OPINION
On October 26, 1997, defendant Susan Dianne Eubanks shot and killed her four young children. When they died, the children, Brandon, Austin, Brigham, and Matthew, were, respectively, ages 14, seven, six, and four. A jury found defendant guilty of four counts of first degree murder (Pen. Code, § 187).
I. FACTS
A. Guilt Phase
At the time defendant killed her children, she had been living with them, her boyfriend Rene Dodson, and her nephew in a small home in San Marcos. Defendant and her first husband, John Armstrong, had one son, Brandon. Following her divorce from Armstrong, defendant married Eric Eubanks.
Each son had been shot in the head by the same five-shot .38-caliber revolver; at the time of their deaths, Austin and Brigham had 0.02 micrograms of Xanax in their blood, while Brandon and Matthew had none.
In the living room, defendant had put the revolver to the temple of 14-year-old Brandon and shot him; she also shot him in the neck from a few inches away. She shot her younger sons in their bedroom. With the revolver no more than a foot from Austin's head, she shot her seven-year-old son near his left eye. With the gun inches from Brigham's head, she shot her six-year-old son twice, once above his left ear and once close to his right ear. With the gun close to the head of four-year-old Matthew, she shot him in the top of the head, leaving stippling marks on his face. She fired other bullets in the bedroom that hit a wall and a window. At some point in that bedroom, defendant opened the revolver's cylinder, removed the five expended shell casings, put them in a trash can, and reloaded the five-shot revolver.
Defendant shot herself in the abdomen with that same revolver. Her six-year-old nephew was home at the time of the shootings. He was found unharmed, in bed, with blankets pulled up to his chin.
Besides the evidence of the crimes themselves and the above described notes, the prosecution presented the following evidence regarding events that preceded the crimes.
The Eubanks marriage had appeared stable until defendant experienced job-related injuries that required surgery. She then began to abuse prescription medications and alcohol, she lost her job, and she and her husband Eric began a recurring pattern of separation and reconciliation. The police found more than 50 bottles of prescription medications in defendant's house after the murders.
In the fall of 1997,
About 10 days before the murders, defendant purchased replacement dead bolt locks for her house. Appearing angry, she told a clerk who knew Dodson that he had broken the lock on her door, and she was buying new ones so he
The afternoon of October 26, the day of the murders, Brandon stayed home to watch his siblings and defendant's nephew while defendant and Dodson went to a bar to watch football. The couple ordered a pitcher of beer and soon were joined by another couple. Defendant did not want the woman to sit with them due to a confrontation they had had when she had criticized defendant for talking about Dodson behind his back. Dodson decided he and defendant should go to a different bar because defendant was upset.
Defendant argued with Dodson when they left, complaining he had taken the other woman's side. She slapped Dodson a few times while he was driving; Dodson then decided to drive home. When defendant realized they were not going to another bar, she slammed the minivan into its parking gear while they were travelling 30 miles per hour on a freeway off-ramp. Defendant removed the keys from the ignition, but Dodson eventually was able to retrieve them and drive home.
Once home, the couple continued to argue in their bedroom. When Dodson said he wanted to leave and move to Hawaii, defendant slapped him, took his keys, blocked his exit from the room, and ripped out the telephones. Eventually, they calmed down and had sex. Dodson then said he was going to watch television in the living room; instead, when defendant was in another part of the house, Dodson ran to a nearby gas station, called the sheriff's department, and asked that they send a deputy to stand by so he could retrieve his belongings and truck from defendant's house.
While defendant and Dodson were fighting, Brandon had gone to a pay telephone and called Kathy Goobs (Kathy), the mother of his best friend. He asked her to come get him and the other boys because his brothers were scared and Brandon did not want them exposed to the fighting. Kathy told Brandon to go home, reassess the situation, and to call again if he still needed her to pick them up.
A short time later, defendant called Kathy, "pleading" for Kathy to come take the boys. Kathy testified that she spoke to defendant, who, though upset and agitated, did not sound intoxicated. Defendant said she feared Dodson would call the police and that, if they came, they would take and separate the children. Kathy agreed to pick up the boys but never left to get them. Kathy
Deputy Sheriff Daniel Deese picked up Dodson at the gas station. As they approached defendant's house, defendant was carrying Dodson's tools away from his vehicle, which had two flat tires and broken headlights. When Deese told defendant to drop the tools, she became confrontational and claimed Dodson owed her money and had raped her. She went inside after Deese threatened to arrest her. While Dodson was putting his tools in the patrol car, defendant came outside, yelling, "I've been screwed by men my whole life. I've been beaten. I've been raped."
As Dodson left with Deese, they saw Eric parked nearby. Kathy had paged Eric and advised him of the calls from defendant and Brandon, and Eric had come to check on the children. He saw the police car and was waiting for it to drive away because defendant had a restraining order against him. After learning that defendant was throwing Dodson out, Eric agreed to take Dodson to a bar in Escondido. They loaded the tools into Eric's truck and left.
Back inside her house, defendant telephoned Brandon's grandfather and then called Armstrong in Texas. She told Armstrong the police had been there investigating the incident with her boyfriend in which she had slashed his tires, broken his windshields, and put sugar in his gas tank, and that she feared child protective services would come to take the children. She said she needed Armstrong to tell Brandon to "stick by me on this one, even if it means lying."
When Eric arrived at Kathy's home after 6:00 p.m., he had her listen to a voice mail he just had received in which defendant simply said, "Say goodbye." At 6:30 p.m., Eric called the sheriff's office and asked to speak with Deputy Deese; about 7:00 p.m., the two connected. When Eric mentioned the message and his concern that defendant had a handgun at the house, Deese instructed him to request a welfare check of defendant's residence.
The defense presented evidence through the testimony of Dr. Clark Smith, who was board certified in addiction and forensic psychiatry, that the fact defendant received infusions of saline and other fluids while in the ambulance would have affected the alcohol content of the blood drawn from her at the hospital. Although that blood sample revealed a 0.07 percent blood-alcohol content and a toxicologist had calculated that defendant's blood-alcohol
Dr. Vina Spiehler, the toxicologist who had estimated that defendant's blood-alcohol content was 0.09 percent at the time of the murders, was called as a rebuttal expert witness to refute Dr. Clark's conclusions. Dr. Spiehler testified she had based her calculations on formulae published in recognized literature, and that she formed her opinion that liquid intravenous infusions into the body do not affect blood-alcohol or drug concentrations in the manner claimed by Dr. Smith based on literature on dilutions and her personal experience while working at a coroner's office.
B. Penalty Phase
1. Prosecution Evidence
Crime scene reconstructionist Rod Englert (Englert) testified as an expert that defendant first shot Brandon twice in the living room, next shot Austin once, and then fired twice in the direction of Matthew but missed. Englert testified defendant reloaded her revolver at that point and then shot Brigham twice, fired a shot between Brigham and Matthew, and then shot Matthew once.
Larry Shoebridge testified that an old girlfriend contacted him in 1989 while he and defendant were romantically involved and living together. Defendant responded by putting a gun to Shoebridge's head and saying she "`could do whatever she wanted'" and she "`could'a killed'" him. Shoebridge decided to leave. Fearing defendant's reaction to his decision, he moved out after she had gone to work. After defendant discovered where Shoebridge was living, she drove up to his house. Defendant screamed at Shoebridge and tried to attack his female friend. Defendant eventually drove off, screeching her tires.
Brandon's relatives and a friend testified about the impact Brandon's death had on their lives. The paternal grandmother mentioned two incidents in which she believed defendant had abused Brandon. Teachers and coaches testified about the impact the boys' deaths had on them.
Linda Smith, defendant's sister, testified regarding a telephone call she received from defendant in which defendant said she once had rubbed her
2. Defense Evidence
The defense presented evidence that defendant's mother and stepfather were alcoholics who fought constantly and had affairs. Defendant's mother abused her by slapping her and dragging her by her hair. Defendant's mother died in a house fire when defendant was eight years old. Defendant then was rotated among relatives, including an aunt who abused her and a relative who managed a hotel and had defendant and her siblings clean its rooms. Defendant sometimes lived with her stepfather in a trailer, where he would get drunk and urinate on himself.
The defense presented testimony from relatives and defendant's coworkers that defendant's "number one concern" was her children, that she was proud of them and "very caring," that she was an excellent employee, and that she did well in the courses she took to become a medical office insurance biller after becoming disabled from a job-related back injury. Relatives and friends who testified that defendant was "tortured" during her childhood and that she was a loving parent asked the jury not to impose the death penalty. The children's former pediatrician testified defendant regularly brought her sons to him for checkups and medical problems.
Eric testified about his marriage and family life with defendant. He said he still had some "love feelings" for her.
A correctional consultant testified defendant would not be a "future danger" if sentenced to life without the possibility of parole.
II. PRETRIAL ISSUES
A. Pretrial Jury Screening Issues
1. Introduction
The jury commissioner prescreened prospective jurors for eligibility to serve on defendant's case based on whether they met the basic qualifications for jury service set forth in Code of Civil Procedure section 203,
Defendant first contends the jury commissioner agreed to a process to prequalify jurors who would be available for a 10-week trial but ignored that plan and "exceeded her official function" by using her "discretion to excuse potential jurors," "effectively excus[ing] anyone who did not wish to serve," and "engag[ing] in the kind of jury selection that is to be conducted by the trial court in the presence of all parties." Defendant claims the commissioner's "wholesale" excusal of prospective jurors resulted in a "skewed jury pool"
Second, defendant contends the summons mailed to prospective jurors improperly asked recipients to identify their "native language" and "effectively informed jurors whose primary language was not English, and who may have had some difficulty with the English language, that [they] could excuse themselves from jury service" and, as a result, "many people whose command of English was more than adequate were given the opportunity to avoid jury service." Defendant argues this impropriety "dissuaded Hispanics from appearing" and caused their underrepresentation "in the venire," which violated her right to a jury drawn from a representative cross-section of the community under the Sixth Amendment to the United States Constitution and article I, section 16 of the California Constitution.
Defendant's fourth contention is that the failure of a court reporter to record the trial court's discussions with the jury commissioner or record the hardship screening itself violated her rights to due process and a jury trial "under the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as the applicable statutes."
In response, the People contend defendant forfeited these four issues regarding the preliminary jury screening by failing to object in the trial court to the challenged procedures. For the reasons stated below, we conclude the People's position on forfeiture generally has merit.
2. The Facts Regarding the Challenged Prescreening
The trial court mailed out 7,000 summonses to prospective jurors for defendant's pending trial. On June 9, 1999, 700 people answered those summonses and appeared before the jury commissioner. During the screening that ensued that day, the commissioner excused 481 individuals from jury duty. The trial court determined that it needed a larger panel and instructed the commissioner to qualify more prospective jurors from regular panels that would be assembled at the courthouse on Mondays and Tuesdays until July 21, 1999.
The defense was aware San Diego County utilizes jury commissioners to conduct prescreening of potential jurors for death penalty cases. In October 1998, defendant made a motion for a "fair and impartial trial" in which she asked the trial court to provide "guidance" by advising the jury commissioner to exclude (1) individuals who either "request service on a death penalty case" or seek to "avoid service on a death penalty case," and (2) potential jurors who had been excused from another case during jury selection or had recently served on another trial. In December 1998, defense counsel explained to the trial court that, as to the categories of jurors included in its
On December 14, 1998, the prosecutor asked the trial court to deny the motion because "Code of Civil Procedure section 203 sets forth those people [who] are ineligible to sit as jurors . . . and the request by the defense is not covered by that section." In denying the motion, the trial court agreed that the exclusions sought by defendant were not covered by the cited "rules of procedure." The trial court then explained that it would instruct the jury commissioner not to provide prospective jurors with information regarding "what case" they would be "sitting on" or whether the case was "civil or criminal." It was apparent from the court's ruling that the jury prescreening procedure, including the summons notices and the jury commissioner's prescreening, would eliminate individuals who fit within the exceptions to juror eligibility set forth in section 203 of the Code of Civil Procedure, including the exception for those "who are not possessed of sufficient knowledge of the English language." (Code Civ. Proc., § 203, subd. (a)(6).) Nevertheless, at no time during this hearing or thereafter did defendant object in the trial court to any language in the summonses sent to prospective jurors, including the sentence "My native language is ________," which was to be filled out if the person summoned had checked the box indicating he or she was not qualified to serve as a juror because "I DO NOT HAVE SUFFICIENT KNOWLEDGE OF THE ENGLISH LANGUAGE to act as a juror." Similarly, defendant did not object to the role of the jury commissioner in eliminating those not eligible for jury service under Code of Civil Procedure section 203. Furthermore, at the hearing on the motion, defendant did not request that the jury commissioner's prescreening with prospective jurors or the commissioner's conversations with the trial court be recorded.
On February 9, 1999, in the course of discussing the proposed jury questionnaire, the trial court noted that it would need to send out juror "notices . . . in the thousands to get enough folks to appear for the jury duty" and that those notices would need to include an "estimate of time" that the trial would take.
On May 26, the trial court mentioned it was conducting meetings with the jury commissioner regarding the jury screening in defendant's case. Defendant raised no objection at that time; she did not request that those meetings be recorded or that she attend them. Thereafter, the trial court explained that the jury commissioner would screen prospective jurors regarding whether they were able to serve on a lengthy trial based on the following criteria: "financial hardship," "prepaid vacation; medical appointments that cannot be changed, or full-time school enrollment." Defendant did not request more detailed information regarding the proposed "time qualification" or hardship process, although the trial court offered to show counsel such information "if you're interested at all." Similarly, at no point did defendant object to the portion of the summons notices sent to potential prospective jurors that included a "REQUEST FOR EXCUSE SECTION" that listed claimed hardships.
At that same May 26 hearing, defendant, through counsel, did insist that she wanted to be present when the information was read to the prospective jurors and when those prospective jurors would be told that they would need to fill out a lengthy questionnaire. At that time, defendant did not ask to be present at any of the other prescreening procedures, including those that involved the jury commissioner's preliminary screening of potential jurors.
Defendant had surgery on May 29, and was not present at the next hearing on June 2. The trial court suggested continuing the trial to July to give defendant time to recuperate. The court then suggested a complicated plan to preserve some of the prospective jurors from the summonses sent in April and to pick up additional prospective jurors "on Mondays and Tuesdays when they have their normal jury pool." The court explained that its plan would allow the jury commissioner to start qualifying people for the July trial date and would save the expense of sending out new summons notices.
The trial court then commented that "the beauty" of its proposal was that "by the end of Wednesday," there would be "a nice random list of time qualified jurors." Based on his misunderstanding of the proposal, William Rafael, one of defendant's attorneys, interjected, "I know the court noted the
The trial court then clarified that the previously requested introductions were scheduled to occur "before we do the questionnaire, though. So, see, [defendant] would be present. It would be exactly like we were going to do it." Acknowledging his prior confusion, Rafael withdrew his objection to defendant's absence: "MR. RAFAEL: So we're just going to do the time qualifying next week? [¶] THE COURT: . . . What we were going to do next week is they time qualify. . . . Then we would have all come down, introduced ourselves, read the information and give them the juror questionnaires. I anticipate [defendant] would be present whatever date we're going to start this at. We do it the exact same way we [were] going to do it. . . . And we're all down there, then, with your client, and we do the questionnaires. [¶] MR. RAFAEL: Okay. So I understand the step of introduction is not going to take place [during the prequalifying of the jury], the questionnaires will not be distributed at that point? [¶] THE COURT: Right."
As promised, defendant and her counsel were present in the jury assembly room when the clerk swore the venire on July 21. The trial court introduced defendant and all counsel, read the information, and explained the process of filling out the questionnaire.
3. Forfeiture
As noted, above, the People contend that defendant waived her right to raise preliminary jury screening procedural issues by failing to assert them in the trial court. We agree.
A defendant generally "is barred from raising on appeal defects in the [preliminary jury screening] procedure in which [she] acquiesced." (People v. Ervin (2000) 22 Cal.4th 48, 73 [91 Cal.Rptr.2d 623, 990 P.2d 506].) "[I]mportant policies mandate that criminal convictions not be overturned on the basis of irregularities in jury selection to which the defendant did not object or in which he has acquiesced. [Citations.]" (People v. Visciotti (1992) 2 Cal.4th 1, 38 [5 Cal.Rptr.2d 495, 825 P.2d 388].)
Here, defendant bases her claim that the jury pool screening procedural issues were not forfeited solely on Rafael's statement "informing the trial
Defendant did not object to the language in the summons notices
Similarly, defendant did not object when she learned the trial court expected the jury commissioner to excuse potential jurors based on hardship grounds such as childcare concerns or nonvital medical issues. Defendant did not even request to look at the detailed information regarding the hardship excuses the jury commissioner would consider despite the trial court's offer to share that information with the defense. Because defendant did not accept the trial court's offer to review the detailed information regarding the hardship excuses the jury commissioner would consider, she forfeited any claim that she was not informed the commissioner would prescreen prospective jurors for reasons other than those specified on the record.
Defendant did not object to, or question, the disparity between the number of summonses sent and the number of prospective jurors expected to appear and fill out questionnaires. She also did not object that additional venire members were added after the initial screening by the jury commissioner. Defendant did not object that prescreening violated her equal protection rights because it excluded a disproportionate number of Hispanics and treated those with language difficulty differently from those with sight or hearing impairments. Defendant also did not object that the screening was vague, and thus violated due process, because there was no standard for determining language proficiency and because the standard applied, namely Code of Civil Procedure section 203, subdivision (a)(6), was unconstitutionally vague on its face and as applied.
Defendant never made a contemporaneous request for the jury commissioner to maintain records of the screening, and she never asked for the jury commissioner's conversations with the trial court or the preliminary screening to be recorded.
At the time of trial, subdivision (a)(1) of section 190.9 provided, in pertinent part, that "[i]n any case in which a death sentence may be imposed, all proceedings conducted in the municipal and superior courts, including all conferences and proceedings, whether in open court, in conference in the courtroom, or in chambers, shall be conducted on the record with a court reporter present." (Stats. 1996, ch. 1086, § 4, p. 7657.) Nothing in the record suggests that the trial court's conversations with the jury commissioner took place in the courtroom or in chambers, and, absent an objection to the trial court meeting informally with the jury commissioner, defendant has forfeited her claim that the lack of a record of its discussions with the jury commissioner deprived her of her constitutional rights to "due process and a jury trial as well as other statutory rights."
The jury commissioner was entitled to "inquire as to the qualifications of persons on the master list or source list who are or may be summoned for
Here, in light of the information defendant received during the multiple hearings covering the issuance of summonses and the proposed duties of the jury commissioner, defendant was made aware that the jury commissioner would be involved in ensuring that prospective jurors were time qualified to sit through a 10-week jury trial, were eligible for jury trial service within the meaning of Code of Civil Procedure section 203, and did not have a valid reason to be excused from jury service based on any hardship agreed upon by the trial court and jury commissioner. Nothing in the record supports defendant's claim that the jury commissioner exceeded her official function as described by the trial court in defendant's presence or her claim that procedures the jury commissioner followed during the preliminary jury screening were unanticipated by defendant or the trial court.
We conclude defendant has forfeited all four of the preliminary jury screening procedural issues she raises in this court by having failed to object on those grounds in the trial court.
4. Merit of Defendant's Jury Selection Issues
Defendant cannot prove the merit of her challenges to the preliminary jury screening procedure. On the present record, defendant cannot show that she was improperly denied a jury drawn from a representative cross-section of the community,
However, on the present record, we are able to address defendant's claim that the provision in Code of Civil Procedure section 203 that permits the excusal of prospective jurors with insufficient knowledge of the English language is "unconstitutionally vague" and violates both the "due process and equal protection principles as guaranteed by the Fourteenth Amendment." We find this third challenge to the pretrial jury screening lacking in merit.
For the same reason, we find meritless defendant's claim the challenged language requirement violates defendant's right to equal protection of the law because courts will provide "accommodations for the hearing [or sight] impaired" but not for "jurors who need assistance with English." The People correctly argue that the "requirement of knowing the English language is a neutral factor." (See, e.g., Alexander v. Louisiana, supra, 405 U.S. at pp. 631-632 [permissible racially neutral selection criterion does not violate equal protection guarantees].)
Defendant additionally claims that "publication to potential jurors of this vague standard reasonably explains the low Hispanic turnout because it provided an excuse for Hispanic people to ignore the summons." Defendant has presented no evidence to support this claim, and "[e]rrant speculation" of impropriety does not meet defendant's burden of proof on this issue. (Ramos, supra, 15 Cal.4th at p. 1157.)
In summary, we conclude defendant is not entitled to a reversal of the guilt or penalty verdict in her case based on her preliminary jury screening claims.
B. Constitutionality of the Searches of Defendant's Residence
1. Introduction
Defendant contends evidence gathered from her home pursuant to two search warrants was illegally obtained during unreasonable searches in violation of the Fourth Amendment to the United States Constitution. Specifically, she claims the warrants were overbroad because they unnecessarily authorized a search for "`dominion and control' evidence." In a concomitant argument, she claims the affiant for the warrants recklessly omitted material evidence, namely, that sheriff's deputies already knew defendant lived at the residence. We conclude defendant's challenges lack merit.
After deputy sheriffs found three dead bodies and two wounded individuals inside the home at 266 South Twin Oaks Valley Road in San Marcos (266 South Twin Oaks) on the night of the murders, they contacted homicide detectives. In response, Detective Rawlins arrived at the scene and was briefed on the situation. Then Rawlins, along with a deputy district attorney, telephoned a magistrate to request a warrant to search the residence immediately "for the possibility of collecting evidence and finding the perpetrator of the crime." The magistrate issued a search warrant that authorized, in relevant part, a search for "documents and effects which tend to show possession, dominion and control over such premises, including . . . anything bearing a person's name, . . . or other form of identification. . . ." During the search conducted pursuant to this warrant, Rawlins's team seized, as relevant here, handwritten notes found on the floor around the bed where defendant had shot herself, a pen, a Rolodex, a phone list, a telephone and answering machine, and miscellaneous papers.
Three days later, Detective Rawlins sought a second search warrant for the same residence to search for, among other items, weapons, ammunition, cartridge casings, bullets, telephone bills and records, medical records, medications and prescriptions, a computer and its hard drives, and additional items "tending to show dominion and control." In support of this warrant, the detective stated that he had accounted for nine projectiles but only six empty casings, that he had received information that defendant was pregnant, and that, on the night of the murders, defendant had mentioned her fear that child protective services would come to interview her children. In response, the magistrate issued a second search warrant that authorized, in relevant part, a search for "ammunition, cartridge casings, bullets" and "items which tend to show possession, dominion and control, including handwritings, . . . photographs,. . . answering machines, audiotapes, pagers, or any means of identification bearing a person's name, number or photograph. . . ." During the search conducted under the second warrant, Rawlins and his team seized, as relevant here, photos and photo albums, videotapes, books, a calendar, a notebook, prescription bottles, a word processor, and other papers.
Defendant filed a motion to quash and traverse both warrants and suppress the seized evidence on grounds that the language seeking evidence of dominion and control of the residence was overly broad, that the affidavits in support of the warrants failed to establish probable cause to seize dominion and control evidence because they omitted the material fact that members of the San Diego County Sheriff's Department already knew defendant lived on South Twin Oaks.
We defer to the trial court's express and implied factual findings if supported by substantial evidence, but we independently determine the legality of the search under the Fourth Amendment. (People v. Lenart (2004) 32 Cal.4th 1107, 1119 [12 Cal.Rptr.3d 592, 88 P.3d 498].) Because courts accord a preference to searches and seizures conducted pursuant to a search warrant, "in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall." (United States v. Ventresca (1965) 380 U.S. 102, 106 [13 L.Ed.2d 684, 85 S.Ct. 741].)
3. Overbreadth
Although defendant acknowledges the deputies' initial warrantless entry into her home "was appropriate under the `imminent danger-to-person' exigent circumstance exception," she contends that the portion of the warrants authorizing the subsequent searches for, and seizure of, items related to "dominion and control" was "overly broad and non-particular so as to render that aspect of the warrant invalid." We disagree.
In Mincey v. Arizona (1978) 437 U.S. 385, 395 [57 L.Ed.2d 290, 98 S.Ct. 2408], the Supreme Court noted that a search "of substantial scope" of a home in which there had been a recent murder could be constitutional after officers obtained a search warrant from a neutral magistrate. The wide-ranging four-day search of the defendant's home in that case was held unconstitutional because the search was conducted without a warrant. (Ibid.)
Here, in light of the information available to the affiant sheriff's detective at the time he sought the first warrant, he could not have realistically described the personal property sought to establish dominion and control with any more particularity. (See, e.g., U.S. v. Spilotro (9th Cir. 1986) 800 F.2d 959, 964; U.S. v. Cardwell (9th Cir. 1982) 680 F.2d 75, 78.) Officers knew that multiple murders recently had occurred inside the house, but they had little information as to how they were carried out or why. While it appeared that defendant had committed the crimes, her responsibility had to be ascertained with more certainty, and any others who had access to the property or dominion and control of it needed to be considered or eliminated as suspects.
In People v. Nicolaus (1991) 54 Cal.3d 551 [286 Cal.Rptr. 628, 817 P.2d 893] (Nicolaus), police obtained a search warrant to search the defendant's apartment for "letters, papers and bills tending to show who occupied the apartment" (id. at p. 575), after they learned the defendant's address from a dying woman who said the defendant had shot her. During the search of the apartment, an officer opened a folder on the defendant's desk and found documents in the defendant's handwriting that described his plans to harm the victim and revealed his motives and state of mind before the murder. In finding the search into the folder for indicia of occupancy constitutional, we rejected the defendant's contention that the search authorized by the above quoted phrase was not "sufficiently particularized." (Ibid.) We additionally noted that, "[i]n any event, the officers acted entirely properly in seeking
Here, as in People v. Kraft (2000) 23 Cal.4th 978, 1043 [99 Cal.Rptr.2d 1, 5 P.3d 68] (Kraft), "the breadth of the warrant . . . was commensurate with the scope of the investigation." We therefore conclude the language in the challenged warrants that authorized a search for items that tended to show who had "dominion and control" was sufficiently particularized under the circumstances and was justified by the fact that multiple murders recently had been committed inside the residence in question. (People v. Alcala (1992) 4 Cal.4th 742, 799 [15 Cal.Rptr.2d 432, 842 P.2d 1192]; Rogers, supra, 187 Cal.App.3d at pp. 1007-1009; Nicolaus, supra, 54 Cal.3d at pp. 574-575.)
4. Seizure of Dominion and Control Evidence.
Defendant next faults the investigating officers for reading and seizing the letters lying about her bed. She claims those letters were not relevant to dominion and control, that they were "merely [her] personal writings," and the officers had "no authorization to seize them under the guise of `dominion and control.'" However, as officers searching defendant's residence for items tending to show dominion and control were entitled to search through trash cans and to look at any paper items inside the home, they were also entitled to seize defendant's letters, though not listed in the warrant, because they were in plain view and their incriminating character was immediately apparent. (Horton v. California (1990) 496 U.S. 128, 136-137 [110 L.Ed.2d 112, 110 S.Ct. 2301]; Kraft, supra, 23 Cal.4th at p. 1043; Nicolaus, supra, 54 Cal.3d at p. 575.) Defendant's reliance on Arizona v. Hicks (1987) 480 U.S. 321 [94 L.Ed.2d 347, 107 S.Ct. 1149], is misplaced. In that case, investigating officers engaged in conduct unrelated to the objectives of the authorized intrusion to search for a shooter and for weapons when they moved stereo equipment and obtained its serial numbers. (Id. at pp. 324-326.) Here, by contrast, the officers were engaged in an authorized search when they came upon the immediately apparent incriminating letters.
5. Factual Omissions in the Search Warrants
Defendant next contends the warrants should have been traversed because the affidavit for the first warrant omitted "relevant facts regarding the extensive prior contacts between the sheriff's department and [defendant], including the call to which Deputy Deese had responded earlier that day," and the affidavit for the second warrant additionally "omitted relevant information about the prior search conducted pursuant to the first warrant and the extensive history of prior contacts between [defendant] and the sheriff's department."
The trial court concluded the omitted facts "would not have had any effect on the issuance of either warrant." We agree with the trial court that the omitted facts were not material because there is no "substantial possibility they would have altered a reasonable magistrate's probable cause determination," and their omission did not "make the affidavit[s] substantially misleading." (People v. Kurland (1980) 28 Cal.3d 376, 385 [168 Cal.Rptr. 667, 618 P.2d 213].) As the trial court properly determined, even if the affidavits were tested by adding the omitted information, the magistrate still would have issued both warrants to search for items tending to show dominion and control, if only to rule out other suspects. Here, as in People v. Bradford, supra, 15 Cal.4th 1229, the magistrate "did not err in finding that, considered as amended to include the above described information, the affidavit[s] established probable cause." (Id. at p. 1299; see also People v. Huston (1989) 210 Cal.App.3d 192, 219-220 [258 Cal.Rptr. 393].)
We conclude the trial court properly denied defendant's motion to quash the two warrants and suppress the items located during the searches authorized by them.
III. GUILT PHASE ISSUE
Admissibility of Rebuttal Expert Testimony
Defendant contends the trial court erred by permitting the prosecution's expert to refute with "informal, undocumented and unpublished experiments" the conclusion of the defense expert that infusing fluids into the body affects subsequent blood analysis for the presence of drugs or alcohol. Defendant claims her defense that she was unable "to form the mental state necessary" for first degree murder was improperly undermined by the admission of "incompetent testimony to minimize the evidence of intoxication." Specifically, she contends that the personal observations of Dr. Vina Spiehler of the effects of intravenous transfusions on blood-alcohol content while working at a coroner's office were based on material that failed to meet the reliability requirements of People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240] (Kelly),
1. Background
The murders occurred between 7:12 and 7:34 p.m. on October 27, 1997. About 8:35 p.m. that evening, paramedics infused approximately three liters (3,000 cubic centimeters) of saline solution into defendant because of her loss of blood. At 8:50 p.m., blood was drawn from defendant at the hospital. That blood was analyzed and found to contain both alcohol and drugs. The results of the analysis revealed a blood-alcohol content of 0.07 percent. The level of Prozac in defendant's blood was 118 nanograms of fluoxetine per milliliter of blood, and 258 nanograms per milliliter of its metabolite, norfluoxetine. The level of Valium in defendant's blood was 0.6 micrograms of diazepam, and 0.3 micrograms of its metabolite, nordiazepam.
In response to an objection to the admissibility of proposed rebuttal expert testimony on the issue of dilution, the trial court held an Evidence Code section 402 hearing regarding the proffered testimony. During that hearing, Dr. Spiehler, a pharmacologist board certified in forensic toxicology, testified that her calculations of defendant's drug and alcohol levels at the time of the murders and her opinions regarding the impact of dilution on blood-alcohol content were based on formulae from a pharmacology textbook and published literature, including the 1988 edition of Medicolegal Aspects of Alcohol Determination in Biological Specimens (Garriott edit., 1988),
At the end of the hearing, defendant objected to the proposed testimony on the basis that Dr. Spiehler's conclusions were mere observations "made in a casual setting and not subject to scrutiny of peer review or outside observers" rather than "scientific fact." The trial court determined that Dr. Spiehler was applying her practical work experience to the academic training she had
Thereafter, Dr. Spiehler testified before the jury that she formulated her calculations "based on [defendant's] weight and how much water would be in her body where the alcohol goes—the alcohol follows the water—and calculated how much of an effect the dilutions would have from the fluids she was given, and [her] answer was different from Dr. Smith's." Dr. Spiehler explained that she disagreed with Dr. Smith's conclusion that the drugs in defendant's system were diluted by the saline infusion because the drugs defendant ingested "don't go into the watery parts of the body," but, instead, are stored in the fat. Dr. Spiehler calculated that the dilution would have lowered defendant's blood-alcohol content by as much as 10 percent, and concluded defendant therefore would have had a blood-alcohol level of approximately 0.07 percent at the time of the shootings.
Dr. Smith testified on surrebuttal that Dr. Spiehler's testimony did not alter his opinion. He conceded that, if dilution did not occur based upon the infused saline in this case, Dr. Spiehler's calculations of defendant's blood-alcohol level at the time of the murders would be accurate; but he testified that his theory of dilution affecting blood-alcohol levels is correct and recognized in the scientific literature. Dr. Smith added that shock, including shock following a gunshot wound, could affect the absorption of drugs and alcohol into the blood. He suggested the effects of shock might apply here because defendant at one time had no measurable blood pressure or pulse.
"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) Evidence Code section 801 provides that, "[i]f a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion."
Kelly does not apply here. "[A]bsent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly[]." (People v. Stoll (1989) 49 Cal.3d 1136, 1157 [265 Cal.Rptr. 111, 783 P.2d 698] (Stoll); see also McDonald, supra, 37 Cal.3d 351, 372.) No aspect of Dr. Spiehler's testimony or research involved a new scientific technique. She based her calculations of defendant's drug and alcohol levels at the time of the murders on principles from textbooks and literature in her field. She then
Kelly was designed to insulate the jury from expert testimony premised on methods that "carry [a] misleading aura of scientific infallibility" (Stoll, supra, 49 Cal.3d at p. 1157), but no reasonable juror would have given unquestioned deference to Dr. Spiehler's medical opinion testimony regarding the analysis of alcohol and drug levels in the blood, a practice well known in science and the law. "We have never applied the Kelly[] rule to expert medical testimony, even when the witness is a psychiatrist and the subject matter is as esoteric as the reconstitution of a past state of mind or the prediction of future dangerousness, or even the diagnosis of an unusual form of mental illness not listed in the diagnostic manual of the American Psychiatric Association [citation]." (McDonald, supra, 37 Cal.3d at p. 373.)
Defendant's attempt to distinguish Stoll is unavailing. In Stoll, we held the trial court erred when it applied Kelly to exclude a psychologist's opinion testimony based on an interview and professional interpretation of standardized written personality tests. (Stoll, supra, 49 Cal.3d at p. 1163.) In part, we determined that Kelly did not apply because it was not based on a technique new to science or the law. (Id. at p. 1157.) We did distinguish the testimony of a "learned professional art" from the "science" triggering Kelly concerns (id. at p. 1159), explaining that admission of testimony based on new science presented dangers when "the unproven technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury" (id. at p. 1156). The challenged medical observations made by Dr. Spiehler present no such danger.
Defendant's attempt to distinguish People v. Bui (2001) 86 Cal.App.4th 1187 [103 Cal.Rptr.2d 908], fails as well. In Bui, the Court of Appeal declined to apply Kelly to expert testimony about methamphetamine blood levels and their correlation to driving ability because the expert's methodology was generally accepted in the scientific community. It reasoned that "`[t]he Kelly test is intended to forestall the jury's uncritical acceptance of scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate.'" (Id. at p. 1195, quoting People v. Venegas (1998) 18 Cal.4th 47, 80 [74 Cal.Rptr.2d 262, 954 P.2d 525].) Dr. Spiehler's challenged testimony did not involve new scientific
The fact that Dr. Spiehler did not rely on the latest edition of Garriott does not render her testimony inadmissible. Although a later edition omitted the article on which Dr. Spiehler relied, she testified it was omitted in the subsequent edition because the textbook's editor could not locate the article's author for approval. Defendant now objects that Dr. Spiehler's explanation for the omitted article is inadmissible hearsay, but she forfeited the objection by failing to raise it at trial. (People v. Partida (2005) 37 Cal.4th 428, 433-434 [35 Cal.Rptr.3d 644, 122 P.3d 765]; Evid. Code, § 353.) In any case, the article itself did not provide a calculation; it merely provided suggestions to experts on how to talk to a jury. At the pretrial hearing, Dr. Spiehler testified the article "gives [an expert] a way of talking through [a difficult question in court] that a layperson might understand, rather than going into the scientific basis, which would be found in Goodman and Gillman."
IV. PENALTY PHASE ISSUES
A. Admissibility of Defendant's Admission That She Mistreated Her Nephew
Defendant contends the trial court erred during the penalty phase by admitting evidence that she had smeared feces on the face of her nephew. Defendant claims admission of that testimony violated section 352 of the Evidence Code as well as her Fourteenth Amendment right to due process and her right to heightened reliability in a capital case under the Fifth, Sixth,
Before the evidence of the feces incident was admitted, defendant had introduced evidence to show that she was a good mother. That evidence presented defendant as someone who consistently acted lovingly and protectively towards her children by hugging and kissing them, keeping them well groomed and well fed, taking them to medical appointments, and exhibiting pride in them.
Linda Michele Smith, defendant's sister, later testified that she had been speaking with defendant on the telephone when defendant, whom Linda described as "an immaculate housekeeper," told her she had found a soiled "pull up" diaper that her nephew had stuffed between his bed and an adjacent wall. Defendant told her sister that she "got really mad," made him smell the soiled diaper, and then rubbed the feces in his face. After Smith "got angry" about how defendant had treated her nephew, defendant said she had not rubbed the feces in his face, that she had "just meant I made him smell it." Linda testified she did not believe defendant's partial retraction. During closing argument in the penalty phase, the prosecutor explained that the evidence that defendant had rubbed feces from her nephew's soiled diaper in his face was "offered to rebut the testimony that [defendant] was a good mother."
Defendant's initial claim that her statements were inadmissible hearsay is meritless. The trial court concluded the statements fell under the hearsay exception for admissions of a party (Evid. Code, § 1220), and, implicit in its ruling was a finding that the statements were sufficiently reliable to be admitted in the penalty phase of defendant's trial. We are convinced that Smith's testimony provided substantial evidence to support the trial court's ruling, even under the heightened reliability standard set forth in Woodson v. North Carolina (1976) 428 U.S. 280, 305 [49 L.Ed.2d 944, 96 S.Ct. 2978]. We therefore next address defendant's section 352 claim.
The trial court had excluded evidence of the "feces" incident under Evidence Code section 352 during the guilt phase of defendant's trial on the basis that issue was "collateral" to the guilt of defendant for the deaths of her four children and was "redundant" on the issue as to whether defendant "disliked" her nephew. In that context, the trial court found the prejudicial effect of the potentially "disturbing testimony" that "a woman would spread feces on a child" more prejudicial than probative "given the People's theory."
"Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt." (People v. Crew (2003) 31 Cal.4th 822, 842 [3 Cal.Rptr.3d 733, 74 P.3d 820].) Here, as the trial court recognized, although the proffered evidence of the "feces" incident was potentially "disturbing," that evidence was highly probative as
Considering all of the circumstances, we conclude the trial court did not abuse its discretion by admitting the evidence of defendant's uncharged misconduct, and that the admission of the challenged evidence did not violate due process or fail to meet the Eighth Amendment requirement of heightened reliability. (Woodson v. North Carolina, supra, 428 U.S. at p. 305.)
B. Admission of Testimony of a Crime Scene Reconstructionist
Evidence depicting the "`circumstances of the crime'" generally is admissible at the penalty phase. (People v. Loker (2008) 44 Cal.4th 691, 755 [80 Cal.Rptr.3d 630, 188 P.3d 580]; see Ramos, supra, 15 Cal.4th at p. 1164.) The trial court's discretion to exclude such evidence at the penalty phase is more
After holding an extensive Evidence Code section 402 hearing on the admissibility of the challenged crime scene reconstruction evidence, the trial court determined the expert would provide "some helpful information" regarding the sequence of the shots fired, how the errant bullets "entered into the equation," and regarding the "other bullets that were fired in the bedroom of the three boys." The court added that the expert would "shed some light on other areas that were not covered by the medical examiners' testimony and going directly to the circumstances of the crime, which is obviously relevant at the penalty phase." After expressly weighing the probative value of the proposed testimony against its potential for prejudice, the trial court found the evidence admissible. We find no abuse of discretion in the trial court's ruling.
Defendant's claim that Englert's testimony before the jury was unduly inflammatory is belied by the record. For example, defendant claims Englert testified that, while defendant reloaded her gun, Brigham and Matthew "cowered" on the lower bunk. However, while Englert used the word "cowering" out of the presence of the jury during the Evidence Code section 402 hearing regarding the admissibility of the proffered reconstruction evidence, he did not use that word during his actual testimony. Similarly, during his penalty phase testimony before the jury, Englert did not use the word "huddling," as defendant suggests. Instead, he testified that, based on the physical evidence of the crime scene, Brigham and Matthew were "very close together" when they were shot. Again, despite defendant's claim to the contrary, Englert did not testify before the jury that Matthew "scramble[d] to the other end of the bed"; Englert simply stated that, once Brigham had been shot but Matthew had not been hit, Matthew "move[d] to the opposite end of the bed" and "bent over."
Contrary to defendant's contention, the evidence provided by Englert was not based on speculation. Based on his extensive training and experience, as well as on an examination of the premises and a thorough review of the police and medical reports in this case, Englert presented testimony regarding bullet trajectories, stippling, and the relative positions of the multiple victims and the shooter that was "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801.) That evidence was relevant, probative, and not unduly prejudicial. (See, e.g., People v. Robinson (2005) 37 Cal.4th 592, 643-644 [36 Cal.Rptr.3d 760, 124 P.3d 363] [deputy medical examiner's penalty phase testimony regarding relative positions of the victims and the shooter was admissible].) Englert's testimony that defendant fired at the height of Austin's head three times, that one shot missed to the right of Austin, one missed to the left, and one struck him in the face, provided the jury with probative evidence regarding defendant's determination to shoot Austin in the head and provided the jury with one basis to consider whether the death penalty was appropriate in this case. Evidence that defendant reloaded her gun in the boys' bedroom was similarly probative on the issue of penalty.
Finally, nothing in the record of the expert's testimony supports defendant's claim that the reconstruction evidence did not meet "the heightened reliability requirement of the Eighth Amendment." At trial the defense left unchallenged Englert's testimony that, based on the disciplines on which he relied and the facts of this case, his expert opinion "is within a reasonable degree of scientific certainty as what occurred in that residence and the sequence it occurred in." The testimony was presented in a dispassionately objective manner and did not create "an intolerable `risk to the fairness of the proceedings or the reliability of the outcome.'" (People v. Waidla, supra, 22 Cal.4th at p. 724.) Accordingly, we find no violation of the Eighth or Fourteenth Amendment to the United States Constitution.
We conclude the trial court did not abuse its discretion by admitting expert crime scene reconstruction testimony at the penalty phase to show the "circumstances of the crime" under factor (a) of section 190.3.
Defendant offered the testimony of James Esten, a former employee of the Department of Corrections, to testify as an expert as to the conditions of confinement should defendant be sentenced to a term of life imprisonment without the possibility of parole. The defense proposed to introduce photographs taken at Valley State Prison for Women that depicted areas where defendant most likely would be housed if sentenced to life imprisonment without parole. The defense also proposed to have Esten testify regarding the "conditions of confinement." The trial court excluded the testimony as irrelevant. Defendant contends that ruling violated section 190.3 as well as her rights under the Eighth and Fourteenth Amendments to the federal Constitution.
D. Exclusion of Proffered Mitigating Hearsay Evidence and Admission of Hearsay Evidence in Aggravation
Defendant contends the trial court improperly excluded proffered mitigating evidence that she had been sexually molested by her cousin and father, as well as evidence that she helped a fellow inmate at the jail infirmary obtain needed medical attention. She contends that, "[i]n contrast, the [trial] court admitted evidence of an alleged incident at the jail where [she] supposedly became angry during an organized game" and made threats to a fellow inmate and a jail staff member. Defendant claims these rulings "lacked balance
We note that defendant contends that her penalty phase jury should not have been precluded from considering, as a mitigating factor, any aspect of her character that would permit the jury to return a sentence less than death. She relies on a capital case, Green v. Georgia (1979) 442 U.S. 95 [60 L.Ed.2d 738, 99 S.Ct. 2150], to argue that this court should dispense with traditional state rules of evidence when the death penalty is involved. In Green, although the statement was not otherwise admissible, the Supreme Court permitted the admission of a declaration against penal interest that the declarant shot the victim after ordering Green to leave because it was "highly relevant to a critical issue in the punishment phase of the trial" and "substantial reasons existed to assume its reliability." (Id. at p. 97.) We have repeatedly rejected the broad reading of Green v. Georgia that defendant urges. (See People v. Weaver (2001) 26 Cal.4th 876, 980-981 [111 Cal.Rptr.2d 2, 29 P.3d 103].) Here, as in Weaver, we conclude the proffered mitigating evidence "bore no special indicia of reliability, so the rule [set forth in Green v. Georgia] did not require the trial court to dispense with the hearsay rule." (Weaver, at p. 981.)
With regard to defendant's attempt to introduce evidence that she was molested by her cousin Greg while she was a teenager, the trial court sustained an objection for lack of foundation after defense counsel asked Greg's father, Don, if an "inappropriate relationship" had developed between Greg and defendant while defendant was living with Don's ex-wife Rose. The objection was properly sustained because Don had testified moments earlier that he "wasn't involved," with defendant, Greg, or Rose at the time in question, he "didn't see them much" at that time, and he "didn't pay much attention" to what they were doing.
The trial court also excluded as unreliable hearsay the proffered statement by a career counselor that defendant had said she was molested by her father. The trial court reasoned that the statement was unreliable because defendant had confided in many people, including her psychiatrist and her psychologist, that she had been molested by "a number of other people, but not her father," and because defense counsel conceded that defendant never had indicated that she had been molested by her father "to any of the mental health professionals" who interviewed her. In this instance, we agree with defendant that the fact she did not make the proffered statement to mental health professionals
With regard to the proffered medical assistance mitigating evidence, there was no eyewitness available to describe what happened during the incident in which a jail nurse assertedly did not respond to an inmate's request for medical assistance and defendant helped the inmate obtain the necessary medical attention. The proffered evidence was in an investigative report written by a doctor who was not present during the alleged incident. When defendant's attorney gave the trial court that report, he noted that he expected a hearsay objection from the prosecutor. The trial court excluded the proffered testimony because it did not fall within a recognized exception to the hearsay rule and was not sufficiently reliable to be admitted during defendant's penalty trial. Assuming arguendo that defense counsel could have laid a foundation that the proffered report fell within the official record exception to the hearsay rule (Evid. Code, § 1280),
We next conclude the trial court properly admitted evidence from defendant's jail records to impeach defense witness James Esten's expert opinion that defendant would not be a danger to others in the future if sentenced to prison. Esten had interviewed defendant and reviewed her jail records. After Esten characterized a fight in which defendant was involved at Las Colinas Detention Facility in San Diego County as one in which she was confronted by another inmate and "retaliated appropriately in defending herself" by beating up that inmate, Esten was impeached by parts of the jail record that suggested it was defendant who confronted the other inmate, who spat at
Here, as in Doolin, supra, 45 Cal.4th at page 439, "[i]n the interest of complete review, we note that even if we were to assume evidentiary error, any error would be harmless, whether assessed under the federal constitutional (Chapman [v. California (1967)] 386 U.S. [18,] 24 [17 L.Ed.2d 705, 87 S.Ct. 824]) or state (People v. Watson [(1956)] 46 Cal.2d [818,] 836 [299 P.2d 243]) standard of review." We conclude there is no reasonable possibility that admission of the excluded proposed mitigating evidence and the exclusion of the admitted impeachment evidence in aggravation would have altered the jury's penalty verdict in light of the overwhelming evidence that defendant deliberately murdered her four innocent young children out of vengeance and hatred toward her most recent boyfriend and the father of two of her sons.
E. Cumulative Error
Defendant claims the cumulative effect of the various errors that occurred during her trial requires reversal of her murder convictions and the death sentence, even if no error was individually prejudicial. Having found only minor harmless errors during defendant's trial, we reject her claim of cumulative effect.
F. Instructional and Constitutional Challenges to California's Death Penalty Law
Defendant contends various features of California's death penalty statute and related standard jury instructions violate the Fifth, Sixth, Eighth, and
The statutory special circumstances that qualify a defendant for the death penalty (§ 190.2) are not unconstitutionally overbroad. (People v. Verdugo (2010) 50 Cal.4th 263, 304 [113 Cal.Rptr.3d 803, 236 P.3d 1035]; People v. Harris (2005) 37 Cal.4th 310, 365 [33 Cal.Rptr.3d 509, 118 P.3d 545].) California homicide law and the special circumstances listed in section 190.2 adequately narrow the class of murderers eligible for the death penalty. (People v. Gamache (2010) 48 Cal.4th 347, 406 [106 Cal.Rptr.3d 771, 227 P.3d 342]; People v. Barnwell (2007) 41 Cal.4th 1038, 1058 [63 Cal.Rptr.3d 82, 162 P.3d 596].)
Factor (a) of section 190.3, which permits the jury to consider "[t]he circumstances of the crime" in deciding whether to impose the death penalty, does not license the arbitrary and capricious imposition of the death penalty. (People v. Brady (2010) 50 Cal.4th 547, 589 [113 Cal.Rptr.3d 458, 236 P.3d 312]; People v. Cook (2007) 40 Cal.4th 1334, 1366 [58 Cal.Rptr.3d 340, 157 P.3d 950]; see also Tuilaepa v. California (1994) 512 U.S. 967, 974-980 [129 L.Ed.2d 750, 114 S.Ct. 2630].)
The instruction that tells a jury to consider "whether or not" (§ 190.3) certain mitigating factors were present does not impermissibly invite the jury to aggravate on the basis of nonexistent or irrational aggravating factors. (People v. Morrison (2004) 34 Cal.4th 698, 730 [21 Cal.Rptr.3d 682, 101 P.3d 568].)
The use in the sentencing factors of such restrictive adjectives as "extreme" and "substantial" in section 190.3, factors (d) and (g), does not act as an unconstitutional barrier to the consideration of relevant mitigation evidence. (People v. Schmeck, supra, 37 Cal.4th at p. 305.)
Neither unanimity nor proof beyond a reasonable doubt is constitutionally required for the jury's findings on the aggravating factors in this case. (People v. Bolden (2002) 29 Cal.4th 515, 566 [127 Cal.Rptr.2d 802, 58 P.3d 931].) The reasonable doubt standard does not apply to the jury's determination that death is the appropriate penalty, and the jury should not have been instructed as to the burden or standard of proof in selecting the penalty to be imposed. (People v. Stanley (2006) 39 Cal.4th 913, 964 [47 Cal.Rptr.3d 420, 140 P.3d 736].) "`Nothing in Cunningham v. California (2007) 549 U.S. 270
The federal Constitution does not impose on the prosecution a burden of proof as to penalty, and the state need not prove beyond a reasonable doubt whether "aggravating circumstances exist, that the aggravating circumstances outweigh the mitigating circumstances, or that death is the appropriate penalty." (People v. Lewis (2008) 43 Cal.4th 415, 533 [75 Cal.Rptr.3d 588, 181 P.3d 947].) The federal Constitution does not require that the jury be unanimous as to which aggravating factors apply. (People v. Davis (2009) 46 Cal.4th 539, 628 [94 Cal.Rptr.3d 322, 208 P.3d 78].) The instructions were not defective in failing to require that the jury provide express findings regarding the presence of aggravating factors. (People v. Bunyard (2009) 45 Cal.4th 836, 861 [89 Cal.Rptr.3d 264, 200 P.3d 879].) Nothing in Apprendi v. New Jersey, supra, 530 U.S. 466, or its progeny, requires a different result. (People v. Lewis, supra, 43 Cal.4th at p. 534.)
Our state death penalty statute is not unconstitutional for failing to require intercase proportionality review or disparate sentence review. (People v. Verdugo, supra, 50 Cal.4th at p. 305; People v. Cox (2003) 30 Cal.4th 916, 970 [135 Cal.Rptr.2d 272, 70 P.3d 277]; see also Pulley v. Harris (1984) 465 U.S. 37, 50-51 [79 L.Ed.2d 29, 104 S.Ct. 871]; Roper v. Simmons (2005) 543 U.S. 551, 560-561 [161 L.Ed.2d 1, 125 S.Ct. 1183].)
Defendant's sentence does not violate international law. (People v. Lewis, supra, 43 Cal.4th at p. 539.)
Our death penalty law does not deprive capital defendants of equal protection by denying procedural safeguards to capital defendants that are afforded to noncapital defendants. (People v. Hinton (2006) 37 Cal.4th 839, 913 [38 Cal.Rptr.3d 149, 126 P.3d 981].)
Finally, we reject defendant's claim that, when viewed as a whole, our sentencing scheme "fails to provide a meaningful or reliable basis for selecting the relatively few offenders subjected to capital punishment." Having concluded that none of defendant's challenges to our state's capital sentencing scheme have merit, we reject this general claim as well.
V. DISPOSITION
We affirm the judgment.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Werdegar, J., Corrigan, J., and Liu, J., concurred.
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