People v. Harris


43 Cal. 4th 1269, 185 P.3d 727, 78 Cal. Rptr. 3d 295

Filed 6/19/08



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S037625

v.

LANELL CRAIG HARRIS,

Los Angeles County

Defendant and Appellant.

Super. Ct. No. LA008803



(Bert Glennon, Jr.)




A jury sentenced defendant Lanell Craig Harris to death after finding him

guilty of first degree murder during the commission of a robbery, attempted

murder, and three counts of robbery, all with personal use of a firearm.1 The jury

hung on another murder charge, and on whether the attempted murder was

premeditated. This appeal is automatic. We affirm the judgment.

I. FACTS

The facts may be briefly stated for background purposes; further details and

procedural matters will be discussed in connection with defendant?s contentions.

A.

Guilt Phase

1. Prosecution

a. The Contreras Murder

On the evening of August 7, 1991, defendant approached a group of men

gathered in a grassy area of the Van Nuys Recreational Center. Defendant asked




1 Penal Code sections 187, subdivision (a), 190.2, subdivision (a)(17), 664,

211, 1203.06, subdivision (a)(1), and 12022.5, subdivision (a). Further statutory
references are to the Penal Code, unless otherwise specified.

1


if they had drugs to sell; when they said no, he offered to sell them a camera. No

one wanted the camera. When one of the men offered defendant a cup of soup, he

became angry and knocked the cup to the ground. Another man, Alfredo Calleros,

saw defendant try to pull up a large pipe that was partially buried in the ground.

Calleros picked up a milk crate and prepared to throw it at defendant. Defendant

left, saying he would be back.

Defendant returned with another man about 15 minutes later. He

approached Calleros and tried to shoot him, but the handgun misfired. As Calleros

ran, defendant pointed the gun skyward and pulled the trigger. This time it fired.

Most of the men in the area fled, but a group playing cards remained. Defendant

and his companion approached them. Defendant aimed the gun at Efren Reyes?s

head and took money from his pocket. Defendant?s companion took money from

Reynaldo Villatoro.

Defendant approached Julian Contreras and reached for his wallet. When

Contreras resisted, defendant shot him in the thigh. Contreras fell and defendant

shot him twice more in the back. Defendant took Contreras?s wallet and left with

his companion. Contreras died at the hospital.

b. The Rodriguez Murder

The murder charge on which the jury was unable to reach a verdict arose

from events in January 1991 in Los Angeles. On the night of January 2, Alba

Rodriguez went with her mother Marta to a Winchell?s donut shop where Marta

worked. Around midnight, Marta left to get supplies from another store. She

returned and tapped on the door, signaling Alba to open it. As Alba approached

the door, she saw defendant standing at the service window. The door was stuck

closed; Marta told Alba to wait on the customer. Alba noticed that defendant had

trouble speaking when he gave his order. While Alba was preparing the order, she

heard her mother scream. Alba ran to the door and saw Marta struggling with

defendant, who had a butcher knife. There was blood on her mother?s chest. Alba

unsuccessfully tried to open the door. Marta twice told her to call the police. As

2


she went to the telephone, Alba saw defendant leaving. While she was making the

phone call, Marta came through the door, collapsed, and died.

Marta had a stab wound on the left side of her chest, four inches deep,

which cut through a piece of one rib and completely through her heart. She also

had a wound on her left forearm, which the medical examiner characterized as a

typical defensive wound.

2. Defense

Defendant presented an alibi defense to the Contreras murder. His wife,

Lucinda Harris, testified that she and defendant spent the entire afternoon and

evening together. They visited Lucinda?s parents, went to a pool hall for about an

hour, and then to Lucinda?s apartment, arriving around 8:30 or 9:00 p.m. They

drank some beer, and Lucinda took a bath. She could hear defendant talking on

the telephone as she bathed. He did not leave her apartment that night.

The defense called no witnesses regarding the Rodriguez murder.

B.

Penalty Phase

1. Prosecution

Contreras?s son and daughter testified about the impact his killing had on

them and their family.

The court took judicial notice of defendant?s six prior convictions, all

resulting from pleas of guilty or no contest: (1) a residential burglary on

November 21, 1984; (2) an assault with a deadly weapon or force likely to

produce great bodily injury on December 16, 1984; (3) a first degree robbery on

December 16, 1984; (4) an assault with a deadly weapon that resulted in the

intentional infliction of great bodily injury on December 17, 1984; (5) a second

degree robbery on December 17, 1984; and (6) an escape from police officers on

December 18, 1984.

The prosecution presented witnesses to three incidents of defendant?s

uncharged criminal activity. William Scott testified that on August 21, 1979,

when he was in high school, he was approached by three young men as he was

3


leaving a store. One of them was defendant, who appeared to be about 16 years

old. They commented on Scott?s bicycle, an expensive racing model, and

defendant asked if he wanted to trade it for an inferior bicycle. When Scott

refused, defendant hit him in the windpipe without warning and left with Scott?s

bicycle. On the morning of his testimony, Scott was unable to identify defendant

from a group of six photos, but when shown a single larger picture he recognized

defendant as the person who had hit him.

In 1982, Christopher Stokes and Louie Magdaleno were employed as police

officers for the Los Angeles Unified School District. On December 7 of that year,

Stokes detained defendant, then a student, near the auditorium at San Fernando

High School. He brought defendant in handcuffs to the security office and sat him

in a room with Magdaleno. Defendant appeared to be under the influence of

drugs. Stokes went to an adjacent office, where he heard defendant yelling threats

at Magdaleno. Defendant demanded to know why he was there, and threatened to

kill Magdaleno. Stokes reentered the room, and defendant threatened to kill him

and his wife, saying he knew where they lived, or could find out. He was

?screaming and yelling,? and ?had spit coming out of his mouth, a lot of foam and

mucous from his nose.? Defendant began to walk toward Magdaleno, who

subdued him with the assistance of two Los Angeles police officers. Shortly

thereafter, defendant tried to walk out the door, and a scuffle ensued. Defendant

was sprayed with Mace but continued struggling for five or 10 minutes. Both

officers took defendant?s threats seriously. Stokes had 24-hour police protection

at his house, and Magdaleno stayed away from his home for the rest of the week.

Jerome Van Tress testified that he was a Frito Lay salesman in 1984. Early

on the morning of December 17, he drove to a 7-Eleven store in Pacoima.

Looking inside, he saw someone throwing the clerk, who was a small man, from

one end of the counter to the other. Van Tress drove to a police station and

reported the attack. Returning to the 7-Eleven, he saw several police cars. The

clerk was being taken to an ambulance; there was blood on the floor of the store

4


and on the sidewalk outside. Van Tress identified defendant as the assailant.

Detective Richard Knapp of the Los Angeles Police Department testified that he

investigated the 7-Eleven robbery. Following a lead, he and a detective went to an

apartment across the street, where a woman answered the door. Knapp saw

defendant lying on the floor inside, with a bloody folding knife on a table next to

him. The jury was told that this incident led to defendant?s conviction of robbery

and assault with a deadly weapon, and that he admitted intentionally inflicting

great bodily injury on the 7-Eleven clerk.

2. Defense

At the penalty phase, defendant?s stepmother Doris Harris testified about

his experiences growing up, particularly his troubled relationship with his father.

Dr. Robert White, a psychologist hired by the defense, interviewed defendant

seven or eight times, and concluded that defendant suffered from chronic severe

depression. Dr. White related traumatic events in defendant?s life as well as his

positive behavior in structured settings, like prison. Sonja Fox, a chaplain at a

probation camp for juveniles, testified about her favorable impression of

defendant?s conduct during a six-month stay at the camp. Defendant?s football

coach in junior college, Charles Ferrero, testified that he was a positive influence

on the team. Christine Branich, a correctional officer from Folsom, testified that

defendant was a good worker and a good influence on other inmates while serving

a prison term beginning in 1987. A deputy sheriff at the Los Angeles Central Jail,

Jeffrey Creager, testified that while defendant was in custody in 1993, the year of

the trial in this case, he was chosen as a trusty inmate worker, and had helped

rescue another inmate who attempted suicide.

II. DISCUSSION

A.

The Adequacy of the Record

Defendant challenges the adequacy of the appellate record in a number of

respects. He initiated lengthy proceedings below to correct and augment the

5


record, which resulted in three settled statements designating omissions that could

not be rectified.

?[S]tate law entitles a defendant only to an appellate record ?adequate to

permit [him or her] to argue? the points raised in the appeal. [Citation.] Federal

constitutional requirements are similar. The due process and equal protection

clauses of the Fourteenth Amendment require the state to furnish an indigent

defendant with a record sufficient to permit adequate and effective appellate

review. [Citations.] Similarly, the Eighth Amendment requires reversal only

where the record is so deficient as to create a substantial risk the death penalty is

being imposed in an arbitrary and capricious manner. [Citation.] The defendant

has the burden of showing the record is inadequate to permit meaningful appellate

review. [Citation.]? (People v. Rogers (2006) 39 Cal.4th 826, 857-858; see also

People v. Rundle (2008) 43 Cal.4th 76, 110-111.)

Defendant urges us to reconsider our rule placing on the appellant the

burden of demonstrating that the record is so inadequate as to frustrate meaningful

review. He argues that he should not be required to speculate about issues that

might have arisen from missing parts of the record, and that an incomplete record

amounts to a structural defect requiring reversal without a specific showing of

prejudice. Certainly a substantially defective record could amount to such a

structural defect, but it remains the appellant?s burden to make that showing.

Defendant fails to do so here.

Defendant complains about a number of items in the first settled statement

that are not typically reflected in an appellate record, so that their omission cannot

be said to be an obstacle to review absent some special circumstance. These

include physical gestures by witnesses during testimony and by the prosecutor

during argument; charts referred to by counsel during the course of argument but

not entered into the record as exhibits; the identities of jurors whose comments or

questions were recorded by the reporter or whose actions were otherwise

described in the transcript; the specific portions of a witness?s taped statement that

6


were played for the jury during closing argument; and the circumstances

surrounding notes sent by the jury during its deliberations (i.e., why only certain

portions of a witness?s testimony were read back to the jury, exactly when the

court received a note, and when or how counsel agreed to a response). A

defendant must rely on counsel to make items like these a part of the record if they

have some significance regarding a potential appellate issue.

Defendant

also

contends that various off-the-record discussions deprived

him of his right to a complete record. Section 190.9 requires ?all proceedings?

during trial to be transcribed in a capital case. This requirement does not include

?private conferences between defense counsel and defendant, or among counsel

and cocounsel or their witnesses.? (People v. Samayoa (1997) 15 Cal.4th 795,

820.) Here, the record does not reflect the nature of the discussions in question.

Although the failure to transcribe them may have been a violation of section

190.9, it gives rise to no presumption of prejudice. Defendant must demonstrate

that the omissions deprive him of meaningful appellate review. (People v. Hinton

(2006) 37 Cal.4th 839, 919.) He makes no effort to do so, failing to analyze the

context of the ?off the record? references in the reporter?s transcripts. In each

instance counsel and the court were unable to recall the substance of the

discussions. Thus, the likelihood is that they involved either private discussions,

routine issues of scheduling and the like, or other matters that would not affect our

review.2

The second settled statement concerned four pretrial hearings in municipal

court that were not recorded. Neither the court nor counsel could recall these

hearings, which should have been reported under section 190.9. (See People v.


2

Defendant notes that one unrecorded discussion involved a juror.

Although the settled statement states that the court and counsel could not recall
any prior discussion with the juror, the juror was questioned on the record about
her off-the-record contact with the court. It is clear from the transcript that the
contact was a phone call from the juror to report her personal experience with a
location discussed in a witness?s testimony. The matter was fully explored by the
court and counsel on the record.

7


Freeman (1994) 8 Cal.4th 450, 509.) Clerks? transcripts reflect the subject matter

of each of these hearings, however. Defendant does not analyze these transcripts

or make any effort to discuss how the absence of reporters? transcripts affects his

right to meaningful review, other than to complain that he lacks the information

they would have provided. He fails to show prejudice. (People v. Hinton, supra,

37 Cal.4th at p. 919.)

The third settled statement reveals that the prosecutor and defense counsel

submitted lists of proposed jury instructions at both the guilt and penalty phases,

neither of which could be located by the clerk?s office for inclusion in the record.

The attorneys could not find the originals or copies of these lists. Furthermore, the

court was unable to ascertain if it had compiled a list of the instructions it rejected;

if such a list existed, its content could not be settled. Defendant argues that

without knowing which of his proposed instructions were refused by the court, his

appellate counsel cannot provide him effective assistance and there can be no

meaningful review of the guilt and special circumstance verdicts.

As to the guilt phase instructions, the record includes lengthy discussions

between the court and counsel on substance and terms. Defendant makes no

attempt to detail how these discussions are insufficient for our review. He merely

asserts that in many instances, which he does not specify, it cannot be discerned

which party requested the instruction being discussed, or what it was the trial court

refused to adopt. This assertion is insufficient to establish an inadequate record.

Defense counsel stated on the record that he had gone over all the modifications

worked out by the court and counsel, and had no further changes or deletions to

suggest. Counsel raised no omissions from the guilt phase instructions in his

motion for a new trial. Appellate counsel has raised a number of guilt phase

instructional issues, which are addressed below. The lack of a written list of

proposed instructions, and of instructions refused, does not appear to have

hindered this effort.

8




Regarding the penalty phase, defendant acknowledges that the court read

into the record all but one of the six special instructions his counsel submitted. He

contends the contents of the omitted instruction cannot be ascertained. However,

the court and counsel discussed this instruction, which concerned mitigating

factors, in sufficient detail that it is clear defendant was not entitled to have it read

to the jury. The prosecutor objected to the instruction because it singled out

particular incidents and identified them as mitigating factors, when they could also

be viewed as aggravating. The court noted that the instruction tended to ?pinpoint

certain pieces of evidence and not pinpoint others.? Defense counsel argued that

the instruction properly allowed the jurors to consider the incidents in mitigation

?if you find they so apply.? The prosecutor responded that if the instruction were

given, she would in turn be entitled to a pinpoint instruction on every aggravating

factor shown by the penalty phase evidence. The court concluded that the

substance of the instruction was appropriate for argument, but not for instruction.

We have frequently ruled that instructions providing a partial list of

mitigating factors, with reference to particular items of evidence, are improper.

(See, e.g., People v. Cook (2007) 40 Cal.4th 1334, 1364, and cases therein cited.)

Defendant establishes no likelihood that the absence of a written record of his

proposed special instruction has prevented his counsel from effectively evaluating

the denial of this instruction as a possibly meritorious claim on appeal.

The second item on the third settled statement is a proposed questionnaire

given by the trial court to counsel before jury selection, with a request for their

suggestions. The clerk was unable to locate this document. Defendant mentions

this omission but makes no effort to demonstrate how it might affect his right to

meaningful appellate review. The third settled statement also notes that defense

counsel?s proposed additional questions for the jury questionnaire could not be

found by the clerk or by counsel. Defendant again fails to develop any argument

as to how the lack of this document has hampered appellate review.

9




Next, the third settled statement states that during jury selection, the court

provided written questions to a group of male jurors regarding a remark by one

prospective juror to the effect that ?we?ll give him a fair trial and then we?ll hang

him.? The comment was made to the court clerk, who was unable to identify the

juror. The court and counsel devoted some time to investigating which

prospective juror made the remark, and the man who was generally agreed to be

the most likely suspect was eventually excused. Although the settled statement

declares that the questions given to the jurors on this subject could not be found or

reconstructed, the court in fact read the questions aloud to the group of jurors, and

they were transcribed by the reporter. Thus, defendant has suffered no prejudice

from the absence of the document itself.

Finally, the third settled statement states that neither the clerk nor counsel

were able to locate copies of letters given by defense counsel to the clerk to be

mailed to four jurors after trial, in connection with defendant?s motion for a new

trial. Defendant speculates that the content of these letters may have prevented

him from establishing the basis for obtaining a new trial. Any such possibility

appears remote indeed, and furnishes no ground for deeming the record

inadequate.

We emphasize, once again, that trial courts should take care to avoid off-

the-record discussions in capital cases, and to comply with section 190.9 in all

respects. (People v. Freeman, supra, 8 Cal.4th at p. 511.) Maintaining the

documentary record is equally important. (See ? 190.7.) These measures not only

assure an adequate appellate record, but also obviate the burden of settling the

record. (Freeman, at p. 511.) Human affairs being what they are, however,

perfect records are not always achieved. Appellants must do more than merely

complain about omissions; they must demonstrate that the record is insufficient for

meaningful appellate review. (People v. Rogers, supra, 39 Cal.4th at pp. 857-

858.) The significance of missing items must be analyzed with reference to what

10


is reflected by the record. Here, defendant fails to establish that the omissions he

notes resulted in a record so deficient as to make the appellate process unreliable.

B.

The Questioning of Reyes

Defendant contends the prosecutor improperly led her witness, Efren

Reyes, into an in-court identification. Reyes testified with the assistance of an

interpreter. Near the beginning of his testimony, the prosecutor established that

Reyes had been one of the card players at the scene of Contreras?s murder, and

that the assailant had been a Black male. The prosecutor then asked if Reyes saw

that person in the courtroom. Reyes said ?no.? The following exchange ensued:

?Q. All right. You don?t see the person present in court today? Did you

look in this part of the courtroom here?

?A. No.

?Q. Not in the audience; did you look up here also? No. I mean up here in

the front.

?A. Yes. At a court date that I came before, and I testified, and he was

here.

?Q. All right. And the person that was there when you came to court the

first time, does he look anything like the gentleman that?s sitting at this table

second from the end?

?[Defense counsel]: Objection.

?THE COURT: Overruled.

?THE WITNESS: Oh, yes, yes. It?s him; it?s him.?

The prosecutor elicited the following explanation from Reyes for his failure

to see defendant at first:

?A. . . . I was looking on this side. I didn?t look on the other side.

?THE COURT: Pointing to the jury, for the record.

?Q. [By the prosecutor]: Is the computer on the judge?s bench blocking

your view of that end of the table?

?A. Yes. This is, right here. That?s why I didn?t see him.

11




?Q. Okay. Indicating for the record, he?s pointing?

?THE COURT: The computer monitor on top of the bench.?

Defendant

claims

the

prosecutor?s

leading questions violated Evidence

Code section 767, subdivision (a)(1), as well as various constitutional rights.3 The

Attorney General correctly responds that the questioning of Reyes was proper

under the circumstances. ?A ?leading question? is a question that suggests to the

witness the answer that the examining party desires.? (Evid. Code, ? 764.)

Questions calling for a ?yes? or ?no? answer are not leading unless they are

unduly suggestive under the circumstances. (People v. Williams (1997) 16 Cal.4th

635, 672; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, ? 165, pp.

229-230.) Furthermore, leading questions are not always impermissible on direct

examination. ?Evidence Code section 767, subdivision (a)(1), provides that

leading questions ?may not be asked of a witness on direct or redirect

examination? except in ?special circumstances where the interests of justice


3

Here, as elsewhere, defendant asserts violation of his federal

constitutional rights to due process under the Fourteenth Amendment, a fair trial
by jury under the Sixth and Fourteenth Amendments, and a reliable determination
of guilt in a capital case under the Eighth and Fourteenth Amendments. The
Attorney General contends these claims are waived because defendant did not
identify his constitutional objections below.


What we stated in People v. Boyer (2006) 38 Cal.4th 412, 441, footnote 17,

applies here: ?In most instances, insofar as defendant raised the issue at all in the
trial court, he failed explicitly to make some or all of the constitutional arguments
he now advances. In each instance, unless otherwise indicated, it appears that
either (1) the appellate claim is of a kind (e.g., failure to instruct sua sponte;
erroneous instruction affecting defendant?s substantial rights) that required no trial
court action by the defendant to preserve it, or (2) the new arguments do not
invoke facts or legal standards different from those the trial court itself was asked
to apply, but merely assert that the trial court?s act or omission, insofar as wrong
for the reasons actually presented to that court, had the additional legal
consequence
of violating the Constitution. To that extent, defendant?s new
constitutional arguments are not forfeited on appeal. [Citations.] [?] In the latter
instance, of course, rejection, on the merits, of a claim that the trial court erred on
the issue actually before that court necessarily leads to rejection of the newly
applied constitutional ?gloss? as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.?

12


otherwise require.? Trial courts have broad discretion to decide when such special

circumstances are present. [Citations.]? (Williams, at p. 672.)

Here, the court did not abuse its discretion by permitting the prosecutor to

direct Reyes?s attention toward defendant?s location in the courtroom, even if her

questions were leading. Reyes was evidently unable to see defendant from the

witness chair because a computer monitor was in his line of sight. He looked

around those parts of the courtroom he could see, initially searching the audience

and then the jury box. Moreover, the possibility of improper suggestion was

remote. Reyes had already identified defendant at the preliminary hearing, and

before that picked him out of a live lineup of six persons during the police

investigation. Under these circumstances, defense counsel?s objection was

properly overruled.

C.

The Denial of the Motion for Acquittal on the Rodriguez Murder

After the prosecution rested, defense counsel moved for a judgment of

acquittal as to the charge of first degree murder of Marta Rodriguez, contending

there was no evidence of deliberation or premeditation. The prosecutor responded

that during the time defendant waited to place his order with Alba Rodriguez at the

Winchell?s window, and after he placed the order, he had sufficient time to

deliberate and choose to kill before confronting Marta at the door. The court

denied the motion, finding ?sufficient evidence to allow the jury to decide the

issue.? The jury divided 10 to 2 on this charge, failing to agree on the issue of

guilt in the first instance, not on the degree of the crime.

Defendant argues that while the jury was unable to reach a verdict on the

Rodriguez murder, the trial court?s denial of his motion for acquittal leaves him

open to retrial for first degree murder. This is so. (See Smith v. Massachusetts

(2005) 543 U.S. 462, 466-467; People v. Lagunas (1994) 8 Cal.4th 1030, 1039,

fn.6; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, ? 140, p.

488.) The Attorney General contends the trial court properly denied the motion

for acquittal, noting the evidence that (1) defendant was armed with a butcher

13


knife in the early morning hours, a time when few witnesses were likely to be

present; (2) Marta was stabbed in the left side of her chest with enough force for

the knife to completely penetrate her heart; and (3) there was more than enough

time for defendant to premeditate a killing while he stood at the service window.

On a motion for judgment of acquittal under section 1118.1, the trial court

applies the same standard as an appellate court reviewing the sufficiency of the

evidence. The court must consider whether there is any substantial evidence of the

existence of each element of the offense charged, sufficient for a reasonable trier

of fact to find the defendant guilty beyond a reasonable doubt. (People v. Cole

(2004) 33 Cal.4th 1158, 1212-1213.) We independently review the trial court?s

ruling. (Id. at p. 1213.) Here, defendant challenges only the sufficiency of the

evidence of deliberation and premeditation.

?A verdict of deliberate and premeditated first degree murder requires more

than a showing of intent to kill. [Citation.] ?Deliberation? refers to careful

weighing of considerations in forming a course of action; ?premeditation? means

thought over in advance. [Citations.] ?The process of premeditation 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.]? ? (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)

Here, defendant was armed with a knife and stabbed Rodriguez without

provocation directly in the heart with enough force to penetrate part of a rib and

pierce entirely through the heart. In the time it took for Alba to go from the door

to the service window, and to take and prepare defendant?s order, there was ample

time for him to deliberate and premeditate before attacking Marta. Under these

circumstances, we cannot say the jury could not reasonably have found defendant

guilty of first degree murder.

14


D.

The Evidence of Threats Against Robert James

1. Background

Robert James was the grandson of Doris Harris, defendant?s stepmother.

On October 17, 1991, a week after defendant was arrested, James gave a taped

interview to police detectives. He told them that on September 23, he had walked

by the park in Van Nuys with defendant. James wanted to play basketball, but

defendant saw some Mexicans in the area and said they had to leave, ?[c]ause . . . I

blasted this fool in the park, and there go some of his homeboys.? James said

defendant later explained that he had seen some Mexicans gambling, went home

to get his gun, and returned to the park with another person. They confronted the

Mexicans and asked for money, ?then the sewer rat jumped up and I shot him.?

Defendant?s term for Mexicans was ?sewer rat.?

At trial, although James went over his taped statement with the prosecutor

in the morning on the day he testified, by the afternoon he could recall very little

of what he had told the detectives. After his testimony, the prosecutor learned

from a detective who drove James home that James had been threatened by

defendant?s sister during the lunch break. The prosecutor wanted the detective to

testify, so that the jury could evaluate the discrepancy between James?s statements

in court and those on the tape, which would be played for the jury. Defense

counsel objected, arguing that the evidence of the threat would be unduly

prejudicial because the jury would likely draw the conclusion that defendant had

something to do with it.

The court decided to permit the detective to testify about the incident, with

a limiting instruction informing the jury that the threat came from a family

member, not from defendant. Detective Paul Stewart told the jury that he had

been present during the interview conducted before James testified. At that time,

James had recalled most of his statements in the taped interview. However,

Stewart was also present when James was on the witness stand, at which time

?many of the things that he remembered in the morning . . . he said he did not

15


remember when he testified.? Stewart testified that while he was taking James

home later that day, James said ?that he was in the cafeteria of this building when

he was approached by a woman who made the statement to him [that] you and

your mother could disappear.? The woman was ?a family member.?

The court cautioned the jury that Stewart?s testimony was admitted only ?to

show the state of mind [of] the witness when the witness testified,? not ?to prove

the truth of the statement that was made.? The jury was told that ?you must not

draw any inferences with respect to the defendant as to those statements,? and

specifically that ?you may not infer that . . . this was made by the defendant or at

the defendant?s behest. It is only to indicate the state of mind of the witness at the

time when [the witness] testified so that you may properly evaluate that witness?s

testimony and any inconsistencies that you find that there are.?

Thereafter, the prosecutor recalled James to the stand. She questioned him

about the incident in the cafeteria, asking ?did someone from your family and the

defendant?s family approach you during the lunch hour?? James said a woman

had approached him, and they were ?bickering back and forth.? With some

prompting, he said the woman had told him that he ?better not lie on her brother?

and that he and his mother might ?come up missing.? On cross-examination,

defense counsel asked James about the threat, confirming that it was defendant?s

sister who delivered it. James said the threat had upset him at first, but did not

affect his testimony in any way.

2. The Admissibility of the Threat Evidence

Evidence that a witness is afraid to testify or fears retaliation is admissible

because it bears on credibility. (People v. Burgener (2003) 29 Cal.4th 833, 869;

accord, e.g., People v. Gonzalez (2006) 38 Cal.4th 932, 946; People v. Guerra

16


(2006) 37 Cal.4th 1067, 1141.) Defendant acknowledges this well-established

rule, but raises a series of objections to its application in this case.4

First, he contends the prosecutor failed to lay an adequate foundation for

the relevance and probative value of the threat evidence. Defendant asserts that

the admission of this evidence was improperly premised on the assumption that

James was telling the truth in his taped statement. This is not the case; James?s

state of mind when he testified after hearing the threat had no necessary

connection with the veracity of his earlier statement. Next, defendant contends the

Burgener rationale is limited to cases of discrepancy between prior sworn

testimony and later statements in court. This claim is supported by neither the

cases cited in Burgener (People v. Warren (1988) 45 Cal.3d 471, 481; People v.

Feagin (1995) 34 Cal.App.4th 1427, 1433), nor those following it (e.g., People v.

Gonzalez, supra, 38 Cal.4th at pp. 945-946; People v. Guerra, supra, 37 Cal.4th at

pp. 1141-1142). Defendant also argues there was no showing that James was

indeed afraid to testify. He points to James?s later testimony that the threat did not

affect him. The court, of course, had no way of anticipating this testimony when it

made its ruling. The court was aware of the discrepancy between the statements

on the tape and James?s testimony, and the relevance of the threat he received

immediately before he took the stand was obvious.

Defendant claims that in any event, the probative value of the evidence was

outweighed by the prejudicial impact on the jury of learning that his sister had

threatened a key witness and the witness?s mother during trial. That

determination, however, was ?well within the discretion of the trial court.?

(People v. Burgener, supra, 29 Cal.4th at p. 869.) The jury was cautioned not to

attribute the threat to defendant. Defendant claims the admonition was defective

because it followed Detective Stewart?s testimony, and the court spoke in terms of

4

Defendant asserts violations of his rights under the Sixth, Eighth, and

Fourteenth Amendments to the federal Constitution, and under article I, sections 7,
15, 16, and 17 of the California Constitution.

17


?the evidence you have just heard? and ?the state of mind of the witness when the

witness testified.? Defendant suggests the jury would have understood these

references to apply to Stewart, and thus the inferences they might draw regarding

the threat to James were unrestricted. The suggestion is completely meritless.

The detective?s state of mind was not at issue, and his testimony was focused on

the impact of the threat against James.

Defendant

also

complains that the admonition was not repeated after James

was recalled and questioned about the threat. However, the court?s cautionary

instruction the previous week was lengthy and detailed, and promptly followed

Detective Stewart?s testimony, which first informed the jury of the threat. The

court was not required to repeat the admonition, and defense counsel made no

such request.

3. The Prosecutor?s Reference to the Threat in Closing

Regarding James?s testimony, defense counsel argued as follows in his

closing: ?He was threatened to such an extent that the People want you to believe

him, and that?s why he changed his testimony. Doesn?t it strike you as a little odd

that he wouldn?t say anything before the testimony or he wouldn?t want these

people out of the courtroom??

In her rebuttal, the prosecutor responded that it was precisely because he

was threatened that James had said nothing before he testified: ?The exact thing

about threats is they scare you. And you don?t necessarily run and tell on the

person who just threatened you because they threatened you. And you don?t want

to make them any madder. So instead you come in and try to appease them. You

come in and say I don?t remember. And I might have made that part up. As they

are sitting here in the audience staring at him, he is back-pedaling big time. . . .

But what we know is true is his prior statement, what he said to the police, what

you hear on the tape when no one was glaring at him and no one had threatened

him and the defendant wasn?t sitting there looking at him.? Defendant, while

refraining from making a claim of prosecutorial misconduct, contends the

18


prosecutor?s reference to his presence and the threat against James in the same

sentence undermined the court?s limiting instruction, and exacerbated the

prejudice created by the admission of the threat evidence.

Defense counsel made no objection or request for an admonition from the

court, which could have reinforced the limiting instruction and mitigated any

undue prejudice. His claim is thus barred on appeal. (People v. Thornton (2007)

41 Cal.4th 391, 454.) Defendant responds to the Attorney General?s waiver

argument by suggesting for the first time in his reply brief that the failure to object

amounted to ineffective assistance of counsel. The argument is as meritless as it is

belated. ?[D]eciding whether to object is inherently tactical, and the failure to

object will rarely establish ineffective assistance.? (People v. Hillhouse (2002) 27

Cal.4th 469, 502.) Here, while requesting an admonition was one tactical option,

counsel could also have decided that objecting would focus the jury?s attention on

the threat incident in ways that would not be helpful to the defense.

The prosecutor?s comment echoed her opening argument, where she made

no mention of the threat but argued that James?s taped statement was credible

because it was made when ?the defendant wasn?t in the room looking at him, other

family members weren?t in the audience looking at him.? The jury would

understand that, regardless of any threat, James would have been more willing to

incriminate his relative in a private interview than in open court, in the presence of

defendant and other family members. Any implication in her later comment that

defendant may have been involved with the threat was remote enough that counsel

could reasonably have opted to let it pass without objection.

E.

The Exclusion of Evidence of James?s Probation Performance

Defense counsel sought to impeach Robert James with testimony from his

probation officer to the effect that James was dishonest. The court held a hearing

under Evidence Code section 402 to determine what the probation officer would

say. The parties agreed that because James was a juvenile, the officer could not go

into specific matters reflected on his record. Harry Ridley testified that he was

19


James?s probation officer and had been for nearly a year. He considered James

irresponsible. James had been evasive, did not comply with the conditions of his

probation, and failed to keep Ridley informed of his whereabouts. Ridley recalled

one particular lie James told, which he did not specify, but generally he based his

opinion on James?s failure to follow instructions.

The court heard extended argument from counsel, during which the

prosecutor stated that if Ridley?s testimony were admitted, she would be entitled

to rehabilitate James by examining the reasons for his behavior. Ultimately, the

court concluded that while the evidence of James?s performance on probation was

relevant to show his lax character and general lack of credibility, its probative

value was insufficient to outweigh the consumption of time it would take to

explore the matter, including collateral issues pertaining to his failure to comply

with probation conditions. Accordingly, the court excluded the evidence of his

probation performance under Evidence Code section 352.

Regarding specific instances of untruthfulness, the prosecutor

acknowledged that Ridley remembered one time when James had lied to him.

However, the court agreed with her argument that James?s failure to keep

promises made to his probation officer did not amount to ?lies.? After conferring

with Ridley, defense counsel told the court there were ?no additional grounds to

go into.? Counsel had interpreted Ridley?s account of James?s failure to do what

he said he would do as instances of lying. Ridley did not testify before the jury.

Defendant contends the court abused its discretion under Evidence Code

section 352. We disagree. ? ?[T]he latitude section 352 allows for exclusion of

impeachment evidence in individual cases is broad. The statute empowers courts

to prevent criminal trials from degenerating into nitpicking wars of attrition over

collateral credibility issues.? [Citation.]? (People v. Ayala (2000) 23 Cal.4th 225,

301; accord, People v. Lewis (2001) 26 Cal.4th 334, 374-375.) Here, James?s

failures on probation were evidently numerous, and the prospect of prolonged

nitpicking was a real one. Defendant claims the court?s ruling deprived him of his

20


fundamental rights to confrontation and to present a defense, under the Sixth and

Fourteenth Amendments to the federal Constitution. However, ?we have

repeatedly held that ?not every restriction on a defendant?s desired method of

cross-examination is a constitutional violation. Within the confines of the

confrontation clause, the trial court retains wide latitude in restricting cross-

examination that is repetitive, prejudicial, confusing of the issues, or of marginal

relevance.? [Citation.]? (Ayala, at p. 301; see also Lewis, at p. 375.)

Defense counsel had ample opportunity to question James regarding the

discrepancies between his taped statement and his trial testimony. James himself

testified that he had not been completely truthful during the police interview, when

he incriminated defendant. Moreover, after it was shown that he had been

threatened in advance of his original trial testimony, James denied the threat had

affected him, but also confirmed the accuracy of the taped statements that he could

not remember in his original testimony. Thus, James?s truthfulness was already

seriously compromised. Evidence of his performance on probation would have

introduced a variety of collateral credibility issues, and would not ?have produced

?a significantly different impression of [the witness?s] credibility.? ? (People v.

Frye (1998) 18 Cal.4th 894, 946, quoting Delaware v. Van Arsdall (1986) 475

U.S. 673, 680; see also People v. Smith (2007) 40 Cal.4th 483, 513.) 5

F.

The Witness Credibility Instructions

Defendant

claims

the

court erred by giving two instructions on witness

credibility, CALJIC Nos. 2.13 and 2.24. He contends the former of these

instructions unfairly bolstered the testimony of prosecution witnesses Robert

5

Defendant complains that the prejudice resulting from the exclusion of

the probation performance evidence was compounded by the giving of CALJIC
No. 2.24, which told the jury: ?If the evidence establishes that a witness?s
character for honesty or truthfulness has not been discussed among those who
know him or her, you may infer from the absence of such discussion that such
character trait is good.? However, the evidence did not establish the absence of
such discussion, and the conflicts in James?s own testimony made it unlikely that
the jury would have drawn any inference of truthfulness as a character trait of his.

21


James and Mark King, and the latter improperly skewed the credibility

determination as to prosecution witness Delsie Noble.6

James?s testimony is described in part II.D.1, ante, pages 15-16. King

provided a taped interview to detectives in which he said, among other things, that

defendant told King ?I had to smoke one of those Mexicans? during a robbery.

However, on the witness stand King refused to confirm nearly everything on the

tape, which was played for the jury. Noble testified that defendant had told him

about the killing the day after it happened.

Respondent argues that defendant invited any error by requesting these

instructions himself. Respondent is correct. ? ?The doctrine of invited error bars a

defendant from challenging an instruction given by the trial court when the

defendant has made a ?conscious and deliberate tactical choice? to ?request? the

instruction. [Citations.]? ? (People v. Weaver (2001) 26 Cal.4th 876, 970; accord,

People v. Thornton, supra, 41 Cal.4th at p. 436.)

Defense counsel joined the prosecutor in requesting CALJIC No. 2.13,

which stated:

?Evidence that on some former occasion, a witness made a statement or

statements that were inconsistent or consistent with his or her testimony in this

trial, may be considered by you not only for the purpose of testing the credibility

of the witness, but also as evidence of the truth of the facts as stated by the witness

on such former occasions.

?If you disbelieve a witness? testimony that he or she no longer remembers

a certain event, such testimony is inconsistent with a prior statement or statements

by him or her describing that event.?

In his closing argument, counsel emphasized the conflicts between various

witnesses? trial testimony and their prior inconsistent statements. He also

specifically asked the jury to remember a taped statement by Mark King indicating

6

Defendant claims violation of his rights to a fair jury trial and to due

process under the Sixth and Fourteenth Amendments to the federal Constitution.

22


that he expected a reward for incriminating defendant, which King denied at trial.

Thus, counsel had a legitimate tactical purpose for requesting CALJIC No. 2.13,

and the invited error rule applies. (People v. Hardy (1992) 2 Cal.4th 86, 152; see

also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) In any event,

defendant?s argument is devoid of merit; he complains that the instruction unfairly

refers to ?the truth of the facts? in a prior statement, without telling the jury it

could also consider the falsity of the statement. However, the instruction in no

way directs the jury to accept prior statements as the truth; it merely covers the

hearsay exceptions provided in Evidence Code sections 1235 and 1236, in a

neutral fashion. (See People v. Wilson (2008) 43 Cal.4th 1, 20-21.)

CALJIC No. 2.24 told the jury: ?Evidence of the character of a witness for

honesty or truthfulness may be considered in determining his believability. If the

evidence establishes that a witness?s character for honesty or truthfulness has not

been discussed among those who know him, you may infer from the absence of

such discussion that such character trait is good.?

Defense counsel specifically requested this instruction, explaining to the

court that it would cover King?s testimony that Delsie Noble ?lies all the time.?

Counsel?s choice here was plainly ?conscious and deliberate,? and it bars

defendant from challenging the instruction on appeal. (People v. Weaver, supra,

26 Cal.4th at p. 970.) Again, in any event, his argument is meritless. Defendant

faults the instruction for not referring to a witness?s character for dishonesty or

untruthfulness. He underestimates the common sense of jurors.

G.

Instructions Bearing on the Standard of Proof

Defendant challenges the constitutionality of a series of instructions,

claiming they undermined the standard of proof beyond a reasonable doubt.

(CALJIC Nos. 1.00, 2.01, 2.02, 2.21.2, 2.22, 2.27, 2.51, 8.83, 8.83.1.) He

acknowledges that we have rejected his claims, but invites us to reconsider our

previous opinions in light of the facts of this case. (People v. Cleveland (2004) 32

Cal.4th 704, 750-751; People v. Crittenden (1994) 9 Cal.4th 83, 144; see also, e.g.,

23


People v. Cook, supra, 40 Cal.4th at pp. 1361-1362.) Defendant gives no

persuasive reason in logic or law for us to revisit these settled issues.

H.

Sufficiency of the Murder Charge in the Information

Defendant argues it was error to instruct the jury on first degree murder

because the information charged him only with murder in violation of section 187,

subdivision (a), which he characterizes as a statute defining second degree murder.

Defendant claims the court lacked jurisdiction to try him for first degree murder.

He recognizes that we have repeatedly held that an information charging murder in

violation of section 187 is sufficient to support a first degree murder conviction.

(People v. Hughes (2002) 27 Cal.4th 287, 369, citing cases; see also People v.

Geier (2007) 41 Cal.4th 555, 591; People v. Carey (2007) 41 Cal.4th 109, 131-

132.) However, he claims the rationale of these cases is irreconcilable with the

holding of People v. Dillon (1983) 34 Cal.3d 441 (Dillon).

Dillon held that section 189 is a codification of the first degree felony-

murder rule. (Dillon, supra, 34 Cal.3d at pp. 471-472.) Because there is only a

single statutory offense of first degree murder (see, e.g., People v. Geier, supra, 41

Cal.4th at p. 591), defendant reasons that the relevant statute must be section 189,

not section 187, which he construes as a definition of second degree murder.7

Defendant misreads both Dillon and the statutes. Dillon made it clear that section

189 serves both a degree-fixing function and the function of establishing the



7 Section 187 provides, in relevant part: ?Murder is the unlawful killing of

a human being, or a fetus, with malice aforethought.?


Section 189 provides, in relevant part: ?All murder which is perpetrated by

means of a destructive device or explosive, a weapon of mass destruction,
knowing use of ammunition designed primarily to penetrate metal or armor,
poison, lying in wait, torture, or by any other kind of willful, deliberate, and
premeditated killing, or which is committed in the perpetration of, or attempt to
perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train
wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any
murder which is perpetrated by means of discharging a firearm from a motor
vehicle, intentionally at another person outside of the vehicle with the intent to
inflict death, is murder of the first degree. All other kinds of murders are of the
second degree.?

24


offense of first degree felony murder. (Dillon, at pp. 468, 471.) It defines second

degree murder as well as first degree murder. Section 187 also includes both

degrees of murder in a more general formulation. (People v. Witt (1915) 170 Cal.

104, 108.) Thus, an information charging murder in the terms of section 187 is

?sufficient to charge murder in any degree.? (People v. Carey, supra, 41 Cal.4th

at p. 132.)

Defendant does not contend he lacked actual notice of the prosecution?s

theory of first degree murder. He does, however, assert that the information failed

to allege all the facts necessary to justify the death penalty, making it defective

under Apprendi v. New Jersey (2000) 530 U.S. 466, 476. The Apprendi claim is

illusory; the information included special circumstance allegations that fully

supported the penalty verdict.

I.

Jury Unanimity on the Type of Murder

Defendant also argues that the court erred by failing to instruct the jury that

it had to agree unanimously on whether he committed premeditated murder or

felony murder.8 Again, he acknowledges we have repeatedly rejected this

argument, but asks us to reconsider it. (E.g., People v. Nakahara (2003) 30

Cal.4th 705, 712-713, citing cases; see also People v. Geier, supra, 41 Cal.4th at p.

592; People v. Carey, supra, 41 Cal.4th at p. 132-133.) Defendant submits no

cogent rationale for a different rule, however. The United States Supreme Court

has held that a jury need not unanimously agree on whether the defendant

committed premeditated or felony murder, and this rule has been widely adopted

by state courts. (Schad v. Arizona (1991) 501 U.S. 624, 640-642 (plur. opn. of

Souter, J.), citing cases; id. at pp. 649-651 (conc. opn. of Scalia, J.).)

Defendant

attempts

to

distinguish

Schad on the ground that Arizona courts

have not deemed premeditation and the commission of a felony to be independent

8

Defendant cites the Sixth, Eighth, and Fourteenth Amendments to the

federal Constitution, and sections 7, 15, 16, and 17 of article I of the California
Constitution.

25


elements of murder, whereas California courts have sometimes employed the

?element? terminology. The distinction is merely semantic. The Arizona murder

statute at issue in Schad was substantially similar to section 189, and to the

common law definition of murder in existence since ?at least the early 16th

century.? (Schad v. Arizona, supra, 501 U.S. at p. 648 (conc. opn. of Scalia, J.);

id. at p. 629, fn. 1 (plur. opn. of Souter, J.); see fn. 7, ante, p. 24.) Whether the

mental states required for a conviction of first degree murder are described as

?elements? (People v. Nakahara, supra, 30 Cal.4th at p. 712), ?theories? (ibid.), or

?alternative means of satisfying the element of mens rea? (Schad v. Arizona,

supra, 501 U.S. at p. 632 (plur. opn. of Souter, J.)), the rule remains the same: the

jury need only unanimously agree that the defendant committed first degree

murder.

In any event, as the Attorney General notes, here the jury unanimously

found that defendant murdered Contreras during the commission of a robbery.

(See People v. Cleveland, supra, 32 Cal.4th at p. 751.)

J.

The Failure to Instruct on Theft as a Lesser Included Offense

Defendant contends the trial court erred by failing to instruct the jury on

theft as a lesser included offense of robbery.9 He claims there was substantial

evidence that he formed the intent to steal only after shooting Contreras, in which

case there would have been no robbery. ?If intent to steal arose only after the

victim was assaulted, the robbery element of stealing by force or fear is absent.?

(People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056; see also, e.g., People v.

Waidla (2000) 22 Cal.4th 690, 737.) However, the record in this case does not

support defendant?s argument.

Defendant relies on the following facts. The evidence showed that he

returned to the park with a gun following a dispute with the men gathered there.

9

He asserts violations of the Sixth, Eighth, and Fourteenth Amendments to

the federal Constitution, and sections 7, 15, and 16, of article I of the California
Constitution.

26


He approached Calleros and tried to shoot him. When the gun failed to discharge,

defendant fired a shot into the air. Calleros ran away and heard a single shot,

followed by someone ?screaming give me the money.? Defendant asserts that

Calleros?s testimony ?arguably constitutes evidence supporting the notion that an

intent and attempt to steal arose only after the shooting of Contreras.? However,

given that defendant?s first shot was into the air, and that Contreras was shot three

times in quick succession, Calleros?s testimony in no way suggests that the murder

preceded any demand for money. Nor did the fact that defendant?s first act upon

his return was to assault Calleros tend to show that he did not also intend to rob

the men in the park.

Defendant bases his argument primarily on the testimony of Reynaldo

Villatoro, who said that defendant brought his arm down and shot at Contreras

?maybe a second? after firing into the air. However, viewed in its entirety

Villatoro?s testimony is consistent with that of the other witnesses, all of whom

agreed that a robbery was in progress when Contreras was shot. Villatoro testified

that he was being robbed by defendant?s companion when Contreras was shot, and

that Reyes had already been robbed. Villatoro did not see anything taken from

Contreras, because he was paying attention to defendant?s companion. He said

that his money was taken before the final shot was fired at Contreras, and that after

he was robbed the companion told defendant, ?I have the money. Let?s go.? The

two men then ran away.

It is true that, unlike the other witnesses, Villatoro did not observe any

attempt to steal from Contreras, either before or after the shooting. It is also true

that, in response to a series of questions that appeared to confuse him, Villatoro

gave answers that, considered in isolation, might suggest Contreras was shot

before Reyes and Villatoro were robbed. During cross-examination, Villatoro said

Contreras was shot twice while standing and again as he was falling to the ground,

at which time Villatoro stopped watching because he was being robbed by

defendant?s companion. The following exchange then took place:

27




?Q. Now, after the other person took your money, did he take somebody

else?s money?

?A. From Efren [Reyes].

?Q. Okay. Was that before or after you?

?A. Before me.

?Q. And was Don Julian [Contreras] already on the ground at this time?

?A. Yes.

?Q. Okay, some money was taken from Efren and you in that order?

?A Yes. What? Excuse me one moment. What do you mean in that

order?

?Q. Well, the first person who had money taken was Efren?

?A. Yes.

?Q. And then money was taken from you?

?A. Yes.?

Shortly thereafter, Villatoro confirmed that he was robbed by defendant?s

companion just as Contreras fell to the ground.

On this record, the jury could not reasonably have concluded that the

shooting preceded the robbery. The witnesses gave varying accounts of who was

robbed first; according to Sanchez, it was Villatoro; according to Juan Quijas, the

first thing that happened when defendant approached the group was that ?his

friend started to take the money from everybody,? but Quijas did not notice who

the first victim was; according to Reyes, defendant and his companion first tried to

take Contreras?s wallet. What was clear from all the accounts was that the

shooting occurred during the robbery. One statement by Villatoro indicating that

Contreras was on the ground, already shot for the last time, when Reyes was

robbed, did not constitute a substantial contradiction of the general account.

Villatoro immediately made it clear that it was he who was being robbed as

Contreras fell, and that Reyes had already been victimized.

28




?[T]he existence of ?any evidence, no matter how weak? will not justify

instructions on a lesser included offense, but such instructions are required

whenever evidence that the defendant is guilty only of the lesser offense is

?substantial enough to merit consideration? by the jury. [Citations.] ?Substantial

evidence? in this context is ? ?evidence from which a jury composed of reasonable

[persons] could … conclude[]? ? that the lesser offense, but not the greater, was

committed. [Citations.]? (People v. Breverman (1998) 19 Cal.4th 142, 162;

accord, e.g., People v. DePriest (2007) 42 Cal.4th 1, 50.) The evidence here did

not require instruction on theft as a lesser included offense of robbery.10

K.

The Defective Special-Circumstance Instruction

The court gave the following version of CALJIC No. 8.81.17:

?To find that the special circumstance, referred to in these instructions as

murder in the commission of robbery, is true, it must be proved:

?1. The murder was committed while the defendant was engaged in the

commission or attempted commission of a robbery or

?2. The murder was committed in order to carry out or advance the

commission of the crime of robbery. In other words, the special circumstance

referred to in these instructions is not established if the robbery or attempted

robbery was merely incidental to the commission of the murder.? (Italics added.)

10

In his reply brief, defendant develops the argument that Villatoro?s

testimony would support a finding that defendant had no expectation that his
companion would rob Reyes and Villatoro, and merely intended to shoot someone
upon returning to the park. However, a speculative inference that depends on the
jury ignoring substantial contrary evidence is not enough to require the court to
instruct on a lesser included offense. (People v. Waidla, supra, 22 Cal.4th at p.
738; see also, e.g., People v. DePriest, supra, 42 Cal.4th at p. 50.) Here, all the
other eyewitnesses testified that defendant personally participated in the robberies,
and Villatoro did not see the entire transaction between defendant and Contreras.
Defendant?s gloss on Villatoro?s version of the events is mere speculation.

29




Defendant correctly observes that use of the disjunctive ?or? between the

enumerated paragraphs was erroneous.11 (People v. Prieto (2003) 30 Cal.4th 226,

256.) The court replaced ?and? with ?or? at the prosecutor?s request, and with

defense counsel?s agreement. The Attorney General contends counsel?s

acquiescence forfeited defendant?s claim on appeal. However, ?[t]he invited error

doctrine will not preclude appellate review if the record fails to show counsel had

a tactical reason for requesting or acquiescing in the instruction. [Citations.]?

(People v. Moon (2005) 37 Cal.4th 1, 28.) Here, as in Moon, the record shows no

tactical reason, and therefore we do not apply the invited error doctrine. (Ibid.)

The error is reversible unless it was harmless beyond a reasonable doubt.

(People v. Prieto, supra, 30 Cal.4th at pp. 256-257.) Defendant contends the

second paragraph of CALJIC No. 8.81.17 is a required element of the felony-

murder special circumstance, which must be found true by the jury. We have

rejected that view. The second paragraph of the instruction does not set out a

separate element of the special circumstance; it merely clarifies the scope of the

requirement that the murder must have taken place ?during the commission? of a

felony. (People v. Monterroso (2004) 34 Cal.4th 743, 766-767; People v. Kimble

(1988) 44 Cal.3d 480, 501.) ?Thus, unless the evidence supports an inference that

the defendant might have intended to murder the victim without having an

independent intent to commit the specified felony, there is no duty to include

CALJIC No. 8.81.17?s second paragraph. [Citations.]? (Monterroso, at p. 767.)

Here, of course, the second paragraph was presented to the jury as an

alternative, not as a clarification of the first paragraph. Defendant notes this

permitted the jury to find the special circumstance true based only on a finding

that the murder occurred while he was engaged in the commission of a robbery,

without making the further finding that the murder was committed to carry out or

advance the robbery. Relying on the same evidence underlying the lesser included

11

Defendant claims violation of his rights to due process and trial by jury

under the Sixth and Fourteenth Amendments to the federal Constitution.

30


offense argument discussed in part II.J., ante, pages 26-29, defendant claims the

record supports an inference that he intended to murder Contreras without

intending to steal from him until after the shooting occurred. However, neither

paragraph of the instruction reflected defendant?s after-acquired-intent theory. If

the murder were committed while he was engaged in robbery, under the first

paragraph, the intent to rob would already have been formed, just as it would have

been if the murder were committed to carry out the robbery under the second

paragraph. In any event, the evidence did not support defendant?s theory, as

discussed above in part J.

The defect in the instruction clearly did not affect the verdict. In addition to

returning a true finding on the felony-murder special circumstance, the jury found

defendant guilty of robbing Contreras. The evidence simply did not support the

notion that the robbery was somehow incidental to the murder. Defendant makes

much of the fact that he tried to shoot Calleros before any robbery attempt was

made. However, by all accounts a robbery or robberies were being committed

when he shot Contreras. By most accounts, Contreras was shot after he resisted.

In addition to the eyewitness testimony, three witnesses (James, Noble, and King)

testified or gave statements to the police to the effect that defendant told them he

shot a Mexican who resisted when defendant tried to take his money. On this

record, the failure to give CALJIC No. 8.81.17 in the conjunctive was harmless

beyond a reasonable doubt.

L.

The Refusal to Remove Juror G.

1. Background

On the morning of the first day of the penalty phase, the clerk informed the

court that a juror had reported receiving death threats. The court met with the

juror, P.G., in chambers. Both counsel were present, but not defendant. Juror G.

said that in a telephone conversation that morning, his father told him he had

received a death threat the previous night. A male caller had asked for Mr. G., and

told the juror?s father ?we are going to kill you. We are going to shoot you six

31


times in the stomach and you are going to be dead.? Juror G. said he had been

living with this parents until a month ago, was fearful for his family, and believed

the threat was related to this case. He noted that some witnesses had testified that

Contreras was shot in the stomach.

Juror G. said he did not think he would have a difficult time sitting on the

jury for the penalty phase, or that the incident ?would influence me one way or the

other.? However, he was concerned for his family and requested ?some

precautions possibly in that regard.? Asked if he believed defendant might be

responsible for the threat, Juror G. said ?I really have no way of knowing.? It was

decided that he should call his father back to get more details, since his earlier

conversation was a general one. After speaking with his father, Juror G. reported

that the caller had asked for ?Nick,? not for Mr. G. The juror said the telephone

number was listed under Nick G, his father?s name. His father could not

distinguish the race of the caller. When he identified himself as Nick, the caller

had threatened to ?shoot you dead.? His father asked why, and the man said ?you

know why.? After his father said he did not understand, the caller threatened to

shoot him six times in the stomach. The juror?s father told the caller he was crazy,

and hung up.

Juror G. told the court he ?honestly believe[d] that it would not? affect his

deliberations, but repeated that he would like ?some type of protection [to] be

given to my family.? Defense counsel asked if his neutrality might be

compromised in the absence of such protection. The juror responded that it would

not, but that he might be distracted. The court asked if his ability to be fair to

defendant would be impaired, assuming the threat came from ?somebody that

knows something about this case.? The juror said it would not.

The court asked the district attorney?s office to investigate the incident and

look into providing whatever protection was appropriate for Juror G.?s family. It

assured the juror that the matter would be taken seriously. The prosecutor said she

would contact the police, and defense counsel agreed. The juror then left

32


chambers. The prosecutor expressed reluctance to excuse the juror, because if the

threat were related to this case that would be precisely the result the caller wanted

to achieve, and would leave only two alternate jurors. She thought the incident

might tend to prejudice Juror G. either way in his deliberations, but asked that he

not be removed.

Defense counsel moved to exclude the juror, based on the juror?s belief that

the threat was related to the case and on his fear for his family. The court noted

that the juror had been ?very steadfast? about his ability to be fair. The court was

also concerned about the possibility that a series of jurors might be threatened for

the purpose of removing them from the panel. Defense counsel argued that the

threat, coming several days after the guilty verdict, would effectively become an

illegitimate aggravating factor in Juror G.?s mind. The court decided to bring the

juror back in to admonish him, but stated that a threatening telephone call was

alone not grounds for dismissing a juror. The court said it would ask Juror G.

again about his ability to set the incident aside during his deliberations, and ?if he

says yes, he can, I have to take him at his word. If he says no, then that is a

different story.? The court discussed the possibility of sequestering the jury with

counsel, but decided such a step would be premature.

Juror G. returned. The court determined that he had not discussed the

incident with any other juror, and instructed him not to do so. It then told Juror G.

that the threat could not be attributed to defendant. The juror said he understood,

and that his primary concern was for his family?s safety. In response to the court?s

admonition not to let the matter affect his deliberations in the penalty phase, Juror

G. stated: ?If I thought for a moment, your Honor, that it would affect me in any

way whatsoever as to my ability as a juror, I would be the first to tell you that I

can?t any longer serve on this case.? He assured the court that he understood the

seriousness of the jury?s task. The court said that steps would be taken ?to try to

give every assurance to your family,? but that the court needed to be satisfied that

Juror G. would be able to exclude the incident from his deliberations. The juror

33


repeated that he would have told the court if he felt his ability to serve on the jury

would be impaired. He said he had thought the matter through, and since he did

not know where the threat came from he would adopt the ?perception . . . of a

neutral juror like it never happened.?

The juror provided his father?s address and telephone number for purposes

of investigating the threat. He asked that defendant not be informed of the threat,

because if ?hypothetically? it was defendant or someone he knew who was behind

it, that information would confirm that the threat had reached the juror?s family,

given that there were several listings for his surname in the telephone book. After

the juror was excused, however, the court expressed concern about intruding into

discussions between counsel and his client, and merely asked counsel to ?use your

professional discretion within the bounds of ethical consideration as to how much

detail you want to discuss with [defendant].? Counsel agreed with the prosecutor

that it would be appropriate to describe the incident as ?an attempt to contact a

juror.?

Later the same morning, the prosecutor advised the court and counsel that

the threat had been investigated. Detective Stewart learned that Juror G.?s father

had made a police report about a car blocking a driveway. The car turned out to

be stolen, the driver was charged, and the father was a witness in the case, which

was scheduled for a preliminary hearing the next week. He was identified as

?Nick G.? on the subpoena. Because the caller had asked for ?Nick,? the

prosecutor concluded it was more likely that the threat arose from the other case.

The juror was again brought into chambers, and informed of these developments.

He had spoken with his father, who said the detective had told him the threat was

probably related to the case in which the father was a witness. The court agreed,

and said it wanted ?to set your mind at rest, so that you?ll be aware of all of the

information regarding the telephone call. It does not appear that it is related to this

case.? Juror G. responded, ?okay.?

34




The court?s refusal to dismiss Juror G. was among the grounds on which

defendant sought a new trial. The court denied the new trial motion.

2. Analysis

Defendant contends the court?s refusal to excuse Juror G. denied him the

right to a fair trial by an impartial jury under the federal and state constitutions.12

?An impartial jury is one in which no member has been improperly influenced

[citations] and every member is ? ? ?capable and willing to decide the case solely

on the evidence before it? ? ? [citations].? (In re Hamilton (1999) 20 Cal.4th 273,

294.) A defendant is ?entitled to be tried by 12, not 11, impartial and unprejudiced

jurors. ?Because a defendant charged with a crime has a right to the unanimous

verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand

if even a single juror has been improperly influenced.? [Citations.]? (People v.

Holloway (1990) 50 Cal.3d 1098, 1112, disapproved on other grounds in People v.

Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)

?A sitting juror?s involuntary exposure to events outside the trial evidence,

even if not ?misconduct? in the pejorative sense, may require . . . examination for

probable prejudice. Such situations may include attempts by nonjurors to tamper

with the jury, as by bribery or intimidation. [Citations.]? (In re Hamilton, supra,

20 Cal.4th at pp. 294-295.) ?[T]ampering contact or communication with a sitting

juror[] usually raises a rebuttable ?presumption? of prejudice. [Citations.]? (Id. at

p. 295.) ?Still, whether an individual verdict must be overturned for jury

misconduct or irregularity ? ? ?is resolved by reference to the substantial likelihood

test, an objective standard.? ? ? [Citations.] Any presumption of prejudice is

rebutted, and the verdict will not be disturbed, if the entire record in the particular

case, including the nature of the misconduct or other event, and the surrounding

circumstances, indicates there is no reasonable probability of prejudice, i.e., no

substantial likelihood that one or more jurors were actually biased against the

12

He cites the Sixth and Fourteenth Amendments to the federal

Constitution, and article I, section 16 of the California Constitution.

35


defendant. [Citations.]? (Id. at p. 296.) We independently determine whether

there was such a reasonable probability of prejudice. (People v. Danks (2004) 32

Cal.4th 269, 303.)

Defendant contends the trial court erred by (1) failing to acknowledge the

presumption of prejudice arising from the threat; (2) considering the possibility

that the person or persons behind the threat might be able to obtain the dismissal

of a series of jurors by making threats; (3) accepting the assurances of Juror G.

that he would remain impartial; (4) ignoring the inherently prejudicial nature of

the threat; and (5) exacerbating that prejudice by informing Juror G. that the

district attorney?s office would investigate the matter and take steps to protect his

family. However, the record does not reflect a substantial likelihood that Juror G.

harbored an actual bias against defendant.

The trial court was not required to expressly declare its awareness of

presumed prejudice; it did so implicitly by holding a prompt hearing to explore the

circumstances of the threat and the possibility of bias, which is the required

procedure for handling a presumptively prejudicial incident of juror tampering.

(Smith v. Phillips (1982) 455 U.S. 209, 215-216; In re Carpenter (1995) 9 Cal.4th

634, 647-648.) The court?s concern that the person making the threat may have

been attempting to force a mistrial was neither the controlling consideration in its

decision to allow Juror G. to remain on the jury, nor a forbidden consideration.

?Our system of justice has not delegated to every reprobate the power to effect a

mistrial. A trial may proceed if the court, after considering factors such as the

communication?s nature, the jurors? responses, and the curative ability of

instructions [citation], finds that the jury can (and will) remain impartial and

render a verdict based solely on the evidence, not the improper contact.? (U.S. v.

Williams (7th Cir. 1984) 737 F.2d 594, 612; see also U.S. v. Williams (D.C. Cir.

1987) 822 F.2d 1174, 1190, superseded by rule on other grounds as stated in

United States v. Caballero (D.C.Cir.1991) 936 F.2d 1292, 1298-99.)

36




Juror G. repeatedly and unequivocally stated that his ability to deliberate

impartially would not be affected by the threat. Courts may properly rely on such

statements to determine whether a juror can maintain his or her impartiality after

an incident raising a suspicion of prejudice. (Smith v. Phillips, supra, 455 U.S. at

pp. 215 and 217, fn. 7; Tanner v. United States (1987) 483 U.S. 107, 122-123; cf.

People v. Guerra, supra, 37 Cal.4th at pp. 1158-19; People v. Beeler (1995) 9

Cal.4th 953, 972-975.) Defendant contends the court improperly assumed that it

had to accept Juror G.?s assurances, twice stating ?I have to take him at his word.?

However, the court?s first such comment was clearly a conclusion based on its

observation of the juror?s unequivocal declarations that he could be fair in his

deliberations. The second comment, anticipating the juror?s reaction after further

admonishment, is reasonably understood as following from the court?s earlier

observations, rather than as a blind commitment to accept the juror?s promises

regardless of their credibility. The trial court was in the best position to observe

Juror G.?s demeanor. We defer to that court?s credibility determinations when

supported by substantial evidence, and Juror G.?s emphatic and repeated

assurances were substantial. (Guerra, supra, at p. 1158; People v. Danks, supra,

32 Cal.4th at p. 304.)

Defendant?s claim that the threat was simply too inherently prejudicial to

be disregarded is undermined by the surrounding circumstances, both those

developed when Juror G. was first questioned and those revealed by the

investigation. Although Juror G. initially reported that the caller asked for ?Mr.

G.,? when he called his father for more details he learned that the man had asked

for ?Nick,? his father?s name. Juror G.?s first name had been read in open court

when the guilt phase verdicts were returned, because he signed the verdicts as

foreman.13 Thus, the fact that the caller asked for ?Nick? immediately diminished

the likelihood that the threat was related to defendant?s case. When it was then

discovered that Juror G.?s father was identified as a prosecution witness named


13

Juror G. did not serve as foreman for the penalty phase.

37


?Nick G.? on a subpoena in another case coming up for a hearing the following

week, the chances of a connection became so remote as to dispel the presumption

of prejudice. 14 (See In re Hamilton, supra, 20 Cal.4th at pp. 305-306.)

Defendant argues that whether or not the threat was related to his case, the

court prejudiced Juror G. by telling him the district attorney would investigate and

take steps to protect his family. Defendant claims this inevitably tended to dispose

the juror favorably toward the prosecution. It would have been preferable for the

court to avoid informing Juror G. that the prosecutor would take the lead on this

matter. However, Juror G. would naturally expect the state to respond to his

report, and the fact that the investigation quickly yielded a strong reason to believe

that his family was not targeted because of his service on the jury mitigated any

prejudice that might have resulted from a belief that the district attorney?s office

was protecting him from defendant or someone acting on defendant?s behalf.

Defense counsel raised no objection, so the court had no occasion to admonish the

juror not to draw any untoward inferences from the prosecutor?s role in the

investigation.

We conclude that under the totality of the circumstances surrounding the

threat against Juror G.?s father, there is no substantial likelihood that the juror was

actually biased against defendant. (See People v. Danks, supra, 32 Cal.4th at p.

303.)

M.

Defendant?s Absence From Certain Proceedings

Defendant contends he was denied the right to be present at three critical

stages of his trial. A criminal defendant?s right to be personally present at trial is

protected by the confrontation clause of the Sixth and Fourteenth Amendments to

14

Defendant makes much of the prosecutor?s response when the court

proposed telling Juror G. that the threat ?has nothing to do with this case.? The
prosecutor said, ?[w]ell, ?that we think.? I mean, we?re nowhere sure of that.?
The facts on the record speak for themselves, however, and the prosecutor?s
caution does not establish prejudice.

38


the federal Constitution, by article I, section 15 of the California Constitution, and

by sections 977 and 1043.

Under the Sixth Amendment?s confrontation clause, a defendant has the

right to be personally present at any proceeding in which his appearance is

necessary to prevent ?interference with [his] opportunity for effective cross-

examination.? (Kentucky v. Stincer (1987) 482 U.S. 730, 744-745, fn. 17; People

v. Cole, supra, 33 Cal.4th at p. 1231.) The Fourteenth Amendment guarantees the

right to be present as a matter of due process at any ?stage . . . that is critical to

[the] outcome? and where the defendant?s ?presence would contribute to the

fairness of the procedure.? (Kentucky v. Stincer, supra, 482 U.S. at p. 745; Cole,

at p. 1231.)

The state constitutional right to be present at trial is generally coextensive

with the federal due process right. (See People v. Bradford (1997) 15 Cal.4th

1229, 1357; United States v. Gagnon (1985) 470 U.S. 522, 526.) This court has

made it clear that neither the state nor the federal Constitution, nor the statutory

requirement that a defendant be present at ?all . . . proceedings? (? 977, subd.

(b)(1))15, provides a criminal defendant with the right to be personally present in

chambers or at bench discussions outside the jury?s presence on questions of law

or other matters as to which his presence bears no reasonable, substantial relation

to his opportunity to defend the charges against him. (People v. Rogers, supra, 39

Cal.4th 826, 855; People v. Ochoa (2001) 26 Cal.4th 398, 434-435, abrogated on

another point as noted in People v. Prieto, supra, 30 Cal.4th at p. 263, fn. 14;

People v. Waidla, supra, 22 Cal.4th 690, 742; People v. Jackson (1980) 28 Cal.3d

264, 309, disapproved on another point by People v. Cromer (2001) 24 Cal.4th

889, 901, fn. 3.)

15

Section 1043, subdivision (b)(2) bars a defendant in a capital case from

being voluntarily absent from trial. No issue of voluntary absence is presented
here.

39




Defendant claims his presence might have made a difference in the

outcome of various hearings held outside the presence of the jury.16 However,

none of these hearings were critical to his opportunity to defend, and defendant?s

arguments that he could have contributed to the fairness of the proceedings

amount to no more than speculation. (See People v. Cole, supra, 33 Cal.4th at p.

1232.)

1. The Discussion of Threats Against Robert James

Defendant contends he was entitled to be present for the discussion

between the court and counsel regarding the threats against prosecution witness

Robert James (see pt. II.D.1., ante, pp. 15-16). In this bench conference, for

which the jury was excused and defendant was absent, the court offered to allow

counsel to stipulate that defendant had nothing to do with his sister?s threat against

James. Defense counsel was unwilling to stipulate, repeatedly protesting that he

had no first hand knowledge of the threat. Counsel was concerned that a

stipulation would establish the threat as a fact. The prosecutor offered to stipulate

merely that James had told Detective Stewart about the threat, but defense counsel

ultimately decided he would rather question the detective about James?s failure to

disclose the threat earlier, in an attempt to suggest that it ?never happened.?

Defendant

contends

the

stipulation would have protected him against the

damaging evidence of the threat. He asserts that if he were present, he could have

assured his counsel he had nothing to do with the threat, and insisted on accepting

the stipulation. However, counsel displayed no concern over whether defendant

was himself involved in the threat; his preoccupation was with the evidence

establishing the fact of the threat. There is no reasonable, substantial likelihood

that if defendant had been present, counsel would have made a different strategic

decision on how to counter the threat evidence, which was clearly relevant to

16

He claims violation of his rights to due process, to be present at trial, and

to a reliable penalty determination under the 6th, 8th, and 14th Amendments to the
federal Constitution.

40


James?s state of mind when he testified. The right to be present does not extend to

argument over such evidentiary matters. (See People v. Box (2000) 23 Cal.4th

1153, 1191-1192; People v. Holloway, supra, 50 Cal.3d at p. 1116, disapproved

on other grounds in People v. Stansbury, supra, 9 Cal.4th at p. 830, fn. 1.)

Defendant fails to show how his presence would have contributed to the fairness

of the procedure during the discussion of the threat evidence, or that his

opportunity for effective cross-examination was interfered with. Accordingly, he

fails to establish any violation of the controlling constitutional standards.

In any event, after the detective testified the court unequivocally instructed

the jury that the threat could not be attributed to defendant, achieving the same

effect as the stipulation that counsel rejected. Defendant claims a stipulation

would have prevented the prosecutor from implying that he was involved (see pt.

II.D.3., ante, pp. 18-19). However, any such implication was equally refutable by

reference to the court?s limiting instruction.

2. The Hearing on Sealing the Guilt Verdicts and Excusing a Juror

Late on the afternoon of June 9, 1993, the jury notified the court that it had

reached a unanimous verdict on five of the six counts, but could not agree on the

final count or on one special circumstance allegation. After some jurors indicated

that further deliberation might be helpful, the court sent the jury back to write

down any requests for clarification. While the jury was doing this, the prosecutor

asked the court whether it would seal the verdicts that had been reached at the end

of the day. The court said it would, if the jury was going to continue its

deliberations. Otherwise, it would ?just go ahead and take the verdict.? The jury

subsequently reported that the further instructions it received from the court were

helpful. Accordingly, the court told it to return the following day. Defendant was

present during these proceedings.

The following day, June 10, the judge was absent due to a previous

engagement. By midmorning, the jury had reached an impasse on the remaining

count and the special circumstance allegation. The clerk informed counsel of the

41


situation, and telephoned the judge. By agreement of counsel and order of the

court, the verdicts were sealed and the jury was excused. That afternoon, the clerk

received a telephone call from a coworker of one of the jurors, reporting that the

juror was discussing the verdicts and deliberations at her workplace, including

which of the jurors was causing the jury to hang. The clerk reported this incident

by telephone to the judge.

On June 11, the court discussed the situation in chambers with counsel,

apparently in defendant?s absence. The court expressed no doubt that the juror

had engaged in misconduct that would prevent her from sitting for the penalty

phase, if there were one. It proposed questioning the juror to see if she admitted

the misconduct, and if she had spoken to anyone else before the verdicts were

sealed, in which case the verdicts would be tainted and the jury would have to

begin again after an alternate was seated. If she had committed no misconduct

before the verdicts were sealed, the court believed the verdicts would be valid.

Defense counsel expressed doubt about the validity of the verdicts in any event,

and urged the court to seat an alternate and commence deliberations anew. The

prosecutor disagreed.

The juror, R.S., was called into chambers, and readily admitted discussing

the case with her coworkers. She had thought the case was over. She apologized,

and assured the court repeatedly that she had not spoken about it with anyone

outside the jury room until after the verdicts were sealed the previous day. The

court conferred with counsel, both of whom agreed that Juror S. had been candid.

The court decided the misconduct had not tainted the verdicts. With the consent

of both counsel, Juror S. was excused from further service on the jury.

Defendant argues that his right to be present was violated when the verdicts

were sealed and then accepted by the court in his absence, and when the court

discussed the misconduct of Juror S. with counsel alone and determined that she

must be dismissed.

42




As to the taking of the verdicts, defendant claims he could have objected to

their sealing in the first place on June 10, or asked the court to inform the jurors

that they could reconsider the verdicts. However, defendant was present on June 9

when the verdicts were sealed at the end of the day, and made no objection or

request for reconsideration. The jury was clearly at an impasse on the morning of

June 10, abandoning its deliberations at 10:45 a.m. The judge was absent, and

there was no alternative but to seal the verdicts at that point. Regarding the

dismissal of Juror S., defendant asserts that he might have asked the court to

excuse the juror before the verdicts were recorded, and seat an alternate for new

guilt deliberations. Defense counsel made that very request. The court rejected

the idea, and it is inconceivable that defendant?s presence would have made any

difference. This was not a critical stage at which defendant?s presence was

necessary as a matter of fairness. (Kentucky v. Stincer, supra, 482 U.S. at p. 745;

People v. Perry (2006) 38 Cal.4th 302, 312.)

Nor was defendant?s presence required during the discussion of Juror S.?s

misconduct, which led to her excusal with the consent of counsel. The dismissal

of a juror for misconduct is not a matter for which the defendant must be present.

(People v. Johnson (1993) 6 Cal.4th 1, 17-20, disapproved on another point in

People v. Rogers, supra, 39 Cal. 4th at p. 879; People v. Abbott (1956) 47 Cal.2d

362, 371-372; People v. Feagin, supra, 34 Cal.App.4th at pp.1438-1439.)

Defendant identifies no particular circumstance that might have required his

presence. He asserts he was deprived of the chance to make his own assessment

of the juror?s credibility and could have objected to counsel?s consent to her

dismissal. However, the misconduct was clear and court?s decision was an

obvious one.

3. The Hearings on the Threat to Juror G.?s Family

Defendant also contends he had the right to be present at the hearings

during which Juror G. reported the threat against his father, and the court decided

to allow G. to remain on the jury. (See pt. II.L.1., ante, pp. 31-35.) Defendant

43


argues that he himself was the subject of these hearings, and that he was entitled to

be there to protect his interests, particularly since, he asserts, his counsel failed to

do so effectively.

The subject of the hearings was the telephone threat received by the juror?s

father. Juror G. was clearly concerned with the possibility that the threat might be

related to defendant or someone he knew. He requested that defendant not be

informed of the episode so as not to confirm that the threat had been successfully

communicated, in case defendant were ?hypothetically? involved in some way.

The juror would obviously have objected to defendant?s presence. Defendant had

no right to attend such confidential in-chambers discussions. (United States v.

Gagnon, supra, 470 U.S. at p. 527; People v. Ochoa, supra, 26 Cal.4th at pp. 435-

436, abrogated on another point as noted in People v. Prieto, supra, 30 Cal.4th at

p. 263, fn. 14.) He argues that he could have objected to Juror G. remaining on the

jury, or in the alternative assured the juror that he was not involved in the threat.

However, as noted just above it is settled that the removal of a juror is not a matter

for which a defendant is entitled to be present. Assurances from defendant were

unlikely to assuage the juror?s concerns, which in any event were alleviated by the

investigation that showed the threat was unrelated to this case. Finally, any direct

colloquy between the defendant and a juror would clearly have been inappropriate.

N.

Alleged Errors Concerning the Evidence in Aggravation

1. The Evidence of Juvenile Threats

Defendant challenges the trial court?s admission of evidence that he

threatened school police officers Steven Stokes and Louis Magdaleno when they

detained him in the security office of San Fernando High School in 1982.17 (See

the statement of facts, ante, p. 4.) The trial court deemed the evidence sufficient

to establish threats against public officers under section 71, amounting to

17

As to all claims concerning the evidence in aggravation, defendant

asserts violation of the Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution.

44


?criminal activity? for purposes of the aggravating factor provided by section

190.3, factor (b). Defendant claims the evidence failed to establish either his

intent to interfere with the performance of official duties or his ability to carry out

the threats.

Defendant

contends

there

was nothing to suggest his threats were meant to

obtain his release from custody. The claim is meritless. His demand to know why

he was being detained, just before he began threatening Magdaleno, and his

subsequent attempt to walk out the door sufficiently established his intent to

interfere with the officers? efforts to detain him.

Defendant argues that since he was handcuffed and in custody when he

made the threats, he was in no position to carry them out. He relies on our

decisions in People v. Tuilaepa (1992) 4 Cal.4th 569, 590, and People v. Boyd

(1985) 38 Cal.3d 762, 777. However, in People v. Dunkle (2005) 36 Cal.4th 861,

at pages 919-920, we explained that Tuilaepa and Boyd failed to recognize that

section 71 does not require a present ability to carry out the threat. ?Indeed, the

statute expressly provides that the threat may be communicated by ?telephone,

telegraph, or letter? (? 71) ? clearly indicating the Legislature did not intend to

require that the defendant have the capability to inflict the threatened unlawful

injury immediately.? (Dunkle, at p. 920.) It is sufficient if the defendant made a

threat with the requisite intent and it reasonably appears to the recipient that the

threat could be carried out. (Ibid.)18

Thus, it is immaterial that defendant may have lacked the ability to act on

his threats immediately. He told the officers that he knew or could find out where

they lived, and that he would kill them. He also threatened to kill Stokes?s wife

and burn down his house. The officers testified that they took these threats

18

Defendant also relies on People v. Wright (1990) 52 Cal.3d 367, 425-

426. However, Wright merely followed Boyd, and is not persuasive for the
reasons noted above.

45


seriously, and took precautions against them. This was sufficient to establish a

reasonable appearance that the threats could be carried out.

2. The Jury Instruction on the Threats

Defendant contends the jury instruction on the threats discussed above

improperly removed from the jury?s consideration the question whether his

conduct amounted to a criminal act. The court gave the jury a version of CALJIC

No. 8.87, as follows:

?Evidence has been introduced for the purpose of showing that the

defendant Lanell Harris has committed the following criminal acts: Threatening a

School Officer and Robbery which involved the express or implied use of force or

violence or the threat of force or violence. Before a juror may consider any of

such criminal acts as an aggravating circumstance in this case, a juror must first be

satisfied beyond a reasonable doubt that the defendant, Lanell Harris, did in fact

commit such criminal acts. A juror may not consider any evidence of any other

criminal acts as an aggravating circumstance.

?It is not necessary for all jurors to agree. If any juror is convinced beyond

a reasonable doubt that such criminal activity occurred, that juror may consider

that activity as a fact in aggravation. If a juror is not so convinced, that juror must

not consider that evidence for any purpose.?

Defendant

complains

that

the jury was told the threats were criminal in

nature. His reading of the instruction is unduly strained. It did not inform the jury

that the acts he committed were necessarily criminal threats. The references to

?such criminal acts? or ?activity? in the latter parts of the instruction clearly

referred back to the opening sentence, which explained that the jury was to

consider the evidence that the prosecution offered for the purpose of proving the

offense. Thus, the jury would reasonably have understood that it was to weigh the

evidence to decide whether it showed, beyond a reasonable doubt, that defendant

committed the criminal act of threatening a school officer. (See People

46


v. Monterroso, supra, 34 Cal.4th at p. 793; People v. Nakahara, supra, 30 Cal.4th

at p. 720.)

3. The Voluntary Intoxication Instructions

The court instructed the jury on the specific intent required for the

uncharged crime of threatening a school officer. With the assent of both counsel,

the court also gave the jury a version of CALJIC No. 4.21 on voluntary

intoxication, as follows:

?In the uncharged crime of Threatening a School Official a necessary

element is the existence in the mind of the defendant of the specific intent as set

forth elsewhere in these instructions.

?If the evidence shows that the defendant was intoxicated at the time of the

alleged crime, you should consider that fact in determining whether defendant had

such specific intent.

?If from all the evidence you have a reasonable doubt whether the

defendant formed such specific intent you must find that he did not have such

specific intent.?

The court followed this instruction with the definition of voluntary

intoxication provided by CALJIC No. 4.22:

?Intoxication of a person is voluntary if it results from the willing use of

any intoxicating liquor, drug or other substance, knowing that it is capable of an

intoxicating effect or when he willingly assumes the risk of that effect.

?Voluntary intoxication includes the voluntary ingestion, injecting or taking

by any other means of any intoxicating liquor, drug or other substance.?

Defendant contends these two instructions are irreconcilable and confusing.

He claims the jurors were likely to conclude that his willing assumption of the risk

of intoxication could not have diminished the criminality of his conduct. To the

extent this claim was not forfeited by defendant?s failure to object or seek

clarification below (see People v. Cleveland, supra, 32 Cal.4th at p. 749), it is

meritless. The jury was correctly informed that intoxication was relevant to its

47


determination of whether defendant had formed the requisite specific intent, even

if he was willing to accept the risk of intoxication. We considered and rejected a

claim similar to defendant?s in People v. Cain (1995) 10 Cal.4th 1, concluding

there was no likelihood that CALJIC Nos. 4.21 and 4.22 misled the jury in its

consideration of the intent requirement. (Cain, at pp. 38-39.)

4. The Escape Instruction

The jury was informed that defendant had pled guilty to a charge of

escaping from a police officer. The court read to the jury an abbreviated and

modified version of CALJIC No. 7.30, as follows:

?The defendant has been convicted of the crime of escape without force or

violence, in violation of section 4532(b) of the Penal Code.

?Every person arrested and booked and charged with a felony who is under

the lawful custody of an officer who escapes or attempts to escape from the lawful

custody of such officer is guilty of the crime of escape without force or violence,

in violation of Penal Code section 4532(b).?

The written instructions provided to the jury included the standard

terminology from the form instruction referring to ?[e]very prisoner arrested and

booked and charged . . . .? (Italics added.) Defendant contends the failure to

change ?prisoner? to ?person? in the written instructions violated his constitutional

rights because the jury was likely to have inferred that he had escaped from state

prison. Defendant forfeited this claim by failing to object below. The

inconsistency between the oral and written instructions is trivial and did not even

arguably affect his substantial rights. (? 1259.) The evidence and argument made

it plain that the escape was from the custody of a police officer, and both the oral

and written instructions so specified.

5. The ?Clerk Had Been Stabbed? Testimony

During the questioning of Jerome Van Tress, the salesman who observed

defendant attacking a 7-Eleven clerk in 1984, Van Tress began to relate what

happened when he drove to a police station to report what he had seen. Defense

48


counsel objected after Van Tress stated ?the police officer at the desk said ?.?

The prosecutor responded that ?it may not be offered for its truth, we don?t know

what it is. So it might not be hearsay.? The court allowed Van Tress to answer,

subject to a motion to strike. Van Tress continued, ?he said that the clerk had been

stabbed.? The court sustained defense counsel?s objection and directed the jury to

disregard the answer.

Defendant argues that the court erred by failing to require the prosecutor to

establish that Van Tress?s testimony was not ?offered to prove the truth of the

matter stated? under the hearsay statute (Evid. Code, ? 1200, subd. (a)), before

permitting Van Tress to finish his statement. Defendant relies on cases discussing

the necessity of proving the existence of a preliminary fact before proffered

evidence is deemed admissible, under Evidence Code section 403. (E.g., People v.

Sanders (1995) 11 Cal.4th 475, 514; People v. Pic?l (1981) 114 Cal.App.3d 824,

859-860, disapproved on another point in People v. Kimble, supra, 44 Cal.3d at p.

498.) These cases are inapposite; whether testimony is offered to prove the truth

of the matter stated is not a preliminary fact, but an intrinsic part of the

determination whether a statement is hearsay. In any event, the court?s authority

to allow a witness to answer on a provisional basis, subject to a motion to strike, is

recognized in Evidence Code section 403 itself, as well as in other contexts.

(Evid. Code, ? 403, subd. (b); 3 Witkin, Cal. Evidence, supra, Presentation at

Trial, ? 388, p. 481.)

Nevertheless, we note that the better practice would have been to resolve

the hearsay question before revealing the witness?s statement to the jury. It is not

unreasonable to expect advocates to know what evidence they are eliciting and be

prepared to defend its admissibility in advance. The prosecutor?s excuse that ?we

don?t know what it is? invited the court to go forward and hope to rectify any

49


problem after the fact. Under the circumstances, however, defendant can show no

prejudice.19

The jury was informed that defendant had admitted intentionally inflicting

great bodily injury on the victim, and it heard Van Tress testify that he had seen

?quite a bit of blood? on the floor of the 7-Eleven and on the sidewalk outside.

The jury also learned, as we discuss next, that when defendant was arrested the

same day, there was a bloody knife next to him. Thus, even assuming the jury

would not have been able to follow the court?s instruction to disregard Van Tress?s

hearsay testimony, in light of this other evidence the reference to stabbing was not

in itself so prejudicial as to violate any fundamental right.

6. The Bloody Knife Evidence

Detective Richard Knapp testified that he and a colleague went to an

apartment across the street from the 7-Eleven on the day of the robbery, following

a lead. Inside they found defendant lying on the floor, next to a table on which

there was a folding knife. The knife was closed. When Knapp examined it, he

saw what appeared to be dried blood on the inside and outside of the handle.

Defendant

contends

this testimony was irrelevant to any statutory

aggravating factor. The claim is meritless. The fact that defendant was found

with a bloody knife not long after the robbery was relevant to prove ?criminal

activity by the defendant which involved the use or attempted use of force or

violence? under section 190.3, factor (b). Defendant?s arguments disputing the

probative value of this evidence go to its weight, rather than its admissibility.

7. General Objections to the Use of Unadjudicated Criminal

Activity

Defendant

raises

a

number of general objections to the use of unadjudicated

criminal activity as an aggravating factor under section 190.3, factor (b). We have

consistently rejected these challenges.


19

He contends his rights to due process and a reliable penalty determination

under the Sixth and Fourteenth Amendments to the federal Constitution were
violated.

50




Section 190.3, factor (b) is not unconstitutionally vague or overbroad.

(Tuilaepa v. California (1994) 512 U.S. 967, 976-977; People v. Dunkle, supra, 36

Cal.4th at p. 922.) Defendant contends our decisions construing this factor have

resulted in procedural protections less rigorous than those provided to noncapital

defendants. However, the authority to which he refers fails to support his

assertion that penalty phase procedures are constitutionally required to be more

stringent than other criminal procedures. (See Ake v. Oklahoma (1985) 470 U.S.

68, 87 (conc. opn. of Burger, C. J.); Eddings v. Oklahoma (1982) 455 U.S. 104,

117-118 (conc. opn. of O?Connor, J.); Lockett v. Ohio (1978) 438 U.S. 586, 605-

606.) To the contrary, it is settled that defendants in capital cases are not similarly

situated to noncapital defendants. Thus, the objection that section 190.3, factor (b)

operates differently from noncapital procedures is meritless, as is defendant?s

equal protection claim. (People v. Carey, supra, 41 Cal.4th at p. 136; People v.

Blair (2005) 36 Cal.4th 686, 754.)

The use of the same jury to determine guilt and to weigh the other-crimes

evidence does not deprive defendants of an impartial jury. (People v. Bolin (1998)

18 Cal.4th 297, 335; People v. Avena (1996) 13 Cal.4th 394, 428.) Defendant

argues that his counsel was unable to adequately question prospective jurors

during voir dire regarding the unadjudicated crimes, due to the risk of biasing

them during the guilt phase, at which the other crimes evidence was inadmissible.

However, he provides no specific argument on this point, and elsewhere he

concedes that the unadjudicated offenses ?involved alleged robbery and threatened

assaultive conduct? similar to the charged crimes. Because counsel was free to

explore the prospective jurors? attitudes in regard to the charged crimes, defendant

fails to demonstrate any prejudice, even if he could establish a constitutional

violation.

Jury unanimity is not required with respect to unadjudicated criminal

conduct. (People v. Barnwell (2007) 41 Cal.4th 1038, 1059; People v. Michaels

(2002) 28 Cal.4th 486, 541-542.) Nor does expiration of the statute of limitations

51


bar the use of such conduct as an aggravating factor. (Barnwell, at p. 1058, citing

cases.) Defendant cites Johnson v. Mississippi (1998) 486 U.S. 578, 585-586, for

the proposition that procedures governing consideration of other-crimes evidence

at the penalty phase must conform to the constitutional standards governing proof

of charged offenses. However, as we have pointed out, Johnson does not say that.

(Barnwell, at p. 1058, fn. 15; People v. Yeoman (2003) 31 Cal.4th 93, 137-138.)

Juvenile misconduct may properly be introduced as evidence in

aggravation. (People v. Roldan (2005) 35 Cal.4th 646, 737; People v. Lewis,

supra, 26 Cal.4th at p. 378; People v. Lucky (1988) 45 Cal.3d 259, 295.)

O.

The Absence of an Instruction Defining Life Without Parole

The jury was given CALJIC No. 8.84, which stated in relevant part: ?It is

the law of this state that the penalty for a defendant found guilty of murder of the

first degree shall be death or confinement in the state prison for life without the

possibility of parole in any case in which the special circumstance alleged in this

case has been specially found to be true.? Similarly, CALJIC No. 8.88 informed

the jury it was to ?determine which of the two penalties, death or confinement in

the state prison for life without the possibility of parole, shall be imposed on the

defendant.?

Defendant contends these instructions failed to adequately explain the

meaning of ?life without the possibility of parole,? as required by Kelly v. South

Carolina (2002) 534 U.S. 246, Shafer v. South Carolina (2001) 532 U.S. 36, and

Simmons v. South Carolina (1994) 512 U.S. 154.20 We have rejected this

argument many times, noting that the South Carolina instructions were defective

because they failed to inform the jury of the defendant?s parole eligibility status.

(E.g., People v. Martinez (2003) 31 Cal.4th 673, 699; People v. Smith (2003) 30

Cal.4th 581, 635-636.) The instructions here explicitly informed the jury that

there would be no possibility of parole.

20

He asserts violation of the Sixth, Eighth, and Fourteenth Amendments to

the federal Constitution.

52




Defendant claims that during its deliberations, the jury demonstrated

confusion over the available sentencing choices by sending a note asking for a

definition of ?Life without the possibility of parole/Death penalty.? Before

replying, the court inquired whether counsel had discussed the matter to work out

an answer acceptable to both sides. The prosecutor responded that they had, and

the answer was that the meaning of the terms was ?exactly what they sound like;

that there is no other definition of them.? Defense counsel affirmed, ?that?s

correct.? The court asked, ?so your proposal is the jury be given no further

definition of life without parole or death?? Both counsel replied ?yes.?

Accordingly, the jurors were called in and the court told them ?those matters have

been defined for you and there?s really no need to define them further. They?re in

the materials that have been given to you and the court?s instructions, and there?s

no need to further define them for you at this point.?

Defendant complains that the court?s answer was ?essentially . . . no

response at all,? and amounted to ignoring the jury?s request for a definition. He

has waived this argument by specifically agreeing below to the court?s handling of

the jury?s question. (People v. Turner (2004) 34 Cal.4th 406, 437; see also People

v. Martinez, supra, 31 Cal.4th at p. 698.) In any event, his arguments lack merit.

The court told the jury to follow the instructions it had been given on this point,

and those instructions are ?precisely accurate.? (People v. Smith, supra, 30

Cal.4th at p. 635.) The common meanings of ?life without the possibility of

parole? and ?death penalty? are obvious. (See People v. Snow (2003) 30 Cal.4th

43, 123.) The jury?s request, as defendant acknowledges, did not reflect failure to

understand what the words meant as much as it demonstrated uncertainty that a

life sentence would actually be carried out without defendant being released from

prison.

It would have been proper for the court to tell the jury ? ?to assume that

whatever penalty it selects will be carried out? ? or to give ? ?a comparable

instruction.? ? (People v. Snow, supra, 30 Cal.4th at p. 123, quoting People v. Kipp

53


(1998) 18 Cal.4th 349, 378-379.) However, defendant did not request such an

instruction. Nor was he prejudiced by the procedure to which he agreed. The

court informed the jury in so many words to consult the instructions it was given,

without looking for further definition. The instructions were plain and accurate.

Considered on their own terms, as the jurors were directed to do, they left no room

for doubt over defendant?s eligibility for parole.

P.

The Absence of an Instruction on Victim Impact Evidence

Defendant

claims

the

court should have given an instruction on the proper

use of victim impact evidence, to prevent an unduly emotional response from the

jury.21 He proposed no such instruction below. Even if he had, we have ?rejected

the argument that a trial court must instruct the jury not to be influenced by

emotion resulting from victim impact evidence. [Citations.]? (People v. Carey,

supra, 41 Cal.4th at p. 134.) Defendant objects to certain arguments made by the

prosecutor. He does not claim prosecutorial misconduct. Nevertheless, he asserts

the remarks were so inflammatory the court should have given a cautionary

instruction. Defense counsel was certainly free to respond to the prosecutor?s

victim impact arguments, and to request an instruction addressing them if he

believed one was needed. However, defendant cites no authority for the

proposition that the court must respond to closing argument by giving sua sponte

limiting instructions.

Q.

The Failure to Reinstruct at the Penalty Phase

During the discussion of penalty phase instructions with counsel, the court

was skeptical about the necessity of reinstructing the jury with the guilt phase

instructions that were pertinent to the penalty deliberations. Ultimately, with the

concurrence of counsel, the court decided not to reinstruct, but to give a general

instruction telling the jury to follow those guilt phase instructions that applied to

21

He cites the Sixth, Eighth, and Fourteenth amendments to the federal

Constitution, as well as sections 7, 15, 16, and 17 of article I of the California
Constitution.

54


the penalty determination, excluding those prohibiting the consideration of

sympathy for the defendant. The court noted that the jury would have the guilt

phase instructions in written form.

Accordingly, the court read the following special instruction: ?You are to

be guided by the previous instructions given in the first phase of this case which

are applicable and pertinent to the determination of penalty. However, you are to

completely disregard any instructions given in the first phase which prohibited you

from considering pity or sympathy for the defendant. In determining penalty, the

jury may take into consideration pity and sympathy for the defendant.?

Immediately before reading this instruction, however, the court gave the

jury the standard version of CALJIC No. 8.84.1, which included the

admonishment: ?You must accept and follow the law as I state it to you.

Disregard all other instructions given to you in other phases of this trial.? This

instruction was designed to be followed by all the instructions appropriate for the

penalty phase. (See People v. Steele (2002) 27 Cal.4th1230, 1255-1256.)

Defendant contends the court erred by failing to reinstruct the jury with the

applicable guilt phase instructions, and by giving it contradictory directions to

disregard all former instructions, on the one hand, but to follow those that were

applicable, on the other.22 The court did indeed err. As we have held, if the court

tells the jury to disregard the guilt phase instructions, ?it must later provide it with

those instructions applicable to the penalty phase.? (People v. Moon, supra, 37

Cal.4th at p. 37.) We reiterate that trial courts should take pains to ensure that

penalty phase juries are fully and properly instructed. (See People v. Carter

(2003) 30 Cal.4th 1166, 1222; Moon, at p. 37, fn. 7.)

The Attorney General, while noting that defendant agreed to the

instructional procedure below, does not contend the error was invited. But insofar

as defendant claims the court should have reread the applicable guilt phase

22

He asserts violation of his rights under the Eighth and Fourteenth

Amendments to the federal Constitution.

55


instructions, his counsel did indeed invite error. The prosecutor directly, and

correctly, questioned whether the jury would be capable of modifying the written

instructions from the guilt phase to fit the penalty phase issues. In particular, she

noted that the circumstantial evidence instructions referred to findings of guilt,

which would not be involved in the penalty deliberations. Defense counsel argued

at length against reinstructing the jury, and requested that it receive only

instructions on the elements of the uncharged crimes, to avoid confusion and the

temptation to ?relitigate the issues in guilt.?

It is true that counsel did not ask the court to give CALJIC No. 8.84.1 in

addition to the special instruction set out above. He merely acquiesced in the

court?s decision to give these inconsistent instructions. Thus, to the extent that

error affected defendant?s substantial rights, he is not barred from raising a claim

of instructional error without an objection in the trial court. (People v. Benavides

(2005) 30 Cal.4th 1166, 111; see also People v. Moon, supra, 37 Cal.4th at p. 37.)

In any event, the instructions given by the court did not prejudice defendant under

the circumstances of this case, as we shall explain.

While it was confusing for the jury to hear first that it was to ?[d]isregard

all other instructions given to you in other phases of this trial,? and then that it

should ?be guided by the previous instructions given in the first phase of this case

which are applicable and pertinent to the determination of penalty,? two factors

operated to resolve the conflict as a practical matter. First, the jury was given the

guilt phase instructions in written form, and would reasonably have understood

that they could therefore consider them. Second, the prosecutor, in her closing

argument, referred the jury to the ?original? circumstantial evidence instructions

as they applied to the question of whether defendant had used a knife in the 7-

Eleven robbery. (See pt. II.N.5. & 6., ante, pp. 48-50.) She specifically

mentioned the aspect of those instructions most favorable to defendant, stating:

?If there are two reasonable interpretations of the evidence you must accept the

one that favors the defendant.? While the arguments of counsel are no substitute

56


for instructions from the court, here the jury would surely have concluded from the

prosecutor?s argument that these guilt phase instructions were applicable at the

penalty phase.

In arguing that the failure to reinstruct was prejudicial, defendant specifies

only the circumstantial evidence instructions, CALJIC Nos. 2.01 and 2.02. He

contends that, even if the jury did turn to the written instructions, it would not

have deemed these particular instructions applicable because of their references to

?guilt.? However, as noted, the prosecutor incorporated these instructions in her

argument on defendant?s use of a knife. Regarding the uncharged offenses alleged

in the penalty phase, common sense would have led the jury to consider the

instructions in determining whether defendant had committed those crimes.

Defendant relies on our discussion in People v. Babbitt (1988) 45 Cal.3d 660, 717-

718. There, we reasoned that the jury would not have applied ?the no-sympathy

instruction (CALJIC No. 1.00)? because it ?refers specifically to deciding a

defendant?s guilt or innocence.? (Babbitt, at p. 717.) Here, by contrast, the jury

would have applied the circumstantial evidence instructions both as a matter of

logic and by reference to the prosecutor?s argument incorporating them.

Defendant has failed to establish a reasonable possibility, or a reasonable

doubt, that any instructional error involving the applicability of the guilt phase

instructions affected the penalty verdict. (See People v. Wilson, supra, 43 Cal.4th

at p. 28; People v. Carter, supra, 30 Cal.4th at p. 1221-1222.)

R.

CALJIC No. 8.85

Defendant claims the failure to delete inapplicable statutory factors from

CALJIC No. 8.85, which identifies the factors that may be considered in

mitigation or aggravation, violated his federal and state constitutional rights.23 We

have repeatedly rejected this argument. (E.g., People v. Cook, supra, 40 Cal.4th at

23

Defendant cites only the Sixth, Eighth, and Fourteenth Amendments to

the federal Constitution.

57


p. 1366; People v. Anderson (2001) 25 Cal.4th 543, 600; People v. Ghent (1987)

43 Cal.3d 739, 776-777.)

Defendant claims the use of the phrase ?whether or not? to preface certain

factors (e.g., section 190.3, factor (e), ?[w]hether or not the victim was a

participant in the defendant?s homicidal conduct or consented to the homicidal

act?) improperly prompts the jury to consider the absence of such factors as

aggravating circumstances. Again, we have repudiated this claim on multiple

occasions. (E.g., People v. Tafoya (2007) 42 Cal.4th 147, 198; People v. Gray

(2005) 37 Cal.4th 168, 236; People v. Kraft (2000) 23 Cal.4th 978, 1078-1079.)

Defendant refers to a law review article reporting a study finding that jurors

believe the absence of mitigating evidence may support a sentence of death. We

have explained, however, that ?[t]he mere absence of a mitigating element may

weigh against a finding that the instant offense is less serious than ?normal,? and

thus especially deserving of mercy, but it does not suggest that the crime is more

serious than ?normal,? and thus especially deserving of death.? (People v.

Rodriguez (1986) 42 Cal.3d 730, 788.) Thus, ?the sentencing jury is entitled to

know that a defendant?s crime lacks certain elements the state deems relevant to

leniency in the choice of penalty.? (Id. at p. 789; see also People v. Ayala, supra,

23 Cal.4th at p. 232; People v. Ghent, supra, 43 Cal.3d at p. 771.)

S.

CALJIC No. 8.88

Defendant contends CALJIC No. 8.88, the trial court?s concluding

instruction to the jury, is constitutionally flawed in a number of respects, each of

which we have addressed in earlier cases, finding no error.24 The instruction told

the jury that it ?must be persuaded that the aggravating circumstances are so

substantial in comparison with the mitigating circumstances that it warrants death

instead of life without the possibility of parole.? Contrary to defendant?s

arguments, the ?so substantial? language is not impermissibly vague and




24 Defendant relies on the Sixth, Eighth, and Fourteenth Amendments to

the federal Constitution.

58


ambiguous (People v. Tafoya, supra, 42 Cal.4th at p. 189; People v. Coffman and

Marlow, supra, 34 Cal.4th 1, 124; People v. Breaux (1991) 1 Cal.4th 281, 315-

316), nor is the use of the term ?warranted? instead of ?appropriate? (People v.

Carey, supra, 41 Cal.4th at p. 137; People v. Perry, supra, 38 Cal.4th at p. 320;

People v. Smith (2005) 35 Cal.4th 334, 370). Neither is the instruction defective

for failing to inform the jury that neither party bore the burden of persuasion on

the penalty determination. (People v. Geier, supra, 41 Cal.4th at p. 619; Coffman

and Marlow, at p. 124; People v. Hayes (1990) 52 Cal.3d 577, 643.)

T.

Imposition of Capital Punishment for Felony Murder

Defendant

claims

that

condemning him to death for a felony murder that

did not require an intent to kill, while sparing some intentional killers from capital

punishment, violates the Eighth and Fourteenth Amendments to the federal

Constitution. We have rejected such claims. (People v. Kennedy (2005) 36

Cal.4th 595, 640; People v. Taylor (1990) 52 Cal.3d 719, 747-748; People v.

Anderson (1987) 43 Cal.3d 1104, 1147.) Defendant does not persuade us to

change our view.

U.

Miscellaneous Constitutional Challenges to the Death Penalty Statute

Defendant presents a number of further constitutional attacks on the death

penalty statute that we have rejected.25 We continue to do so. Thus:

The ?circumstances of the crime? factor provided by section 190.3, factor

(a) does not foster arbitrary and capricious penalty determinations. (People v.

Barnwell, supra, 41 Cal.4th at p. 1058; People v. Cook, supra, 40 Cal.4th at p.

1367.)

Section 190.3 sufficiently narrows the class of murderers eligible for capital

punishment. (People v. Barnwell, supra, 41 Cal.4th at p. 1058; People v. Bonilla

(2007) 41 Cal.4th 313, 358.)

25

Defendant again refers to the Sixth, Eighth, and Fourteenth Amendments

to the federal Constitution.


59




The burden of proof beyond a reasonable doubt does not apply to findings

on the capital sentencing factors (except for other crimes), nor does the

preponderance of the evidence standard. The jury?s findings need be neither

written nor unanimous. (People v. Barnwell, supra, 41 Cal.4th at p. 1059; People

v. Abilez (2007) 41 Cal.4th 472, 533.)

Review for intercase proportionality is not constitutionally required.

(People v. Barnwell, supra, 41 Cal.4th at p. 1059; People v. Geier, supra, 41

Cal.4th at p. 618.) Defendant fails to support his assertion that this court has

categorically forbidden such review; in the only case to which he refers, we

considered the showing of alleged disproportionality and found it insufficient.

(People v. Marshall (1990) 50 Cal.3d 907, 947.)

Section 190.3, factor (b) does not violate the federal Constitution by

permitting the use of unadjudicated criminal activity as an aggravating factor, nor

must such factors be found true beyond a reasonable doubt by a unanimous jury.

(People v. Barnwell, supra, 41 Cal.4th at p. 1059; People v. Bonilla, supra, 41

Cal.4th at p. 359.)

The use of the adjectives ?extreme? and ?substantial? in section 190.3,

factors (d) and (g) is not unconstitutional. (People v. Barnwell, supra, 41 Cal.4th

at p. 1059; People v. Cook, supra, 40 Cal.4th at p. 1366.)

?A penalty phase jury need not be instructed that section 190.3, factors (d),

(e), (f), (g), (h), and (j) can only mitigate, and not aggravate, the crime.

[Citation.]? (People v. Barnwell, supra, 41 Cal.4th at p. 1059; see also People v.

Bonilla, supra, 41 Cal.4th at p. 360.)

?The death penalty law does not deny capital defendants equal protection

because it provides a different method of determining the sentence than is used in

noncapital cases. [Citation.]? (People v. Barnwell, supra, 41 Cal.4th at p. 1059;

see also People v. Bonilla, supra, 41 Cal.4th at p. 360.)

60


V.

Cumulative Error

Defendant contends the cumulative effect of the errors at his trial requires

reversal of his death sentence. We have found no prejudicial error at either phase

of trial. The defects we have identified, i.e., the omissions from the appellate

record, the faulty instruction on the felony murder special circumstance, and the

failure to properly reinstruct the jury at the penalty phase, do not, considered

together, warrant reversal.

W.

International Law

Capital punishment in California is not a violation of international law, nor

do the international norms asserted by defendant render the death penalty

unconstitutional under the Eighth or Fourteenth Amendment. (People v. Barnwell,

supra, 41 Cal.4th at p. 1059; People v. Bonilla, supra, 41 Cal.4th at p. 360.)

III. DISPOSITION

The judgment is affirmed.

CORRIGAN, J.



WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

61


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Harris
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S037625
Date Filed: June 19, 2008
__________________________________________________________________________________

Court:
Superior
County: Los Angeles
Judge: Bert Glennon, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Joel
Kirshenbaum, Deputy State Public Defender, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Susan D. Martynec, Deputy
Attorneys General, for Plaintiff and Respondent.







Counsel who argued in Supreme Court (not intended for publication with opinion):

Joel Kirshenbaum
Deputy State Public Defender
221 Main Street, Suite 1000
San Francisco, CA 94105
(415) 904-5600

Susan D. Martynec
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2250