A San Bernardino County jury found defendant Martin Carl Jennings guilty of the first degree murder of his five-year-old son, Arthur Jennings. (Pen. Code, § 187.)
A. Guilt Phase Evidence
1. The prosecution's case
(a) The torture and murder of Arthur Jennings
Defendant was tried together with his wife, Michelle Jennings.
In early November 1995, defendant telephoned Wilma to tell her that he wanted Arthur back. He informed Wilma that the couple had a newborn
Defendant paid for Wilma and Arthur to travel by bus from Montana to California. During Wilma's 10-day visit, she warned defendant that Arthur wet the bed, was afraid of the dark, and could be difficult when he did not get his way. Wilma additionally told defendant and Michelle that she would take Arthur back if he proved to be too much of a problem, but she never heard from them again.
When Wilma left to return to Montana, Arthur weighed approximately 64 pounds. He was happy and in good health. Within a few weeks, however, defendant and Michelle began to abuse Arthur. During late 1995 and early 1996, a number of neighbors noticed signs of abuse.
Approximately two weeks before Christmas in 1995, Phillip and Kevin Orand visited the Jenningses' home. Phillip saw Arthur with two black eyes and a mark on his mouth. Arthur was making an odd sound, rocking back and forth but staring straight ahead. When Phillip inquired what was wrong with Arthur, defendant said Michelle had "knocked him out." Michelle confirmed to Kevin that she had "socked the damn little brat between the eyes, knocked him out."
On Christmas day in December 1995, Louis Blackwood went to the Jenningses' residence for dinner. Blackwood saw Arthur eat two full plates of food and ask for a third, only to be reprimanded. Blackwood also noticed that Arthur's hand was bandaged. When he asked what had happened to Arthur's hand, Blackwood was told that Arthur had burned himself by touching the wood stove. On a separate occasion about two weeks later, Blackwood saw Arthur with a bruise on the side of his face from the hairline down to the jaw line, which Blackwood described as "not a normal injury." Michelle told Blackwood that Arthur had fallen. Blackwood described Arthur as looking "whipped" and unhappy. In February 1996, a few days before the police started searching for Arthur, defendant told Blackwood that Arthur had gone missing in the middle of the night and that he and Michelle had spent three hours looking for Arthur before they finally found him hiding behind a bush in the desert.
Bernard Romaine saw Arthur in early January 1996 and recounted that he looked "pretty beat up." At the time, Arthur had two black eyes—one in particular that was "real bad" and appeared to require medical attention because it was swollen shut and seeping blood—and a bandaged hand that appeared to have been burned. Arthur also appeared very thin and undernourished.
On January 5, 1996, Michelle telephoned CPS to report that her neighbors were abusing their 18-month-old son. During a subsequent telephone conversation on January 8, Michelle asked the CPS worker, Betty Hocking, if Hocking could find an adoptive home for Arthur. Michelle told Hocking that Arthur had been with them for two months and that she could not manage him. Hocking asked whether Michelle could return Arthur to the relative with whom he previously resided. Michelle responded that was not an option. Hocking then suggested parenting classes and therapy. As a last resort, she gave Michelle an adoption worker's telephone number. On January 15, the Jenningses went to Hocking's office to speak with her in person about the neighbors' situation. With them was Arthur's baby sister, Pearl, who appeared to be well taken care of and happy. At the end of the conversation, Michelle said, "I wish there was something we could do with our son," and again inquired whether Hocking might have an adoptive home for Arthur. The Jenningses explained that they could not control Arthur and that they had many concerns about his behavior. Hocking again suggested parenting classes and therapy and gave them the adoption worker's phone number. Before leaving, Michelle inquired whether anyone had reported the Jenningses to CPS. When asked why anyone would report them, Michelle claimed she was worried about possible allegations by jealous neighbors.
On February 4, 1996, while Michelle was away, Cora Grein, a neighbor, visited the Jenningses' home. Defendant and Arthur were watching a television program, and Grein joined them. Defendant instructed Arthur to go to his bedroom. Defendant then attempted to kiss Grein, but she resisted. During this attempt, Arthur reentered the room and subsequently was instructed by defendant to return to his bedroom. Grein testified that as Arthur began walking away, defendant grabbed him and struck him on the back of his head with a fireplace shovel. Defendant then picked up Arthur and threw him on the bed. He told Grein that if she said anything she would "see the bottom of a mine shaft." Grein told defendant she would remain quiet, and left.
(b) The Sheriff's investigation
On February 6, 1996, two days after Arthur's death, the Jenningses reported Arthur missing to the San Bernardino County Sheriff's station. Defendant stated that he last saw Arthur in his bed at about 2:00 a.m., and noticed he was missing at 6:00 a.m. Michelle said she last saw Arthur about 10:30 p.m. Both defendant and Michelle claimed they tried to find Arthur but were unable to locate him. A search subsequently was initiated by law enforcement officers.
When the search party was unable to find Arthur or any indication of recent activity by Arthur, the authorities began to treat the case as a homicide and summoned the Jenningses for questioning. In separate interviews, defendant and Michelle admitted that Arthur had been dead since February 4. They also independently led officers to the mine shaft in the desert where Arthur's unclothed body was found wrapped in a blanket.
On February 8, 1996, detectives conducted a joint interview of defendant and Michelle, in which the Jenningses detailed their abuse of Arthur.
During the interview, the detectives posed questions regarding incidents that had occurred prior to Arthur's death. Defendant acknowledged he and Michelle had discussed "killing" and "getting rid of" Arthur. Michelle said defendant wanted to shoot Arthur in the head, but she suggested returning him to Wilma or giving him to Art, Sr. Defendant admitted that two days prior to Arthur's death, he and Michelle drove around the desert looking for a place to "dump the body."
The Jenningses also admitted giving Arthur the drug Unisom, an over-the-counter sleep aid, as well as Vicodin and Valium, both prescription painkillers that had been prescribed to defendant for a work-related injury. Michelle admitted that on the day Arthur died, she gave him one Vicodin and two sleeping pills at defendant's behest, but claimed any other pills were given to Arthur by defendant. A detective asked defendant, "Did you tell her to give [Arthur] medication, that it would help him?" Defendant responded, "Yeah. I honestly thought it would. We was trying to get him better and he died." Although acknowledging that Vicodin and Valium made defendant feel "sleepy" and "numb" and claiming that he cut the pills in halves or in quarters before giving them to Arthur, when defendant was asked what he thought the pills would do to "a five-year old that weigh[ed] 35, 40 pounds," defendant maintained he "didn't think about it."
At one point during the interview, defendant acknowledged he was going "to have to pay" for what had happened to Arthur. Defendant admitted he knew he "had to finish [Arthur] off" once Arthur saw him kissing Cora Grein. When the detectives questioned who killed Arthur, defendant stated "I probably did" by "abusing him and the medication and stuff." Nevertheless, defendant claimed he "did not mean to actually kill Arthur" and tried to save Arthur's life by administering cardiopulmonary resuscitation (CPR) to him.
Following defendant's and Michelle's arrests, officers searched their home and found, among other items, a loaded .32-caliber pistol; a fireplace shovel; a box of Unisom; and bottles of the prescription medications carisoprodol, Darvocet, Vicodin, and Valium, as well as prescription-strength ibuprofen. In the course of his testimony, a detective involved in the search showed the jury photographs of the many perishable and nonperishable food items observed in defendant's home, and of the bloodstains found in Arthur's bedroom. A criminologist testified that the blood spatter patterns found in 12 areas of the bedroom came from several separate events—most the result of medium-energy impact and a few from low-energy incidents and smearing.
(c) The autopsy
Dr. Frank Sheridan, a forensic pathologist, performed the autopsy on Arthur's body. Dr. Sheridan testified that at the time of his death, Arthur was 3 feet 10 inches tall, and weighed only 35 pounds. His body as a whole was "severely emaciated and malnourished"; he had almost no body fat or fatty tissue, his muscles were wasted, and he had no food in his stomach when he died.
Dr. Sheridan also testified concerning Arthur's numerous physical injuries, which he described as "generally painful to varying degrees" and as having required force to inflict. Visible injuries to Arthur's body included a bruise and an abrasion on the tip of Arthur's nose, bruising and a laceration in the area between the nose and the upper lip, bruises on the inside of his lips and gums, a lacerated oral frenulum (between the gum and the upper lip), and a slight bruise on the tip of his tongue. These injuries occurred shortly before death and were most consistent with smothering.
Arthur also had two injuries to the back of his head— one injury on the right side that was a few weeks old and had been sutured,
An internal examination revealed extensive hemorrhaging to the deeper layers of Arthur's scalp that extended across the entire front of his forehead, indicating some kind of blow or impact to the area. This injury occurred shortly before Arthur's death but separately from his other recent head injury.
A microscopic examination of Arthur's lung tissue indicated he had acute pneumonia at the time of his death. Dr. Sheridan attributed this infection to the breakdown of Arthur's immune system and his overall failure to thrive.
Toxicology tests revealed that Arthur had three drugs in his blood system, all central nervous system depressants. The first drug was a significant amount of Unisom consistent with the administration of two sleeping pills. The dose was sufficient to cause seizures and cessation of breathing. The second drug was a small amount of Vicodin, a prescription painkiller, which would have added to the sedative or depressive effect of the Unisom. The third drug was a small amount of Valium, which would have played a minor contributing role in Arthur's condition.
When asked whether he had determined "a cause of death or causes of death," Dr. Sheridan replied, "Causes." On the death certificate, he listed the "main cause of death" as "combined drug toxicity," because although the level of Unisom alone was potentially fatal and the levels of Vicodin and Valium alone were not toxic, the three drugs together had a certain "additive effect" on sedation. Under the heading "Contributing Causes"— which Dr. Sheridan explained is "where you can list something else that contributed to death but is separate from the main one"—he listed "acute and chronic physical abuse and neglect." The term "acute" referred to Arthur's injuries inflicted shortly before death, and the term "chronic" referred to Arthur's older injuries as well as to the "very, very severe" emaciation and malnutrition. Also listed as a contributing cause was the acute pneumonia, which was a complication of Arthur's emaciated state.
Questioned further, Dr. Sheridan gave the cause of death as "the entire problem"—the drugs, the physical injuries, and the malnutrition and emaciation —"all working together," that brought about the resulting death. He described Arthur as in a "downhill slide" and "very near to the end of his life" because of malnutrition and "the whole body not functioning properly." Dr. Sheridan testified that even without the ingestion of drugs, Arthur likely would have died within a fairly short period of time if he were
(d) Stipulation regarding expert toxicologist
The parties entered into a stipulation concerning the testimony of Dr. Randall C. Baselt, a toxicologist, which was read into the record. According to the stipulation, if called as a witness Baselt would have testified that the drug concentrations found in the autopsy blood specimen of five-year-old, 35-pound Arthur Jennings, "when taken at face value, were sufficient to account for [his] death." The Unisom "played the most important role in this drug combination, and, in fact, could have caused death in the absence of the other two agents." He noted, however, that without analyzing other autopsy specimens, such as liver, brain, urine or stomach contents, "it would be difficult for a forensic toxicologist to offer any definitive opinions as to the timing of the drug administration, the size of the dose or doses and the exact role that the [Unisom] played in the death."
2. The defense's case
Neither defendant nor Michelle testified at trial. Defendant called Dr. Joseph Lantz, a licensed clinical psychologist, who testified concerning the results of tests he administered to determine defendant's cognitive ability, intelligence, and personality profile. Lantz opined that defendant possessed limited intelligence, was severely impaired in his problem-solving ability, had a personality disorder consisting of narcissism and antisocial behavior, and had been abused by his parents. Lantz further explained that a person who is severely abused as a child is much more at risk as an adult to perpetuate a pattern of abuse. He concluded that defendant was angry, hostile, explosive, impulsive, and difficult to deal with.
Additionally, Lantz noted that defendant's personality problems increased when he lost his job due to a back and shoulder injury. Defendant was in pain, not working, and short of money. When defendant was employed, he was a regular methamphetamine user, but later quit. As Lantz explained, those who quit use of that drug "generally go through a period of agitation." Defendant stopped using methamphetamine when he developed nausea due to the interaction between the methamphetamine and his prescription medications.
Lantz further testified that the Jenningses had no concept of how to deal with Arthur's needs. He also opined that Arthur's behavior had deteriorated to that of a child of lesser age after he was returned to his parents' care, and that the Jenningses responded by reverting to the disciplinary techniques that had
Michelle called Dr. Nancy Kaser-Boyd, a licensed clinical psychologist, who testified concerning her testing and evaluation of Michelle. The psychologist related Michelle's history of rape and abuse by her father (resulting in pregnancy and an abortion), betrayal by an older sister and her mother, molestation by a teacher, and abuse by defendant. Kaser-Boyd stated that Michelle was fearful, depressed, and lacked insight, was socially isolated and felt helpless, had difficulty controlling her impulses, had a dependent and schizophrenic personality, and possessed an IQ in the bottom fifth percentile. Kaser-Boyd explained that the characteristics displayed by Michelle are typical of abused and battered women.
Kaser-Boyd further testified that Michelle did not understand Arthur's seizures—which defendant told her were temper tantrums but Kaser-Boyd, based on her own experience and training, viewed as epileptic—and that Michelle's response to the seizures was to slap Arthur. Kaser-Boyd explained that Michelle wanted to obtain medical care for Arthur, but did not do so because he had bruises and she was afraid of losing custody of her baby, Pearl. Michelle also told Kaser-Boyd that defendant suggested withholding food from Arthur because hitting him "was not working," and that Michelle went along with defendant's plan, but sometimes would sneak food to Arthur.
An adoption social worker, Margret Thomas, testified regarding a telephone call she received on January 18, 1996, from Michelle discussing adoption options for Arthur. During the call, Michelle said Arthur was recently returned to her home, but she was unable to handle him and therefore was considering placing him for adoption. By the end of the conversation, Michelle agreed to consider returning Arthur to Wilma, the paternal aunt with whom he had resided in Montana before being returned to the Jenningses. Michelle never followed up with Thomas.
3. The prosecution's rebuttal
Sheriff's investigator Kathleen Cardwell interviewed Michelle on February 6, 1996, and asked her about her relationship with defendant. Michelle
B. Penalty Phase Evidence
1. The defense's case
Dr. Geraldine Stahly, a social psychologist, testified concerning the history of defendant's family. Most of defendant's relatives suffered from mental illness and low intelligence, many had criminal histories, and two half brothers were in prison for murder, one on death row. Defendant's mother, Pearl Jennings, was reported to have suffered from heroin addiction and at some point to have been placed in a mental hospital for schizophrenia. She had 11 children with her first husband, Raymond Foster. The Foster children were sexually abused by their father and physically abused by both parents. Later, however, the Foster sons came to idealize their father because they "remembered him as not being so bad."
The Foster children also were sexually molested and physically abused by their mother's second husband, Art, Sr., who was defendant's biological father. Art, Sr., allegedly killed Helen, one of the Foster children, by smothering her with a pillow when she was five years of age. In 1957, after approximately two years together, the Foster children, as well as Pearl and Art's newborn baby, were taken from them by the state. The baby was adopted, and the other children were placed in foster homes and orphanages.
Defendant was born in 1960. He was much younger than the Foster children and was raised as if he were an only child. At that time, the economic circumstances of the Jennings family had improved considerably. Art, Sr., once forced defendant to steal but subsequently did not press him to engage in such activity again, because defendant proved to be an inept thief. The Foster children perceived that defendant was "spoiled" and "had it good." But defendant reported to Stahly that his mother forced him to orally copulate her when defendant was nine years of age and demanded during the ensuing year that he perform this act a couple of times a week. He also told Stahly that before attaining the age of 13 years, he was forced to orally copulate Art's girlfriend. Both parents also physically abused defendant, although apparently not to the extent they abused the Foster children.
Joseph Lantz, the psychologist who testified on defendant's behalf at the guilt phase of the trial, testified again at the penalty phase. In Lantz's opinion, defendant was seriously affected by the environment in which he was raised. Lantz agreed with Stahly's testimony, adding that there would have to be "very active intervention both with the child and with the family" for someone who had been seriously damaged by abuse as a child "to turn their life around." Lantz stated that social isolation, coupled with severe and ongoing physical, emotional, and sexual abuse and neglect, left defendant "to drift" without normal development.
Lantz referred to an incident in which defendant's arm was broken when his father attacked him with a baseball bat, and another event when defendant was shot during a hunting accident and his father tied him down at home while removing the bullet fragments. Lantz also testified that defendant was incapable of deciding to take Arthur's life and did not intend to kill Arthur.
James Park, a retired employee of the California Department of Corrections, testified regarding the situation defendant would encounter if sentenced to life imprisonment without the possibility of parole. In Park's opinion, defendant was unlikely to be a danger to anyone inside the prison.
2. The prosecution's case
The prosecution presented one rebuttal witness, defendant's half sister, F.E., who testified that she was sexually and physically abused by her father, Raymond Foster. Her mother Pearl, whom F.E. described as cold and distant, was not abusive, although Pearl knew about the abuse and did nothing to stop it.
F.E. ran away and in 1954 was placed in a home for girls. Nevertheless, F.E. saw Pearl and Art, Sr., on various occasions. In 1960, F.E. visited her mother, who was pregnant with defendant, but left after Art, Sr., beat and raped her. She again visited her mother and Art for approximately six weeks
Wilma S., defendant's half sister who raised Arthur until he was five years of age, testified again at the penalty phase as a victim-impact witness. Wilma explained that she was given custody of Arthur when he was four and a half months old and that she loved him very much. She had not wanted to return Arthur to defendant and Michelle, but when she sought legal advice, she was told she could not keep him. Wilma further testified that although Art, Sr., sexually molested her and physically abused her and all of her siblings, her mother did not beat her.
A. Guilt Phase Issues
1. Sufficiency of the evidence
Defendant contends that the evidence presented at the guilt phase was insufficient to establish first degree murder or the torture-murder special circumstance. He further asserts that basing a conviction or special circumstance finding on the insufficient evidence presented at his trial violated the "narrowing" principle of the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution and his right to due process of law under the Fifth and Fourteenth Amendments.
The law governing sufficiency-of-the-evidence challenges is well established and applies both to convictions and special circumstance findings. (People v. Valdez (2006) 32 Cal.4th 73, 104 [8 Cal.Rptr.3d 271, 82 P.3d 296]; People v. Elliot (2005) 37 Cal.4th 453, 466 [35 Cal.Rptr.3d 759, 122 P.3d 968] (Elliot).) In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. (People v. Mincey (1992) 2 Cal.4th 408, 432 [6 Cal.Rptr.2d 822, 827 P.2d 388].) We neither reweigh the evidence nor reevaluate the credibility of witnesses. (People v. Lindberg (2008) 45 Cal.4th 1, 27 [82 Cal.Rptr.3d 323, 190 P.3d 664].) We presume in support of the judgment the existence of every fact the
(a) Sufficiency of the evidence to establish first degree murder by poison
Defendant contends he could not have been convicted of first degree murder by poison, because the jury found the poison-murder special circumstance "not true," and because Michelle, not defendant, administered "the fatal poison" and there is "no evidence" she intended to kill Arthur. We disagree. Reviewing the record in the light most favorable to the judgment, there is ample evidence to support defendant's first degree murder conviction on the basis of murder by poison.
The trial court instructed the jury pursuant to CALJIC No. 8.11 concerning implied malice, as follows: "Malice is implied when: [¶] 1. The killing resulted from an intentional act; [¶] 2. The natural consequences of the act are dangerous to human life; and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life."
The evidence presented at trial reasonably established the following sequence of events. On the morning of February 4, 1996, defendant directed Michelle to go to the store to purchase over-the-counter sleeping pills to give to Arthur.
In the joint interview, defendant altered his story several times and admitted lying to the detectives on numerous occasions. In evaluating the evidence pertaining to poisoning, the jury was not required to accept, and was entitled to reject, the claims that defendant administered the drugs to Arthur in an effort "to get him better," that defendant did not "know much" about the drugs, and that he "didn't think" about what effect the drugs would have on Arthur. To the contrary, the jury could have inferred exactly the opposite from defendant's remarks about killing Arthur, the acknowledgement that Vicodin and Valium made defendant feel "sleepy" and "numb," his claim that he halved or quartered the prescription pain pills before giving them to Arthur, and the admission by defendant that he "probably" killed Arthur by "[a]busing him and the medication and stuff like that." This evidence was sufficient for a reasonable jury to find that defendant deliberately administered the drugs to Arthur, and directed Michelle to do the same, with full knowledge that such conduct endangered Arthur's life and with conscious disregard for that life.
The evidence described above was sufficient for a reasonable jury to have found that defendant poisoned Arthur, or that he aided and abetted Michelle in poisoning Arthur, or that both occurred. Therefore, even assuming for purposes of argument that the sleeping pills administered by Michelle were the sole cause of Arthur's death, and that the additional drugs and torture were not concurrent causes, a reasonable jury still could have found defendant guilty of first degree murder by poison as an aider and abettor. In any event, there is sufficient evidence to support defendant's conviction of first degree murder on the theory of murder by poison.
(b) Sufficiency of the evidence to establish first degree murder by torture
Defendant claims the evidence was insufficient to support his conviction of first degree murder on a murder-by-torture theory. (See § 189 ["All murder which is perpetrated by means of ... torture ... is murder of the first degree."].) He does not contend that the evidence of his physical abuse of Arthur—which included burning Arthur's hand on the stove, giving him black eyes, hitting him with a two-by-four, violently shaking and banging Arthur's head against the wall, kicking him in the midsection, duct-taping his mouth and hands, smothering him, and hitting Arthur in the back of the head with a fireplace shovel—was insufficient to establish torture. Rather, defendant contends that even assuming he tortured Arthur, there is insufficient evidence that his torture was the "but for" cause of Arthur's death, which defendant attributes to the drugs. We disagree. There was sufficient evidence presented at trial from which a reasonable juror could have found that defendant's acts of physical violence and deliberate starvation of Arthur were concurrent causes of Arthur's death.
Defendant contends, however, that the jury could not properly consider starvation as an aspect of torture, because there was insufficient evidence that defendant deliberately withheld nourishment from Arthur. We disagree. Wilma S., Arthur's aunt, testified that when she returned Arthur to his parents in November 1995, he weighed 64 pounds and was in good health. In the weeks leading up to his death, neighbors reported that Arthur appeared thin and undernourished, despite the circumstance that the Jenningses had ample food in their home. When offered food or drink, Arthur "gulped" it down and asked for additional portions, suggesting he had not eaten recently. When he died on February 4, 1996, Arthur weighed only 35 pounds, having lost nearly half of his body weight in less than three months. Dr. Sheridan, who
(c) Sufficiency of the evidence to establish first degree premeditated murder
Defendant contends that he was improperly convicted of first degree premeditated murder, because there is "no evidence" he killed Arthur by means of a deliberate and premeditated act. (See § 189 ["All murder which is perpetrated ... by any other kind of willful, deliberate, and premeditated killing ... is murder of the first degree."].) As demonstrated above in response to defendant's claims related to murder by torture and murder by poison, however, there is sufficient evidence from which the jury reasonably could have found that defendant caused Arthur's death. Additionally, as demonstrated below in response to defendant's torture-murder special-circumstance claim, there is sufficient evidence from which the jury could have found that defendant intended to kill Arthur. The only remaining question for purposes of the present claim is whether there is sufficient evidence of deliberation and premeditation.
In the case before us, the evidence of preexisting motive clearly supports a finding of premeditation and deliberation. After returning to the Jennings residence, Arthur soon proved to be a difficult child with significant problems, and defendant and Michelle quickly found themselves ill-equipped to handle Arthur's "fits" and were unable to manage or control his behavior. Although Wilma S. clearly had said she would take Arthur back at any time, defendant did not pursue this option, nor did he pursue the course of giving Arthur up for adoption. Instead, he attempted to "discipline" Arthur by inflicting repeated physical punishment that left Arthur's body covered in bruises, and by purposefully withholding food to the extent that Arthur lost nearly half his body weight in less than three months. The situation quickly deteriorated to the point that defendant spoke about "getting rid of," "shooting," or otherwise "killing" Arthur.
The evidence of planning activity also supports a finding of premeditation and deliberation. On the day Arthur was killed but before he was dead, Michelle and Art, Sr., went out at defendant's behest to survey the mine shaft where Arthur later was found. Two days before Arthur's death, defendant and Michelle had driven around the desert looking for a place to dump Arthur's body. A few days before that, defendant devised the story he later would use to explain Arthur's disappearance, telling a neighbor that Arthur got up in the middle of the night and ran out into the desert, and that defendant and Michelle had spent three hours looking for Arthur before finding him hiding behind a bush. After killing Arthur, the Jenningses went to the sheriff's station with a similar story, claiming that Arthur had run away in the middle of the night. Moreover, in the days leading up to Arthur's death, defendant refused to add Arthur to the family's medical insurance policy, stating "he wouldn't be in the house long enough to need it."
Finally, the manner of killing supports the conclusion that Arthur's death was the result of preexisting thought and reflection rather than unconsidered or rash impulse. Arthur was systematically starved and continuously abused, and a potentially lethal dose of prescription and over-the-counter sedatives was deliberately administered. This conduct is entirely consistent with a preconceived design to kill, and the jury was not required to accept defendant's claims to the contrary.
In light of the foregoing, we conclude the evidence presented at trial was sufficient for a reasonable jury to have found that the killing of Arthur was
(d) Sufficiency of the evidence to establish the torture-murder special circumstance
Defendant claims there is insufficient evidence to support the jury's torture-murder special-circumstance finding. Reviewing the entire record in the light most favorable to the prosecution, we conclude a rational trier of fact could have found true beyond a reasonable doubt the essential elements of the torture-murder special-circumstance allegation.
Defendant, focusing entirely on Michelle's allegedly innocuous intent in giving Arthur the sleeping pills, argues there was insufficient evidence of his intent to kill. The relevant inquiry, however, is whether defendant harbored an intent to kill when he tortured Arthur. The nature of the torture inflicted upon Arthur—the continuous infliction of serious and possibly life-threatening physical injuries while deliberately and systematically starving Arthur to the point of emaciation—is sufficient to suggest that defendant had such intent. In evaluating the evidence regarding intent to kill, the jury was not required to credit, and was entitled to reject, defendant's repeated claims to the contrary. Defendant admitted that one of his last acts of torture—hitting Arthur on the back of the head with a shovel so hard that it caused a large, gaping wound—might have killed Arthur, suggesting this was his intent. Defendant also admitted he was "more than angry" that Arthur had witnessed defendant kissing a neighbor, and when asked by a detective, "You had to finish him off. True or not true?," defendant responded, "I guess true." The evidence further established that prior to the incident involving the shovel, defendant on more than one occasion spoke about killing Arthur, kept him off the
Finally, defendant argues that the torture-murder special circumstance is unconstitutional because the acts of torture are not required to be the sole or primary cause of the victim's death. As he acknowledges, however, we previously have rejected this argument. (Bemore, supra, 22 Cal.4th at p. 843.) We find no compelling reason to revisit the issue.
(e) Constitutional challenges to sufficiency of the evidence
Defendant claims that even if there is sufficient evidence to support his conviction for first degree murder, the conviction violates his rights under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. We conclude that the jury's first degree murder verdict did not violate any of defendant's constitutional rights.
2. Admission of out-of-court statements by Michelle Jennings
(a) Statements made to expert witness
Defendant claims that it was reversible error for the trial court to admit certain out-of-court statements that were made by his wife and codefendant, Michelle, during her interview with the clinical psychologist who testified on Michelle's behalf as an expert witness at trial. We disagree. Even assuming error, the admission of this evidence was harmless beyond a reasonable doubt in light of the record in this case.
(1) Factual background
Nancy Kaser-Boyd, a clinical psychologist who evaluated Michelle, testified as an expert witness in support of Michelle's defense that she lacked the specific intent to kill or torture Arthur. In the course of Kaser-Boyd's direct examination, after she had testified concerning Michelle's statements regarding defendant's spousal abuse but before recounting Michelle's description of Arthur's seizures, counsel for defendant objected to the admission of any testimony regarding what Michelle told Kaser-Boyd regarding defendant's actions or statements. This objection was based on Sixth Amendment confrontation grounds. (Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620] (Bruton); People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265] (Aranda).) Michelle's counsel countered that experts are allowed to base their opinion on hearsay and that this testimony therefore was admissible because Kaser-Boyd relied on the information in question in forming her opinion. The court overruled defendant's objection.
As is relevant to defendant's claim, Kaser-Boyd testified concerning Michelle's account of physical and sexual abuse that occurred during the earlier years of her relationship with defendant. When she was 14 years of age, Michelle ran away from home and went to stay with defendant, who was 29 at the time. Michelle said defendant was nice to her at the beginning of their relationship, but after about three or four months "he forced sexual attention on her and he also began to be physically violent with her." During a large portion of their time together, defendant worked as a truck driver and Michelle was with him on the road. She did not attend school and did not contact her parents, because she did not want to be turned in as a runaway. Michelle told Kaser-Boyd that the abuse continued: "She talked about being hit and slapped and punched, having her hair pulled, being choked on several occasions. Being battered until the point at which she told me she no longer—well, I will phrase that a different way. She always did what [defendant] said and then some of the battering eased up ... about the last two years before Arthur died."
Kaser-Boyd also testified concerning defendant's and Michelle's withholding food from Arthur as a form of discipline. Michelle told Kaser-Boyd "that [defendant] told her that hitting Arthur wasn't working and they needed to try something else, and that if they didn't feed him, maybe he would do the things that they were asking him to do." Michelle said "sometimes she went along with that, but there were other times when she agreed to sneak him food."
Finally, Kaser-Boyd testified concerning Michelle's statement that "[defendant] was talking about killing Arthur, shooting him in the head."
At the end of the direct examination of Kaser-Boyd, she gave her opinion, based in part upon her interviews with Michelle, that Michelle was fearful, felt helpless, had problems with impulse control, was socially isolated and distrustful, and suffered from dependent personality, posttraumatic stress, anxiety, and major depressive disorders. Kaser-Boyd also testified that in her opinion, the reason Michelle failed to protect Arthur was that, as a result of the extreme child abuse she herself had suffered, she lacked a good role model to follow.
We need not resolve the constitutional claims raised by defendant, because even assuming it was error under Crawford or Aranda and Bruton to admit the disputed statements made by Michelle to Kaser-Boyd, such error was harmless beyond a reasonable doubt. (People v. Jenkins (2000) 22 Cal.4th 900, 1015-1016 [95 Cal.Rptr.2d 377, 997 P.2d 1044] [finding it unnecessary to examine a "complex constitutional question," because any error was harmless]; see also Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 [89 L.Ed.2d 674, 106 S.Ct. 1431] (Van Arsdall) [an otherwise valid conviction should not be set aside for confrontation clause violations if, on the whole record, the constitutional error was harmless beyond a reasonable doubt]; Harrington v. California (1969) 395 U.S. 250, 253-254 [23 L.Ed.2d 284, 89 S.Ct. 1726] (Harrington) [Aranda-Bruton error subject to harmless error analysis under the rule of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman)].)
Defendant focuses almost exclusively on the alleged prejudice he suffered from the admission of Michelle's statement to Kaser-Boyd concerning defendant's having withheld food from Arthur as a form of punishment, which he contends is the only evidence indicating that he deliberately starved Arthur. He argues that without this statement, there is insufficient evidence to establish that defendant tortured Arthur by starving him, that without proof of torture by starvation, there is insufficient evidence to support the guilty verdict and special circumstance finding, and hence the judgment must be reversed.
This argument is contradicted by the record. There was overwhelming circumstantial evidence apart from Michelle's statement, and described in detail above, from which a reasonable jury could have found that the Jenningses deliberately starved Arthur. This includes evidence establishing that in less than three months, Arthur deteriorated from a healthy 64 pounds to a severely emaciated 35 pounds, which Dr. Sheridan testified was "a dramatic weight loss over a short period of time"; that at the time of his death, Arthur had no food in his stomach, almost no body fat—including in
Defendant's argument, moreover, ignores the circumstance that his entire course of conduct, and not just the act of starvation, constituted torture. There was overwhelming direct and circumstantial evidence establishing that, in addition to purposefully depriving Arthur of food for an extended period of time, defendant also brutally and continuously physically abused Arthur. This includes evidence demonstrating that defendant burned Arthur's hand on the stove, gave him black eyes on multiple occasions, hit him with a two-by-four, violently shook and banged Arthur's head against the wall, kicked him in the midsection, duct-taped his mouth and hands, attempted to smother him, and hit Arthur on the back of the head with a fireplace shovel shortly before he died.
Defendant's trial strategy further contradicts his claim that he was prejudiced by the admission of Michelle's statement concerning defendant's withholding of food as punishment. Defendant did not dispute that he starved and physically abused Arthur; instead his defense was that he intended only to discipline the child and did not intend to kill him. In support of this argument, defense counsel specifically alluded to Michelle's statement about withholding food from Arthur as a form of punishment: "And when the child is misbehaving according to [defendant]—I mean, see, in order to determine state of mind, intent, you've got to get into this. So I'm using `misbehaving' in quotes, because that's what [defendant] is perceiving, the child is misbehaving. What do you do? Well—based upon his personality disorders and his upbringing, what do you do? Well, that's clear what you do, and that's what happened to the child. That's what you do. You spank. If that doesn't work, you beat. If he's peeing, pooping, whatever, you withhold food. When nothing else works, you—you heard that Michelle said he said, [defendant] said, `I'm going to,' you know, `end this now,' and he puts the kid's hand on the flame. Okay? He's upping the ante to try and—he keeps battering this little child to try to force him into compliance to behave, to behave. And that's awful child abuse without, you know, any excuse, and he should be convicted of it. The difference, the difference, is, you know, for all those other crimes, it doesn't require a premeditated, malice intent to kill, a specific intent to kill for those other crimes. Okay? That's the difference." If anything, the exclusion of Michelle's statement concerning defendant's withholding of food as punishment would have harmed defendant, as it was the only direct evidence supporting his defense.
Alternatively, defendant claims the admission of Michelle's statement to Kaser-Boyd concerning defendant's withholding of food violated the Evidence Code prohibition against hearsay evidence. (See Evid. Code, § 1200.) This claim was forfeited, however, by defendant's failure to make a hearsay objection at trial.
Finally, because we conclude that defendant suffered no prejudice from the admission of Michelle's statements to Kaser-Boyd regarding defendant's withholding of food from Arthur, we also reject defendant's related claim that the judgment must be reversed on the grounds that the trial court erred in denying his pretrial severance motion and that defendant suffered "important prejudice" and "gross unfairness" because of the joint trial and the resulting admission of this statement.
With respect to Michelle's statements to Kaser-Boyd regarding spousal abuse, Arthur's "tantrums," and defendant's wanting to shoot and kill Arthur,
(b) Statements made during joint interview with detectives
Defendant also claims that the trial court committed reversible error under Crawford, as well as under Aranda and Bruton, by admitting numerous statements made by Michelle during the joint interview the detectives conducted with defendant and Michelle. As we explain below, because the statements qualify as adoptive admissions, their admission into evidence did not violate defendant's Sixth Amendment confrontation rights under Crawford, or under Aranda and Bruton. Even assuming for purposes of argument that it was error to admit some of Michelle's statements from the joint interview as adoptive admissions, any presumed error was harmless beyond a reasonable doubt in the context of the entire joint interview and the record as a whole.
(1) Factual background
After obtaining separate statements from defendant and Michelle and being led to Arthur's body in the mine shaft, the detectives decided to interrogate the two suspects together. At the outset of the joint interview, the detectives obtained Miranda waivers (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]) and told defendant and Michelle that the detectives wanted to explore inconsistencies between the separate statements made by the suspects.
The detectives commenced by focusing on the physical abuse inflicted on the victim, asking defendant about his separate statement that Michelle began "beating on" Arthur shortly after the child arrived at their home and that Michelle was more abusive than defendant, who merely disciplined Arthur with spankings and "time-outs." Michelle interjected to deny that she ever hurt Arthur, claiming that all she did was spank him. Defendant responded that both he and Michelle probably were "overzealous" in inflicting punishment.
Later in the interview, Michelle accused defendant of dragging Arthur home, throwing him onto the porch, and bruising his forehead. Defendant conceded that on one occasion he had dragged Arthur home, but claimed Arthur hit his head after tripping over a step on the porch.
Michelle subsequently admitted that she disciplined Arthur by spanking him, sending him to the corner, and "smack[ing] him" to bring him out of his
Michelle further accused defendant of knocking Arthur down with defendant's elbow, kicking him in the midsection, making Arthur hold a two-by-four over his head and knocking him down when he dropped the beam, and holding his hand over the stove and burning it. At first, defendant reluctantly admitted committing some of these abuses, conceding that he was "abusive" and that "most" of Arthur's injuries were caused by defendant. But when Michelle pleaded with defendant "[p]lease tell them" and "[d]on't do this to me," defendant admitted to all of the abuse Michelle had described—to "everything she's saying." Nevertheless, defendant continued to assert that Michelle also was abusive, although not "overly" so, and that some of her conduct may have contributed to Arthur's injuries, but only in a "very minor" way. Later in the interview, defendant specifically admitted burning Arthur's hand on the stove and pushing him to the ground.
Defendant also admitted that during one of Arthur's seizures that took place a few days before he died, defendant shook Arthur so hard that Arthur's head hit the wall. When Michelle tried to stop defendant, defendant pushed her away. Defendant stated he "caught [his] senses" and only stopped when Michelle began "screaming" that defendant was about to kill Arthur.
Defendant further admitted placing a sock in Arthur's mouth and also using duct tape to silence Arthur, and conceded he may have used duct tape to bind Arthur's hands. Defendant claimed he took these actions to keep Arthur from biting his tongue or gouging himself with his fingers during his seizures.
The detectives next confronted defendant regarding his prior statement that he and Michelle, on more than one occasion, had spoken about "killing" or "get[ting] rid of" Arthur. At that point, Michelle interrupted, stating that she never wanted to kill Arthur and that she told defendant they could not take such action. Michelle claimed she proposed sending Arthur back to defendant's sister, Wilma, or leaving him with his paternal grandfather, Art, Sr. She asked defendant, "Did I kill Arthur? Please. Did I kill him?," to which defendant responded, "No." When the detectives then asked defendant how he planned to kill Arthur, he responded that he did not know. Michelle again interjected, volunteering that defendant talked about shooting Arthur, but that she had responded negatively, stating they should send him to his aunt or grandfather. Defendant admitted that Michelle's account was accurate. He further conceded that he had spoken about killing Arthur, but claimed he had changed his mind, did not mean to kill Arthur, and did not want Arthur to die.
The detectives next addressed the efforts to conceal Arthur's death, asking defendant about his prior statements that Michelle had dug the original hole for the body and subsequently had moved the body to the mine shaft. Michelle turned to defendant, asking him, "why are you doing this to me," and pleading for defendant to tell the detectives who had done these things. Defendant eventually admitted that he did "all of it," conceding that he had moved the body to the mine shaft because he was afraid that someone would find it, and that he had planned to throw old tires on top of the body to hide it. Defendant and Michelle also admitted having cleaned up Arthur's bedroom after disposing of his body. Defendant related that there had been blood on the walls, possibly on the floor as well, and admitted that the blood may have been from when he shook Arthur and Arthur's head hit the wall. He also admitted to burning Arthur's bed sheets and the gloves used to bury him, and hiding Arthur's bloody clothes and glasses in a trash dumpster. Defendant said, "I know what I [did] is wrong" and "I know I'm going to have to pay for this."
Michelle claimed she wanted to report Arthur's death, but defendant would not let her, claiming they would go to jail for child abuse. When she asked defendant, "Why didn't you let me report it when I told you I was going to?," defendant replied, "Because I was scared. I was scared of losing everything that we have." When Michelle further claimed it was defendant's idea to bury Arthur, defendant confirmed Michelle "went along with everything I said." Michelle indicated she acceded to defendant out of fear, because defendant once told her he would kill her if she caused him to be arrested. Defendant admitted making that statement, but claimed that was "a long time ago" and that he did not mean it. Michelle also indicated that defendant threatened to hurt her and baby Pearl if she told anyone about what had happened to Arthur, and that defendant had brought a gun when they went to move Arthur's body. Defendant denied that allegation, claiming, "what I said was,
At one point, defendant volunteered that he and Michelle had administered prescription drugs to Arthur, such as Vicodin, in order to "heal him up" so they could send him back to Wilma. The detectives then inquired concerning defendant's prior statement that Michelle had administered medication to Arthur, that defendant had attempted to stop her by hiding the medication, but that she had found it and continued to administer the medication to Arthur. Defendant admitted that this story was not true, that they both gave Arthur medication, and that he had told Michelle to do so because he thought it would help make Arthur better. Although claiming he did not consider what the pills would do to a child who weighed 35 pounds, defendant also claimed to have cut the pills in halves or quarters. For her part, Michelle admitted that, in order to protect defendant, she previously had lied to the detectives about administering several pills to Arthur. Michelle claimed she actually gave Arthur only one Valium that defendant instructed her to administer to Arthur to relax his muscle spasms, and two sleeping pills at defendant's direction in order to put Arthur to sleep.
The detectives inquired why defendant told Michelle that the couple did not need to list Arthur on their medical insurance policy because Arthur "wouldn't be in the house long enough to need it." Defendant claimed he "had a change of heart about killing [Arthur]" and was referring to the idea of returning Arthur to Wilma.
The detectives also confronted defendant concerning his prior assertion that Michelle had hit Arthur with a fireplace shovel on the day he died. Michelle again objected, asking defendant whether that was true. Defendant admitted that was a lie, asserting that no one had hit Arthur with a shovel but instead Arthur had hit his head on the kitchen table. Defendant explained that he did not tell Michelle about this incident, because he was afraid to do so. After the detectives persisted, defendant again changed his story, claiming that he was holding the shovel when he sat Arthur down against a wall and that Arthur landed against the shovel. The detectives also refused to believe this story and, after trying to explain how Arthur fell on the shovel, defendant eventually said he could not remember how Arthur hit his head.
When the detectives returned, they immediately asked who had killed Arthur. Both defendant and Michelle initially denied killing Arthur, but defendant eventually admitted, "I probably did" by "abusing him and [giving him] the medication and stuff like that," but again claimed he did not intend to kill Arthur.
The detectives then resumed questioning the two suspects concerning the shovel incident. Defendant finally admitted that a female neighbor, Cora Grein, had been in the house while Michelle was out with Art, Sr. At this time, one of the detectives took Michelle outside again. In her absence, defendant admitted that Arthur saw him kissing Grein. Defendant claimed that Grein became angry and hit Arthur with the shovel in order to keep Arthur from telling her husband. Defendant claimed that he kicked Grein out of the trailer and tried to help Arthur by cleaning the wound and giving him some drugs, but that Arthur died within an hour.
Under further questioning, however, defendant's story changed again, and he finally confessed that he hit Arthur with the shovel after Arthur saw him kissing Grein and admitted that he then believed he "had to finish [Arthur] off." Nevertheless, defendant claimed he did not intend to kill Arthur and, indeed, had attempted to save Arthur's life by administering CPR, because defendant had experienced a "change of heart." Defendant further admitted that he caused all the bruises on Arthur's body, that Michelle never beat Arthur, that defendant was abusive toward Michelle and coerced her into going along with his actions, that Michelle did not have "much" involvement, and that he was responsible for Arthur's death.
After defendant's confession, Michelle was brought back into the room and defendant told her about hitting Arthur in the head with a shovel. Michelle
Prior to trial, defendant moved to sever his trial from Michelle's trial on the grounds of incompatible defenses and Aranda-Bruton issues. (See Bruton, supra, 391 U.S. 123; Aranda, supra, 63 Cal.2d 518.) When the motion was discussed at a June 1997 status conference, the prosecutor told the court that his intent at that point was to introduce only the joint interview of the two codefendants with the detectives and not defendant's and Michelle's statements from their separate interviews with the officers. At a February 1998 hearing on the motion, defendant argued that the alleged "admissions" from the joint interview were inherently untrustworthy under the facts presented and that a joint trial would violate defendant's confrontation rights under the Sixth Amendment of the United States Constitution as interpreted by the Aranda and Bruton decisions. The trial court noted, and defendant apparently conceded, that the joint interview would be admissible at any separate trial. The prosecutor also argued that the joint interview consisted of a combination of adoptive admissions, declarations against interest, and confessions, all of which were admissible. At a March 1998 hearing, the trial court denied defendant's severance motion, concluding that the joint interview contained party admissions as well as adoptive admissions, all of which were trustworthy.
During the trial, before the videotape of the joint interview was shown to the jury, defendant renewed his continuing objection to its admission. The court overruled the objection, incorporating its earlier ruling. The prosecutor then played the entire joint interview for the jury.
It is undisputed that defendant's own statements made during the joint interview were admissible against him, as admissions of a party, under Evidence Code section 1220. (See People v. Horning (2004) 34 Cal.4th 871, 898, fn. 5 [22 Cal.Rptr.3d 305, 102 P.3d 228] ["section 1220 covers all statements of a party, whether or not they might otherwise be characterized as admissions" (italics omitted)].) Defendant contends, however, that the concurrent admission of numerous "essential" statements made by Michelle during the joint interview violated his right to confrontation under Crawford and the Aranda-Bruton line of cases. (See Crawford, supra, 541 U.S. 36; Bruton, supra, 391 U.S. 123; Aranda, supra, 63 Cal.2d 518.) We conclude there was
"Moreover, it is well settled that an adoptive admission can be admitted into evidence without violating the Sixth Amendment right to confrontation `on the ground that "once the defendant has expressly or impliedly adopted the statements of another, the statements become his own admissions, and are admissible on that basis as a well-recognized exception to the hearsay rule."' [Citation.]" (People v. Cruz (2008) 44 Cal.4th 636, 672 [80 Cal.Rptr.3d 126, 187 P.3d 970].) "Being deemed the defendant's own admissions, we are no longer concerned with the veracity or credibility of the original declarant.
With these principles in mind, we turn to defendant's claim that the court erred in admitting several statements made by Michelle during the joint interview. Michelle's disputed statements can be grouped into three general categories that cover all of defendant's allegations of error in this respect. Because Michelle repeated many statements during the course of the interview, some may fall into more than one category, although they are listed below only once.
The first category consists of statements, made by Michelle during the joint interview, that defendant expressly admitted or accepted at the time the statement was made. These statements are clearly admissible as adoptive admissions and include the following: that Michelle did not kill Arthur; that Michelle did not hit Arthur on the head with the fireplace shovel; that defendant had not told Michelle about the shovel incident; that defendant talked about shooting Arthur in the head but Michelle told him not to kill Arthur, that they should return Arthur to defendant's sister or give him to defendant's father; that defendant, not Michelle, dug the hole where they first
The second category consists of statements, made by Michelle during the joint interview, that defendant failed to deny or to which he furnished an equivocal or evasive response at the time the statement was made. With respect to these statements, we observe that defendant waived his right to remain silent at the beginning of the interview and never indicated an intention to invoke that right at any point during the interview. In fact, defendant continuously made new admissions throughout the interview. Additionally, on numerous occasions during the interview, defendant clearly voiced disagreement with statements made by Michelle. For example, defendant repeatedly denied ever threatening Michelle with a gun.
The third and smallest category are statements made by Michelle during the joint interview that defendant initially denied at the time the statements were made. An examination of the entire interview reveals, however, that when the same or similar statements were repeated later on during the interview, defendant admitted the substance of these statements as well. Although, for obvious reasons, a statement that is expressly denied by a defendant does not qualify as an adoptive admission, we conclude that any error from the admission of such statements in this case was harmless beyond a reasonable doubt, because these statements were consistent with, and cumulative to, other admissions made by defendant during the course of the interview, and thus could not have damaged defendant's case more than his own admissions. (Accord, People v. Davis (2009) 46 Cal.4th 539, 620 [94 Cal.Rptr.3d 322, 208 P.3d 78] [even assuming there was a Crawford violation in allowing the prosecution to introduce hearsay statements describing defendant's involvement in previous robberies, any error was harmless beyond a reasonable doubt, because the prosecution also introduced defendant's admissions to the commission of each of the robberies].) For example, Michelle repeatedly accused defendant of having lied to the detectives in his separate interview about things she was supposed to have said or done, and pleaded with defendant, "Please ... don't drag me down." Defendant at first responded, "I'm not trying to drag anybody down," but during the course of the interview admitted to having lied to the detectives in several instances about Michelle's involvement in the abuse suffered by Arthur, in his death, and in the efforts to conceal his death. Defendant also initially denied threatening to harm Michelle or Pearl in the event Michelle ever told anyone what had happened to Arthur or did not go along with the efforts to conceal Arthur's death, but defendant later conceded, among other things, that "I told
Defendant alternatively argues that Michelle's statements cannot constitute adoptive admissions, because defendant's conduct at most demonstrates that he was taking the blame for Arthur's death in order to spare Michelle. In this respect, we agree with the People that defendant benefited from the jury's having seen the entire interview. If the jury had heard only defendant's admissions, it would not have witnessed Michelle's behavior and her efforts to have defendant minimize her role in Arthur's abuse and death and in the efforts to conceal his death.
3. Admission of out-of-court statements made by Mary Dobson
Defendant asserts a due process violation occurred based upon the allegedly unfair impact of Kaser-Boyd's testimony concerning an out-of-court statement made by Mary Dobson, a neighbor of the Jenningses', to investigators. This statement related Dobson's view "that Martin Jennings controlled Michelle Jennings." Defense counsel's objection to the admission of this evidence on the basis of the Sixth Amendment confrontation clause of the United States Constitution was overruled. Defendant claims the trial court erred prejudicially, because Dobson's secondhand or thirdhand hearsay was contrary to other evidence that suggested Michelle dominated defendant. We conclude any claimed error was harmless beyond a reasonable doubt. Dobson's statement was cumulative to, and consistent with, admissions made by defendant during the joint interview, from which a reasonable jury could have concluded that defendant controlled Michelle. For example, defendant admitted that he physically threatened Michelle and had threatened to kill her in the past if she ever did anything that sent him to jail, that he manipulated Michelle with love as well as with fear and intimidation, that he was afraid that without having Michelle "under [his] thumb or without intimidating her or putting fear in her ... she would tell on [him]," and that he was abusive toward Michelle and coerced her into going along with his actions. The single statement attributed to Dobson could not have damaged defendant's case more than his own admissions.
4. Alleged instructional errors
(a) Failure to instruct the jury concerning accessory liability pursuant to a modified version of CALJIC No. 6.40
Defendant claims the trial court erred in failing to instruct the jury on its own motion concerning accessory liability pursuant to a modified version of
(b) Instruction pursuant to CALJIC No. 3.41 concerning concurrent causation, and failure to instruct pursuant to CALJIC No. 3.40 concerning "but for" causation
Defendant argues that the trial court failed to instruct the jury properly concerning causation, and that this failure requires reversal. Defendant further contends the jury instructions concerning causation violated his rights under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. We conclude this claim is without merit. As demonstrated below, the instructions given in this case correctly stated the law pertaining to causation, were responsive to the evidence, and fully equipped the jury to address the issues presented.
Over defense objection, the trial court instructed the jury concerning concurrent causation pursuant to CALJIC No. 3.41, as follows: "There may be more than one cause of the death. When the conduct of two or more persons contributes concurrently as a cause of the death, the conduct of each is a cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the death and acted with another cause to produce the death. [¶] If you find that the defendant's conduct was a cause of death to another person, then it is no defense that the conduct of some other person contributed to the death."
Defendant argues this instruction incorrectly stated the law concerning causation because it informed the jury that if the torture that defendant committed merely was "operative at the moment of" Arthur's death, he was guilty of first degree murder even if the torture did not cause the death. The challenged instruction, however, "is not reasonably susceptible to defendant's interpretation." (People v. Jackson (1996) 13 Cal.4th 1164, 1221-1222, fn. 11 [56 Cal.Rptr.2d 49, 920 P.2d 1254].) CALJIC No. 3.41 informed the jury (1) that "[t]here may be more than one cause of the death," (2) that "[w]hen the conduct of two or more persons contributes concurrently as the cause of the death, the conduct of each is a [proximate] cause of the death if that conduct was also a substantial factor contributing to the result" (italics added), and (3) that a "cause is concurrent if it was operative at the time of the death and acted with another cause to produce the death." This instruction did not allow the jury to convict defendant of first degree murder solely on the basis that the torture committed by defendant was "operative at the
We note that the jury was instructed pursuant to CALJIC No. 8.55, as follows: "To constitute murder or manslaughter there must be, in addition to the death of a human being, an unlawful act which was a cause of that death."
In the present case, the prosecution argued that the torture inflicted by defendant was an intentional, direct, substantial, and contributing cause of Arthur's death. Defendant's main defenses were that he lacked the specific intent to kill Arthur and that the drugs were the primary cause of death. The causation issue, therefore, was not whether the torture committed by defendant set in motion a chain of events that led to Arthur's death, or whether giving Arthur a fatal combination of pills was a natural and probable consequence of the torture. The causation issue was whether defendant's acts of torture, consisting of severe and chronic physical abuse coupled with deliberate and prolonged deprivation of nourishment, were a concurrent cause of Arthur's death along with the drugs. The evidence at trial thus necessitated instructing the jury pursuant to CALJIC No. 3.41, and did not prompt a duty to instruct on the court's own motion pursuant to CALJIC No. 3.40.
(c) Failure to instruct concerning the "defense" of accident pursuant to CALJIC No. 4.45, and concerning criminal negligence pursuant to CALJIC No. 3.36
Defendant claims that the trial court committed reversible error by failing to instruct the jury pursuant to CALJIC No. 4.45, concerning the "complete defense" of accident, in violation his rights under the Fifth, Sixth, and Eighth Amendments of the United States Constitution.
Generally, the claim that a homicide was committed through misfortune or by accident "amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime." (People v. Lara (1996) 44 Cal.App.4th 102, 110 [51 Cal.Rptr.2d 402].) In People v. Saille (1991) 54 Cal.3d 1103 [2 Cal.Rptr.2d 364, 820 P.2d 588] (Saille), we held that evidence "proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt" may, but only upon request, justify the giving of a pinpoint instruction that "does not
In the present case, the claim that Arthur was killed by accident through an overdose of sleeping pills amounts to a claim that defendant and Michelle lacked the intent to kill necessary for first degree premeditated murder and the torture-murder and murder-by-poison special circumstances. As such, instructing the jury pursuant to CALJIC No. 4.45 would have constituted a pinpoint instruction highlighting a defense theory that attempted to raise a doubt concerning an element (intent) of a crime that the prosecution must prove beyond a reasonable doubt. The burden therefore was upon defendant to request that the jury be instructed pursuant to CALJIC No. 4.45, and his failure to do so forfeited any claim of error in this regard. (See, e.g., Gutierrez, supra, 45 Cal.4th at p. 824 [the court has no duty to give a pinpoint instruction on its own motion concerning third party culpability to support a defense theory that such a party committed the murder]; Saille, supra, 54 Cal.3d at p. 1120 [the court has no duty to give, on its own motion, a voluntary-intoxication instruction relating the evidence of the defendant's intoxication to an element of a crime, such as premeditation and deliberation].)
(d) Omission of the actus reus element, for torture-murder special circumstance, from CALJIC No. 8.81.18
Defendant claims we must set aside the torture-murder special-circumstance finding, because the trial court erred by deleting certain language from CALJIC No. 8.81.18, thereby omitting the requirement that the jury find that defendant did in fact inflict an act of torture upon Arthur. Although the modification was agreed to by counsel and was recommended by the Use Note to the instruction, it had the effect of eliminating an element of the special circumstance. This omission, however, did not prejudice defendant.
The trial court instructed the jury concerning the elements of the special circumstance of murder involving the infliction of torture, pursuant to a revised version of CALJIC No. 8.81.18, as follows: "To find that the special circumstance referred to in these instructions as murder involving infliction of torture is true, each of the following facts must be proved: [¶] 1. The murder was intentional; and [¶] 2. The defendant intended to inflict extreme cruel physical pain and suffering upon a living human being for the purpose of
This omission is directly attributable to the Use Note accompanying CALJIC 8.81.18, which states: "Torture murders committed on or before June 5, 1990 will require proof and instruction on element number 3. However, for crimes committed after that date, delete element number 3." The Use Note, in turn, appears to reflect a misunderstanding of the effect of Proposition 115, passed by the voters on June 5, 1990, upon the torture-murder special-circumstance statute.
The applicable statute provides that the special circumstance applies if "[t]he murder was intentional and involved the infliction of torture." (§ 190.2, subd. (a)(18).) Prior to June 6, 1990, the statute further required "proof of the infliction of extreme physical pain no matter how long its duration." Proposition 115, however, eliminated this language. Thus, for all homicides committed after June 6, 1990, there is no requirement under the torture-murder special circumstance that the victim actually suffer pain. (See People v. Crittenden (1994) 9 Cal.4th 83, 140 & fn. 14 [36 Cal.Rptr.2d 474, 885 P.2d 887].) Proposition 115 had no effect, however, upon the basic actus reus required for the special circumstance—that the murder involve the infliction of torture.
"When an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner. [Citations.]" (People v. Wilson (2008) 44 Cal.4th 758, 803-804 [80 Cal.Rptr.3d 211, 187 P.3d 1041].) In the present case, the totality of the jury instructions clearly communicated that in order to find the torture-murder special circumstance true, the jury had to find that the murder involved an act or acts of torture. For example, the jury was instructed that the information alleged that the "murder was intentional and involved the infliction of torture within the meaning of Penal Code section 190.2, [subdivision] (a), subparagraph (18)." (Italics added.) In an introductory instruction pertaining to the special circumstances, the trial court stated: "If you find a defendant in this case guilty of murder of the first degree, you must then determine if one or more of the following circumstances are true or not true. And the special circumstances are, one, that the defendant intentionally killed the victim by the administration of poison, and then the other is the murder was intentional and involved the infliction of torture." The written version of CALJIC No. 8.81.18 given to the jury included a caption, "Special Circumstances— Murder Involving: Infliction of Torture." The instructions concerning first degree murder by torture and the crime of torture further confirmed an actus reus requirement. Pursuant to CALJIC No. 8.24, the jury was instructed that in order to find murder by torture, it had to find, among other things, "acts or actions taken by the perpetrator to inflict extreme and prolonged pain." Pursuant to CALJIC No. 9.90, the jury was instructed that "[e]very person who, with the intent to cause cruel or extreme pain and suffering for the purpose of persuasion, or for any sadistic purpose, inflicts great bodily injury on the person of another is guilty of the crime of torture." No reasonable juror could have misunderstood these instructions to mean that a murder involving the infliction of torture could lack an act or acts of torture.
Removing an element of the crime from the jury's consideration also will be deemed harmless when the defendant concedes or admits that element. (People v. Flood (1998) 18 Cal.4th 470, 504 [76 Cal.Rptr.2d 180, 957 P.2d 869].) In the joint interview with the detectives, defendant admitted having inflicted serious physical injuries upon Arthur on several occasions. At trial, defense counsel did not attempt to argue to the jury that Arthur had not been
Finally, at no time was it suggested to the jury that the torture-murder special circumstance could be established without first proving an act of torture. To the contrary, the prosecutor's closing argument confirmed that the torture-murder special circumstance required the infliction of an act or acts of torture: "If you find a first degree murder, and only if you find a first degree murder, then you look to the two special circumstances, and that's that the murder was intentional and done with either poison or involved torture. And I say involved torture. It doesn't imply torturous acts killed the child but they are a cause.... To find a special circumstance true, you have to find there was an intent to kill coupled with the poison or coupled with the torture. That's the difference." (See People v. Wade (1988) 44 Cal.3d 975, 994 [244 Cal.Rptr. 905, 750 P.2d 794] [the jury was not misled by omission of the intent-to-torture element in the torture-murder special-circumstance instruction, in part because the prosecution specifically explained to the jury that the special circumstance required an intent to kill].)
In light of these circumstances, we are satisfied beyond a reasonable doubt that the trial court's error in omitting the actus reus requirement from the torture-murder special-circumstance instruction did not contribute to the jury's true finding on this issue. (People v. Mayfield, supra, 14 Cal.4th at p. 774 ["`To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.]"].)
(e) Failure to give unanimity instruction for torture-murder special circumstance
Defendant claims the trial court failed to instruct the jury that it had to find unanimously beyond a reasonable doubt that defendant committed a particular act or acts of torture with the requisite intent, in order to find the torture-murder special circumstance true, and that this failure violated his federal constitutional right to a jury trial on each element of the charge.
5. Jury's middeliberation question regarding torture
Defendant claims he was denied his constitutional and statutory right to be present while the court and counsel discussed how to respond to the jury's guilt-phase question as to whether starvation could "be construed as extreme physical pain under the legal definition of torture." As discussed below, because defendant had no right to be present during these informal discussions, we conclude this claim is without merit. Defendant further argues that the court substantively erred in responding to the jury's question. We conclude defendant waived this claim by consenting to the response given by the court to the inquiry. Even if the claim were not waived, we would conclude it lacks merit.
(a) Factual background
After the jury had been deliberating for several days, it sent the following question to the court: "Can starvation be construed as extreme physical pain
Approximately one hour after the court sent its answer to the jury, the jury alerted the court that it was unable to reach a verdict concerning the torture-murder special circumstance with respect to Michelle. The jury then returned its verdicts on the substantive crimes and the remaining special circumstance allegations, including a true finding on the torture-murder special circumstance with respect to defendant.
With these principles in mind, we conclude that defendant did not have a constitutional or statutory right to be personally present during the in-chambers discussion regarding how to respond to the jury's question concerning whether "starvation [can] be construed as extreme physical pain under [the] legal definition of torture." (Italics added.) The formulation of an appropriate response to this question was a legal matter, and, as noted, a defendant does not have the right to be personally present during proceedings, held in-chambers and outside of the jury's presence, concerning questions of law. (Waidla, supra, 22 Cal.4th at p. 742.)
Fisher v. Roe (9th Cir. 2001) 263 F.3d 906, cited by defendant in support of his claim, is inapposite. There, the United States Court of Appeals for the
We additionally note that defendant's right to be present during the discussion regarding the jury's question never was affirmatively asserted, nor was any objection posed to his absence. "[T]he fact that counsel did not think defendant['s] presence was necessary strongly indicates that [his] presence did not, in fact, bear ... a substantial relation" to the fullness of his opportunity to defend. (People v. Cleveland (2004) 32 Cal.4th 704, 741 [11 Cal.Rptr.3d 236, 86 P.3d 302].) Moreover, before any response was provided to the jury, the jury's question and the proposed response were read in open court with defendant present, thus affording defendant ample opportunity to raise any issue or concern. (See Cole, supra, 33 Cal.4th at p. 1232 ["when defendant arrived during the in-court hearing, the court summarized that it was currently hearing a defense continuance motion" and "[p]resumably defendant could have given the court or counsel any information he had at that time"].)
Defendant also claims the trial court's response to the jury's question was erroneous, because starvation cannot constitute torture under section 190.2, subdivision (a)(18), as a matter of law and even if it could, the court should have instructed the jury that the prosecution had to prove beyond a reasonable doubt that the acts of starvation were capable of causing extreme physical pain. Any claim of error with respect to the trial court's response to the jury's question has been waived, however, because defense counsel both participated in the formulation of a response and affirmatively approved of the response ultimately given. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [36 Cal.Rptr.2d 235, 885 P.2d 1] [claim of error waived when defendant both suggested and consented to the responses given by the court to the jury's questions]; People v. Bohana (2000) 84 Cal.App.4th 360, 373 [100 Cal.Rptr.2d 845] [same].) Even if the claim were not waived, we would conclude it is without merit.
By contrast, the argument now made by defendant was considered and rejected in People v. Lewis (2004) 120 Cal.App.4th 882, 887-888 [16 Cal.Rptr.3d 498] in an analogous context. In that case, the People argued that "battery is not a lesser included offense of torture because torture can be committed without touching, force, or violence, which are required elements of battery. For example, torture exists not only where there is direct infliction of injury, but also where injury results from enforced deprivation, such as withholding food and water, causing starvation." (Id. at p. 887, italics added.) The court agreed: "The statutory definition of torture does not require a direct use of touching, physical force, or violence, but instead is satisfied if the defendant, directly or indirectly, inflicts great bodily injury on the victim. Thus a defendant may commit torture without necessarily committing a battery." (Id. at p. 888, italics added.)
Second, defendant asserts that the act of starvation cannot constitute torture as a matter of law, because it is incapable of causing extreme physical pain.
We further reject defendant's contention that the trial court was required, in its response to the jury's question, to instruct the jury that the prosecution had to prove beyond a reasonable doubt that the acts of starvation were capable of causing extreme physical pain. The jury properly was instructed concerning the prosecution's burden of proof pursuant to CALJIC No. 2.90 (Presumption of Innocence—Reasonable Doubt—Burden of Proof)
B. Penalty Phase Issues
1. Intracase proportionality review.
Defendant's sentence of death in this case is not disproportionate to his personal culpability in light of the evidence that defendant intended to kill Arthur and that the torture inflicted by defendant on his five-year-old son—violently abusing the child and systematically starving him to the point of emaciation—was a concurrent cause of Arthur's death. The evidence refutes defendant's contention that the death sentence is disproportionate.
2. Reduction of sentence
3. Challenges to California's death penalty scheme
Defendant raises a number of challenges to the constitutionality of California's death penalty scheme, based upon the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. As defendant acknowledges, we have considered and rejected these contentions in prior cases. Defendant presents no persuasive reason in the present case to reconsider the conclusions we previously reached. We therefore adhere to those decisions as follows.
Capital punishment is not per se unconstitutional in all cases. (E.g., People v. Moon (2005) 37 Cal.4th 1, 48 [32 Cal.Rptr.3d 894, 117 P.3d 591] (Moon).) Nor does the death penalty constitute cruel and unusual punishment in violation of the Eighth Amendment. (E.g., People v. Fairbank (1997) 16 Cal.4th 1223, 1255 [69 Cal.Rptr.2d 784, 947 P.2d 1321] (Fairbank).)
Defendant contends that the Hovey voir dire procedure (Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301]), by which prospective jurors are asked individually about their views concerning the death penalty and may be excused if they would not vote to impose the death penalty under any circumstances, violated his rights under the state and federal Constitutions to a fair and impartial jury and to a jury reflecting a fair cross-section of the community. As a threshold matter, the People argue this
Section 190.2 is not impermissibly overbroad in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. Specifically, the various special circumstances are not so numerous as to fail to perform the constitutionally required narrowing function, and the special circumstances are not unduly expansive, either on their face or as interpreted by this court. (E.g., People v. Jenkins, supra, 22 Cal.4th at p. 1050.) Nor did the 1978 death penalty law—enacted by the voters by way of initiative in November 1978—have the intended or practical effect of making all murderers death eligible. (E.g., People v. Gray (2005) 37 Cal.4th 168, 237, fn. 23 [33 Cal.Rptr.3d 451, 118 P.3d 496].)
Section 190.3, factor (a), does not, on its face or as interpreted and applied, permit arbitrary and capricious imposition of a sentence of death in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. (E.g., People v. Brasure (2008) 42 Cal.4th 1037, 1066 [71 Cal.Rptr.3d 675, 175 P.3d 632]; see also Tuilaepa v. California (1994) 512 U.S. 967, 976 [129 L.Ed.2d 750, 114 S.Ct. 2630] ["The circumstances of the crime are a traditional subject for consideration by the sentencer, and an instruction to consider the circumstances is neither vague nor otherwise improper under our Eighth Amendment jurisprudence."].) "Defendant's argument
Neither the federal nor the state Constitution requires that the penalty phase jury make unanimous findings concerning the particular aggravating circumstances, find all aggravating factors beyond a reasonable doubt, or find beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. (E.g., Fairbank, supra, 16 Cal.4th at p. 1255.) The United States Supreme Court's recent decisions interpreting the Sixth Amendment's jury-trial guarantee (see Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856]; United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621, 125 S.Ct. 738]; Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531]; Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556, 122 S.Ct. 2428]; Apprendi, supra, 530 U.S. 466) do not alter these conclusions. (E.g., People v. Bramit (2009) 46 Cal.4th 1221, 1249 & fn. 22 [96 Cal.Rptr.3d 574, 210 P.3d 1171].)
"The death penalty scheme is not unconstitutional because it fails to allocate the burden of proof—or establish a standard of proof—for finding the existence of an aggravating factor .... [Citations.]" (People v. Friend (2009) 47 Cal.4th 1, 89 [97 Cal.Rptr.3d 1, 211 P.3d 520].) "Unlike the guilt determination, `the sentencing function is inherently moral and normative, not factual' [citation] and, hence, not susceptible to a burden-of-proof quantification." (People v. Hawthorne (1992) 4 Cal.4th 43, 79 [14 Cal.Rptr.2d 133, 841 P.2d 118].) We additionally reject defendant's alternative argument that even if it is permissible not to impose any burden of proof at the penalty phase of a capital trial, it nevertheless was prejudicial error for the trial court to fail to instruct the jury that neither party bears a burden of proof at that phase of the trial. "[E]xcept for prior violent crimes evidence and prior felony convictions under section 190.3, factors (b) and (c), the court need not instruct regarding a burden of proof, or instruct the jury that there is no burden of proof at the penalty phase. [Citations.]" (People v. Cruz, supra, 44 Cal.4th at p. 681 (Cruz); see also Tuilaepa v. California, supra, 512 U.S. at p. 979 [jury "need not be instructed how to weigh any particular fact in the capital sentencing decision"].)
Written or other specific findings by the jury regarding the aggravating factors are not constitutionally required. (E.g., People v. Friend, supra, 47 Cal.4th at p. 90.)
The trial court was not constitutionally required to instruct the jury as to which of the listed sentencing factors are aggravating, which are mitigating, and which could be either mitigating or aggravating, depending upon the jury's appraisal of the evidence. (E.g., People v. Manriquez (2005) 37 Cal.4th 547, 590 [36 Cal.Rptr.3d 340, 123 P.3d 614]; see also People v. Hillhouse (2002) 27 Cal.4th 469, 509 [117 Cal.Rptr.2d 45, 40 P.3d 754] (Hillhouse) ["The aggravating or mitigating nature of the factors is self-evident within the context of each case."].) Additionally, "the statutory instruction to the jury to consider `whether or not' certain mitigating factors were present did not unconstitutionally suggest that the absence of such factors amounted to aggravation. [Citation.]" (People v. Whisenhunt (2008) 44 Cal.4th 174, 228 [79 Cal.Rptr.3d 125, 186 P.3d 496].) Rather, we repeatedly have held that "CALJIC No. 8.85 is both correct and adequate." (People v. Valencia (2008) 43 Cal.4th 268, 309 [74 Cal.Rptr.3d 605, 180 P.3d 351].)
Because capital defendants are not similarly situated to noncapital defendants, California's death penalty law does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants but not to capital defendants. (E.g., Cruz, supra, 44 Cal.4th at p. 681.)
We again reject the argument that California's death penalty scheme is contrary to international norms of humanity and decency, and therefore violates the Eighth and Fourteenth Amendments of the United States Constitution. (People v. Avila (2009) 46 Cal.4th 680, 725 [94 Cal.Rptr.3d 699, 208 P.3d 634].) "International law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements." (Hillhouse, supra, 27 Cal.4th at p. 511.) Because we conclude that defendant's sentence was rendered in accordance with those requirements, we need not consider whether alleged violations of such requirements also would violate international law. (Brown, supra, 33 Cal.4th at pp. 403-404; People v. Bolden, supra, 29 Cal.4th at p. 567.) We also reject the argument that the use of capital punishment "as regular punishment" violates international norms of humanity and decency and hence violates the Eighth Amendment of the United States Constitution. "California does not employ capital punishment in such a manner. The death penalty is available only for the crime of first degree murder, and only when a special circumstance is found true; furthermore, administration of the penalty is governed by constitutional and statutory provisions different from those applying to `regular punishment' for
Prosecutorial discretion in deciding whether to seek the death penalty in a particular case does not render the law unconstitutional. (Kraft, supra, 23 Cal.4th at p. 1078.)
There is no constitutional requirement that California's death penalty sentencing scheme provide for intercase proportionality review. (Moon, supra, 37 Cal.4th at p. 48; see also Pulley v. Harris, supra, 465 U.S. at pp. 50-51 [federal Constitution does not require state courts to conduct intercase proportionality review in the administration of the death penalty].)
Finally, we consistently have held that the delay between the time of judgment and the time of any execution that might occur does not render the death judgment unconstitutional. (E.g., People v. Lenart (2004) 32 Cal.4th 1107, 1131-1132 [12 Cal.Rptr.3d 592, 88 P.3d 498].) "The mere possibility defendant may someday no longer pose a threat to society is an insufficient reason for this court to revisit its prior holding that delay between sentencing and execution does not make a death sentence cruel and unusual." (Ibid.)
C. Asserted Substantial Cumulative Effect of Errors
Defendant contends the substantial cumulative effect of the asserted guilt and penalty phase errors requires reversal of his conviction and death sentence, even if none of the errors individually is prejudicial. Contrary to defendant's contention, and as discussed above, this was not a close case concerning the issues of whether defendant caused the death of his son, or whether the homicide was a first degree murder or qualified for a special circumstance. We have found only a few nonprejudicial errors, and no prejudice where error has been assumed in other instances. In light of the extensive and overwhelming evidence of defendant's guilt and the aggravating circumstances of his crime, we conclude that there was no substantial error and that the cumulative effect of any possible errors does not warrant reversal of the judgment. Contrary to defendant's assertion, the length of the jury's deliberations during the guilt phase (seven days) and the penalty phase (three days), and the circumstance that the jury requested that the testimony of certain witnesses be read back to it during these deliberations, does not compel a different conclusion.
For the forgoing reasons, the judgment is affirmed in its entirety.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.