A jury convicted defendant John Myles and a codefendant, Tony Tyrone Rogers, of the first degree murder of Fred Malouf (Pen. Code, § 187, subd. (a)),
In a separate, subsequent proceeding, the same jury convicted defendant of the first degree murder of Harry "Ricky" Byrd, and found true the special circumstance allegation that defendant had been convicted of more than one murder and the allegation that defendant personally used a handgun in the murder. (§§ 187, subd. (a), 190.2, subd. (a)(3), 12022.5, subd. (a).) After the penalty phase, it returned a verdict of death. Defendant moved for new trial (§ 1181), and for modification of his sentence to life without the possibility of parole (§ 190.4, subd. (e)). The trial court denied the motions and sentenced him to death.
A. Guilt Phase Evidence
1. Prosecution evidence
a. The murder of Harry "Ricky" Byrd
Juli Inkenbrandt was a methamphetamine user. On April 11, 1996, she borrowed a neighbor's Buick sedan to drive her drug dealer friend, Jshakar Morris, and defendant to the West Side neighborhood in San Bernardino. They told her they needed to "collect some money." Morris sat in the front passenger seat and defendant, whom Inkenbrandt did not know, sat in the backseat behind Morris. Inkenbrandt's one-year-old daughter was in a car seat to the left of defendant in the backseat.
Inkenbrandt drove to an area known as California Gardens. As she headed down Magnolia Avenue, defendant directed her to pull up to a group of young men who were talking in the front yard of a house. Inkenbrandt stopped the car in the middle of the street and defendant yelled out of the left backseat window something to the effect of "You guys know Smoke?" They shrugged their shoulders and said, "No." One member of the group, Harry "Ricky" Byrd (Ricky), suggested to defendant that he "[g]o check on the dark side." The young men then resumed their socializing.
Defendant and Morris directed Inkenbrandt to continue driving. Unbeknownst to defendant and Morris, they passed Ricky's cousin, Gary Lee, who was standing outside talking with Darion "Smoke" Robinson.
After several minutes of driving around, defendant directed Inkenbrandt to return to where the young men were gathered on Magnolia Avenue. Driving in the same direction as at the time of the initial encounter, Inkenbrandt pulled the Buick closer to the group as defendant instructed. Defendant again yelled to them from the left backseat window, this time asking whether they would "give Smoke a message for him." Ricky, who was leaning on the side of a friend's car that was parked between him and the Buick, replied, "Okay. What's the message?" Defendant reached over the baby in the car seat, pointed two guns out the window, and fired twice. The young men dropped to the ground for cover, and the Buick drove off. Ricky suffered a fatal gunshot wound to his upper chest. Another bullet struck the driver's seat headrest in the parked car.
When defendant's group arrived back at Inkenbrandt's apartment complex, defendant and Morris instructed her to park behind the buildings. Defendant then removed the shell casings from inside the vehicle and they left, telling Inkenbrandt to forget what she had seen. Inkenbrandt used the Buick to run some errands. On her return 15 to 20 minutes later she parked in her normal parking spot in front of the buildings. Shortly after her arrival, defendant and Morris ran up to her, asking for a ride to an area where they sold drugs. Inkenbrandt dropped them off as requested, then returned home, again parking in the front of the apartment complex.
At some point when the Buick was parked in front of the apartment complex, Lee and Robinson had driven by and located it. Seeing no one in the Buick, they returned to Magnolia Avenue, where they discovered that Ricky had been fatally shot. After hearing witnesses describe the car involved in that shooting, Lee realized that it was the same car from which shots had been fired at him. When Lee led police officers to where he had spotted the vehicle, it was no longer there. However, police were on the scene moments after Inkenbrandt returned to the apartment complex after dropping off defendant and Morris. A witness from the Magnolia Avenue shooting was sitting in the back of an unmarked police vehicle and he identified the Buick and Inkenbrandt as the driver. When police then contacted Inkenbrandt in her apartment, she told them what had happened from "the beginning to the end." As she explained at trial, she talked with the officers about the incident because she "wasn't going down for a murder I didn't commit that they were stupid enough to do."
Approximately three weeks after the shootings, two other eyewitnesses attended a live lineup and identified defendant as the gunman. They also identified him at trial. Inkenbrandt likewise identified defendant, first by photograph, then at a live lineup, and finally at trial. Although one other eyewitness to the shooting had never been asked to view a photographic array or attend a live lineup, he positively identified defendant at trial.
Investigating officers searching the area where Ricky was shot recovered a live .380-caliber round of ammunition and a spent .380-caliber shell casing.
In connection with the subsequent shooting incident at the Pepper Steak Restaurant in nearby Colton, officers searched a vehicle parked in the lot of an apartment building in San Bernardino. They found inside the trunk a Lorcin .380-caliber semiautomatic handgun wrapped in a towel. Although the prosecution's firearms expert could not state conclusively that the bullet that killed Ricky had been fired from the Lorcin, he expressed the view that it could have been. The parties stipulated at trial that, if called to the stand, witnesses would testify that a person they believed to be defendant possessed a Lorcin semiautomatic handgun.
b. Robbery murder at the Pepper Steak Restaurant
Nine days after Ricky Byrd's murder, defendant, with 17-year-old Tony Tyrone Rogers, used a firearm to commit a robbery that led to another death.
On April 20, 1996, Fred Malouf (hereafter sometimes Fred), his wife Donna Malouf (Donna),
After the Malouf party sat down in a booth at the back of the restaurant, a waitress named Krystal Anderson walked over to say hello. Donna testified at trial that moments later, defendant came running through the restaurant yelling, "It's a robbery. I'll shoot. Get your money out." He was holding a large semiautomatic gun in his right hand. A mask came across his mouth and nose, and he was wearing a beanie on his head.
Donna further testified that she immediately rose from the booth and started walking toward the kitchen because she knew that a gun was kept
Donna noticed that three other employees and codefendant, Tony Rogers, were inside the kitchen. Rogers also was armed with a large semiautomatic gun, and he was wearing a hat but no mask. Defendant directed Rogers to shoot Donna if she moved, then left the kitchen and returned to the dining area. Several minutes later, Donna noticed Fred's face in the window of the kitchen's back door.
Rogers ran toward the back door just as Fred was entering. When Fred attempted to wrest control of Rogers's gun, a shot rang out. Donna saw Fred fall back into the women's restroom. Rogers then stood over Fred and shot him repeatedly. At some point, Fred managed to remove his gun from his ankle holster and shoot Rogers in the upper chest. Rogers screamed, "I've been shot," and ran past Donna to exit the kitchen and flee.
Other restaurant employees and patrons gave varying accounts of the sequence of events prior to the shooting. Krystal Anderson, the waitress who was talking with the Maloufs at the outset of the robbery, testified that defendant dragged Donna by the hair and forced her into a booth, then pushed Anderson toward the cash register near the front of the restaurant by kicking her legs and hitting her. When Anderson had trouble complying with defendant's repeated demands to open the register, he hit her in the stomach with his gun. After she finally managed to open the register, defendant took out the money, which was mostly $5 and $10 bills. Defendant then reached into Anderson's apron and removed her tips. Another witness, Harold Lewis, was seated with his wife and grandson in a booth across from the cash register when defendant came into the restaurant waving his gun and demanding that everyone put their money on the table. According to his testimony, defendant first dragged Donna to the cash register before grabbing the other waitress. After taking the money from the till, defendant came up to Lewis, twisted Lewis's arm behind his back, and pointed the gun behind his ear. He then took the billfold and money that Lewis had placed on the table.
There were some discrepancies in the testimony of the eight witnesses regarding the events in the restaurant before the shooting. But the witnesses testified consistently that after the shots were fired, defendant first ran back to
Officers responding to a dispatch regarding the robbery found Rogers hunched over on the sidewalk a short distance away. There was a semiautomatic handgun lying next to him. Rogers complained of a shotgun wound to the stomach and officers observed blood in his abdominal area. He was handcuffed and transported to the hospital, where he underwent emergency surgery. Officers took Donna to view Rogers in the hospital, where she identified him as the shooter.
An autopsy showed that Fred was shot five times at close range, suffering gunshot wounds to his face, abdomen, knee, thigh, and wrist. The fatal wound was the gunshot to the abdomen, which caused a small hole in the aorta that led to massive internal hemorrhaging.
Officers investigating the crime scene discovered extensive evidence of gunfire in the kitchen area and restrooms, including 7 nine-millimeter cartridges, an expended bullet, and numerous bullet fragments. Ballistics testing on the nine-millimeter semiautomatic gun found next to Rogers at the time of his arrest showed that all of the cartridges found in the kitchen had been fired from his weapon.
In the early morning hours the day after the shooting, officers contacted Rogers's 22-year-old cousin. Earl Williams, who was allowing Rogers to live with him. Williams told the officers that Rogers associated with three large African-American men, one of whom he identified as J-Dog, the name by which defendant was known. Williams also took the officers to the San Bernardino apartment rented by Lateshia Winkler, where defendant occasionally stayed. Police then brought Williams to the police station to question him about his possible involvement in the crimes. He told officers that around 11:30 a.m. on the day of the shooting, defendant came to his apartment looking for Rogers, saying he needed "to talk to him about some cash flow." Williams told defendant that Rogers was socializing at a nearby apartment and defendant left. When he returned to Williams's apartment with Rogers a short time later, Williams overheard defendant telling Rogers that he had been watching two places for the last two days and "we got to hit them before 8 o'clock." Williams testified at trial that he did not recall most of what he had told the officers during the questioning.
Investigators also interviewed Lateshia Winkler, in whose apartment defendant occasionally stayed. According to Winkler, defendant, Rogers, and
Both Williams and Winkler told police that they previously had seen defendant carry a handgun. According to Winkler, defendant kept two loaded magazines on the headboard in his bedroom and stored the gun in the trunk of Winkler's 1973 Pontiac Firebird, which was parked in a lot close to her apartment. Police searched the trunk of her car and discovered a Lorcin.380-caliber semiautomatic handgun.
During the investigation, several eyewitnesses identified defendant as the masked man who entered the front of the restaurant waving a large firearm and announcing that a robbery was in progress. Donna picked defendant's picture from a photographic lineup, telling police she was "80 percent sure" that the photograph depicted the man who had forced her to go into the kitchen. She also identified defendant in a live lineup conducted about one week after the photographic lineup, and later again at trial.
2. Defense evidence
a. Defendant's defense case
Defendant presented no evidence at the Ricky Byrd murder trial.
To cast doubt on the prosecution's evidence regarding the crimes at the Pepper Steak Restaurant, the defense called a number of the investigating officers who had interviewed prosecution witnesses. For example, to undercut the evidence that defendant left Winkler's apartment with Rogers at approximately 6:00 to 6:30 p.m. and returned alone and worried about his "homeboy," the defense elicited from Sergeant Mark Owens discrepancies in Winkler's various accounts of these events. Specifically, Winkler had told the
The defense also emphasized the lack of physical evidence linking defendant to the crimes. Sergeant Owens informed the jury that in his search of clothing associated with defendant he never found a ski mask or black cap, gloves, dark running suit, or any other article of clothing described by the eyewitnesses. He confirmed that Winkler told him defendant had about $20 in $1 bills and coins either on the night of the robbery or the day after, and that he knew that only $5 and $10 bills had been taken from the restaurant's cash register. The defense also elicited from Officer Leroy Valadez that Harold Lewis reported to him that there was approximately $500 hidden inside the wallet that defendant took from him.
Testimony by other officers highlighted discrepancies in the eyewitnesses' descriptions of the robber's clothing and firearm. The defense also elicited from the officers that several of the eyewitnesses were unable to provide them with a description of the robber's facial features because his face was covered by a ski mask during the incident.
The defense further challenged the prosecution's identification evidence by presenting testimony by an eyewitness identification expert. Robert Shomer, Ph.D., described the various factors that reduce the accuracy of an identification, including life-threatening, unexpected and traumatic circumstances, age and racial differences between the eyewitness and the perpetrator, the manner in which the identification procedure is conducted, and the precision of the eyewitness's initial description. According to Dr. Shomer, the more stressors present, the more difficult it is to later identify a person. He also explained that the accuracy of an identification is further reduced when any substantial part of a person's face is covered, and that eyes are not a good feature for identifying a person because unlike ears, the mouth, the nose, and the hairline, eyes typically are not that distinctive.
b. Codefendant Rogers's defense
Rogers offered his own account of events at the Pepper Steak Restaurant. Rogers testified that he left his apartment with G-Dog and someone named Dee to drive to someone else's house. He passed out as they drove around because he had been drinking beer and smoking marijuana. When he awoke, they were in the Pepper Steak Restaurant's parking lot and Dee told him, "Homies went inside." Rogers had to use the restroom. When he opened the door to what he thought was the restroom, a man "came out of nowhere" and
According to Rogers, defendant was not involved in the robbery.
B. Penalty Phase Evidence
1. Prosecution's case in aggravation
The prosecution presented evidence that defendant committed six other criminal acts involving violence or a threat of violence, three of which occurred in the West Valley Detention Center where defendant was incarcerated while awaiting trial on the capital crimes. Family members of the murder victims testified about how they were affected by their loved ones' deaths.
a. Robbery at Denny's Restaurant
In October 1992, Mark Repman worked as the manager at the Denny's Restaurant in Victorville. Repman testified that around 11:30 p.m. on October 28, defendant and two other African-American men entered the restaurant armed with pistols and a shotgun. One of the men placed a gun to the back of Repman's head and ordered him to the office. Repman complied with the man's demand to open the safe, handing over about $1,200 in cash. Meanwhile, defendant pointed a shotgun at the restaurant customers and employees and ordered them down on the floor.
Deputy Sheriff Matthew Kitchen testified that he responded to the report of a robbery in progress by stationing his vehicle on the freeway on-ramp near the restaurant. He spotted a car that matched the description of the assailants' vehicle and a high-speed chase ensued. When the suspects' car failed to negotiate a freeway exit and crashed onto an embankment, two of the men jumped out of the vehicle and ran toward the railroad tracks. California Highway Patrol Sergeant Steven Urrea testified that he took defendant into custody along the tracks and found money and a shotgun under a nearby bush. The parties stipulated that defendant was convicted of second degree robbery in connection with this incident. (§ 211.)
b. Shooting of Shawn Boyd
Lieutenant Robert Miller of the Colton Police Department investigated a shooting that had occurred at the home of defendant's mother in February 1996. Miller testified that the victim, Shawn Boyd, told him that he was visiting defendant's mother on the evening of February 23. Around 11:45 p.m., Boyd mentioned in conversation that he was doing well and had a job and new clothes. Defendant became jealous and agitated, telling Boyd to "get into the motherfucking room" and pointing to the master bedroom. When Boyd resisted, defendant threatened to "plug" him. He then shoved Boyd toward the bedroom, pulled out a handgun and shot him in the face. Boyd ran through the bedroom and jumped from the second story through a glass window. The prosecution's firearms expert at the guilt phases, William Matty, testified that the bullet recovered from the scene of that shooting was fired from the Lorcin handgun that was recovered from the trunk of Lateshia Winkler's car during the Pepper Steak Restaurant investigation.
c. Robbery at Thomas Realtors
Thomas Realtors is a San Diego property management company. According to Jacqueline Graff, who worked as a receptionist there in April 1996, most of the tenants' rent payments came into the office on the 3d and 4th of each month. Graff testified that on April 3 around 2:20 p.m., two African-American men entered the office. One of them, whose description matched that of defendant, put a gun to her head and demanded that she open the desk drawer and give him all of the money. Graff explained that the owner had taken the money to the bank. However, she complied with the robber's demands to open all of the drawers and he rifled through them, saying, "Somebody is going to die if I don't get the money." The assailants then turned their attention to Graff's coworker, Paul Baumhoefner, who had come to the lobby to see what the commotion was about. Baumhoefner testified that the man with the gun held the weapon inches from his face, demanding money and backing him into his private office. Like Graff, Baumhoefner explained that the owner was on his way to the bank, and he opened all of his desk drawers to show that there was no money inside. He also pulled out a wad of money from his pockets, which the gunman grabbed before leaving the office and heading out the front door. Baumhoefner then retrieved the owner's gun from another desk and ran out the door in pursuit. He got into his truck and took off after a red sedan that bystanders had identified as the getaway car. Baumhoefner eventually pulled up behind the car and noted its license plate number, then returned to the office and reported the number to responding officers.
The commotion on the street near the scene of the robbery had attracted Thomas Stone's attention as he was driving by. Stone testified that he saw
The parties stipulated that two days after the incident, police located a sedan with a license plate number matching the one reported by Paul Baumhoefner, and that one of the four latent fingerprints recovered from the vehicle was positively identified as belonging to defendant. The prosecution's firearms expert testified that the .380-caliber casings recovered from the scene of the shooting could have been fired from the Lorcin handgun, and that cartridges found in the alley were the same kind as those recovered from the scene of the Shawn Boyd shooting six weeks earlier.
d. Jail incidents
Defendant was held at the West Valley Detention Center in Rancho Cucamonga while awaiting trial in the case. In December 1996, eight months after his arrest, he had a violent outburst during a "shakedown" search of the unit where he was being housed. Deputy Joseph Perea of the San Bernardino County Sheriff's Department testified that during the shakedown, when the inmates were lined up in front of their cells, defendant mumbled something under his breath as one of the deputies passed by him. Perea and another deputy took defendant to the multipurpose room and asked him to sit down, but defendant did not comply. When Deputy Mark James intervened and attempted to push defendant down into his chair, defendant punched him on the left side of the face, rendering him unconscious. Perea sprayed defendant with pepper spray, but defendant managed to throw a food cart at the officer, hitting him in the right arm. Defendant then ran to a utility room, grabbed a push broom and started swinging it wildly. The deputies managed to knock the broom out of defendant's hands by throwing plastic chairs at him, then attempted to tackle him, eventually getting defendant under control by handcuffing him and shackling his legs.
Defendant had a second violent confrontation with deputies five months later. According to the testimony of Deputy Timothy Nichols, in May 1997, Deputy David Llewellyn ordered defendant to go into his cell and "lock it down" for disrespecting one of the deputies. Defendant first disregarded the directive, then took a combative stance and responded, "Fuck you." Deputy Nichols sprayed him with pepper spray, but it had no effect. Defendant then stepped toward the deputies, and he and Llewellyn started hitting each other with their fists. When Nichols attempted to place defendant in a "choke hold," defendant threw him off and punched him repeatedly on the side of the head and in the groin as he tried to get up off the ground. Defendant then
A third incident occurred approximately one month before the start of the first guilt phase trial. Deputy Alejandro Barrero testified that in November 2000, he removed from defendant a sharpened metal instrument known as a "shank." The homemade shank had a cloth handle with a leash made of rope that would permit the user to retrieve the weapon in the event it slipped or was grabbed away.
e. Victim impact evidence
i. Ricky Byrd's murder
Ricky Byrd's father, Harry Byrd III, told the jury that when he was informed of his son's death, he fell to his knees and dropped the telephone in disbelief. It was very difficult for him to see his son in a coffin. Although Byrd had not seen Ricky in person for a year or two before the murder, he had spoken to him the previous weekend and Ricky was planning to come to Northern California to visit him the following week.
Ricky Byrd's grandmother testified that Ricky lived with her off and on for most of his life and that she was very close to him. Her home was three houses away from the scene of the shooting and she heard the gunfire while she was in the backyard hanging up laundry. Although she was grateful that the responding officer was performing CPR on Ricky, she knew when she saw him lying on the sidewalk that he was gone. She further testified that little things around the house brought back memories of Ricky every day, as did the presence of Ricky's young son, Harry Byrd V, who was born shortly after Ricky's death. She also informed the jury that on the day of the shooting, Ricky had applied for a job at United Parcel Service, and that he aspired to go to college to become a marine biologist.
ii. Fred Malouf's murder
Fred's wife Donna testified that she has been in weekly counseling to deal with her grief and anger. She also told the jury that she had since remarried, but that "Fred was, and always will be, my life."
Fred's nephew testified about their close relationship and the profound influence his uncle had on him, especially on his decision to choose a career in law enforcement. He also told the jury that his uncle had a great sense of humor and that during his retirement he "enjoyed life to the fullest" by
2. Defense case in mitigation
The defense had intended to present the testimony of three inmates who witnessed the May 1997 altercation between defendant and sheriff's deputies in the West Valley Detention Center. Because calling the witnesses would have required a continuance of three to four weeks, however, over the prosecutor's objection, the court permitted the defense to introduce the inmates' taped statements in lieu of their testimony.
The inmates' recorded statements were played for the jury, who followed along with a written transcript. Casey Whigman stated that "all hell broke loose" when Deputy Llewelyn pushed defendant for not "locking it down" as quickly as he wanted him to. According to Linnard Roberson, the officers rushed defendant as he was on his way to his cell, and never asked him to stop. Defendant was fighting, but he was defending himself, and the officers continued to beat him and "stomp his head into the pavement" even after he had been subdued. Jack Dunnigan observed that before punches were thrown, one of the officers got "right up close in [defendant's] face" and pushed him. He likewise saw the officers slam defendant's head into the concrete and stomp on him after he was handcuffed.
The defense also presented testimony by David Call, the attorney who previously had represented defendant in the case. Call explained to the jury that he had planned to present mitigating evidence regarding defendant's upbringing, but defendant refused to allow him to do so, saying he "would rather die than have his mother be disgraced in the courtroom."
A. Pretrial Issues
1. Denial of motion to sever the two murder counts
Defendant asserts that the trial court abused its discretion and deprived him of his right to a fair trial and other federal and state constitutional guarantees by denying his motion to sever trial on the Ricky Byrd murder charge from
Defendant and Rogers each were charged with the murder of Fred Malouf and other crimes related to the incident at the Pepper Steak Restaurant. Defendant also was charged with the murder of Ricky Byrd, a separate crime occurring nine days earlier that did not involve Rogers. In November 1997, the court held a hearing on the prosecutor's motion to join defendant's and Rogers's cases for trial. The court granted the motion over the objection of Rogers's counsel, noting that the guilt phase would focus predominantly on the restaurant homicide and robberies and rejecting the argument that evidence regarding the Ricky Byrd murder charge would prejudice Rogers. The court then considered defendant's motion to sever trial on the Ricky Byrd murder charge from trial on the counts arising from the restaurant incident. In denying that motion, the court observed that all of the charges involved crimes of the same class and were committed relatively close in time.
Defendant later sought reconsideration of the court's ruling denying severance. At the hearing on that motion, the court also considered defense counsel's alternative proposal to try defendant and Rogers before a single jury on the charges relating to the restaurant incident first and then, after the jury reached its verdicts on those counts, try defendant alone on the Ricky Byrd murder charge before the same jury and proceed to a penalty phase if necessary. The court again denied the motion to sever counts, reiterating its prior observation that the charges arising from the separate incidents were the same class of crimes and finding that joinder would not create undue prejudice. However, it granted the alternative request to bifurcate the guilt
Defendant renewed his motion to sever counts after the jury had rendered its guilty verdicts in the restaurant robbery-murder case, arguing that it was "fundamentally unfair" to have the same jury now hear the Ricky Byrd murder charge. The court found no prejudice to defendant and no reason to depart from its earlier ruling. As the court observed, the bifurcated procedure benefited defendant because the jury heard evidence and decided the potentially weaker of the two cases first without having heard the evidence relating to the other shooting incident.
b. Defendant fails to show prejudice from joinder
Defendant argues nonetheless that the evidence relating to the restaurant crimes was likely to inflame the jurors against him because the homicide victim in that case was a retired police officer who was killed while attempting to protect his wife. We have recognized some potential for prejudice when the murder victims are police officers killed in the line of duty. (See Odle v. Superior Court (1982) 32 Cal.3d 932, 942 [187 Cal.Rptr. 455, 654 P.2d 225] ["[c]ommunities undoubtedly have special hostility toward `cop killers'"].) The same concerns are not implicated here, however. Moreover, we observe that the callous, coldblooded killing of Ricky Byrd, who was shot down in front of his friends after innocently responding to defendant's request to "give Smoke a message," was no less inflammatory than the events that unfolded at the restaurant. Any potential for prejudice from evidence regarding the restaurant murder was lessened, furthermore, because the evidence of defendant's guilt of the Ricky Byrd murder was strong.
Noting that the Ricky Byrd homicide case, standing alone, did not involve a special circumstance, defendant asserts further that the court's refusal to sever counts converted that matter into a capital case. There is no potential for prejudice under this factor, however. As we recently explained in People v. Thomas, supra, 53 Cal.4th at pp. 799-800, "[o]ur concern in such situations is whether joinder `would tend to produce a conviction when one might not be obtainable on the evidence at separate trials. Clearly, joinder should never be a vehicle for bolstering either one or two weak cases against one defendant, particularly where conviction in both will give rise to a possible death sentence.' [Citation.]" In the present case, the evidence supporting each of the murder cases was not weak and neither case posed the risk of an unjustifiable conviction.
2. Denial of defense motion for a "ski mask" lineup
Prior to the start of trial, the defense moved for a live lineup at which the participants would wear ski masks to partially obscure their faces. Defendant claims that the trial court's denial of that motion was an abuse of discretion and a violation of his right to due process and other constitutional protections. We conclude there was no error.
The record shows the following. At a live lineup conducted on April 30, 1996, 10 days after the restaurant crimes, four eyewitnesses to those crimes identified defendant as the perpetrator who was wearing a ski mask. Four years later, the defense moved that the court order a live lineup at which the participants would wear ski masks. At a hearing on the motion, defense counsel argued that, as a matter of fundamental fairness, the eyewitnesses who identified defendant at the earlier lineup ought to be provided the opportunity to identify him while he was wearing a ski mask, which is how they described the perpetrator. The court observed that it was incumbent on investigators to conduct the initial live lineup, which had occurred shortly after the shooting. The court also noted that at that lineup, investigators adopted defense counsel's suggestion to have the participants wear a black knit cap pulled down to the forehead, covering their hair and ears. In the court's view, the initial lineup amply protected defendant's due process rights and a second lineup was not required. As the court pointed out, whether or not an eyewitness could pick out defendant in a ski mask four years after the incident would neither bolster nor cast doubt on his or her original identification.
Defendant's real complaint appears to be that the initial lineup was suggestive and its results unreliable because, by presenting participants whose faces were not covered by ski masks, it failed to duplicate the conditions at the crime scene. We note that Donna testified she was able to see most of defendant's face when his mask slipped down below his nose. But even if it might have been proper for each of the lineup participants to wear a ski mask like the one worn by the perpetrator (U.S. v. Hinton (D.C. Cir. 1980) 203 U.S. App.D.C. 187 [631 F.2d 769, 774]), there is no authority supporting the proposition that they were required to do so. Even assuming that the participants at the initial lineup should have worn ski masks rather than knit caps, it would not establish defendant's right to a second pretrial lineup. In considering the defendant's claim of a due process right to a pretrial lineup in Evans, this court explained that the inquiry was not whether the receipt of identification evidence at trial is so unfair to the accused as to infringe due process but rather whether "the accused can insist that procedures be afforded whereby the weakness of the identification evidence, if it is in fact weak, can be disclosed." (Evans, supra, 11 Cal.3d at pp. 621-622.) In this case, the original lineup adequately revealed to the defense the weakness of the eyewitnesses' identifications, and defense counsel vigorously challenged the evidence during cross-examination. The court observed, and we agree, that a second lineup would do nothing to assist the defense in testing the reliability of the identifications. The court did not abuse its discretion in denying defendant's request for a ski mask lineup.
3. Denial of the third request for substitution of counsel
The trial court granted defendant's requests to replace his first two appointed counsel. Ten months before the commencement of trial, when defendant sought to discharge his third attorney and substitute new counsel, the court denied the motion. Defendant asserts that the trial court's refusal to grant his request for substitution of counsel constituted an abuse of discretion.
In February 2000, the trial court conducted a pretrial hearing on various motions. Defendant addressed the court directly with regard to one motion, requesting an order for access to the law library. Defendant explained that he needed library access in order to fully understand the proceedings and determine which motions he had a right to file. He complained that his defense attorney, Chuck Nacsin, had failed to properly advise him, advocate for him, and protect his rights.
The trial court denied defendant's request for law library privileges on the ground that it was counsel's role to present motions on defendant's behalf. The court added that Nacsin was one of the most experienced criminal defense attorneys in the county, and, in the court's view, always had demonstrated the highest degree of professionalism and competence. The court also found, however, that defendant's expression of dissatisfaction with Nacsin suggested that he might be requesting substitution of counsel. The court excused the prosecutor from the courtroom so that it could conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44].
At the hearing, defendant read into the record a written statement entitled "Request for a Marsden Hearing," which set forth numerous accusations against Nacsin. Specifically, he claimed that counsel was attempting to "railroad" him by refusing to provide discovery. He also complained that counsel refused to interview the witnesses he had suggested and was not properly investigating issues that defendant brought to his attention. For instance, defendant faulted counsel for failing to follow up on evidence indicating that a defense investigator and detectives from the Colton Police Department had sabotaged the investigation because they knew the victim Fred Malouf and evidence that investigative officers were threatening the witnesses. Defendant also complained that counsel refused to file a motion for the release of police officer personnel files or to seek recusal of the court and the prosecutor on the ground that they likewise knew Fred Malouf. Defendant repeated his earlier allegations that Nacsin was not properly advising him regarding his rights or working in his best interests. He also reiterated that he had no trust or faith in counsel and accused him of conspiring with the police and prosecutors to secure his conviction. Defendant complained finally that Nacsin visited him only once every two to three months and that Nacsin's law office refused to accept his collect calls.
The hearing on defendant's eventual Marsden motion occurred four months later in June 2000. Defendant repeated his earlier complaints that counsel was ignoring his requests to explore whether investigative officers were threatening the witnesses and falsifying evidence. When the court asked Nacsin whether he had discussed those subjects with defendant, he replied that he had done so "many times." Nacsin also indicated that he was pursuing everything he could pursue in the case. Defendant responded that he did not know what counsel was doing. He also asserted that when he and counsel discuss the case, they "collide" and he cannot understand him. As defendant further explained, "I got to be able to trust him, for us to have that attorney-client relationship. And I don't trust him because I don't know ... what he's doing."
The court found no basis for ordering substitution of counsel at that time and denied the Marsden motion without prejudice. In the court's view, defendant's appointed counsel was "one of the more tenacious defense attorneys" to appear in his courtroom over the past 20 years, and the court was certain that if there was evidence suggesting that a witness had been threatened, counsel would vigorously pursue that point during cross-examination. Defendant continued to express frustration with attorney-client communications, saying that when he would ask counsel certain things about the proceedings, he would come away even more confused. He also disclosed, however, that he wanted an opportunity to see if he and counsel could "come to some type of understanding" and "somehow see eye-to-eye" before deciding to go through with his request for a new attorney. Although the court invited defendant to renew his Marsden motion after he had an opportunity to review additional discovery, defendant did not renew the motion.
Defendant contends that the court's denial of his request for substitution of counsel was an abuse of discretion because the complaints summarized, ante, were emblematic of a difficult, unproductive relationship between him and his counsel, which led to an irretrievable breakdown in their ability to work together that substantially impaired his constitutional right to the effective assistance of counsel. We disagree, as explained, post.
4. Disclosure of police officer personnel records
Defendant filed a pretrial motion for an order directing the prosecution to provide the confidential personnel records of 10 law enforcement officers involved in the investigation of the crimes and his postarrest confinement in county jail. He argued that the prosecutor was obligated to disclose the identified records because they amounted to favorable, material evidence within the meaning of Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d. 215, 83 S.Ct. 1194]. At a hearing on the motion, the court indicated that, in an abundance of caution, it found good cause to conduct an in camera review of the personnel records in issue to determine whether any of them showed complaints or disciplinary action involving improper conduct such as falsifying evidence or testifying falsely, or any other potential impeachment material that should be disclosed to the defense. (See Evid. Code, § 1043, subd. (b); Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305]; see generally People v. Gaines (2009) 46 Cal.4th 172, 179 [92 Cal.Rptr.3d 627, 205 P.3d 1074] [summarizing the state law procedures by which a defendant may seek disclosure of police personnel records].) The court conducted separate in camera hearings to review the files provided by the three different law enforcement agencies involved. Neither defendant nor the prosecutor attended the hearings.
The court ordered that the reporter's transcripts of each of the three hearings be sealed, but it announced its rulings in open court. Specifically, the court indicated that it denied disclosure of the records of San Bernardino Police Officers Voss and Filson and Colton Police Officers Morenberg, Owens, and Schiller, finding nothing in their personnel files that was likely to lead to any admissible impeachment evidence. The court ordered that defense counsel be provided access to reports and handwritten notes by two San Bernardino Sheriff's deputies who claimed they were injured in the incident involving defendant at the jail, but it denied disclosure of the remaining files.
The transcripts of the in camera hearings that the court ordered sealed have remained under seal. Noting that neither the transcripts nor the documents reviewed by the trial court were made available to him or his appellate counsel, defendant requests that this court conduct an independent review of
"This court routinely independently examines the sealed records of such in camera hearings to determine whether the trial court abused its discretion in denying a defendant's motion for disclosure of police personnel records. [Citations.]" (People v. Prince (2007) 40 Cal.4th 1179, 1285 [57 Cal.Rptr.3d 543, 156 P.3d 1015]; accord, People v. Chatman (2006) 38 Cal.4th 344, 398 [42 Cal.Rptr.3d 621, 133 P.3d 534].) We have done so in this case.
The sealed record at issue here includes a full transcript of the three in camera hearings, but not the actual personnel files that formed the basis of the trial court's ruling barring disclosure of most of the requested materials. As defendant points out, the trial court refused appellate counsel's suggestion to include in the record on appeal the actual documents that it had reviewed during the in camera hearings. We agree with the trial court's ruling that the transcript of the hearings was sufficient. The sealed transcript that is before us, in which the court "state[d] for the record what documents it examined," is adequate for purposes of conducting a meaningful appellate review. (People v. Mooc (2001) 26 Cal.4th 1216, 1229 [114 Cal.Rptr.2d 482, 36 P.3d 21].)
Having independently reviewed the sealed records, we conclude that the trial court's ruling refusing to disclose the requested personnel files except for the portions relevant to the May 1997 jail incident that involved defendant was neither an abuse of discretion nor a violation of defendant's due process rights. (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 535; People v. Salazar (2005) 35 Cal.4th 1031, 1042 [29 Cal.Rptr.3d 16, 112 P.3d 14].)
B. Guilt Phase Issues
1. Evidence of witness dissuasion
Defendant claims that reversal is required because he was prejudiced by the admission of evidence that a prosecution witness at trial of the restaurant crimes had received a telephone call "from someone" that may have made her afraid to testify. Although defendant is correct that the evidence could not be used by the jury to infer his consciousness of guilt, there was a proper, albeit limited, purpose for introducing the evidence and there is no merit to defendant's assertion that he was incurably prejudiced by its admission, as we explain, post.
Prosecution witness Karen King testified that for a two-week period in February 1996, prior to the restaurant crimes, defendant stayed with her and her boyfriend in the same Highland apartment complex where codefendant Rogers resided. She told the jury that she recalled seeing a handgun in the apartment at the time, although she could not confirm that it belonged to defendant. During direct examination, the prosecutor asked the witness whether she was afraid to be in court. She answered, "No." The prosecutor then followed up by asking, "Did you receive a phone call from someone?" The court sustained defense counsel's hearsay and discovery objections. The prosecutor continued to question the witness, eliciting from her that although she was initially fearful of testifying, she was no longer afraid. At defense counsel's request, the court then conducted a sidebar conference to discuss the objected-to evidence.
Outside the jury's presence, the prosecutor explained that the brother of King's boyfriend had called to tell her "that it would be better for her if she did not come to court and if she did not testify." The court agreed with defense counsel that the prosecutor should have disclosed this information to the defense before the witness's testimony. When defendant's counsel further complained that the prosecutor's line of questioning implied that defendant made a threatening telephone call, the court suggested that defense counsel attempt to elicit from the witness during cross-examination that the call was not from defendant or codefendant Rogers. The court also indicated that, on request, it would instruct the jury with CALJIC Nos. 2.05 and 2.06, regarding the requirements for considering the suppression of evidence as tending to show a consciousness of guilt. Defense counsel moved for mistrial, arguing that the admission of the telephone call evidence denied defendant his federal constitutional guarantees, including his rights to due process and to cross-examine the witnesses against him. The court denied the motion, finding that any prejudice would be diffused by cross-examination and a cautionary instruction expressly directing the jury not to infer defendant's guilt from evidence of an effort to suppress evidence. The prosecutor added that he attempted to present the telephone call evidence solely for purposes of testing the witness's credibility.
Defense counsel introduced the telephone call evidence during cross-examination, and elicited from King that neither defendant nor Rogers had called her or had asked someone to call her. In response to defense counsel's question whether she had been threatened, she replied, "Not threaten. Just told me it would be best if I didn't testify." King also indicated that she was as reluctant to be on the witness stand as she had been to speak with investigating officers five years earlier.
The court instructed on the issue again before closing arguments, this time affirmatively directing the jury not to consider evidence of an attempt to suppress evidence "as tending to show any consciousness of guilt on the defendant's part."
We agree with the trial court that there was a proper, albeit limited, purpose for the introduction of the evidence that someone called King attempting to dissuade her from testifying, which was its effect on King's credibility as a witness. The fact that King came to court and took the witness stand notwithstanding the caller's advice tended to bolster her credibility. (See People v. Guerra (2006) 37 Cal.4th 1067, 1142 [40 Cal.Rptr.3d 118, 129 P.3d 321] [evidence that the defendant's sister offered the witness money to refrain from testifying was relevant to evaluating the witness's credibility]; cf. People v. Burgener (2003) 29 Cal.4th 833, 870 [129 Cal.Rptr.2d 747, 62 P.3d 1] ["[i]t is not necessarily the source of the threat—but its existence—that is relevant to the witness's credibility"].)
Defendant complains nonetheless that the court's instruction directing the jurors not to consider against him the evidence of the telephone call to King did nothing to dispel the inference of consciousness of guilt. He urges this court to adopt the reasoning and result of a 1974 decision by the Indiana intermediate appellate court, which concluded that a new trial should have been granted in that case because testimony by a prosecution witness about having received threats and bribes was "so prejudicial to [the] defendant that no jury could be expected to apply it solely to the question of the credibility of the witness." (Keyser v. State (1974) 160 Ind.App. 566 [312 N.E.2d 922, 924].) Even were we to agree with the Keyser decision that the prejudice to the defendant in that matter could not be cured by an instruction to disregard the improper evidence, the case is readily distinguishable from the present one in important respects. In Keyser, the prosecution's entire case depended on the testimony of the witness who had been threatened. (Id., 312 N.E.2d at p. 924.) Here, by contrast, King's testimony played but a minor role in establishing defendant's guilt of the restaurant crimes; at best, her testimony showed only that two months before the crimes defendant was associating with codefendant Rogers and carrying a firearm. In Keyser, furthermore, the reviewing court intimated that the prosecutor's introduction of the improper testimony was calculated to prejudice the defendant. (Ibid.) The telephone call evidence at issue here, however, was admissible for the proper, limited purpose of assessing the witness's credibility. Finally, in Keyser there was no evidence or instruction advising the jury that the defendant was not involved in the attempted bribe and threat. In this case, the court expressly instructed the jury that defendant had no connection to the telephone call King received. Given the slight significance of King's testimony and the absence of any evidence from which the jury could infer that the telephone call was made at defendant's behest, we reject defendant's assertion that the court's instructions were insufficient to overcome the assertedly prejudicial effect of King's testimony on this point. The court did not abuse its discretion in denying defendant's motion for mistrial, and its ruling allowing the testimony for a limited purpose did not render defendant's trial fundamentally unfair.
2. Courtroom presence of the restaurant murder victim's wife
Defendant claims that the court abused its discretion and deprived him of his various constitutional rights when it allowed Donna, the restaurant murder victim's wife, to remain in the courtroom after testifying for the prosecution. There was no error.
Prior to jury selection in the case, the court conducted a brief hearing on a defense motion to exclude witnesses during the course of trial, and the court agreed that witnesses should not hear the testimony of other witnesses prior to testifying. The discussion, however, focused primarily on whether Donna Malouf Lawrence, the homicide victim's wife and a percipient witness to the incident at the restaurant, would be permitted to remain in the courtroom following her testimony. After being informed that the prosecutor had advised Donna regarding appropriate courtroom demeanor, the court indicated that it would exercise its discretion to exclude from the courtroom any witness or spectator whose conduct would prevent either side from receiving a fair trial. Nonetheless, defense counsel expressed his concern that Donna's presence during the guilt phase would affect the fairness of the possible penalty phase, at which Donna would be called to the witness stand to give victim impact testimony. The court pointed out, however, that the same concern was present in any death penalty case in which victim impact witnesses were present during the guilt phase. In the court's view, once Donna had testified, the rationale for excluding her from the courtroom no longer existed. Although the court ruled that it would allow Donna to remain in the courtroom following her testimony, it reiterated that if it came to the court's attention that anyone in the courtroom engaged in inappropriate conduct, it would not hesitate to exclude such person from the proceedings.
Without defense objection, Donna testified at the guilt phase of trial with the assistance of a victim-witness advocate. At the prosecutor's request, the court instructed the jury regarding the support person's presence and role.
Consistent with the court's earlier ruling, Donna remained in the courtroom after completing her testimony, sitting in the front row. When the next prosecution witness had answered several questions on direct examination, defense counsel complained to the court outside the jury's presence that Donna had been nodding her head in agreement with the witness's answers. The court indicated that it had not observed Donna nodding her head, but suggested that she be told to be more mindful of her gestures. The prosecutor informed the court that he had done so. Although the court overruled defense counsel's objection to Donna's presence, it stated it would monitor the situation and, if a problem arose, it would recommend that Donna sit in the back of the courtroom.
Defendant argues that the presence of a support person to assist Donna during her guilt phase testimony, coupled with Donna's nodding her head in agreement with prosecution testimony and "emotional outbursts" during trial, interfered with the jury's ability to deliberate and reach an unbiased verdict in violation of his right to a fair trial, an impartial jury, and other constitutional guarantees. Because defendant did not object when a victim-witness advocate accompanied Donna to the witness stand, he has forfeited that portion of his claim. (People v. Stevens (2009) 47 Cal.4th 625, 641 [101 Cal.Rptr.3d 14, 218 P.3d 272].) We find no merit to his contention in any event.
Nor are we persuaded by defendant's argument that he was prejudiced further by Donna's nodding in agreement with prosecution witnesses and crying in court while being comforted by support persons. Defendant posits that such conduct would have instilled in the jury powerful feelings of sympathy and revenge, leading to verdicts on guilt and penalty that were based, not on the evidence adduced at trial, but on emotion. His claim of prejudice is unsupported by the record.
There is no showing that Donna's presence in the courtroom following her testimony prejudiced defendant. During the hearing on Donna's continued courtroom presence, the court made clear its intention to exercise its discretion to exclude any spectator whose conduct threatened the fair trial rights of either side. When later informed by defense counsel that he had seen Donna nodding her head in agreement with a prosecution witness, the court indicated that it would monitor her demeanor. After defense counsel subsequently complained that one or more jurors were watching Donna being comforted by support persons during another witness's description of the shooting, the court stated that it had observed no impropriety. The court acknowledged that Donna was upset but noted that she was not making a disturbance. On this record, the court properly exercised its discretion in overruling defense counsel's repeated objections to Donna's presence in the courtroom. Having observed the courtroom proceedings firsthand, the trial judge was in the best
Defendant cites a number of out-of-state decisions reversing the judgments for spectator misconduct in support of his argument that the same result is warranted here. We examined these identical cases in People v. Lucero, supra, 44 Cal.3d 1006. In rejecting the defendant's invitation to adopt the reasoning and result from those decisions, we concluded that none involved the "single isolated outburst" at issue there. (Id. at p. 1023.) We easily reach the same conclusion in this case, in which the conduct in question is even farther afield from the unrelenting, prejudicial disruptions at issue in the cited cases.
3. Circumstantial evidence instructions
Defendant contends he was denied due process because the court's instructions explaining to the jury how to consider circumstantial evidence were contrary to the requirement of proof beyond a reasonable doubt. We disagree.
The court instructed at the two guilt phases with CALJIC Nos. 2.01 and 8.83: the sufficiency of circumstantial evidence to prove guilt and the special circumstance allegations, respectively. In relevant part, both instructions informed the jury that if one interpretation of the circumstantial evidence "appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
Defendant faults the instructions in two respects. First, he argues that telling the jurors they must accept a guilt interpretation of the evidence "that appears to be reasonable" allows a finding of guilt based on proof less than beyond a reasonable doubt. (Cage v. Louisiana (1990) 498 U.S. 39 [112 L.Ed.2d 339, 111 S.Ct. 328].) We have repeatedly rejected the identical contention. "When the questioned phrase is read in context, not only with the remaining language within each instruction but also together with related instructions, including the reasonable doubt instruction, it is clear that the jury was required only to reject unreasonable interpretations of the evidence and to accept a reasonable interpretation that was consistent with the evidence." (People v. Crittenden (1994) 9 Cal.4th 83, 144 [36 Cal.Rptr.2d 474, 885 P.2d 887]; accord, People v. Brasure (2008) 42 Cal.4th 1037, 1058 [71 Cal.Rptr.3d 675, 175 P.3d 632]; People v. Romero (2008) 44 Cal.4th 386, 415 [79 Cal.Rptr.3d 334, 187 P.3d 56].) Defendant acknowledges our prior decisions and urges us to reconsider them. He offers no persuasive reason to do so.
Defendant further criticizes CALJIC Nos. 2.01 and 8.83 for requiring the jury to draw an incriminatory inference when such an inference merely
4. Failure to instruct on voluntary intoxication
Even had defense counsel asked the court to give a voluntary intoxication instruction, however, none was required because there was no substantial evidence either that defendant was intoxicated or that intoxication affected his ability to "actually form a required specific intent." (§ 22, subd. (b); see People v. Roldan, supra, 35 Cal.4th at p. 715; accord, People v. Williams, (1997) 16 Cal.4th 635, 677 [66 Cal.Rptr.2d 573, 941 P.2d 752].) Lateshia Winkler testified that defendant was high when he returned to her apartment around 10:00 p.m., after the incident at the restaurant. She further explained on cross-examination that defendant was stumbling around and "shermed out," meaning that he was under the influence of PCP. During the same line of questioning, however, Winkler also indicated that defendant was "acting normal" before he left her apartment Saturday evening. Defendant points to no evidence suggesting that he was intoxicated at the time of the crimes.
C. Penalty Phase and Sentencing Issues
1. Effect of antisympathy "instruction"
Defendant contends that his death sentence must be reversed because the court's instruction misled the jury regarding the scope of its discretion in determining penalty. We conclude that the jury was not misled.
The complained-of "instruction" was part of the court's introductory remarks to prospective jurors during voir dire. The court provided an
Emphasizing the italicized portion of the court's remarks, defendant contends that the jury was impermissibly instructed not to consider sympathy during the penalty phase. Specifically, he complains that by referring to "the course of this trial through the various phases," and indicating that "we get to all of those phases," the court led the jury to believe that its "no sympathy" admonition was not limited to the determination of guilt. He argues that because the directive was given before the presentation of any evidence in the case, including his penalty phase witnesses, the jurors would have disregarded critical mitigating evidence, which he was constitutionally entitled to have them consider.
Having examined the record as a whole, including the court's instructions, we conclude that the jury was not misled into believing it could not consider sympathy when determining penalty. (See People v. Frye (1998) 18 Cal.4th 894, 1025 [77 Cal.Rptr.2d 25, 959 P.2d 183]; People v. Howard (1988) 44 Cal.3d 375, 433-434 [243 Cal.Rptr. 842, 749 P.2d 279]; People v. Hernandez (1988) 47 Cal.3d 315, 365-367 [253 Cal.Rptr. 199, 763 P.2d 1289].) At the penalty phase, before the presentation of evidence, the court instructed the jury that it was "free to assign whatever moral or sympathetic value" it deemed appropriate to each of the statutory factors it was permitted to consider. Immediately after that, the court directed the jury to "disregard any jury instruction given to you in the guilt or innocence phase of this trial which conflicts with that principle." The court made the same point again at the conclusion of trial, prior to closing arguments, this time adding a directive to disregard "any statements that may have been made during jury selection, where we talked generally about some of the guidelines and principles." Even assuming for argument that at this juncture some jurors may have misunderstood the role of sympathy in their penalty determination, the court's further instruction left no doubt that it was a proper consideration. The court specifically informed the jury, "You were previously instructed at the guilt
Defendant asserts that it is unreasonable to conclude that jurors could or would disregard the "no sympathy" instruction. We disagree. In the course of rejecting a claim similar to the one defendant raises here, we previously have concluded that statements made at the time of jury selection did not "create such an indelible impression" that jurors were unable to follow the court's subsequent, specific instructions. (People v. Holt (1997) 15 Cal.4th 619, 662 [63 Cal.Rptr.2d 782, 937 P.2d 213].) The same conclusion is warranted here.
2. Victim impact evidence
3. Imposition of upper-term firearm enhancement
In connection with each of the murder and robbery counts the jury found true the allegation that defendant personally used a handgun, within the meaning of former section 12022.5, subdivision (a)(1). That provision allows for an additional sentence of 3, 4, or 10 years. The court imposed the upper term of 10 years for each murder conviction and for one of the two robbery convictions.
Defendant asserts that sentencing him with these upper term enhancements violated his Sixth Amendment jury trial right because none of the aggravating factors on which the court relied to impose them had been found true by the jury or admitted by him. (Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856]; People v. Sandoval (2007) 41 Cal.4th 825 [62 Cal.Rptr.3d 588, 161 P.3d 1146].) We agree with defendant that the court erred when it selected the upper term enhancement on the Ricky Byrd murder count, relying on facts not found by the jury. However, the error was harmless beyond a reasonable doubt.
In adding the firearm use enhancement to the sentence for the murder of Ricky Byrd, the court chose the aggravated term "because of the use of two firearms and multiple shots and lack of any provocation." All of the identified aggravating factors were based on the evidence of the underlying crime, and none were established by the jury's verdict or admitted by defendant. (Sandoval, supra, 41 Cal.4th at pp. 837-838, 839.) We therefore agree with defendant that the court violated his federal constitutional right to jury trial when it imposed the upper term for this enhancement.
Contrary to defendant's assertion, we conclude beyond a reasonable doubt that the jury would have found true all of the aggravating circumstances stated by the court had they been charged and submitted to the jury for its consideration. Eyewitnesses to the Ricky Byrd murder testified consistently with one another that when defendant yelled to their group from the backseat window of the car, asking whether they would "give Smoke a message for him," Ricky approached the car and said, "Okay. What's the message?" They further testified that defendant then pointed two guns out the window and fired twice. Defendant did not dispute this evidence. Notably, he presented no defense case at the Byrd trial. Nor did counsel challenge the evidence during closing remarks. Indeed, in the course of arguing that defendant did not act with premeditation and deliberation, counsel asserted that defendant asked the group "quickly, just, `Give Smoke a message,' and boom boom." Counsel also argued that defendant had no intent to kill but rather was firing madly at a parked car and happened to hit the victim as he was ducking down behind it
D. Constitutionality of California's Death Penalty Scheme
Defendant presents numerous challenges to the constitutionality of California's death penalty law that, as he acknowledges, are identical to those that previously have been considered and rejected by this court. We decline his request to reconsider our prior conclusions here. (People v. Schmeck (2005) 37 Cal.4th 240, 303 [33 Cal.Rptr.3d 397, 118 P.3d 451].)
1. Aggravating and mitigating factors
Defendant asserts that California's capital sentencing statute, with its unitary list of aggravating and mitigating factors, fails to guide the sentencer's discretion in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments and their state constitutional counterparts. We have concluded otherwise: Section 190.3 is not constitutionally infirm for not specifying which factors are aggravating and which are mitigating, for not limiting aggravation to the specified aggravating factors, or for not defining the terms
Defendant further contends that section 190.3's aggravating and mitigating factors violate the Eighth Amendment's proscription against the use of vague factors in the penalty phase weighing process. (See Stringer v. Black (1992) 503 U.S. 222, 235 [117 L.Ed.2d 367, 112 S.Ct. 1130].) We previously have rejected the same arguments defendant presents here: Section 190.3, factor (a), which permits consideration of the circumstances of the crime as an aggravating factor, is not impermissibly vague. (People v. Mills (2010) 48 Cal.4th 158, 213-214 [106 Cal.Rptr.3d 153, 226 P.3d 276]; People v. Ervine (2009) 47 Cal.4th 745, 810 [102 Cal.Rptr.3d 786, 220 P.3d 820]; see Tuilaepa v. California (1994) 512 U.S. 967, 975-976 [129 L.Ed.2d 750, 114 S.Ct. 2630].) Moreover, neither the use of the adjective "extreme" in "extreme mental or emotional disturbance" under factor (d), nor the absence of language explaining that these identified circumstances are mitigating rather than aggravating, renders that factor unconstitutionally vague. Nor does the same asserted deficiency invalidate factor (h), regarding impairment due to mental disease, defect, or intoxication. (People v. Griffin (2004) 33 Cal.4th 536, 598-599 [15 Cal.Rptr.3d 743, 93 P.3d 344]; People v. Kipp (2001) 26 Cal.4th 1100, 1138 [113 Cal.Rptr.2d 27, 33 P.3d 450]; People v. Kelly (1990) 51 Cal.3d 931, 968-969 [275 Cal.Rptr. 160, 800 P.2d 516].) Finally, factor (i), the age of the defendant at the time of the crimes, is not unconstitutionally vague merely because it may be considered as a factor in aggravation or mitigation.
2. Procedural safeguards
"The jury need not make written findings unanimously agreeing on the existence of aggravating factors and concluding beyond a reasonable doubt that the aggravating factors exist, that they outweigh the factors in mitigation, and that death is the appropriate penalty." (People v. Clark, supra, 52 Cal.4th at p. 1007.) Nor is there a constitutional requirement that the jury be instructed on any burden of persuasion with regard to the penalty determination. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 328 [128 Cal.Rptr.3d 417, 256 P.3d 543].)
California's automatic appeals procedure is not unconstitutional on the ground that it fails to provide for intercase proportionality review. (People v. Garcia (2011) 52 Cal.4th 706, 764 [129 Cal.Rptr.3d 617, 258 P.3d 751].)
Prosecutorial discretion in deciding whether or not to seek the death penalty does not create a constitutionally impermissible risk of arbitrary outcomes that differ from county to county. (People v. Bennett (2009) 45 Cal.4th 577, 629 [88 Cal.Rptr.3d 131, 199 P.3d 535]; People v. Keenan (1988) 46 Cal.3d 478, 505 [250 Cal.Rptr. 550, 758 P.2d 1081].)
3. Narrowing function
The various special circumstances listed in section 190.2 that render a murderer eligible for the death penalty are not so numerous or broad that they fail to genuinely narrow the class of persons subject to capital punishment. (People v. Vines, supra, 51 Cal.4th at p. 891.) More specifically, the felony-murder and multiple-murder special circumstances adequately narrow the class of death eligible murderers. (People v. Scott (2011) 52 Cal.4th 452, 496 [129 Cal.Rptr.3d 91, 257 P.3d 703], People v. Solomon, supra, 49 Cal.4th at
That the jury may consider the special circumstance finding as an aggravating factor under section 190.3, factor (a), does not run afoul of the Eighth Amendment's narrowing requirement. "[T]he aggravating and mitigating circumstances referred to in section 190.3 do not and need not perform a narrowing function." (People v. Cornwell, supra, 37 Cal.4th at p. 102; see People v. Mendoza, supra, 24 Cal.4th at p. 192.) Nor does consideration of a special circumstance finding in aggravation permit the sentencer unbridled discretion that is weighted in favor of death. (People v. Moon (2005) 37 Cal.4th 1, 40-41 [32 Cal.Rptr.3d 894, 117 P.3d 591]; People v. Kipp, supra, 26 Cal.4th at p. 1137.) Nor does the use of a felony-murder special-circumstance finding as an aggravating factor subject the defendant to a greater likelihood of being sentenced to death than a defendant against whom some other special circumstance allegation has been found true. (People v. Gates (1987) 43 Cal.3d 1168, 1188-1189 [240 Cal.Rptr. 666, 743 P.2d 301].)
E. International Law
Defendant contends that the denial of his state and federal rights to due process and a fair and impartial trial in this case amounted to a violation of customary international law as informed by instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Declaration of the Rights and Duties of Man, which requires that his convictions and sentence be set aside. We reject the assertion. "Because defendant has failed to establish prejudicial violations of state or federal constitutional law, we need not consider whether such violations would also violate international law." (People v. Bolden (2002) 29 Cal.4th 515, 567 [127 Cal.Rptr.2d 802, 58 P.3d 931]; accord, People v. Wallace (2008) 44 Cal.4th 1032, 1098 [81 Cal.Rptr.3d 651, 189 P.3d 911].)
F. Cumulative Effect of Asserted Errors
Defendant argues that the cumulative impact of the asserted errors at the guilt and penalty phases rendered his trial fundamentally unfair and deprived him of other constitutional rights. Because we have concluded there was no error related to the capital offenses or their punishment, there is nothing to cumulate and, in any event, we reject his claim that any asserted cumulative effect warrants reversal.
We order that the abstract of judgment be corrected to conform to the trial court's oral pronouncement that the Penal Code section 12022.5, subdivision (a), gun use enhancement relating to count 1 (murder of Harry "Ricky" Byrd) is 10 years, and the Penal Code section 12022.5, subdivision (a), gun use enhancement relating to count 3 (robbery of Krystal Anderson) is stayed. The judgment is affirmed as so corrected.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., Corrigan, J., and Liu, J., concurred.
We agree with defendant, however, that the abstract of judgment should be corrected with regard to these two convictions and their gun enhancements, and respondent does not argue otherwise. The reporter's transcript indicates that, pursuant to section 654, the court stayed sentence on the Anderson robbery count and its associated enhancements. With regard to the Ricky Byrd murder count, it ordered that imposition of the gun use enhancement not be stayed. However, the abstract of judgment reflects a stayed sentence, rather than 10 years, for the enhancement on the Ricky Byrd murder count, and a term of 10 years, rather than a stayed sentence, for the enhancement on the Anderson robbery. When an abstract of judgment does not accurately reflect the trial judge's oral pronouncement of sentence, this court has the inherent power to correct such an error, either on our own motion or at the parties' behest. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [109 Cal.Rptr.2d 303, 26 P.3d 1040].) Accordingly, we order that the abstract of judgment be corrected to conform to the sentences actually imposed by the court.