Filed 12/17/12


IN THE SUPREME COURT OF CALIFORNIA






THE PEOPLE,

Plaintiff and Respondent,

S026634

v.

PAUL SODOA WATKINS,

Los Angeles County

Defendant and Appellant.

Super. Ct. No. KA005658

____________________________________)


In July 1990, defendant Paul Sodoa Watkins shot and killed Raymond

Shield. A jury convicted defendant of the first degree murder of Shield (Pen.

Code, ? 187, subd. (a)), and found true the special circumstance allegation that

defendant did so while in the commission of an attempted robbery. (Pen. Code,

? 190.2, subd. (a)(17)(A).)1 The jury further found defendant guilty of second

degree attempted robbery of Shield (?? 211, 213, subd. (a)(2)), and it found

defendant guilty of three other second degree robberies of four other victims.2


1

All further statutory references are to the Penal Code unless otherwise

indicated.

2

Moreover, as to the attempted robbery count, and each robbery count, the

jury found true allegations that a principal was armed with a handgun within the
meaning of section 12022, subdivision (a)(1). As to three of the armed robbery
counts, the jury found true allegations that defendant personally used that firearm
within the meaning of section 1203.06, subdivision (a)(1), and section 12022.5.
Finally, the jury found true allegations that defendant (1) had suffered a prior
conviction for ?grand theft person? in violation of section 487.2, for which he had
been committed to state prison, and that he committed a subsequent offense

(footnote continued on next page)

1




After a separate penalty phase trial, the jury fixed the penalty for defendant at

death.3 The trial court denied defendant?s motions for a new trial and to modify

the verdict, and then imposed sentence ? prison terms for the robberies, and death

for the murder. This appeal is automatic. (? 1239, subd. (b).) We affirm the

judgment in its entirety.

I. FACTS

A. Prosecution evidence

At approximately 3:30 a.m., on July 17, 1990, defendant, then 21 years of

age, and his younger cousin, Lucien Martin, then 18 years of age (see ante, fn. 3),

approached Anthony Orosco and his friend Juan Gallegos, who were seated in the

cab of Orosco?s black Nissan pickup truck, parked at a market in Home Gardens,

Riverside County. The truck was a 1990 model, approximately four months old.

Defendant ordered the two men out of the truck and struck Orosco on the face

with a black nine-millimeter semiautomatic pistol. Defendant aimed the nine-

millimeter pistol at Orosco and said, ?get the hell out of here?; Orosco left his keys

in the ignition and ran away. At the same time, Martin approached Gallegos and

took his wallet and a distinctive gold necklace chain with an engraved star. Martin


(footnote continued from previous page)

resulting in a felony within five years of the prison term within the meaning of
section 667.5, subdivision (b); and (2) that defendant had suffered prior felony
convictions, including the ?grand theft person? violation in early May 1988,
mentioned above, possession of a controlled substance in late May 1988, and
another ?grand theft person? violation in June 1987.

3

Defendant?s younger cousin, Lucien Martin (Martin), was tried with

defendant, and convicted on all charges. With respect to Martin, the jury found
true the special circumstance allegation, but sentenced Martin to life in prison
without possibility of parole. Accordingly, he is not a party to this appeal.

2




drove away in the truck, with defendant in the truck?s bed, headed in the direction

of the ?91 Freeway,? which was slightly more than one block way.

Approximately 90 minutes later ? just before 5:00 a.m. ? Martin and

defendant drove the truck to the Greyhound bus station in Claremont, Los Angeles

County. They stopped and asked Jihad Muhammed, who was standing alone,

where he was going. When Muhammed replied that he was traveling to

Wisconsin en route to New York, defendant said, ?Then you must have some

money.? Thereafter, defendant displayed his nine-millimeter pistol and told

Muhammed, ?Give it up, throw it in the truck.? After Muhammed did so and

responded, ?I don?t know why you all do this to brothers,? defendant replied,

?Fuck a brother,? and drove off with Martin. They escaped with only about $10 or

$12 from Muhammed.

Within minutes ? shortly after 5:00 a.m. ? defendant and Martin drove to

the covered vehicle entrance driveway of the West Covina Holiday Inn in Los

Angeles County. Shortly before defendant and Martin arrived, 62-year-old

Raymond Shield had driven his wife, daughter, and two grandchildren to that same

location to take a shuttle bus to the Los Angeles International Airport, from where

they planned to embark on a family vacation. As Shield unloaded the family?s

luggage onto the sidewalk, defendant and Martin arrived and parked just beyond

and adjacent to the Shield family car, on the other side of the hotel?s covered

entrance driveway. Defendant and Martin got out of the stolen truck and opened

its hood.

Shield walked a few steps over to the front of the truck and stood there with

defendant and Martin. The raised hood partly obscured the view of members of

the Shield family; they could see only Mr. Shield, standing there with his hands in

his pockets, looking into the engine area. After approximately one minute, he

hurried away from the truck?s passenger side, back toward his family?s car.

3




During this same time, defendant and Martin closed the truck hood and quickly

got back into the truck ? Martin in the driver?s seat, and defendant in the

passenger seat, with that door still open. Shield took approximately five long,

brisk strides away from the truck with his hands still in his pockets. Defendant

fired a single shot from his nine-millimeter pistol. The bullet passed through

Mr. Shield?s right forearm, just below the elbow, and then, above his right hip,

through his abdomen, puncturing his bladder. He fell facedown and quickly died

from loss of blood. The stolen truck sped away, ?squealing? and ?screeching its

tires.? The expended bullet was found by emergency responders beneath

Mr. Shield?s underwear, resting on his body; the bullet casing was found a few

feet away.

Less than four hours later (just before 9:00 a.m.), defendant entered Steve?s

Market in Gardena, Los Angeles County. Kyung Sun Lee, the proprietor, was

behind the cash register. Defendant asked for a pack of regular Camel cigarettes.

When advised that the price was $1.95, defendant replied that he had only $1, and

that he would leave and return with more money. Lee watched through a store

window as defendant went to the truck, which was parked in front of the store, and

spoke with Martin, who put a magazine into a gun. The two then entered the

store; Martin stood near the entrance and pointed the gun at the cash register.

Defendant opened the register, removed money, and took the pack of cigarettes.

Meanwhile, Lee, who had armed himself with his own handgun, fired from behind

the store?s deli counter ? at which point defendant and Martin fled in opposite

directions, leaving the truck behind. Lee called the police.

Shortly thereafter, as Jeffrey Kamuela Lewis and his father stood outside

their machine shop near Steve?s Market, defendant and Martin walked down the

street, straining for breath ?as if they had been running,? and ?looking around? in

different directions ?very suspiciously.? Defendant approached Lewis?s father and

4




asked, ?Remember me? I filled out an application last week.? After Lewis?s

father replied that he did not recall, defendant asked to use a restroom. When

Lewis?s father declined, defendant asked, ?What is your problem?? During this

time, Martin stood by, acting like a ?lookout man? ? surveying the scene back

and forth.

At that point, Gardena Police Department Detective Gerald Hudgeons, who

had received a radio report of a robbery at Steve?s Market, drove by in a marked

patrol car, and he noticed Martin, who fit the description of one of the two

suspects. When Lewis?s father waved and called to the officer, defendant and

Martin ran down a nearby alley. Thereafter, at approximately 9:00 a.m., David

Morgan Boone, who was appraising a residence near Steve?s Market, found, in an

alley behind the residence, a firearm, later identified as defendant?s nine-

millimeter pistol, inside a hole in a brick wall. Soon thereafter police officers

arrived and Boone gave them the weapon, which was missing its magazine, but

had one live bullet in the chamber of the pistol.

Meanwhile, other police officers responded to Steve?s Market, where they

found the truck parked outside and a nine-millimeter?s ?banana style? magazine

clip, loaded with numerous live rounds, on the floor of the store. One officer

noticed Martin ?low crawling? (that is, ?kneel[ing] down with his hands tucked

under his shins and just walking?) alongside a brick wall in a nearby alley, and

then saw him jump into a residential backyard. Within two hours, after

conducting a door-to-door search assisted by a police dog, police officers found

Martin and defendant, each attempting to hide behind bushes in separate

residential yards. When booked into jail, Martin had the gold necklace chain with

the engraved star belonging to Juan Gallegos, and defendant, who falsely

identified himself as ?Jeffrey Scott,? possessed a pack of Camel regular cigarettes.

On the day following defendant?s arrest, he admitted his real name, and when

5




Detective David Melnyk told defendant that he was investigating an apparent

robbery and murder at West Covina Holiday Inn, defendant replied by asking

whether any property had been taken at that scene.

Subsequently, defendant?s and Martin?s fingerprints were found in many

places on the stolen truck, and palm prints under the truck?s hood matched

defendant?s. Currency totaling $59 was found on the floor of the truck.

Distinctive acceleration skid marks left at the Holiday Inn scene matched the

truck?s tires, and the truck was found to be running well, with no mechanical

problem. The expended bullet found under Raymond Shield?s clothing and resting

on his body, the bullet casing found a few feet away, and the magazine clip found

at Steve?s Market, all were matched to defendant?s nine-millimeter pistol. Further

testing revealed that the gun had a ?heavy? trigger pull ? 17.5 pounds (compared

with the average nine-millimeter pistol?s trigger pull of four-to-nine pounds) ?

making it at least twice as difficult to pull the trigger compared with most such

firearms. Finally, all four crime scenes were located close to freeway ramps, and

could easily have been reached by a pickup truck within the times of the various

incidents.

B. Defense evidence

Defendant testified. He admitted the three robberies, but denied attempting

to rob Shield and claimed that the shooting was accidental. He explained that he

and Martin were cousins who had known each other all their lives, and that on

July 16, 1990, they had driven their mothers? cars, along with Martin?s mother,

from defendant?s home in Moreno Valley in Riverside County, to Los Angeles, so

that Martin?s mother?s car could be serviced. The three spent the day, sometimes

separately, in and around Compton. Later that evening, before the three drove

back to Moreno Valley in defendant?s mother?s car, Martin showed defendant a

nine-millimeter pistol that defendant had not previously seen. Defendant testified

6




that he commented to Martin that it was a ?proper? gun ? and that ?We could

jack some people with this gun.? Defendant explained that he assumed the pistol

was loaded ?because it had a magazine in it.? After defendant put the weapon in

the trunk of his mother?s car, they drove to pick up Martin?s mother in Compton at

approximately midnight, and then drove back to defendant?s mother?s house in

Ontario. Defendant explained that he and Martin spoke ?[a]bout robbing some

people,? and then drove, in defendant?s mother?s car, to the market in Home

Gardens, where they saw ?two Mexican guys in a truck.? According to defendant,

he produced the pistol and ?asked [them] to give me the truck.? Defendant

testified that he jumped into the truck bed while Martin drove them back to

defendant?s mother?s car, which they returned to her home in Ontario. At that

point, defendant explained, they ?got on the freeway [heading toward Los

Angeles] and just went like looking for somebody to rob.?

At the bus station in Claremont, they saw a ?Black guy standing there?

alone. Defendant testified that he said, ?let?s rob this fool.? According to

defendant, after they robbed Muhammed, Martin drove them back to the freeway,

again heading toward Los Angeles, where they ?wound up at the Holiday Inn,?

with Martin driving and defendant in the passenger seat, and decided to ?try this

place.?

Defendant testified that they noticed a parked car, and a family unloading

luggage, but that he did not intend to rob them because he was looking for a

solitary victim, and the area was ?kind of [too] well lit.? He explained that he

assumed the family would soon leave the scene, at which point he and Martin

would wait for another victim to happen by, whom they would rob. He asserted,

?I mean, I am not going to rob no kid, you know.? He recounted that they parked

?on the other side of the driveway,? near the family?s car, and then they decided to

get out and lift the truck?s hood, so as not to appear suspicious. Defendant

7




explained that because he noticed that Shield was looking at him, he waved ?hi? to

him ? again, so that they would not appear suspicious ? at which point Shield

approached them, asking if they needed help. According to defendant, he assumed

that the people unloading luggage would enter the hotel, and he told Shield that he

needed no help and tried to ?be rude to him? to encourage him to depart into the

hotel ?so we could find somebody . . . by themselves.? Defendant asserted that

Shield ?got kind of offended? and then hurriedly retreated. Defendant testified

that he did not demand or ask for money, and that he did not pull his gun from his

waistband, but instead kept it concealed by his shirt. He testified that he is left-

handed, and that he had inserted the gun into his waistband with his left hand, with

the handle pointed to his left side.

Defendant explained that because of Shield?s reaction to the refusal of his

assistance, and Shield?s rapid departure from the truck, ?it was obvious that he

knew something wasn?t right about us,? and hence defendant assumed that Shield

planned to call the police. Defendant told Martin that they should leave, and he

slammed the hood shut and hurried to the passenger door while Martin got into the

driver?s seat. According to defendant, he wanted to depart before Shield entered

the hotel. Defendant testified that he opened the passenger door and positioned his

left foot onto the floorboard but was unable to sit down with the gun stuffed into

the front of his pants, and so he removed the gun with his right hand while

balancing himself with his left hand on the seat. He asserted that he next thrust his

right hand, then holding the firearm, outside the open passenger window and

brought his right leg into the vehicle as he pulled the door closed with the back of

his right hand ? at which point the gun fired accidentally. Defendant explained

that he was surprised by this, because he ?didn?t . . . pull the trigger? ? and

although he saw Shield fall, he could not believe that he had shot him. Defendant

recounted Martin sped them away and asked defendant, ?What . . . you doing??

8




and that he responded, ?I didn?t do it on purpose.? Defendant expressed to the

jury sorrow for the killing, and asserted that he ?never meant to hurt nobody that

night? ? he intended only to ?scare them and make some money.?

Defendant testified that after the Holiday Inn incident, he and Martin

initially decided to return to Gardena to give the weapon back to its owner, but

then concluded that because they had not been successful with their prior

robberies, they were ?back where we started from? ? and so they decided to rob

Steve?s Market. According to defendant, his plan was to ?case? the store, and if it

was ?all right,? they would rob it together, this time with Martin acting as gunman.

Finally, defendant admitted that he had suffered two prior felony

convictions for ?grand theft person.?

C. Prosecution rebuttal evidence

Pamela Joyce Coryell, Raymond Shield?s daughter, testified that the

passenger door of the truck was open at the time her father fell to the ground. She

recounted that the door closed after the shot was fired, after the truck began

pulling away from the scene, and that she saw no gun or muzzle flash.

D. Prosecution penalty phase evidence

Jeneane Shield, who had been married to the victim for 39 years, testified

that she and her husband had four children and five grandchildren. Mrs. Shield

explained that they had planned a trip to Hawaii; she and her daughter Pamela

would go first with two of the grandchildren. Her husband, Raymond, an engineer

and consultant for several companies, planned to go to work after dropping his

family off at the hotel?s airport shuttle, and then join the family on vacation a

week later.

After Jeneane Shield heard the gunshot and saw her husband fall, she ran to

him. As he lay on the ground, he told her, ?I?ve been shot? ? and then he said,

9




?I?m dead? ? his last words. Mrs. Shield recounted the arrival of paramedics,

their attempt to aid her husband, and the drive to the hospital.

The prosecution presented evidence of two other acts of violence by

defendant when housed prior to trial. The acts occurred in the county jail facility.

In early June 1991, defendant was a major participant in a dorm fight. Los

Angeles County Sheriff?s Deputy Ricky Hampton testified that he saw defendant

and other Black inmates fighting a group of Hispanic inmates. Hampton

recounted that defendant struck other inmates with his fists, kicked them when

they fell to the ground, and struck an inmate in the head with a 55-gallon

coffeepot. According to Hampton, defendant was one of the last two inmates to

stop fighting. In late June 1991, defendant, along with four other inmates, attacked

Russell Cross, after Cross sat on the bunk of a Black inmate.4

E. Defense penalty phase evidence

A childhood friend of both defendant?s and Martin?s, Marsha Hightower,

testified that defendant was quiet, shy, and ?got along? with his family. She

related to the jury that defendant had ?a lot of good in [him],? and she pleaded for

his life.

Defendant?s half sister and senior by 10 years, Renita Watkins, who had

lived with defendant until he was 13 years of age, described him as quiet, shy and

fearful ? someone who would not fight, but instead would run away. She

pleaded for his life, explaining that the killing must have been accidental because

defendant had been raised properly, and had a ?beautiful personality.?


4

In addition, the parties stipulated that defendant had suffered the prior

convictions set forth ante, footnote 2.

10




Edward Miller, defendant?s maternal uncle, testified that he had known

defendant since birth. He explained that the family was close, and that defendant

was a normal child who was respectful of his elders. Still, defendant?s childhood

environment was ?somewhat dysfunctional?; his father regularly beat his mother,

leading to their divorce. Thereafter the family moved to a new home and school in

South Central Los Angeles which, Miller recounted, was at one point a nice

residential neighborhood, but subsequently became infested with drugs and drug

dealers. According to Miller, defendant?s mother was a good parent, and showed

him love and affection when growing up. He pleaded for defendant?s life, and

could not believe that defendant was a ?coldblooded murderer,? because that

would not be consistent with defendant?s character as Miller knew it.

Betty Watkins, defendant?s mother, testified that she worked as an

executive secretary and originally sent defendant to parochial school because she

was not ?satisfied with the public school system.? She explained that defendant

sometimes witnessed his father beating her, and that after the divorce, when

defendant was eight or nine years of age, she worked two jobs in order to support

her two children; she eventually managed to purchase a house, but the

neighborhood thereafter ?became progressively worse? ? ?all the little cute kids

grew up to be gang members.? At that point, Mrs. Watkins related, defendant

began to fall under the gangs? influence; at the same time, she testified, she could

no longer afford parochial school, and so was forced to enroll defendant in a

public school, where he did not adjust well, and was frightened by the gangs.

Defendant?s mother testified that her sister, Dorothy, was murdered in 1981

or 1982, that her other sister, Barbara, died of liver disease in 1984, and that

defendant?s paternal grandmother, the matriarch of the family and a stabilizing

influence on the children, died in late 1984 or early 1985, by which time

Mrs. Watkins found it increasingly difficult to moderate the neighborhood?s bad

11




influence on defendant. Thereafter, she explained, defendant?s sister Kimberly ?

who was 13 months older than he ? was wounded, and five others were killed, in

a driveby shooting while defendant was with her and a group of 10 other children

and young adults. According to defendant?s mother, this driveby shooting

incident altered defendant?s ?whole personality,? he became ?more withdrawn?

and began to ?play hooky from school.? For a short period the family attended

counseling for victims of violent crimes, but that ceased when public funding

ended, and Mrs. Watkins could not afford to pay privately for sessions. The

family eventually moved from Los Angeles to Moreno Valley because she

believed it to be ?far enough away from the gangs and the bad influence,? but

nevertheless defendant ?started to act out? and ?get into some trouble.? Mrs.

Watkins further testified that she was ?devastated? by her son?s offenses, and that

she commiserated with the Shield family, but she pleaded for her son?s life,

explaining that in her view he did not lack ?a conscience.?

Finally, Queenetta Green, who was defendant?s algebra teacher, testified

that immediately after defendant?s transfer from parochial to public school, he was

studious, obedient, enthusiastic, and protective of his sister Kimberly. Green

explained that after Kimberly became a victim of the driveby shooting, however,

defendant turned sullen, defiant, and disobedient. She too pleaded that the jury

spare defendant?s life.

F. Additional prosecution penalty phase evidence

After presentation of the defense evidence outlined above, the prosecution

introduced additional evidence in aggravation concerning an incident that occurred

at the ?main lockup? of the Pomona courthouse jail holding facility in mid-March

1992 ? on the first day of the penalty phase trial in this case. Defendant, who

was at the time shackled with leg irons, and two other Black inmates kicked and

punched another Black inmate. After the victim fell to the ground and lay in a

12




fetal position, Sheriff?s Deputy Ted Mossbarger saw defendant kick him in the

back of the head, and continue to do so after being ordered to stop. Thereafter,

when Sheriff?s Deputy Eugene Lindsay escorted defendant from the scene,

defendant explained, ?the reason this happened is that [the victim] raped my home

boy?s girlfriend.?

II. JURY SELECTION ISSUES

A. Failure to provide sequestered death

qualification voir dire

Defendant moved for sequestration of the prospective jurors during the

death qualification voir dire process. The trial court denied the motion and

informed counsel that it would conduct voir dire of prospective jurors in open

court. Defendant claims that the resulting death qualification process violated his

state and federal constitutional rights to due process, equal protection, trial by an

impartial jury, effective assistance of counsel, and a reliable death verdict, as well

as his right under Code of Civil Procedure section 223, to individual juror voir dire

when group voir dire is not ?practicable.?

We repeatedly have rejected defendant?s argument that the California or

federal Constitution mandates individual sequestration of all prospective jurors

during the death qualification process. (People v. Thomas (2012) 53 Cal.4th 771,

789 (Thomas), and cases cited.)

Our decision in Hovey v. Superior Court (1980) 28 Cal.3d 1 declared,

pursuant to our supervisory authority over California criminal procedure, that

sequestered voir dire should be conducted in capital cases in order to promote

candor and reduce the possibility that prospective jurors might be influenced by

the questions to and responses by other prospective jurors. (Id., at pp. 80-81.)

Code of Civil Procedure section 223, adopted in 1990 as part of Proposition 115,

abrogated this aspect of our decision in Hovey. The statute provides in pertinent

13




part: ?Voir dire . . . shall, where practicable, occur in the presence of the other

jurors in all criminal cases, including death penalty cases.? Defendant asserts that

the trial court failed to exercise its discretion, or at least abused its discretion, by

denying his motion for sequestered voir dire and by instead proceeding in open

court under section 223.

Although counsel for defendant objected generally to the court?s ruling,

asserting that prospective jurors ?should not have to answer those questions in

front of the rest of the jury,? counsel offered no particular reason suggesting that

open court voir dire would not be practicable in this case. Each prospective juror

completed a 27-page questionnaire, and copies were made for the court and the

parties. After the court questioned the jurors who were seated in the jury box, the

attorneys were given opportunities to question them further, and did so.

Subsequently, during the continued nonsequestered voir dire, the court made it

clear that counsel retained the opportunity to request in camera questioning in

appropriate circumstances. Apparently, however, no such request was made.

Under these circumstances, we have no basis on which to conclude that the trial

court failed to exercise, or abused, its discretion when it implicitly found that open

court voir dire was ?practicable? and denied the motion for individual sequestered

voir dire. (See People v. Lewis (2008) 43 Cal.4th 415, 493-494 (Lewis); People v.

Waidla (2000) 22 Cal.4th 690, 713-714.)

Defendant insists that open court voir dire might have caused some of the

prospective jurors, and sitting jurors, to become tainted by the voir dire process.

He focuses first on Prospective Jurors C.H., A.M., and M.B., all of whom

indicated strong support for the death penalty in their respective responses in their

written questionnaires. As defendant observes, after being informed that service

on the jury required that all must keep an open mind and follow the law, regardless

of personal beliefs, each prospective juror later affirmed an ability to do just that.

14




Ultimately, after defendant?s ?for cause? challenges to these prospective jurors

were denied, defendant exercised peremptory challenges to remove all three

prospective jurors. He now asserts that the open court voir dire process served to

?educate? all three prospective jurors concerning how to tailor their responses, or

even conceal their true views, in order to avoid a successful ?for cause? challenge.

The People assert that ?it is just as likely that the written responses were ill-

conceived or badly written reflections of the true beliefs that surfaced on voir

dire.? We agree with the People that defendant?s objection is unduly speculative.

Defendant also focuses on three jurors who ultimately sat on his case, S.T.,

A.Y., and H.C. He asserts they became tainted and biased against him because

they were ?exposed? during nonsequestered oral voir dire to the strong pro-death-

penalty opinions of various other prospective jurors. Again we agree with the

People: Even assuming that such exposure amounts to cognizable injury ? a very

doubtful proposition ? because defendant failed to challenge any of the three

jurors, or even exercise an available peremptory challenge, he did not preserve this

claim for appellate review.

B. Excusal of a juror for cause

Defendant asserts the trial court improperly excused a prospective juror,

J.A., for cause based on her opposition to the death penalty.

A juror may be challenged for cause based on his or her views concerning

capital punishment only if those views would prevent or substantially impair the

performance of the juror?s duties as defined by the court?s instructions and the

juror?s oath. (Thomas, supra, 53 Cal.4th at p. 790; People v. Stewart (2004) 33

Cal.4th 425, 440-441 (Stewart), citing Wainwright v. Witt (1985) 469 U.S. 412,

424 (Witt).) As we recently explained, ?[e]ven if the prospective juror has not

expressed his or her views with absolute clarity, the juror may be excused if ?the

trial judge is left with the definite impression that a prospective juror would be

15




unable to faithfully and impartially apply the law.? [Citation.] If, after reasonable

examination, the prospective juror has given conflicting or equivocal answers, and

the trial court has had the opportunity to observe the juror?s demeanor, we accept

the court?s determination of the juror?s state of mind.? (Thomas, supra, at p. 790;

see People v. Pearson (2012) 53 Cal.4th 306, 327-328, and cases cited.)

The instructions to the questionnaire given to all prospective jurors

directed: ?If you do not understand a question, please place a large question mark

(?) in the space provided for an answer.? Prospective Juror J.A. responded to

relatively few questions in the 27-page juror questionnaire.5 She responded to

almost none of the questions concerning the death penalty. For example, she left

question marks, or no response, concerning the following questions: ?Would you

please tell us how you feel about the death penalty??; ?Does the death penalty help

society??; ?What kind of murders come to mind when you think of the death


5

Prospective Juror J.A. answered a number of basic questions ? indicating,

for example, that she was 60 years of age, had six children, had completed school
through eighth grade, and was employed in ?food service? at public school.
Unlike most other prospective jurors, however, J.A. placed many question marks
throughout her form, including to questions such as ?What do you feel is the most
important contribution you can make to your children?s lives??; ?Do you feel that
your family and social experiences as a child affect your later adult behavior??; ?If
the judge gives you an instruction in law and it differs with your beliefs or
opinions, how will you deal with that conflict??; ?You have had an opportunity to
briefly observe the defendants in this case. How would you describe them??; ?Do
you feel you can be completely unbiased in this case??


To further questions, Prospective Juror J.A. gave the following answers:

?What thoughts or feelings do you have at the prospect of being called upon to
judge the conduct of another?? Her answer: ?I can?t & don?t want to hear
problems. Too Nerves.? When asked, ?Were you ever interviewed by the
police?? she checked ?Yes.? In response to the followup question ?How did you
feel about that experience and what were your reasons for those feelings?? she
wrote: ?I keep him away from our home.?

16




penalty and someone ?deserving it???; ?Are there any murders that do not deserve

the death penalty??; ?Do you feel that life in prison without the possibility of

parole is a severe punishment?? The single death-penalty-related question that she

answered was the last one listed on the questionnaire: ?Do you feel that life in

prison without the possibility of parole is more severe than the death penalty??

Given the options of ?Yes,? ?No,? and ?Uncertain,? she checked the last.

During oral voir dire by the court, after being advised that the case might

require the jurors to determine whether to impose the death penalty, Prospective

Juror J.A. conceded that she felt ?scared? and that imposing a death sentence

would make her feel that ?I am the one who is going to be prosecuted.? The court

asked, ?if you were a juror on a capital case, and if you had heard the evidence in

the guilt phase, found an individual guilty of first degree murder with special

circumstances and you considered the manner in which the crime was committed,

the extent of the participation of that individual, you heard evidence about his

background, about his upbringing, and after that you felt that the death penalty

was appropriate, could you vote for the death penalty?? J.A. stated, somewhat

unresponsively, ?I?m not sure I would.? (Italics added.) The trial court then

followed up with numerous questions attempting to determine J.A?s views

concerning the death penalty and whether she could in fact vote to impose death in

an appropriate case. J.A. denied having any moral or religious belief concerning

the issue, but added that she was ?not the one to judge anybody.? After the court

asked why J.A. wrote question marks to various inquiries addressing the death

penalty on her written juror questionnaire, she responded that she did not

understand most of those questions. The court asked, ?Can you think of any case

where you felt that the death sentence was correct?? J.A. answered ?yes,? but on

further questioning could not name any such case. The court asked, ?In all

honesty, could you ever vote for the death penalty?? Prospective Juror J.A.

17




replied, again somewhat unresponsively, ?Yes, I ? yes, I would.? The court

clarified, ?You could?? She replied, ?I could.?

Thereafter, the prosecutor asked: ?If you were called upon to actually make

the decision, that is, that you have heard the evidence, and you[?re] instructed by

the court with a law and told to render a decision and that decision is life without

possibility of parole or death. Could you vote for the death sentence for

somebody?? Prospective Juror J.A. answered, ?It would be hard for me.? The

prosecutor emphasized that ?we need to know? and ?I understand it is going to be

hard for you . . . . I am trying to find out is it so hard that you don?t really think it

is appropriate for you to do that?? J.A. explained, ?I would feel guilt that a person

would die because I said yes. I would carry that guilt.? The prosecutor continued

to probe: ?What you are expressing to me is your feelings are such that you

probably really couldn?t with a clear consci[ence] make that decision, could you??

To this question, J.A. answered, ?No.?

The prosecutor challenged Prospective Juror J.A. for cause. The court

stated in full: ?On the last round of questions [J.A.] indicated that she would feel

guilty if she were to impose a death sentence. And that based on that guilt she

couldn?t. So I am going to grant the challenge as to [J.A.]?

Defendant stresses that reluctance to impose death is a normal and expected

response from many prospective jurors, and is not itself an adequate ground for

exclusion for cause. As we observed in Stewart, supra, 33 Cal.4th 425, 446, ?a

prospective juror who simply would find it ?very difficult? ever to impose the

death penalty, is entitled ? indeed, duty bound ? to sit on a capital jury, unless

his or her personal views actually would prevent or substantially impair the

performance of his or her duties as a juror.? Moreover, ?the circumstance that a

juror?s conscientious opinions or beliefs concerning the death penalty would make

it very difficult for the juror ever to impose the death penalty is not equivalent to a

18




determination that such beliefs will ?substantially impair the performance of his

[or her] duties as a juror? . . . . A juror might find it very difficult to vote to

impose the death penalty, and yet such a juror?s performance still would not be

substantially impaired under Witt, unless he or she were unwilling or unable to

follow the trial court?s instructions by weighing the aggravating and mitigating

circumstances of the case and determining whether death is the appropriate

penalty under the law.? (Id., at p. 447, quoting Witt, supra, 469 U.S. at p. 424.) In

addition, defendant stresses, J.A. asserted, first in response to questioning by the

court, and then in response to a followup question by the prosecutor, that she

?could? indeed vote to impose the death penalty.6

Defendant concludes that Prospective Juror J.A.?s responses were neither

conflicting nor ambiguous, and instead that she was consistent on two key points:

she could return a death sentence, and it would be ?hard? for her to do so ? it

would make her feel ?guilty.? Defendant asserts that the record fails to support

the trial court?s conclusion that J.A. could not impose a death sentence, and that

the record ?at most establishes that [she] could not return a death sentence with a

clear conscience.? Defendant argues that J.A. never retracted nor contradicted her

previous statements that she could impose a death sentence, and he asserts that her

sense of guilt surrounding that prospect did not render her substantially impaired

under the governing high court standard.

The People, focusing on Prospective Juror J.A.?s initial statement to the

court that she was ?not sure I would? vote for the death penalty, and her assertions


6

Defendant asserts that J.A.?s negative response to the prosecutor?s ?clear

conscience? question indicated that she could after all follow the law and impose
the death penalty if that was warranted. As noted below, the People view that
response otherwise, and we agree with the People in this regard.

19




that she would feel ?guilt? if she voted to impose death, argue that taken as a

whole, her statements were conflicting or ambiguous ? and therefore we must

grant normal deference to the trial court?s assessment of the prospective juror?s

ability to follow the law. The People also argue that J.A.?s understanding of the

issues surrounding death qualification appeared to be limited, and hence ?when

she asserted she ?could? vote for the death penalty, it is impossible to know

whether she understood the distinction the court was making or whether she

merely acknowledged that she could do something she believed was morally

wrong.?7

The People further assert that although Prospective Juror J.A. responded to

the prosecutor?s closing question ? asking ?you probably really couldn?t with a

clear consci[ence] make that decision, could you?? ? by answering ?No,?

viewing the record as a whole reveals that J.A. did not in fact mean to indicate that

she could follow the law and impose the death penalty with a clear conscience.

Instead, the People insist, when J.A. said ?No,? she intended to express agreement

with the prosecutor?s characterization ? that she could not, with a clear

conscience, make a decision whether to impose death. Although the People

complain that defense counsel made no effort to resolve this alleged ambiguity,

because the burden of proof in challenging a juror for anti-death-penalty views

rests with the prosecution, it was up to the prosecutor, not defense counsel, to


7

Defendant responds: ?Neither the prosecutor nor the trial judge apparently

perceived a problem with [J.A.?s] comprehension; neither mentioned it as a reason
for disqualifying her. There certainly is no support for the State?s post-hoc
insinuation that the exclusion was based on any reason other than her death
penalty views.? As shown ante, footnote 5, the responses made by J.A. on her
questionnaire do seem to indicate a problem with comprehension, and indeed, J.A.
told the court that she did not understand many of those death penalty questions.

20




follow up with questions that would resolve any ambiguity.8 Nevertheless, the

People insist, when viewed in context, it is apparent that Prospective Juror J.A.

intended to convey that she could not make the decision whether to impose death

with a clear conscience.

The People?s view of the record is evidently the one implicitly embraced by

the trial court, which as noted above concluded that in light of the ?last round of

questions [J.A.] indicated that she would feel guilty if she were to impose a death

sentence. And that based on that guilt she couldn?t.? (Italics added.)

Defendant argues that it would not be proper for this court to construe

Prospective Juror J.A.?s final response of ?No? as signifying that she agreed with

the prosecutor ? that she ?probably really couldn?t with a clear consci[ence]?

follow the law and vote to impose the death penalty if warranted. This

construction, however, reflects common colloquial speech ? many people, if

asked, ?you couldn?t do that, could you?? would answer ?No? if they meant to

convey ?No, I couldn?t.? Accordingly, we reject defendant?s contention that

J.A.?s responses concerning whether she could vote to apply the death penalty

were consistent from beginning to end; the record supports a conclusion that her

responses were in fact conflicting or ambiguous. Furthermore, although the trial

court did not state that it had considered J.A.?s demeanor when arriving at the

court?s conclusion (that because of her feelings of guilt ?she couldn?t? vote for

death), we reasonably infer that the trial court reached this conclusion based on

both J.A.?s demeanor and her prior responses. Accordingly, under the


8

Moreover, defendant observes, his counsel could reasonably have

concluded that because the record appeared to show that Prospective Juror J.A.
was qualified to sit as a juror, ?there was no reason for [defendant?s] attorney to
pursue voir dire.?

21




circumstances, we grant deference to the trial court?s interpretation of J.A.?s

statements and to its assessment of her state of mind that she could not impose a

death sentence based on her feelings of guilt.

But was Prospective Juror J.A.?s state of mind such that it would substantially

impair her ability to serve as a juror? Defendant argues that a prospective juror?s

stated ?probable? inability to undertake the death penalty determination process with

a ?clear conscience? by itself would not constitute ?substantial impairment? justifying

excusal for cause. As defendant observes, we have stressed in Stewart that a juror?s

?conscientious opinions or beliefs concerning the death penalty? that would make it

?very difficult for the juror ever to impose the death penalty? does not mean that

?such beliefs will ?substantially impair the performance of his [or her] duties as a

juror.? ? (Stewart, supra, 33 Cal.4th at p. 447.) By the same token, defendant asserts,

a juror who, as the trial court concluded here, cannot vote for death with a clear

conscience, nevertheless should be deemed qualified to sit in judgment at the penalty

trial so long as he or she still agrees to follow the law and vote to impose the death

penalty if warranted.

We find Stewart distinguishable in two key respects. First, Prospective Juror

J.A. expressed more than just a difficulty with imposing the death penalty. She said

she felt ?scared? at the prospect of sitting on a capital jury, and that she would carry

?guilt that a person would die because I said yes.? When the prosecutor probed those

comments, J.A. agreed that she ?probably really couldn?t with a clear consci[ence]

make that decision? to vote for a death sentence. Considering this record as a whole,

the trial court was within its discretion to conclude that J.A. would be substantially

impaired in her ability to serve on a capital case.

Second, the trial court in Stewart excused prospective jurors based solely on

their answers to a written question concerning whether their death penalty views

would ? ?prevent or make it very difficult? ? to determine the appropriate penalty, and

22




without engaging in oral voir dire. (Stewart, supra, 33 Cal.4th at pp. 444, 446-447.)

Our decision emphasized that ?a trial judge who observes and speaks with a

prospective juror and hears that person?s responses (noting, among other things, the

person?s tone of voice, apparent level of confidence, and demeanor), gleans valuable

information that simply does not appear on the record? (id. at p. 451), and we

observed: ?Had the trial court conducted a follow-up examination of each prospective

juror and thereafter determined (in light of the questionnaire responses, oral

responses, and its own assessment of demeanor and credibility) that the prospective

juror?s views would substantially impair the performance of his or her duties as a

juror in this case, the court?s determination would have been entitled to deference.?

(Ibid.; see People v. Avila (2006) 38 Cal.4th 491, 529 [trial court has opportunity to

assess prospective juror?s demeanor and tone of voice].)

Here there was such a followup examination. The court and the prosecutor

extensively questioned Prospective Juror J.A. orally, and the court considered both

her answers and her demeanor in excusing her for cause. We distinguished Stewart

on this same basis in People v. Tate (2010) 49 Cal.4th 635, in which the defendant

argued that a juror?s mere difficulty in imposing the death penalty is not a valid basis

for excusal. We observed that the trial court had engaged the juror in oral voir dire,

and held: ?Under such circumstances, a juror?s conflicting or ambiguous answers

may indeed give rise to the court?s definite impression about the juror?s qualifications,

and its decision to excuse the juror deserves deference on appeal.? (Id. at p. 674,

fn. 22; see People v. Thomas (2011) 52 Cal.4th 336, 360 [distinguishing Stewart];

People v. Lancaster (2007) 41 Cal.4th 50, 80 [same].)

For these reasons, we conclude that the record supports a conclusion that

Prospective Juror J.A. was indeed substantially impaired because, based on her

feelings of guilt, she could not impose a death sentence, and hence the trial court

did not err in granting the excusal for cause.

23




III. GUILT PHASE ISSUES



A. Sufficiency of the evidence to establish attempted robbery

and the related special circumstance

Robbery is ?the felonious taking of personal property in the possession of

another, from his person or immediate presence, and against his will,

accomplished by means of force or fear.? (? 211.) There was no actual robbery

with regard to Raymond Shield, but an attempt to commit a robbery is itself a

crime, and is punishable as such under section 213, subdivision (b). As noted,

defendant was charged with, and convicted of, attempted robbery of Shield. In

order to constitute such an attempt, the prosecution was required to prove (1) the

specific intent to commit robbery, and (2) an act ? described in section 21a as a

?direct but ineffectual act done toward its commission.?9

At the close of the prosecution?s case-in-chief, defendant moved under

section 1118.110 for entry of judgment of acquittal on the ground that the evidence

then before the court was insufficient to sustain a conviction concerning that

charge and the corresponding special circumstance allegation on appeal. The trial

court summarily denied the motion. Thereafter, after the verdict, defendant moved

for a new trial (? 1181, subd. 6) on grounds including asserted insufficiency of the


9

Section 21a provides: ?An attempt to commit a crime consists of two

elements: a specific intent to commit the crime, and a direct but ineffectual act
done toward its commission.?

10

Section 1118.1 provides in full: ?In a case tried before a jury, the court on

motion of the defendant or on its own motion, at the close of the evidence on
either side and before the case is submitted to the jury for decision, shall order the
entry of a judgment of acquittal of one or more of the offenses charged in the
accusatory pleading if the evidence then before the court is insufficient to sustain a
conviction of such offense or offenses on appeal. If such a motion for judgment of
acquittal at the close of the evidence offered by the prosecution is not granted, the
defendant may offer evidence without first having reserved that right.?

24




evidence of attempted robbery, and the trial court denied that motion as well.

Defendant now asserts that in each instance the trial court erred, because the

prosecution?s evidence failed to prove the elements of attempted robbery (that

defendant specifically intended to take property from Shield by force or fear, and

committed a direct act toward that goal) beyond a reasonable doubt. Invoking the

standard set forth in Jackson v. Virginia (1979) 433 U.S. 307, 319, defendant

asserts the evidence presented at the guilt phase as a whole was insufficient to

support a conviction of attempted robbery, and hence the attempted robbery

conviction must be reversed.

In considering whether the trial court erred in failing to grant the motion for

judgment of acquittal under section 1118.1 with regard to attempted robbery, we

ask whether ?there is any substantial evidence, including all reasonable inferences

to be drawn from the evidence, of the existence of each element of the offense

charged.? (People v. Mendoza (2000) 24 Cal.4th 130, 175.)11 When, as here, the

motion under section 1118.1 was made ?at the close of the prosecution?s case-in-

chief, the sufficiency of the evidence is tested as it stood at that point? in the trial

(People v. Trevino (1985) 39 Cal.3d 667, 695) ? in other words, based on the

prosecution?s case alone, and without considering the evidence subsequently


11

The same standard of review applies when a defendant asks the trial court

to review the legal sufficiency of the evidence after the jury has returned its
verdicts. (People v. Hatch (2000) 22 Cal.4th 260, 268-269.) We have since
clarified that a defendant seeking to challenge the legal sufficiency of the evidence
in the trial court after the case has been submitted to the jury should not move for
a new trial under section 1181, subdivision 6, but should instead invite the court?s
dismissal under section 1385. (Hatch, supra, at pp. 268-271; Porter v. Superior
Court
(2009) 47 Cal.4th 125, 133.)

25




adduced during the presentation of the defense case or evidence produced by the

prosecution on rebuttal.12

In assessing such a claim, we review the record ?in the light most favorable

to the judgment below to determine whether it discloses substantial evidence ?

that is, evidence which is reasonable, credible, and of solid value ? such that a

reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt.? (People v. Johnson (1980) 26 Cal.3d 557, 578.) ?The federal standard of

review is to the same effect: Under principles of federal due process, review for

sufficiency of evidence entails not the determination whether the reviewing court

itself believes the evidence at trial establishes guilt beyond a reasonable doubt,

but, instead, whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307,

317-320.)? (People v. Rodriguez (1999) 20 Cal.4th 1, 11 (Rodriguez).)

Moreover, as observed in Rodriguez: ?The standard of review is the same

in cases in which the prosecution relies mainly on circumstantial evidence.

(People v. Stanley (1995) 10 Cal.4th 764, 792.) ? ?Although it is the duty of the

jury to acquit a defendant if it finds that circumstantial evidence is susceptible of

two interpretations, one of which suggests guilt and the other innocence

[citations], it is the jury, not the appellate court[,] which must be convinced of the

defendant?s guilt beyond a reasonable doubt. ? ?If the circumstances reasonably

justify the trier of fact?s findings, the opinion of the reviewing court that the

circumstances might also reasonably be reconciled with a contrary finding does


12

We separately consider post, at footnote 14, the question of sufficiency of

evidence raised in the postverdict motion for a new trial under section 1181,
subdivision 6.

26




not warrant a reversal of the judgment.? ? [Citations.]? ? [Citation.]? (Rodriguez,

supra, 20 Cal.4th at p. 11, italics added; see generally People v. Clark (2011) 52

Cal.4th 856, 942-943 (Clark), and cases cited.)

We turn to defendant?s assertion that the evidence presented by the

prosecution in its case-in-chief, and considered by the trial court at the time it

ruled on his motion under section 1118.1 for a judgment of acquittal with regard to

attempted robbery, was insufficient to prove either required element: (1) specific

intent to rob Shield, or (2) a direct act toward robbing Shield.

1. Intent

The People assert that because the evidence introduced in their case-in-

chief showed that defendant and Martin robbed three victims with the use of a gun

immediately before arriving at the Holiday Inn, and that defendant and Martin

robbed another victim using that same gun shortly after leaving the Holiday Inn,

the evidence demonstrated that defendant was on a robbery spree and ?arrived at

the Holiday Inn with the intent of finding another robbery victim? ? and that

defendant settled on Mr. Shield and his family. Defendant asserts that the

evidence was insufficient to prove that he had focused his intent on Mr. Shield or

his family in particular, and that the evidence suggested that defendant and Martin

were simply on the lookout for robbery victims generally.

We disagree. The evidence showed that defendant and his cousin acquired

a gun, discussed committing robberies and then started committing them. After

stealing a driver?s truck and the passenger?s property, they selected a victim at the

bus station. When they learned he was traveling they observed that he ?must have

some money,? of which they relieved him at gunpoint. Within minutes they drove

to the Holiday Inn, where they saw a man unloading suitcases from a car,

apparently traveling like their last victim. Defendant pulled up next to

Mr. Shield?s car under the hotel?s covered entrance driveway, then got out of the

27




stolen truck and opened the hood, pretending to have car trouble. Based on this

record, we agree with the People that the evidence was sufficient to support the

conclusion by reasonable jurors that defendant had focused on and intended to rob

Mr. Shield or his family.

2. Overt act

The overt act element of attempt requires conduct that goes beyond ?mere

preparation? and ?show[s] that [defendant] is putting his or her plan into action.?

(People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 (Decker); see, e.g.,

People v. Toledo (2001) 26 Cal.4th 221, 230 [?Under the provisions of section

21a, a defendant properly may be found guilty of [an attempt crime] whenever,

acting with the specific intent to commit the offense . . . , the defendant performs

an act that goes beyond mere preparation and indicates that he or she is putting a

plan into action.?] see also CALJIC No. 6.00 [?Mere preparation . . . is not

sufficient to constitute an attempt.?] CALCRIM No. 460 [requiring a ?direct step?

that ?goes beyond planning or preparation and shows that a person is putting his or

her plan into action?].)

We repeatedly have acknowledged ? most recently, in Decker, supra, 41

Cal.4th 1 ? that the line between mere preparation and conduct satisfying the act

element of attempt often is difficult to determine; the problem ?is a question of

degree and depends upon the facts and circumstances of a particular case.? (Id., at

p. 14.) The act that goes ?beyond mere preparation? need not constitute an

element of the target crime (People v. Dillon (1983) 34 Cal.3d 441, 453-454

(Dillon)), and it ? ?need not be the ultimate step toward the consummation of the

design.? ? (People v. Memro (1985) 38 Cal.3d 658, 698.) Instead, ? ?it is

sufficient if [the conduct] is the first or some subsequent act directed towards that

end after the preparations are made.? ? (Ibid.) In other words, we have explained,

28




the act must represent ? ?some appreciable fragment of the crime.? ? (Ibid.; see

Dillon, supra, at p. 454.)

We briefly review cases in which we, and our Courts of Appeal, have found

sufficient evidence of the act element of attempted robbery.

People v. Anderson (1934) 1 Cal.2d 687, concerned the attempted robbery

of the ticket office attendant of the Curran Theater in San Francisco, resulting in

the shooting death of the attendant. Our analysis carefully distinguished between

?mere acts of preparation,? on one hand (id., at p. 690), and subsequent conduct

that ?passed far beyond the preparatory stage and constituted direct and positive

overt acts? establishing attempted robbery. (Ibid.) As we explained, although the

defendant admitted that he intended to rob the ticket office attendant (and hence in

that case, the intent element of criminal attempt was clearly shown and not in

dispute), his act of ?concealing the gun on his person and going to the general

vicinity of the Curran theater with intent to commit robbery? constituted ?mere

acts of preparation.? (Ibid.) And yet, when the defendant approached the ticket

office and pulled out his gun when he was approximately two feet from the office

window (and thereafter, accidentally or otherwise, fired the gun), this constituted a

direct, albeit ineffectual, act toward the intended robbery, satisfying the act

element of attempted robbery. (Ibid.)

In Dillon, supra, 34 Cal.3d 441, the evidence showed that the defendant

and seven others, armed and disguised, set off on foot for a marijuana farm, which

they knew from recent prior experience was protected by a farmer with a shotgun.

On appeal from a resulting homicide conviction premised upon attempted-robbery

felony-murder, we found substantial evidence from which a reasonable jury could

have found sufficient acts beyond mere preparation for robbery. The defendant

and his group had passed barricades posted with ?no trespassing? signs, and

arrived on the scene with guns, knives, clubs, masks, rope, and strips of sheeting.

29




After noticing armed guards patrolling the crop, they broke into four groups of

two, encircled the field, and awaited an opportunity to carry out the intended

robbery. The robbery was aborted only because one member of the defendant?s

group accidentally discharged his rifle, alerting a guard who subsequently

confronted the group, and who was then shot and killed by the defendant.

Although the ?defendant did not actually encroach on the marijuana field,? his

actions, we observed, ?went beyond mere preparation.? (Id., at p. 456.)

Also illustrative is a Court of Appeal decision, People v. Vizcarra (1980)

110 Cal.App.3d 858. In that case the defendant was observed standing on a four-

foot-wide walkway just outside a liquor store late at night, wearing a poncho. A

customer walked past and noticed that the defendant immediately turned his face

to the wall so that his nose was against the wall, and the customer also observed

the butt of a rifle protruding from the defendant?s poncho. The defendant then

immediately left the walkway and went to his car, which he had parked across the

street. The appellate court concluded that these facts ? parking very nearby

(which would facilitate a speedy departure from the scene), approaching within a

few feet of the front of the liquor store with a partly concealed rifle, and

attempting to hide by turning to the wall when observed by a customer ?

constituted sufficient direct actions toward robbing the liquor store.

With these and related cases in mind, the People argue, first, that the

conduct of defendant and Martin ? consisting of driving the stolen truck into the

Holiday Inn?s covered entrance driveway, parking, and then immediately getting

out of the truck to open the hood ? constituted a ruse to lure the victim to them so

that they could rob him. This, the People suggest, amounted to a direct act ? an

appreciable fragment of the crime that went beyond mere preparation ? sufficient

to establish attempted robbery of Raymond Shield. The People assert that ?when

30




defendant, by this ruse, caused Mr. Shield to walk over to [him] and Martin, the

preparation stage was over. All that remained was to make the robbery demand.?

In response, defendant cites People v. Buffum (1953) 40 Cal.2d 709, 718,

and related cases, for the proposition that the conduct necessary to establish

attempted robbery ?must not be equivocal in nature,? and he asserts that the

actions relied upon by the People were equivocal in nature. We conclude the

evidence was sufficient to support a finding by the jury that defendant and Martin

unequivocally engaged in a deliberate ruse to lure Mr. Shield to a place where, just

outside the view of his family, they continued their early-morning mission of

trying to rob victims they found along their way, by demanding property from

Mr. Shield by their words or actions.

The People additionally emphasize that immediately after the three men left

the area behind the truck hood, defendant, who had quickly gone back inside the

truck, shot Mr. Shield as he hurriedly walked back toward his family. The People

assert that a reasonable juror could have inferred from this that some kind of act in

furtherance of robbery ? a demand for money or display of the gun ? must have

occurred behind the hood of the truck.13 The People acknowledge in their brief

that it is ?possible that Mr. Shield retreated for reasons other than [defendant?s]

having demanded money,? but they assert that ?the reasonable inference is

otherwise.?


13

In argument to the jury, the prosecutor asserted that the evidence was

?consistent with, ?Buddy, give me your money? or ?this is a robbery,? or some
other words to let him know what they were doing there. [Defendant] [s]howed
him the gun, [and said] ?I want your wallet.? [?] We will never know what was
said, but inferentially we can figure what type of information, what message was
being given there, [it must have been] ?This is a robbery.? ?

31




Defendant insists that such an inference would have been unduly

speculative, and hence unreasonable. He emphasizes that although reasonable

inferences may constitute substantial evidence in support of a conviction, and that

although we are obligated to view the facts in the light most favorable to the

judgment and avoid second-guessing inferences that could reasonably be drawn by

jurors, ? ?[a]n inference is not reasonable if it is based only on speculation.? ?

(People v. Hughes (2002) 27 Cal.4th 287, 365 (Hughes).) Moreover, he cautions,

although the evidence may raise a suspicion that acts of attempted robbery

occurred while the three men stood behind the truck hood, as we observed in

People v. Redmond (1969) 71 Cal.2d 745, 755, evidence that ?merely raises a

strong suspicion of the defendant?s guilt is not sufficient to support a conviction.

Suspicion is not evidence . . . .?

We conclude that on the facts presented, defendant?s conduct was sufficient

to support a conclusion by the jurors that some act in furtherance of robbery must

have occurred, unseen by members of the Shield family, behind the hood of the

truck. As noted, defendant committed three completed armed robberies within a

few hours of the charged attempted robbery, displaying a gun in each; he parked

the stolen truck in a place and in a manner well suited to attract potential victims

and to provide concealment, opening the hood even though the truck was

functioning properly; and Mr. Shield, after noticing defendant?s wave and joining

him and Martin behind the hood of the truck, then hurried away as if something

were wrong. Finally, the jury reasonably could have concluded that defendant?s

subsequent act of pulling the ?heavy? trigger and discharging a single shot into

Mr. Shield?s arm and abdomen as he was walking away, suggested consciousness

of guilt following consummation of a robbery attempt.

32




It follows that the trial court did not err in denying defendant?s motion for

acquittal under section 1118.1 with regard to attempted robbery.14 In light of our

conclusion that the evidence was sufficient to support the charge of attempted

robbery, we also reject defendant?s related claim that the evidence was insufficient

to prove the robbery-murder special circumstance, section 190.2, subdivision

(a)(17)(A).


14

Nor did the trial court err in similarly denying defendant?s postverdict

motion for a new trial (? 1181, subd. 6) challenging the sufficiency of the
evidence. Defendant claims that, taking into account his testimony, there was no
substantial evidence that an attempted robbery occurred. Defendant?s own
testimony confirmed a general intent to look for robbery victims on the morning in
question, even though he expressly disclaimed any intent to rob Mr. Shield or
members of his group and also asserted that the hotel?s entrance driveway area
was too well lighted to serve his purposes. With regard to the act element,
defendant testified that in response to Mr. Shield?s making eye contact with him
while he stood at the open hood of the truck, he had waved ?hi? to Mr. Shield, in
order not to look ?too suspicious.? Finally, defendant testified that he is left-
handed, and that the gun discharged from his right hand.


The jury, of course, was not obligated to credit any of these aspects of

defendant?s testimony. (See People v. Hatch, supra, 22 Cal.4th at p. 272 [when a
defendant challenges a verdict on the ground of legal insufficiency, the trial court
?must review ?the whole record in the light most favorable to the judgment? and
decide ?whether it discloses substantial evidence . . . such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt? ?].) With regard
to the intent element of attempted robbery in particular, the jury reasonably could
conclude that defendant?s assertion that he was looking for a solitary victim, and
that the lighting was too bright at the hotel?s covered entrance driveway, was
inconsistent with the facts in the other cases. The carjacking involved two young
male victims and took place in the ?fairly well lit? parking lot of an open market.
The male bus station victim described the area as ?very well lit.? The last offense
was the daytime robbery of an open business. Further, the jury could have
concluded that if defendant had merely intended to ?watch and wait,? he could
easily and more safely have done so from somewhere else in the parking lot, rather
than by parking almost in front of the hotel door and drawing further attention by
raising the truck?s hood.

33




B. Failure to specifically charge first degree murder and to

require unanimous agreement on a particular theory

of first degree murder

Defendant complains that the prosecution charged him with murder in

violation of section 187, subdivision (a), rather than specifying first degree murder

under section 189, and asserts that the prosecution was therefore limited to

proving second degree murder. As he acknowledges, we considered and rejected

the same arguments in Hughes, supra, 27 Cal.4th at pages 368-370, and People v.

Nakahara (2003) 30 Cal.4th 705, 712 (Nakahara), and we see no reason to

reconsider.

It is clear from the record that defendant received adequate notice that the

prosecution was attempting to prove first degree murder, and of its theory in

support of that offense. At the time of the preliminary hearing, defendant knew

that the prosecution was pursuing a special circumstance finding premised on the

attempted robbery of Mr. Shield. The second amended information specifically

alleged under section 190.2, as a special circumstance, that the murder was

committed in the course of the attempted robbery of Mr. Shield ? thereby

providing notice that the prosecution was attempting to prove first degree murder.

Indeed, defendant moved unsuccessfully to dismiss that special circumstance

allegation. Moreover, well before trial, the prosecution announced its intention to

seek the death penalty ? again, a sentence that was legally predicated on a first

degree murder conviction.

Defendant also asserts the trial court erred (1) by not instructing the jury

that it must unanimously agree on a particular theory of first degree murder ?

premeditation and deliberation or felony murder ? and (2) by instead, over his

objection, giving the People?s proposed instruction to the contrary: ?For the jury

to return a verdict of first degree murder as to any defendant it is not necessary

that all jurors agree on the same theory of first degree murder.? We repeatedly

34




have held that no instruction requiring such unanimity is required, and that it is

sufficient that the jury be directed that it must find proof ? ?beyond a reasonable

doubt of the single offense of first degree murder as defined by statute.? ? (People

v. Moore (2011) 51 Cal.4th 386, 413; accord, People v. Pride (1992) 3 Cal.4th

195, 249; see also Nakahara, supra, 30 Cal.4th at p. 712 [?although the two forms

of murder have different elements, only a single statutory offense of murder

exists? and ?need not be separately pleaded?].) The challenged instruction was

proper.

C. Sufficiency of the evidence to prove

first degree murder

The jury was instructed that it could find defendant guilty of first degree

murder based upon either (1) a felony murder theory, premised on attempted

robbery, or (2) a theory of premeditated and deliberate murder.15

In light of our conclusion that the evidence was sufficient to support the

charge of attempted robbery, we reject defendant?s related claim that the evidence

was insufficient to prove murder on a felony murder theory. Nor do we find that

the evidence presented to the jury was insufficient to support a determination of

premeditated and deliberate murder. (See, e.g., People v. Anderson (1968) 70

Cal.2d 15, 26-27 [identifying three factors commonly present in cases of

premeditated and deliberated murder: planning activity, motive, and manner of

killing]; see also People v. Koontz (2002) 27 Cal.4th 1041, 1081 (Koontz)

[applying the three factors and noting that they reflect a ? ?framework? ? for


15

The jury also was instructed on second degree murder and involuntary

manslaughter, but in light of its first degree murder determination, did not return
verdicts on those charges.

35




? ?assessing whether the evidence supports an inference that the killing resulted

from preexisting reflection and weighing of considerations? ?].)

As we have often observed, ? ?[t]he process of premeditation and

deliberation does not require any extended period of time. ?The true test is not the

duration of time as much as it is the extent of the reflection. Thoughts may follow

each other with great rapidity and cold, calculated judgment may be arrived at

quickly. . . . .? [Citations.]? [Citation.]? (Koontz , supra, 27 Cal.4th at p. 1080.)

We find sufficient evidence of planning (carrying the loaded, concealed pistol to

the position behind the hood of the truck), motive (to effectuate a robbery or its

attempt by killing the victim-witness, or simple revenge because Mr. Shield did

not relinquish money) and a manner of killing indicative of intent to kill (a shot

fired from a pistol with a heavy trigger pull, which hit the victim?s elbow and

abdomen as the victim walked quickly away). Viewed as a whole, the evidence

supports a finding of premeditated and deliberate murder.

D. Instructions on consciousness of guilt

Defendant asserts the court erred in giving three standard instructions on

consciousness of guilt (CALJIC Nos. 2.03 [?Consciousness of Guilt ?

Falsehood?] 2.06 [?Efforts to Suppress Evidence?], and 2.52 [?Flight After

Crime?]), and that these alleged instructional errors denied him due process, a fair

trial, a jury trial, and equal protection, as well as reliable jury determinations of

guilt, the special circumstance, and penalty under the federal and state

Constitutions.

Each challenged instruction made clear that the jury ?may? consider certain

described conduct as a circumstance tending to prove consciousness of guilt, but

each also cautioned that such conduct is not sufficient by itself to prove guilt, and

that the weight or significance of the conduct, if any, constituted matters for the

jury?s consideration.

36




CALJIC No. 2.06, as modified, permitted the jurors to infer consciousness

of guilt if they found that defendant ?attempted to suppress evidence against

himself in any manner, such as concealing evidence or refusing to stand in a

lineup . . . .? This instruction was supported by evidence that (1) defendant or

Martin, after fleeing Steve?s Market, hid the gun they had used in a crack in a

brick wall; and (2) defendant thereafter refused to stand in a lineup. Focusing

solely on the second basis for the instruction, defendant now asserts that it

?equated the refusal to stand in a lineup with suppression of evidence, thereby

removing this factual determination from the jury.? Defendant insists that he had

a valid reason for declining to stand in the lineup: He told the police that he was

aware he had been photographed by them, and he was concerned that those photos

had been shown to persons who would witness any lineup. According to

defendant, ?the jury could have found that his refusal was not an attempt to

suppress evidence, and therefore, did not show consciousness of guilt. However,

given the directive that the refusal to stand in the lineup was an attempt to

suppress evidence, the jury was unlikely to have understood that it was free to

reject the instruction?s inference.? We reject defendant?s characterization of the

instruction as a directive that the refusal to stand in the lineup was in fact an

attempt to suppress evidence. The instruction merely clarified the permissible use

of certain evidence if the jury found the evidence to be true.

A defendant?s refusal to participate in a lineup is admissible evidence

supporting an inference of consciousness of guilt. (People v. Johnson (1992) 3

Cal.4th 1183, 1235.) We agree with the People that ?the mere fact that

[defendant] had voiced a reason for his refusal did not require the court to make a

specific finding that [defendant?s] excuse was credible. Nor was the court obliged

to find that [defendant?s] professed reason for nonparticipation eliminated a

reasonable inference of consciousness of guilt.? Clearly there was ?some evidence

37




in the record that, if believed by the jury, would sufficiently support the suggested

inference.? (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102, italics

added (Coffman and Marlow).)16 Defendant remained free, however, to argue to

the jury that his refusal to stand in the lineup did not, in fact, reflect consciousness

of guilt.

Defendant challenges two additional consciousness of guilt instructions.

CALJIC No. 2.03, covering ?a willfully false or deliberately misleading statement

concerning the crimes for which he is now being tried,? was supported by

evidence that defendant gave a false name (?Jeffrey Scott?) upon arrest. CALJIC

No. 2.52, permitting the jury to infer consciousness of guilt based on ?the flight of

a person immediately after the commission of a crime,? was supported by

evidence that defendant and Martin indeed fled from each of the four crime

scenes.

Defendant acknowledges that we repeatedly have approved use of such

instructions in analogous circumstances. (E.g., People v. McWhorter (2009) 47

Cal.4th 318, 377; People v. Crew (2003) 31 Cal.4th 822, 848-849 [CALJIC

No. 2.52 and a related consciousness of guilt instruction were supported by

sufficient evidence and did not constitute improper ?pinpoint? instructions]; see

also People v. Geier (2007) 41 Cal.4th 555, 589 [? ?[t]he inference of

consciousness of guilt from willful falsehood or fabrication or suppression of

evidence is one supported by common sense, which many jurors are likely to


16

Although defendant does not press the point, we note that the evidence that

either defendant or Martin hid the gun after fleeing Steve?s Market also amply
supported the instruction. (People v. Visciotti (1992) 2 Cal.4th 1, 61 [such an
instruction is proper even if the evidence showed that the codefendant, acting on
behalf of and with the encouragement of the defendant, concealed the weapon].)

38




indulge even without an instruction? ?].) He urges us to reconsider, but we see no

basis to do so.

Defendant insists that it would be irrational for a jury to infer from

defendant?s general consciousness of guilt that he also had the requisite mental

state for attempted robbery of Raymond Shield, and for first degree murder of

Shield. As noted earlier, however, each instruction made clear that the jury was

simply permitted to consider the described conduct as tending to prove a

consciousness of guilt. Each instruction also cautioned that such conduct is not by

itself sufficient to prove guilt ? and that the weight or significance of the conduct,

if any, constituted matters for the jury?s consideration. Moreover, each instruction

?told the jury only that [the conduct] may bear on ?consciousness of guilt (italics

added); a reasonable jury would understand this phrase to mean only

?consciousness of some wrongdoing,? not consciousness of each and every

element of the charged offense.? (People v. Arias (1996) 13 Cal.4th 92, 142,

quoting People v. Crandell (1988) 46 Cal.3d 833, 871; see Crandell, at p. 871

[?The instructions do not address the defendant?s mental state at the time of the

offense and do not direct or compel the drawing of impermissible inferences in

regard thereto.?].)

We conclude that the court did not err in giving the challenged

consciousness of guilt instructions.

E. Instructions on motive and circumstantial evidence

Defendant advances a number of meritless objections to various other

standard guilt phase instructions.

1. Motive

The trial court instructed the jurors pursuant to CALJIC No. 2.51 (5th ed.

1988), as follows: ?Motive is not an element of the crime charged and need not be

shown. However, you may consider motive or lack of motive as a circumstance in

39




this case. Presence of motive may tend to establish guilt. Absence of motive may

tend to establish innocence. You will therefore give its presence or absence, as the

case may be, the weight to which you find it to be entitled.?

Defendant claims this instruction violated his rights to a fair trial, due

process and a reliable verdict in a capital case. He asserts that the instruction (1)

implied that evidence of motive is sufficient by itself to prove guilt because the

instruction did not specify that motive alone was insufficient; (2) lessened the

prosecution?s burden of proof; and (3) shifted the burden of proof to defendant to

prove his innocence.

We considered and rejected defendant?s arguments in People v. Cleveland

(2004) 32 Cal.4th 704 (Cleveland). We held that the instruction merely informs

the jury that it may consider motive when weighing the evidence, and does not

shift the burden from the prosecution and onto the defendant. (Id., at p. 750; see

People v. Taylor (2010) 48 Cal.4th 574, 632 (Taylor).) Here, as in Cleveland, the

trial court, in addition to giving the challenged motive instruction, properly

instructed the jury under CALJIC No. 2.90 that guilt must be proved beyond a

reasonable doubt. (Cleveland, supra, at p. 750.) Also, as in Cleveland, ?[w]e find

no reasonable likelihood [that] the jury would infer from the motive instruction

that motive alone could establish guilt? ? or that the instruction lessened the

prosecution?s burden of proof, or shifted the burden of proof to him. (Ibid.)

2. Circumstantial evidence and related instructions

In addition to giving the jury the standard reasonable doubt instruction, the

trial court also read to the jury the standard circumstantial evidence instructions,

CALJIC Nos. 2.01 (?Sufficiency of Circumstantial Evidence ? Generally?), 2.02

(?Sufficiency of Circumstantial Evidence to Prove Specific Intent or Mental

State?), 8.83 (?Special Circumstances ? Sufficiency of Circumstantial Evidence

? Generally?), and 8.83.1 (?Special Circumstances ? Sufficiency of

40




Circumstantial Evidence to Prove Required Mental State?). Defendant asserts

these instructions undermined the constitutional requirement that guilt be proved

beyond a reasonable doubt.

We disagree. The instructions were supported by the evidence and these

constitutional claims have previously been rejected by this court. (See Hughes,

supra, 27 Cal.4th at p. 346; People v. Kipp (1998) 18 Cal.4th 349, 374-375;

Koontz, supra, 27 Cal.4th at pp. 1084-1085.) Although defendant asks us to

reconsider, he advances no persuasive reason to do so.

Defendant also asserts that other standard given instructions ? CALJIC

Nos. 1.00 (?Respective Duties of Judge and Jury? ), 2.21.1 (?Discrepancies in

Testimony?), 2.21.2 (?Witness Willfully False?), 2.22 (?Weighing Conflicting

Testimony?), 2.27 (?Sufficiency of Testimony of One Witness?), 2.51 (?Motive?),

and 2.52 (?Flight After Crime?) in combination ?vitiated? the reasonable doubt

standard and instruction. Again, we have rejected these claims in the past

(Cleveland, supra, 32 Cal.4th at p. 750), and we are presented no persuasive

reason to do otherwise now.

F. Alleged misconduct by the prosecutor during

cross-examination of defendant

During direct examination, defendant testified that he was ?very sorry? for

having killed Mr. Shield, and that because he could imagine his own loss if

someone had shot his own mother, he was deeply affected by the testimony of the

victim?s daughter, Pamela Joyce Coryell. In response to these expressions of

remorse, the prosecutor asked defendant on cross-examination why he had been

seen ?laughing and carrying on? when outside the jury?s presence. Defense

counsel objected, arguing that defendant?s laughter outside the jury?s presence was

simply a normal mechanism for releasing tension and reflected nothing else. The

court sustained defense counsel?s objection to the prosecutor?s question on

41




evidentiary grounds, ruled the inquiry barred under Evidence Code section 352,

struck the prosecutor?s question, and admonished the jury to disregard the question

and any answer.

Later on cross-examination, in response to the prosecutor?s questions

concerning defendant?s testimony that he and Martin had decided to ?try one more

robbery? after the unsuccessful Holiday Inn incident, defendant at one point

explained that they ?decided to probably rob this place, get one more shot . . . .?

The prosecutor remarked ? and then repeated: ?No pun intended?? Defense

counsel stated, ?Your honor, I think he has made his point? ? to which the court

responded, ?Next question, counsel.?

Defendant claimed in his unsuccessful motion for a new trial that both of

these incidents constituted prejudicial misconduct. He reasserts those claims on

appeal as violations of his constitutional rights to due process, a fair trial,

confrontation and cross-examination, and reliable, nonarbitrary determinations of

guilt and penalty under the federal and state Constitutions.

In rejecting defendant?s new trial motion, the trial court reasoned that the

prosecutor?s questioning about defendant?s laughter constituted permissible

impeachment concerning the genuineness of defendant?s professed remorse. In

any event, the court reasoned, it was nonprejudicial in light of the trial court?s

evidentiary ruling and admonition to the jury to disregard the question and answer.

The trial court also noted that in view of its own observations of defendant?s

?inappropriate? demeanor ?in and out of the presence of the jury,? the prosecutor

had a ?good faith basis? for engaging in that line of questioning.

Improper comments by a prosecutor require reversal of a resulting

conviction when those comments so infect a trial with unfairness that they create a

denial of due process. (Clark, supra, 52 Cal.4th at p. 960; People v. Earp (1999)

20 Cal.4th 826, 858 (Earp), and cases cited.) Conduct by a prosecutor that does

42




not reach that level nevertheless constitutes misconduct under state law, but only if

it involves the use of deceptive or reprehensible methods to persuade the court or

jury. (Earp, supra, at p. 858.) In order to preserve such claims for appellate

review, as a general matter the defendant must object below and request an

admonition, if an admonition would have cured the harm caused by the

misconduct. (Ibid.)

With regard to the prosecutor?s comments concerning defendant?s

demeanor during trial but outside the jury?s presence, as the People observe,

defendant testified and, in doing so, put his contemporaneous feelings of remorse

at issue. Moreover, the court recounted that it had observed defendant?s

inappropriate demeanor both in and outside the jury?s presence. Accordingly,

because the court found that the prosecutor?s question was posed in good faith and

the prosecutor sought to explore defendant?s testimony about remorse for having

killed Mr. Shield, the prosecutor did not commit misconduct. In any event, the

question did not infect the trial with such unfairness as to result in a denial of due

process (see Earp, supra, 20 Cal.4th at p. 858, and cases cited) and there is no

reason to doubt that the court?s admonition adequately cured any harm. (People v.

Elliot (2012) 53 Cal.4th 535, 554-555; People v. Tate, supra, 49 Cal.4th at

pp. 688-689; cf. People v. Coddington (2000) 23 Cal.4th 529, 631; People v.

Montiel (1993) 5 Cal.4th 877, 915.)

Finally, with regard to the ?no pun intended? remark, defendant forfeited

any claim by failing to object and seek an admonition. In any event, the remark,

even if misconduct, was nonprejudicial in light of the undisputed evidence that

defendant shot Mr. Shield.

43




IV. PENALTY PHASE ISSUES

A. Alleged misconduct by the prosecutor

during the penalty phase trial

Under section 190.3, factor (b), criminal activity by a defendant involving

the use of violence is a statutory aggravating factor that the jury must consider

when deciding whether to impose the death penalty. As mentioned previously, the

prosecution presented three examples of such uncharged postarrest conduct by

defendant. When examining witnesses at the penalty phase trial concerning the

first two of those events, described ante, part I.D. ? the county jail dorm fight in

which defendant and other Black inmates fought a group of Hispanic inmates, and

the June 1991 attack by defendant and four other inmates on Russell Cross, after

Cross sat on the bunk of a Black inmate ? the prosecutor elicited testimony from

witnesses that those two attacks appeared to be racially motivated. Defendant now

characterizes this as an irrelevant and inflammatory interjection by the prosecutor,

designed to imply to the ?white and Hispanic jury? that the underlying charged

offenses were themselves racially motivated, and thereby to insert racial animosity

into the penalty trial.

Defendant failed to object to this cross-examination or seek an appropriate

admonition at the time, but quite soon after ? at the commencement of the

afternoon session following the now challenged cross-examination and testimony

? he moved for a mistrial, contending that the prosecutor had attempted to

prejudice the jury by his cross-examination. The trial court denied the motion.

We agree with defendant that the claim is not forfeited.

The People assert that ?the prosecutor merely adduced unobjectionable

eyewitness testimony that when [defendant] took active part in two postarrest

violent attacks on jail inmates, those attacks appeared to be racially motivated.

That testimony was relevant to explain the circumstances of the attacks and

44




[defendant?s] motive for the assaults? ? neither of which, the People argue,

?would make sense without that information.?

Certainly section 190.3, factor (b) did not bar the prosecution from eliciting

evidence of the circumstances surrounding the criminal violence, or limit the

prosecution to presenting merely the bare facts of the criminal violence. (See

People v. Bradford (1997) 15 Cal.4th 1229, 1377 [noting that ?the issue of other

violent criminal activity encompasses not only the existence of such activity but

also all the pertinent circumstances of that activity? and that it is appropriate for

the prosecution to place evidence of violent criminal activity into context].)17 We

find no misconduct.

B. Death sentence for ?felony murder simpliciter?

and alleged violation of international law

Defendant notes that his eligibility under California law for the death

penalty hinges on his conviction of felony murder and the related robbery-murder

special circumstance. He observes that under state law, a defendant who is

convicted of murder during the commission or attempted commission of robbery

may be executed even if the killing was unintentional or accidental ? which, as

noted earlier, he claims the killing in this case was. He asserts that the Eighth

Amendment to the federal Constitution, and international law, both require

additionally a finding that he killed with some culpable state of mind, such as

intent to kill or at least recklessness, before he can be subjected to the death


17

Defendant?s related contention that the prosecutor?s conduct violated

international law fails because (1) ? ?[i]nternational law does not prohibit a
sentence of death rendered in accordance with state and federal constitutional and
statutory requirements? ? (People v. Brown (2004) 33 Cal.4th 382, 404 (Brown),
and (2) we find no such state or federal law defect in this case. (See Taylor, supra,
48 Cal.4th at p. 661; Brown, at pp. 403-404.)

45




penalty. Defendant notes that only five states allow capital punishment for a

felony murderer without regard to his or her state of mind, and argues that the

possibility he killed accidentally renders the death penalty disproportionate and

unconstitutional.

We have long recognized that imposition of a death sentence premised on

felony murder, in circumstances in which, as here, the defendant is the actual

killer, is indeed constitutional. (E.g., Taylor, supra, 48 Cal.4th at p. 661 [when a

defendant is charged with special circumstance felony murder, the prosecution

need prove neither ?intent to kill nor reckless indifference to life? as a required

element of the offense so long as ?the defendant is the actual killer? of the victim];

accord, Earp, supra, 20 Cal.4th 936, 905.)18 Because, as observed ante, footnote

17, international law does not prohibit a sentence of death rendered in accordance

with state and federal constitutional and statutory requirements, defendant?s

related international law claim also fails. (See Taylor, supra, at p. 661.)

C. Absence of ?intercase proportionality review?

Defendant asserts that the federal Constitution requires ?intercase

proportionality? review ? a comparison of the imposed sentence with sentences

in other similar cases. He argues that failure to provide such review on appeal

violates his ?Eighth Amendment right to be protected from the arbitrary and

capricious imposition of capital punishment and also violates his Fourteenth

Amendment right to equal protection of the law.?


18

By contrast, when the defendant is an aider and abettor rather than the

actual killer, intent to kill, or at least reckless indifference to human life, must be
proved. (People v. Anderson (1987) 43 Cal.3d 1104, 1146-1147; ? 190.2,
subd. (c).)

46




The absence of a comparative proportionality review under California?s

death penalty law does not render the law or sentence unconstitutional. (See

Pulley v. Harris (1984) 465 U.S. 37, 50-51; People v. Verdugo (2010) 50 Cal.4th

263, 305, and cases cited.) ? ?Nor does the circumstance that intercase

proportionality review is conducted in noncapital cases cause the death penalty

statute to violate defendant?s right to equal protection and due process.? ?

(Verdugo, supra, at p. 305; see People v. Manriquez (2005) 37 Cal.4th 547, 590.)

D. General challenges to the death penalty statute

and instructions

Defendant raises several unmeritorious challenges to California?s death

penalty statute, section 190 et seq., and the related standard CALJIC sentencing

instructions.

Contrary to his assertions, ?[t]he death penalty law is not unconstitutional

for failing to impose a burden of proof ? whether beyond a reasonable doubt or

by a preponderance of the evidence ? as to the existence of aggravating

circumstances, the greater weight of aggravating circumstances over mitigating

circumstances, or the appropriateness of a death sentence. [Citation.] Unlike the

statutory schemes in other states cited by defendant, in California ? ?the sentencing

function is inherently moral and normative, not factual? [citation] and, hence, not

susceptible to a burden-of-proof quantification.? [Citations.]? (Brown, supra, 33

Cal.4th at p. 401.) Moreover, ?[t]he jury is not constitutionally required to achieve

unanimity as to aggravating circumstances.? (Id., at p. 402; see People v. Cowan

(2010) 50 Cal.4th 401, 489, and cases cited.)

Defendant asserts the trial court erred by instructing pursuant to CALJIC

No. 8.84 (?Penalty Trial ? Introductory?), setting out the penalties of ?death or

imprisonment in the state prison for life without possibility of parole . . . .? He

observes that during jury selection, one of the prospective jurors expressed

47




concern that a person sentenced to life imprisonment could be paroled from

prison. Thereafter, at the request of both parties, immediately prior to the exercise

of peremptory challenges the trial court informed the jury that ?life without

possibility of parole means just that, life without possibility of parole.? Defendant

complains that a similar instruction was not given prior to penalty phase

deliberations, advising the jury that he ?would never be considered for release on

parole.? Instead, prior to deliberations, the trial court simply instructed the jury

pursuant to CALJIC No. 8.84, which, defendant asserts, inadequately informed the

jury that a sentence of confinement in state prison for life without possibility of

parole would render him ineligible for release from prison on parole. We

repeatedly have rejected this claim and versions of it. (People v. Ervine (2009) 47

Cal.4th 745, 798; People v. Prieto (2003) 30 Cal.4th 226, 269-271.)

Defendant also faults the trial court for instructing pursuant to CALJIC

No. 8.85 (?Penalty Trial ? Factors for Consideration?), concerning the statutory

mitigating and aggravating sentencing factors set out in section 190.3 to be

considered in determining whether to impose a sentence of death or life without

possibility of parole, and CALJIC No. 8.88 (?Penalty Trial ? Concluding

Instruction?), concerning the jury?s obligations in reaching a penalty

determination.

Regarding CALJIC No. 8.85, defendant reasserts claims rejected many

times previously. We adhere to our prior decisions in rejecting defendant?s

argument that section 190.3, factor (a) ? the ?circumstances of the crime? factor

? is unconstitutionally vague and ambiguous, and fails to adequately narrow the

bases for imposing the death penalty, thus rendering the sentence arbitrary and

capricious. (See People v. Foster (2010) 50 Cal.4th 1301,1363-1364; People v.

Kipp (2001) 26 Cal.4th 1100, 1137; see also Hughes, supra, 27 Cal.4th at pp. 403-

404.) Nor was the jury improperly instructed on the ?force or violence? factor

48




under section 190.3, factor (b). We have rejected claims that (1) the jury must be

instructed to unanimously agree that the defendant committed each alleged act of

violence before that act may be considered by the jury; (2) consideration of

?unadjudicated? criminal acts by the defendant violated his due process or equal

protection rights; (3) failure to require a unanimous jury finding on the

unadjudicated acts of violence denied the defendant his Sixth Amendment right to

a jury trial; and (4) the Eighth Amendment requires a unanimity instruction

concerning factor (b) evidence. (Lewis, supra, 43 Cal.4th at pp. 533-534; Kipp,

supra, at p. 1138, and cases cited; Brown, supra, 33 Cal.4th at p. 402.)

Regarding the jury?s penalty determination process, defendant asserts that

some of the terms employed in CALJIC No. 8.88 ? ?so substantial? and

?warrant[]? ? together with the instruction?s alleged failure to expressly inform

the jurors that the central determination is whether death is the appropriate

punishment, rendered the instruction vague and misleading. He further observes

that the instruction failed to specify that if aggravating factors do not outweigh

those in mitigation, a sentence of life in prison without possibility of parole is

mandatory. Finally, he argues, the instruction failed to inform the jury that neither

party bore the burden of persuasion. As the People observe, we have repeatedly

considered and rejected these and related arguments. (See, e.g., Lewis, supra, 43

Cal.4th at p. 533 [the term ?so substantial? is not unconstitutionally vague under

the federal Constitution?s Eighth Amendment]; Coffman and Marlow, supra, 34

Cal.4th at p. 124; People v. Crew, supra, 31 Cal.4th at p. 858.)

Finally, defendant reprises other oft-rejected claims: that the trial court was

obligated to delete assertedly inapplicable statutory factors (see People v. Bramit

(2009) 46 Cal.4th 1221, 1248); that the jury must be instructed which factors are

aggravating and which are mitigating (People v. Gutierrez (2002) 28 Cal.4th 1083,

1151; People v. Raley (1992) 2 Cal.4th 870, 919); that use of adjectives such as

49




?extreme? violated various constitutional rights (People v. Yeoman (2003) 31

Cal.4th 93, 165); and that written findings are required with regard to aggravating

factors (Lewis, supra, 43 Cal.4th at p. 533; People v. Davis (1995) 10 Cal.4th 463,

549). He asserts that these alleged defects, coupled with the absence of intercase

proportionality review, amounts to an unconstitutional deprivation. We agree with

the People: ?One cannot add a group of negative numbers and obtain a positive

sum.?

E. Asserted cumulative error and violation of international law

For similar reasons we reject defendant?s contention that ?cumulative error?

requires reversal ? there being no error to cumulate. We also reject his repeated

assertion that international law bars his sentence. (See ante, fn. 17.)

V. CONCLUSION

We affirm the judgment in its entirety.

CANTIL-SAKAUYE, C. J.

WE CONCUR:


KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.

50




See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Watkins
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S026634
Date Filed: December 17, 2012
__________________________________________________________________________________

Court:
Superior
County: Los Angeles
Judge:
Robert M. Martinez

__________________________________________________________________________________

Counsel:

Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointments by the Supreme Court,
and Nina Rivkind, Deputy State Public Defender, for Defendant and Appellant.

Bill Lockyer, Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Robert R. Anderson and
Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General,
John R. Gorey, Louis W. Karlin, Keith H. Borjon and Stephanie A. Miyoshi, Deputy Attorneys General,
for Plaintiff and Respondent.
















Counsel who argued in Supreme Court (not intended for publication with opinion):

Nina Rivkind
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Stephanie A. Miyoshi
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-8784