A jury convicted defendant Michael Nevail Pearson of the first degree murders of Ruth Lorraine Talley and Barbara Garcia with personal use of a firearm and found true the multiple-murder special-circumstance allegation. (Pen. Code, §§ 187, 190.2, subd. (a)(3), former § 12022.5, subd. (a).)
We affirm the judgment.
A. Guilt Phase
1. Prosecution evidence
On the afternoon of Tuesday, April 25, 1995, defendant, a receptionist with the Conventional Housing division of the Richmond Housing Authority (RHA) was fired from his job because he had repeatedly threatened to "do a 101 California," referring to the infamous 1993 massacre of numerous employees in a law office located at 101 California Street in San Francisco committed by Gian Luigi Ferri, a disgruntled client of the law firm.
b. Defendant's employment at the RHA and statements to coworkers before the murders
In January 1993, defendant began working in a temporary position for the City of Richmond in the Employment and Training Department. He worked for that department for a year and then his employment was terminated. In July 1994, defendant was hired in a temporary position as an office assistant with the Section 8 division of the RHA, which handled the federal rental subsidy program. After about six months, he was hired by the Conventional Housing division in a permanent position as a receptionist. The terms of his employment included a six-month probationary period, which was scheduled to terminate three days after the murders. Talley was defendant's supervisor.
Defendant chatted often with coworker Learinza Morris, and complained that he was treated unfairly and had a heavier workload than his coworkers. Defendant specifically mentioned Talley and Shirail Burton in making these complaints. About two months before the shootings, defendant mentioned to Morris that he had received a poor performance evaluation and that it was unjustified because "his work wasn't being evaluated properly — truthfully." Defendant felt he was being "railroaded to a degree." About three weeks before the shootings, defendant told Morris that he wanted to be transferred
Some months before the shootings, while commuting to work, defendant told coworker Leona Kelly, "Well, I know one thing, she [(Talley)] tries to get rid of me or they try to get rid of me, it's going to be another 101 California."
Defendant complained to Ronald Keeton, a housing project manager at the Conventional Housing division of the RHA, that he was being treated unfairly at work. About two or three months before the shootings, defendant told Keeton, "I ought to pull a 101" or "if something happens to me, or if they get on me or make me quit my job or lose my job[,] there might be another 101 going on here." Keeton believed defendant was joking.
On the Friday before the shootings, defendant approached Janet Robinson at her desk at the RHA and said, "Sometimes, you know, I feel like doing a 101 California Street here." Robinson said, "No, no, you wouldn't do that Michael" and "If you do that, I'll lock myself in the safe." Defendant assured her that he would not shoot her. He told her to not tell anyone about what he had said, claiming it was "just a joke." Although Robinson was afraid to reveal the threat, she mentioned it to Garcia, who became terrified.
c. Defendant's termination
On the day of the shootings, Art Hatchett, the RHA's director, and Talley asked defendant to meet with them in Hatchett's office. Hatchett informed defendant that a decision had been made to terminate his employment at the end of his probationary period because his job performance was unsatisfactory. Defendant was asked to return his building keys and identification badge, and he did. Hatchett gave defendant his business card and offered to discuss employment opportunities with the RHA and the city at some point in the future. Defendant was given his final paycheck, and Hatchett terminated the meeting, which had lasted about six minutes. Defendant was upset and close to tears, but appeared to be "in control of himself" and not "enraged." Hatchett had decided not to discuss the true reason for defendant's termination, his threats to "do a 101 California."
After the meeting, Hatchett walked to Patricia Jones's office and informed Jones that defendant had been fired. Earlier, Hatchett had told Jones and employees of the personnel department that he intended to fire defendant. They had arranged to have a police officer posted outside the building when Hatchett and Talley met with defendant to discuss his termination.
Hatchett returned to the reception area, where defendant was gathering his personal items at his desk. Defendant did not appear to be enraged, and
d. Talley's killing
After the second meeting, Hatchett walked with defendant back to the reception area. Hatchett followed defendant as he moved through the office. As defendant continued to gather his personal belongings, he appeared hurt and sad. Meanwhile, Talley returned to Martinez's office.
Defendant left the reception area but Hatchett did not follow him because he believed defendant was going to the restroom. Moments later, Hatchett was standing with housing project manager Ronald Keeton when he heard an employee screaming that defendant had a gun. He looked down the hall and saw a number of employees scrambling to leave the building. When Hatchett saw defendant running down the hallway holding a gun in his right hand, Hatchett ran outside the building to the parking lot.
Pamela Kime and Eric Spears were working in the conference room when they heard loud voices coming from the hallway. Defendant was arguing with Talley. He told her that he wanted to talk to her again, and she responded that she had said everything she wanted to say and that they had nothing further to talk about. Defendant's voice became louder as he asked, "You mean all of this work I've done is for nothing?" Talley repeated that she had nothing more to say, and defendant asked her, "So are you saying that all of the time I've spent here has been for nothing?" Talley opened the conference room door and yelled, "Go get Art [Hatchett]!" Defendant repeated his question, and Talley ran around the conference table and rushed past Kime.
Spears saw defendant reach for a gun from his coat, and said, "No, Michael, no Michael." Defendant looked at Spears momentarily and shot Talley, who fell and slumped across a chair.
After Kime heard the first gunshot, she turned around in her chair and saw defendant standing over Talley, pointing his gun at her and saying, "I ain't no
As defendant left the conference room, Kime stood up. Defendant returned, pointed the gun at her, and told her to get back "because he wasn't no joke." Kime sat down. Defendant lowered his gun and left the conference room. Kime checked on Talley, who was still alive with blood spurting from her neck. Spears tried unsuccessfully to call 911, and grabbed Kime, telling her they needed to get out of there. Kime decided to remain behind and try to stop the bleeding from Talley's neck.
e. Garcia's killing
After hearing the gunshots, Robinson, Garcia and housing specialist Shirail Burton ran into Jones's office. Burton climbed out a window. Another employee followed her. Robinson and Jones hid under the desk. Garcia ran behind Jones's desk and became trapped in a corner by a computer table, "so afraid that she was running in place," "whimper[ing]." Defendant fired three shots at Garcia.
Robinson came up from under the desk and pleaded with defendant, "Michael, please don't kill me." Defendant said, "Janet, baby, I told you I wasn't going to shoot you." Robinson understood defendant as referring to the conversation they had had the previous Friday. Defendant left. Garcia was sprawled on the floor, breathing heavily, and making gurgling sounds.
On arriving at the scene, police found defendant in the administrative offices and took him into custody.
f. Other evidence
Defendant had legally purchased from a pawn shop the Lorcin. 380-caliber semiautomatic firearm he used in the shootings. After the mandatory 15-day waiting period, he returned to the pawn shop the day before the shootings, picked up the gun, and purchased 50 rounds of .380-caliber ammunition. That evening, defendant went to the shooting range and bought targets for shooting practice, as well as additional ammunition.
When police took defendant into custody, an officer performed a patdown search for a weapon and found none. When the officer asked defendant where he put his gun, defendant said that he placed it on the ledge outside the window. The gun was recovered from a planter box outside the window. It had a bullet jammed in the ejection port, and the magazine clip contained a
Investigators recovered a lunchbox from the reception area that contained a type of plastic bag supplied with the purchase of a Lorcin gun of the kind defendant purchased. Hatchett saw the lunchbox on defendant's desk before he shot the victims. At the police station, an unexpended .380-caliber bullet was recovered from defendant's coat pocket.
The day after the shootings, police searched defendant's apartment in Oakland. They recovered an empty box of .380-caliber ammunition, targets with several bullet holes in them, and a book entitled, Madness and the Criminal Law by Norval Morris. A receipt dated April 24, 1995, for defendant's purchase of a Lorcin .380 semiautomatic firearm from United Jewelry Mart was recovered from inside one of the empty ammunition boxes.
Both Talley and Garcia died as a result of gunshot wounds to the head. Additional evidence based on the autopsy reports and the testimony of a forensic pathologist, Dr. Brian Peterson, is discussed in part II.B.8., post.
2. Defense evidence
During voir dire and at various other times throughout trial, including guilt phase closing argument, defense counsel conceded that defendant shot the victims with an intent to kill, but argued he did not act with the premeditation and deliberation required for first degree murder. The defense presented extensive evidence of the acrimonious working environment at the Conventional Housing division, the hostility that existed between supervisor Lorraine Talley and her coworkers, accusations that Talley showed favoritism toward certain employees, and defendant's belief that Talley and Burton had treated him unfairly.
In addition, Dr. Carol B. Walser, a psychologist who evaluated defendant in April 1996, testified about his mental state at the time of the shootings. Dr. Walser opined that at the time of the shootings, defendant was delusional and suffered from a "brief psychotic disorder with marked stressors," disorganized functioning, chronic posttraumatic stress disorder, an organic "cognitive disorder not otherwise specified," and an impulse control disorder secondary to that disorder. In forming this opinion, Dr. Walser relied on her psychological and neuropsychological evaluation of defendant and her review of the analysis of defendant's Minnesota Multiphasic Personality Inventory II (MMPI-2) prepared by Dr. Alex Caldwell; the results of the Rorschach test
3. Rebuttal evidence
Dr. William Hoddick, an expert in radiology and diagnostic medical imaging, reviewed defendant's brain MRI and testified that it showed tiny fossae in the periventricular and subcortical white matter of his brain. Such abnormalities are seen in brain scans of people over age 50 but generally not those without a history of diabetes or cigarette smoking. Also, tiny fossae are commonly present in those who abuse "speed," "crank," methamphetamine, or cocaine. Dr. Hoddick opined that the fossae were not "clinically significant" abnormalities and would not explain a person's behavior.
Dr. Hoddick said the MRI also showed a small amount of cerebral spinal fluid on defendant's left temporal lobe, consistent with an arachnoid cyst, but "[t]here was no mass effect or pressure associated with it." Dr. Hoddick could see no reason why this particular finding would cause a change in a person's behavior.
Two days after the shootings, at the request of the prosecution, Dr. Paul Berg, a psychologist, interviewed defendant while he was in custody in jail. Dr. Berg did not find defendant to be psychotic and disagreed with Dr. Walser's diagnosis that defendant was delusional and suffering from a brief psychotic disorder when he shot the victims.
Dr. Berg opined that when defendant told Talley "I ain't no joke" before he fired the fatal shot to the back of her head, he acted out of anger, retribution, and revenge. Defendant exhibited organized behavior "[w]hen it became apparent to him that he could not talk to [Talley]... and he shot her and then after the first shot delivered a lethal shot to her head." In Dr. Berg's opinion, defendant's actions belied any claim that he was delusional. Defendant had been concerned for weeks before the murders that he would be fired from his job and he was in fact discharged. According to Dr. Berg, defendant was "absolutely" oriented in reality when he killed Talley.
Finally, Dr. Berg opined that defendant was organized and had a "pretty good memory" when he reminded Robinson, immediately after he fatally shot Garcia, that he had promised her he would not shoot her. The remark indicated that defendant selected his victims and had the ability to recall and refer to a previous conversation. In addition, that defendant brought a concealed gun into work suggested "organization ... in case he got fired."
B. Penalty Phase
1. Prosecution evidence
Numerous witnesses testified about the impact of the victims' deaths on their family, friends, and the community at large. In addition, several eyewitnesses to the murders testified about how they were affected by the crimes and the victims' deaths.
2. Defense evidence
Defendant helped Gary Reynolds, an acquaintance, overcome his cocaine addiction. Defendant was a positive influence in Reynolds's life and taught him he could have a better life and be a better person.
Defendant's uncle, Charles Thomas (Charles), was a childhood friend of defendant's mother, Mary Jane Thomas (Mary Jane), and had known defendant all his life. Charles knew defendant's father, "Junior," who had abandoned defendant and his mother shortly after defendant was born. Charles could not recall anything unusual about defendant's upbringing, except that when defendant was four or five years old, and for unknown reasons, he was sent to live with his biological father's family. However, defendant eventually returned to live with his mother. Within a few years of defendant's return, Mary Jane and her boyfriend, Pete, had two sons together. Pete abused Mary Jane, and they separated when defendant was six or seven years old. About a year later, Mary Jane married Charles's brother, Lafayette Thomas. Thereafter, the couple, defendant, and defendant's half brothers lived in a housing project in San Francisco. Sometime in the 1960's, they moved to Oakland.
Charles knew defendant to be "a very nice kid" who was always "very respectful towards him." He was "totally surprised" when he learned about the shooting and "figured somebody must have really shoved Michael over the cliff. Somebody must have pushed him really hard.... He's never been a violent person."
Mary Jane described defendant as a normal, happy, playful child and an average student, but stated that he was something of a loner. Defendant had seizures in his early childhood years, but was never tested to see if the seizures were related to any abnormal brain activity or might cause him any mental health problems.
After defendant served in the military, he often would talk to himself. He developed a drug addiction, sought treatment at a rehabilitation center, and overcame his addiction. Defendant was happy and proud when he was first
Robert Young, head chef at the Contra Costa County jail in Martinez, testified that, while defendant awaited trial, he and defendant talked about the murders and defendant appeared to express remorse.
Defendant's half brother, William Keith Pearson, recalled that when defendant was about 13 years old, he had a seizure while playing in a park. Defendant was a good son and brother, rarely had to be disciplined, did well in school, and graduated from high school. Defendant believed he was being treated unfairly in his position at the Conventional Housing division, although he never identified the person he believed was mistreating him.
A. Jury Selection Issues
1. Restriction on voir dire
Defendant contends that the death qualification portion of voir dire was inadequate because the trial court failed to clarify the term "mitigating circumstance" or to ask prospective jurors whether they could recognize and consider particular facts as mitigating under section 190.3. The claim lacks merit.
a. Factual background
Before death qualification voir dire commenced, the prospective jurors completed a written questionnaire. In response to a series of multiple choice questions, the prospective juror who eventually was seated as Juror No. 4 (hereafter, Juror No. 4) indicated that the state should "sometimes" (as opposed to "always" or "never") impose the death penalty on "everyone" who kills unlawfully, intentionally, or with deliberate and premeditated intent. In the adjacent explanation section, Juror No. 4 added that "[t]here could be circumstances, such as self defense, fear of life, accidental occurrences, etc. [in which the death penalty should not be imposed]." The trial court asked Juror No. 4 whether he could properly consider and weigh evidence offered in aggravation and mitigation in deciding penalty, and whether he could vote for a life sentence if the mitigating circumstances outweighed the aggravating and impose the death penalty if the opposite were true. Juror No. 4 stated he could.
The People assert that defendant failed to preserve this claim for review because he did not utilize all of his peremptory challenges, express dissatisfaction with the jury as sworn, or raise a specific constitutional challenge to voir dire. We disagree.
Defendant contends that the trial court was obligated to ask prospective jurors whether they were able to identify and consider specific circumstances
Keeping these principles in mind, this court has held that "either party is entitled to ask prospective jurors questions that are specific enough to determine if those jurors harbor bias, as to some fact or circumstance shown by the trial evidence, that would cause them not to follow an instruction directing them to determine a penalty after considering aggravating and mitigating evidence." (People v. Cash (2002) 28 Cal.4th 703, 720-721 [122 Cal.Rptr.2d 545, 50 P.3d 332].) In other words, a trial court errs in precluding all counsel "[from] ask[ing] jurors if they would automatically vote for or against death `in cases involving any generalized facts, whether pleaded or not, that were likely to be shown by the evidence' [citation]." (Id. at p. 720.)
Here, defense counsel was permitted to ask prospective jurors whether they could weigh all the evidence before deciding penalty in a case involving multiple murder and whether they could consider a defendant's lack of criminal history as mitigating. Counsel was also permitted to clarify for the prospective jurors that a defendant who killed in self-defense did not commit murder and would not face a penalty trial. Indeed, as this court has recognized, "it would be `rare ...' to find mitigating evidence in a capital case which could justify or excuse the defendant's conduct." (People v. Crandell (1988) 46 Cal.3d 833, 884 [251 Cal.Rptr. 227, 760 P.2d 423].)
2. Comments regarding the penalty of life without possibility of parole
Defendant contends the trial court erroneously informed prospective jurors during death qualification that they were permitted, but not required, to vote for a life sentence if the mitigating circumstances outweighed the aggravating circumstances. We disagree.
During voir dire of the third panel of prospective jurors, one panelist indicated that he would never be able to vote for the death penalty under any circumstances, and thus would be unable to participate in penalty phase deliberations. The trial court told him that "it isn't the duty of a juror to vote for death or life without the possibility of parole, but it's the obligation of the jury to at least be able to consider those things." It then asked whether it was "getting the [correct] impression from your comments you could not do that?" He responded, "That's correct." Thereafter, this panelist was excused. Two of the remaining panelists eventually served on the jury, as Jurors No. 6, the foreperson, and No. 11.
Preliminarily, defendant forfeited his ability to challenge the court's explanation by failing to make a specific and timely objection. (People v. Mills (2010) 48 Cal.4th 158, 170 [106 Cal.Rptr.3d 153, 226 P.3d 276].) In any event, the claim lacks merit.
Defendant contends that the court's comments to the third and fourth panels erroneously "instructed" the prospective jurors that they were not required to vote for a life sentence under any circumstances, and that this information contravenes section 190.3.
3. Comments regarding aggravating circumstances
Defendant contends that the trial court erred when it stated to prospective jurors during the death qualification portion of jury selection that they could consider the bare elements of murder (e.g., intent to kill, premeditation, deliberation) and "all" of the crime facts as aggravating factors under section 190.3, factor (a), which permits jurors to consider the "circumstances of the crime" in deciding penalty. As a result, defendant claims the court's examination of prospective jurors was inadequate to reveal a potential inability or unwillingness to follow CALJIC No. 8.88, which defines the term "aggravating factor" as "any fact, condition or event attending the commission of a crime which increases its severity or enormity, or adds to its injurious consequences which is above and beyond the elements of the crime itself." (Italics added.) Defendant maintains that because neither the court nor counsel could identify jurors who were disqualified on this basis, the jury as sworn was "tainted." We disagree.
According to defendant, the court erroneously defined "aggravating circumstances" while it conducted individual voir dire of certain prolife or "pro-death" prospective jurors, none of whom were selected to serve on the jury. For example, in qualifying a member of the first panel, the court stated: "In phase two you are going to be asked to evaluate mitigating and aggravating factors. Certainly one of the aggravating factors may be the crime facts themselves, such as whether or not this was deliberate and
Preliminarily, defendant's failure to make a timely and specific objection on the ground he now raises forfeits the claim on appeal. (See People v. Foster (2010) 50 Cal.4th 1301, 1324 [117 Cal.Rptr.3d 658, 242 P.3d 105].) In any event, the claim fails on the merits.
Here, the court preliminarily informed the prospective jurors in each panel that the purpose of the death qualification portion of jury selection was to ensure that their personal views would not preclude them from voting for either penalty. By its questions and comments, the court stressed that at the beginning of any penalty trial, a juror must have an open mind on the question of punishment and consider all the evidence offered in aggravation and mitigation before deciding penalty. Moreover, the court repeatedly emphasized that a juror could not vote for death simply because the defendant was convicted of first degree premeditated murder and a special circumstance was found true. As indicated above, however, the court's remarks varied slightly on occasion, and some may have been understood to mean that the
4. Prospective jurors' ability to follow the law
Defendant contends that the trial court was not evenhanded in conducting death qualification voir dire. Specifically, he contends that, with respect to prospective jurors whose questionnaire responses indicated strong support for the death penalty, the court's questions focused on their willingness to properly consider and weigh evidence offered in aggravation and mitigation in deciding penalty, and avoided the issue of whether the prospective juror could vote for life without possibility of parole. In contrast, in questioning prospective jurors whose questionnaire responses indicated strong opposition to capital punishment, the court inquired about their ability to impose a death sentence, but not whether they would consider all the evidence before deciding penalty. As a result, defendant asserts the jury selection process was unfair.
Preliminarily, because defendant did not object to the adequacy of voir dire on the ground he raises on appeal, the claim is forfeited. (People v. Harris (2005) 37 Cal.4th 310, 330 [33 Cal.Rptr.3d 509, 118 P.3d 545].) It also lacks merit.
While trial courts "should be evenhanded in their questions to prospective jurors during the `death-qualification' portion of the voir dire, and should inquire into the jurors' attitudes both for and against the death penalty to determine whether these views will impair their ability to serve as jurors" (People v. Champion (1995) 9 Cal.4th 879, 908-909 [39 Cal.Rptr.2d 547, 891 P.2d 93]), they are not required to examine each prospective juror in the same manner, "lest the court feel compelled to conduct a needlessly broad voir dire, receiving answers to questions it does not need to ask" (People v. Thornton, supra, 41 Cal.4th at p. 425).
We disagree that the court's voir dire predisposed the selected jury to favor the death penalty. The court examined each prospective juror individually and
5. Group voir dire on attitudes toward the death penalty
Defendant contends that the trial court did not exercise informed discretion in denying his request to conduct the death qualification portion of voir dire with each prospective juror individually and in sequestration. The claim lacks merit.
"In Hovey v. Superior Court (1980) 28 Cal.3d 1, 80 [168 Cal.Rptr. 128, 616 P.2d 1301], this court decided that in capital prosecutions the death-qualification portion of each prospective juror's voir dire should be sequestered, meaning that it should be conducted out of the presence of other prospective jurors. This court did not hold that sequestered voir dire was constitutionally required; instead, we mandated this practice as a rule of procedure. [Citations.] In 1990, however, the voters abrogated this aspect of Hovey by enacting Proposition 115, which added section 223 to the Code of Civil Procedure. That statute provides, in part, that `where practicable' the trial court must conduct voir dire `in the presence of the other jurors in all criminal cases, including death penalty cases.' (Code Civ. Proc., § 223.)" (People v. Jurado (2006) 38 Cal.4th 72, 100 [41 Cal.Rptr.3d 319, 131 P.3d 400].)
Preliminarily, we disagree with the People's assertion that defendant failed to preserve his claim for review because he did not formally object to the court's procedure on the grounds he asserts on appeal. During the discussions regarding death qualification, defense counsel indicated his opposition to the court's intention to conduct group voir dire and offered justification for individualized voir dire. The issue is cognizable. (See People v. Taylor, supra, 48 Cal.4th at p. 606 [defendant who timely objects to group voir dire and proposes that the trial court conduct individually sequestered voir dire "has done all that is necessary"].)
Defendant contends that the trial court erred in denying his request for individual, sequestered voir dire because it misunderstood the scope of its discretion under Code of Civil Procedure former section 223. Specifically, he asserts that the court erroneously assumed the statute limited its discretion to conduct Hovey voir dire in only highly publicized cases or cases presenting unusual circumstances. Defendant also complains that the court erred by deciding the voir dire issue before it reviewed the prospective jurors' written responses to the juror questionnaire.
An appellate court reviews a trial court's denial of a motion for individual and sequestered voir dire for abuse of discretion. (People v. Lewis (2008) 43 Cal.4th 415, 494 [75 Cal.Rptr.3d 588, 181 P.3d 947].)
Defendant fails to show an abuse of discretion. Viewed in context, the court's comments, described above, do not show that it misunderstood its discretion under Code of Civil Procedure former section 223. Instead, the statements reveal the court's correct understanding that whether Hovey voir dire was required was a matter falling solely within its broad discretion and that it might order such voir dire when warranted by the circumstances of a
Additionally, the court invited counsel to comment on its proposed approach and solicited suggestions for any alternative procedures they cared to propose. The court's actions suggested it was well aware of its discretion under Code of Civil Procedure former section 223. Furthermore, the trial court's rejection of defense counsel's argument that individualized voir dire would yield more candid responses was reasonable. (See People v. Taylor, supra, 48 Cal.4th at p. 607.) The court, moreover, conducted individual, sequestered voir dire when a prospective juror expressed concerns about the death penalty and also permitted counsel to question prospective jurors about their responses to the written questionnaire.
Finally, defendant contends that the court's denial of his request for Hovey voir dire deprived him of his rights to a fair trial and impartial jury. We disagree. (See, e.g., People v. McKinnon (2011) 52 Cal.4th 610, 633 [130 Cal.Rptr.3d 590, 259 P.3d 1186]; People v. Avila (2006) 38 Cal.4th 491, 559 [43 Cal.Rptr.3d 1, 133 P.3d 1076].)
Defendant claims the trial court erred in denying his motion under Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler) based on the prosecutor's exercise of a peremptory challenge to excuse an African-American prospective juror. We disagree.
During jury selection, defense counsel objected to the prosecutor's excusal of Prospective Juror S.G., an African-American, on the ground that there
"`When a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial court's ruling. [Citations.] We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question.' [Citation.]" (People v. Guerra, supra, 37 Cal.4th at p. 1101.)
Preliminarily, defendant asserts that, because the trial court did not articulate the standard it used in denying his Batson/Wheeler motion, we must assume that it applied the "strong likelihood" standard that Johnson disapproved, instead of the correct "reasonable inference" standard under Batson. Defendant contends that because the court failed to properly determine whether he established a prima facie case of racial bias, its ruling should be accorded no deference and reversal is required. We disagree.
"Regardless of the standard employed by the trial court, and even assuming without deciding that the trial court's decision is not entitled to deference, we have reviewed the record and, like the United States Supreme Court in Johnson, supra, 545 U.S. 162 ..., are able to apply the high court's standard and resolve the legal question whether the record supports an inference that
Defense counsel sought to establish a prima facie case of discrimination based solely on the circumstance that the prosecutor exercised his second challenge against one of three African-American prospective jurors on the 24-member panel. On appeal, defendant contends that a prima facie case is established because, in excusing Prospective Juror S.G., the prosecutor had used 50 percent of his peremptory challenges against a group comprising only 12.5 percent of the 24-member panel.
We have held that "[a]lthough the prosecutor's excusal of all members of a particular group may give rise to an inference of impropriety, especially if the defendant belongs to the same group, that inference ... is not dispositive...." (People v. Crittenden (1994) 9 Cal.4th 83, 119 [36 Cal.Rptr.2d 474, 885 P.2d 887]; cf. People v. Guerra, supra, 37 Cal.4th at p. 1101 [no prima facie showing where the prosecutor excused the only Hispanic sitting in the jury box, with only two other Hispanics remaining on the entire panel].) The prosecution did not excuse all African-American prospective jurors. Defense counsel acknowledged that "[his motion] was probably [too] early" to succeed. Indeed, defendant points to no "suspicious" appearance created by the prosecutor's use of his second peremptory challenge against S.G. (See People v. Lancaster (2007) 41 Cal.4th 50, 76 [58 Cal.Rptr.3d 608, 158 P.3d 157] [the percentage of African-American women excused by the prosecutor was not "`suspicious,'" nor had it "reached a level that suggested an inference of discrimination"].) In any event, the record suggests that the prosecutor had several race-neutral reasons for challenging this juror.
During voir dire, Prospective Juror S.G. described herself as very religious and indicated she would find voting for the death penalty "hard" because of her religious beliefs. (See People v. Hoyos (2007) 41 Cal.4th 872, 902-903 [63 Cal.Rptr.3d 1, 162 P.3d 528] [a prospective juror's equivocation about the death penalty and strong religious beliefs against capital punishment provide race-neutral reasons for a prosecutor's decision to exercise a peremptory challenge].) In addition, like defendant, S.G. was a "governmental" employee and "responsible to a supervisor." One of S.G.'s neighbors, who was employed by the City of Richmond, first informed her about the case. Also, S.G. indicated in her questionnaire that psychologists and psychiatrists "are good," that they "would have a good opinion" in court, and that either she or a close relative had seen a psychologist or psychiatrist. Further, S.G. was acquainted with the prosecutor from prior employment in which she had cleaned his office, and also knew defense witness Connie Taylor. Each of these responses individually would provide an adequate reason other than racial discrimination to support the prosecutor's challenge.
7. Asserted error in granting defendant's challenge for cause of a prospective juror
Defendant claims that the trial court improperly granted his request to exclude a prospective juror for cause. Defendant challenged the juror due to concern that she would automatically favor the death penalty. The court granted defendant's challenge based on her death penalty views and in doing so, expressed concern that the prospective juror stated "she would vote according to certain feelings she had about race."
Defendant now claims that the trial court applied the Witt standard in a racially discriminatory manner. However, "defendant is not free to contend on appeal that the trial court erred in granting his motion to excuse the prospective juror for cause." (People v. Schmeck (2005) 37 Cal.4th 240, 265 [33 Cal.Rptr.3d 397, 118 P.3d 451].) In Schmeck, the trial court granted the defendant's challenge for cause of a prospective juror on the ground that the prosecutor had made an assertedly impermissible comment to that juror that might later improperly infect the jury's penalty deliberations. (Id. at pp. 264-265.) We held the defendant forfeited the claim that the trial court erred by granting his challenge because he failed to pursue a remedy by other methods available at trial short of excusal (e.g., a clarifying instruction) for any misunderstanding arising from the assertedly improper comment. (Id. at p. 265; see People v. Hill (1992) 3 Cal.4th 959, 1003 [13 Cal.Rptr.2d 475, 839 P.2d 984] [defendant's joinder in the prosecution's challenge for cause forfeited his claim that the trial court erred in granting the challenge].) Defendant maintains that the claim is properly before us because, as the high court has explained, a discriminatory jury selection process inflicts harm on not only the defendant but also the excluded juror and community at large. (See Batson, supra, 476 U.S. at p. 87; Powers v. Ohio (1991) 499 U.S. 400, 406 [113 L.Ed.2d 411, 111 S.Ct. 1364].) However, whatever harm an erroneous ruling on a challenge for cause may inflict on the excluded juror and community at large, a defendant may waive his right to complain. In People v. Edwards, supra, 54 Cal.3d 787, a local television station had requested extensive media coverage of the entire trial. (Id. at p. 812.) The defendant objected, and the court denied the request at least during part of jury selection. (Ibid.) On appeal, the defendant argued that the ruling violated the public's right to a public trial. We held that the defendant could not assert
Further, to the extent defendant frames his claim as one of judicial bias or racial discrimination by the trial court in deciding his challenge for cause, it is forfeited on appeal because he failed to alert the court to the perceived bias. (See People v. Elliott (2012) 53 Cal.4th 535, 572 [137 Cal.Rptr.3d 59, 269 P.3d 494] [defendant forfeited the claim that the trial court exhibited racial bias during the jury selection process by failing to raise the issue at trial].)
8. The prosecutor's assertedly argumentative question
During jury selection, defense counsel told the prospective jurors that defendant did not dispute having killed two people unlawfully and "the questions that you will be confronted with in this case do not have to do with ballistics or who shot what and when." Thereafter, the prosecutor asked a prospective juror whether he heard defense counsel state, "You don't have to know anything about ballistics" and whether "[it] might make a difference if somebody got shot in the head and died of arterial damage, shot in the ... back of the head, execution style. It might tell you somebody's ... state of mind at the time he pulls the trigger, right?" Counsel objected without stating a legal basis. Instead, he disputed the prosecutor's assertion, stating "[t]hat doesn't sound like ballistics to me. It has to do with medical evidence." The trial court overruled the objection. Here, defendant contends the court's ruling was erroneous because the question was argumentative.
Defendant forfeited the issue by failing to object on this basis. In any event, the court did not abuse its discretion by allowing the prosecutor to respond in kind to an argument defense counsel had made earlier in jury selection.
B. Guilt Phase Issues
1. Alleged prosecutorial misconduct and erroneous trial court rulings
Defendant contends that, during the guilt and penalty phases, the prosecutor engaged in many instances of misconduct and the trial court made numerous erroneous evidentiary rulings.
Except in a few instances specifically identified below, defendant did not object to the alleged instances of misconduct or trial court error or, when an objection was sustained, request that the court admonish the jury to disregard the impropriety. Nor did defendant complain that any admonition the trial court did give was ineffective. Therefore, defendant forfeited these claims of misconduct and trial court error. (People v. Hill (1998) 17 Cal.4th 800, 820 [72 Cal.Rptr.2d 656, 952 P.2d 673].)
Citing People v. Hill, supra, 17 Cal.4th at pages 820-821, defendant acknowledges that his counsel did not always enter timely and specific objections, but claims that failure should be excused because an objection would have been futile and counterproductive. This case, however, is far removed from the circumstances presented in Hill. That "was an extreme case" in which "the prosecutor's `continual misconduct, coupled with the trial court's failure to rein in [the prosecutor's] excesses, created a trial atmosphere so poisonous' that continual objections `would have been futile and counterproductive to his client.'" (People v. Riel (2000) 22 Cal.4th 1153, 1212 [96 Cal.Rptr.2d 1, 998 P.2d 969].) The record in this case does not support defendant's claim, for example, that the court "was quick to find fault in defense counsel's objections" and discouraged him from making appropriate objections. Nothing in the record suggests any objections or request for an admonition would have been futile. Accordingly, as indicated below, defendant has forfeited most of the claims.
a. The prosecutor's assertedly leading questions
Defendant contends the prosecutor committed prejudicial misconduct by improperly asking leading questions of several witnesses. "`[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]'" (People v. Stanley (2006) 39 Cal.4th 913, 952 [47 Cal.Rptr.3d 420, 140 P.3d 736]; accord, People v. Fuiava (2012) 53 Cal.4th 622, 679 [137 Cal.Rptr.3d 147, 269 P.3d 568].)
On direct examination, the prosecutor asked the RHA Director Art Hatchett, "So at least in terms of his performance on the job, [defendant] had no difficulty premeditating and deliberating?" Defense counsel objected on the ground the question was leading, and the court sustained the objection. Thereafter, the prosecutor rephrased the question: "Did you perceive any difficulty on the part of [defendant] to think out in advance the things that he needed to do to get the job done at the Housing Authority?" Hatchett answered, "No."
Defendant forfeited this claim by failing to object to the question as rephrased, and in any event, he fails to demonstrate the question was improper. The claim is therefore without merit.
Next, defendant cites as "leading" the following question that the prosecutor posed to Hatchett regarding a letter defendant wrote to Talley in which he described his "improvement goals": "So at least as of March of 1995, did you perceive any kind of defect, mental or otherwise, in the mind of [defendant]
Defendant next complains about the prosecutor's question to coworker Janet Robinson concerning defendant's perceptions of reality while he and she occasionally discussed current events and social issues at work. Specifically, the prosecutor asked Robinson, "And during these conversations did you ever detect any kind of defect or oddity that [caused] [defendant] to not really perceive reality at all ...?" Robinson responded, "No, I don't think there was any defect or anything. I just think that he had a different perspective and things, he seemed to dislike — ." As defendant concedes, he did not object to this question as leading. Therefore, the claim is not cognizable on appeal. In any case, the question was not improper. The prosecutor did not attempt to elicit a particular response from Robinson. Rather, he offered her an opportunity to relate her observations, if any, based on her experience working and conversing with defendant at the RHA, of defendant's inability to perceive reality. The same is true of the prosecutor's followup question to Robinson: "Did he seem to be speaking with you in an appropriate way about these issues that you talked about?" As the court indicated in overruling defense counsel's "leading" objection, the prosecutor was merely confirming Robinson's previous testimony that she did not perceive defendant as unable to communicate rationally during their conversations. There was no misconduct.
Thereafter, Robinson testified that, on the first day of defendant's employment at the Conventional Housing division at the RHA, he told her he had "heard a lot about the department" when he worked at the Section 8 division. The prosecutor asked the witness, "But if I understand you correctly at least at that time he didn't share with you what [he had heard]?" On defense counsel's objection to the question as leading, the court conducted a sidebar conference and explained that it would allow the attorneys to ask leading questions for the purpose of laying a foundation or clarifying earlier testimony. Thereafter, the court sustained defense counsel's objection and, thus, contrary to defendant's contention here, he suffered no prejudice. Defendant's additional complaint that the court failed to admonish the prosecutor is forfeited because he failed to request an admonition.
Next, after Robinson testified that at times defendant violated office protocol by permitting applicants to access areas of the office restricted to employees, the prosecutor asked a series of leading questions about defendant's compliance with other office procedures. The court sustained defense
Next, the prosecutor asked Robinson, "There — was there at least in your perception as a Housing Specialist some unnecessary and repetitive work being done as a result of the way [defendant] — ," and defense counsel objected that the question was leading. The court did not rule on the objection, and the prosecutor immediately rephrased his question, "Can you tell us whether or not there was some unnecessary work that was being done as a result of the way [defendant] was doing his job?"
Defendant complains that the question was leading. The claim is forfeited, however, because he failed to object to the question as rephrased. In any event, the question complied with the court's guidelines. Further, assuming the question suggested defendant performed unnecessary work, no prejudice ensued, as the question called for testimony cumulative of other evidence that defendant performed his job poorly.
Next, defendant contends that the court erroneously overruled defense counsel's objection that the prosecutor was improperly suggesting to Robinson that when defendant said, "I ain't no joke," he was "leaning over" Talley's body in a particular position. Not so. The witness had already testified that defendant was standing over Talley when he made the statement. In compliance with the court's guidelines, the prosecutor properly sought clarification on the point. The court did not err.
Next, defendant contends the prosecutor improperly questioned Ronald Keeton, a housing project manager at the RHA, about defendant's statement that he "ought to pull a 101." Specifically, Keeton was asked, "you had seen publicity about just how much harm a 101 California could cause" and the "101 California" "affected a lot of people?" Defense counsel initially objected that the question was leading, but then asserted that "it's not even a
Next, defendant complains of the following questions posed to Dr. Berg: (1) "do you have an opinion as to what a statement like `I ain't no joke' might mean in terms of the psychiatric condition of the person who is speaking it?"; (2) does a crime such as Talley's murder speak of "revenge?"; (3) "Is there anything delusional or hallucinatory in a crime like [Talley's murder] in your judgment?"; (4) "is [defendant's statement to coworker Learinza Morris that he felt as if his boss was going to stab him in the back] [the] kind of information you're referring to when you suggest that especially since Mr. Pearson knew for weeks that his job was in jeopardy, there was nothing delusional about what was going on in his mind on the [the day of the shootings]"; (5) "would a person who engages in an act of work place violence necessarily be delusional or psychotic?"; and (6) "would any of those personality disorders [(`obsessive compulsive and schizoid and paranoid')] in any way prevent a person from committing deliberate and premeditated murder?" However, because defendant did not object on the ground the questions were leading, the claim is not preserved for appellate review.
Additionally, none of the questions was impermissibly leading. Each was framed in accordance with the court's guidelines and none of them suggested a particular answer. Rather, each question permitted the expert to offer his opinions on matters based on his knowledge of the existence of specific facts. The questions involved the application of specific diagnoses to hypothetical scenarios that permitted the presentation of the experts' testimony in a
b. Speaking objections
On several occasions during Defense Counsel Veale's cross-examinations of Art Hatchett and Shirail Burton and direct examination of Toni Lawrence, he attempted to elicit testimony related to the purportedly "poisonous" working environment that existed at the RHA before defendant's employment there. The court sustained most of the prosecutor's objections to defense counsel's questions on grounds of relevance and hearsay, and defendant does not challenge those rulings here. Rather, defendant claims that the prosecutor, Mr. Jewett, repeatedly posed improper speaking objections and, in doing so, attacked defense counsel's integrity and motives. Also, defendant asserts that the court "added to the problem" by admonishing counsel in front of the jury. The claim is without merit.
(1) Art Hatchett
On cross-examination, defense counsel asked Hatchett, "[H]a[ve] you heard [of] complaints that [Burton] didn't do her work?" The prosecutor objected to admission of the testimony as follows: "MR. JEWETT: Judge, to suggest that this is not being offered for the truth of the matter is disingenuous. This is an effort to prove that Shirail Burton doesn't do the work that she — [¶] MR. VEALE: Judge, I'm sorry. [¶] MR. JEWETT: ... somehow — [¶] MR. VEALE: I'm sorry. If there's an objection, it seems to me there should be an objection, not more than an objection.... MR. JEWETT: And it's hearsay again. [¶] THE COURT: I'm going to sustain hearsay at this point." Counsel proceeded without comment and subsequently asked Hatchett to confirm the existence of additional employee complaints at the RHA. The prosecutor interjected, "It's calling for hearsay. Essentially it's like defense counsel is asking the witness to confirm rumors." Counsel asked "if we could have an objection," and the prosecutor rephrased, "Objection, irrelevant. Calls for hearsay." The court sustained the objection, and counsel complained no further.
Defense counsel asked Hatchett whether he was aware of any memorandum concerning disputes between housing managers and Patricia Jones that circulated during the six-month period preceding the murders when defendant was employed by the Section 8 division. The prosecutor objected on hearsay grounds, and counsel responded that he was not offering the evidence for the truth of the matter. Before the court ruled on the objection, the prosecutor
Defense counsel then asked Hatchett whether, at any time "throughout your life," he had ever heard a person express an intention to harm someone but actually intended only to "express displeasure at something the [person] has done" or joke about what the person did. The court sustained the prosecutor's objection that the question called for irrelevant matter. "Counsel, we're dealing with a case here, it's not relevant." Outside the presence of the jury, the court granted counsel's request to make a record of his intention to continue objecting to any speaking objections by the prosecutor. Counsel also stated he felt that comments the court had made in ruling on previous objections were demeaning. In response, the court agreed with counsel that speaking objections were inappropriate and directed the prosecutor to state only a legal basis in support of any objection. With regard to counsel's second concern, the court stated: "Mr. Veale, the only reason I make comments is because I feel an attorney does not understand, because you or Mr. Jewett continue to do something after an objection has been sustained on a topic which has already been ruled upon, so to the extent that I feel you need the correction and need the clarification, I will do so to make sure you understand what the court's ruling was."
Preliminarily, defendant did not object to the majority of the prosecutor's speaking objections or otherwise request an assignment of misconduct in each instance. When defendant did object, he did not also request an assignment of misconduct or ask that the jury be admonished to disregard the prosecutor's remarks. Because an admonition would have cured any harm, defendant is not excused from complying with the objection requirement. Therefore, the claims were not preserved for appeal. (People v. Fuiava, supra, 53 Cal.4th at p. 679.) In any event, the claim lacks merit.
Next, we reject defendant's contentions that the court "added to the problem" of the prosecutor's alleged improprieties by commenting that defense counsel appeared to be "rumor mongering." In stating that counsel appeared to be trying to elicit evidence of "rumors," the court was expressing its apparent frustration with counsel's repeated attempts to introduce evidence of complaints about the RHA employees made long before defendant was hired at the agency. When counsel asked Hatchett whether, sometime "throughout [his] life," he had heard anyone state an intention to harm someone that he or she did not actually intend to act on, the court, with understandable exasperation, commented, "[W]e're dealing with a case here." As the court later explained to counsel outside the presence of the jury, it expected counsel to abide by its rulings and would continue to remind counsel when it perceived counsel as needing "correction" and "clarification." The claim fails on the merits.
(2) Shirail Burton
On cross-examination, Shirail Burton testified that while defendant was employed at the RHA, the employees in the Conventional Housing division spoke cordially to Section 8 division employees, whereas Section 8 division employees expressed "animosity toward the Conventional [Housing] department." Defense counsel then asked the witness "was it true [that] you walked into the Section 8 [division] and said I am going to get the FBI in here and ha[ve] Toni [fired]." The prosecutor objected to the question as argumentative and vague as to time, and said, "Mr. Veale is trying to prejudice this jury with that last remark." The court sustained the objection, stating, "Seems to be. I am going to sustain the objection, counsel." Counsel did not comment on the prosecutor's speaking objection, but requested an opportunity to demonstrate the relevance of the discord that allegedly existed between the Section 8 and Conventional Housing division employees before defendant was hired by the latter. Subsequently, in the absence of the jury, counsel made his offer of proof, and the court again ruled that the evidence was irrelevant: "[I]t's totally foreign to this particular litigation inasmuch as [defendant] was not present at any of the time[s] discussed by these event[s]."
Defendant forfeited his claim that the prosecutor committed misconduct by remarking that defense counsel was trying to prejudice the jury against
(3) Toni Lawrence
On direct examination, defense counsel asked Toni Lawrence a series of questions related to her observations of Talley's interactions with the employees she supervised. When the court sustained the prosecutor's objection based on "hearsay," "[g]ossip," and "[r]umor," counsel did not respond. Here, defendant claims the prosecutor's speaking objection constituted prejudicial misconduct. By failing to object, however, defendant forfeited the claim on appeal. In any event, the isolated, stray remarks were harmless.
c. Defense witness Celia Gardner
Defendant contends the prosecutor improperly attempted to impeach defense witness Celia Gardner, a former employee of the RHA, by asking her whether she was aware of the existence of a felony bench warrant for her arrest on charges of grand theft, perjury, and check fraud.
After Gardner initially denied knowledge of an outstanding warrant for her arrest on the above noted charges, defense counsel objected and the prosecutor specifically asked the witness whether she had fraudulently misappropriated a "social services check." The court interrupted and indicated the witness should be advised of her rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]. When the prosecutor commenced to do so, counsel objected. The court excused the jury and conducted a hearing on the matter. The prosecutor informed the court that "we have very conclusive evidence showing on May 5th, 1996, that this witness cashed a Social Services or Social Security check, she left her thumb print on that check. [¶] The following day she filed an application under penalty of perjury that the check had been lost. The check was then replaced and on May 10th, she then cashed that check. [¶] A felony complaint charging check fraud, perjury, and grand theft has been filed against her. There is a $30,000 bench warrant for her arrest. It's that incident that I want to inquire into." The court stated that it would "take the [prosecutor] at his word that there is a complaint filed," and advised the witness of her rights.
After briefly describing his intent to offer the evidence to establish the witness's bias, the prosecutor conceded that he did not have independent
Preliminarily, we disagree with the People that defendant has forfeited the claim of misconduct. Defense counsel's objections to the admissibility of the evidence for impeachment purposes sufficed to preserve this issue for appeal. (See, e.g., People v. Young (2005) 34 Cal.4th 1149, 1186 [24 Cal.Rptr.3d 112, 105 P.3d 487].) Nonetheless, the claim fails on the merits.
Here, the court did not find the prosecutor lacked a good faith belief for his question concerning the warrant. To the contrary, the court accepted as true that the prosecutor was reading from a complaint filed approximately four months earlier charging Gardner with fraud, and impliedly found the prosecutor had a good faith basis in asking about the charge. We find nothing in the record from which to conclude the court's decision was an abuse of discretion. Therefore, to the extent the prosecutor sought to impeach the witness with evidence that she had engaged in the alleged fraud, we cannot say the prosecutor acted improperly.
Further, even if the prosecutor should not have questioned Gardner about the warrant, the misconduct was harmless. The witness admitted that she was suspended from the RHA for improperly giving individuals priority on the waiting list for housing, and was ultimately terminated because she was found in possession of laundry tokens that had been stolen from the RHA. Finally, the court admonished the jury to disregard any mention of the arrest,
d. Cross-examination of Dr. Walser
On cross-examination, the prosecutor questioned Dr. Walser about her consideration of the reports prepared by Drs. Kincaid and Wilkinson in forming her opinion of defendant's mental state at the time he killed the victims. Defense counsel had consulted with Drs. Kincaid and Wilkinson before trial, but did not call them to testify. Defendant contends that the prosecutor's questions, discussed below, were argumentative and that the trial court abused its discretion in permitting the prosecutor to pose them. We disagree.
Defendant complains about the following portion of cross-examination: "[The prosecutor:] Essentially the three of you were getting your 2 [sic] stories together before you formalized in a report, is it not? [¶] [Defense counsel:] That's truly objectionable. I object to — [¶] [The prosecutor:] It's a question. [¶] THE COURT: I will overrule the objection. [¶] You could answer the question if you have an answer. [¶] [The prosecutor:] You were all getting your diagnoses, your opinions, whatever you want to call it, together so everybody lined up saying basically the same thing before any of you wrote a report; isn't that true? [¶] [Dr. Walser:] I could say very clearly to that that I came to my own opinions independently."
Defendant also finds fault with the following portion of the prosecutor's recross-examination: "[The prosecutor:] So the points that I've tried to bring up during a fairly lengthy cross-examination at every opportunity you've taken, you have taken, described ... a defensive posture to protect your opinion, right? [¶] DR. WALSER: No, I feel like I'm trying to explain what I understand. And at times the questions have only offered me or tried to have me offer only a part of it and it's an inaccurate representation. [¶] What I am dedicated to is making sure that it's my opinion and the test data and everything that I have done are represented accurately. [¶] ... [¶] [The prosecutor:] When [defendant] actually went about the process of killing people, he actually did it very efficiently, didn't he? [¶] [Defense counsel:] That's argumentative. Argumentative, judge, objection. [¶] THE COURT: Overruled. [¶] [The prosecutor:] It was actually a very efficient job in his — job in his mind, it was to kill people, he actually did it in a very organized and efficient way, didn't he? [¶] DR. WALSER: I guess I would have to think about the word efficient."
e. The prosecutor's remarks at the bench
Defendant contends that the court permitted the prosecutor to make inappropriate remarks "in earshot of the jury." The claim fails.
During counsel's redirect examination of Dr. Walser, defense counsel informed the court that he might have to testify regarding a matter he discussed with defendant. Counsel said he had made no notes of the communication and provided no discovery on the matter to the prosecution. The prosecutor responded, "I look forward to the opportunity to cross-examine [defense counsel] because I assume he will be laying a foundation."
Outside the presence of the jury, defense counsel complained that the prosecutor "[stood] back two or three feet" and spoke "so that the Court could hear it ... as well as everybody else in the [court]room" and that "what [the prosecutor]'s doing is trial lawyering, but he's not doing it fairly." Counsel also said he had previously complained that the prosecutor spoke loudly at times, the prosecutor did not "play by the rules and play fairly," and the prosecutor prefaced each question with argument. The prosecutor denied he had raised his voice as he stepped away from the bench.
The court acknowledged that the prosecutor made the above statement as he stepped away from the bench but noted that he was "facing away from the jury." The court stated that it did not detect any difference in the tone of the prosecutor's voice but accepted the fact that it "may have carried further."
The claim lacks merit. Defendant offered no evidence that the jury actually heard the prosecutor's remark, and he therefore cannot show prejudice. Even
f. State of mind evidence
Defendant contends that the trial court erred in overruling his objections to the admission of Rodney Ferguson's testimony that he saw defendant nod while sitting in the patrol car after the shootings and Robinson's, Garcia's, and Burton's testimony that they feared defendant. On appeal, defendant maintains the evidence was irrelevant and the court's failure to sustain these objections "discouraged other appropriate objections and, in cumulative effect, denied [defendant] due process of law." We reject the claim.
Prosecution witness Ferguson was employed by the City of Richmond when defendant worked in the Employment and Training Department. Ferguson was acquainted with defendant and testified that he had a conversation with him about two hours before the murders. Ferguson said defendant told him that he was afraid he would be fired and that he felt "his boss" was "doing him in" and "stabbing him in the back." Defendant turned his back to Ferguson and made a stabbing motion. Defendant then said that he could "shoot" his boss for "doing him in." After the shootings, Ferguson saw defendant in custody in the backseat of a police car, and defendant turned his head toward Ferguson and nodded. Ferguson interpreted this to mean, "[Y]ou know, I said I was going to do it and I did it." Defense counsel objected that the testimony was irrelevant and speculative. The court sustained the objection except to the extent that Ferguson testified that he saw defendant nod. The prosecutor then asked him whether he thought that by nodding, defendant was alluding to their earlier conversation. Over counsel's objection that the question called for irrelevant and speculative testimony, Ferguson agreed that at that moment, he thought of his conversation with defendant.
On direct examination, Janet Robinson testified without objection that, four days before the murders, defendant told her, "[s]ometimes, you know, I feel like doing a 101 California Street in here" and that she told Garcia about defendant's threats. Robinson also testified that she feared defendant would kill her if he learned she had told anyone of his threats. Over defense counsel's hearsay objection, Robinson stated that both before the day defendant made the threat and after she reported the threat to Garcia, Garcia told her that she feared defendant "was going to kill her [(Garcia)]."
Defendant contends that evidence of Ferguson's interpretation of defendant's nod while he sat in the backseat of the patrol car, and of Robinson's, Garcia's, and Burton's fear of defendant, was irrelevant, and that the court abused its discretion in overruling defense counsel's objections to admission of this evidence. As a consequence, defendant maintains that his attorney was discouraged from making "other appropriate objections."
"A judgment will not be reversed on grounds that evidence has been erroneously admitted unless `there appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion ....' (Evid. Code, § 353, subd. (a). Italics added.) Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence." (People v. Mattson (1990) 50 Cal.3d 826, 853-854 [268 Cal.Rptr. 802, 789 P.2d 983].)
As discussed above, with respect to the admission of Robinson's testimony, defendant did not object on relevance grounds. Therefore, his claim that the court erred in overruling defense counsel's objection is forfeited on appeal. Defendant's remaining contentions that the court erred by overruling counsel's objections regarding the admission of Ferguson's and Burton's testimony are preserved for review but lack merit.
In this case, Ferguson's testimony that when he saw defendant nod his head, he thought about defendant's statement that he could "shoot" his boss was relevant to show premeditation. Under the circumstances, it was not overly speculative for Ferguson to give his interpretation of defendant's nonverbal communication, and therefore the evidence was admissible. The court did not abuse its discretion in overruling defendant's objection on that ground.
We also reject defendant's derivative claim that the court's rulings on defense counsel's objections to the admission of this evidence deterred counsel from making additional proper objections and "in cumulative effect" deprived him of due process. The court sustained these objections in part and, at times, sustained other defense objections. Nothing in these or other rulings would have deterred a reasonable attorney from making appropriate objections, and nothing in the record suggests that counsel was actually deterred.
Finally, defendant perfunctorily contends the evidence was inadmissible because the prosecutor offered it for the improper purpose of appealing for sympathy for the victims. (See People v. Stansbury (1993) 4 Cal.4th 1017, 1057 [17 Cal.Rptr.2d 174, 846 P.2d 756] ["[A]n appeal for sympathy for the victim is out of place during an objective determination of guilt."].) Because defense counsel failed to object to the admission of any of the evidence on this ground, the claim is forfeited on appeal. Defendant also fails to persuade us of its merits.
g. Deliberation requirement
During guilt phase closing argument, the prosecutor defined the "deliberation" element of first degree murder as follows: "Deliberation is in essence.... It's the weighing and considering. It's the thinking about am I going to do it? Am I not going to do it? Okay? Which precedes the decision to kill." The prosecutor urged that, among other evidence, Ferguson's testimony that defendant said, "I could shoot her [(Talley)]" and Ferguson's characterization of defendant's behavior as "like he was talking to himself.... like a self-query" was sufficient proof that defendant deliberated the
"`[D]eliberate' means `formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.'" (People v. Mayfield (1997) 14 Cal.4th 668, 767 [60 Cal.Rptr.2d 1, 928 P.2d 485]; see People v. Koontz (2002) 27 Cal.4th 1041, 1080 [119 Cal.Rptr.2d 859, 46 P.3d 335]; People v. Bender (1945) 27 Cal.2d 164, 183 [163 P.2d 8].)
Defendant asserts that when the prosecutor paraphrased the deliberation requirement for first degree murder as, "[i]t's the thinking about am I going to do it... [a]m I not going to do it," he erroneously omitted the requirement that the killer consider the reasons against killing. Defendant maintains that absent this specific thought process, one has not engaged in "deliberation." The claim is forfeited, however, because defendant made no objection, which could have easily cured any harm.
Even if the prosecutor's paraphrase did not refer specifically to the weighing and consideration of the reasons against making a particular choice, the prosecutor correctly referred to this requirement elsewhere in his argument. He told the jury that "deliberation is ... the thought and weighing of considerations for and against a proposed course of action." Thereafter, he argued, "[Defendant] talks to [Rodney] Ferguson and what is he, reflective and pensive. These are not descriptions of a person who is enraged. These are not descriptions of a person who is suffering from passion. These are descriptions of a person who is in deliberation. Who is in reflection. Who is weighing and considering the choices for and against and he has the means readily at hand at the time that he makes that statement." Further, the court properly instructed the jury on the law, as follows: "The word `deliberate,' which relates to how a person thinks, means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action." (See CALJIC No. 8.20.) We presume the jury followed this instruction, and therefore, any misstatement was harmless.
h. The prosecutor's closing argument
Defendant claims that the prosecutor improperly appealed to the jury's sympathy and passion for the surviving the RHA employees when he (1)
Preliminarily, the claim is not preserved for appeal because defendant did not object during argument and request an admonition. In any event, the claim lacks merit.
Here, defendant complains that the prosecutor improperly asked the jury to sympathize with certain witnesses when he summarized their testimony and commented that they were also victims of defendant's massacre. For example, the prosecutor identified the RHA employee Barbara Walther as a victim. Walther testified that after the shootings, she shook Garcia and told her that "she could get up now," and Garcia did not move.
The prosecutor's characterization of Walther as a victim was not an improper appeal to the jury's sympathy. The prosecutor was reminding the jury of the unique accounts of the shooting spree offered by those who survived. The prosecutor's similar characterizations of other witnesses' testimony were not improper on this basis.
Next, defendant contends the prosecutor improperly appealed to the sympathies of the jury when he stated that the victims' shoes recovered at the crime scene were "a reflection of the people who chose to wear them." For example, the prosecutor commented that Talley's shoes brought to mind that she was a "gregarious, outgoing, stylish person," "a black woman, single parent, who worked her way up just on her own guts and determination and intelligence to get where she was" and that Garcia's shoes showed the "youthful" style of someone "trying to get ahead and ... do the right thing."
Even assuming the statements were improper, they were harmless. The remarks about the victims' shoes were relatively brief and isolated. Defendant, moreover, did not deny shooting the victims and only claimed he did not
Defendant also contends the prosecutor improperly argued that defense counsel attempted to mislead the jury in calling only Dr. Walser to testify about defendant's MRI results. Specifically, after referring to portions of their reports, the prosecutor suggested Drs. Kincaid and Wilkinson would have been called to testify if they "could even offer an outside possibility that [the detected abnormalities] might have an effect on behavior.... [¶] But, no, what we're going to do is put a neuropsychologist who didn't even know how to read an MRI to try to leave you with the impression now [sic] this variant in the brain has something to do with behavior."
Here, the prosecutor properly argued that the evidence established Dr. Walser's evaluation and test results were uncorroborated, and suggested to the jurors that had other evidence in support of her opinion existed, it would have been presented. The argument did not impugn defense counsel's integrity. There was no misconduct.
2. Defense mental health expert testimony
On direct and redirect examination of defense expert Dr. Walser, defense counsel asked whether the evidence of defendant's threats to do a "101 California" indicated he "thought" about committing a "101 California" before the murders. The prosecutor objected that counsel was improperly trying to elicit the expert's opinion on an ultimate question of fact for the jury — i.e., whether defendant killed the victims with premeditation and deliberation, an element of the crimes charged. (See People v. Rodrigues
Defendant contends the trial court erred in precluding defense counsel from posing the question because the thought of committing homicide does not necessarily result in the formation of premeditation and deliberation. Specifically, he asserts that, although the existence of prior thoughts about killing may evince premeditation, evidence of such thoughts, standing alone, is not dispositive on the issue of whether defendant killed with the required specific intent because the jury must also find that the premeditation and deliberation preceded the formation of the intent to kill. (See People v. Stitely (2005) 35 Cal.4th 514, 543 [26 Cal.Rptr.3d 1, 108 P.3d 182].) We find no abuse of discretion.
The trial court acted within its discretion in finding that the question at issue here essentially asked the expert to provide an opinion about the required mental state (premeditation and deliberation) and thus was improper under section 29. (See People v. Rangel (1992) 11 Cal.App.4th 291, 298 [14 Cal.Rptr.2d 529] [trial court properly excluded psychiatrist's expert testimony that "`in that state of intoxication, the person is not able to think rationally and deliberate, which means weigh consequences, think about things in logical sequences,'" on the issue whether the defendant premeditated and deliberated the killing].)
Next, defendant contends that the trial court's explanation that defense counsel's question "called for one of the elements of the offense" improperly "equated" homicidal thought with premeditation and deliberation and removed from the jury's determination the "vigorously disputed" question whether the evidence of his homicidal thoughts constituted premeditation and deliberation. We disagree.
In this case, the court's brief and neutral remark expressly affirmed that the question whether defendant premeditated and deliberated the murders was for the jury to decide. Although the court also impliedly, and correctly, informed the jury that defendant's "101 California" threats could be considered evidence of these elements, by doing so it did not, as defendant contends, improperly tell the jury that evidence of the threats constituted sufficient proof of the elements. Additionally, unlike Sturm, in which the erroneous comment was left uncorrected, the jury subsequently was properly instructed under CALJIC No. 8.20 and would not have misunderstood the court's comments as removing the issue of premeditation and deliberation from its purview.
3. Testimony of radiologist William Hoddick
Defendant contends that the court erred by admitting over objection the radiologist's testimony that, in essence, the presence of premature fossae on defendant's brain white matter would not affect his behavior because the witness was not qualified to render such an opinion. (Evid. Code, § 720.) The error was prejudicial, he argues, because the radiologist's opinion discouraged or precluded the jurors from considering Dr. Walser's testimony that defendant's psychological and neuropsychological test results indicated he was mentally impaired when he shot the victims. The contention is without merit.
"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).) "`We are required to uphold the trial judge's ruling on the question of an expert's qualifications absent an abuse of discretion. [Citation.] Such abuse of discretion will be found only where "`the evidence shows that a witness clearly lacks qualification as an expert....'" [Citation.]'" (People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063 [81 Cal.Rptr.3d 651, 189 P.3d 911].)
At the time of trial, Dr. Hoddick had been in practice since 1979, specializing in diagnostic medical imaging, and had been board certified since 1983. He was on active staff at John Muir Medical Center and Mount Diablo Medical Center and also was the medical director of Contra Costa County MRI in Pleasant Hill. Dr. Hoddick had been a member of the faculty at the University of California, San Francisco, Medical Center since 1984 and had published widely in the area of radiology. His research had won national prizes. Dr. Hoddick had testified as an expert in medical imaging in at least 12 trials, three or four of which involved criminal matters. He explained that the MRI utilizes "a very specialized camera for looking inside the human body to evaluate structural anatomy inside the body" that "uses two physical properties[,] ... [a] high frequency image and radio frequency wave ... [that are] used ... with the MRI to take exquisitely detailed pictures." Dr. Hoddick stated that he evaluates MRI results by reviewing the images produced to determine "what's going on inside the body."
Here, defendant acknowledges that Dr. Hoddick was qualified to testify as an expert in diagnostic medical imaging but maintains he was not competent to opine whether the abnormalities he identified had any impact on defendant's behavior. Specifically, he asserts that Dr. Hoddick did not establish that his experience and training in diagnostic medical imaging enabled him to
Nonetheless, "[t]he erroneous admission of expert testimony only warrants reversal if `it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (People v. Prieto (2003) 30 Cal.4th 226, 247 [133 Cal.Rptr.2d 18, 66 P.3d 1123], quoting People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Here, the erroneous admission of Dr. Hoddick's testimony was harmless.
As stated, defendant's sole defense was that due to a myriad of mental disorders, he did not premeditate and deliberate the murders. Dr. Walser, the defense neuropsychologist, testified to this effect and stated that in forming her opinion, she relied extensively on the results of her psychological and neuropsychological evaluation of defendant and the results of the MMPI-2. Dr. Walser did not rely heavily on the brain abnormalities in forming her opinion regarding defendant's psychopathology, and hence Dr. Hoddick's testimony that the fossae had no effect on defendant's behavior would not greatly have affected the jury's assessment of her opinion. Further, as discussed in part II.B.1.f., ante, the prosecution's evidence that defendant premeditated and deliberated the murders was overwhelming. Accordingly, we conclude that it is not reasonably probable that the erroneous admission of the prosecution's expert testimony affected the judgment.
4. Application of exclusionary rules
Defendant contends that several evidentiary rulings involving the testimony of the defense expert, Dr. Walser, and the People's experts, Dr. Berg, Dr. Hoddick, and Dr. Peterson, reflected proprosecution bias on the court's part. Assertedly, the court's rulings, each of which we address below, "were less then [sic] evenhanded," and facilitated the prosecution's presentation of its case. We disagree.
Preliminarily, because defense counsel did not complain or otherwise object during trial that the evidentiary rulings discussed below reflected judicial bias, defendant forfeited the claim on appeal. (People v. Guerra, supra, 37 Cal.4th at p. 1112.) We also note that the court made many rulings in favor of defendant during the course of the trial. Due to the nature of the appellate process in criminal cases, those rulings are not before us on appeal and we do not review or, generally, even mention them. But the fact that on appeal we discuss only rulings against defendant does not mean the court's rulings were other than evenhanded. (See People v. Jones (2011) 51 Cal.4th 346, 376-377 [121 Cal.Rptr.3d 1, 247 P.3d 82].)
a. Dr. Walser's qualifications to opine on brain tissue abnormalities
Defendant contends that the court applied different standards in qualifying Dr. Walser, the defense expert psychologist, and Dr. Hoddick, the prosecution's expert radiologist, to opine whether the abnormalities detected on defendant's MRI could affect his behavior.
As discussed above, whether a witness qualifies as an expert under Evidence Code section 720, subdivision (a), comes within the trial court's discretion. (People v. Wallace, supra, 44 Cal.4th at pp. 1062-1063.)
During the defense case-in-chief, defense counsel sought to qualify Dr. Walser as an expert in the fields of forensic psychology, neuropsychology, psychology, and clinical psychology, and offered her testimony on the issue of defendant's mental state during the shooting spree. After counsel elicited information about her education, skills, and experience in each subject, the prosecutor accepted the court's offer to voir dire the witness. He asked Dr. Walser additional questions about her qualifications in each of the subjects identified. She stated that she administered the Halstead-Reitan test, which is specifically designed to detect neurological brain damage, to in-custody defendants on five to 10 occasions during the five years preceding defendant's trial and on two or three occasions during the preceding two years. In the six years preceding defendant's trial, Dr. Walser testified for the defense in three to five criminal trials. During one or two of those trials, she testified about the results of the Halstead-Reitan test after having personally
Thereafter, on direct examination, Dr. Walser testified that the results of neuropsychological tests she administered to defendant indicated mild impairment, and that this level of impairment would have a noticeable effect on a person's personality and behavior. Before Dr. Walser tested defendant, she had been provided an oral report of defendant's EEG results and MRI findings. The EEG results indicated there was a "questionable" abnormality in the left temporal region of defendant's brain, and the MRI findings indicated focal atrophy or a small cyst in the posterior temporal lobe. When defense counsel asked Dr. Walser whether brain abnormalities could cause problems with brain function, the prosecutor objected that she was not qualified in the fields of neurology and radiology. The court permitted the parties to voir dire Dr. Walser in these areas, and thereafter accepted her qualifications to testify to the MRI and EEG results. Dr. Walser stated the results of defendant's EEG and MRI supported her conclusion that defendant suffered from organic brain damage, although she also clarified that these results were not essential to her conclusion.
As discussed in the preceding part, defendant objected to Dr. Hoddick's qualification to opine whether the abnormalities he detected on defendant's MRI could affect defendant's behavior. The court overruled the objection without comment, and Dr. Hoddick testified that the abnormalities would have no effect on defendant's behavior. We concluded that the court erred in overruling the objection. Nonetheless, nothing in the record suggests its manner of determining the qualifications of either expert was unfair or biased.
b. Nontestifying experts
The pathologist who performed the autopsies on the victims in this case, Aaron Lipton, was unavailable to testify at trial. During the prosecution's case-in-chief, over objection, Dr. Peterson was permitted to testify about each victim's cause of death based on the contents of Dr. Lipton's autopsy reports.
On appeal, defendant contends the trial court's rulings "created imbalance in expert testimony, and reduced the coherence of the defense." We disagree. Assuming the rulings were unbalanced, the prosecution gained no significant advantage thereby. In part II.B.8., post, we discuss defendant's contention that Dr. Peterson's testimony was admitted in violation of his Sixth Amendment right to confrontation and conclude his testimony had little or no significance in this case.
c. Evidence of disorganized thinking
In surrebuttal, defense counsel asked Dr. Walser whether "on the Rorschach test Michael Pearson ... tested positive for disorganized thinking." Defendant contends the court exhibited bias when it sustained the prosecutor's objection that the question called for testimony cumulative of that of Dr. Walser's testimony on direct examination because the court ruled on the objection before it asked counsel whether the expert had indeed already testified on this point. Defendant asserts that evidence of defendant's disorganized thinking, as suggested by the Rorschach test results, was elicited only on counsel's cross-examination of the prosecution's mental health expert, Dr. Berg. To the contrary, as counsel conceded during the hearing on this matter, he developed this testimony on direct examination of Dr. Walser. Dr. Walser testified, for example, that the results suggested defendant had a "coping deficit" and explained that people with such a deficit are "easily disorganized by stress" and that in this context, "disorganized" means, among other things, the person "may not be able to think or think clearly." Defendant's suggestion of bias is entirely unfounded. The court did not abuse its discretion in excluding the testimony as cumulative.
d. Dr. Berg's qualification as an expert in workplace violence
Defendant contends the court was biased because it did not address his objection that the prosecution's proposed expert testimony from Dr. Berg concerning workplace violence was irrelevant on the issue of defendant's state of mind.
e. Permissible scope of expert testimony regarding defendant's state of mind
Defendant contends the court unfairly assisted the prosecution in presenting its case by permitting the People's mental health expert, Dr. Berg, to opine about ultimate facts relating to defendant's mental state at the time of the murders, while precluding his own expert, Dr. Walser, from providing similar testimony. As explained below, defendant failed to preserve most of his arguments for appeal, and in any event, the testimony of the two experts differed in ways that affected their admissibility under section 29.
Contrary to defendant's assertions, on numerous occasions Dr. Walser offered opinions that went to defendant's state of mind at the time he shot the victims. When defense counsel asked the expert what was "disorganized" about defendant's attempt to talk further with Talley about the reasons for his termination, Dr. Walser responded: "Well, that's not. It's probably an appropriate thing to do." She then gratuitously added, "But he was — I think he was escalating in terms of the stress he was experiencing. When that was not fulfilled and he didn't have that opportunity and he felt very wrong, then he — then it tipped the balance and he became — ." Counsel then asked Dr. Walser a series of questions about defendant's "101 California" statements and specifically whether, sometime before the day of the murders,
On the other hand, the court properly permitted the prosecution's expert, Dr. Berg, to interpret defendant's comment, "I ain't no joke," made before and after shooting Talley, as expressing "anger," "retribution," and "revenge." "[S]ections 28 and 29 in fact leave an expert considerable latitude to express an opinion on the defendant's mental condition at the time of offense, within the confines, of course, of its twin prohibitions: no testimony on the defendant's capacity to have, or actually having, the intent required to commit the charged crime." (People v. Cortes (2011) 192 Cal.App.4th 873, 910 [121 Cal.Rptr.3d 605], citing People v. Coddington, supra, 23 Cal.4th at p. 583.) Dr. Berg's testimony properly related to defendant's general mental condition during his killing spree and did not express an opinion on his criminal intent when he shot the victims. In any event, defense counsel's failure to object forfeited any claim with regard to Dr. Berg's interpretation of defendant's "I ain't no joke" comment.
For the same reason, under sections 28 and 29, Dr. Berg was permitted to testify that defendant's conduct could be explained by the termination of his employment, and that what he "believed was going to be happening to him for weeks before [the murders]" could not be explained by "anything delusional or hallucinatory." The expert did not describe defendant's mental state at the time he shot the victims, but rather, his diagnosed mental condition. And while defense counsel initially objected to admission of this testimony, his claim is forfeited because the court admitted the evidence subject to a motion to strike, which counsel never made. Indeed, counsel was even amenable to opening up this area, suggesting, "If you want to go there, that's all right with me ...."
Finally, defendant contends that the court erred by precluding defense counsel from asking Dr. Walser leading questions such as "whether a person who misperceives reality on a regular basis [is psychotic]." Although the court suggested it would begin to sustain the prosecutor's objections on this ground, it permitted defendant's counsel to elicit Dr. Walser's explanation of the term "psychotic." In addition, elsewhere during Dr. Walser's direct examination, counsel was permitted to ask leading questions. Defendant fails to show any bias in the court's actions with respect to leading questions.
5. Cross-examination of a prosecution rebuttal witness
Defendant contends that the trial court violated his rights to confront witnesses in precluding the defense from cross-examining Dr. Berg regarding Medi-Cal fraud charges brought against him sometime in the early 1980's. Defense counsel purportedly had a copy of the complaint in the fraud case, a record of the subsequent legal adjudication of Dr. Berg's actual innocence by "a court in Alameda County," an affidavit of an investigator in the case, and "the name of the victim." Counsel, however, did not identify the case number or provide other specifics about the matter, including the year the charges were purportedly filed and the time period during which the conduct assertedly occurred. Nonetheless, we presume, as the parties do, that the Medi-Cal allegations and charges at issue here are the same as those involved in a nearly identical claim raised in People v. Sapp (2003) 31 Cal.4th 240 [2 Cal.Rptr.3d 554, 73 P.3d 433], which we rejected on the merits. Our opinion in Sapp indicates that the allegations involved conduct between 1982 and 1987. (See id. at p. 289.) Dr. Berg was found actually innocent of the charges before defendant's trial. (See id. at p. 293, fn. 3.)
For the reasons discussed below, the claim is without merit.
a. Factual and procedural background
After cross-examining prosecution rebuttal witness Dr. Berg regarding his evaluation of defendant, defense counsel asked the witness whether he had "been a thief" in his "time." The prosecutor objected to the question as argumentative, and the trial court sustained the objection. Counsel then followed up with a question insinuating that Dr. Berg stole "in the neighborhood of $10,000" in a Medi-Cal fraud case during the "early 1980's." The prosecutor again objected and the court held a hearing on the matter outside the presence of the jury.
The prosecutor complained that defense counsel's line of inquiry was improper and unethical, asserting counsel knew Dr. Berg had been found factually innocent of the charges. Counsel conceded he was aware of the actual innocence finding, but argued the finding "means nothing about the reality of fraud." Counsel argued that, although the charges were dismissed after Dr. Berg prevailed on a suppression motion, the sequence of events leading to his exoneration "goes to his bias and goes to his desire to do what he can to keep in the system, to keep his viability as a product for the District Attorney's Office and for the criminal defense bar." Counsel stated also that he had "obtained a number of [actual innocence findings] in the course of his career" and "happen[ed] to know how easy it can be to get a declaration of factual innocence." Counsel thus wanted to question Dr. Berg about the circumstances under which he obtained the actual innocence finding and whether the prosecuting agency opposed his efforts in this regard.
Further, defense counsel asserted that Dr. Berg invoked his Fifth Amendment right against self-incrimination in an unrelated criminal case in response to a question by the defendant's attorney, a public defender, as to whether he was innocent of the charges. Also, in response to a news reporter's question about that case, Dr. Berg was quoted as saying, "I was never convicted of any crime in this State or any other state and a story like this would be very harmful to my reputation. This is going to be ruinous to me and I feel ripped off." Counsel urged that these events were relevant to prove Dr. Berg was biased against all public defenders when he testified for the prosecution in defendant's trial, and therefore, was biased against defendant's counsel, also a public defender. Counsel said he had a copy of the newspaper in which the article appeared. The trial court sustained the prosecutor's objection, finding that, under Evidence Code section 352, the proposed cross-examination involved a collateral matter and would necessitate an undue consumption of time.
The court thereafter instructed the jury as follows: "Ladies and gentlemen, with regard to the last two questions that were posed by [defense counsel,]
Defendant claims the court violated his Sixth Amendment right to confront and cross-examine witnesses. He seeks to distinguish Sapp in that, here, even if Dr. Berg was not guilty of the fraud charges, impeachment on the subject was admissible to show that he was biased in favor of the prosecution and
"Moreover, reliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendant's constitutional rights to confrontation and cross-examination." (Brown, supra, 31 Cal.4th at p. 545.) "[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby `to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.'" (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680, quoting Davis v. Alaska (1974) 415 U.S. 308, 318 [39 L.Ed.2d 347, 94 S.Ct. 1105].) "`[U]nless the defendant can show that the prohibited cross-examination would have produced "a significantly different impression of [the witness's] credibility" ([Delaware v.] Van Arsdall, supra, 475 U.S. at p. 680 ...), the trial court's
We find no abuse of discretion here. No evidence was presented or proffered that Dr. Berg attributed the granting of his suppression motion, dismissal of the fraud charges, and subsequent declaration of his actual innocence to special treatment accorded him because of his prior service as an expert witness for the prosecution, rather than to a just outcome of the judicial process. In addition, defense counsel offered no proof in support of his suggestion that the favorable resolution of the fraud charges was payback for Dr. Berg's service as a witness for the prosecution.
6. Evidence of complaints about the RHA management
Defendant contends that the trial court erred in excluding evidence of various complaints about the RHA managers, most of which purportedly were circulating before defendant was hired by the agency. The excluded evidence included, for example, testimony that there was "some talk" about how Burton obtained her position; that Donald Richmond, a "close friend" of defendant's and former director of personnel administration for the City of Richmond, had received a report from the inspector general working with the United States Department of Housing and Urban Development (HUD) that indicated Talley and a coworker "did not possess the skills, knowledge, ability to be in their jobs"; that employees complained to Toni Lawrence, a supervisor at the RHA, that Talley, who supervised Burton, allowed Burton to do "virtually little or no work" because they were friends; that Connie Taylor, a housing specialist at the RHA, had heard from coworkers prior to 1995 that Talley showed favoritism towards certain employees, including Burton; that Hatchett was aware that employees felt they had been mistreated by Talley,
Defense counsel offered the evidence as proof of defendant's state of mind when he shot the victims. "I think the poisonous atmosphere bears upon the state of mind of the defendant. He has certainly an emotional and intellectual psychological deficit that is exacerbated by being treated poorly, which he was, and it gives him all kinds of reasons to think there is in fact a conspiracy, that people are wanting to do, things like that." The court ruled that the evidence was inadmissible hearsay and lacked relevance, and that its probative value was "far outweighed" by its "possible inappropriate prejudicial effect."
Defendant contends the evidence was critical to his mental state defense and although he did not offer the evidence in the penalty phase, now asserts the evidence was also admissible on the question of punishment to show that he believed his actions were morally justified. (See § 190.3, factor (f) [in determining penalty, the trier of fact may consider "[w]hether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct"].)
Defendant's contention fails. Many, if not all, of the conversations and complaints to which the excluded evidence related occurred before defendant was hired at the RHA. Defense counsel made no showing that defendant was aware of these matters. Indeed, defendant here concedes that counsel intended "to illuminate what he was likely to have heard and believed about the Housing Authority employees with whom he had hostile interactions." Absent proof of this preliminary fact, counsel could not show the evidence was relevant as bearing on defendant's state of mind or his belief that the killings were morally justified. The record indicates that the court found counsel's showing to be insufficient in this respect. (See People v. Tafoya (2007) 42 Cal.4th 147, 165 [64 Cal.Rptr.3d 163, 164 P.3d 590] ["When ... the relevance of proffered evidence depends upon the existence of a foundational fact, the proffered evidence is inadmissible unless the trial court determines it `is sufficient to permit the jury to find the preliminary fact true by a preponderance of the evidence.'"]; Evid. Code, § 403, subd. (a)(1).) And
7. Exclusion of portion of videotaped confession to police
Defendant contends that the trial court erred by refusing to admit a videotape of his confession to police made within hours of the murders. Defense counsel offered the evidence to impeach the prosecution's expert psychologist, Dr. Berg, whose testimony, in turn, was offered to rebut the evidence that defendant was delusional and suffering from a brief psychotic break when he shot the victims. For the reasons stated below, the claim fails on the merits.
a. Factual and procedural background
On direct examination, Dr. Berg testified that within two days of the murders he interviewed defendant in jail and later, within a few weeks of the commencement of trial, reviewed the various reports by Drs. Walser, Wilkinson, and Kincaid regarding defendant's psychological and neuropsychological tests and MRI results. Dr. Berg opined that, at the time of the murders, defendant acted out of anger, retribution, and revenge, and was neither delusional nor psychotic. During cross-examination, Dr. Berg testified that he had not reviewed the two-and-one-half-hour videotape of defendant's confession to police in forming his opinion, but instead had reviewed an interrogating officer's written summary of the confession and the circumstances under which it was made. Thereafter, defense counsel sought to admit and play for the jury the videotaped confession in order to test Dr. Berg's credibility. Counsel acknowledged defendant's videotaped statements were inadmissible for their truth under the hearsay rule, and instead offered the evidence under the state of mind exception as circumstantial proof that when defendant gave his confession, he continued to exhibit the disorganized thinking that Dr. Walser opined he experienced when he shot the victims. (Evid. Code, § 1250.)
The prosecutor objected on the grounds that the evidence was irrelevant and unreliable hearsay and that he would be denied an opportunity to cross-examine defendant. The court denied counsel's request to play the entire videotape on the ground that the consumption of time involved in
During redirect examination, the prosecutor played an excerpt that purportedly showed defendant was engaged in a rational, matter-of-fact discussion of the murders with investigators and suggested he shot the victims because they had "screwed with him." On recross-examination, defense counsel again sought to admit and play the entire videotaped confession or, in the alternative, additional excerpts that purportedly evidenced defendant's disorganized thinking and remorse during the interview. For example, in one excerpt defendant asked investigators, "Where is Lorraine?" and "Where is Barbara?" and said "I am sorry about that," evidently referring to the shootings. In another, defendant stated, "I mean, I really say that ... truly I am sorry that I done this now.... You know, the family is tore up just like my family is tore up." Counsel sought admission of the evidence of defendant's remorse to rebut Dr. Berg's implication, on cross-examination, that defendant assassinated the victims, asserting the evidence was unlike what one would reasonably expect the typical coldhearted and detached assassin would feel after committing a murder. The prosecutor conceded the additional evidence of defendant's delusional state was admissible state of mind evidence but objected that defendant's statements expressing remorse and acknowledging the harm he had caused the victims' families were hearsay and an impermissible appeal to the sympathies of the jury. The court admitted, and permitted defense counsel to play, the videotape excerpts offered as circumstantial proof of defendant's disorganized thinking (i.e., his asking where Lorraine and Barbara were) and excluded the remainder of the proffer on hearsay grounds.
Finally, defendant asserts for the first time on appeal that the excerpts depicting his expressions of remorse were also admissible pursuant to the rule of completeness under Evidence Code section 356.
8. Admission of the autopsy reports and Dr. Peterson's testimony
Aaron Lipton, a pathologist then employed by Contra Costa County, performed the autopsies on Lorraine Talley and Barbara Garcia. At the time of defendant's trial, Dr. Lipton was no longer employed by the county. The prosecutor represented that he did not know where he could be found and that a forensic pathologist, Brian Peterson, now routinely performed the autopsies for the county.
Defendant contends that the autopsy reports and Dr. Peterson's testimony constituted testimonial hearsay, and that under Crawford v. Washington (2004) 541 U.S. 36, 59 [158 L.Ed.2d 177, 124 S.Ct. 1354] (Crawford), admission of the evidence violated his Sixth Amendment right to confront and cross-examine Dr. Lipton.
The People contend that defendant forfeited his claim because defense counsel objected only on hearsay grounds to Dr. Peterson's testimony and failed to object on any basis to admission of the autopsy reports. We disagree.
This case was tried before Crawford overruled Ohio v. Roberts (1980) 448 U.S. 56 [65 L.Ed.2d 597, 100 S.Ct. 2531], which for 24 years governed the admissibility of statements from witnesses unavailable at trial. Roberts held that admission of an unavailable witness's statement does not violate the Sixth Amendment's confrontation requirement "so long as [the statement] has adequate indicia of reliability — i.e., falls within a `firmly rooted hearsay
Recently, in People v. Dungo (2012) 55 Cal.4th 608 [147 Cal.Rptr.3d 527, 286 P.3d 442], we held that statements in an autopsy report describing a nontestifying pathologist's observations of the condition of the victim's body were not testimonial. "[S]tatements, which merely record objective facts, are less formal than statements setting forth a pathologist's expert conclusions. They are comparable to observations of objective fact in a report by a physician who, after examining a patient, diagnoses a particular injury or ailment and determines the appropriate treatment." (Id. at p. 619.) In addition, the primary purpose of recording the facts in question did not pertain to a criminal investigation. (Id. at pp. 619-620.)
This case is distinguished from Dungo because the Crawford issues involve the admission at trial of entire autopsy reports prepared by a nontestifying pathologist (Dr. Lipton) and the testimony of another pathologist (Dr. Peterson) who described the objective facts and opinions expressed in the reports. However, we need not decide whether, following our decision in Dungo, the evidence here is testimonial because any error in the admission of the autopsy reports and Dr. Peterson's testimony was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]; see People v. Rutterschmidt, supra, 55 Cal.4th at p. 661 [any erroneous admission of the lab reports indicating the presence of alcohol and three sedating drugs in the victim's blood samples was harmless].)
"The beyond-a-reasonable-doubt standard of Chapman `requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' (Chapman, supra, 386 U.S. at p. 24.) `To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' (Yates v. Evatt (1991) 500 U.S. 391, 403 [114 L.Ed.2d 432, 111 S.Ct. 1884].) Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is `whether the ... verdict actually rendered in this trial was surely unattributable to the error.' (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182, 113 S.Ct. 2078].)" (People v. Neal (2003) 31 Cal.4th 63, 86 [1 Cal.Rptr.3d 650, 72 P.3d 280], italics omitted.)
The cause of death of each victim was undisputed. Defendant admitted he fired multiple bullets into Talley and Garcia. Each victim died at the scene. Defense counsel conceded to the jury that defendant intended to kill Talley
The jury also viewed numerous photographs depicting, among other things, the gunshot wounds that defendant inflicted on each victim, the positions and condition of the victims, and a spent bullet under Garcia's head. The photographs were authenticated by Kime, Spears, and Jones, who were in the rooms where defendant shot the victims, as well as law enforcement personnel who responded to the crime scene.
In sum, in light of the above evidence, the significance of the contents of the autopsy reports and Dr. Peterson's testimony on the question of premeditation and deliberation was slight. As a result, any error in the admission of this evidence was harmless beyond a reasonable doubt.
C. Penalty Phase Issues
1. Victim impact evidence
Defendant contends the court erred in admitting the victim impact testimony, in violation of his rights under the Eighth Amendment. We disagree.
Over defendant's objection, the prosecution presented victim impact evidence through the testimony of numerous family members and friends of the victims and several eyewitnesses to the crimes.
Gladys Dean, Lorraine Talley's mother, described Lorraine, her only child, as "bubbly" and "jolly." Mrs. Dean said that when she learned of Lorraine's death, "something just left me .... I was empty."
Lorraine's 23-year-old daughter, Tenisha Talley, described how her world "has been turned upside down, inside out" since her mother was murdered. Tenisha described how her grandmother had become "more of a cold person" after Lorraine's death. "[S]he wakes up every day and knows she doesn't have a daughter to talk to. She can't go over and see Lorraine. She can't hear Lorraine's voice anymore."
Lorraine's 22-year-old daughter, Nakia Talley, said it "was like a movie" when she learned of her mother's death. She was with her grandmother at the time, whom she described as "look[ing] just dead" and "hollow." When Nakia tried to console her grandmother, "she just looked up at me and her
Harriette Langston was a lifelong friend of Lorraine's. "[Lorraine] was like a sister to me. She was so much a part of my life and I miss her very much." Langston was on the telephone with Lorraine moments before defendant shot her. When Lorraine told her that she had to fire defendant that day, Langston suggested that she call the police. Lorraine responded, "Harriette, I don't want to embarrass him. That would just be awful for him to be carted out of here by the police." When Langston was informed that Lorraine had been fatally shot, she became "numb."
Sam Burns, a deputy sheriff with the Contra Costa County Sheriff's Office, was once married to Lorraine; they had a child together. When Burns told their son that his mother was dead, he started crying and asked if it "was the man at work." Within a week after the murders, Burns was on duty at the county jail and was upset to see defendant in the courtyard "laughing and smiling."
Maurice Mims had known Lorraine for 13 years and had been romantically involved with her for the five years preceding her death. Since Lorraine's death, Mims's life had been "totally hell" and "miserable."
Pamela Kime, who was in the conference room when defendant shot Lorraine, had to leave her job at the RHA in July 1995. She was no longer able to go to places with noisy crowds, including stores and concerts, because they scared her. Kime described how there were times when she was afraid to leave her house and for a month had to arrange for somebody to take her daughter to school. She testified that when she went to bed, she could still see the shootings and hear gunshots.
Shirail Burton and Lorraine were very close friends. Lorraine was her labor coach and saw both of her children born. Since Lorraine's murder, Burton had been "walking around with a broken heart that you know [is] never going to get mended ...." There had not been "a minute of the day" that she had not thought of Lorraine.
Patricia Jones described emerging from under her desk after the shooting and recalled seeing Barbara Garcia "lying there gurgling." Despite her fear that defendant might still be in the building, she ran down the hall to get help. Jones saw people "hysterically standing around screaming," Kime with blood all over her hands, and Talley's body. Jones said she "broke down" just prior to attending the memorial service for Barbara after thinking about the "horror of the whole episode, the thought of being crouched there under the desk, not knowing what was going to happen ...."
Robinson was terminated from her job at the RHA, which she attributed to her experience of having witnessed the murders. She twice tried to go back to work but found it impossible to return to the place where her friends had been killed. Robinson felt guilty because her friends died and wished she could have done more to protect Lorraine and Barbara.
Irma Abarca, Barbara's aunt, had known Barbara since she was a child and described Barbara as "a happy person, real loving." She described how Barbara's father, Guillermo Garcia, became angry when he learned that Barbara was dead and the police would not let him see Barbara at the crime scene.
Abarca's 15-year-old daughter, Celia, testified Barbara was like a sister to her and described the emotional impact of Barbara's death.
Genoveva Calloway, Barbara's aunt, drove Barbara's father to the crime scene, where he became very upset because police would not allow him to see Barbara's body. Calloway described how Barbara's parents were very emotional during the memorial service and cremation of Barbara's body. Barbara's parents "still have the ashes in the house in the living room. They talk with her. And they're still in a lot of pain." For several months after Barbara's death, her parents could not go back to work. Mrs. Calloway described seeing Guillermo hold the urn with Barbara's ashes and cry, "[A]ll he can do is just cry and cry and just talk with her .... [H]e cannot let go of her."
Defendant contends the quantity of victim impact evidence introduced exceeded that permitted under Payne v. Tennessee (1991) 501 U.S. 808, 825 [115 L.Ed.2d 720, 111 S.Ct. 2597] (Payne). He also complains that the admission of testimony about the effect of the victims' deaths on the community and from nonrelatives "went far beyond" that authorized by Payne.
The victim impact evidence fell within permissible parameters. (People v. Pollock, supra, 32 Cal.4th at p. 1180.) The overall number of victim impact witnesses was not excessive, given that there were two murder victims, and the testimony included three generations of the victims' families. (See People v. Taylor, supra, 48 Cal.4th at p. 646 [finding no error in the admission of the victim impact testimony of six family members representing four generations of the victim's close family].) The evidence was "very typical of the victim impact evidence we routinely permit." (People v. Valencia (2008) 43 Cal.4th 268, 300 [74 Cal.Rptr.3d 605, 180 P.3d 351].)
Defendant additionally challenges as improper evidence that Talley showed compassion toward defendant when she decided to spare him the embarrassment of having police escort him from the RHA upon his termination. But evidence that described Talley's uniqueness, e.g., her compassion towards others including, ironically, defendant, is of the type specifically permitted under Payne. (Payne, supra, 501 U.S. at p. 823 [victim impact evidence "is designed to show ... each victim's `uniqueness as an individual human being'"].)
To the extent defendant argues that victim impact evidence from a close friend or companion is inadmissible, we have rejected this argument. (People v. Ervine (2009) 47 Cal.4th 745, 792 [102 Cal.Rptr.3d 786, 220 P.3d 820].)
Finally, defendant insists that Deputy Burns's testimony that he observed defendant laughing and smiling in the jail courtyard shortly after the murders was an improper subtle plea for a death sentence and was also prejudicially "massive and emotional" because the prosecutor referred to it in arguing that the jury should return a death verdict in order to deprive defendant of the opportunity to enjoy himself while in custody. We disagree. Burns's testimony was not unduly emotional, and the jury reasonably understood Burns was expressing anger about having observed defendant enjoying himself in custody within days after killing the victims. Further, it was not improper for
2. Photographs of the victims
Defendant contends that the trial deprived him of a fair trial by permitting the prosecutor to keep "the frames of the photographs" of the victims facedown on chairs that were pushed under the counsel table during presentation of defendant's penalty phase case-in-chief and closing argument. Assertedly, the photographs generated juror sympathy and, because only the frames were revealed, "h[e]ld the power to distract." The claim fails on the merits.
Before presentation of the defense evidence, photographs of the victims that the prosecutor had used during presentation of the People's case-in-chief were placed facedown on chairs that had been pushed under the counsel table. Subsequently, defense counsel testified on defendant's behalf. After counsel concluded presentation of the defense case, he informed the court that: "As I was up on the witness stand, it became apparent to me that even though photographs may have been on the chairs, they were visible to the jury and have been — at least to some members of the jury, from my perspective, and so I'd like to make a record of that fact." The trial judge observed that the photographs were on chairs "pushed underneath the counsel table" and that, from his perspective, he could not see them. At defense counsel's request, the trial judge sat in various juror seats and stated he could see from "side glances" the bottom or a portion of the bottom of the chairs on which the photographs had been placed.
The court thereafter denied defense counsel's motion to remove the photographs from the courtroom, ruling the prosecutor could use demonstrative evidence during argument. Subsequently, the prosecutor displayed the photographs during his closing argument. After the prosecutor concluded his argument, defense counsel renewed his request to remove the photographs from the courtroom on the ground that they were constant reminders of the victims. The court denied the request, but asked the prosecutor to turn the photographs over during the defense argument. The record shows that, during the defense closing argument, the photographs were again placed facedown on a chair under the counsel table.
To the extent defendant contends the court erred in permitting the prosecutor to display photographs of the victims during his closing argument, the claim fails on the merits. (See, e.g., People v. Carpenter (1997) 15 Cal.4th 312, 401 [63 Cal.Rptr.2d 1, 935 P.2d 708] ["photographs of the victims of the charged offenses are generally admissible"]; People v. Cox (1991) 53 Cal.3d 618,
To the extent defendant contends that during presentation of the defense evidence and the defense closing argument, the court improperly permitted the prosecutor to keep the photographs facedown on the chairs underneath the counsel table with the frames visible, he fails to demonstrate an abuse of discretion. At most, the frames, not the photographs, could be viewed from several juror seats. Even assuming the jurors did see the frames under the counsel table, defendant does not demonstrate how this might have affected their penalty decision. Nor does defendant establish that counsel was distracted in presenting the defense case.
3. The 33 letters
Defendant contends that the trial court erroneously excluded the contents of 33 character reference letters offered during direction examination of defendant's mother, Mary Jane Thomas. Mary Jane testified that she had solicited the letters on defendant's behalf. Defense counsel offered the letters "as probative of something that has to do with this case and the issues before the jury" or "simply for their existence, not as hearsay."
Upon reviewing the letters, which the court described as generally "character reference type letters, or testimonials of [defendant]," it excluded them as cumulative of evidence that had been introduced either in the guilt or penalty phase. (Evid. Code, § 352.) Also, the authors of several of the letters had already testified about "their feelings ... as to [defendant] as an individual and his worth as a person." In addition, the court found that counsel failed to lay an adequate foundation for admission of the letters under an exception to the hearsay rule or in an alternate form of proof, noting that all of the letters were authored by people who apparently resided in the Bay Area and could have been summoned to testify. Finally, with respect to all but three of the letters, the court found their contents lacked trustworthiness because defendant's mother had solicited them during the pendency of a trial in which defendant's "character [would be] called into question in the actual heat of litigation."
Defendant maintains that exclusion of the evidence violated his federal due process right to have the jury consider in mitigation any aspect of his character that would allow it to return a life sentence. Citing Green v. Georgia (1979) 442 U.S. 95, 97 [60 L.Ed.2d 738, 99 S.Ct. 2150], defendant maintains that even assuming the evidence was excludable under our state rules of evidence, it should have been admitted because the evidence was relevant to an issue in the penalty phase of a capital trial. The claim lacks merit.
Defendant argues that the reliability of the contents of the letters is shown by their authenticity, which was undisputed, and their uniqueness, because each appears to represent the writer's own opinion of defendant's character. He asserts that to the extent that some of the contents contradict evidence introduced at trial, such discrepancies reflect the writers' limitations of perspective and personal knowledge. But like the trial court, we cannot ignore the fact the letters had been solicited by defendant's mother during the pendency of his trial, when his character would be at issue, and we therefore cannot conclude under Green that they are particularly reliable.
With regard to the remaining three letters, which were not solicited in anticipation of trial, the trial court did not err by excluding this evidence notwithstanding Green. Each of the letters was an employment reference letter written before defendant committed the murders, and each stated in fairly general terms that he was reliable and hard working. To the extent that they were relevant, they were, as the trial court held, cumulative of other testimony regarding defendant's character presented during the penalty phase. Thus, they were not the sort of testimony "highly relevant to a critical issue" in the penalty phase such that admission of this evidence was compelled by
Finally, defendant was not precluded from presenting this evidence, only from introducing it in the form of proof offered. As the court suggested, defense counsel could have sought to compel the authors' in-court testimony through the subpoena process.
4. Counsel's testimony
During the penalty trial, defense counsel informed the court and the prosecutor outside the presence of the jury that he intended to testify as the last defense witness. Counsel proffered that he would explain the circumstances under which defendant said "I smoked that bitch," during an interview on September 6, 1995, with counsel in which Drs. Kincaid and Wilkinson also were present and would describe defendant's related behavior during a confidential interview with counsel on September 3, 1995. The court overruled the prosecutor's objection to the admission of this testimony, allowing counsel to testify regarding both interviews. The court, however, expressed concern that counsel may have violated a canon of judicial ethics by proffering the evidence near the close of the defense case in the penalty phase and where other witnesses might have been available to testify.
Defense counsel also requested permission to testify and describe that during his initial interviews with defendant, defendant "basically ... would break down and start crying." Because counsel was alone with defendant when defendant purportedly displayed remorse, he did not know how otherwise to introduce the evidence.
Objecting that defense counsel had failed to provide discovery of the proffered testimony, the prosecutor asked the court to exclude it. (§ 1054 et seq.) In response, counsel explained that he did not take notes of his conversations with defendant and that there was "nothing in writing" he could provide in discovery.
The court noted that defense counsel had not included his name on the defense witness list at any time during trial, and stated it assumed that counsel's decision was made "last minute based upon something that occurred in the course of the trial." It continued: "What I believe is appropriate under the circumstances is I will allow you to testify as you initially indicated to [the September 3 and September 6 interviews]. To go beyond that, I believe would call upon you to divulge matters of discovery which you have not divulged and you have not given me any reason why you have not divulged matters in discovery." The court precluded counsel from testifying
On appeal, defendant contends that the court erred in precluding counsel from testifying about defendant's displays of remorse. Specifically, he contends that the exclusion of the evidence was an unauthorized sanction under the discovery rules. (See § 1054 et seq. [reciprocal discovery statutes].) Here, because any error was harmless, we need not decide whether the trial court erred by limiting counsel's testimony, or under what circumstances it may be permissible for trial counsel to testify as a witness in the case.
State law error occurring during the penalty phase requires reversal if there is a reasonable possibility that the error affected the verdict. (People v. Gonzalez (2006) 38 Cal.4th 932, 960-961 [44 Cal.Rptr.3d 237, 135 P.3d 649].) This standard "is the same, in substance and effect" as the "reasonable doubt" test under Chapman v. California, supra, 386 U.S. 18. (People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11 [131 Cal.Rptr.2d 468, 64 P.3d 762].)
In this case, defendant planned his massacre for months in advance and boasted to Robinson and Ferguson how he practiced at the shooting range the night before the murders. He hunted down his victims and shot each execution style, and the evidence strongly suggests that as he exited the building, he intended to shoot a third victim. The improperly excluded evidence that defendant appeared to be sobbing and "tore up" during his initial interviews with counsel would not have appreciably strengthened his case in mitigation. Defendant did not offer into evidence the statements of remorse he purportedly made during these emotional outbursts, conceding they were inadmissible hearsay. Absent this evidence, however, the jury could only speculate that he was expressing remorse for his crimes instead of concern for his own fate. The omitted evidence, therefore, was no more compelling than the evidence of defendant's other claim of remorse — that while in custody awaiting trial, he talked with the head chef at the Contra Costa County jail about the murders and appeared to be sorry. Under these circumstances, there is no reasonable possibility that the jury would have returned a different verdict had the jury been presented with defense counsel's testimony that defendant appeared remorseful.
5. Asserted misstatements of the law
a. Section 190.3, factor (c) — the presence or absence of any prior felony conviction
During penalty phase closing argument, the prosecutor told the jury that defendant's lack of a violent criminal history and felony convictions was neither mitigating nor aggravating, but neutral. The court sustained defense counsel's objection and instructed the jury that "[w]ith regard to Factor C, the presence or absence of any prior felony conviction other than the crimes for which the defendant has been tried in the present proceedings, the presence of such convictions are an aggravating factor, the absence of such convictions are a mitigating factor in all other matters as has been suggested, the presence may be an aggravating factor, the absence may be a mitigating factor. [¶] Or it may be considered by you to be neutral with regard to B and C, the presence is an aggravating factor, the absence of such factor is a mitigating factor."
Thereafter, the prosecutor argued that the question before the jury in considering the applicability of section 190.3, factor (c) required "[the jury] to decide how much weight to give to any alleged mitigating circumstance. So it's up to you to decide how much you should favor [defendant] because he doesn't have a felony conviction. How special he should be because of that, how many blue ribbons you want to paint on his chest because he doesn't have a felony conviction or he didn't commit a crime of violence."
Defendant contends that the court's corrective action in providing the jury with an explanation of section 190.3, factor (c) was insufficient and that it should have admonished the prosecutor for misstating the law. Also, defendant contends the prosecutor's argument telling the jurors how they should apply factor (c) was improper. The contentions are without merit.
Preliminarily, by failing to request an admonition, defendant forfeited his claim that the court should have admonished the prosecutor. (See People v. Fuiava, supra, 53 Cal.4th at p. 728.) Defendant also forfeited his claim that the prosecutor's argument misstated the law because he failed to object and ask that the jury be admonished. In any event, the claims are without merit.
b. Section 190.3, factor (h) — lack of capacity to conform conduct to requirements of law as a result of mental disease or defect
Section 190.3 provides that, in deciding penalty, the jury shall consider under factor (h) "[w]hether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication." Defendant contends that the court erred in refusing counsel's request to instruct the jury that factor (h) was applicable in this case. We disagree.
During argument, the prosecutor incorrectly asserted that "this factor is the definition of insanity"
Subsequently, outside the presence of the jury, the court conducted a hearing on the definition of insanity and the application of section 190.3, factor (h). Defense counsel stated, "I think the Court should indicate the objection was properly made and should have been sustained at that time, that the District Attorney, his comments misled this jury into believing that factor (h) had no application in this case when, in fact, it does because there is evidence of impaired mental capacity in this case. That is what I now request the Court to say to the jury." In essence, counsel wanted the court not only to correct itself and properly instruct the jury as to the terms "factor (h)" and "insanity" but also to inform the jury that "there is evidence of impaired mental capacity in this case," i.e., that factor (h) was applicable.
The court responded that it was "unable to tell a jury that this evidence is aggravating, this evidence is mitigating." It then correctly instructed the jury that "[f]actor (h) includes other states which impair mental capacity" and properly described section 190.3, factor (h) and defined insanity in accordance with the law.
The court's corrective action was adequate to cure any harm from the prosecutor's mischaracterization of section 190.3, factor (h). Defendant had the opportunity to argue the evidence he offered was mitigating under factor (h). The prosecutor was entitled to argue the opposite. Whether his recollection that Dr. Walser testified defendant was not insane was correct was a question for the trier of fact, and the argument was a proper comment on the evidence. Additionally, the prosecutor did not argue that the evidence was aggravating. (People v. Kaurish, supra, 52 Cal.3d at p. 706.)
6. Alleged instructional error regarding aggravating evidence
Defendant contends that when the court instructed jurors with CALJIC No. 8.88, it was required to identify on its own motion the elements of first degree murder and admonish jurors that they were not themselves aggravating circumstances. Defendant complains that, absent such an instruction, the jury was permitted to consider impermissible factors in deliberating the penalty question.
Defendant's concern essentially is that the jury based its death verdict on their findings in the guilt phase that he murdered Talley and Garcia with
"In deciding whether an instruction is erroneous, we ascertain at the threshold what the relevant law provides. We next determine what meaning the charge conveys in this regard. Here the question is, how would a reasonable juror understand the instruction. (E.g., California v. Brown (1987) 479 U.S. 538, 541 [93 L.Ed.2d 934, 107 S.Ct. 837].) In addressing this question, we consider the specific language under challenge and, if necessary, the charge in its entirety. ([Ibid].) Finally, we determine whether the instruction, so understood, states the applicable law correctly." (People v. Warren (1988) 45 Cal.3d 471, 487 [247 Cal.Rptr. 172, 754 P.2d 218].) "The test is whether there is a `reasonable likelihood that the jury ... understood the charge' in a manner that violated defendant's rights." (People v. McPeters (1992) 2 Cal.4th 1148, 1191 [9 Cal.Rptr.2d 834, 832 P.2d 146], quoting People v. Benson (1990) 52 Cal.3d 754, 801 [276 Cal.Rptr. 827, 802 P.2d 330]; see Boyde v. California (1990) 494 U.S. 370, 380 [108 L.Ed.2d 316, 110 S.Ct. 1190].)
We readily rejected defendant's contention that the trial court's comments during voir dire regarding aggravating circumstances rendered voir dire inadequate to reveal a potential inability or unwillingness to follow CALJIC No. 8.88. (See Discussion, pt. II.A.3., ante.) CALJIC No. 8.88, which was given before penalty deliberations, provides in relevant part: "An aggravating factor is any fact, condition or event attending the commission of a crime
In instructing the jurors on their task of determining penalty, the court never mentioned the terms "premeditation," "deliberation," or "elements of the crime." On the other hand, the arguments guided the jurors on how they should view aggravating circumstances. Defense counsel explained that an aggravating circumstance under section 190.3, factor (a) is not "simply" a fact that establishes defendant's guilt of the capital crimes but instead is "something beyond [the capital offense] that is so horrible." The prosecutor, too, correctly informed the jurors that aggravating circumstances under factor (a) consisted of "all of those other little details that go beyond the fact of killing with malice aforethought, premeditation, deliberation and includes other things as well." He appropriately told them to use only "those aggravating circumstances beyond the element of the offense itself." For example, the prosecutor encouraged the jurors to consider as an aggravating factor the proof of defendant's intent to kill a third victim, based on evidence showing that after he killed Talley and Garcia, he kept his gun at his side and chased Shirail Burton, who was running shoeless in the parking lot. For these reasons, there is no reasonable possibility that the jurors viewed the instructions as allowing them to consider in aggravation the fact that defendant committed premeditated and deliberate murder in aggravation. Therefore, we reject defendant's claim that the court was obligated to apprise jurors of the elements of the capital charges.
7. Constitutional challenges to California's death penalty law
Defendant argues that California's death penalty law and related instructions are unconstitutional on various grounds that we have previously rejected. He offers no persuasive reason to reconsider our prior decisions. Therefore, we continue to hold as follows:
8. Cumulative error
Defendant contends that the cumulative effect of the guilt and penalty phase errors requires reversal of his conviction and death sentence even if none of the errors individually compels reversal. We find no cumulative prejudice.
We affirm the judgment.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Werdegar, J., Corrigan, J., and Liu, J., concurred.