s transcript of Jones?s testimony at the preliminary hearing. (? 190.3

factor. (a)). Defendant objected that this violated his right under the federal

Constitution ?to be confronted with the witnesses against him.? (U.S. Const., 6th

Amend.; see Cal. Const., art. I, ? 15.)

District Attorney Investigators Mark Rall and Lodric Clark described their

two-month effort to secure Jones?s appearance at trial. They telephoned Jones

numerous times, attempted to arrange his transportation to the courthouse, issued

two subpoenas and a bench warrant, conducted local, state and federal record

checks on his name and aliases, canvassed Jones?s last known whereabouts, met

with individuals who knew him, and talked to Jones?s sister. Jones?s sister

informed Clark that her brother was an alcoholic and a drug addict and advised

62


him on where he might search, initially assuring Clark that she would be able to

locate Jones.

The trial court found that the prosecution had exercised due diligence and

permitted the reporter?s transcript of Jones?s preliminary hearing testimony to be

read to the jury.

A criminal defendant?s Sixth Amendment right ?to be confronted with the

witnesses against him? is not absolute. (U.S. Const., 6th Amend.; Chambers v.

Mississippi (1973) 410 U.S. 284, 295; People v. Cromer (2001) 24 Cal.4th 889,

897.) ?Traditionally, there has been ?an exception to the confrontation

requirement where a witness is unavailable and has given testimony at previous

judicial proceedings against the same defendant [and] which was subject to cross-

examination . . . .? (Barber v. Page [(1968)] 390 U.S. 719,] 722.)? (Cromer,

supra, 24 Cal.4th at p. 897.) ?Pursuant to this exception, the preliminary hearing

testimony of an unavailable witness may be admitted at trial without violating a

defendant?s constitutional right. [Citation.]? (People v. Herrera (2010) 49

Cal.4th 613, 621.)

Evidence Code section 1291, subdivision (a), provides: ?Evidence of

former testimony is not made inadmissible by the hearsay rule if the declarant is

unavailable as a witness and: [?] . . . [?] (2) The party against whom the former

testimony is offered was a party to the action or proceeding in which the testimony

was given and had the right and opportunity to cross-examine the declarant with

an interest and motive similar to that which he has at the hearing.? A witness is

considered ? ?unavailable? ? if ?[a]bsent from the hearing and the proponent of his

or her statement has exercised reasonable diligence but has been unable to procure

his or her attendance by the court?s process.? (Id., ? 240, subd. (a)(5).) Factors

that a court should consider in determining whether reasonable diligence has been

shown include the timeliness of the search, the importance of the proffered

63


testimony, and whether leads of the witness?s possible location were competently

explored. (People v. Cromer, supra, 24 Cal.4th at p. 904.)

Defendant concedes, as he must, that reasonable efforts were made to

secure Jones?s presence at trial. Indeed, this Court has held that less substantial

efforts, conducted closer to trial and for shorter periods of time, were sufficient to

enable a court to deem a witness ?unavailable? and admit the witness?s prior

recorded testimony. (People v. Hovey (1988) 44 Cal.3d 543, 562-563, [reasonable

diligence had been exercised when, for more than a month, investigators had

telephoned the witness, checked his arrest and drivers? license records, consulted

police and FBI reports, and attempted to locate the witness?s parents and in-laws];

People v. Wilson (2005) 36 Cal.4th 309, 341-342 [two-day effort to locate a

witness was sufficient and the prosecution was not obligated to try to locate the

witness?s family].)

Defendant relies upon the decision in People v. Louis (1986) 42 Cal.3d 969

to argue that while the prosecution made a ?reasonable effort? to find Jones, it

?did not exercise due diligence in preventing Jones from becoming absent in the

first place.? Specifically, defendant faults the prosecution for ignoring warning

signs indicating that Jones might not appear at trial, and for failing to take Jones

into custody to secure his attendance.

The circumstances in Louis were unusual. The defendant and four

codefendants were charged with murder, robbery and related charges. His

codefendants were soon apprehended and trial against them was set for February,

1981, but the defendant was not arrested until several months later. The

defendant?s preliminary hearing was held just prior to the trial of his codefendants,

and Gregory Tolbert testified that he overheard the defendant discuss the robbery

and admit the murder. (People v. Louis, supra, 42 Cal.3d at pp. 976-977.) At the

time he testified, Tolbert was ?in custody on a theft-related felony.? (Id. at

64


p. 977.) He ?admitted that he had used many aliases, that he had been in custody

several times since August 1980, and that on three occasions after he was released

he left town, failed to make required court appearances, and had to be arrested on

bench warrants in order to be brought to court.? (Ibid.) The prosecution also was

aware that Tolbert had several felony convictions, had been committed to a

hospital for the criminally insane, and apparently believed he stood to reap a

reward if the defendant was convicted as a result of his testimony. (Id. at p. 989.)

At the trial against the defendant?s codefendants, Tolbert, who was still in

custody ?on one theft-related felony and awaiting sentencing on another,? refused

to testify unless he would then be ?released on his own recognizance to spend the

weekend between the end of his testimony and his scheduled sentencing hearing

with an unnamed friend at an undisclosed address.? (People v. Louis, supra, 42

Cal.3d at p. 990.) The prosecutor agreed. (Ibid.) After he testified, Tolbert was

released and ?promptly disappeared.? (Id. at p. 978.) The prosecutor later

acknowledged that, although he believed Tolbert would appear for his sentencing

hearing, ? ?there was a very real possibility that the man would boogie, that he

wouldn?t show up.? ? (Id. at p. 992.)

At the defendant?s trial, the court found that Tolbert was unavailable as a

witness and admitted into evidence his testimony at the preliminary hearing.

(People v. Louis, supra, 42 Cal.3d at p. 978.) We reversed the resulting

conviction, holding that the trial court erred in finding that the prosecutor had

exercised reasonable diligence to procure Tolbert?s presence, because the

prosecution had failed to use reasonable means to prevent Tolbert from becoming

absent. (Id. at p. 991.)

65


This court noted that ?the diligence required of the prosecution to prevent

Tolbert from becoming absent was particularly high? because ?Tolbert was a

critical prosecution witness, and was known to be both unreliable and of suspect

credibility ? the very type of witness that requires, but is likely not to appear to

submit to, cross examination before a jury.? (People v. Louis, supra, 42 Cal.3d at

p. 991.) The prosecution, however, had ?failed to exercise virtually any effort to

prevent Tolbert from becoming absent.? (Ibid.) The prosecution?s ?single

purpose? was to secure Tolbert?s testimony at the first trial of the codefendants.

(Ibid.)

But it was more than the prosecution?s failure to prevent Tolbert?s absence

at the defendant?s trial that led this court to reverse defendant?s conviction. The

opinion in Louis concluded that the prosecution?s efforts to procure Tolbert?s

testimony at the first trial of the codefendants ?were not unlikely to lead to

Tolbert?s absence from his scheduled sentencing hearing and subsequently from

any future trial in this matter.? (People v. Louis, supra, 42 Cal.3d at p. 992.) The

opinion in Louis goes so far as to suggest ?something more than mere

indifference? on the part of the prosecution, stating that the prosecutor ?may have

taken no steps to prevent Tolbert?s disappearance after the first trial because he

had the testimony from defendant?s preliminary hearing which could be used if

Tolbert became unavailable. Indeed, the prosecutor may have taken no steps

because he hoped that Tolbert would disappear, since as the court recognized

?[Tolbert] would not look as good in person as he does in reading out of the

transcript . . . .? ? (Id. at p. 993, fn. 7, italics added.)

66


Subsequent cases have limited the holding in Louis to its peculiar facts.

The defendant in People v. Bunyard (2009) 45 Cal.4th 836 hired someone to kill

his pregnant wife. Randy Johnson testified that earlier the defendant repeatedly

had asked him to kill the victim, but he had refused. This court affirmed the

defendant?s conviction of first degree murder and upheld the special circumstance

finding, but reversed the judgment of death. Approximately one month before the

penalty phase retrial, a bench warrant was issued for Johnson when he failed to

respond to the prosecution?s subpoena.

Johnson was arrested on the warrant after the penalty phase retrial had

commenced and appeared for a hearing. The prosecutor informed the court that,

other than the bench warrant, there was no reason to hold Johnson in custody. A

sheriff?s officer, Sergeant Johnsen, assured the court that he could contact Johnson

when needed and the court released Johnson on his own recognizance, requiring

him to call Sergeant Johnsen each week and ordering him to return to court the

following month. Johnson returned to court as ordered the following month, and

appeared on two subsequent occasions as ordered, but then disappeared. The trial

court ruled that Johnson was unavailable as a witness and admitted into evidence

his testimony at the first trial.

We affirmed the resulting judgment of death, rejecting the defendant?s

argument that the trial court erred in releasing Johnson on his own recognizance

and holding that ?the trial court made a reasonable determination that Randy

Johnson would appear to testify, and the prosecution?s support for the trial court?s

decision did not constitute a lack of reasonable diligence.? (People v. Bunyard,

supra, 45 Cal.4th at p. 851.) The opinion in Bunyard acknowledged that ?the

decision to keep a material witness in custody involves balancing the [defendant?s]

right [to confront witnesses] against the substantial due process right of the

67


witness, who had not been charged with a crime, to not be unreasonably

incarcerated.? (Ibid.)

We distinguished the decision in Louis, noting that ?Johnson unlike

Tolbert, had no current charges pending against him . . . and therefore did not

represent an imminent flight risk? and that ?Johnson?s release on his own

recognizance was not undertaken in subordination to some other prosecutorial

objective, but was an attempt to balance Johnson?s liberty interests with

defendant?s right of confrontation.? (People v. Bunyard, supra, 45 Cal.4th at

p. 853.) We also compared Tolbert?s ?relatively minor? liberty interest in being

released for a weekend prior to being sentenced to Johnson?s ?considerable

greater? liberty interest in not being incarcerated for several weeks awaiting trial

when he had no criminal charges pending and was not an imminent flight risk.

(Ibid., see also People v. Hovey, supra, 44 Cal.3d at p. 564 [?due process

principles obviously would not have permitted holding Lee as a material witness

during the two-and-one-half-year period that elapsed following his preliminary

examination testimony?]; People v. Wise (1994) 25 Cal.App.4th 339, 344

[distinguishing Louis on the basis that ?the witness was a citizen-victim. He was

not facing criminal charges and the record does not indicate any reason for the

prosecution to believe he would disappear.?].)

While we ?defer to the trial court?s determination of the historical facts of

what the prosecution did to locate an absent witness,? we ?independently review

whether those efforts amount to reasonable diligence sufficient to sustain a finding

of unavailability.? (Bunyard, supra, 45 Cal.4th at p. 851.) We agree with the trial

court that the prosecution demonstrated reasonable diligence in attempting to

secure Jones?s presence to testify. Unlike in Louis, Jones?s testimony was not

?vital? to the prosecution?s case; the jury already had learned that defendant had

been convicted of voluntary manslaughter and Jones?s testimony was only needed

68


to explain the circumstances of that crime. Nor was Jones?s credibility as suspect

as the credibility of the witness in Louis. (See People v. Louis, supra, 42 Cal.3d at

p. 991.) Most important, unlike in Louis, Jones was neither charged with nor

convicted of a crime and was not an imminent flight risk. He admittedly was

unreliable, because he was an alcoholic and a drug addict, and the prosecutor

remarked when Jones could not be located that he ?always had my doubts as to

whether or not he would appear,? but this was not sufficient to require that Jones

be placed in custody to ensure his presence at trial. The risk that a witness might

not appear must be weighed against the witness?s substantial due process right not

to be unreasonably incarcerated.

Defendant argues that even if Jones was unavailable, the trial court violated

his right to confront the witnesses against him by admitting Jones?s testimony,

because a preliminary hearing held fifteen years earlier in a different criminal

proceeding did not constitute ?a prior opportunity for cross-examination.?

Defendant acknowledges that we held to the contrary in People v. Wharton (1992)

53 Cal.3d 522, in which we upheld the introduction of the transcript of a

preliminary hearing in a prior conviction conducted 11 years prior to the trial of

the charged offense. Defendant presents no persuasive reason for us to reconsider

our decision in Wharton.

6. Evidence of Unadjudicated Criminal Activity

i. Validity of section 190.3, factor (b)

Defendant contends the trial court erred by admitting into evidence four

instances of unadjudicated criminal activity in violation of his rights under the

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

69


Section 190.3, factor (b), provides that in determining the penalty for first

degree murder with special circumstances the trier of fact may consider ?[t]he

presence or absence of criminal activity by the defendant which involved the use

or attempted use of force or violence or the express or implied threat to use force

or violence.? Defendant asserts that section 190.3 is unconstitutionally vague,

lowers rather than heightens the reliability requirements, and deprived him of his

rights to due process of law, equal protection, a reliable penalty determination, the

presumption of innocence, and a unanimous verdict. We previously have

considered and rejected these claims and defendant presents no persuasive reason

for us to reconsider these holdings. (People v. Lomax (2010) 49 Cal.4th 530, 591;

People v. Taylor, supra, 48 Cal.4th 574, 651-652; People v. Carpenter (1999) 21

Cal.4th 1016, 1061; People v. Cain, supra, 10 Cal.4th 1, 69-70.) We also have

previously considered and rejected defendant?s arguments that having the same

jury that found defendant guilty of the charged offenses consider the

unadjudicated criminal activity during the penalty phase deprived him of an

impartial jury (People v. Hillhouse (2002) 27 Cal.4th 469, 507), and that the

expiration of the statute of limitations bars the use of unadjudicated criminal

activity as an aggravating factor (People v. Hartsch (2010) 49 Cal.4th 472, 515).

ii. Admissibility of Evidence

Defendant argues that evidence that defendant either kissed or pinched

Kelly Minix on the neck, leaving a mark, should not have been admitted, because

?it is not the sort of violent criminal activity that authorizes or warrants the death

penalty.? As noted above, Kelly Minix testified that defendant followed her to her

automobile as she was leaving work, leaned into the vehicle and sucked on her

neck, leaving a bruise. Defendant concedes that ?this was a battery and thus

involved the use of ?force? in a strict legal sense.? The evidence thus was

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admissible under section 190.3, factor (b) as ?criminal activity by the defendant

which involved the use or attempted use of force or violence.? Although this

conduct, by itself, would not warrant choosing to impose the death penalty over

life imprisonment without parole, the jury was entitled to consider the fact that

defendant attacked a coworker in determining the appropriate penalty.

Defendant contends that the trial court erred in admitting testimony from

defendant?s former wife that defendant had been ? ?fooling around? with a

neighbor?s daughter and with her sister? and had called her son names. In

describing an incident that began as an argument between her son, Laron, and her

daughters over the use of a VCR, but culminated in defendant striking her, Delores

Thomas testified: ?And we was like arguing, and I had started saying all the

things that was on my mind that?s been on my mind that I accused him of fooling

around with a neighbor?s daughter. I accused him of fooling around with my

sister, and then when I said the part about my sister he ?.? Defendant objected,

but the prosecutor explained that he was ?not offering it for the truth of what she?s

saying, just to describe the circumstances of what happened.? The court ruled:

?With that understanding, the objection will be overruled.? Delores Thomas then

testified that the argument culminated with defendant punching her in the nose.

On cross examination, defense counsel asked if defendant seemed to be

irritated by the children arguing over the VCR and Delores Thomas replied that

defendant was irritated with her son, Laron. On redirect examination, the

prosecutor asked Delores Thomas whether defendant had a good relationship with

her son, and she answered he did not and would call her son names like ?punk?

and ?sissy.? The trial court overruled defendant?s objection.

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? ?[W]hen the prosecution has evidence of conduct by the defendant that [is

admissible under section 190.3, factor (b)], evidence of the surrounding

circumstances is admissible to give context to the episode, even though the

surrounding circumstances include other criminal activity that would not be

admissible by itself. [Citation.]? ? (People v. Wallace (2008) 44 Cal.4th 1032,

1081; see People v. Kirkpatrick (1994) 7 Cal.4th 988, 1013-1014.) The trial court

did not err.

7. Instruction on Inapplicable Mitigating Factors

Defendant contends the trial court deprived him of due process and a

reliable penalty determination by instructing the jury pursuant to CALJIC No. 8.85

on all aggravating and mitigating factors, including four mitigating factors that

were not supported by the evidence. Defendant acknowledges that we upheld this

practice in People v. Ghent, supra, 43 Cal.3d 739, 776-777, because ?the jury is

capable of deciding for itself which factors are ?applicable? in a particular case.?

(Id. at p. 777.) We have often reaffirmed this holding (see e.g., People v. Harris

(2008) 43 Cal.4th 1269, 1320-1321) and defendant presents no persuasive reason

for us to conclude otherwise.

8. Validity of Death Penalty Statutes

Defendant raises a number of challenges to the validity of the death penalty

statutes that we previously have considered and rejected. Thus, we again conclude

as follows.

Section 190.2 adequately narrows the class of offenders eligible for the

death penalty. (People v. Cowan (2010) 50 Cal.4th 401, 508.) ?Section 190.3,

factor (a), which allows the jury to consider the ?circumstances of the crime? in

determining whether to impose the death penalty, is not unconstitutionally vague,

arbitrary or capricious.? (Ibid.) The absence of certain procedural protections,

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such as a burden of proof, written findings, jury unanimity and disparate sentence

review, does not violate the federal Constitution. (Id. at pp. 508-509. )

? ? ?The Eighth and Fourteenth Amendments do not require that a jury

unanimously find the existence of aggravating factors or that it make written

findings regarding aggravating factors.? [Citations.] ?[N]either the cruel and

unusual punishment clause of the Eighth Amendment, nor the due process clause

of the Fourteenth Amendment, requires a jury to find beyond a reasonable doubt

that aggravating circumstances exist or that aggravating circumstances outweigh

mitigating circumstances or that death is the appropriate penalty. [Citations.]? ?

[Citation.] Moreover, the statute ? ?is not unconstitutional because it does not

contain a requirement that the jury be given burden of proof or standard of proof

instructions for finding aggravating and mitigating circumstances in reaching a

penalty determination.? ? [Citation.]? (People v. Cowan, supra, 50 Cal.4th at

pp. 508-509.) ?Nothing in the United States Supreme Court?s recent decisions

interpreting the Sixth Amendment?s jury trial guarantee (e.g., Cunningham v.

California (2007) 549 U.S. 270; Ring v. Arizona (2002) 536 U.S. 584; Apprendi v.

New Jersey (2000) 530 U.S. 466) compels a different answer to these questions.?

(Cowan, at p. 509.)

?The failure to require intercase proportionality review does not violate due

process, equal protection or the Eighth Amendment. [Citations.]? (People v.

Cowan, supra, 50 Cal.4th at p. 509.) The use of adjectives such as ?extreme? and

?substantial? does not prevent the jury from considering relevant mitigating

evidence. (Ibid.) ?The jury need not be instructed that section 190.3, factors (d),

(e), (f), (g), (h) and (j) are relevant only as possible mitigators. (People v. Leonard

[(2007)] 40 Cal.4th [1370,] 1430.) Nor is the trial court required to instruct that

the absence of a particular mitigating factor is not aggravating. (People v. Rogers

[(2006)] 39 Cal.4th [826,] 897.) In any event, the jury here was instructed that

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?[t]he absence of mitigation does not amount to the presence of aggravation.? ?

(Id. at p. 509.)

?The availability of certain procedural protections in noncapital sentencing

? such as a burden of proof, written findings, jury unanimity and disparate

sentence review ? when those same protections are unavailable in capital

sentencing, does not signify that California?s death penalty statute violates

Fourteenth Amendment equal protection principles. [Citations.]? (People v.

Cowan, supra, 50 Cal.4th at p. 510.)

?The death penalty, when applied in accord with state and federal statutory

and constitutional requirements, does not violate international law. [Citation.]

International norms of human decency do not render the death penalty, applied as

a regular form of punishment, violative of the Eighth Amendment. [Citations.]?

(People v. Cowan, supra, 50 Cal.4th at p. 510.)

9. Victim Impact Testimony

Defendant contends the trial court deprived him of his rights to due process

and a reliable penalty determination under the Fifth, Eighth, and Fourteenth

Amendments to the United States Constitution by admitting victim impact

testimony.

Darcie Purcell testified she had been a classmate and close friend of the

victim and described how loving the victim?s family had been. She often spent the

night at the victim?s house and felt like part of the family. The victim was

friendly, outgoing, and hard working. She held two jobs to help support her

family, in addition to attending school. She was the quarterback of the ?Powder

Puff? football team they both were on, and the victim helped run a peer counseling

program at school.

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Purcell described her reaction when she was told that the victim was dead.

She cried and was unable to eat or go to school. She stayed with the victim?s

family and helped pick out a coffin. She testified: ?All of us were just kind of in a

daze.? The victim?s death affected everyone in her high school graduating class.

The high school erected a memorial to the victim.

Defendant argues that victim impact testimony does not properly include

the testimony of a nonfamily member who was not present when the victim was

killed. ?As we have previously observed, victim impact evidence is not limited to

the effect of the victim?s death on family members [citation], but may include its

effects on the victim?s friends, coworkers, and the community.? (People v. Ervine

(2009) 47 Cal.4th 745, 792.)

Defendant next contends that victim impact testimony may not include

personal characteristics of the victim that were unknown to the defendant.

?Defendant is mistaken. We have approved victim impact testimony from multiple

witnesses who were not present at the murder scene and who described

circumstances and victim characteristics unknown to the defendant. [Citation.]?

(People v. Pollock (2004) 32 Cal.4th 1153, 1183.)

Defendant also asserts that permitting victim impact testimony as

?circumstances of the crime? under section 190.3, factor (a) raises ?concerns about

vagueness and the arbitrary application of Penal Code section 190.3.? We

previously have rejected this contention as well. (People v. Ervine, supra, 47

Cal.4th at p. 793.)

10. Cruel and Unusual Punishment

Defendant contends the death penalty constitutes cruel and unusual

punishment under the Eighth Amendment to the United States Constitution. We

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repeatedly have rejected this contention. (See e.g., People v. Jennings (2010) 50

Cal.4th 616, 687.)

11. Cumulative Error

Defendant argues he was deprived of his rights to due process, a fair trial,

and a reliable penalty trial under the Eighth and Fourteenth Amendments to the

federal Constitution by the cumulative effect of the errors he claims.

We conclude above that the cumulative effect of the two errors that

occurred during the guilt phase ? the trial court erred in instructing the jury

pursuant to the 1996 version of CALJIC No. 2.28 (ante, at p. 41) and it was

improper for the prosecutor to argue to the jury that defendant could be released

on parole if it did not find the special circumstances allegation true (ante, at p. 45

? did not require reversal of the judgment (ante, at p. 49). As to the penalty

phase, we held that reversal of the judgment would not be required even were we

to conclude that defendant?s admission to Sergeant Franks that he assaulted

McCowan should not have been admitted into evidence, because such error would

be harmless beyond a reasonable doubt. (Ante, at p. 61.) The cumulative effect of

any such error, when considered together with the two harmless errors identified

in the guilt phase, did not prejudice defendant and does not justify reversal of the

judgment.

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III. DISPOSITION

The judgment is affirmed in its entirety.

MORENO, J.

WE CONCUR: KENNARD, ACTING C. J.


BAXTER, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

GEORGE, J.*


























____________________

*

Retired Chief Justice of California, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Thomas
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S093456
Date Filed: February 3, 2011
__________________________________________________________________________________

Court:
Superior
County: Sonoma
Judge: Wilfred J. Harpham

__________________________________________________________________________________

Counsel:

Robert Derham, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A.
Engler, Assistant Attorney General, Alice B. Lustre and Sharon E. Loughner, Deputy Attorneys General,
for Plaintiff and Respondent.
















Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert Derham
400 Red Hill Avenue
San Anselmo, CA 94960
(415) 485-2945

Sharon E. Loughner
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1372