Defendant Jose Arnaldo Rodrigues was convicted by a jury of one count of murder (Pen. Code, § 187),
We find no prejudicial error at the guilt or penalty phase of defendant's trial. The judgment is affirmed in its entirety.
A. Guilt Phase Evidence
1. The Prosecution Case
Epifanio Zavala testified that in May 1987, he was living with his older brother Juan Barragan in an apartment on the second floor of a two-story building at 1100 Sevier in Menlo Park.
Although Zavala and Barragan previously worked in restaurants, they did not have jobs the first week of May 1987. Barragan sold small amounts of cocaine and heroin to help make a living. Zavala sometimes helped out by giving drugs to customers. One of those customers was Cynthia Ontiveros,
Ontiveros testified to the following. Although she lived in Hayward with her boyfriend, Richard Lopez, she was in love with Juan Garcia. At approximately noon on May 4, 1987, Ontiveros left Hayward to buy some heroin from Zavala at his apartment. Zavala sold her approximately one gram of heroin for $100.
At approximately 5 p.m. that evening, Ontiveros was selling heroin in front of the El Tanampa bar on B Street in Hayward. Garcia drove up in defendant's car, with defendant in the passenger seat.
Ontiveros, Garcia and defendant then planned how to get the drugs from Zavala and Barragan. They agreed that Ontiveros would go to the apartment first because the brothers knew her and would open the door for her. Once the door was open, Garcia and defendant would rush in and scare the brothers into giving up their drugs. Garcia asked Ontiveros if Zavala and Barragan had any weapons, and she responded that she had never seen any and did not think they had any. Ontiveros apparently thought that the brothers might be beaten or roughed up a little bit, but did not expect any further violence. Ontiveros, Garcia and defendant agreed to use defendant's car, a beige Lincoln, to drive to the brothers' apartment.
Sometime around 11 p.m., Ontiveros, Garcia and defendant arrived at the apartment. Garcia was dressed in black pants, black shoes and a black jacket. Defendant wore a beige long-sleeved jacket. Garcia, who was driving, stopped the car on Sevier Street, some seven or eight houses down from the apartment. Ontiveros went to find out who was in the apartment. It was agreed that Ontiveros would let Garcia and defendant know if the brothers were alone.
Ontiveros went upstairs to the apartment and knocked on the door. Zavala let her in. Once inside, Ontiveros saw Barragan asleep on the couch but did not see anyone else. Zavala told Ontiveros that he had not expected her to return, and that he had no more drugs. After some discussion, Zavala indicated he would give her some money for a "date" if she would stay. After agreeing to this, Ontiveros said she was going to tell her friend who was waiting for her in a car. Zavala walked downstairs with Ontiveros, then went to his own car and locked it while she kept walking. Zavala returned to the apartment and waited for Ontiveros.
After Zavala went upstairs, Ontiveros walked to defendant's car. She told Garcia and defendant that the brothers did not have any drugs, but that they did have money. When Garcia asked how much money, Ontiveros replied she did not know, but said they must probably have "a good amount" because Zavala had not yet bought more drugs. Ontiveros, Garcia and defendant agreed to proceed with the plan to rob the brothers, but to get money instead of drugs.
As planned, Garcia and defendant went up the back stairs. Ontiveros walked up the front stairs, and knocked on the door. As Zavala let her in, she saw that Barragan was still sleeping on the couch. At that point, Garcia and defendant rushed into the apartment. Garcia hit Zavala with his tire iron and knocked him back onto Ontiveros. Ontiveros became scared and ran back to defendant's car. She waited in the front seat for several minutes until Garcia and defendant returned.
Zavala testified that once inside the apartment, Garcia struck at Zavala's head repeatedly with a tire iron, forcing him back into the apartment through the living room. Zavala yelled at Barragan to wake up. As Barragan stood up, Zavala saw the second attacker, who was wielding a knife in his left hand, hold his brother up against a wall. Zavala, who at this time was being held to the ground and beaten by Garcia, saw the second attacker trying to stab his brother in the face or throat.
During the course of the attack, Garcia said to Zavala: "Calmate cabron, [?]donde la tienes?" According to Zavala, this translated in English to: "Calm down, damn it, where do you have it?"
After the assailants left, Zavala answered the phone, which had continued to ring. The caller was Maria Vargas, a friend and neighbor from an apartment downstairs. Zavala told Vargas his brother was dead and to call the police.
Vanessa Sturns lived in an apartment building next to 1100 Sevier. She testified that shortly after midnight on the morning of May 5, 1987, she got into her car and was beginning to drive to a liquor store when she saw two men in dark clothes climb over a fence into the backyard of her apartment building and walk to Madera. Sturns noticed the men because she had never seen anyone jump that fence before. Because the area was "nicely lit," she could tell that the two men were Hispanic, and that they were not "Black." Sturns was approximately one and a half car lengths from the men as she observed them. As Sturns drove off, she saw a car parked on Madera, about five houses up the street.
Ontiveros testified that when Garcia and defendant returned to the car, Garcia took the driver's seat and defendant sat in the passenger side. Defendant had a deep cut on his left forearm. Garcia had blood on his face and hands, but he was not injured. Defendant told Ontiveros to clean the blood off Garcia.
As they drove back to Hayward, defendant climbed into the backseat and lay down. He told Ontiveros to look straight and act normal. There was some discussion between Garcia and defendant about the knife, and as they approached a bridge, Ontiveros felt a rush of air as if the rear window had been rolled down. Although she did not see defendant throw the knife out, she did not see the knife in the car again. Ontiveros told defendant not to worry, she would not say anything about what had happened.
The three stopped for about half an hour in Hayward while Garcia changed his shirt and defendant changed his pants. Defendant also took his jacket off to wrap his arm, which was bleeding badly. Garcia stayed at that location, and Ontiveros dropped defendant off at his sister's house in Hayward. Ontiveros then drove to her place. The next day, pursuant to
Defendant's sister Norma testified that at approximately 4:10 in the morning on May 5, 1987, defendant came to her house and told her he had been working on his car. He asked for a bandage and requested to be taken to Raymond's house in Oakland.
Raymond testified that defendant told him a transmission had fallen on his arm. He acknowledged, however, having testified at the preliminary hearing that although defendant told him to say that the transmission had fallen while the two of them were working on defendant's car, the two had not actually worked together on the transmission for a week or two before defendant's arm was injured.
Dr. William Billings from Highland Hospital testified that although defendant stated that a transmission fell on his left arm, no dirt or grease was found in the wound. Also, the wound appeared to have been caused by a sharp instrument, rather than a blunt one, and was sufficiently clean that the surgery team was able to sew the tissue together fairly precisely and match a tattoo that had been split apart. Hospital records reflected that defendant was left-handed.
Officers arriving at the scene of the crime found Barragan lying dead on the floor with a massive pool of blood around his head and neck area. Barragan's chest was split wide open, and part of his face was hanging off. The officers saw Zavala rolling around on the floor in pain. Zavala had been severely beaten and his face was completely covered with blood. He was also missing several teeth. Zavala lapsed in and out of consciousness, sometimes screaming or moaning about his pain.
Zavala was taken to Stanford Hospital, where Detective James Simpson interviewed him at approximately 1:30 or 1:45 a.m. Zavala told him that two male Hispanic assailants and a female named Cyndia were involved. On or about May 17, 1987, Zavala picked Ontiveros out of a photo lineup.
On July 19, 1987, a search team found a survival-type knife alongside the freeway in the area where Ontiveros thought defendant had rolled down the rear car window as they drove from the crime scene. The knife had bloodstains both on its blade and hilt and on a capsule contained inside the handle. The knife blade was just short of nine inches, with a maximum width of one and one-half inches. Ontiveros, upon being shown the knife, immediately identified it as the one carried by defendant.
The forensic pathologist's autopsy of Barragan disclosed 21 stab and incise wounds consistent with infliction by a large knife-type instrument. Six of the wounds were to the face and head, one of which was a large, irregular, jagged wound in the lip that went through to the anterior part of the neck. There was a six-inch-deep wound in the right leg above the knee. One four-inch-deep stab wound in the chest had cut the rib cartilage in half and sliced the right lung, while another one five inches deep had also damaged the right lung. There was also a large, gaping, complex, eight-inch-deep wound, possibly caused by several thrusts through the same skin hole, that cut the right jugular vein in half and perforated the right lung. The location of the wounds to the torso and upper body was consistent with overhand-type thrusts. Of the 21 wounds, 17 were located on the right side of the body, while 4 were on the left; this was consistent with face-to-face stabbing by a left-handed assailant. The cause of death was loss of blood with air embolism.
Three bloody fingerprints, apparently made by the same finger, were found at the crime scene. They had an arch pattern found only in 5 percent of the population, and did not match the prints of the victims, the suspects or those persons whose presence at the scene was logged.
Prosecution criminalist Elizabeth Skinner performed a blood-typing analysis, and determined that Zavala and Barragan both had type A blood, differing only in the EAP genetic marker system. Defendant and Garcia both had type O blood. In the TF (or transferrin) genetic marker system, defendant's type was CD, a type shared by less than 3 percent of the population. Neither Garcia nor the two victims had CD transferrin.
Although various bloodstains were found in defendant's car and a few blood drops were discovered outside the apartment, many were of insufficient quantity to perform blood-typing analysis. However, type O blood, with the CD type in the TF system, was discovered on the floormat in defendant's car. Blood on a paper tissue in the trunk of the car was found to be consistent with the blood of either Zavala or Barragan, but not with the blood of defendant or Garcia. Of three spots of blood found outside the brothers' apartment on the pavement leading to Pierce Road, one may have been type A or a mix of type A and type O; the other two were insufficient to produce test results.
Inside Zavala's apartment, there were copious bloodstains on the living room carpet and walls. Blood was found on the front door, the couch, the television, the stereo, a telephone book, a mattress in the bedroom, and on the walls, sink and window in the bathroom. Skinner tested the blood samples and was able to determine that all of the blood surrounding Barragan was consistent with his type. Although Skinner could not say that blood belonging to defendant was found in the apartment, she opined, in response to hypotheticals, that if an attacker had been bleeding from a forearm wound, the attacker's blood might not be found if the length of the attack was a matter of minutes and the wound was enclosed in the long sleeve of a jacket so that the clothing would absorb the blood. She also indicated that because Barragan had bled so profusely, small amounts of an attacker's blood might go undetected.
Skinner also tested the blood on the knife found by the freeway. Skinner testified that the hilt of the knife had human blood on it, but that a lot of the blood on the blade, being very dry and crusty, had flaked off by the time she examined it. As for the bloodstains found on the plastic capsule inside the knife handle, Skinner found a strong reaction for type O blood, and a weak reaction for type A blood, suggesting the possible presence of both types.
2. The Defense Case
Defendant did not take the stand. His defense was that he was not present and had nothing to do with the crime. There was no physical evidence placing defendant at the scene, and the surviving victim could not positively identify him.
Maria Vargas had initially described the first man to come down the stairs on the night of the murder as a "Black" man when speaking to the 911 dispatcher and the police. Vargas failed to identify defendant when shown a photo lineup on May 27, 1987, and identified him for the first time at the preliminary hearing. At that hearing, defendant was wearing an orange jumpsuit and was seated at the defense table behind a nameplate that said "defendant."
Nathan Howard, testifying for the defense, disclosed that he had known Juan Garcia since 1967, and in the past had even identified himself as Garcia's "partner." Although he had met defendant a couple of times, he was unaware of any friendship between defendant and Garcia, and had never seen them socialize together. Howard also testified that he knew defendant's brother, Raymond, and that he had run into Raymond at Highland Hospital one morning in May 1987. Raymond told Howard that a transmission had fallen on defendant's arm.
Defendant's sister, Norma, testified that when defendant arrived at her home at 4:10 a.m. on or about May 5, 1987, he was covered with dirt and grime, and had car grease on his face and hands. Although defendant asked for a bandage and wanted to be taken to Raymond's house, Norma did not notice that he was injured, or that he needed to go to the hospital. Defendant said he had been working on his car. He was bald at the time, and looked normal but dirty.
B. PENALTY PHASE EVIDENCE
1. The Prosecution Case
a. Nishimoto Incident (May 1987)
On or about May 25, 1987, Hayward Police Officer Darrin Nishimoto saw a Lincoln Continental run a stop sign at 45 to 50 miles per hour. He pursued the car, which went over 70 miles per hour through 2 red lights before finally pulling over. Defendant, who was drunk, immediately got out of the car and started walking away. When Nishimoto ordered defendant back in
b. Nieves Incident (May 1987)
Gladys Nieves had lived with defendant off and on for about four years. On May 19, 1987, shortly after they had separated, defendant came to Nieves's apartment to talk about getting back together. When Nieves said she did not want to get back together, defendant became angry, and they began arguing. During the course of the argument, defendant struck Nieves in the face, arm and ribs, and called her a bitch. Nieves managed to push defendant away and call the police. Defendant, who appeared intoxicated, was arrested when the police arrived. Nieves's face was swollen and she was red around her eye.
c. Gallia Incident (April 1987)
On April 2, 1987, Hayward Police Officer Richard Gallia of the canine unit and Officer Brent Morris stopped a car for a stop sign violation. Defendant, the front seat passenger, was staring out the window and swearing in a slurred manner. When asked to step from the car, defendant emerged fighting and swinging at Gallia. As Gallia struggled with defendant, defendant broke out of a carotid restraint and hit Gallia in the chest, denting the steel chest plate of his bulletproof vest. Morris attempted to assist Gallia in handcuffing defendant, but the two officers were unable to restrain him. Defendant was ultimately subdued with the aid of the canine unit's dog and a third police officer. At one point during the struggle, the dog bit defendant in the chest but defendant managed to pry the dog's mouth open to release its bite hold. Gallia had never previously seen anyone able to do this. Defendant's behavior was consistent with phencyclidine (PCP) intoxication.
d. Rodriguez Incident (November 1984)
On November 2, 1984, Correctional Officer Leo Rodriguez was supervising the serving of breakfast at Deuel Vocational Institute in Susanville when he observed that defendant and two other Hispanic inmates were serving
e. Johnson Incident (June 1984)
On June 3, 1984, Lamont Johnson and his brother, Paul Tadlock, went to a 7-Eleven store in Union City to buy some beer. Johnson did not have his identification with him, so he asked defendant, who happened to be in the store, to buy some beer for him. Defendant refused, and Johnson returned to his car. Defendant came up to Johnson's car and started saying or yelling something, which Johnson could not hear because the window was rolled up. When Johnson started to get out of the car, defendant struck him in the head and knocked him unconscious. Tadlock got out of the car and started wrestling with defendant until Steve May, a store security guard, drew his baton and told them to break it up. Defendant got a four-arm lug wrench from his car and swung at May with great force. Defendant then gave the wrench to a female companion, who also swung at May. Defendant retrieved a long steel bar from his car, which he also began swinging at May. Eventually, defendant and his female companion got back in the car and drove away.
Johnson was taken to a hospital by ambulance and received stitches to his lip. Tadlock suffered a bloody nose. Although Tadlock and May identified defendant for police shortly after the incident, only Tadlock made an identification at trial. Johnson, Tadlock and May all testified they had done nothing to provoke defendant's attack.
f. Calles Incident (January 1981)
On January 21, 1981, defendant approached fellow inmate Rick Calles in the yard at the medium security prison in Susanville. Defendant asked Calles why he had missed a meeting of Mexican/Puerto Rican inmates earlier that day.
g. Correctional Facility Fire (January 1981)
At approximately 1 a.m. on January 1, 1981, prisoners on three tiers at the correctional facility in Susanville started setting fires, breaking windows and throwing jars of water at the guards. Correctional Officer Frank Shipman was standing by a wall when he saw someone throw burning material through a broken window onto a fire just outside the dormitory where the inmates were housed. Shipman, who was 18 to 20 inches away, shined his flashlight through the window and saw defendant moving away from the window. Defendant was the only inmate in the area of the window at the time. Other inmates were standing about 18 to 24 inches beyond defendant when Shipman first saw him.
h. Espinoza Homicide (June 1980)
In the afternoon and early evening of June 6, 1980, Ernest Espinoza and Eric Mitchell were sitting on Mitchell's porch, when a car with about seven passengers drove repeatedly by. When the passengers yelled angrily in Spanish, Espinoza gave them "the finger." Later that evening, Espinoza left the Mitchell house just before 9 p.m. to call his girlfriend from a pay phone at a gas station across the street. While Espinoza was at the pay phone, a group of approximately 10 men approached him. Espinoza was shot a number of times and stabbed. He died from his wounds.
Six men, including defendant and his brother Raymond, were charged with the murder of Ernest Espinoza. Only Raymond was alleged to have personally used a firearm, and only defendant Toby Jaramillo was alleged to have personally used a deadly weapon. Raymond and Jaramillo were also the only ones alleged to have personally inflicted great bodily harm. Defendant was alleged to have been armed with a firearm, and to have suffered a previous conviction. On August 29, 1980, pursuant to a plea bargain, Raymond pleaded guilty to manslaughter with personal use of a firearm, and Jaramillo pleaded guilty to manslaughter with personal use of a knife. Defendant pleaded guilty to violation of section 32 (accessory). The murder charges against all charged defendants were dismissed.
At the penalty phase, Rejon Mitchell, who was Eric Mitchell's brother, came forward and testified that he saw defendant shoot Espinoza.
i. Roach Shooting (April 1977)
On the night of April 1, 1977, Frank Roach drove with two friends in his pickup truck to a park in Hayward for the purpose of fighting with another group of people. As Roach and his friends waited for the other group to arrive, a car carrying three or four people pulled up. Someone rolled down the rear window of the car and pointed a pump-action, sawed-off shotgun at them. Roach and his friends scrambled out of the truck and tried to run away as a first shot was fired. When Roach was 10 to 15 feet from the truck, a second shot was fired. Roach was hit from head to toe in the back with shotgun pellets. His friend, Chris Garner, was shot in the arm or shoulder.
Roach identified defendant as the shooter from a photo shown to him four or five days after the incident. He also identified defendant at the preliminary hearing. Defendant ultimately pleaded guilty to assault with a deadly weapon.
j. Jill M. Incident (October 1976)
At approximately midnight on October 16, 1976, Jill M. was standing with her girlfriend Laurie at a bus stop in Hayward when five men in a car pulled up. The two women accepted their offer of a ride, but instead of taking them home, the men drove to a house in San Leandro. While the men dragged Jill screaming into the house, Laurie was able to walk away. Inside the house, Jill was subjected to a series of sexual assaults by at least three men, including defendant. Defendant, acting alone, committed forcible rape, sodomy and oral copulation on Jill, and, acting in concert with another man, committed forcible oral copulation and sodomy on her.
Although sexual assault charges were filed against defendant, the charges were subsequently dismissed. Jill testified that after the preliminary hearing she had asked the prosecution not to require her to participate in the case any further because she was pregnant and feared for her life. She admitted, however, that defendant had never threatened her.
k. Prior Felony Convictions
In addition to presenting documentation of defendant's felony accessory conviction in the Espinoza matter, the prosecutor offered evidence showing that defendant had been convicted for auto theft in Solano County and burglary in Alameda County.
2. The Defense Case
The defense attempted, in cross-examining the prosecutor's witnesses and in calling its own witnesses, to cast doubt on the prosecutor's theories of the
A. Failure to Hold Competency Hearing
Defendant's claims arise out of events that transpired at three court hearings held on June 22, 1987, September 11, 1987, and September 15, 1987.
The court then questioned defendant regarding his understanding of the situation and explained to him what a time waiver would and would not entail. During the discussions, defendant stated that he did not want to waive time because he had been "sitting in here too long," even though he apparently knew he had a parole hold in any event, and that he just wanted "to get this over with." Defendant also complained that counsel was not telling him anything, and that counsel kept challenging him and treating him like a child. At one point, the court stated its belief that "what [defendant] values is a little more TLC." During the hearing, defendant had several changes of mind about waiving time. Ultimately, however, he agreed in open court to waive time until July 20, 1987.
On September 11, 1987, the superior court held an in camera hearing during which defense counsel addressed issues regarding defendant's competency to proceed to trial on September 21, 1987, and counsel's desire to waive defendant's right to be tried within 60 days of the filing of the information. After explaining to the court that more time was needed to prepare for trial, counsel summarized the events occurring at the hearing on June 22. Counsel then reported that defendant refused to waive time for trial, that he refused to sign release forms for police reports, medical information and other documents despite counsel's detailed explanations for their need, and that he was being uncooperative and unreasonable.
A defense investigator then told the court that he had obtained information from defendant's mother that when defendant was two or three years old he had "some sort of seizure, she believes epileptic type seizure where he actually turned blue and was taken to Children's Hospital in Oakland." The investigator also said family members stated that defendant had suffered from migraine headaches throughout his life.
Additionally, counsel informed the court that he had spoken with Dr. Missett and Dr. McKinsey, two defense psychiatrists, and that both believed the records concerning defendant's seizure were "crucial to a psychiatric defense." Although Dr. Missett was not present at the hearing, counsel related that Dr. Missett had met with defendant for one to two hours, and that Dr. Missett felt that defendant had brain damage due to the "two major
Dr. McKinsey was present at the hearing. Although defendant had refused to meet with him, Dr. McKinsey offered the following opinion based on reports given to him and discussions with Dr. Missett. "I suspect that there is a drug dementia; that Mr. Rodrigues has difficulties that have been outlined earlier which are secondary to that drug dementia. That one of the reasons he wouldn't sign anything, as he just said, was he doesn't understand. It is going to be difficult for him to understand anything if his brain isn't working well. [¶] I have etiological events in the record, which is to say a considerable amount of poly substance abuse dating way back, dating as far back as 4/2/87 for example, and as late as May 25th, '87. [¶] It seems to me that a person of this level of drug use is at very high risk for a neurological impairment that would make it very difficult for him to cooperate with his defense."
During discussions on the matter, defense counsel expressed the opinion that it was in defendant's best interest to waive his right to trial within 60 days so that counsel could investigate his competence to proceed to trial. The court then explained to defendant that his attorneys thought it was in his best interest to waive time and to let the doctors talk to him so that a decision could be made how best to defend him. Although defendant stated he did not wish to waive time, he did agree, in response to the court's inquiry, that he would speak to the defense doctors. He also indicated that he would decide, after meeting with the doctors, whether to agree to a time waiver and to a release of medical records. Since defendant was unwilling to waive time but was agreeable to reconsidering the matter after a meeting with defense psychiatrists, the court declined to give counsel time over defendant's objection. The court continued the hearing to September 15, 1987, and suggested that at that time they could ascertain whether Dr. Missett would be prepared to testify as to incompetence.
At the continued in camera hearing on September 15, 1987, defense counsel reported that defendant had given written releases of information for parole records, probation records, police reports and school records. Although defendant had not consented to releases for medical records, he nonetheless was willing to waive his right to be tried within 60 days. In response to court questioning, counsel agreed that the request for a trial continuance over defendant's objection was no longer an issue but indicated
The relevant principles may be summarized as follows.
A defendant is mentally incompetent "if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a), italics added.) Here, the statements provided by defendant's family that defendant suffered from migraine headaches and that he had a possible epileptic seizure when he was two or three years old did not, standing alone, suggest a mental disorder or developmental disability. Although the court was informed by the defense at the September 11 hearing that it was in the process of obtaining defendant's medical records by subpoena, nothing in the record after that time indicated that any medical records ever obtained substantiated the claim of such a disorder or disability.
Moreover, the statements of the two defense doctors did not furnish substantial evidence of mental incompetence.
First, although Dr. McKinsey attended the court hearing and offered his opinion, he had not had any opportunity to examine defendant. Moreover, the basis for his opinion was rather brief (13 lines of transcript) and virtually devoid of particulars. Dr. McKinsey merely told the court that, based on reports he had read, he suspected that defendant suffered from "drug dementia" and that defendant's record of "a considerable amount of poly substance abuse" suggested a very high risk of neurological impairment that would make it very difficult for him to cooperate with his defense. But no elaboration or details were provided regarding the type or quantity of drugs involved, the frequency of the claimed abuse, or the extent of impairment threatened. This falls far short of the showing made in People v. Stankewitz, supra, 32 Cal.3d at page 92, and in People v. Pennington, supra, 66 Cal.2d at page 519.
Second, the purported opinion of Dr. Missett, who had actually met with defendant but was not present at the hearing, was simply inconclusive. Although defense counsel claimed that Dr. Missett "feels that the defendant has brain damage because of the two major seizures he has heard about through [the defense investigator]," counsel also stated that Dr. Missett was "not sure about his opinion since he's not done a competency evaluation and wanted to get a psychological evaluation on competence before he arrived at an opinion." Thus, even if we assume that Dr. Missett had offered his tentative opinion directly and under oath, it did not furnish substantial evidence of defendant's incompetence. Moreover, it is significant to note that after Dr. Missett apparently met with defendant a second time after the second hearing for two or three hours, defense counsel offered no further opinion from the doctor that defendant was incompetent.
It must also be remembered that counsel's concerns regarding defendant's competency were based primarily on defendant's refusal to assist counsel in his defense. The record establishes, however, that even though there was a definite lack of rapport and cooperation between counsel and defendant initially, the situation improved markedly by the third hearing. Not only did defendant agree to a one-month continuance of the preliminary hearing and a sixty-day continuance of the trial, but he eventually provided the requested releases for parole and probation records, police reports and school records. Defendant also met with the defense psychiatrist as agreed at the second hearing, with no apparent resistance or problems. Significantly, defense counsel did not further pursue the competency issue once defendant became cooperative.
On this record, we cannot say as a matter of law that the evidence raised a substantial doubt as to defendant's mental competence. Accordingly, the lower courts were under no duty to order a competency hearing.
B. Guilt Phase Issues
1. Videotape Evidence
The day after the murder, the police made a videotape with the help of Maria Vargas, the victims' downstairs neighbor. The videotape showed the
Relying on People v. Boyd, supra, 222 Cal.App.3d 541, and People v. Vaiza, supra, 244 Cal.App.2d 121, defendant contends that the difference in lighting conditions precluded admission of the videotape. Unlike the instant situation, however, those cases involved photographs or films that purported to show lighting conditions at the time of the incidents in question. Because the purpose of the evidence in those cases was to demonstrate to the jury the lighting conditions under which witnesses were able to view the events of the crime, those conditions assumed great significance in assessing the admissibility of the evidence. (See People v. Boyd, supra, 222 Cal. App.3d at p. 566; People v. Vaiza, supra, 244 Cal. App.2d at p. 127.) But here the videotape was not offered for the purpose of showing lighting conditions on the night in question. Therefore, defendant's reliance on the above cases is misplaced.
Furthermore, we reject defendant's claim that the videotape's inaccuracies created a misleading impression of the events witnessed by Vargas, as well as his further claim that the tape should have been excluded as being more prejudicial than probative. First, defendant fails to demonstrate how the various inaccuracies could have made the videotape misleading as to the purposes for which it was offered. Second, the inaccuracies either were obvious to the jurors (such as the fact that Vargas had not testified to seeing one White male in a white shirt flee the scene), or, if not so, were specifically brought to their attention. For example, the prosecutor elicited testimony from Vargas that the videotape was filmed during the day, while the events she witnessed occurred at night. He also had Vargas clarify that, consistent with one of the videotaped scenes, her vantage point was from the inside of her apartment looking out through her bedroom window. Moreover, the prosecutor made no attempt to pass the videotape off as depicting exactly what Vargas saw the night of the murder. He also never assumed or suggested through his questioning of Vargas that she was outside of her apartment, or that she was looking through an open bedroom door when she saw the assailants. Hence, any potentially prejudicial effects of the inaccuracies were minimized, if not virtually eliminated. No abuse of discretion appears.
Under circumstances such as these, we must assume that the jurors were intelligent people and that they understood and took into account the differences identified by defendant on appeal. (See Greeneich v. Southern Pacific
b. Refreshing Vargas's Recollection
This claim is devoid of merit. Contrary to defendant's assertion, the prosecutor offered the videotape to demonstrate the physical layout of the apartment building, and to show Vargas's vantage point as she viewed the assailants fleeing the scene of the crime. Since the videotape was neither offered nor admitted at trial for the purpose of refreshing Vargas's recollection, People v. Lee, supra, 219 Cal. App.3d at page 840, is inapposite.
Additionally, the court committed no error in allowing Vargas to view the videotape to refresh her recollection before taking the stand. Even if Vargas could remember the events independently without the videotape, defendant has cited no authority under which Vargas could have been prevented from watching it before trial.
2. Hearsay Evidence Regarding Identifications
Menlo Park Police Detective Ronald Williams testified at trial that: (a) Vargas identified Juan Garcia at his preliminary hearing; (b) Vargas told the
a. Identification of Garcia at Preliminary Hearing
The prosecutor asked Detective Williams on direct examination whether Vargas had positively identified Garcia at a preliminary hearing. Defense counsel objected on hearsay grounds. After the prosecutor asserted it was "a prior identification," the trial court overruled the objection. The detective then testified that Vargas did identify Garcia in court.
Under Evidence Code section 1238, evidence of a statement of identification is not made inadmissible by the hearsay rule when the statement would have been admissible if made by the witness while testifying and the following additional foundational requirements are met: "[¶] (a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence; [¶] (b) The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and [¶] (c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time."
Even if the foundational requirements for a prior identification were not all satisfied, the admission of the challenged evidence could not possibly have prejudiced defendant. First of all, the evidence was essentially cumulative of other evidence in the record demonstrating Vargas's recognition of Garcia. Vargas testified both on direct and redirect examination that, although she did not initially identify Garcia at his live lineup because she was
More significantly, Vargas's recognition and identifications of defendant were not, as defendant suggests, uncertain. At trial, Vargas explained that although she recognized defendant as one of the fleeing men when initially shown his photo in 1987, she chose not to identify him at that time because she was afraid. However, Vargas overcame her fear and stepped forward to identify defendant both at his preliminary hearing and at a subsequent photographic lineup. She also identified him at trial. Since Vargas's testimony was both consistent and unwavering in this regard, it is not reasonably probable that the admission of Vargas's identification of Garcia at his preliminary hearing affected the verdict.
Finally, defendant argues that his constitutional right of confrontation was abridged because he was unable to cross-examine Vargas at Garcia's preliminary hearing and because Vargas was excused as a witness before Detective Williams took the stand. Not only was this claim waived by the failure to assert it below (Evid. Code, § 353), it is without merit.
b. Vargas's Recognition of Garcia at Prior Lineup
Immediately after Detective Williams testified that Vargas identified Garcia at his preliminary hearing, the prosecutor asked him: "The date of the preliminary hearing where you had the discussion with Mrs. Vargas, did she indicate to you that she had in fact recognized Mr. Garcia on the stage?" When defense counsel objected to the question as "leading and hearsay," the prosecutor responded: "It's a prior inconsistent statement." After the trial court overruled the objection, Williams answered: "Yes. She stated that she had identified him on each of the occasions; however, she was in fear of safety for herself and for her family and that's why she failed to specifically point him out in those situations."
This claim is unavailing. Even if the challenged evidence was not admissible as a prior inconsistent statement, any error in its admission was clearly harmless. First, the statement was merely cumulative of Vargas's trial testimony. Second, as discussed previously, Vargas was consistent and unequivocal in her recognition of defendant. Given the record, it is not reasonably probable that admission of the statement affected the verdict. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Defendant next claims for the first time on appeal that the erroneous admission of Vargas's extrajudicial statement abridged his right of confrontation. The record, however, discloses that defendant's counsel did, in fact,
c. "Nonidentification" of Richard Lopez and Nathan Howard
Detective Williams testified without objection that Vargas and Zavala viewed photographic lineups containing the photographs of Richard Lopez (Ontiveros's boyfriend) and Nathan Howard (a friend of Garcia's who appears to have been of African-American ethnicity). He further testified without objection that neither Vargas nor Zavala identified these two men as suspects in the case, and that Zavala specifically stated that Lopez was not involved in the crimes. Subsequently, the prosecutor asked: "With respect to the photographic line-ups of Richard Lopez and Nathan Howard, in the entirety of the investigation in this case[,] has anyone identified a photograph of Richard Lopez as a participant in this crime?" Defense counsel objected on the grounds that the question was argumentative and called for opinion, hearsay and speculation. After the prosecutor responded that the question called for acts occurring in the witness's presence and that the absence of an identification was not hearsay, the objection was overruled. The detective responded: "No one ever identified Richard Lopez or Nathan Howard as being participants in this crime."
We see no basis for reversal. In the first place, defense counsel failed to object to the questions and responses pertaining to Vargas and Zavala. Although counsel subsequently objected to the more generalized question asking if anybody had ever identified Lopez as a participant, this was
3. Reading of Vargas's Testimony to Jury
During guilt phase deliberations, the jury requested portions of testimony of Vargas and two other witnesses. With respect to Vargas, the jury requested "[d]irect and/or cross concerning what photo line-ups were shown to her prior to preliminary hearing and what identifications were made."
In response, the Attorney General asserts that defendant waived any objection to some parts of the challenged testimony because it was his counsel who requested that they be read. (Evid. Code, § 353.) Although defendant disputes the waiver contention, he requests that we review the matter in the context of an ineffective assistance claim if a waiver is found.
We find it unnecessary to decide the issues of waiver and ineffective assistance since the underlying claim is so clearly lacking in merit. Vargas's testimony concerning her fear was directly relevant to why she did not identify defendant at the photo lineup. To have omitted this testimony as part of the reading would have grossly distorted the record. No error appears.
The court also did not err in denying defendant's request to read portions of Vargas's recross-examination testimony pertaining to her identification of defendant at his preliminary hearing and to her failure to identify Garcia at his live lineup. Unlike the fear evidence, this other testimony was not responsive to the jury's request for "what photo line-ups were shown to her prior to the preliminary hearing and what identifications were made."
In any event, the court's ruling, even if in error, did not prejudice defendant. The reading of Vargas's testimony was brief, and given in conjunction with testimony by two other witnesses. Additionally, the reading included defense counsel's questioning of Vargas to the effect that if Vargas was actually afraid of defendant, "she could have said what she said at Garcia's live lineup." In substance, this was precisely the point defense counsel had hoped to make with the other excluded portions of Vargas's testimony. (See fn. 28, ante.) Accordingly, any perceived error was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Finally, defendant argues that Vargas's fear testimony impermissibly suggested that he or someone associated with him had threatened her. (See People v. Mason (1991) 52 Cal.3d 909, 946-947 [277 Cal.Rptr. 166, 802 P.2d 950];
4. Evidence Regarding the Victims' Relationship
a. Exclusion by the Trial Court
On direct examination, the prosecutor asked Zavala if he and his brother were "very close." Zavala replied: "Of course." On cross-examination, Zavala was asked if he had an uncle in Mexico named Castro. After the trial court sustained the prosecutor's relevance objection to this question, defense counsel made an offer of proof, outside the presence of the jury and the witness, that Zavala and Barragan had an uncle named Castro in Mexico who had heard Zavala indicate that he and Barragan for a long time had not been speaking because of Barragan's drug dealing. Defense counsel argued that the evidence would show that the brothers in fact were not close, and that the drug dealing was a source of irritation between them. Defense counsel also referred to a series of police reports indicating that Zavala was initially suspected to be Barragan's murderer.
The court sustained the prosecutor's objection pursuant to Evidence Code section 352, finding that the probative value of the proffered evidence would be outweighed, if not by the time it would take to introduce it, then by the confusion it would cause. The court also denied defendant's motion to strike Zavala's earlier testimony that he and Barragan were close.
In any event, assuming there was an abuse of discretion, reversal is not warranted. Defendant's involvement in the instant crimes was firmly established through two witnesses other than Zavala: Maria Vargas and defendant's accomplice, Cynthia Ontiveros. Hence, it is not reasonably probable that a more favorable result would have occurred had the evidence been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836.)
b. Prosecutorial Misconduct and Ineffective Assistance of Counsel
We need not address these claims on the merits because defense counsel's failure to object to the prosecutor's remarks waives the issue on appeal.
5. Exclusion of Zavala's Opinion Testimony
On cross-examination, defense counsel asked Zavala if he had previously told a defense investigator "that you thought it looked like the attackers had come to the apartment to kill your brother?" The trial court sustained the prosecutor's objection that the question called for speculation as to the intent of the attackers.
While not disputing the issue of error, the Attorney General argues that no possible prejudice could have resulted from the omission of the evidence. We agree that any perceived error was harmless.
At trial Cynthia Ontiveros testified that she, Garcia and defendant planned to rob Zavala and Barragan. She provided details of their planning and of the events leading up to the attack. She also described what happened after the three fled the crime scene, providing particulars concerning defendant's injury, his disposal of the murder weapon, and the washing and return of defendant's car. Although Zavala may have thought it looked like the attackers had come to kill his brother, that would not have been necessarily inconsistent with Ontiveros's testimony and Zavala's other testimony indicating that the two attackers coordinated their efforts to gain access to the apartment, subdue the brothers and obtain whatever "it" was. Additionally, if admitted, Zavala's testimony arguably would have bolstered the theory that Garcia and defendant conspired to rob the brothers and to leave no witnesses. Given all the evidence in the record, as well as the fact that there was no evidence that defendant previously knew or even heard of Barragan, it is highly unlikely that the jury would have believed the motive was other than robbery.
6. Accomplice Corroboration
a. Sufficiency of Corroborative Evidence
The law requiring corroboration of accomplice testimony is well established.
Although Zavala could not identify defendant with certainty, Vargas could and did. She positively identified defendant and Garcia as the two men who had fled past her window on the night of the crimes, and testified that defendant fled the crime scene with an injured arm. Zavala also testified that the knife-wielding attacker fled with an injured arm, while Dr. Billings testified that on the morning of May 5, 1987, defendant received stitches for an injury to his left arm caused by a sharp instrument. Further corroborating evidence came from Raymond Rodriguez, who admitted that, at defendant's request, he lied about defendant's arm injury and retrieved defendant's car from Ontiveros the morning after the crimes had occurred. Physical evidence also tended to connect defendant to the crimes. Barragan's wounds were consistent with face-to-face stabbings by a left-handed assailant; hospital records reflected that defendant was left-handed. Additionally, traces of blood consistent with defendant's blood type were found inside the handle of the knife found by the police with Ontiveros's help. Finally, blood on a tissue in defendant's car trunk was consistent with the blood of either Zavala or Barragan, but not with the blood of defendant or Garcia.
While defendant apparently concedes that the above evidence sufficiently tends to connect him with Barragan's murder, he claims it does not adequately connect him with an attempted robbery or burglary. (See People v. Reingold (1948) 87 Cal.App.2d 382, 403 [197 P.2d 175] [circumstances must tend to connect the accused with the specific offense for which he is on trial].) Focusing on the circumstances testified to by Zavala, defendant argues that the unadorned question — "where do you have it?" — does not in itself reflect any intent or attempt to commit the crime of robbery or burglary. In his view, the question is an ambiguous and essentially meaningless question if considered without aid or assistance from Ontiveros's testimony and statements. (See People v. Perry, supra, 7 Cal.3d at p. 769.) We disagree.
Even though the attackers were not specific in demanding money or drugs, the totality of circumstances testified to by Zavala, even apart from Ontiveros's testimony, clearly justified the jury's determination that an attempted robbery and burglary had taken place. (See, e.g., People v. Jackson (1963) 222 Cal.App.2d 296, 298 [35 Cal.Rptr. 38] [attempted robbery conviction upheld where evidence established that defendant entered store, pointed a gun at store operator, and said only, "This is it."]; People v. Gilbert (1963) 214 Cal.App.2d 566, 567-568 [29 Cal.Rptr. 640] [where two armed
The record contains more than ample corroborating evidence supporting the burglary and attempted robbery convictions, the conviction for first degree felony murder and the felony-based special-circumstance findings.
b. Instructional Error
After discussions with counsel, the trial court gave the following instructions: CALJIC Nos. 3.11 (testimony of accomplice must be corroborated); 3.12 (sufficiency of evidence to corroborate an accomplice); 3.16 (witness accomplice as matter of law); 3.18 (testimony of accomplice to be viewed with distrust).
Although the trial court gave the standard CALJIC No. 3.11 instruction ("A defendant cannot be found guilty based upon the testimony of an accomplice unless such testimony is corroborated by other evidence which tends to connect such defendant with the commission of the offense."), it refused defendant's request to further instruct that: "As used in this instruction, `testimony' includes statements made out of court as well as statements made in court by an accomplice."
We are not persuaded. Even though the trial court should have given defendant's proposed clarification to avoid any possibility of confusion (see People v. Andrews, supra, 49 Cal.3d at p. 215, fn. 11), the refusal to do so was not prejudicial error. The court's instructions made clear that accomplices were to be distrusted, and that their testimony could not furnish the sole basis for a conviction. (See CALJIC Nos. 3.11, 3.12, 3.18.) Moreover, neither the trial court nor the prosecutor ever told or otherwise suggested to the jury that it should distinguish between Ontiveros's out-of-court and in-court statements for purposes of the corroboration requirement.
As we have already demonstrated, such evidence amply tended to connect defendant to the crimes. Based on the strength of that evidence, there is no reasonable probability that the jury would have reached a different result had it been given the clarifying instruction. (49 Cal.3d at p. 215; People v. Watson, supra, 46 Cal.2d at p. 836.)
Because the corroboration requirement of section 1111 is a substantial right, we address this claim even though defense counsel stated at trial that CALJIC No. 3.13 did not apply. (§ 1259; People v. Andrews, supra, 49 Cal.3d at p. 213; People v. Belmontes (1988) 45 Cal.3d 744, 781 [248 Cal.Rptr. 126, 755 P.2d 310].) Turning to the merits of the claim, however, we find that the instruction did not apply. Zavala, not Garcia, was the source of the evidence corroborating Ontiveros's testimony that defendant and Garcia intended to rob the brothers. Moreover, even though the evidence offered by Zavala included his recounting of the "[?]donde la tienes?" ("where do you have it?") question originating from Garcia, that evidence falls outside the ambit of section 1111.
In sum, these claims of prejudicial instructional error, whether considered singly or together, are without merit. So too are the constitutional challenges predicated on these claims.
7. Conspiracy Instructions
Although defendant was not charged with conspiracy, defense counsel and the prosecutor agreed below that the court should instruct the jury with CALJIC Nos. 6.10.5 (conspiracy and overt act — defined — not pleaded as a crime charged), 6.11 (conspiracy — joint responsibility) and 6.24 (determination of admissibility of coconspirator's statements).
The Attorney General argues that because defense counsel failed to object to the admission of Garcia's question into evidence, and because counsel affirmatively consented to the conspiracy instructions, defendant may not
In challenging the instructions, defendant once again asserts that, apart from accomplice Ontiveros's statements, the only evidence suggesting an intent to rob was Garcia's "[?]donde la tienes?" question. Defendant posits that since he himself never said anything to indicate an intent to rob or steal, the jury could not have found him guilty of attempted robbery, burglary, felony murder or the special circumstances unless it acted on the conspiracy instructions given by the court which allowed it to attribute Garcia's utterance to him as a coconspirator in a plan to rob or steal.
It is firmly established that evidence of conspiracy may be admitted even if the defendant is not charged with the crime of conspiracy. (People v. Belmontes, supra, 45 Cal.3d at p. 790, citing with approval People v. Jourdain (1980) 111 Cal.App.3d 396, 404 [168 Cal.Rptr. 702]; People v. Washington (1969) 71 Cal.2d 1170, 1174 [81 Cal.Rptr. 5, 459 P.2d 259, 39 A.L.R.3d 541].) Once there is proof of the existence of the conspiracy there is no error in instructing the jury on the law of conspiracy. (Ibid.)
To determine whether there was sufficient proof of a conspiracy in this case, we apply the following rules.
Having reviewed the record, we are satisfied that the trial court properly instructed on the principles of conspiracy. A fortiori, counsel's failure to object to the challenged instructions did not amount to ineffective assistance.
Because no error appears, we reject defendant's related claims that delivery of the conspiracy instructions violated his constitutional rights to due process, a fair trial by jury, and reliable guilt, special circumstance and penalty determinations. We also reject defendant's claim that admission of Garcia's statement deprived him of his right to confront Garcia. (People v. Brawley (1969) 1 Cal.3d 277, 290-291 [82 Cal.Rptr. 161, 461 P.2d 361] [admission of statements under California's coconspirator exception to hearsay rule not violative of federal confrontation clause]; People v. Earnest (1975) 53 Cal.App.3d 734, 743-744 [126 Cal.Rptr. 107].)
Finally, we reject defendant's state and federal constitutional claims based on the trial court's failure to instruct the jury, sua sponte, that: (1) a finding of the existence of a conspiracy involving defendant cannot be had on uncorroborated accomplice testimony; and (2) the requisite corroboration cannot be supplied by the declaration of a conspirator. The first proposed instruction misstates the law. (People v. Price, supra, 1 Cal.4th at p. 444 ["The existence of a conspiracy may be proved by uncorroborated accomplice testimony; corroboration of accomplice testimony is needed only to connect the defendant to the conspiracy."].) The second inappropriately attempts to merge the corroboration of accomplice rule with the coconspirator exception to the hearsay rule.
8. Instructions Regarding Permissible Inferences
Defendant argues that the trial court erred in giving a series of instructions that unfairly permitted the jury to draw critically adverse inferences against him based on evidence of his behavior before, during and after the events in question. Defendant claims that these errors were particularly devastating with respect to the special circumstance allegations, and that they deprived him of due process, a fair jury trial and a reliable jury determination on guilt, special circumstances and penalty. As we will demonstrate, no error appears.
a. CALJIC No. 2.71.7
Over defense objection, the trial court gave CALJIC No. 2.71.7, specifically relating to a defendant's preoffense statements.
Although Ontiveros identified certain statements made specifically to and by Garcia, she repeatedly affirmed that her conversations were with both Garcia and defendant, and that all three of them discussed the plan to get drugs from the brothers.
b. CALJIC No. 2.71.5
At trial, Ontiveros recounted various statements made by Garcia in defendant's presence as the three drove away from the crime scene in defendant's car. In substance, Garcia told Ontiveros that Garcia kept asking Zavala for the money as they were fighting, and that Zavala kept saying it was under the couch. When Garcia made these statements, defendant apparently said nothing. Over the defense's objection, the trial court gave the adoptive admission instruction contained in CALJIC No. 2.71.5.
Although defense counsel objected to the giving of CALJIC No. 2.71.5, he did not object on foundational or other grounds when evidence of Garcia's statements was admitted. Because counsel failed to object to admission of the evidence, the Attorney General argues that defendant waived any instructional error claim. Defendant disagrees. He asserts that Garcia's statements were not offered or admitted into evidence as an adoptive admission, and that in any event, People v. Hannon, supra, 19 Cal.3d 588, precludes a finding of waiver. In that case we held that the lack of objection to admission of testimony does not waive the right to appellate review of the propriety of jury instructions affecting the substantial rights of a defendant. (19 Cal.3d at p. 600 [deciding issue in context of CALJIC No. 2.06]; see § 1259.)
Even if the claim is not deemed waived, it fails for lack of merit. As the Attorney General points out, aside from Garcia's postoffense statements, there was evidence in the record that prior to the crimes, defendant was with Ontiveros and Garcia when the plan to rob the victims was discussed. In response to the prosecutor's questions, Ontiveros confirmed: (1) that "the three of [them] discuss[ed] the plan"; (2) that she told Garcia and defendant that she "would go up to the door. And they knew me, so I knew that they would open the door. And at that point, ... that they could rush in after me"; (3) that she told Garcia and defendant that "they wouldn't need no weapons"; and (4) that she did not remember either Garcia or defendant disagreeing or taking issue with that. (See fn. 40, ante.) Inasmuch as defendant was a party to the discussions, it may be reasonably inferred that he was afforded the opportunity to refuse to participate or to otherwise dissociate himself from the planned activity; but that he did not do so. Such evidence, which indicated that defendant participated without demur in the planning of a robbery, warranted the inference that an adoptive admission had been made. (See People v. Fauber (1992) 2 Cal.4th 792, 852 [9 Cal.Rptr.2d 24, 831 P.2d 249].)
c. CALJIC Nos. 2.03, 2.04 and 2.06
Over the defense's objection, the trial court gave several jury instructions relating to statements or efforts by defendant which might tend to prove a
First, defendant contends that CALJIC No. 2.04 was erroneously given because there was insufficient evidence in the record to warrant any inference that he had attempted to persuade a witness to "testify" falsely, or tried to fabricate evidence "to be produced at trial." While acknowledging that his brother admitted at trial that defendant had asked him to lie about defendant's arm injury, defendant nevertheless maintains that his brother's testimony fell outside the scope of CALJIC No. 2.04 because the incident occurred before judicial proceedings had been initiated. We cannot agree.
CALJIC No. 2.04 does not require judicial proceedings to actually be in progress when the attempt to procure false testimony or to fabricate evidence is made. It was sufficient that the jury could reasonably infer from the incident that defendant expected his brother to be a witness in the event of a trial, or that defendant sought to fabricate evidence in anticipation of a trial.
Next, defendant contends that CALJIC No. 2.06 was erroneously given because the evidence did not support the prosecutor's rationale for the instruction, i.e., that defendant threw away or otherwise destroyed or concealed the knife used in the attack, as well as his bloodstained clothes. We are not convinced.
Ontiveros testified that as Garcia and defendant were discussing the knife on the way home after the attack, she felt a blast of air in the car as if
Finally, defendant claims that the trial court should have modified CALJIC Nos. 2.03, 2.04 and 2.06 to apply only to the murder charge and not to the charges of attempted robbery, burglary and the corresponding special circumstances. Again, defendant argues there was insufficient evidence corroborating Ontiveros's testimony regarding defendant's involvement in the latter crimes. This claim must be rejected.
In the first place, if defendant believed the instructions required clarification or modification, it was incumbent upon him to request it. (People v. Johnson, supra, 3 Cal.4th at p. 1236.) In any case, the unmodified instructions correctly guided the jury's consideration of the evidence because, as we have previously explained, there was ample corroborating evidence tending to connect defendant to the planned robbery and burglary, as well as to the murder. Additionally, it must be remembered that the defense relied on an all-or-nothing strategy to cast doubt solely on the issue of identity. Certainly the trial court had no sua sponte duty to make instructional modifications that were arguably inconsistent with, or even detrimental to, that strategy.
In sum, the jury would not have been unreasonable in drawing inferences that defendant's false statements about his arm injury, his attempt to persuade his brother to lie and his effort to get rid of the knife all tended to show consciousness of guilt of all the charged crimes. Defendant's conduct was clearly probative on the issue of identity of the second assailant who was seen fleeing the crime scene with an injured arm. No error appears. (See People v. Lewis (1990) 50 Cal.3d 262, 276 [266 Cal.Rptr. 834, 786 P.2d 892] [rejecting argument that standard CALJIC No. 2.03 should have been
d. Cumulative Effect of Instructions
Defendant argues that the erroneous delivery of CALJIC Nos. 2.71.5, 2.71.7, 2.03, 2.04 and 2.06, whether considered singly or together, deprived him of his constitutional rights. He is mistaken. Inasmuch as none of the five instructions was erroneous, it is inconceivable that defendant's constitutional rights were violated.
9. Instructions Regarding Circumstantial Evidence and Requisite Mental States
Pursuant to defense counsel's wishes, the trial court gave CALJIC No. 2.01, which instructs on the sufficiency of circumstantial evidence to prove a defendant's guilt,
We need not resolve these disputed issues.
If defendant believed that a modification to CALJIC No. 3.31 was required, he was obligated to request it. In any event, the court's instructions,
First, we are not persuaded by defendant's assertion that the court's version of CALJIC No. 8.83.1 was misleading in referring to the term "required mental state" in the singular rather than plural form, or in failing to list each of the required mental states to which it applied. Even if defendant's failure to request such clarifications below is disregarded, the point is not well taken. As defendant himself points out, the court instructed on the mental state required for each of the special circumstances (CALJIC No. 8.81.17) immediately before reading the circumstantial evidence instruction.
In sum, we conclude that none of the perceived instructional errors, whether considered singly or together, warrants the reversal of defendant's conviction. We come to this conclusion whether we employ the "reasonable probability" test or the less tolerant "reasonable doubt" test. Likewise, we find no violation of defendant's state or federal constitutional rights.
10. Reasonable Doubt Instruction
Without any defense objection, the trial court gave the standard version of CALJIC No. 2.90 at the close of the guilt phase. Defendant now claims that this instruction, which defines "reasonable doubt" as that state of mind in which the jurors "cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge," is constitutionally defective in light of Cage v. Louisiana (1990) 498 U.S. 39 [112 L.Ed.2d 339, 111 S.Ct. 328]. This claims fails.
We have consistently rejected similar claims in the past. (People v. Webb (1993) 6 Cal.4th 494, 531 [24 Cal.Rptr.2d 779, 862 P.2d 779]; People v. Sims (1993) 5 Cal.4th 405, 456-457 [20 Cal.Rptr.2d 537, 853 P.2d 992]; People v. Noguera (1992) 4 Cal.4th 599, 633-634 [15 Cal.Rptr.2d 400, 842 P.2d 1160].) Recently, the United States Supreme Court upheld the constitutionality of CALJIC No. 2.90. (Victor v. Nebraska (1994) 511 U.S. ___ [127 L.Ed.2d 583, 114 S.Ct. 1239], affirming People v. Sandoval (1992) 4 Cal.4th 155 [14 Cal.Rptr.2d 342, 841 P.2d 862].) Although the high court criticized the instruction's use of the term "moral certainty" (Victor v. Nebraska, 511 U.S. at pp. ___ [127 L.Ed.2d at pp. 595-596, 114 S.Ct. at pp. 1247-1248], "it is clear that giving CALJIC No. 2.90 is not error, at least not yet." (People v. Freeman, ante, 450, 503 [34 Cal.Rptr.2d 558, 882 P.2d 249], italics added.)
Even though we reject defendant's challenge to the use of CALJIC No. 2.90 at his trial, we remain mindful of the concerns expressed in Victor v. Nebraska, supra, 511 U.S. ___ [127 L.Ed.2d 583, 114 S.Ct. 1239]. We therefore reiterate that, until the Legislature or the CALJIC committee acts on this matter, trial courts in future cases should consider the modifications suggested in People v. Freeman, supra, ante, at pages 503-504.
11. Effect of Alleged Errors
Defendant claims that the various asserted errors, both singly and in combination, denied him due process and undermined the reliability of the guilt verdicts. Whether or not expressly discussed, we have considered and rejected all of these claims as being without merit. No more need be said. (See People v. Mickle (1991) 54 Cal.3d 140, 197 [284 Cal.Rptr. 511, 814 P.2d 290].)
C. PENALTY PHASE ISSUES
1. Jury Selection
The United States Supreme Court has held that a prospective juror may be excluded for cause without compromising a defendant's rights under the Sixth and Fourteenth Amendments to trial by an impartial jury if the juror's views on capital punishment "`would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" (Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 851-857, 105 S.Ct. 844], fn. omitted; see Darden v. Wainwright (1986) 477 U.S. 168, 175-178 [91 L.Ed.2d 144, 153-156, 106 S.Ct. 2464].) We apply the same standard to claims under our state Constitution. (People v. Guzman (1988) 45 Cal.3d 915, 955 [248 Cal.Rptr. 467, 755 P.2d 917]; People v. Ghent (1987) 43 Cal.3d 739, 767 [239 Cal.Rptr. 82, 739 P.2d 1250].) A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate. (See People v. Guzman, supra, 45 Cal.3d at pp. 954-956.)
2. Espinoza Homicide
On June 6, 1980, Ernest Espinoza died after being shot and stabbed at a pay telephone in Oakland, California. Defendant and five others were charged with the murder of Espinoza. Defendant was alleged to have been armed with a firearm, and to have suffered a prior felony conviction. Codefendant Raymond Rodriguez (defendant's brother) was alleged to have personally used a firearm, and codefendant Toby Jaramillo was alleged to have personally used a deadly weapon. Pursuant to a plea bargain in August 1980, defendant pleaded guilty to being an accessory under section 32, and the arming and prior conviction allegations were dismissed. Raymond pleaded guilty to manslaughter with personal use of a rifle, and Jaramillo pleaded guilty to manslaughter with personal use of a knife. A fourth codefendant pleaded guilty to felony assault with a deadly weapon. Charges against the fifth and sixth codefendants were dismissed.
At the penalty phase, the prosecutor introduced evidence in aggravation of defendant's participation in the Espinoza homicide (§ 190.3, factor (b)) and evidence of his conviction as an accessory (§ 190.3, factor (c)). Defendant challenges the admission of this evidence on three grounds. First, he claims that the prosecutor violated the notice provisions of section 190.3 and used deceptive tactics in introducing the identification testimony of witness Rejon Mitchell. Second, he contends that no evidence of the Espinoza homicide should have been admitted because the murder charge filed against defendant in that case had been dismissed pursuant to a plea bargain, and the charge was stale. Third, he argues that the court erred in allowing defendant's conviction in the Espinoza matter to be characterized as accessory to a murder. As we shall demonstrate, none of these claims warrants reversal of the death judgment.
a. Mitchell's Identification Testimony
Defendant contends that the prosecutor violated the notice provisions of section 190.3 and misled defense counsel in presenting Rejon Mitchell's "surprise" testimony identifying defendant as the actual shooter of Espinoza.
On August 1, 1988 (after the close of the guilt phase), the trial court held a hearing on a defense motion to exclude evidence of the Espinoza homicide as an aggravating factor. Defense counsel essentially argued that the evidence should not be admitted under section 190.3, factor (b) because the preliminary hearing transcript from the Espinoza case did not establish that defendant engaged in any violence, attempted violence, threat of violence or implied violence. When the court asked the prosecutor whether he intended to offer any evidence in addition to the preliminary hearing transcript, the prosecutor replied: "I've indicated, the People's investigator to the defense investigator, that there are potentially several additional witnesses at the crime scene who may be called to testify about what they observed, which would include observing [defendant] accompanying a group of nine, as they've been referred to, at the time of the killing of Ernest Espinoza. It's consistent with what Danny Nunez testified to at the preliminary hearing, it would certainly place [defendant] at the scene of the crime at the time of the commission of the crime."
After further discussions, the court asked: "So what I need to know is do you have any evidence that would place the defendant in a position where he is more responsible for the act than what is shown in the preliminary examination and, of course, I don't know what's in the transcript." The prosecutor replied: "That's difficult to answer at this time because some of the witnesses have just been located very recently, and I haven't had a chance to actually interview them...." Thereafter the prosecutor stated: "There's the possibility that there may be a witness who places [defendant] as the actual shooter. If that were to be the case, obviously that would be a —." (Italics added.) The court indicated it would make a preliminary determination under Evidence Code section 402
The penalty phase commenced before the jury on August 2, 1988. On August 3, the prosecutor called Rejon Mitchell as a witness. Defense counsel did not object when Mitchell took the stand. Mitchell testified he was in his house when he heard gunshots. He looked out the window, and saw a group of men at a gas station watching another man shoot at Espinoza. After the shooting, the group ran by Mitchell's house. Mitchell opened his front door and could see the group, including the shooter, about 15 to 20 feet away.
After eliciting the above testimony, the prosecutor pursued the following line of questioning. "Q [Prosecutor]: Did you get a look at the shooter? A [Mitchell]: I did. Q: Subsequent to that, during the investigation by the Oakland Police Department, did you look at some photographs? A: Yes, I did. Q: And did you pick somebody out as the shooter? A: Yes, I did. Q: I realize this is some years ago this event has happened. [¶] Do you still recall what the shooter looked like? A: Yes. Q: I'd ask you to look around the courtroom and see if you see that person in court today. A: Yes. Q: Would you tell the jury where that person is now, and what he's wearing? A: The defendant sitting right there in the yellow top sweater (indicating). Q [Prosecutor]: May the record reflect identification with reference to the defendant
Afterwards, outside the presence of the jury, defense counsel reiterated his argument to the court that Raymond Rodriguez's prior plea to manslaughter and defendant's own plea to accessory barred the prosecution from trying to prove that defendant shot Espinoza. The prosecutor responded that the jury was free to determine, based on all the evidence presented, whether Raymond or defendant killed Espinoza. The prosecutor further stated: "I know when I came to court a few days ago, and said there was one witness we were looking for who might possibly place, who saw [defendant] as the shooter, it was Rejon Mitchell that I was thinking of. [¶] I finally had an opportunity to talk to him today. Until he had a chance to look around the courtroom, I was not able to determine for sure whether he was going to say, `Arnaldo Rodrigues' or say, `No, it was someone else who looked similar, but that's not him.' [¶] The jury, as I understand it, is free to either accept or reject the admissions of all types that are given to them. And they are not bound by a prior adjudication in the form of the taking of a plea." The court then concluded that the collateral estoppel rule was inapplicable. Thereafter defense counsel made no other argument.
It was not until the next morning, after the direct, cross- and redirect examination of Rejon Mitchell had been completed, that defense counsel complained about the prosecutor's failure to alert the defense that Mitchell would identify defendant as Espinoza's killer. At that time, defense counsel requested the trial court to dismiss the case pursuant to section 1385.
The trial court denied the request, concluding that the prosecutor had adequately advised the court and counsel about the possibility of a witness who would identify defendant as the shooter. In finding there was no misconduct, the court noted that the prosecutor's previous statements had been consistent with the witness's own testimony that he was out of town in another county. The court then granted defense counsel a continuance from that Thursday morning to the following Monday to determine the availability of physical evidence in the Espinoza case, and the need for a further continuance. The next day, August 5, defendant filed a formal motion for mistrial.
At a status hearing on August 10, defense counsel reported he could not complete his investigation by August 15 and requested another one-week continuance. After counsel detailed the work still remaining, the court ordered the prosecutor to proceed on penalty phase evidence other than the Espinoza incident on August 15, and indicated that at the end of that day, the defense would be allowed to show good cause for a further continuance.
On August 15, defense counsel did not request any further continuances. The prosecutor resumed his presentation of evidence on the Espinoza matter the next day, and the defense thereafter presented its side.
Section 190.3 provides in pertinent part: "Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation."
Even assuming that the claim was not waived, it is without merit. The prosecutor notified defendant several months before the start of trial that he intended to introduce evidence in aggravation of "[t]he incident occurring on or about June 6, 1980, in Oakland, California, in which the defendant participated in the stabbing and shooting of ERNEST ESPINOZA, resulting in his death." This notice gave ample warning to the defense that it should anticipate the prosecutor to introduce at the penalty phase all admissible evidence relevant to defendant's participation in the Espinoza homicide. Although Mitchell's name was not listed on the prosecutor's July 26, 1988, list of penalty phase witnesses, the prosecutor did not know at that time that Mitchell might potentially be able to identify defendant as a person who shot Espinoza. Once the prosecutor learned of the potential new evidence, he acted promptly in informing both the court and the defense. Under these circumstances, no violation of section 190.3 appears. (People v. Mitcham, supra, 1 Cal.4th at p. 1070.)
Finally, any lack or delay in notice must be deemed harmless. "In the absence of any indication that the delay in notice had in some fashion affected the manner in which defense counsel handled the prior proceedings, the appropriate remedy for a violation would ordinarily be to grant a continuance as needed to allow defendant to develop a response. [Citations.]" (People v. Carrera (1989) 49 Cal.3d 291, 334 [261 Cal.Rptr. 348, 777 P.2d 121].) Here the trial court granted the defense a continuance of 11
More importantly, even assuming that the prosecutor committed misconduct, the record fails to show that the trial court abused its discretion in
In Lankford v. Idaho, supra, the United States Supreme Court concluded that a defendant was denied due process when a trial judge imposed the death penalty after the prosecution had given notice that it would not recommend death. In reversing the judgment of death, the court observed that the character of the sentencing proceeding did not provide the defendant with any indication that the trial judge contemplated death as a possible
Defendant's attempted analogy to Lankford v. Idaho, supra, 500 U.S. 110, is unavailing. Unlike the situation there, the defense here was given ample opportunity to meet the challenged evidence and to persuade the jury of its case. As noted previously, the trial court granted the defense 11 days to prepare to meet Mitchell's testimony. At the end of that period, the defense sought no further continuance. When the trial resumed, the defense was able to introduce an array of witnesses to rebut Mitchell's testimony. The defense called Lieutenant Burnham Matthews, who had investigated the Espinoza killing and had twice interviewed Mitchell the day after the shooting. According to Matthews, Mitchell did not identify defendant, and the records of the investigation did not show that Mitchell had ever been shown a photographic lineup, or that he had ever made any identification. The defense also offered favorable testimony through four witnesses who were participants in the Espinoza incident. Toby Jaramillo testified that he saw Raymond, defendant's brother, shoot Espinoza, and that he never saw defendant shoot him. Raymond Alvarez and Daniel DeSoto did not claim that they saw the actual shooting, but both exonerated defendant. Raymond testified that he shot Espinoza 18 times, that he was convicted of manslaughter and served time for his crime, and that defendant was nowhere in the area at the time of the shooting. Under these circumstances, Lankford v. Idaho, supra, does not call for reversal of defendant's death judgment.
b. Dismissal of the Murder Charge and Staleness
As defendant acknowledges, we have squarely rejected the argument that the use of dismissed charges as a circumstance in aggravation violates an implicit term of a plea bargain when used at a capital penalty hearing. (People v. Frank (1990) 51 Cal.3d 718, 728-729 [274 Cal.Rptr. 372, 798 P.2d 1215]; People v. Melton (1988) 44 Cal.3d 713, 755-756 [244 Cal.Rptr. 867, 750 P.2d 741] [determining that the general rule of People v. Harvey, supra, 25 Cal.3d at p. 758, is inapplicable to capital sentencing].) We see no reason to revisit the issue.
Defendant also contends that because his conviction of being an accessory constituted an acquittal of murder, relitigation of the dismissed murder charge during the penalty phase violated his federal due process rights and the state and federal constitutional guarantee against double jeopardy. Defendant is mistaken.
"A bargained conviction or dismissal does not constitute an acquittal under section 190.3. [Citations.]"
Under section 190.3, factor (b), a prosecutor may offer evidence in aggravation of criminal violence that has occurred at any time. (People v. Garceau, supra, 6 Cal.4th at p. 199; People v. Douglas (1990) 50 Cal.3d 468, 529-530 [268 Cal.Rptr. 126, 788 P.2d 640]; People v. Balderas (1985) 41 Cal.3d 144, 202 [222 Cal.Rptr. 184, 711 P.2d 480].) Even though certain evidence in the Espinoza case had been lost, all otherwise available evidence, including witness statements, was provided to the defense. Moreover, despite the loss of physical evidence, numerous witnesses were able to testify on the matter, many on defendant's behalf. Not only was defendant afforded the opportunity to call his own witnesses, but he was also allowed to conduct full cross-examinations of all adverse witnesses. Accordingly, defendant was not deprived of due process and his constitutional rights were not violated. (People v. Garceau, supra, 6 Cal.4th at pp. 198-200; People v. Frank, supra, 51 Cal.3d at pp. 728-729.)
c. Characterization of Prior Conviction
Before the start of the penalty phase, the trial court conducted a bifurcated trial on the prior conviction allegations. Over the defense's objection, the court ruled that for purposes of the prosecutor's case in the penalty phase under factor (c) of section 190.3, defendant's prior conviction under section 32
In response, the Attorney General asserts that the prior conviction was properly characterized because the hearing transcript makes reasonably clear that both defendant and the trial court understood defendant to be pleading guilty of being an accessory to a murder, which was the only felony charged.
Although we are not convinced of the Attorney General's reading of the transcript, we nonetheless find any error harmless. Evidence of the facts underlying the prior conviction was otherwise admissible under section 190.3, factor (b). (See People v. Montiel (1993) 5 Cal.4th 877, 917 [21 Cal.Rptr.2d 705, 855 P.2d 1277]; People v. Melton, supra, 44 Cal.3d at p. 764.) Therefore, the jurors were properly presented with evidence and argument as to whether the Espinoza homicide constituted murder, or something less.
Contrary to defendant's assertions, the jurors were not led to believe that the underlying conviction foreclosed them from finding that the Espinoza killing was manslaughter, as opposed to murder. In fact, quite the opposite was true. The court instructed on second degree murder, voluntary manslaughter, and heat of passion and sudden quarrel. These instructions clearly applied to the Espinoza homicide evidence, which was the only evidence of a homicide offered under section 190.3, factor (b). In the face of these instructions, the jurors could not possibly have concluded that they were required to view the killing as a murder. Indeed, any conceivable doubt in the jurors' minds was resolved in defendant's favor by the prosecutor's closing argument explicitly emphasizing to the jurors that they were not foreclosed from determining how the Espinoza killing occurred.
In light of the foregoing, we conclude it is not reasonably possible that the characterization of the prior conviction, even if in error, affected the judgment to defendant's detriment. (People v. Brown (1988) 46 Cal.3d 432, 446-448 [250 Cal.Rptr. 604, 758 P.2d 1135].)
3. Jill M. Incident
In October 1976, Jill M. reported to police that she had been raped, sodomized and forced to engage in oral copulation by at least three men at a house in San Leandro. Jill identified defendant as one of her attackers. Although defendant was charged with sexual assault, the charge was dismissed after the preliminary hearing. Prior to this trial, the prosecutor gave notice he would introduce as evidence in aggravation "[t]he incident occurring on or about October 16, 1976, in San Leandro, California, in which the defendant, while acting in concert with others, engaged in the forcible rape, forcible sodomy, and forcible oral copulation of JILL [M.]."
a. Staleness and Loss of Evidence
Shortly before the start of the penalty phase, the defense moved to exclude any evidence of the Jill M. incident, citing the speedy trial and due process provisions of the federal and state Constitutions, as well as the state statute of limitations. The defense argued it was severely disadvantaged in defending against the 12-year-old unadjudicated charge, and was substantially prejudiced by the loss of certain evidence, including, among other things, photos shown to Jill for identification purposes, and vaginal and rectal swabs and smears taken from Jill the morning after the alleged incident. In hearings on the motion, the defense also complained of prejudice due to other unavailable evidence including the failure of defense witness Dr. McGlynn to independently recall the examination of Jill he conducted the morning after the incident. In rejecting these arguments, the trial court determined, inter alia, that the defense was not prejudiced because it could confront both
First, unlike Gardner v. Florida, supra, 430 U.S. 349, in which the defendant was sentenced to death due in part to the trial court's reliance on a sentencing report, the contents of which were not revealed to defense counsel, the mere passage of time between defendant's 1976 crimes and defendant's trial did not significantly diminish his ability to challenge the evidence in question. (People v. Wharton, supra, 53 Cal.3d at p. 601.) Therefore, admission of the evidence did not violate his rights to due process and a reliable sentencing determination. (People v. Garceau, supra, 6 Cal.4th at pp. 198-199; People v. Frank, supra, 51 Cal.3d at p. 729.) Nor did it violate his right to a speedy trial. (People v. Johnson, supra, 3 Cal.4th at p. 1244 [expiration of limitations period does not bar admission of prior unadjudicated criminal activity for purposes of § 190.3, factor (b)]; People v. Heishman (1988) 45 Cal.3d 147, 192 [246 Cal.Rptr. 673, 753 P.2d 629].)
Contrary to defendant's assertions, the state has a legitimate interest in allowing a jury to weigh and consider a defendant's prior criminal conduct in determining the appropriate penalty, so long as reasonable steps are taken to assure a fair and impartial penalty trial. (People v. Hawthorne (1992) 4 Cal.4th 43, 77 [14 Cal.Rptr.2d 133, 841 P.2d 118].) Remoteness of the offense affects the weight, not admissibility, of the offense. (People v. Anderson (1990) 52 Cal.3d 453, 476 [276 Cal.Rptr. 356, 801 P.2d 1107].) Here the defense was given proper notice of this aggravating factor, and was able to confront the witnesses who were available. Moreover, the jury had been instructed that aggravating circumstances — including the crimes against Jill M. — must be proved beyond a reasonable doubt. No constitutional error appears. (People v. Wharton, supra, 53 Cal.3d at p. 601.)
In this case, defendant fails to establish any unfairness. The defense was able to confront and cross-examine both Jill M. and Lewis Pollack, who
Defendant's reliance upon United States v. Wade (1967) 388 U.S. 218, 239-242 [18 L.Ed.2d 1149, 1164-1166, 87 S.Ct. 1926] and Gilbert v. California (1967) 388 U.S. 263, 269-272 [18 L.Ed.2d 1178, 1184-1186, 87 S.Ct. 1951] is misplaced. Unlike the instant situation, those cases involved prior lineups that had occurred in the absence of counsel in violation of the Sixth Amendment. The United States Supreme Court held that, under those circumstances, admission of the in-court identifications without first determining that they were not tainted by the illegal lineup, but were of independent origin, was constitutional error. (Ibid.) Those cases are inapposite and do not further defendant's claims.
b. Rebuttal Evidence Concerning Jill M.'s Fear
Defendant called Carlos Pasillas, who testified on direct examination that he was at the San Leandro house when Jill M. arrived. Pasillas observed Jill calmly conversing with some of his friends in the living room, smoking a cigarette and drinking a beer. Pasillas, who was living at the house with his girlfriend Norma Rodriquez (defendant's sister), did not hear Jill scream or indicate in any way that she was being forced sexually against her will that night. After the prosecutor attempted to discredit Pasillas's testimony by extracting an admission that he never came forward with his story, defense counsel elicited testimony on redirect examination that Pasillas stopped his involvement after becoming aware that the case against defendant was dismissed.
Subsequently, over the defense's objection, the court allowed Jill M. to testify briefly on rebuttal as follows. "Q [Prosecutor]: And after you went to court at the preliminary hearing and testified to the magistrate about how
"`The admission of rebuttal evidence rests largely within the sound discretion of the trial court and will not be disturbed on appeal in the absence of "palpable abuse."'" (People v. Kelly (1990) 51 Cal.3d 931, 965 [275 Cal.Rptr. 160, 800 P.2d 516].) Although we find that Jill's state of mind testimony was not particularly probative since the defense did not question witnesses regarding the reasons for the dismissal, we cannot conclude that the trial court committed "palpable abuse" in admitting the evidence. On the basis of the record, we may reasonably infer that, having been informed by defense counsel that the reasons for the dismissal were not ascertainable, the court admitted Jill's testimony in order to allow the prosecutor to offset any impression left by witnesses that the charges against defendant were dismissed because of insufficiency of the evidence or questions concerning Jill's credibility. This was within the court's broad scope of discretion.
Defendant next contends that Evidence Code section 352 compelled exclusion of Jill M.'s testimony concerning her fear because such testimony impermissibly suggested that defendant or someone associated with him had threatened her. (See People v. Mason, supra, 52 Cal.3d at pp. 946-947; People v. Pitts, supra, 223 Cal. App.3d at pp. 778-781; cf. People v. Weiss, supra, 50 Cal.2d at p. 554.) We disagree.
The record establishes that the trial court made diligent efforts to ensure that no prejudicial inference arose. First, the trial court precluded any testimony regarding the source of Jill M.'s alleged fear, and did not allow the prosecutor to ask Jill whether she had ever been threatened. Second, the court specifically admonished the jurors that "the testimony as to the state of mind of the witness as to her reason for declining to proceed with the case, that testimony was offered for the limited purpose of showing her state of mind at the time she apparently made that request. [¶] And as she's testified,
4. Roach Shooting
In April 1977, Frank Roach was wounded in the back by a shot from a pump-action, sawed-off shotgun. Roach had identified defendant as the shooter from a photo lineup shown to him four or five days after the incident, and also identified defendant at the preliminary hearing. At the penalty phase, Roach was able to identify defendant, but remarked that defendant looked "a lot different ten years ago" and that defendant had "changed quite a bit."
Admission of the aggravating evidence was proper since the defense received notice of it and was afforded the opportunity to cross-examine the prosecution's witnesses and to call its own witnesses.
Defendant fails to establish that his right of confrontation was defeated because of the loss of physical evidence. Even though the shotgun and photo lineup were no longer available, the defense had access to the preliminary hearing transcript and police reports, as well as the names of pertinent witnesses. As for the photo lineup, there is no indication in the record that Roach's photo identification contributed to his two subsequent identifications. (Cf. People v. Kaiser, supra, 113 Cal. App.3d at p. 764; People v.
5. Calles Incident
Defendant claims that the trial court should have excluded evidence of the Calles incident for lack of timely notice under section 190.3. The facts underlying this claim are as follows.
On September 11, 1987, the prosecutor initially filed a notice of aggravating factors which made no mention of the Calles incident. On April 11, 1988, the day the case was called for trial, the defense filed a trial memorandum attempting to limit the introduction of evidence in aggravation at the penalty phase to those incidents listed in the September 1987 notice. That same day, over defense objection, the prosecutor gave oral notice that he intended to introduce additional evidence in aggravation, including "[t]he incident occurring on January 21st, 1981, at the department of corrections facility in Susanville in which the defendant committed assault with serious bodily injury and battery on prison inmate Calles, C-a-l-l-e-s, Prison Number C-23539." The prosecutor filed a written amended notice to this effect on April 13, 1988. On April 25, the defense filed a response to the amended notice which argued that evidence of the Calles incident should be excluded on statute of limitations grounds. The trial court rejected this argument.
On August 1, 1988, after the conclusion of the guilt phase, the court conducted a hearing under Evidence Code section 402 to evaluate the defense's claim that evidence of the Calles incident should be excluded because there was insufficient evidence of defendant's identity as the perpetrator of the assault. At that time, the prosecutor informed the court and defense counsel that Calles would testify that he saw out of the corner of his eye that he was struck by someone wearing a glove, and that defendant was
Not only does the claim appear to have been waived by defense counsel's failure to make a specific objection based on section 190.3 at the August 1988 hearing (People v. Turner (1990) 50 Cal.3d 668, 708 [268 Cal.Rptr. 706, 789 P.2d 887]; see also People v. Johnson (1993) 6 Cal.4th 1, 51 [23 Cal.Rptr.2d 593, 859 P.2d 673]), it is clearly lacking in merit. Section 190.3 does not require a summation of a witness's expected testimony. (People v. Roberts (1992) 2 Cal.4th 271, 329-330 [6 Cal.Rptr.2d 276, 826 P.2d 274]; cf. People v. Pride (1992) 3 Cal.4th 195, 258 [10 Cal.Rptr.2d 636, 833 P.2d 643] [prosecutor not barred from introducing all the circumstances of a duly noticed incident simply because each and every circumstantial fact not recited].) In any event, defendant cannot now complain about the notice issue because he failed to request a continuance at trial, thereby indicating that the timing of the particular notice was not prejudicial to the defense. (See People v. Johnson, supra, 6 Cal.4th at p. 51; People v. Turner, supra, 50 Cal.3d at p. 708.)
As noted above, the trial court held a hearing under Evidence Code section 402 to determine whether sufficient evidence existed to present the incident to the jury. Applying the abuse of discretion standard (see People v. Clair (1992) 2 Cal.4th 629, 676 [7 Cal.Rptr.2d 564, 828 P.2d 705]), we find the trial court could properly rule the incident admissible. Calles testified at the hearing that he spoke with defendant for 10 minutes regarding his failure to attend a Mexican/Puerto Rican inmate meeting. Defendant, who was
Although defendant is correct that Calles stated he did not actually see defendant strike him, that Calles did not tell prison officials after the incident about the gloved hand, and that he only recently recalled the gloved hand detail, these were matters which affected the credibility of Calles as a witness, not the admissibility of his testimony or the admissibility of the assault as an aggravating factor. Viewing the totality of the evidence presented, a rational jury could conclude that defendant was the one who struck Calles and that the elements of the charged conduct could be proven beyond a reasonable doubt.
Defendant next urges us to adopt a rule that, as a matter of state and federal constitutional due process, evidence of a defendant's alleged prior misconduct must be excluded from the capital sentencing determination whenever: (1) the alleged misconduct occurred in prison; (2) physical evidence and prison records of the circumstances of the alleged incident have been destroyed or lost and percipient witnesses cannot be identified; (3) the primary prosecution witness is another inmate who has never previously identified the defendant in spite of opportunity to do so; and (4) prison officials relied on unspecified information from anonymous inmates to establish the defendant's culpability. Defendant asserts such a rule is necessary because prison officials are under no obligation to preserve evidence when no criminal charges are filed, and because in-house informants may be tempted to fabricate evidence to assist the state in a capital case, supposedly in exchange for "diverse and substantial advantages."
We decline defendant's request. Defendant's proposed rule contravenes our previous determination that the state has a legitimate interest in allowing a jury to weigh and consider a defendant's prior criminal conduct in a capital case, so long as reasonable steps are taken to assure a fair and impartial penalty trial. (People v. Hawthorne, supra, 4 Cal.4th at p. 77.) Since defendant fails to demonstrate that existing methods for safeguarding the fairness
Finally, defendant contends that evidence of the Calles incident should not have been admitted because critical evidence was either missing or lost, and because the expiration of the applicable statute of limitations created an irrebuttable presumption that his right to a fair trial would be prejudiced. He contends that admission of the incident violated his rights to due process, to effective confrontation of witnesses, and to a reliable penalty judgment. These contentions are essentially repetitive of those made with respect to the Jill M. and Roach incidents, and they are rejected for the reasons already stated.
6. Rodriguez Incident
Correctional Officer Leo Rodriguez testified that in November 1984, defendant verbally abused him and threatened to "kick [his] ass" when Rodriguez sought to have him removed from his food serving assignment.
Section 190.3, factor (b) requires the trier of fact to take into account, if relevant, "[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." Under this factor, the term "criminal activity" is "limited to conduct that violates a penal statute." (People v. Wright (1990) 52 Cal.3d 367, 425 [276 Cal.Rptr. 731, 802 P.2d 221], italics in original.)
In this case, the question is whether the Rodriguez evidence demonstrated a violation of section 148, which criminalizes resisting, delaying or obstructing a peace officer,
While not conceding the point, the Attorney General makes no attempt to argue that the Rodriguez incident constituted conduct properly falling under section 190.3, factor (b), or that there was substantial evidence in the record of a Penal Code violation. Rather, it is asserted that any erroneous admission of the evidence did not prejudice defendant. We agree.
Even assuming that the Rodriguez evidence was improperly admitted, the record does not demonstrate prejudice under our state law penalty phase harmless error test or any federal constitutional violation. (People v. Brown, supra, 46 Cal.3d at p. 449.) The jurors had already convicted defendant of the brutal murder of Juan Barragan and found true two special circumstances. They had heard all about the circumstances of the crime (§ 190.3, factor (a)), including the manner in which defendant savagely stabbed an unarmed victim to death without giving him any chance to surrender his property and thus preserve his life. They had heard how defendant ordered Garcia to kill Epifanio Zavala once he revealed that "it" was in the closet. The jurors were also presented evidence of numerous other incidents in aggravation, which included violent felonies as well as injurious assaults against police officers and other individuals. In light of all the evidence, it was not reasonably possible that the jurors could have drawn any more damaging inferences from the evidence of defendant's threat to Rodriguez than had already been established by the circumstances of the underlying crimes and defendant's history of violent and assaultive conduct. We therefore conclude that any erroneous admission of the evidence was harmless. (People v. Wright, supra, 52 Cal.3d at pp. 428-429; People v. Brown, supra, 46 Cal.3d at p. 449.)
7. Correctional Facility Fire
At defense counsel's request, the trial court held a hearing under Evidence Code section 402 to determine the admissibility of the prosecutor's proposed evidence in aggravation that on New Year's Eve, 1980-1981, defendant participated in setting fires at the correctional facility at Susanville. After Correctional Officer Frank Shipman testified concerning a fire he had witnessed, the defense moved to exclude the evidence on the ground it was insufficient to establish defendant's participation and identity in the fire incident beyond a reasonable doubt.
Defendant's comparison fails. Unlike the situation in People v. Crandall, supra, 275 Cal.App.2d 609, Shipman's testimony provided substantial evidence of defendant's identity. Shipman testified that he saw a pair of hands throwing burning paper out of a window and onto an existing fire in the prison common area. Four or five seconds later, Shipman, with the aid of his
Defendant next claims that evidence of the incident was inadmissible because the conduct at issue did not constitute arson (§ 451),
In any event, no basis for reversal appears. Assuming arguendo that the evidence did not sufficiently support a finding beyond a reasonable doubt that defendant committed criminal activity, the other properly admitted evidence was overwhelming. On this record, we conclude it is not reasonably possible that the jury would have rendered a different verdict had the challenged evidence not been admitted. (People v. Wright, supra, 52 Cal.3d at p. 429; People v. Brown, supra, 46 Cal.3d at p. 449.)
8. Character Evidence
At various times before and during the penalty phase, defense counsel asked the trial court for a ruling as to what evidence might be admitted in rebuttal if the defense were to present what he characterized as background evidence in mitigation. As described by counsel, this background evidence consisted of evidence that defendant suffered seizures when he was four or five years of age, evidence that his father died when he was young, two or three photographs of defendant earlier in his life, and "one other similar piece of evidence" that counsel did not identify. The prosecutor asserted that
During arguments on the issue, defense counsel asserted that the prosecutor should not be permitted to introduce character evidence or any evidence of the stabbing and escape incidents in rebuttal because defendant's evidence would merely show "things that have happened in his life, ... things that were not in his range of choices of conduct," and "[n]ot character and not mental condition or physical condition through a psychiatrist but just things that have happened to Mr. Rodrigues, not things that he has himself done." Defense counsel sought to restrict the scope of rebuttal to the truthfulness of the particular incidents, i.e., whether it was true that defendant suffered childhood seizures or that his father died when he was young. In opposition, the prosecutor argued, inter alia, that the only logical reason for defendant's proffered evidence was "for the purpose of evoking a sympathetic response which shows a characteristic of the defendant which is worthy of sympathy." The prosecutor asserted that "any pitch or plea that's made for sympathy in that regard, is something that may be rebutted by otherwise relevant evidence that would evoke from the jury the opposite conclusion, which is that the defendant is not worthy."
In ruling on this matter, the trial court made clear it was not inclined to admit the escape evidence.
The Attorney General argues that defendant's claim of harm is speculative, and urges us to find the claim not reviewable under the rule applied in Luce v. United States (1984) 469 U.S. 38 [83 L.Ed.2d 443, 105 S.Ct. 460] (Luce), People v. Collins (1986) 42 Cal.3d 378 [228 Cal.Rptr. 899, 722 P.2d 173] (Collins) and People v. Sims, supra, 5 Cal.4th 405 (Sims).
In Collins, an opinion authored by Justice Mosk, we held that California courts are to follow the federal rule stated in Luce, supra, 469 U.S. 38, which held that the denial of a motion in limine to exclude a prior conviction offered for impeachment under rule 609(a) of the Federal Rules of Evidence (28 U.S.C.)
In Collins we observed that no witness has the right to give testimony immune from impeachment: "It is settled that such impeachment does not violate the due process clause of either the federal or the state Constitution [citations], or the federal privilege against self-incrimination [citation].... `Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.' ... `It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. [Citations.] It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. [Citations.] Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.' [Citation.]" (Collins, supra, 42 Cal.3d at pp. 387-388.) For these reasons, we concluded that impeachment by prior felony conviction does not violate the California privilege against self-incrimination, and held that the Luce rule is not inconsistent with any constitutional mandate.
In Sims, a death penalty case, the defendant argued on appeal that the trial court erred in denying his motion to bar the prosecution, in the event defendant testified during the guilt phase, from cross-examining him regarding evidence of unadjudicated murders in another state. (5 Cal.4th at p. 453.) There, based on the reasoning in Collins, we held that the defendant's claim of error was not reviewable because he elected not to testify at his trial. (Id., at pp. 454-456.) In Sims, as in Collins, the trial court had no occasion to ascertain the precise nature of defendant's testimony because he elected not to testify; the court therefore had no basis for determining whether the
It is debatable whether the Luce rule is properly applicable in the instant case. On the one hand, defendant appears correct that the Luce rule has never been applied to a claim challenging the denial of an in limine motion seeking to restrict the scope of rebuttal to mitigating evidence in the penalty phase of a capital case. On the other hand, the Attorney General makes plausible arguments that the same concerns which prompted application of the rule in Collins and in Sims are present in such a situation.
We find that, for purposes of this case, we need not go so far as to hold, under Luce, Collins and Sims, that a defendant must present his mitigating evidence to the trier of fact in order to preserve a claim challenging the denial of a motion in limine to limit the scope of rebuttal. All the same, we conclude, based on settled principles of appellate review, that the inadequacy of the present record requires us to reject defendant's claim.
"Before an appellate court can knowledgeably rule upon an evidentiary issue presented, it must have an adequate record before it to determine if an error was made." (In re Mark C. (1992) 7 Cal.App.4th 433, 445 [8 Cal.Rptr.2d 856].) The question here is whether defendant's offer of proof concerning his alleged mitigating evidence was sufficiently definite so that we may knowledgeably conclude that the trial court's ruling on the scope of rebuttal was both erroneous and prejudicial to defendant.
In sum, the record is far too vague and indefinite to permit us to determine defendant's claim of prejudicial error. Defendant's objections to the trial court's in limine ruling are therefore properly rejected.
9. Refusal to Excuse Juror Duba
Late in the penalty phase, it came to light that Juror Ronald Duba was seen on the fourth floor of the courthouse (the jail floor), and that he there observed Transportation Deputy Matthew Powers and another deputy taking defendant out of the elevator. The morning after the incident, the court
At the hearing, the court questioned Duba and Deputy Powers on the stand, eliciting the following testimony. During his initial examination, Duba explained he was on the fourth floor because he had wanted to make a telephone call to his wife. He had picked the fourth floor over the first and second floors because he wanted more privacy. Duba represented he was capable of making a decision in the trial independent of his observation of defendant, and had no doubts he could put the incident out of his mind. Deputy Powers confirmed that Duba was sitting down by one of the telephones on the jail floor as he and another deputy were transporting defendant, who was handcuffed in front, to the jail. Duba saw them from between 15 and 20 feet away. When Powers asked Duba what he was doing there, Duba replied he was going to use the telephone to call his wife. Powers saw that Duba was writing something down in a spiral notebook, but did not see Duba use the telephone. Powers immediately reported the incident to the trial judge. When recalled for questioning, Duba clarified that what he was writing in his notebook were things he wanted to remember from trial. Duba had been taking notes this way periodically throughout the trial, and on this occasion he had decided to write his thoughts in his notebook before calling his wife. Duba also affirmed that he was not on the fourth floor to do any investigation. After ascertaining that Duba could disregard his observation of defendant and that he would not discuss the incident with the other jurors, the court allowed Duba to remain on the jury.
We find no merit to defendant's claim that the trial court's prejudice analysis was deficient because the effect of Duba's observation of defendant
We also reject defendant's claim that a reversal is warranted based on the trial court's erroneous consideration of the number of remaining alternate jurors. The fact that the court referred to this irrelevant factor does not undermine the soundness of its determination that Duba's unauthorized observation would not result in prejudice to defendant.
"In view of the foregoing, we conclude that the misconduct in question does not support a finding that there is a substantial likelihood that any juror was impermissibly influenced to the defendant's detriment. Therefore, we must hold the misconduct to be nonprejudicial." (People v. Marshall, supra, 50 Cal.3d at p. 952.)
10. Court's Rulings and Remarks Regarding the Defense's Arguments
Defendant contends that the trial court made erroneous and unfair comments when ruling on two prosecution objections during the defense's closing argument. He also contends that the court's overall treatment of the defense was unfair in comparison to its treatment of the prosecution. We disagree.
During closing argument, defense counsel reminded the jury that an allegation of personal gun use (§ 12022.5) against defendant was dismissed when defendant pleaded guilty to a charge of assault with a deadly weapon (§ 245) on Frank Roach. Counsel continued: "What does that mean in simple layman's language? That means that the allegation as part of that charge that Mr. Rodrigues was the shooter, used a gun, 12022.5 means used a gun, got a gun in his hand, pulled the trigger, that was dismissed." At this point, the prosecutor objected and the following exchange took place: "[Prosecutor]: I would object, your Honor. That's a misstatement of the law, as the court well knows, it's an additional sentencing enhancement that does not erase from the underlying charge the use of the weapon. [Defense counsel]: I'm stating what the 12022.5 is, and it's a use of the weapon. [The court]: However, it still does not detract from the fact of the charge itself, so the objection is sustained."
First, defense counsel's sole comment in response to the prosecutor's objection was: "I'm stating what the 12022.5 is, and it's a use of the weapon." After the court made its ruling, counsel made no attempt to explain or elaborate upon his position. This was plainly insufficient to raise or preserve the arguments defendant makes on appeal.
As defendant apparently concedes, the clear import of the court's remark, viewed in its proper context, was that weapon use was included in the underlying charge of assault with a deadly weapon and that the dismissal of the enhancement allegation did not detract from that legal fact. We find nothing erroneous about such a remark and nothing in the court's ruling that foreclosed defense counsel from making the "intended argument" identified by defendant on appeal. In reaching this conclusion, we reject defendant's claim that the court's remark effectively told the jury that the underlying conviction of assault with a deadly weapon constituted a finding that defendant personally used a weapon.
Later during his closing argument, defense counsel began to sum up by specifically asking the jury to spare defendant's life, but the prosecutor again objected and the court again agreed with the prosecutor's position: "[Defense argument]: You have not seen any evidence which warrants the death penalty in this case. You know by what I said a few minutes ago that Mr. Rodrigues will spend the rest of his life in prison. [¶] When you are exercising your discretion and your total authority in this case about what is appropriate for the punishment you should determine whether or not Mr. Rodrigues is such a person that the prison system cannot control him that he must be put to death. [¶] You have not seen that kind of evidence. [Prosecutor]: Objection, your honor. That's not the legal standard at all that that should be imposed only if the legal system cannot control the defendant. [The court]: It's not the legal standard, but it's argument and I'll allow it in."
Defendant next contends that the trial court's overall disparate treatment of the prosecutor and defense counsel during the penalty phase closing arguments was patently unfair to defendant and constituted prejudicial error. This contention is based on a comparison of the number of overruled defense objections with the fewer number of overruled prosecution objections. He also criticizes as unfair the comments made by the trial court in conjunction with those rulings.
Defendant fails to demonstrate that any of the trial court's rulings were erroneous, or that the cited remarks were incorrect or resulted in prejudice. Defendant also fails to establish that the court acted inequitably in any way. Whether considered singly or together, the rulings and remarks made by the court furnish no grounds for a reversal of the death judgment.
11. Alleged Erroneous Foreclosure of Defense Counsel's Argument
After the prosecutor presented his closing argument, defense counsel Edward Thirkell followed with his summation. Near the conclusion of his argument, Thirkell rhetorically asked the jurors if any of them was "so comfortable" with the prosecution's case and arguments "that you have no concern about another witness coming up, about a lack of compassion, about
Thereafter, the prosecutor made a short rebuttal argument, in which he angrily criticized Thirkell for "incredibl[y]" asking the jurors "to act as the Pope" and to "make a decision in this case that's in no way related to the evidence." He characterized Thirkell's argument not to "take away from God" as "nothing but a shoddy and emotional attempt to get you to abandon your sworn duties as jurors and not to make your decision in this case based on the evidence and on the law." The prosecutor implored the jurors to be influenced only by the law and the evidence, and "to do justice, which means making a tough decision but one that's warranted by what the law is for everyone in the state of California."
Defense counsel Geoffrey Carr then began what he described as a very brief argument in surrebuttal. After some introductory remarks, Carr told the jurors that, contrary to what the prosecutor argued, it was not inappropriate under the law for them to consider sympathy in making their decision. Thereafter, as Carr was arguing about the injustice of a person having to defend against an eight-year-old allegation when no witnesses to the incident could be produced other than the accuser, the prosecutor interrupted with an objection that the argument was clearly beyond the scope of rebuttal. Carr responded that his argument simply went to the meaning of justice and asserted that the case law supported a broad scope of surrebuttal. Although the court appeared to overrule the objection, it told Carr that "to the extent that you've made the statement I will allow it in," but that "if it gets close to going beyond, I won't allow it."
Carr continued his argument by emphasizing the injustice of using, as aggravating factors, stale incidents which had not resulted in convictions and as to which there had been failures of proof. When the prosecutor again objected that counsel was going beyond the scope of rebuttal, Carr again responded that the final statement to a jury in a capital case was not so limited. The court made no specific ruling on the prosecutor's objection, but stated it had discretion as to whether "that other argument is given." After stating its belief that defense counsel Thirkell had already adequately covered the area Carr was arguing, the court nonetheless allowed Carr's remark to remain.
Carr then resumed his argument, stating that the "last thing" with which he would leave the jurors was asking them to consider how they might feel
After the jurors were excused, defense counsel Carr stated on the record that he had further argument to make, that he felt he had been unnecessarily foreclosed, and that he felt constrained by the court's ruling. The court responded: "Mr. Carr, the court is not responsible for your feeling of constraint. The court, in the language, made it clear that you were clear, fully capable, free to make any appropriate argument that you chose to make."
The situation here is analogous to that in Bonin, supra, 46 Cal.3d 659. In that case, the trial court refused to allow the defendant's second counsel to argue on surrebuttal after the prosecution waived its rebuttal argument. There we held that the trial court's ruling did not deny or infringe upon the defendant's constitutional right to assistance of counsel because his first counsel had in fact presented a full and unrestricted argument on his behalf. (46 Cal.3d at pp. 694-695.) We observed that the defense's opportunity to participate fully and fairly in the adversary fact-finding process was not significantly limited, despite the omission of second counsel's argument, since defendant's first counsel apparently considered further argument by second counsel to be dispensable. (Id., at p. 695)
Here, as in Bonin, defendant's right to assistance of counsel was neither denied nor significantly limited since defense counsel Thirkell presented a full and unrestricted closing argument, in addition to which defense counsel Carr presented surrebuttal argument. To be sure, the court sought to limit Carr to matters raised on rebuttal upon determining that Carr was essentially arguing in areas already covered by Thirkell. But, as noted previously, Carr's arguments regarding the issues of sympathy and compassion, and of staleness and failure of proof, were allowed to stand despite the prosecutor's early objections.
No basis for reversal appears. First, there was no violation of section 1095 here because both of defendant's counsel were in fact permitted to argue. Second, even if Bonin, supra, 46 Cal.3d at page 693, supports the conclusion that section 1095 does not limit the scope of permissible surrebuttal by second counsel to matters raised in the prosecutor's rebuttal, that case did not suggest that section 1095 deprives a trial court of its discretionary power to limit excessively repetitive arguments made by counsel. Nor do we so hold in this case. Since the effect of the trial court's rulings was to foreclose Carr from making further duplicative arguments after others had already been allowed, we find no statutory violation and no abuse of discretion.
12. Refusal to Instruct on Lingering Doubt
Defendant asked the trial court to instruct the jury as follows: "You are instructed that lingering doubt that the defendant committed the crimes for which he has been convicted of an amount or type less than a reasonable doubt is a factor that may be considered by you in determining which penalty to impose as well as in determining if aggravating factors outweigh mitigating factors." The trial court refused to give the requested instruction, but permitted the defense to argue to the jury that it could use any residual or lingering doubt as a factor in mitigation or as a reason not to impose the death penalty.
Moreover, the trial court's refusal to give defendant's lingering doubt instruction did not otherwise amount to reversible error. In People v. Cox, supra, we observed that "[a]s a matter of statutory mandate, the court must charge the jury `on any points of law pertinent to the issue, if requested' [citations]; thus, it may be required to give a properly formulated lingering doubt instruction when warranted by the evidence. [Citations.]" (53 Cal.3d at p. 678, fn. 20.) In that case, we rejected the defendant's proffered instruction because it erroneously prescribed that the jury evaluate lingering doubt in a particular manner. (Ibid.) Assuming for the sake of argument that defendant's proposed instruction in this case suffered no similar infirmity, and that it was warranted by the evidence, we are still unable to conclude that the court's refusal to give the proposed instruction caused prejudice. The record shows that the defense was properly permitted to argue the concept of lingering doubt to the jury, and that it did so. Moreover, the jury was instructed to consider, if applicable, "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime, and any sympathetic or other aspect of the defendant's character or record which appears to you as a basis for a sentence less than death, whether or not related to the offense for which he is on trial. You must disregard any jury instruction given to you in the guilt or innocence phase of this trial which conflicts with this principle." Clearly these instructions were "sufficient to encompass the concept of residual doubt about defendant's guilt." (People v. Price, supra, 1 Cal.4th at p. 488, and cases cited therein; People v. Johnson, supra, 3 Cal.4th at p. 1252.) Under these circumstances, we do not believe defendant would have derived any additional benefit had the requested instruction been given. (See People v. Fauber, supra, 2 Cal.4th at p. 864; see also People v. Johnson, supra, 3 Cal.4th at p. 1252.)
13. Refusal to Instruct on Mercy
The trial court refused defendant's request to instruct the jury: "You are instructed that you may consider sympathy for the defendant or mercy in the general sense in determining which penalty to apply to the defendant." Defendant contends this refusal was violative of both state law and the Eighth Amendment and constituted reversible error.
14. Refusal to Instruct Regarding Sentence Received by Cynthia Ontiveros
Defendant requested the court to instruct the jury "that in determining the appropriate punishment for the defendant in this case, you may consider the sentence received by Cynthia Ontiveros in return for her testimony. If you find that the imposition of death against Mr. Rodrigues is disproportionate in comparison to the sentence received by Cynthia Ontiveros you must return a verdict of life without possibility of parole."
As defendant recognizes, we have repeatedly rejected the contention that capital juries must be instructed during the penalty phase to consider the sentences imposed on a defendant's accomplices. (People v. Danielson, supra, 3 Cal.4th at p. 718; People v. Gallego (1990) 52 Cal.3d 115, 201 [276 Cal.Rptr. 679, 802 P.2d 169]; People v. Johnson (1989) 47 Cal.3d 1194, 1249 [255 Cal.Rptr. 569, 767 P.2d 1047].) "The focus in a penalty phase trial of a capital case is on the character and record of the individual offender. The individually negotiated disposition of an accomplice is not constitutionally relevant to defendant's penalty determination." (People v. Johnson, supra, 47 Cal.3d at p. 1249.)
Defendant asks us to reconsider our position in light of Parker v. Dugger (1991) 498 U.S. 308 [112 L.Ed.2d 812, 111 S.Ct. 731], a case in which a capital defendant in Florida was permitted to introduce, at an advisory sentencing hearing, evidence that none of his accomplices had received the death penalty. (498 U.S. at p. 314 [112 L.Ed.2d at pp. 821-822].) According to defendant, Parker v. Dugger, supra, and various federal cases preceding it, are dispositive of his claim that the jury was improperly precluded from considering accomplice Ontiveros's sentence.
In People v. Mincey (1992) 2 Cal.4th 408 [6 Cal.Rptr.2d 822, 827 P.2d 388], we reviewed the decision in Parker v. Dugger, supra, and determined
We have reviewed all of defendant's arguments on this issue and have determined that none supports reversal of his death sentence.
15. Alleged Double Counting of Espinoza Evidence
During the penalty phase, evidence of defendant's involvement in the 1980 shooting death of Ernest Espinoza was identified to the jury as a factor in aggravation under both factor (b) and factor (c) of section 190.3.
To begin with, the trial court did not err in failing to give an instruction amplifying the distinction between factors (b) and (c) of section 190.3. In the absence of a request by the defendant, a trial court is under no duty to give such an instruction sua sponte. (People v. Hamilton (1988) 46 Cal.3d 123, 146 [249 Cal.Rptr. 320, 756 P.2d 1348].) In this case, the possibility of an amplifying instruction was discussed on April 29, 1988, prior to the commencement of jury selection, when the trial court ruled that evidence of defendant's accessory conviction was admissible. At that point, the trial court acknowledged defense counsel's stated concerns that the jury be properly instructed on the evidence, but told counsel they would address the issue when it came time to decide upon instructions. When such time arrived, however, defense counsel failed to renew his concerns or to press for an appropriate instruction, and the issue apparently was never discussed
Defendant's claim regarding the prosecutor's argument fares no better. To the extent defendant is claiming that the prosecutor made impermissible and misleading arguments to the jury, his failure to object and to request a curative admonition waives the claim on appeal. (People v. Noguera, supra, 4 Cal.4th at p. 638.) In any event, the claim is without merit. We have reviewed the record and have determined that the prosecutor's argument clearly distinguished the two factors, and never suggested that the jury could "double-count" the conduct underlying the incident. No violation of defendant's state or federal constitutional rights appears.
16. Instructions Regarding Consideration of Unadjudicated Offenses
As defendant acknowledges, the trial court had instructed the jurors at the guilt phase on the presumption of innocence and the prosecutor's obligation to prove beyond a reasonable doubt. Although the court chose not to repeat those particular instructions at the penalty phase, it nevertheless told the jurors to consider the guilt phase instructions during their penalty phase deliberations, and furnished written copies of the guilt phase instructions. After listing the 10 unadjudicated offenses introduced by the prosecutor, the court instructed the jurors that "before you may consider any of such criminal acts as an aggravating circumstance in this case you must first be satisfied beyond a reasonable doubt that the defendant did in fact commit such criminal acts." (See CALJIC No. 8.87 (5th ed. 1988).) The court also repeated the definition of reasonable doubt. (See CALJIC No. 2.90, 2d par.)
We find no basis for reversal. A court has no duty under statutory or constitutional law to instruct sua sponte on the presumption of innocence
17. Instruction on Sentencing Discretion
The court gave the 1986 version of CALJIC No. 8.84.2, which reflects the changes suggested in People v. Brown (1985) 40 Cal.3d 512 [220 Cal.Rptr. 637, 709 P.2d 440] reversed on other grounds sub nom. California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837], as follows: "[I]t is now your duty to determine which of the two penalties, death or confinement in the state prison for life without possibility of parole, shall be imposed on the defendant. [¶] After having heard all of the evidence, and after having heard all of the, after having heard and considered the arguments of counsel you shall consider, take into account, and be guided by the applicable factors of aggravating and mitigating, and mitigating circumstances upon which you have been instructed. [¶] The weighing of aggravation, aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale or the arbitrary assignment of weights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider. In weighing the various circumstances you simply determine under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. To return a judgment of death each of you must be persuaded that the aggravating evidence is so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole. [¶] Now you shall now retire and select one of your number to act as your foreman, who will preside over your deliberations. In
Defendant claims that above italicized words rendered the instruction vague, misleading and constitutionally defective. However, if defendant believed the instruction was unclear, he had the obligation to request clarifying language. (See People v. Johnson, supra, 6 Cal.4th at p. 53.) In any case, we have repeatedly rejected arguments identical to defendant's (People v. Sully, supra, 53 Cal.3d at pp. 1244-1245; People v. Nicolaus (1991) 54 Cal.3d 551, 590-591 [286 Cal.Rptr. 628, 817 P.2d 893]; see also People v. Wader, supra, 5 Cal.4th at pp. 662-663; People v. Breaux (1991) 1 Cal.4th 281, 315-316 [3 Cal.Rptr.2d 81, 821 P.2d 585]), and decline to reconsider our determinations.
Defendant's failure to request such clarifications at trial bars appellate review of the issue. (People v. Johnson, supra, 6 Cal.4th at p. 52.) In any event, no error appears. We recently concluded that a trial court did not err in failing to give substantially similar clarifications where it instructed the jury pursuant to instructions identical to those given here (former CALJIC No. 8.84.2). Under such instructions, "[n]o reasonable juror would assume he or she was required to impose death despite insubstantial aggravating circumstances, merely because no mitigating circumstances were found to exist." (6 Cal.4th at p. 52; cf. People v. Raley (1992) 2 Cal.4th 870, 921 [8 Cal.Rptr.2d 678, 830 P.2d 712].) Thus, the trial court in this case adequately informed the jury of its sentencing responsibilities. No more was required.
18. Response to Jury Question
During the penalty phase deliberations, the jury sent the court a note stating: "Can we please have a clarification on the instructions. [¶] Does the jury have to be unanimous on the penalty no matter which choice is made? And if the jury happens not to be unanimous what would happen then?" The court discussed the matter with both sides outside the presence of the jury, and the prosecutor agreed with defense counsel's suggested responses. Pursuant to the parties' agreement, the court informed the jury that the answer to its first question was "yes," and that the answer to its second question was, "you are not to speculate on that eventuality. That is a matter which must not in any way affect your decision."
We are not persuaded. Inasmuch as defendant both suggested and consented to the responses given by the court, the claim of error has been waived. (See People v. Cooper (1991) 53 Cal.3d 771, 847 [281 Cal.Rptr. 90, 809 P.2d 865].) Moreover, the claim is devoid of merit. The trial court "is not required to `educate the jury on the legal consequences of a possible deadlock.' [Citation.]" (Ibid.; People v. Morris, supra, 53 Cal.3d at p. 227; People v. Belmontes, supra, 45 Cal.3d at p. 814.) We have previously cautioned that informing the jury of the possibility of subsequent retrials in the event of a deadlock "would have the potential for unduly confusing and misguiding the jury in their proper role and function in the penalty determination process. Penalty phase juries are presently instructed that their proper task is to decide between a sentence of death and life without the possibility of parole. Any further instruction along the lines suggested herein could well serve to lessen or diminish that obligation in the jurors' eyes. [Citations.]" (People v. Belmontes, supra, 45 Cal.3d at p. 814, fn. omitted.) Accordingly, defendant was not entitled to have the trial court explain to the jury what
Defendant seeks to equate the trial court's failure to advise the jurors that if they were unable to reach a unanimous verdict the penalty issue would be retried by another jury with the situation in Simmons v. South Carolina (1994) 512 U.S. ___ [129 L.Ed.2d 133, 114 S.Ct. 2187], in which the United States Supreme Court reversed a death judgment because of the trial court's refusal to instruct that imposition of a life sentence on the defendant would be life without parole. The situations are not similar. Here, not advising the jury that the case would be retried did not create a "false choice" between impossing the death penalty or sentencing defendant to a limited term of incarceration (id. at p. ___ [129 L.Ed.2d at p. 141]), or have the effect of allowing defendant to be sentenced to death on the basis of information which he had no opportunity to explain or deny (id. at p. ___ [129 L.Ed.2d at p. 143]).
19. 1978 Capital Sentencing Scheme
Defendant argues that the sentencing scheme under California's 1978 death penalty law is constitutionally flawed in a number of ways. We have repeatedly rejected identical claims, as follows.
Neither the 1978 law nor the instructions given in this case are defective for failing to make express distinctions between aggravating and mitigating circumstances. (People v. Wash (1993) 6 Cal.4th 215, 271 [24 Cal.Rptr.2d 421, 861 P.2d 1107]; People v. Clark, supra, 5 Cal.4th at p. 1040; People v. Montiel, supra, 5 Cal.4th at p. 943.) The 1978 law is not unconstitutional insofar as it permits a jury which has already decided a defendant's guilt to determine, on the issue of penalty, whether the defendant committed alleged prior criminal acts to be considered in aggravation. (People v. Pride, supra, 3 Cal.4th at pp. 252-253; People v. Balderas, supra, 41 Cal.3d at pp. 204-205; see also People v. Hawthorne, supra, 4 Cal.4th at p. 77.) There is no constitutional requirement that the jury in a capital case must be instructed that it must find unanimously and beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances and that death is the appropriate penalty. (People v. Wash, supra, 6 Cal.4th at pp. 271-272; People v. Clark, supra, 5 Cal.4th at p. 1040; People v. Montiel, supra, 5 Cal.4th at p. 943.) Nor is there a constitutional requirement of jury
Additionally, we reject defendant's claim that the inclusion of both "circumstances of the crime" and "the existence of any special circumstances" among the factors which a jury may use to aggravate the sentence creates a bias and presumption in favor of death in violation of his constitutional rights. The jury cannot return a death verdict unless it finds, based on the totality of the aggravating circumstances and the totality of the mitigating circumstances, that the aggravating evidence is so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole. (See People v. Johnson, supra, 6 Cal.4th at p. 52.) Consequently, mere inclusion of the challenged matters as factors in aggravation for the jury's consideration creates no bias or presumption in favor of death.
20. Automatic Motion for Modification of Death Verdict
First, defendant claims that the trial court's statement of reasons indicates that it committed error by treating the absence of a particular mitigating factor as an aggravating factor. (See People v. Davenport (1985) 41 Cal.3d 247, 289 [221 Cal.Rptr. 794, 710 P.2d 861].) In reviewing each of the statutory factors the trial court referred to the absence of evidence of section 190.3, factors (d), (e), (f), (g), (h) and (j), but did not suggest that that absence was itself aggravating. When discussing factor (i), however, the court stated that the age of defendant "is not a mitigating factor and, therefore, is not relevant to the determination of this motion." Defendant asserts that because no similar "finding" of irrelevance was made with regard to the other factors listed above, the court must have implicitly found and considered the absence of such factors to be aggravating. We do not agree.
The court's brief comment does not support defendant's speculative contention. The record makes clear that the court was not urged to treat the absence of any mitigating factor as an aggravating factor. Moreover, defense counsel's failure to make the relevant objection supports our conclusion that
Second, defendant claims that in denying his motion, the trial court improperly considered the January 1, 1981, arson incident at Susanville and the November 2, 1984, incident involving threats to Leo Rodriguez because those incidents neither constituted "criminal activity" nor involved "the use or attempted use of force or violence or ... the express or implied threat to use force or violence" as required under section 190.3, factor (b).
Even assuming the above evidence was improperly considered, the record as a whole demonstrates that defendant was not prejudiced. In denying defendant's motion, the trial court emphasized the heinous nature of the underlying crime: "the circumstances of the murder were particularly savage and brutal and reflected a high degree of cruelty, viciousness and callousness on the part of the defendant." The court determined that "the evidence that the victim was stabbed over 20 times, coupled with the ultimate death by loss of blood, reflects extreme and gratuitous violence, and presents a strong factor in aggravation." The court also reviewed the evidence, evaluated the credibility of the witnesses and found beyond a reasonable doubt that defendant committed each of the other eight criminal offenses introduced by the prosecutor, and that he had been convicted of being an accessory to murder, and of burglary and auto theft. Finally, although the court found some evidence in the record of mitigating factors such as defendant's childhood home life and his relationships with family members and neighborhood peers, it nonetheless concluded that the evidence in aggravation was overwhelming and substantial by comparison. Since the statement of decision makes apparent that the trial court did not deem the issue of penalty to be a close one, no remand is warranted. (People v. Daniels (1991) 52 Cal.3d 815, 893 [277 Cal.Rptr. 122, 802 P.2d 906].) It is inconceivable that the court would have been moved to grant a modification of the death verdict had evidence of the Rodriguez threat and evidence of the Susanville fire incident been withdrawn from consideration.
Third, defendant claims that the trial court erroneously considered his prior felony conviction for accessory in the Espinoza matter as a conviction for the crime of accessory to murder. However, it is extremely doubtful that the trial court, having found beyond a reasonable doubt that defendant was criminally responsible for Espinoza's killing, would have arrived at a different conclusion had the conviction been otherwise characterized.
Fourth, defendant complains that, although the trial court expressly found that accomplice Cynthia Ontiveros's testimony was adequately corroborated
We find nothing in the record that reasonably supports defendant's assignment of error. The trial court explicitly found "the evidence concerning the truth of the special circumstances; to wit, that the defendant committed a murder during the commission of a burglary, and an attempted robbery to be overwhelming...." It further found "that the jury's verdicts, finding the defendant guilty of murder in the commission of burglary and attempted robbery, to be supported by evidence beyond a reasonable doubt, and to be neither contrary to the evidence nor the law." After having reviewed the record, we conclude that the evidence more than adequately supports the jury's verdict that defendant killed Juan Barragan during the commission of a burglary and attempted robbery, and find that the trial court independently and correctly reached the same conclusion in passing on defendant's modification motion.
21. Effect of Alleged Errors
Defendant claims that the various asserted statutory and constitutional violations, both singly and in combination, denied him due process and undermined the reliability of the death verdict. Whether or not expressly discussed, we have considered and rejected as being without merit all of these claims. (See People v. Mickle, supra, 54 Cal.3d at p. 197.)
For the reasons stated above, we find no reversible error in the record. The judgment of death is affirmed in its entirety.
Lucas, C.J., Kennard, J., Arabian, J., George, J., and Werdegar, J., concurred.
I concur in the judgment as to guilt, death eligibility, and noncapital sentence. After review, no error or other defect is evident requiring reversal or vacation on any of these issues.
I dissent, however, from the judgment as to the sentence of death. I would set aside that penalty as unreliable under the Eighth Amendment to the
The petitions of both respondent and appellant for a rehearing were denied February 16, 1995, and the opinion was modified to read as printed above. Mosk, J., was of the opinion that the petitions should be granted.
Defendant also claims that admission of the videotape violated his state and federal constitutional rights to due process, a fair trial, a reliable guilt determination in a capital case and the fair application of state law. We reject these claims. At trial, defendant failed to make any such objections. (People v. Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10 [2 Cal.Rptr.2d 112, 820 P.2d 214].) Moreover, these matters are not properly raised: they are perfunctorily asserted without argument in support. (Id., at p. 985, fn. 15.) In any event, the admission of the videotape did not implicate any of the cited federal or state constitutional protections.
Defendant identifies other minor discrepancies in Vargas's early descriptions of the suspects and in her recollection of the events. Such discrepancies do not persuade us any differently.
On a related note, the Attorney General contends that the prior identification exception to the hearsay rule (Evid. Code, § 1238) furnishes a basis for the admission of nonidentification evidence. Since we conclude that admission of the evidence was harmless in any event, we decline to address this issue.
The court instructed on CALJIC No. 2.04 as follows: "If you find that a defendant attempted to persuade a witness to testify falsely or try [sic] to fabricate evidence to be produced at trial, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, such attempt is not sufficient to prove guilt and its weight and significance, if any, are matters for your determination."
The court instructed on CALJIC No. 2.06 as follows: "If you find that a defendant attempted to suppress evidence against him in any manner such as by destroying or by concealing evidence, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. [¶] However, such evidence is not sufficient in itself to prove guilt, and its weight and significance, if any, are matters for your consideration."
Moreover, in reaching our conclusion, we have considered the fact that the prosecutor's closing argument asked the jury to consider, based on defendant's past record, whether defendant would present a threat or danger to others in prison if sentenced to life without possibility of parole. Although a prosecutor may not initiate introduction of expert testimony on the issue of future dangerousness of a defendant, he or she may argue the issue so long as the arguments do not render the penalty trial unfair. (People v. Miranda, supra, 44 Cal.3d at pp. 110-111; see also People v. Taylor, supra, 52 Cal.3d at p. 750, fn. 11.) In this case, the prosecutor's argument was proper given the evidence of defendant's assault on inmate Calles. No basis for reversal appears.