Defendant was convicted by a jury in the Sacramento County Superior Court of the first degree murder (Pen. Code, §§ 187, 189)
This appeal is automatic. (§ 1239.)
Defendant also petitions for writ of habeas corpus asserting that his trial counsel failed to provide constitutionally adequate representation. Because defendant makes the same claim in his appeal, we issued an order to show cause and consider the habeas corpus petition in conjunction with the appeal. We conclude that defendant's assertions of error at the guilt phase of the trial lack merit, that no prejudicial error occurred thereafter, and that he has failed to establish a basis for habeas corpus relief. Accordingly we shall affirm the judgment in its entirety and deny the petition for writ of habeas corpus.
I
A. Guilt Phase Evidence: The Prosecution Case.
The offenses of which defendant was convicted occurred on July 8, 1981, when the victims were taking a brief walk during a midmorning break from their jobs at the El Dorado County Welfare Department in Placerville. About 10:30 a.m. they were accosted by a man, identified by Ms. D. as defendant, who jumped out of a car and ordered them at gunpoint to get into the car. They complied, entering the back seat. Defendant drove for some distance, from Highway 50, Coloma Road, and Highway 49, onto Highway 193. The car left Highway 193 and continued for a mile and one-half on Rock Creek Road to a point where defendant drove off the road, stopped the car, and ordered the two women to walk down a dirt path to an overgrown creek bed. They followed the creek bed to an area where defendant ordered the women to disrobe. A car driving at normal speed from the
At defendant's direction, Ms. D. tied the hands of Ms. Pennington with the latter's hose. Defendant tightened the bonds, and then gagged Ms. Pennington with a bandana. He then raped Ms. D., after which he untied Ms. Pennington, and ordered the women to continue walking along the creek bed. When they reached a large hole, defendant ordered both victims to get into the hole. In reply to Ms. D.'s plea that she not be killed, defendant stated that he had to kill them so that he would not be killed.
The women turned away from defendant at his orders, after which Ms. D. heard five shots. She felt a numbness in her neck after the second shot and felt the impact of a second bullet in her neck with the fourth shot. She feigned death, lying down, and heard defendant throwing rocks on Ms. Pennington and on her own head. Then, after hearing defendant leave and waiting for from five to ten minutes, Ms. D. made her way back to Rock Creek Road where a gravel-truck driver drove her to the highway, and flagged down a car whose driver took her on to Chili Bar where the sheriff and medical help were summoned.
The first driver remained at the intersection of the highway and Rock Creek Road to guide emergency personnel. He and a deputy sheriff who arrived within 15 minutes were able to follow the trail left by Ms. D. By the time they had located Ms. Pennington, they had been joined by paramedics and firemen. A paramedic who examined Ms. Pennington at the scene determined that she was dead. A subsequent examination established that the cause of death was one of three bullet wounds she suffered and a fracture through the base of her skull.
Ms. D. had suffered a potentially life-threatening bullet wound to her neck and an abrasion on the back of her skull. She was taken to a local hospital and thereafter transferred to the Sacramento Medical Center. Her first description of her assailant, to the gravel truck driver who picked her up, was a man with long dark hair and a green car. Although the truck driver did not recall her so stating, the deputy sheriff who met him testified
Analysis of a stain on Ms. D.'s panties indicated that seminal fluid was present. Further analysis established that it came from a person having a PGM enzyme type 1 +2 +, which is common to approximately 23 percent of the population, including defendant, and came from a "non-secretor" who does not exhibit markers of his ABO (blood) type in other body fluids. Defendant is a nonsecretor. The percentage of nonsecretors who produce type 1 +2 + PGM in the population is approximately 4 percent. One out of four persons in the population could have been the donor of the seminal fluid found in the stain. Analysis of the blood and saliva of Ms. D.'s husband eliminated him as the source of the seminal fluid.
Ms. D. had described the car in which she had been abducted as an old, large car of American make, two-door, and green in color. On July 8, defendant's parole agent told local police that defendant drove a 1975 Chevrolet Impala, license 807 PSF. That evening, having failed to locate the car at defendant's residence, Deputy Sheriff Allen, waiting near the entrance to defendant's driveway, observed a two-door Chevrolet, partial license 807, approach. The driver was defendant's half-brother, Kevin Jones. Later that night Ms. D. was asked to describe any objects she remembered seeing in the car. On the morning of July 9, 1981, neither defendant nor the car was at defendant's residence, the home he shared with his mother and half-brother on a former boys' ranch in El Dorado County. The car was located there in the late afternoon, however. An officer observed two pillows and a "cool cushion" in the back seat, items which Ms. D. identified as
Some time after 8 p.m. on July 8, 1981, Kevin Jones and his girlfriend Dana Skelton, returning from a visit to her grandmother in Kelsey, drove to the house. Dana testified that after Kevin stopped to speak to a deputy sheriff who was parked at the foot of the driveway about a quarter of a mile from the house, he drove on up to the house and spoke to his mother. He then returned to the car and told Dana that he had to take her home, and that they had to put defendant in the trunk because defendant was dealing in cocaine. After leaving the house, Kevin stopped, Dana met defendant, and defendant joined them in the passenger compartment of the car. Defendant had a moustache and a little bit of beard at the time when Dana met him. They drove to the home where Dana lived with her grandmother who gave permission for defendant and Kevin to remain overnight. On the next morning, although Kevin had promised Dana when she awoke at 6:30 a.m. that he would drive her to work, he told her he could not do so because his brother had to leave. The two men left ten minutes later.
Dana's grandmother described the man who had stayed at her home as having a fairly long moustache and dark hair. She identified a photo of defendant as similar to that man, but his moustache was longer.
A neighbor, David Marden, who lived in the other half of the duplex building shared with the Karis family, saw defendant driving up to the house much faster than he had ever seen him drive before on an afternoon that was determined to be July 8, 1981. It was also determined that this occurred between 3 and 3:30 p.m. The same neighbor testified that defendant was growing the marijuana plants the officers had seized, and was paranoid about them. The neighbor had believed defendant left the family home out of fear regarding their discovery.
On July 9, 1981, defendant arrived unexpectedly during the noon hour at the home Peggy Steuben shared with Jay Raugust, who was a friend of defendant, and whose home defendant visited about once a month to work with Raugust making jewelry and other crafts and to talk. On this occasion defendant was quiet, withdrawn, and clean shaven. When Ms. Steuben had last seen defendant on July 5, 1981, he had a full beard and a moustache. When she jokingly asked defendant if he was on the run, he said he did not
Ms. Steuben also testified, over objections that the statements were hearsay and more prejudicial than probative, that defendant had visited them on the July 4, 1981, weekend, and that during a conversation about keeping a gun for self-defense, defendant had stated that he could understand that if someone committed a serious crime, it could be necessary to have a gun to kill witnesses and avoid apprehension. He stated that he had been in prison and would consider it self-defense to kill anyone who might send him back. He thought rape was an example of a serious crime.
Prior to the trial, Kevin had suffered a stroke. Pursuant to stipulation that he was physically and mentally incompetent to testify, portions of his preliminary hearing testimony were read to the jury, without objection by defense counsel.
Kevin also testified that he had spent the night of July 8, 1981, at the home of Dana Skelton. On July 9, 1981, he arrived home about 8 a.m. Defendant was just getting up. Jones drove defendant to the bus station in Placerville about one hour later. Defendant wanted to visit friends.
Kevin had been interviewed several times prior to the trial. On the evening of July 9, 1981, he first told Placerville Police Officer Southern that when he arose at 10 a.m. on July 8 both defendant and the family car were gone. He later said that on that morning he, defendant, and their mother had left the house together at 8 a.m. to drive to Placerville, where they cashed a check and bought the money order, returning home just after 10
Defendant was apprehended on July 15, 1981, in Windsor (Sonoma County), after one of two women and a baby he had kidnapped attempted to escape from her van, attracting the attention of a gas station employee who came to help. Defendant fled on foot, and was located by police who found him hiding nearby. These kidnap victims, Debora Coffler, Patricia Dobbs, and Dobbs's five-month-old son, had been at a park in Fairfax, where the women played tennis. As they returned to their van, defendant ran up, and ordered the women, at knifepoint, into the back of the van. He told them he was wanted for murder, that he would be shot on sight by the police, and had nothing to lose since he was a murderer who would go to the gas chamber. He refused Dobbs's offer of money and the keys, saying that if he let the women go, the police would be after him in seconds. He repeated the statement that he was a murderer and would not hesitate to hurt them at that time and again during the northward journey.
B. Guilt Phase Evidence: The Defense Case.
Defendant testified that he had been living at the ranch for about five months in July 1981. The family car was a 1975 Chevrolet Impala, which was silver with a black naugahyde top. He was cultivating marijuana for profit and had about 100 plants at that time. When he visited Peggy Steuben on the July 4, 1981, weekend he had a full beard, and his hair was two or three inches below his collar. When speaking of why someone might kill a witness to a crime he was never speaking about himself. On the Monday following that weekend visit he had cut off his beard, but left sideburns to the bottom of his ear and a moustache just past the corners of his mouth.
Defendant testified that on July 8, 1981, he arose at 7:30 a.m., shaved, and drove alone to Placerville where he cashed his unemployment check at the supermarket, and purchased a money order for $150 which he mailed to his landlord.
On July 9, defendant went back to the family house. No police were there, but defendant decided to go visit some friends until he could find out what was happening. He walked from the bus station to an on-ramp to Highway 50, and from there hitched a ride to Ms. Steuben's house in Rancho Cordova. He had sideburns, a moustache, and hair below his collar at that time. That afternoon he walked to the American River, stopping en route to telephone his own home and learned from Kevin that the police were there looking for him. He returned to the Steuben home where he shaved off his moustache, trimmed his sideburns, and cut two inches off his hair. He then went back to the American River where he found a place to sleep and remained for five days. When he saw an article in the newspaper
Defendant weighed about 190 pounds at the time of trial. He testified that he had weighed 195 to 200 pounds in July 1981. At trial he had a full beard because it was difficult to obtain a razor in jail, and he liked having a beard.
The remainder of the defense case was directed primarily to attempts to discredit the identification testimony by pointing out inconsistencies in Ms. D.'s statements, and dangers inherent in eyewitness identification. Dr. Loftus, a psychologist, testified regarding the effects of stress on human memory, about "photo biased identification," and the likelihood that a person who was confident in making an identification was wrong. The officers to whom Ms. D. had described her assailant testified regarding her statement that he was Mexican or possibly Mexican, her description of the car, and her recall of defendant's moustache, beard, and hair. A member of the El Dorado district attorney's staff recalled that Ms. Steuben had told him that defendant had been clean shaven when she saw him on the day after the events in question. Evidence was also offered that in each month a pharmacy in Placerville sold six to twelve cool cushions of the same brand as that seized in defendant's car.
C. Penalty Phase Evidence.
The prosecution presented evidence that defendant and a second man had abducted, raped, and robbed Kerry A. in Long Beach in 1971, and defendant had abducted and raped 17-year-old Deborah B. in 1975. Ms. M., a friend, who was one of two women with Kerry A., testified that they had stopped at a gas station at 12:30 a.m. on February 12, 1971, and while she waited for the other two women to return from the restroom, defendant entered the car from the passenger side, knife in hand, ordering her to do what he said. He allowed the other two women to return, and then drove to an industrial area where she was ordered to park at the end of a cul-de-sac against a chain link fence in the driveway of a commercial building. The second man pulled in and parked his car behind them. Defendant ordered Kerry A. out of the car. The second man got into the car with Ms. M. and the third woman, while defendant raped Kerry A. in the other car. They then returned to Ms. M.'s car. Defendant spoke with his companion, after which he ordered Kerry A. to return to the other car with his companion. She did so and was raped again by that man. Defendant took all of their
Deborah B. testified that defendant stopped a truck next to her as she walked to her boyfriend's house in San Jose about 5 p.m. on November 11, 1975, and offered her a ride. After she got in, defendant indicated he was going to a different location, and when she asked to get off, defendant grabbed her head, pushed her down, and told her he would cut her throat if she moved. She felt something like a knife against her neck. Defendant handcuffed her, and drove to the Guadalupe Dam area where he grabbed her, led her down a dirt path and across a creek, and ordered her to lie down on the dirt. After removing the handcuffs, defendant raped her. Defendant was convicted of forcible rape in this incident also.
Ms. Dobbs testified that during the abduction on July 15, 1981, defendant asked her whether the back seat of her van pulled out into a bed, to which she falsely replied that it did not. He moved into the rear of the van while she drove, and ordered Ms. Coffler to take off her clothes. He held a knife as he ordered her to stop begging. Ms. Dobbs then said she could not drive safely if nervous and asked defendant to return to the front seat. He then ordered her to drive and asked if she wanted him to rape her instead of Ms. Coffler. He finally returned to the front seat, and when reminded that he had promised not to hurt the women if they cooperated, said that he had meant not breaking bones or killing them, but rape they could live with. Ms. Dobbs also testified that during her attempted escape from the van, defendant grabbed her hair and flung her to the floor. When she struggled with him as he tried to start the van he stated that he was going to kill her then. She managed to throw his knife, which he had dropped, out of the window and to escape herself.
The occupant of the mobilehome to which defendant ran from the gas station, testified that when she opened her door to see who was there, defendant put a knife to her stomach and demanded her car keys.
The director of the handicraft program at the California Medical Facility testified that defendant's participation and work in the program was above average. He identified ribbons awarded to defendant by outside judges for his work, and said that defendant had done woodwork, ceramics, and jewelry. Another employee described defendant's work as excellent, identifying a wooden chess set and wooden clock made by defendant. He had heard defendant play the guitar well.
An instructor at Soledad College had awarded defendant an A in a geography class he taught at Vacaville, stating on the report card that
It was stipulated that defendant's seventh-grade teacher would testify that defendant was a bright and sensitive child, who came to school early, and appeared to be healthy. The owner of a crafts shop in Placerville testified that defendant brought in some excellent craft items that he had made in early 1981 and they sold very well.
Defendant's mother testified that she still loved defendant. She was divorced from defendant's father when he was only two; his father only visited defendant for another year or two and then did not see defendant until he was sixteen. Defendant's mother remarried, but was divorced again after four years. Defendant saved Kevin from drowning in the ocean when Kevin was five or six years old. Defendant's aunt testified that defendant often went camping, fishing, and motorcycle riding with her former husband, and became upset when the husband was killed in a truck crash.
II
GUILT PHASE ISSUES
Defendant claims first that his attorneys rendered constitutionally inadequate assistance at both the guilt and penalty phases of his trial. Because the record on appeal does not support this contention, and it is also the basis for defendant's petition for writ of habeas corpus, this claim will be discussed separately below when that petition is considered.
Defendant makes only two other assertions of error with respect to the guilt phase of his trial.
A. Jury Selection.
Defendant correctly notes that Rubio v. Superior Court, supra, 24 Cal.3d 93, is not binding precedent since a majority of the court did not join in the plurality opinion which concluded that neither category of excluded persons constituted a "cognizable group." That opinion reasoned that while the petitioner had satisfied the requirement that he show that members of the excluded group share a common perspective arising from their experience as a member of the group, he had not established that no other jury-eligible members of the community could adequately represent the viewpoints of ex-felons and resident aliens.
The plurality opinion did not address a claim that Code of Civil Procedure sections 198 and 199 violate the fair cross-section requirements of the state and federal Constitutions in excluding resident aliens.
The concurring opinion in People v. Coleman, supra, 38 Cal.3d 69, 95-98, disputed the premise of Rubio, supra, 24 Cal.3d 93, that naturalized citizens adequately represent the perspective of resident aliens, reasoning that because resident aliens constitute a significant proportion of the community, relegating them to "vicarious" representation by naturalized citizens violated the cross-section requirement.
Defendant offers no authority for a conclusion that the drafters of the Sixth Amendment, or the drafters of the California Declaration of Rights, of which article I, section 16 is a part, contemplated the seating of either convicted felons or noncitizens on petit juries. Furthermore, although both convicted felons and noncitizens were resident in the United States and in the State of California when those provisions were adopted, he offers no evidence that their numbers have now grown so large in proportion to jury-eligible citizens as to constitute a change in circumstances that warrants disregarding that intent in construing those constitutional provisions.
To the extent that evidence of the drafters' intent is available, it suggests that article I, section 16 does not contemplate inclusion of either ex-felons
Article XX, section 11 of the 1879 Constitution, and article XI, section 18 of the 1849 Constitution, each provided that laws were to be enacted "to exclude from office, serving on juries, and from the right of suffrage, those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes...."
"1st. A Citizen of the United States.
".... .... .... .... .... ...
"5th. Nor shall any person be competent to act as a Juror, who has been convicted of a felony or a misdemeanor, involving moral turpitude." (Stats. 1851, ch. 30, § 1, p. 290. See also, Stats. 1863, ch. 405, § 1, p. 630; Stats. 1864, ch. 406, § 1, p. 462.)
Since neither noncitizens nor ex-felons were competent to act as jurors when the Constitution of 1879 was enacted, we cannot conclude that the right to jury trial, and to a fair and impartial jury drawn from a representative cross-section of the community (see People v. Wheeler (1978) 22 Cal.3d 258, 265 [148 Cal.Rptr. 890, 583 P.2d 748]) contemplated inclusion of either category of persons in that "representative cross-section" of the populace. Defendant's claim, therefore, must find its support in decisions under the Sixth Amendment to the United States Constitution. To date, the United States Supreme Court has not concluded that a jury panel which excludes noncitizens and ex-felons is not sufficiently representative of the community to satisfy the Sixth Amendment guaranty of an impartial jury. (See Duren v. Missouri (1979) 439 U.S. 357 [58 L.Ed.2d 579, 99 S.Ct. 664];
B. Evidence of Defendant's Statements to Steuben.
The People, not responding directly to the relevance argument, contend that the evidence was admissible both as an admission under Evidence Code section 1220, and as evidence of defendant's state of mind under subdivision (a)(2) of Evidence Code section 1250. They also argue that the trial court properly exercised its discretion under Evidence Code section 352 in ruling that the evidence was admissible. The ruling must be upheld if the evidence was admissible under any hearsay exception. Therefore, although there may be merit in defendant's argument that a threat made prior to a crime may not be considered an "admission" unless a specific crime is contemplated and intended, we need not reach this question if the statement is admissible under section 1250 of the Evidence Code.
1. Evidence Code Section 1250: Statements of Intent.
Evidence that a person has a propensity to commit criminal acts is inadmissible, however (Evid. Code, § 1101), and is excluded because of its highly prejudicial nature.
Although once again the specific hearsay exception under which the evidence was admitted was not an issue in the case, People v. Rodriguez (1986) 42 Cal.3d 730, 757 [230 Cal.Rptr. 667, 726 P.2d 113] is instructive with regard to the admissibility of "generic" threats. We stated there: "A defendant's threat against the victim ... is relevant to prove intent in a
The same reasoning leads to a conclusion that statements of intent of this nature, reflecting intent to kill a particular category of victims in specific circumstances, fall within the state-of-mind exception to the hearsay rule. (Evid. Code, § 1250.) The evidence is therefore admissible unless the circumstances in which the statements were made, the lapse of time, or other evidence suggests that the state of mind was transitory and no longer existed at the time of the charged offense.
2. Evidence Code Section 352: Probative Value.
The record confirms that the court gave careful consideration to this question before admitting Ms. Steuben's testimony. In the view of the trial court, the fact that the statement was made only three days before the commission of the crime enhanced its probative value, and because at the time of the ruling the identity of the perpetrator appeared to be the principal issue, the court concluded that as a statement of motive, plan, and design the probative value of the statement was great. The court therefore concluded that the highly probative nature of the evidence substantially outweighed the danger of undue prejudice from its admission.
As we have noted in the discussion above, defendant's statement regarding his intent, while not directed toward a specific victim, did contemplate
The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.
III
PENALTY PHASE ERROR
A. Testimony of Defendant's Prior Rape Victims.
At the outset of the penalty phase of the trial, defendant offered to stipulate that he had been convicted of the rape of Kerry A. in 1971 and that of Deborah B. in 1975. He proposed to stipulate that the 1971 offense was committed with force and violence, to the "factual basis surrounding that rape," and to the statements given to police officers by the witnesses to that offense. A similar offer was made with regard to the 1975 offense. The court first indicated a willingness to grant the motion over the objection of the People, and directed counsel for defendant to put the stipulation in writing and to include every allegation made by the witnesses. Before that was done, however, the court denied the motion, ruling that the People
We were careful to note, however, that this rule of exclusion was not applicable "[i]f the facts to which the defendant has offered to stipulate retain some probative value.... For example, if evidence remains relevant to an issue not covered by the stipulation or admission, the evidence is admissible on the remaining issue. [Citations.] If the stipulation would force the prosecution to elect between theories of guilt, or would hamper a coherent presentation of the evidence on the remaining issues, evidence of the stipulated facts is admissible. [Citation.] Further, if a stipulation or admission is `ambiguous in form or limited in scope or [if] during the trial of a case, a party seeks to deprive his opponent of the legitimate force and effect of material evidence ...,' the evidence retains some probative value and is admissible." (People v. Hall, supra, 28 Cal.3d 143, 152-153.)
The purpose of introducing evidence of prior convictions as aggravating factors at the penalty phase of a capital case is not comparable to proving ex-felon status an element of a criminal offense. A penalty phase jury is not simply making factual findings leading to a determination of guilt. In weighing the appropriate penalty, deciding between death and life imprisonment without possibility of parole, the jury performs a normative function, applying the values of the community to the decision after considering the circumstances of the offense and the character and record of the defendant. (People v. Brown, ante, p. 432, 448 [205 Cal.Rptr. 604, 1135 P.2d 758];
The evidence which the People sought to introduce was not only the fact of defendant's prior convictions or the nature of the offenses, evidence that may come under section 190.3, factor (c), but also the fact that these offenses were violent assaultive crimes. In enacting factor (b) of section 190.3, the electorate intended to allow admission of evidence of violent criminal acts, not simply the fact of prior felony convictions. (People v. Gates (1987) 43 Cal.3d 1168, 1203 [240 Cal.Rptr. 666, 743 P.2d 301]; People v. Balderas (1985) 41 Cal.3d 144, 204 [222 Cal.Rptr. 184, 711 P.2d 480].) Reading to the penalty phase jury the victims' and witnesses' descriptions of a crime is not an adequate substitute for testimony during which the prosecutor may elicit the details he believes to be particularly relevant to the penalty decision. As we have noted in People v. Brown, supra, ante, at page 445, "the People may properly present evidence showing the circumstances of the prior violent criminal activity." They are not required to accept defendant's stipulated limitation of the facts or the manner in which they are presented.
We find no merit in defendant's claim that proving the commission of a capital defendant's prior assaultive conduct through the testimony of the victim violates Booth v. Maryland (1987) 482 U.S. 496 [96 L.Ed.2d 440, 107 S.Ct. 2529]. There the United States Supreme Court held that a "victim impact statement" could not be presented to the sentencing authority. The reasoning underlying that decision was that the impact of the capital offense on the family of the victim was not relevant to any issue the jury was called upon to decide in selecting the appropriate penalty. The focus of the victim impact statement was "not on the defendant, but on the character and reputation of the victim and the effect on his family" (id. at p. 504 [96 L.Ed.2d at p. 449]), factors that might be irrelevant to the culpability of the defendant. For this reason, and because the extent to which the victim's family was able to express grief over the death of the victim also was irrelevant to culpability of the defendant, the court concluded that the victim impact statement would divert the jury from its focus on the defendant "as a uniquely individual human being" as required in capital sentencing, and thus would violate the Eighth Amendment. "The admission of these emotionally-charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases." (Id. at pp. 508-509 [96 L.Ed.2d at p. 452].)
The evidence introduced here was not evidence of the impact of defendant's capital offense on the family of the murder victim, and is not comparable
The court did not err in rejecting defendant's offer to stipulate.
B. Prejudicial Impact of Evidence of Attempted Rape of Debra Coffler.
The short answer to this claim is that the evidence is expressly made admissible by factor (b) of section 190.3. The court is not given discretion under Evidence Code section 352, to exclude this evidence when offered at the penalty phase where, as discussed above, the question for the jury is not one of fact in determining guilt.
The rules governing jury misconduct are clear.
The remaining declarations offered by the People in opposition to the motion for new trial were adequate to rebut the presumption of prejudice and to satisfy this court that the trial court did not err in denying the motion. Juror H. declared that it had been his custom to go to the public library during the jury's lunch break. On one such occasion during the penalty phase while he was checking out books he asked whether the librarian had any books by Dr. Loftus, was told that the library did not, and he later mentioned "in passing," in the jury room that he had asked for books by Dr. Loftus and the librarian reported that she had none. The remark was a casual remark, and the juror did not state that the failure of the library to have such books had any bearing on the credibility or professional credits of Dr. Loftus.
The jury foreman was unsure of the phase of the trial during which this occurred but declared that it happened on the same day that another juror provided the jury with a dictionary definition of "mitigating." The juror who did so declared that she used Webster's New World, Second Collegiate Edition Dictionary to obtain the definitions of words in the court's instructions that were not specificially defined therein. Seven jurors declared that this juror had given a commonsense definition of "mitigating," and several of these jurors included mention that the definition indicated that it was the opposite of "aggravating."
Some of the jurors had not heard the remark about Dr. Loftus. Others declared that it had not been made during deliberations, and those who heard it indicated that there had been no remarks or discussion relating the statement to the qualifications of Dr. Loftus.
We see no way in which the remarks about the availability of books authored by Dr. Loftus in the Sacramento Public Library, or a branch thereof,
We also find no basis for prejudice to defendant in the jury's consideration of the dictionary definition of mitigating. That definition stated: "mitigate ([pronunciation]) vt., vi. - ga'ted, gat'ing [etymology] to make or become milder, less severe, less rigorous, or less painful; moderate miti-ga-ble ([pronunciation]) adj. miti-ga'tion. mit'i-ga'tive adj. mit'i-ga-tor n. mit'iga-to'ry ([pronunciation]) adj." (Webster's New World Dict. (2d college ed. 1982) p. 911.) We assume therefore, as does defendant, that the definition considered by the jury was that mitigation means "to make mild, soft, or tender, and "to make or become milder, less severe, less rigorous, or less painful; moderate."
The word "mitigating" appeared several times in penalty phase instructions.
While the dictionary definition of "mitigating" may not have been particularly helpful to the jury in understanding the use of the term in this context, defendant offers no persuasive argument to support a conclusion that the jury might have been misled. He suggests that if the jury had believed it could consider as mitigating evidence that did not pertain directly to the crime, notwithstanding the instruction, consideration of that definition would lead them to conclude that to be considered mitigating the factors had to make the crimes themselves "mild, soft, or tender," or "less severe, less rigorous, less painful, moderate."
Nothing in the definition suggests the restricted meaning that defendant believes the jury may have attributed to the word mitigating. For this reason, and because, as we discuss below, the court and counsel made it abundantly clear to the jury that all of the evidence defendant offered at the penalty phase was to be considered, the presumption of prejudice arising from this instance of misconduct is sufficiently rebutted. The trial court did not err in denying the motion for mistrial.
D. Use of Former CALJIC No. 8.84.2.
As noted above, the jury was instructed in the mandatory language of the 1978 death penalty statute that if it concluded "that the aggravating circumstances outweigh the mitigating circumstance you shall impose a sentence of death." (Italics added.) We have heretofore acknowledged that this language could mislead a jury as to the "weighing process" by which it is to determine, in light of the relevant evidence, whether death or life without possibility of parole is the appropriate penalty, and as to the scope of its discretion in selecting the penalty. (People v. Allen, supra, 42 Cal.3d 1222, 1276-1277; People v. Brown, supra, 40 Cal.3d 512, 544, fn. 17.) For this reason we suggested that clarifying instructions, amplifying the statutory language, should be given. We have, however, declined to reverse penalty decisions unless, after review of not only the instructions, but also the argument of counsel, we conclude that the jury may have been misled in the particular case before us.
We disagree. The court did not err, of course, in reading to the jury all of the factors, both mitigating and aggravating, set forth in section 190.3, which the electorate considers particularly relevant to the penalty decision. (People v. Miranda, supra, 44 Cal.3d 57, 104-105; People v. Ghent (1987) 43 Cal.3d 739, 776-777 [239 Cal.Rptr. 82, 739 P.2d 1250].) The jury is competent to determine which factors are relevant, and is thus better able to assess the particular defendant's culpability in light of the full range of statutory factors that might be present in a capital case.
It is also noteworthy that the court in this case avoided the "factor (k)" instruction, former CALJIC No. 8.84.1, which could suggest to a jury that the only mitigating evidence it should consider was that relevant to the crime itself.
If these instructions did not adequately convey to the jury the scope of its sentencing discretion, the argument of counsel most certainly did. The prosecutor told the jurors that they would be looking at factors divided into two categories, those related to the crime itself, and those relating to the
The prosecutor's argument in this regard was echoed by defendant's counsel who asked for sympathy and mercy for defendant, and again emphasized that whether the mitigating factors were outweighed by aggravating was not determined by the relative number of factors, and the jury was not to simply count the factors.
We are satisfied that no legitimate basis exists for believing that the jury was misled by the instructions in this case as to the jury's discretion in selecting the appropriate penalty, or as to the nature of the weighing process and the evidence that it was to consider during that process. (People v. Hendricks (1988) 44 Cal.3d 635, 651 [244 Cal.Rptr. 181, 749 P.2d 836]; People v. Rodriguez, supra, 42 Cal.3d 730, 786-787.)
E. Nonstatutory Aggravating Factors.
Again we disagree. As discussed above, reading the complete statutory list of mitigating and aggravating factors is proper. The advice to the jury that finding a factor was not mitigating did not by itself make that factor aggravating was also proper. (People v. Rodriguez, supra, 42 Cal.3d 730,
We have not, however, held that none of the statutory factors may be considered either aggravating or mitigating in the varying circumstances of capital cases. Had there been evidence which defendant sought to characterize as mitigating under one of the statutory factors, which the prosecutor argued should be considered aggravating in the particular circumstances of the defendant's conduct, the instruction of which defendant complains might have been appropriate. Here, the instruction could have been misleading had the prosecutor sought to establish that the absence of a mitigating factor was itself aggravating. He did not do so, however. In the two instances to which defendant calls our attention, the prosecutor's discussion of factors (d) (defendant under influence of extreme mental or emotional disturbance) and (e) (whether victim was participant in defendant's crime or consented to homicidal conduct) simply referred to the evidence at trial in support of his argument that these potentially mitigating factors were not present. He did not argue that the evidence to which he referred or the conclusions that the jury might reach in light of the evidence established an aggravating factor or factors.
In sum, defendant's argument is really that because the jury was not told that the absence of "evidence" of a mitigating factor should not be deemed aggravating, and was told that it could consider aspects of defendant's background that might offend the conscience,
Having concluded that defendant's assignments of error lack merit, we likewise find no merit in his claim that the cumulative prejudicial effect of the "errors" he has identified requires that the penalty be set aside.
The latter claim has been rejected in several recent cases (see e.g., People v. Melton (1988) 44 Cal.3d 713, 771 [244 Cal.Rptr. 867, 750 P.2d 741]; People v. Brown, supra, ante, at. pp. 461-462; People v. Allen, supra, 42 Cal.3d 1222, 1286-1288), and need not be reconsidered here.
Although intercase proportionality review is not required by the cruel and unusual punishment provisions of the Eighth Amendment, the imposition of the death penalty is subject to review under article I, section 17 of the California Constitution. In so doing we apply the standards heretofore enunciated in People v. Dillon (1983) 34 Cal.3d 441, 477-484 [194 Cal.Rptr. 390, 668 P.2d 697] and In re Lynch (1972) 8 Cal.3d 410, 423-429 [105 Cal.Rptr. 217, 503 P.2d 921], to ensure that the penalty is not disproportionate to the defendant's individual culpability. Having done so in this case we cannot conclude that the penalty is disproportionate to the offense or the offender.
In what appears to have been a coldly calculated plan defendant kidnapped two women off the street in the middle of the day for the purpose of rape, intending to kill both in order to avoid capture. That only one victim died was sheer happenstance. The manner in which he committed the murder and attempted murder was particularly cruel — the victims were forced to walk to the site selected by defendant for their execution, were told of his plan, and were subjected not only to multiple gunshot wounds, but also to his further attempt to ensure their death by dropping heavy rocks on their heads. These offenses were not the first, nor were they the last, in which defendant, to satisfy his own carnal desire, kidnapped women for the purpose of rape, having succeeded in accomplishing this goal twice before. The impact of prior punishment by imprisonment for these acts had not been a deterrent. Rather, defendant continued his pattern of sexual abuse of women with an added component of a calculated plan to kill his victims to avoid additional punishment himself. The argument that imposition of the death penalty for this conduct is disproportionate to defendant's culpability is devoid of merit.
The People note that defendant did not admit the 1971 prior, and also argue that defendant does not contend that had he been properly advised he would not have admitted the 1976 rape and that it is unlikely that had he been properly advised he would have submitted the truth of the 1971 prior conviction charge to the jury. On that basis they contend that the error was not prejudicial.
Since defendant raises this issue on appeal, whether there is reversible error as to this issue must be determined on the basis of the appellate record. Defendant is entitled to have the findings set aside if the court failed to substantially comply with the Yurko requirements (supra, 10 Cal.3d 857) unless the record clearly establishes the lack of prejudice.
We are satisfied that defendant's waiver of his right to have a jury determine the truth of the allegation of the prior convictions was not affected in
Under the circumstances of this case, the record adequately demonstrates that defendant's decision to admit one prior and to waive his right to jury trial on the other was not influenced by the erroneous advice regarding the length of the enhancement.
H. Motion to Reduce Penalty.
In context, the remark was clearly a reference back to defendant's prior violent criminal activity, an aggravating factor under factor (b) of section 190.3. After finding no mitigating factor other than defendant's satisfactory
Defendant also claims that the court considered the fact that he was not an accomplice with minor participation to be an aggravating factor, and expressed his belief that the absence of a mitigating factor could in itself be aggravating. He relies on this statement made by the judge with reference to "factor (j)": "The evidence adduced before this court clearly proves that the defendant acted alone and that his sole participation in the commission of the murder was not minor, but that, in fact, defendant was the person who inflicted the injuries upon the victim which were the cause of the victim's death. The court, therefore, finds that this is an aggravating factor rather than a mitigating factor."
The People concede that this statement is susceptible to the interpretation placed on it by defendant, although an alternative interpretation is that the court was simply referring to the circumstances of the crimes committed by defendant as aggravating. Whichever interpretation is placed on the statement, however, and even assuming that the court believed that the absence of this mitigating factor could be aggravating, we do not believe that misunderstanding was prejudicial. Upon review of the full statement by the court in denying the motion to modify the penalty, we are satisfied that this error, if it was such, had no impact on the court's decision to deny the motion. Recognition of the relative insignificance of the mitigating evidence, when compared with the many other aggravating factors, is clearly reflected in the court's explanation of the decision to deny the motion.
I. Double Counting of Aggravating Factor.
We have construed "factor (b)" as "limited to conduct other than the immediate circumstances for which the death penalty is being contemplated." (People v. Melton, supra, 44 Cal.3d 713, 763; People v. Kimble (1988) 44 Cal.3d 480, 505 [244 Cal.Rptr. 148, 749 P.2d 803].) Again, however, the error was harmless. The trial judge did not undertake this independent examination of the evidence with an understanding that the number of aggravating circumstances was significant in determining whether the aggravating factors outweighed the mitigating. Therefore, although he believed that the offenses against Ms. D. were relevant to both "factor (a)" and "factor (b)" there is no suggestion that he gave them additional weight for that reason. In addition, his consideration of "factor (b)" was not limited to the offenses against Ms. D., but included the offenses committed in the Marin-Sonoma kidnapping of Ms. Coffler, Ms. Dobbs, and Ms. Dobbs's infant child; the attempted rape of Ms. Coffler; and the violent struggle with Ms. Dobbs.
IV
HABEAS CORPUS CLAIM
The prosecutor had presented the evidence as a predicate for the subsequent introduction of Kevin's inconsistent statements to Officer Southern.
Defendant claims in his petition for writ of habeas corpus that his counsel's failure to object to the admission of Kevin's preliminary examination testimony, and his stipulation that the statements made by Kevin to Officer Southern should not be stricken, were not the product of a reasonable, informed tactical decision, but were a result of his ignorance of the rule of People v. Williams, supra, 16 Cal.3d 663. Although defendant claimed that this allegation was supported by declarations of his trial counsel, in fact the declaration of the lead counsel, the El Dorado County Public Defender, stated that counsel was aware of Williams at the commencement of trial and was aware that Kevin's inconsistent statements could have been kept from the jury. His purpose, he declared, was to put those statements before the jury in the hope that he could persuade the jury to believe at least one part of Kevin's testimony — that defendant had arrived home from Placerville on July 8, 1981, by 10 a.m. He also wanted the jury to be fully aware of the conduct of the officers who interviewed Kevin, so that the jury could consider that conduct in eliciting his various statements. In his opinion the prosecutor's concession that "the testimony of Detective Southern fell within the provisions of Evidence Code Section 1235 [sic] was an attempt by him to minimize what he considered might be damaging evidence about Kevin Jones' alibi for 10:00 a.m. on Wednesday."
The declaration of defendant's second attorney was simply to the effect that he had not done research prior to commencment of trial regarding Kevin's statements and did not recall if he had discussed the "Williams issue" with cocounsel. He did recall that he and cocounsel had discussed the limiting instructions with defendant, and that Kevin had corroborated the issue of defendant being home during the early morning hours.
Notwithstanding the conclusory nature of the allegations of the petition with respect to counsel's awareness of the law and tactical decision, and the
The return is supported by additional declarations by defendant's lead trial counsel. The first of these declarations states that the initial declaration was in error in stating that the prosecutor had conceded that the testimony of Officer Southern came within Evidence Code section 1235, and he declared that it was error under Williams, supra, 16 Cal.3d 663. Another declaration states that counsel was aware before trial that defendant's mother had given police a version of facts inconsistent with defendant's testimony, had attempted to give an alibi for defendant in a rape case in another county, and had refused to testify at the guilt phase of the trial. As a result, the only possible corroborating witness for defendant's story was Kevin.
Defendant filed a denial to the return. (See § 1484.) He has not offered an affidavit or declaration controverting those of trial counsel. Instead he simply denies the allegations of the return that lead trial counsel was aware of legal authority which could have excluded Kevin's testimony and statements, and that the decision to admit them was an informed tactical decision. On the basis of his denials he asks that we order an evidentiary hearing to "determine the material factual issues in dispute in this action."
There are, however, no factual disputes the resolution of which is necessary to the disposition of this petition. "In a habeas corpus proceeding the return to the writ or order to show cause alleges facts tending to establish the legality of the challenged detention and is analogous to the complaint in a civil proceeding. [Citations.] The traverse, and the petition where by stipulation or acquiescence it is treated as a traverse [citation], are analogous to the answer in a civil proceeding, and the petitioner `may deny or controvert any of the material facts or matters set forth in the return ... or allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge ...' (Pen. Code, § 1484; [citations].)
A further consideration that persuades us that no evidentiary hearing is necessary in this case, is defendant's failure to demonstrate that counsel's decision to permit the jury to consider Kevin's testimony, if uninformed or unwise, demonstrates either that counsel's overall performance was such that it fell below reasonable professional standards or that the lapse resulted in prejudice to the defense.
Defendant must also show that if counsel's performance fell below acceptable standards in some respect, a reasonable probability exists that a more favorable outcome would have been reached absent the deficient performance. (In re Cordero, supra, 46 Cal.3d 161, 180.) That probability must be one sufficient to undermine confidence in the outcome of the trial. (Ibid.; Strickland v. Washington, supra, 466 U.S. 668, 692 [80 L.Ed.2d 674, 696].)
V
The order to show cause is discharged and the petition for writ of habeas corpus is denied. The judgment is affirmed in all respects.
Appellant's petition for a rehearing was denied November 17, 1988.
FootNotes
Evidence Code section 240, subdivision (a)(3), provides that a witness is "unavailable" if he is: "Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity."
A postal employee would testify that she sold a $150 money order on July 8, 1981. It was the first money order sold on that date.
An investigator would testify that, based on his experiments, driving from the Placerville Post Office to the location of the welfare department took between two and three minutes.
Even though defendant had an agreement with Marden who was to assume sole responsibility for the crop if it was discovered, defendant believed that his parole agent would exercise his discretion to charge a violation of parole, and defendant would have to serve six months. He was willing to expose himself to possible conviction for the abductions in Marin rather than face the possible seven and one-half years he believed he faced if he was convicted for cultivating the marijuana.
"(1) A citizen of the United States of the age of 18 years who meets the residency requirements of electors of this state.
".... .... .... .... .... . ."
Code of Civil Procedure section 199: "A person is not competent to act as a trial juror if any of the following apply:
".... .... .... .... .... .
"(b) The person has been convicted of malfeasance in office or any felony or other high crime.
".... .... .... .... .... . ."
It appears therefore that no change was intended in the construction to be accorded article I, section 16.
"(1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or
"(2) The evidence is offered to prove or explain acts or conduct of the declarant.
"(b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed."
In this case, however, the motion was made and heard during trial on the day the evidence was offered. The court was thus in a position to assess the relevance of the evidence, whether because of that relevance it fell within a hearsay objection, and whether its probative value outweighed its prejudicial impact. It is evident from the record that the court and the parties treated the motion to exclude the evidence as the equivalent to an objection. The People do not contend that the issue is not properly before this court.
"`We think it obvious that a defendant's level of culpability depends not on fortuitous circumstances such as the composition of his victim's family, but on circumstances over which he has control. A defendant may choose, or decline, to premeditate, to act callously, to attack a vulnerable victim, to commit a crime while on probation, or to amass a record of offenses.... In contrast, the fact that a victim's family is irredeemably bereaved can be attributable to no act of will of the defendant other than his commission of a homicide in the first place. Such bereavement is relevant to damages in a civil action, but it has no relationship to the proper purposes of sentencing in a criminal case.'" (482 U.S. at pp. 504-505, fn. 7 [96 L.Ed.2d at pp. 449-450].)
That factor provides that the trier of fact shall take into account "[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence." Defendant suggested that postoffense conduct was not relevant to his culpability at the time he murdered Ms. Pennington. It is relevant, however, to his character. Consideration of this evidence is expressly permitted by statute and defendant suggests no constitutional barrier to that consideration.
"If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose sentence of death; however, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the State prison for life without possibility of parole.
".... .... .... .... .... .
"In considering taking into account being guided by [sic] the aggravating and mitigating circumstances, you may not decide the effect of such circumstances by the simple process of counting the number of circumstances on each side. The particular weight of such opposing circumstances is not determined by their relative number, but rather by their relative convincing force on the ultimate question of punishment.
"If a factor is not found to be, by you, a mitigating factor, that, in and of itself, does not make that factor an aggravating factor, unless the Prosecution proves to you that the factor is an aggravating factor.
"If you determine that the aggravating factors do not outweigh the mitigating factors, or if you determine that they are equal, you must return a finding of life imprisonment without possibility of parole...."
Defendant now argues that the truthfulness of the declarations by defense counsel is in doubt because counsel did object initially to the admission of Kevin's extrajudicial statements on grounds that they were not inconsistent with his "I don't remember" responses at the preliminary examination. Had the objection been sustained the evidence that counsel later decided would be helpful to his case would have been excluded. Defendant also notes that counsel initially agreed to draft the limiting instruction, and only later advised the court that he wished the jury to consider the evidence.
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