Kevin Dewayn Boyce (defendant) and Andre Willis burglarized two businesses, robbing several people inside. During the first crime, off-duty peace officer Shayne York was killed. A jury convicted defendant of first degree murder with the special circumstances of killing a peace officer in retaliation for the performance of his duties and of murder during the commission of robbery and burglary.
Defendant was sentenced to death, and to a determinate term of 34 years four months in state prison.
A. Guilt Phase
Shayne York and his fiancée, Jennifer Parish,
Suddenly, Willis entered the shop wielding a semiautomatic handgun. Defendant followed closely behind, also carrying a handgun. When Willis yelled, "Get the fuck on the ground, whiteys," the three victims complied. The men demanded to know the location of the register. Amy directed them to the cash drawer, which contained about $11.
After checking the drawer, defendant became agitated and demanded to know "where is the fucking money?" Amy offered approximately $40 to Willis. York volunteered another $100. Defendant demanded York's wallet, kicking him when he did not respond quickly enough. Meanwhile, Willis yanked Jennifer off the ground, searched her pockets, and took her watch and engagement ring.
While searching York, defendant discovered his sheriff's badge and said, "Well, well, well. Look what we have here, a mother fucking pig." Defendant demanded to know where York worked. York replied, "Wayside" and "East Facility."
One of the robbers said, "Fuck the whitey," and a shot was fired. York collapsed, bleeding profusely. Someone then declared that he had always wanted to kill a cop and that he hoped this one died. Neither Jennifer nor Amy saw the gun being fired, but both women believed that defendant had shot York based on the relative positions of the robbers.
York had been shot in the head. Jennifer held him while Amy called 911. Both women spoke to the operator. York ultimately died from a single gunshot that penetrated his brain. The position of the wound was consistent with the shooter standing over York and firing as he lay facedown.
The same night, around 10:00 p.m., Edward Tharp, Sean Gillette, Mark Cook, and Christopher Pierce were having a late dinner at Lamppost Pizza in Yorba Linda. Employees Rodney Tamparong and Ernest Zuniga were preparing to close. While emptying the trash, Tamparong noticed Willis and defendant in a Ford Mustang. One said, "Hey, come over here." Fearing they intended to rob him, Tamparong hurried back to the restaurant. Willis gave chase. Tamparong tried to close the door. Willis forced his way in and yelled, "Get on the floor, mother fuckers."
Willis opened the back door, and defendant entered carrying a semiautomatic firearm. Willis emptied the cash register, then forced Zuniga to open the safe. In total, Willis stole $483. Meanwhile, defendant robbed the restaurant patrons at gunpoint, demanding their wallets and declaring, "Look at all the white boys that we got on the floor," and "gotcha boys." Defendant kicked Tharp, Pierce, and Cook, and held a gun to Gillette's head. Tharp produced his wallet containing $80. Pierce likewise surrendered his wallet. Cook concealed his money in a pocket and maintained he had none. Gillette also said he had no wallet, but he offered a duffle bag. Defendant took nothing from Cook or Gillette.
When defendant asked if the men were cops, Cook said they were teachers. Defendant asked what he taught, and Cook replied "special ed." Defendant responded, "I was in special ed class." At that point, the tension lessened. Tamparong overheard defendant's question about police officers and hid his park ranger badge under a table. When Willis demanded Tamparong's wallet, he denied having one. Willis searched him, took nothing, and the robbers left.
At 10:40 p.m., in response to a suspect vehicle description, a Fullerton police officer stopped the Mustang. Willis drove with defendant as the sole passenger. At the detention scene, Tharp identified them as the Lamppost robbers. Tamparong identified Willis. Amy recognized Willis's clothing and
A search of Willis uncovered $756 and Jennifer's watch. Defendant carried $253 and three gloves. Hidden in the Mustang's center console, officers found credit cards belonging to Jennifer and York. A loaded semiautomatic and a loaded revolver were hidden behind the speakers in the backseat. Under the trunk lining officers recovered Willis's driver's license, registration for the Mustang, York's ATM card, and a DeCut Hair Salon business card with York's PIN written on it. The ATM card had been used to make a $200 withdrawal from York's account at 9:41 p.m. on August 14, 1997, at a bank located in the same mall as the Lamppost. Willis's fingerprint was found on York's Visa card. Despite an extensive search in several locations, Jennifer's engagement ring was never found.
The revolver hidden in the Mustang had an expended round in the chamber in line with the barrel. Ballistics testing confirmed it was the murder weapon. Defendant's right index fingerprint was found just above the grip. Several witnesses identified the recovered semiautomatic as similar to the one used in both robberies.
On August 15, 1997, Willis and defendant were placed together in an interview room where their conversation was covertly recorded. Willis told defendant that they were being investigated for attempted murder and robbery. He said that the police had pictures of "take out," slang for a handgun. Defendant responded, "They found em? ... Dang." Willis told defendant, "We ain't gonna say nothing, we're gonna ride this shit out man," and "when the mother fuckers come and talk, I'll put it on a third person.... I ain't going down for no mother fucking watch coward."
Defendant then volunteered that if he could smoke one cigarette he would tell them exactly what had happened. Kennedy agreed to provide a cigarette when the interview concluded. Defendant stated that he had a "split personalit[y]." He does not like his "white man's" name of Kevin Boyce. He is Osiris, king of the underworld and lord of the dead. He said Osiris "musta had too much, um, the devil juice or as [sic] alcohol, his drugs." He was "buzzin' tipstin" and could not remember exactly what had happened.
He recounted the following details of the salon incident. Someone had told him that the shop would be an easy target with $7,000 on hand. Defendant asked Willis for a ride. Willis did not know of his plan and did not go inside. Defendant ordered a man and woman to the floor. He was unaware York was a deputy sheriff. Discovering there was no safe, he took money from the woman's purse and the register. He took no jewelry. When he bumped into a chair, the gun discharged accidentally. He remembered "a pow ya" of the gun going off, and "I was like, damn." He did not think he had shot anyone. He claimed to be carrying a nine-millimeter semiautomatic weapon. He retrieved the expended shell casing from the floor.
Willis drove defendant away. Defendant saw the Lamppost and told Willis to take him there. Again, defendant maintained that he acted alone. The restaurant was closed, but defendant said he wanted to order a pizza as a ruse to get inside. There were four customers, two women and two men. Defendant brandished the semiautomatic then ordered everyone to get on the floor and empty their pockets. Defendant took about $77 and left. No shots were fired. Defendant explained he had "[l]earned from the last mistake. So I kept my finger off the trigger."
Defense counsel conceded defendant's participation in the Lamppost incident and his guilt on the resultant charges. He argued that Willis and an unidentified third person committed the DeCut Salon crimes, but admitted defendant's guilt of the burglary, robberies, and first degree felony murder because he had acted as a lookout. He contested only the special circumstance allegations.
Two experts testified about the reliability of defendant's confession. Richard Leo, a professor at University of California, Irvine, studies police interrogations. He noted techniques used in defendant's interview that could induce a confession. The police repeatedly stated that there was strong evidence against defendant and urged him to tell his side of the story. Leo urged that even trivial inducements can cause a suspect to confess. Here, defendant offered to tell the investigators what had happened if they would give him a cigarette. After the investigators agreed, defendant confessed. Leo opined that inconsistencies between a suspect's confession and the known facts of the crime can suggest that the confession is unreliable.
Licensed Clinical Psychologist Kara Cross conducted neuropsychological tests to measure defendant's intelligence, brain processing, motor skills, sensory perception, memory, and cognition. On the Wechsler Adult Intelligence Scale (WAIS), defendant's overall verbal intelligence quotient (IQ) score was 80, falling in the bottom 5 percent. His performance IQ of 68 is in the mentally retarded range. His full scale IQ of 69 reflects mental retardation.
Dr. Cross also administered the Luria Nebraska test to detect organic brain damage. Defendant had severe impairment in several areas, including rhythm and tactical function, reading, writing, and arithmetic. He was not impaired in memory, expressive and receptive speech, or motor skills. Based on these results, Dr. Cross prepared a chart showing the areas of defendant's brain damage. Although the functioning areas compensated to some degree, defendant still demonstrated significant impairment.
Dr. Cross reviewed defendant's school records for kindergarten through 10th grade. At age seven, defendant took the Slosson IQ test and received a score of 114, which is above average. Dr. Cross opined, however, that the test was unreliable. On the Peabody Picture Vocabulary Test (PPVT) defendant received an IQ score of 83, below average. When he was nearly 13 years old, defendant was again tested. On the Wechsler Intelligence Scale for Children-Revised (WISC-R) defendant scored a verbal IQ of 88, below average, and a performance IQ of 74, a borderline score. His Slosson IQ was 80, below average, and his PPVT IQ was 70, again borderline functioning.
B. Penalty Phase
Jennifer, along with York's brother and parents, testified about York's life and the suffering his death had caused them.
The prosecution presented documentary evidence that defendant had been convicted of robbery in 1989 and of possession of a firearm by a felon in 1994.
Damani Gray recounted that in 1987, when he was 12 years old, defendant approached him on the street and asked if he belonged to a gang. Gray said he did not, and defendant asked if he wanted to be from the Rolling '60's Crips gang. After Gray said no, defendant punched him in the face repeatedly, knocking him unconscious. Defendant later told an officer that "he is going to fuck up the punk who had him arrested when he gets out of jail."
In addition to Dr. Cross's testimony in the guilt phase, defendant introduced evidence that he had brain damage, learning disabilities, and mental illness, and was burdened by a disjointed home life. By the time he was 17 years old, he had changed residences 12 times, attending 23 schools.
Around age two, defendant had a severe fever and seizures spanning several days. He did not speak again until he was five. He repeated kindergarten and first grade. Defendant's first grade teacher in North Carolina described him as the most learning disabled student she had encountered in 30 years of teaching. Because he did not test below a 70 IQ and his mother minimized his learning disability, his special needs went largely unmet.
Defendant was hospitalized with another high fever when he was between nine and 12 years old. One relative recalled that he was in a coma.
Psychiatrist Samuel Benson opined that defendant's abnormal electroencephalogram (EEG) and history of learning disabilities are consistent with organic brain damage. School records indicated that from age four on, defendant consistently performed three years behind grade level. However, he showed great confidence and ability in sports.
Dr. Benson diagnosed defendant based on the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) multiaxial system. On Axis I, defendant showed an unspecified psychosis and abuse of alcohol, marijuana, and PCP. On Axis II, defendant demonstrated schizotypal disorder, meaning that he responds to stress by demonstrating odd beliefs, magical thinking, unusual perceptions, suspiciousness, paranoid ideation, inappropriate or restricted affect, and eccentric behavior. He lacks close friends and is socially anxious. Defendant has learning disabilities secondary to organic brain disease existing since childhood. Defendant had no diagnosis on Axis III. On Axis IV, defendant experienced severe psychosocial stressors during incarceration. On Axis V, a global assessment of functioning within the past year, Dr. Benson gave defendant a rating of 40 out of 100, meaning that defendant should be hospitalized. In Dr. Benson's opinion, defendant does not have an antisocial personality disorder. He acknowledged that defendant was capable of making choices such as deciding whether to shoot someone.
Defendant told Dr. Benson that he began hearing voices as early as age three or four. When he was 10, defendant formed a belief that he was a commander in God's army against evil, which helped him cope with his fear of the dark. Later, after a release from juvenile hall, his mother and sister recalled that defendant hallucinated he was the Egyptian god Osiris. Dr. Benson opined that defendant's voices and delusions helped him cope with stress. Defendant did not claim that voices had told him to commit the charged crimes.
Defendant's family members described him as a shy but loving person. He helped care for his grandmother and great-grandmother. He was a good father to his seven-year-old daughter.
A. Guilt Phase Issues
1. Admissibility of 911 tape recordings
The People sought to introduce recordings of 911 calls made immediately after the salon shooting. The first call lasts approximately 48 seconds. Jennifer tells the operator, "we need an ambulance" and "[m]y husband's been shot in the head." Her voice is rapid and panicked. She pleads with the operator, "Hurry. Help. And please hurry," and then asks "[a]re you coming?" At times she can be heard crying. The second call lasts approximately one minute 48 seconds. Amy says "Oh, my God." She tells the operator that York has been shot in the back of the head "and there's stuff coming out of his nose." She describes the suspects as "two black men. They each have a gun" and confirms that "[t]hey took the guns with them." She then exclaims, "Please help him," "[w]here is the ambulance?" and "Oh, God" in a desperate and frustrated voice.
Defendant objected to admission of the 911 tapes in the guilt and penalty phases as irrelevant, unduly prejudicial, and a violation of his constitutional right to due process. The trial court overruled the objections, finding that the tapes were relevant to credibility and not unduly prejudicial. The tapes were played in the guilt phase but not in the penalty phase. The jury was instructed, however, that "[i]n determining which penalty is to be imposed on the defendant, you shall consider all the evidence which has been received during any part of the trial of this case."
Defendant claims that the court abused its discretion in admitting evidence that he characterizes as irrelevant and unduly inflammatory. The argument fails.
We review these evidentiary rulings for abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 237 [142 Cal.Rptr.3d 481, 278 P.3d 754] (Streeter).) A court abuses its discretion if it acts "in an arbitrary, capricious, or patently absurd manner." (People v. Thomas (2012) 53 Cal.4th 771, 806 [137 Cal.Rptr.3d 533, 269 P.3d 1109].)
The trial court did not abuse its discretion in admitting the tapes to provide a contemporaneous account of the crime scene and information about the robbers. Although Amy and Jennifer testified in detail at trial, the court had broad discretion to admit corroborating evidence that was nearly contemporaneous with the crimes. (Streeter, supra, 54 Cal.4th at pp. 236, 238.) The tapes also assisted the jury in evaluating Amy's and Jennifer's credibility. The defense attempted to show that the intense trauma of the incident compromised their ability to accurately perceive the shooter's identity. By listening to the tapes, the jury was able to evaluate first hand the women's demeanor in the moments following the crimes.
The court legitimately concluded that the probative value of the tapes was not substantially outweighed by undue prejudice. While the women are certainly in distress, their comments and affect are not unduly shocking, considering the nature of the crimes. "`"[M]urder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant"' [citation], and we rely on our trial courts to ensure that relevant, otherwise admissible evidence is not more prejudicial than probative [citation]." (People v. Gurule (2002) 28 Cal.4th 557, 624 [123 Cal.Rptr.2d 345, 51 P.3d 224] (Gurule).)
Defendant argues that the 911 tapes were so inflammatory as to provoke a purely irrational response from the jury, ultimately rendering the penalty trial fundamentally unfair. Not so. "[T]he trial court's discretion to exclude evidence regarding the circumstances of the crime as unduly prejudicial is more circumscribed at the penalty phase than at the guilt phase of a capital murder trial, because the sentencer is expected to weigh the evidence subjectively." (People v. Salcido (2008) 44 Cal.4th 93, 158 [79 Cal.Rptr.3d 54, 186 P.3d 437].) Nor was the evidence cumulative to Jennifer's victim impact testimony at the penalty phase because "only the tape conveyed the more immediate impact of the crimes on her." (People v. Hawthorne, supra, 46 Cal.4th at p. 103.) Finally, the risk of prejudice was slight. The jury had already found defendant guilty based in part on a proper consideration of this evidence. There is little risk that the jurors would have reacted so emotionally to their recollection of the evidence during the penalty phase that they should be instructed to disregard it. (See People v. Moon (2005) 37 Cal.4th 1, 35 [32 Cal.Rptr.3d 894, 117 P.3d 591] (Moon).) Further, at defense counsel's request, the trial court instructed that "[s]ympathy for the family of the victim is not a matter you may consider in aggravation. Evidence, if any, of the impact of the victim's death on family members should be disregarded unless it illuminates some positive quality of the victim's background and character."
Because the evidence was properly admitted, we necessarily reject defendant's constitutional claims that admission of the tape deprived him of his rights to due process, a fair trial, and a reliable and nonarbitrary penalty
2. Flight instruction (CALJIC No. 2.52)
The court gave CALJIC No. 2.52 explaining that flight immediately after the commission of a crime may be considered as evidence of guilt, but is not alone sufficient to support a conviction. Defendant renews his objection below that there was insufficient evidence of flight to warrant the instruction. He also argues that several aspects of the standard instruction deprived him of his constitutional rights. These claims fail.
Merely being at the scene and leaving it does not necessarily reflect a consciousness of guilt. (People v. Bonilla (2007) 41 Cal.4th 313, 328 [60 Cal.Rptr.3d 209, 160 P.3d 84].) A person who does only that may be unaware that a crime has occurred, or may leave for reasons other than to avoid observation or arrest. (People v. Crandell (1988) 46 Cal.3d 833, 869 [251 Cal.Rptr. 227, 760 P.2d 423].) Such is not the case here. Defendant and his partner entered both businesses armed with guns, abused and threatened victims, stole from them and then left. They clearly knew York was in mortal jeopardy. One robber said, "I hope this one dies." Neither man attempted to render aid or call for assistance. They hid the handguns and stolen items in their car. These factors are more than sufficient to support an inference that defendant left the scene to avoid apprehension. (See, e.g., Bonilla, at p. 329 [defendant immediately left the scene and did not attempt to aid victim or to call for assistance]; People v. Jurado (2006) 38 Cal.4th 72, 126 [41 Cal.Rptr.3d 319, 131 P.3d 400] [defendant hid the murder weapon and did not call for help from a nearby callbox]; People v. Smithey (1999) 20 Cal.4th 936, 982 [86 Cal.Rptr.2d 243, 978 P.2d 1171] (Smithey) [defendant rammed his car through a closed gate and did not summon help].) Notably, the instruction told the jury that it could consider flight "if proved," that flight is "not sufficient in itself to establish ... guilt," and that "[t]he weight to which this circumstance is entitled is a matter for you to decide." There was no error.
Accordingly, defendant's arguments that the instruction deprived him of due process, equal protection, a fair jury trial, and a fair and reliable penalty determination also fail. (Benavides, supra, 35 Cal.4th at p. 100.)
3. Special circumstance for intentionally killing a peace officer (§ 190.2, subd. (a)(7))
Defendant claims that insufficient evidence supported the finding that he intentionally killed Deputy York in retaliation for the lawful performance of his duties. He also argues that the special circumstance allegation is unconstitutionally vague. We reject both contentions.
A jury's true finding on a special circumstance allegation must be supported by substantial evidence. (People v. Mayfield (1997) 14 Cal.4th 668, 790-791 [60 Cal.Rptr.2d 1, 928 P.2d 485].) The whole record is reviewed "in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the [special circumstance allegation true] beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738]; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 99 S.Ct. 2781].)
Jennifer Parish testified that the second suspect, whom the jury determined was defendant, said, "Whitey is a mother fucking pig" after discovering York's sheriff's badge. He asked York where he worked and whether he enjoyed treating gang members badly. Defendant responded to York's denial: "No, I know you like to treat us nigger Crips like shit in jail." One of the robbers said, "Fuck the whitey" just before defendant shot York in the back of the head. One of the two commented that he had always wanted to kill a cop. Although Jennifer could not identify which man made the remarks, the jury reasonably could have attributed them to defendant, whom they determined to be the shooter.
Amy recounted much the same conversation. She also heard one robber say, "Good, I hope this one dies." Again, the jury reasonably could have attributed this comment to defendant.
Other facts support the finding. After York was shot, Willis found Jennifer's badge, observed, "We've got another mother fucking pig in here," and asked which of the two women was the officer. Having left York to die, the men went to the Lamppost, where defendant asked if any of those victims were in law enforcement.
Finally, there was additional evidence that defendant was a Crips gang member, incarcerated in 1994 at the facility where York worked. This independent evidence is consistent with defendant's remarks to York, and reflect his motive for the murder.
Defendant counters that the statute's use of the word retaliate requires proof he knew of specific actions by York providing a logical or temporal relationship between the officer's performance of his duties and defendant's motive to kill him. He cites as an example Jenkins, supra, 22 Cal.4th 900, where the special circumstance was upheld based on evidence that defendant killed a police detective who was investigating him for a robbery. (Id. at pp. 932-937, 1022.) Here, by contrast, defendant argues that the evidence shows nothing more than a "status" killing of a peace officer which, in his view, does not satisfy the statutory elements.
Indeed, imposing such a requirement would be contrary to the electorate's intent in enacting section 190.2, subdivision (a)(7). The language at issue was part of the Briggs Initiative, enacted by the voters in November 1978 to supplant the Legislature's 1977 death penalty statute. (Prop. 7, § 6, approved by voters, Gen. Elec. (Nov. 7, 1978); People v. Rodriguez (1986) 42 Cal.3d 730, 777 [230 Cal.Rptr. 667, 726 P.2d 113] (Rodriguez).) The analysis contained in the official voter materials states broadly that a special circumstance would apply to the "murder of any peace officer ... with respect to the performance of such person's duties." (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) analysis of Prop. 7 by Legis. Analyst, p. 32.) The argument in favor of the initiative likewise affirms that the death penalty would apply to the killing of certain categories of victims, including judges, prosecutors, firefighters, and the President of the United States. (Ballot Pamp., Gen. Elec., supra, argument in favor of Prop. 7, p. 34; see Arias v. Superior Court (2009) 46 Cal.4th 969, 979 [95 Cal.Rptr.3d 588, 209 P.3d 923] [considering official election materials submitted to the voters to ascertain electorate's intent].)
Our opinion in Rodriguez, supra, 42 Cal.3d 730, also supports this view. That case involved a constitutional challenge to the statute's provision that a special circumstance applies when the defendant intentionally kills a peace officer who was engaged in the course of the performance of his or her duties and the defendant knew or reasonably should have known such facts. (Id. at pp. 780-781.) In upholding the statute's "`reasonably should have known'"
Defendant's reliance on Jenkins to support a narrower interpretation of the statute is misplaced. As noted, Jenkins was charged with murdering an off-duty police detective who had been investigating his participation in a robbery. (Jenkins, supra, 22 Cal.4th at pp. 932-937, 1022.) He urged that someone else had shot the detective. He also presented evidence to support an argument that the detective had fabricated a case against him and was therefore not engaged in the lawful performance of his duties. (Id. at pp. 938-939.) We upheld the special circumstance finding, observing that there was substantial evidence the detective was engaged in a lawful investigation and that "defendant killed [him] in retaliation for the detective's part in the Carpenter prosecution...." (Id. at p. 1022.) Simply because those facts existed in that case does not mean they are required in every case. The legal insufficiency challenge fails.
It is not difficult to understand the concept of retaliation against a peace officer for doing his duty. The word "retaliate" is commonly understood and
Finally, defendant urges that applying the special circumstance to him is an unforeseeable judicial enlargement of a criminal statute in violation of due process. (People v. Blakeley (2000) 23 Cal.4th 82, 92 [96 Cal.Rptr.2d 451, 999 P.2d 675].) He is incorrect. The plain language of the statute encompasses his conduct. Defendant cites no established rule to the contrary that would constitutionally bar application of a clear statute to his crime. (People v. Rathert (2000) 24 Cal.4th 200, 209-210 [99 Cal.Rptr.2d 779, 6 P.3d 700].)
4. Robbery-murder and burglary-murder special circumstances (§ 190.2, subd. (a)(17))
Defendant challenges the robbery-murder and burglary-murder special circumstances on three grounds: sufficiency of the evidence, improper instruction, and unconstitutionality. The claims are unavailing.
a. Sufficiency of the evidence
Defendant argues that the special circumstance findings cannot stand because there was no evidence the burglary and robbery were independent of the murder. Invoking our holding in People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468] (Green) he reasons that the evidence showed he killed York in retaliation for being a peace officer and not to advance either felony.
He misapprehends the rule. In Green, the defendant took his wife to a remote location, forced her to undress, then killed her in revenge for her infidelity. He was convicted of first degree murder with a robbery-felony-murder special circumstance based on the taking of the victim's clothing. (Green, supra, 27 Cal.3d at pp. 11-16.) We set aside the special circumstance, reasoning that it was arbitrary and capricious to impose a death judgment when the defendant intends to commit a murder and only incidentally commits one of the specified felonies while doing so. (Id. at p. 61.) Stated another way, "where the defendant's intent is to kill, and the related offense is only incidental to the murder, the murder cannot be said to have been committed in the commission of the related offense." (People v. Williams (1988) 44 Cal.3d 883, 927 [245 Cal.Rptr. 336, 751 P.2d 395]; accord, People v. Marshall (1997) 15 Cal.4th 1, 41 [61 Cal.Rptr.2d 84, 931 P.2d 262] (Marshall) [overturning robbery-murder special circumstance based on evidence that defendant took a letter from the victim as a token of the rape and killing].)
Here, there was compelling evidence that defendant and Willis entered the salon intending to commit a felony inside and that defendant shot York "while ... engaged in" (§ 190.2, subd. (a)(17)) the commission of burglary and robbery. The two men, armed with guns, barged into the establishment and ordered all three victims to the floor. They took money and valuables from the victims and the store cash register. Defendant shot York after looking through his wallet; he and Willis then continued taking property from
Defendant cites People v. Bonin (1989) 47 Cal.3d 808 [254 Cal.Rptr. 298, 765 P.2d 460] for the proposition that he must commit "the act resulting in death in order to advance an independent felonious purpose" (id. at p. 850), namely burglary or robbery. He misreads our precedent. Green's requirement means only that "he must not perpetrate the underlying felony as `merely incidental to the murder.' [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 519, fn. 17 [41 Cal.Rptr.2d 826, 896 P.2d 119], quoting Green, supra, 27 Cal.3d at p. 61; accord, People v. Raley (1992) 2 Cal.4th 870, 903 [8 Cal.Rptr.2d 678, 830 P.2d 712].) "The only intent required to find the felony-murder-robbery special circumstance allegation true is the intent to commit the robbery before or during the killing." (People v. Huggins (2006) 38 Cal.4th 175, 215 [41 Cal.Rptr.3d 593, 131 P.3d 995].) "[T]here is no requirement that the prosecution prove an additional or different element that the killing be committed to `advance' the felony." (Dykes, supra, 46 Cal.4th at pp. 760-761.)
The burglary and robbery were not merely "incidental or ancillary to the murder." (Abilez, supra, 41 Cal.4th at p. 511; accord, People v. Davis, supra, 46 Cal.4th at p. 609.) Indeed the decision to shoot York and the reason for doing so arose only after defendant entered the salon and began taking property. The evidence suffices.
b. Alleged misinstruction
As noted, the court gave CALJIC No. 8.81.17, which read: "To find that the special circumstance, referred to in these instructions as murder in the commission of robbery or burglary, is true, it must be proved: [¶] Number one, the murder was committed while a defendant was engaged in or was an accomplice in the commission or attempted commission of the robbery or burglary; and [¶] Number two, the murder was committed in order to carry out or advance the commission of the crime of robbery or burglary or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if any robbery or burglary was merely incidental to the commission of the murder."
During deliberations, the jury asked: "Re: page 53, part 2 of the jury instructions. Question: If first degree murder is committed as a consequence of or results from the intent or commission of armed robbery and/or burglary, is this sufficient to establish the special circumstance cited?" With the
Defendant argues that the court had an obligation to alleviate the jury's confusion about the application of the special circumstances. He claims the court failed to do so and misled the jury by suggesting that it need not find defendant killed to advance an independent felonious purpose. He claims the error deprived him of due process, trial by jury, proof beyond a reasonable doubt, presentation of a complete defense, and a reliable death penalty determination. He fails to persuade.
Defendant forfeited his appellate challenge by expressly agreeing to the court's response. The court interpreted the jury's question as requesting guidance on how it should resolve a factual issue, and observed that the answer "depends upon what they are finding to be the facts." It did not "want to suggest anything one way or another" about how they should make this factual assessment. Defense counsel agreed with this interpretation, and with the court's proposed response. Indeed, defense counsel observed: "the answer to that question with respect to 8.81.7 ... is right there on the instruction. [¶] ... [¶] ... And it really depends on what they determine the facts to be and there are, I don't know, any number of different ways they can interpret the facts and then have to interpret the law and how they apply to the facts." He further commented, "[T]he question that they are asking is begging an interpretation of what the facts really mean."
"When the trial court responds to a question from a deliberating jury with a generally correct and pertinent statement of the law, a party who believes the court's response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court's wording or to request clarification results in forfeiture of the claim on appeal." (Dykes, supra, 46 Cal.4th at p. 802; accord, People v. Marks (2003) 31 Cal.4th 197, 237 [2 Cal.Rptr.3d 252, 72 P.3d 1222].)
Defendant interprets the question to ask if the special circumstance could be based solely on a finding that defendant was "engaged in" a burglary or robbery. The court's response, he maintains, should have been "no"; its actual response, "it depends upon what the jury finds to be the facts...," allowed the jury to return a special circumstance finding without finding that he had an independent felonious purpose. This interpretation is untenable.
The jury's question focused on a killing that is "committed as a consequence of or results from the intent or commission of armed robbery and/or burglary." (Italics added.) The phrasing of the question conveyed a basic understanding that the felony must be independent of the murder. By rereading CALJIC No. 8.81.17 in its entirety, the court reaffirmed that point. It emphasized that "the special circumstance referred to in these instructions is not established if any robbery or burglary was merely incidental to the commission of the murder." (Ibid.) This instruction effectively explains that for this felony-murder special circumstance to apply, "the murder must be committed while the defendant was engaged in robbery or [burglary] (or immediate flight after commission of [those felonies]), and not the other way around, that is to say, not if the defendant intended to commit murder `and only incidentally committed [the robbery or burglary]' while doing so." (People v. Stanley (2006) 39 Cal.4th 913, 956-957 [47 Cal.Rptr.3d 420, 140 P.3d 736] (Stanley).) The court's response thereby correctly conveyed the Green rule. The jury would have understood the court's response in this manner.
c. Constitutional challenge
Finally, consistent with long-standing precedent, we reject defendant's claim that the felony-murder special circumstances must be set aside because they fail to narrow the class of death-eligible defendants to a smaller subclass more deserving of death. (Stanley, supra, 39 Cal.4th at p. 968; People v. Musselwhite (1998) 17 Cal.4th 1216, 1265-1266 [74 Cal.Rptr.2d 212, 954 P.2d 475]; People v. Anderson (1987) 43 Cal.3d 1104, 1146-1147 [240 Cal.Rptr. 585, 742 P.2d 1306].)
B. Penalty Phase Issues
1. Denial of the right to self-representation
Defendant alleges that the court erroneously denied his Sixth Amendment right to self-representation at the penalty phase. (Faretta v. California (1975)
The same day the jury returned its guilt phase verdicts, defendant made a motion to substitute counsel.
When asked if he wanted substitute counsel, defendant said, "No." When asked if he wanted to represent himself, defendant again said, "No," explaining that "I just want the prosecutor to put his little — what he want to put up." The court explained that defendant had to choose one or the other. Defendant then asked, "If I represent myself, I could just be quiet then, right?" The court confirmed that defendant could "do pretty much what you feel is appropriate to do with respect to the penalty phase of the trial." Defendant responded, "I just want Mr. Davis and Ron Klar moved off my case. I don't want no new lawyers, I don't want to represent myself." (Italics added.) The court sought clarification, asking, "You want new lawyers?" Defendant again responded, "No, I don't want no new lawyers. I don't want to represent myself. I just want the prosecutor to do the rest of his little job and I will go on my way." (Italics added.)
The court asked defense counsel, "is this a Faretta hearing or Marsden?" Counsel responded, "I don't think that's really what it is." He explained that defendant did not want to present any evidence in mitigation, but that counsel felt an ethical obligation to mount a defense.
The court observed that it was having difficulty determining whether defendant wished to represent himself but that "I think that's what you are saying because you are telling me you don't want another lawyer appointed and you want the court to relieve Mr. Klar and Mr. Davis." The court inquired, "You basically just want to sit there during the penalty phase and let the D.A. put on his evidence without anybody asking those people any questions?" Defendant responded, "You know, your Honor, if I could have it my way, I don't want to be here at all. I want to stay in the jail. You could notify me of the outcome."
The court deemed defendant to have made a Faretta motion as "part and parcel of a Marsden request." The court questioned defendant, who revealed
"... Faretta itself and later cases have made clear that the right of self-representation is not absolute. [Citations.]" (Edwards, supra, 554 U.S. at p. 171 [listing limitations on the right].) For example, when the self-representation motion is untimely, "self-representation no longer is a matter of right but is subject to the trial court's discretion." (People v. Bradford (1997) 15 Cal.4th 1229, 1365 [65 Cal.Rptr.2d 145, 939 P.2d 259].) For purposes of assessing timeliness, the guilt and penalty phases are parts of a single trial. "[A] motion made between the guilt and penalty phases is thus untimely and subject to the trial court's discretion." (People v. Mayfield, supra, 14 Cal.4th at p. 810; accord, Doolin, supra, 45 Cal.4th at p. 454.) Additionally, special considerations inform a request for self-representation in a capital case. By statute, "a plea of guilty to a capital felony may not be taken except in the presence of counsel, and with counsel's consent. (§ 1018.) Even
Defendant contends that the court erred by considering his lack of education as a basis for denying the Faretta request (see Doolin, supra, 45 Cal.4th at p. 454), failing to determine whether his request was knowing and intelligent, and failing to apply the factors outlined in People v. Windham (1977) 19 Cal.3d 121, 128-129 [137 Cal.Rptr. 8, 560 P.2d 1187] to assess an untimely request.
"[T]he Faretta right is forfeited unless the defendant `"articulately and unmistakably"' demands to proceed in propria persona." (Valdez, supra, 32 Cal.4th at p. 99.) Because the right to counsel is self-executing and persists unless the defendant affirmatively waives the right, the court must indulge every reasonable inference against such a waiver. (Marshall, supra, 15 Cal.4th at p. 20; Brewer v. Williams (1977) 430 U.S. 387, 404 [51 L.Ed.2d 424, 97 S.Ct. 1232].)
Although the court here interpreted defendant's request as one for self-representation, we are not bound by that understanding. (Valdez, supra, 32 Cal.4th at p. 99; Barnett, supra, 17 Cal.4th at p. 1087; Marshall, supra, 15 Cal.4th at p. 25.) Indeed, we reject it. Defendant stated that he wanted counsel removed from the case. At no point did he indicate that he wished to represent himself if his request was denied. (Valdez, at pp. 100-101.) Quite the contrary, he explicitly stated three times that he did not wish to represent himself. When the court explained that he must choose either representation by counsel or self-representation, defendant expressly stated that he wanted neither. The trial court could not accommodate that request. As we explained in Marshall, a defendant has mutually exclusive rights to either counsel or self-representation. (Marshall, supra, 15 Cal.4th at p. 20.) Because the court must draw every reasonable inference against waiver of the right to counsel, it was not error to allow defense counsel's continued representation.
Defendant argues that his stated desire to control his defense at the penalty phase by removing his attorneys and forgoing replacement counsel mandates
Simply stated, defendant wished to proceed in a way the law does not allow. His desire to do what the law prevents cannot be transformed into a request to do what the law permits but that he does not want. Accordingly, the court properly allowed defense counsel to remain on the case and to present mitigating evidence on defendant's behalf. (People v. Roldan (2005) 35 Cal.4th 646, 682 [27 Cal.Rptr.3d 360, 110 P.3d 289] ["counsel's decision to contact defendant's family over his express wishes was a tactical decision counsel was entitled to make"], disapproved on another ground in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
This case is distinguishable from Dent, supra, 30 Cal.4th 213, upon which defendant relies. There, the court relieved defense counsel over the defendant's express objection. Defense counsel stated that if the court was inclined
Unlike in Dent, defendant's statements here "cannot be deemed to have constituted an articulate and unmistakable demand for self-representation." (Valdez, supra, 32 Cal.4th at p. 100, italics added [distinguishing Dent].) Further, the court did not act without due reflection. To the contrary, it carefully probed defendant's intent. It was defendant, not the court, who unambiguously and repeatedly dismissed any notion that he wished to try his own case. This record "underscores the point that defendant understood that he could, if he wished, make a request to represent himself in this case." (Valdez, at p. 101.) He did not do so.
"Because defendant failed to `"articulately and unmistakably demand to proceed pro se,"' we conclude he never invoked his Faretta right." (Valdez, supra, 32 Cal.4th at p. 99.) There was no Sixth Amendment violation.
2. Rejection of defendant's supplemental penalty phase instructions
The court gave CALJIC Nos. 8.85 and 8.88 explaining penalty determination, the nature of aggravation and mitigation, and the weighing of those factors. It refused several of defendant's supplemental instructions regarding the jury's consideration of mercy, sympathy, and compassion (proposed instruction Nos. 2, 3, 4), the concept of lingering doubt (proposed instruction Nos. 12, 13, 14, 15), mental and emotional disturbance (proposed instruction No. 18), mitigating circumstances (proposed instruction Nos. 1, 2, 16), and aggravating factors (proposed instruction Nos. 6, 17). Defendant contends that these instructions were necessary to guide the jury in its consideration and weighing of mitigating and aggravating factors, and in its making the constitutionally required individualized moral assessment of the appropriate
a. Instructions on mercy, sympathy, and compassion
Defendant proposed three special instructions on the role of compassion, sympathy, and mercy in the penalty phase deliberations:
"A juror is further permitted to use mercy, sympathy and/or sentiment in deciding what weight to give each mitigating factor." (Proposed instruction No. 2, ¶ 3.)
"A mitigating circumstance does not constitute a justification or excuse for the offense in question. A mitigating circumstance is a fact about the offense, or about the defendant which in fairness, sympathy, compassion or mercy may be considered in extenuating or reducing the degree of moral culpability or which justifies a sentence less than death, although it does not justify or excuse the offense." (Proposed instruction No. 3.)
"If a mitigating circumstance or aspect of the defendant's background or his character arouses mercy, sympathy, empathy or compassion such as to persuade you that death is not the appropriate penalty, you must act in response thereto and impose a sentence of life without possibility of parole." (Proposed instruction No. 4.)
The court rejected these instructions as duplicative of the standard CALJIC instructions. It also found proposed instruction No. 4 argumentative.
Defendant urges us to reconsider this authority because, in his view, reference to "sympathy" does not carry the same meaning as "compassion" or "mercy." We decline the invitation. The words "sympathy" and "compassion" are functional synonyms. (Roget's II, The New Thesaurus (3d ed. 2003) pp. 183, 993.) Defendant fails to articulate a meaningful distinction between them. As for mercy, we repeatedly have cautioned against using that word in the penalty phase instructions, explaining, "[t]he unadorned use of the word `mercy' implies an arbitrary or capricious exercise of power rather than reasoned discretion based on particular facts and circumstances." (People v. McPeters (1992) 2 Cal.4th 1148, 1195 [9 Cal.Rptr.2d 834, 832 P.2d 146], superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106 [77 Cal.Rptr.3d 287, 183 P.3d 1250]; accord, People v. Lewis (2001) 26 Cal.4th 334, 393 [110 Cal.Rptr.2d 272, 28 P.3d 34].) Moreover, the court did not foreclose defense counsel from urging the jury to show sympathy and mercy to defendant. (See Lewis, at p. 393.) No modified instruction was warranted.
b. Instructions on lingering doubt
Defendant proposed four instructions on the concept of lingering doubt.
c. Mitigating circumstances
Defendant challenges the court's rejection of several proposed instructions on mitigating circumstances. There was no error.
Defendant proposed a special instruction that mental or emotional disturbance from any cause, including consumption of drugs or mental illness, is a mitigating circumstance. (Proposed instruction No. 18.)
CALJIC No. 8.85, factor (d) told the jury to consider "[w]hether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance." Factor (h) of CALJIC No. 8.85 told the jury to consider "[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 the law was impaired as a result of mental disease or defect or the effects of intoxication." Factor (k) of CALJIC No. 8.85 told the jury to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect of the defendant's character or
In People v. Williams (2006) 40 Cal.4th 287, 325-326 [52 Cal.Rptr.3d 268, 148 P.3d 47] the defendant requested a special instruction nearly identical to the one proposed here. We upheld the court's refusal to give the "rather confusing" instruction, observing that it would not have clarified the standard CALJIC instruction respecting section 190.3, factor (h). (Williams, at p. 326; accord, People v. Rogers (2006) 39 Cal.4th 826, 898-899 [48 Cal.Rptr.3d 1, 141 P.3d 135].)
Defendant protests that factors (d) and (h) in CALJIC No. 8.85 did not specifically identify mental or emotional disturbance as a mitigating factor. He further argues that the "instruction's reference [in factor (k)] to `the defendant's character' does not clearly cover the evidence of brain damage and mental illness introduced by appellant." The argument fails. The "penalty phase jury instructions need not explicitly label a factor such as extreme mental or emotional disturbance as mitigating, provided there is no reasonable likelihood jurors misunderstood the instruction in a way that violated defendant's rights...." (People v. Dunkle (2005) 36 Cal.4th 861, 924 [32 Cal.Rptr.3d 23, 116 P.3d 494], disapproved on another ground in Doolin, supra, 45 Cal.4th at p. 421, fn. 22; accord, People v. Rogers, supra, 39 Cal.4th at p. 897.) The standard instructions refer to extreme mental or emotional disturbance, impairment from mental disease or defect, and any other sympathetic aspect of a defendant's situation as relevant penalty factors. Defendant presented extensive evidence in the guilt and penalty phases on these topics. Counsel argued that such evidence should be considered in mitigation. There is no reasonable likelihood the jurors would have interpreted the instructions to impermissibly limit their consideration of this evidence. (Boyde v. California (1990) 494 U.S. 370, 380-383 [108 L.Ed.2d 316, 110 S.Ct. 1190].)
Defendant proposed an addition to CALJIC No. 8.88 (6th ed. 1996), which read in part: "[t]o return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole." Defendant asked the court to define the word "`[s]ubstantial' as ... considerably, essentially or materially." (Proposed instruction No. 1.) He also
"The mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose a death sentence on Mr. Boyce. You should not limit your consideration of mitigating circumstances to these specific factors. You may also consider any other circumstances presented as reasons for not imposing the death sentence. [¶] This includes, but is not limited to, any other circumstance which extenuates the gravity of the crime even though it is not a [sic] excuse for the crime, and any other factor proffered by the defendant as a factor in mitigation of the penalty." (Proposed instruction No. 16.)
The court rejected these proposals, finding that the word "substantial" was commonly understood, and that the second and third instructions duplicated standard CALJIC instructions.
d. Aggravating circumstances
Defendant proposed two instructions on the weighing of aggravating circumstances. The first instruction read: "In deciding whether you should sentence the defendant to life imprisonment without the possibility of parole,
Defendant's second proposed instruction read: "You must not consider as an aggravating factor the existence of any special circumstance if you have already considered the facts of the special circumstance as a circumstance of the crime for which the defendant has been convicted. In other words, do not consider the same factors more than once in determining the presence of aggravating factors." (Proposed instruction No. 17.) The instruction was offered to supplement CALJIC No. 8.85, factor (a), which told the jury it could consider "[t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true."
The court refused the instruction as misleading and confusing, but indicated that counsel could craft another instruction relating to "double counting." This ruling was error, as we later held in People v. Monterroso (2004) 34 Cal.4th 743 [22 Cal.Rptr.3d 1, 101 P.3d 956] (Monterroso). That case approved the same language proposed here as a correct statement of the law and held that "[a] trial court should, when requested, instruct the jury against double-counting these circumstances." (Id. at p. 789; accord, People v. Melton (1988) 44 Cal.3d 713, 768 [244 Cal.Rptr. 867, 750 P.2d 741] (Melton).)
Nonetheless, there is no reasonable likelihood the jury was misled by the omission. In Melton, supra, 44 Cal.3d 713, we observed, "The literal language of [factor] (a) presents a theoretical problem ... since it tells the penalty jury to consider the `circumstances' of the capital crime and any attendant statutory `special circumstances.' Since the latter are a subset of the
As in Ayala, there is no such reasonable likelihood here. (Ayala, supra, 24 Cal.4th at p. 289.) The instruction "`do[es] not inherently encourage the double counting of aggravating factors.'" (Ibid.) Indeed, "[e]xercising common sense" the jury was unlikely to believe that it should place a single aggravating circumstance "twice on the penalty `scale.'" (Melton, supra, 44 Cal.3d at p. 769; accord, Monterroso, supra, 34 Cal.4th at p. 790.) Nor did the prosecutor exploit any ambiguity in closing argument. He simply emphasized that defendant committed a burglary and a robbery, and murdered a peace officer. He did not encourage the jury to categorize such facts as circumstances of the crime or aggravating circumstances, or to count them twice.
3. Failure to reinstruct jury at penalty phase
Here, the court reread several standard instructions, including CALJIC Nos. 1.02 (statements of counsel — evidence stricken out — insinuations of
Defendant identifies several other instructions that he claims should have been given sua sponte at the penalty phase, including CALJIC Nos. 1.01 (consider instructions as a whole), 1.03 (no independent investigation), 1.05 (use of notes), 2.00 (direct and circumstantial evidence), 2.01 (sufficiency of circumstantial evidence), 2.02 (circumstantial evidence to prove specific intent or mental state), 2.03 (falsehood as consciousness of guilt), 2.11 (production of all available evidence not required), 2.13 (prior consistent or inconsistent statement), 2.21.2 (witness willfully false), 2.22 (weighing conflicting testimony), 2.27 (sufficiency of single witness), 2.81 (lay opinion), and 2.82 (hypothetical questions). He also contends that the court erred in failing to redefine reasonable doubt as it applied to section 190.3, factor (b): "[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence." He claims these omissions violated his state and federal constitutional rights to jury trial, due process, equal protection, and a reliable death judgment.
Defendant did not request that the court reread any of the instructions he now identifies on appeal. Nonetheless, he maintains that the court had a duty to reinstruct with "`all appropriate instructions beginning with CALJIC No. 1.01, concluding with CALJIC [No.] 8.88.'" (Quoting Use Note to CALJIC No. 8.84.1 (6th ed. 1996) p. 509, italics added.) However, in the absence of a request, the court need only instruct on general principles of law closely and openly connected to the facts and necessary for the jury's understanding of the case. (Carter, supra, 30 Cal.4th at p. 1219.) We have looked to the court's general sua sponte instructional obligation "in all criminal cases" to inform which guilt phase instructions must be reread in the penalty phase after giving CALJIC No. 8.84.1. (Carter, at p. 1219.) Defendant provides no reason to impose a broader rule. Accordingly, we limit our review to those instructions that carried a recognized sua sponte obligation at the time of defendant's trial. (Ibid.)
The court had a sua sponte duty to warn the jurors against conversing with others or conducting independent investigation. (§ 1122; see CALJIC No. 1.03.) The court gave CALJIC No. 1.03 in the guilt phase, but did not repeat it. Nevertheless, the jury was familiar with its general principles. There is no evidence that any juror discussed the case with others or conducted any investigation. (See People v. Howard (2010) 51 Cal.4th 15, 38 [118 Cal.Rptr.3d 678, 243 P.3d 972].) On this record there is no reasonable possibility the omission affected the verdict.
Further, there was no possible prejudice. "Unlike defendant, `we see no reason to assume' [citation] that the jurors would have felt free to evaluate the penalty phase evidence in a vacuum, rather than carefully and deliberately, as they apparently had evaluated the guilt phase evidence. Nothing in the closing arguments of the parties suggested that the jurors were free to make a standardless assessment of the evidence. Nor did the jurors ask any questions or request clarification as to how to assess any of the penalty phase evidence. [Citation.] In the absence of some specific indication of prejudice arising from the record, defendant `does no more than speculate' [citation] that the absence of the instructions prejudiced him." (People v. Lewis (2008) 43 Cal.4th 415, 535 [75 Cal.Rptr.3d 588, 181 P.3d 947], quoting Carter, supra, 30 Cal.4th at p. 1221.)
The court was required to instruct the jury, when relevant, on evaluating conflicting testimony and reliance on a single witness to prove a fact at issue. (Carter, supra, 30 Cal.4th at p. 1219; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885 [123 Cal.Rptr. 119, 538 P.2d 247]; see CALJIC Nos. 2.22, 2.27.) Again, defendant fails to identify any evidence introduced in the penalty phase that would warrant these instructions. The prosecution cross-examined defendant's expert witnesses and family members, but did not introduce conflicting expert testimony or character witnesses. Similarly, defendant introduced evidence to impeach the credibility of prosecution witness Damani Gray, but did not introduce testimony in conflict. Neither side relied exclusively on a single witness to prove circumstances in aggravation or mitigation. Two witnesses testified about the Damani Gray assault. There were four victim impact witnesses. Defendant's numerous experts and family members testified consistently about his background and their evaluation of his mental and intellectual status.
Finally, the court was required to define reasonable doubt. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 328 [128 Cal.Rptr.3d 417, 256 P.3d 543]; § 1096; see CALJIC No. 2.90.) The omission here was harmless. The
In conclusion, although the court failed to repeat CALJIC Nos. 1.03 and 2.90, there is no reasonable possibility the error affected the verdict. The error was thus harmless.
4. Execution of defendant with mental and psychological impairments
Atkins v. Virginia (2002) 536 U.S. 304 [153 L.Ed.2d 335, 122 S.Ct. 2242] (Atkins) establishes a categorical rule that executing persons with intellectual disabilities
Defendant does not raise an Atkins claim on direct appeal. He does, however, ask us to perform intracase proportionality review to determine whether the death judgment is so disproportionate to his crime that it amounts to cruel and/or unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) Based on the direct appeal record, he argues that his death judgment is unconstitutional in light of his individual characteristics, including his asserted organic brain damage, borderline intelligence, and mental illness. Although defendant did not make this argument below, "the cruel or unusual punishment clause of the California Constitution (art. I, § 17) ... entitle[s] a capital defendant, on request, to intracase review by this court to determine whether the death penalty is grossly disproportionate to his personal culpability." (People v. Anderson (2001) 25 Cal.4th 543, 602 [106 Cal.Rptr.2d 575, 22 P.3d 347]; accord, People v. Lenart (2004) 32 Cal.4th 1107, 1130 [12 Cal.Rptr.3d 592, 88 P.3d 498] (Lenart).)
We previously have rejected claims that a defendant's low IQ, brain damage, and/or mental illness render his capital sentence grossly disproportionate to his crime. In People v. Young (2005) 34 Cal.4th 1149 [24 Cal.Rptr.3d 112, 105 P.3d 487], the 20-year-old defendant, acting alone, callously murdered three men. He shot one man in the back of the head as he tried to run away, shot a second man in the back as he begged for his life on his hands and knees, and shot a third man in the back after he jumped from a window trying to escape. The defendant also attempted to murder two others. We upheld the death sentence despite evidence that the defendant had an IQ of 75, lifelong learning disabilities, and a probable mental disorder. (Id. at pp. 1231-1232.)
In People v. Poggi (1988) 45 Cal.3d 306 [246 Cal.Rptr. 886, 753 P.2d 1082], the defendant's death sentence for a brutal rape and murder was upheld notwithstanding that he had "suffered organic brain damage, had a history of mental illness, was schizophrenic, and mentally ill on the day of the murder...." (Id. at p. 348.) We concluded, "those factors do not sufficiently reduce his culpability to make the sentence disproportionate.... [A] defense psychiatrist ... testified that `his mental illness was not of such a nature and degree ... as to negate or diminish his criminal culpability.' [¶] Defendant acted as he did evidently to eliminate a witness and thereby avoid apprehension. He was unspeakably brutal. He was the sole and actual perpetrator, and he killed an innocent young woman." (Ibid.)
Here, evidence established the following: Defendant was 26 years old at the time of the crimes. He planned a robbery based on specific information about the targeted business. He armed himself and acted in concert with an armed accomplice. In the salon, the two engaged in organized and focused behavior by ordering the victims to the floor and demanding to know where the money was. When the cash drawer yielded little, defendant took York's ATM card and demanded the PIN. Discovering York's badge, he decided to kill him for an objectively discernible reason. He shot his unresisting victim in the back of the head. He differentiated among his victims, killing York but deciding not to shoot Jennifer because she was a woman. He and Willis fled and took care to hide stolen items and weapons in the car. While defendant
There was no evidence that defendant mindlessly followed Willis's directives or acted with confusion. The two participated equally. After their arrest, defendant recognized, and criticized as implausible, Willis's idea to implicate an unidentified third person. He cautioned Willis to keep his voice down while they discussed their options. He later told police the robberies were his idea.
In denying the automatic motion to modify the verdict of death, the court agreed with the jury's assessment that defendant was the shooter. It found that defendant's crime was motivated by racial hatred and animosity toward the police. It further found that defendant was not acting under the influence of a mental or emotional disturbance. Instead, defendant appreciated the criminality of his conduct and chose his course of action. He demonstrated no remorse.
Although defendant offered evidence of his schizotypal disorder and subaverage intelligence, there was no evidence that either condition played any role in the killing. (Lucero, supra, 23 Cal.4th at p. 740; People v. Arias (1996) 13 Cal.4th 92, 193 [51 Cal.Rptr.2d 770, 913 P.2d 980].) Indeed, his own experts conceded he could differentiate right from wrong and truth from falsehood. He understood cause and effect. He was capable of making decisions, including the choice to kill. His behavior during the crimes was fully consistent with those conclusions.
Defendant urges this court to determine whether his brain damage, mental illness, and intellectual impairment "place him in a category of offenders for whom capital punishment cannot be imposed," regardless of the circumstances of the crime. This approach contradicts our precedent, which considers whether the penalty is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424 [105 Cal.Rptr. 217, 503 P.2d 921], italics added; accord, People v. Cole (2004) 33 Cal.4th 1158, 1235 [17 Cal.Rptr.3d 532, 95 P.3d 811].) To make such an assessment, we examine the circumstances of the offense, including the defendant's motive, the extent of his involvement in the crime, the manner in which it was committed, and the consequences of his acts, as well as the defendant's age, prior criminality, and mental capabilities. (Cole, at p. 1235.)
Defendant looks to Atkins for support. As noted, there the United States Supreme Court held that the execution of the intellectually disabled violates the Eighth Amendment's proscription against cruel and unusual punishment. (Atkins, supra, 536 U.S. at p. 321.) The high court reasoned that such individuals' personal culpability is diminished because, "by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others." (Id. at p. 318.) Given these impairments, the court categorically exempted intellectually disabled offenders from the death penalty because the societal goals of retribution and deterrence that justify that penalty would not be served. (Id. at pp. 319-321.) It also cautioned that such defendants face an enhanced risk of execution due to several factors, including their susceptibility to false confessions, their lesser ability to make a persuasive showing of mitigation, to meaningfully assist counsel, to be effective witnesses on their own behalf, and to convey their remorseful demeanor. (Id. at pp. 320-321.)
Defendant effectively "asks us to establish a new, ill-defined category of murderers who would receive a blanket exemption from capital punishment without regard to the individualized balance between aggravation and mitigation in a specific case." (State v. Hancock, supra, 840 N.E.2d at pp. 1059-1060.) We decline the invitation.
Because defendant's case was litigated before Atkins was decided (Atkins, supra, 536 U.S. at pp. 318, 320-321), the facts supporting his claim were not fully litigated. His argument involving his intellectual disability "can be determined only in a habeas corpus petition." (Leonard, supra, 40 Cal.4th at p. 1428; accord, In re Hawthorne, supra, 35 Cal.4th at pp. 47-51.) We reject defendant's intracase proportionality challenge without prejudice to the filing of such a petition, and we express no opinion on the merits of that claim.
5. Constitutionality of California's death penalty scheme
Defendant mounts various challenges to California's death penalty law that we previously have rejected. Those precedents stand.
The death penalty law adequately narrows the class of death-eligible defendants. (People v. Myles (2012) 53 Cal.4th 1181, 1224 [139 Cal.Rptr.3d 786, 274 P.3d 413]; People v. Burgener (2003) 29 Cal.4th 833, 884 & fn. 7 [129 Cal.Rptr.2d 747, 62 P.3d 1].)
The jury's consideration of the circumstances of the crime (§ 190.3, factor (a)) does not permit imposition of a death sentence in an arbitrary and capricious manner in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (People v. DeHoyos (2013) 57 Cal.4th 79, 149 [158 Cal.Rptr.3d 797, 303 P.3d 1] (DeHoyos); People v. Jennings (2010) 50 Cal.4th 616, 688-689 [114 Cal.Rptr.3d 133, 237 P.3d 474].)
California's death penalty law does not violate the Sixth Amendment right to a jury trial, the Eighth Amendment prohibition against cruel and unusual punishment, or the Fourteenth Amendment right to due process for failing to require proof beyond a reasonable doubt that aggravating factors exist,
The court was not required to instruct that the prosecution bears the burden of persuasion to establish that aggravating factors exist and that they outweigh mitigating factors. (Lenart, supra, 32 Cal.4th at pp. 1136-1137.) Nor was the court required to articulate the converse, that there is no burden of proof at the penalty phase. (Streeter, supra, 54 Cal.4th at p. 268.) Defendant was not entitled to an instruction that there is a presumption in favor of life without parole. (People v. Arias, supra, 13 Cal.4th at p. 190.)
CALJIC No. 8.88's directive that jurors may impose a death sentence only if the aggravating circumstances are "so substantial" in comparison to the mitigating circumstances that death is warranted is not unconstitutionally vague. (People v. Carrington (2009) 47 Cal.4th 145, 199 [97 Cal.Rptr.3d 117, 211 P.3d 617].) Nor, conversely, is there any need to instruct that if the mitigating circumstances outweigh the aggravating circumstances, the jury must impose a sentence of life without parole. (People v. Fuiava (2012) 53 Cal.4th 622, 733 [137 Cal.Rptr.3d 147, 269 P.3d 568]; People v. Duncan (1991) 53 Cal.3d 955, 978 [281 Cal.Rptr. 273, 810 P.2d 131].) CALJIC No. 8.88's language instructing the jury "to consider whether the circumstances `warrant' death, rather than if death is the `appropriate' penalty," does not violate the Eighth and Fourteenth Amendments. (DeHoyos, supra, 57 Cal.4th at p. 150.)
Use of the adjective "extreme" to describe mitigating factors (d) and (g) of section 190.3 does not unconstitutionally erect a barrier to the jury's consideration of mitigating evidence. (People v. Clark, supra, 52 Cal.4th at p. 1007.) The court need not instruct the jury that mitigating factors can be considered only in mitigation, or to omit mitigating factors that do not apply to defendant's case. (DeHoyos, supra, 57 Cal.4th at p. 150.)
"The absence of written or other specific findings by the jury regarding aggravating factors did not deprive defendant of his federal due process and
"California's capital sentencing procedures do not violate principles of equal protection of the law on the ground they provide safeguards different from those found in noncapital cases." (People v. Williams (2008) 43 Cal.4th 584, 650 [75 Cal.Rptr.3d 691, 181 P.3d 1035]; accord, People v. Cox (1991) 53 Cal.3d 618, 691 [280 Cal.Rptr. 692, 809 P.2d 351], disapproved on another ground in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
Finally, "[i]nternational law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements." (People v. Hillhouse (2002) 27 Cal.4th 469, 511 [117 Cal.Rptr.2d 45, 40 P.3d 754].)
C. Determinate Sentencing Issues
Defendant was sentenced to 34 years four months in prison for his convictions on counts 2 through 11.
Defendant argues that the determinate sentence must be vacated and the case remanded for resentencing because the court (1) imposed upper terms on count 2 (robbery of Jennifer Parish) and its enhancement, based on an aggravating circumstance not found true by the jury (Cunningham v. California (2007) 549 U.S. 270, 288-289 [166 L.Ed.2d 856, 127 S.Ct. 856]) (Cunningham) and (2) failed to state reasons for imposing consecutive sentences. The first claim has merit. As explained, the sentence on count 2 and its enhancement is conditionally modified. The second claim was forfeited below.
1. Right to a jury determination of aggravating factors
In 1997, section 1170, subdivision (b) provided that "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." (Stats. 1995, ch. 49, § 1, pp. 124, 125.) The presumptive midterm applied both to the substantive offense and the accompanying enhancement. (See former § 1170.1, subd. (d) as amended by Stats. 1994, ch. 1188, § 12.3, pp. 7194, 7196 [in imposing additional terms under various statutes, including former § 12022.5, "the court shall apply the sentencing rules of the Judicial Council"]; Cal. Rules of Court, former rule 428(b) ["When the defendant is subject to an enhancement that was charged and found true for which three possible terms are specified by statute, the middle term shall be imposed unless there are circumstances in aggravation or mitigation...."];
At sentencing, the court explained that its decision to impose the upper terms on count 2 and its enhancement was "because of the vulnerability of the victims." As defendant points out, the jury made no finding on this factor, and defendant did not admit it.
Relying on People v. Black (2007) 41 Cal.4th 799 [62 Cal.Rptr.3d 569, 161 P.3d 1130] (Black), the People argue that Cunningham was satisfied because the court imposed the upper term based on defendant's recidivism, a factor that need not be proven to the jury. (Black, at p. 818; Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [140 L.Ed.2d 350, 118 S.Ct. 1219].) In Black we held that "so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its [own] discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. `Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.'" (Black, at p. 813, quoting Harris v. United States (2002) 536 U.S. 545, 558 [153 L.Ed.2d 524, 122 S.Ct. 2406] [Harris overruled in Alleyne v. United States (2013) 570 U.S. ___ [186 L.Ed.2d 314, 133 S.Ct. 2151]].)
Black is distinguishable. There, the trial court found that the defendant's prior convictions were "`numerous or of increasing seriousness.'" (Black, supra, 41 Cal.4th at p. 818 & fn. 7; see id. at p. 816, fn. 6.) That finding, along with another reached by the jury, satisfied Cunningham. (Black, at pp. 816-818; accord, People v. Towne (2008) 44 Cal.4th 63, 76 [78 Cal.Rptr.3d 530, 186 P.3d 10].) Here, the probation report listed several
The only aggravating circumstance found by the trial court to make defendant eligible for the upper term was that Jennifer Parish was particularly vulnerable. The jury did not find this fact nor did defendant admit it. Accordingly, the court's choice of the upper term was improper. (People v. Myles, supra, 53 Cal.4th at p. 1221; People v. French (2008) 43 Cal.4th 36, 52 [73 Cal.Rptr.3d 605, 178 P.3d 1100] (French); People v. Sandoval (2007) 41 Cal.4th 825, 837-838 [62 Cal.Rptr.3d 588, 161 P.3d 1146] (Sandoval).)
Relying on Sandoval, the People argue that the failure to afford defendant a jury trial on the aggravating circumstance was harmless beyond a reasonable doubt. They urge us to determine "`whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury's verdict would have authorized the upper term sentence.'" (Quoting Sandoval, supra, 41 Cal.4th at p. 838.)
In Sandoval, we held that imposition of the upper term in violation of Cunningham can be harmless if the reviewing court concludes, beyond a reasonable doubt, that the jury "would have found true at least a single aggravating circumstance had it been submitted to the jury." (Sandoval, supra, 41 Cal.4th at p. 839.) We cautioned that this prejudice analysis can be problematic. The reviewing court cannot assume that the record reflects all of the evidence that would have been presented to the jury, or that the defendant had the same incentive and opportunity at a sentencing hearing to contest the aggravating circumstance. (Id. at pp. 839-840.) We also observed that "to the extent a potential aggravating circumstance at issue in a particular case rests
Indeed, in Sandoval, we considered and rejected the People's contention that the jury's failure to find an aggravating circumstance based on the victim's particular vulnerability was harmless beyond a reasonable doubt. (Sandoval, supra, 41 Cal.4th at pp. 840-841.) Noting that the evidence was contested, we concluded: "The record ... does not reflect such a clear-cut instance of victim vulnerability that we confidently can conclude the jury would have made the same findings, as might be the case if, for example, the victims had been elderly, very young, or disabled, or otherwise obviously and indisputably vulnerable." (Id. at p. 842.)
We reach a similar conclusion here regarding Jennifer Parish's vulnerability. (See DeHoyos, supra, 57 Cal.4th at p. 153 [reviewing aggravating circumstances stated by the court]; French, supra, 43 Cal.4th at pp. 43, 54 [same]; Sandoval, supra, 41 Cal.4th at pp. 840-843 [same].) Evidence on that point was conflicting. On the one hand, Jennifer was unarmed and taken by surprise by two men who robbed her at gunpoint while her fiancé lay bleeding at her feet from a fatal gunshot wound to the head. On the other hand, she was a trained law enforcement officer, and the robbery occurred in a lit business establishment in the presence of two others. Jennifer was ultimately uninjured by either defendant. In no way do we minimize Jennifer's victimization. But on this record we cannot conclude with confidence how the jury would have resolved this question had it been presented to them. (Cf. Neder v. United States (1999) 527 U.S. 1, 19 [144 L.Ed.2d 35, 119 S.Ct. 1827] [finding instructional error harmless when defendant "did not, and apparently could not, bring forth facts contesting the omitted element"].) Accordingly, failure to submit this aggravating circumstance to the jury was not harmless beyond a reasonable doubt.
Ordinarily, when a sentence is reversed for prejudicial Cunningham error, the case is remanded for the court to reconsider the entire sentence. (Sandoval, supra, 41 Cal.4th at pp. 843-845; People v. Lincoln (2007) 157 Cal.App.4th 196, 204 & fn. 3 [68 Cal.Rptr.3d 596]; People v. Burbine (2003) 106 Cal.App.4th 1250, 1258-1259 [131 Cal.Rptr.2d 628].) Such proceedings are "to be conducted in a manner consistent with the amendments to the DSL adopted by the Legislature." (Sandoval, at p. 846.) Under the revised sentencing guidelines, no presumptive midterm applies. The court has discretion to impose any of the three terms, provided it states its reasons for its
Here, however, a remand for resentencing on counts 2 through 11 would have little practical significance given our affirmance of the special circumstances and death sentence. (See People v. Cleveland (2004) 32 Cal.4th 704, 770 [11 Cal.Rptr.3d 236, 86 P.3d 302] (conc. opn. of Chin, J.).) Transport of a capital prisoner is an expensive and cumbersome undertaking. It is unclear whether the People wish to relitigate the determinate term or if defendant has additional arguments to present.
Accordingly, in this limited circumstance, we find it appropriate to modify the judgment to reduce defendant's sentence for robbery (count 2) to the low term of two years, and his sentence on the corresponding former section 12022.5 enhancement to the low term of three years, for a total determinate term of five years on count 2, thereby reducing defendant's aggregate sentence from 34 years four months to 24 years four months. This modification of the judgment remedies the Cunningham error and gives defendant the best possible outcome. (Cf. People v. Lyons (1958) 50 Cal.2d 245, 275-276 [324 P.2d 556], overruled on another ground in Green, supra, 27 Cal.3d at pp. 32-34.)
We order the modification conditionally, however, recognizing that the People in their briefing also requested a sentencing remand. (See People v. Edwards (1985) 39 Cal.3d 107, 118 [216 Cal.Rptr. 397, 702 P.2d 555].) Given our affirmance of the special circumstances and judgment of death, the People may choose to forgo the time and expense involved in resentencing a capital prisoner. Because we do not know which option the People would exercise, we adopt a disposition that preserves both. (Ibid.; see post, at p. 732.)
2. Alleged discretionary error in imposing consecutive sentences
Defendant claims error because the court gave no reasons for imposing consecutive sentences. He failed to object on this ground below, forfeiting the claim.
Scott, supra, 9 Cal.4th 331, explained, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (Id. at p. 356.) "[C]laims involving the trial court's failure to properly make or
Defendant argues that he did not have a meaningful opportunity to object below. He reasons that "Scott was premised, in part, on the assumption that the parties would know before the sentencing hearing what sentence is likely to be imposed and the reasons therefore. [Citation.] That is not the case here, as the probation report does not mention consecutive or concurrent sentencing." He quotes the observation in Scott that a meaningful opportunity to object "can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices." (Scott, supra, 9 Cal.4th at p. 356.)
We have since clarified that "[t]he parties are given an adequate opportunity to seek ... clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing." (People v. Gonzalez (2003) 31 Cal.4th 745, 752 [3 Cal.Rptr.3d 676, 74 P.3d 771].) "The court need not expressly describe its proposed sentence as `tentative' so long as it demonstrates a willingness to consider such objections.... [¶] It is only if the trial court fails to give the parties any meaningful opportunity to object that the Scott rule becomes inapplicable." (Ibid.) "In the rare instance where the actual sentence is unexpected, unusual, or particularly complex, the parties can ask the trial court for a brief continuance to research whether an objection is warranted, or for permission to submit written objections within a specified number of days after the sentencing hearing." (Id. at p. 754.)
Here, the court, without the benefit of Gonzalez, entertained arguments of counsel and then pronounced sentence. Nonetheless, after doing so, it entertained a prosecution request for clarification about the certification of the record, and allowed defense counsel to enumerate his objections to the probation report. It adjourned after asking counsel if there was anything else to discuss. At no time did defense counsel lodge his objections to the imposition of consecutive sentences, or request a continuance. Accordingly, under the settled precedent in Scott, the claim is forfeited on appeal.
The case is remanded to the trial court to allow the People to request resentencing on counts 2 through 11. (See Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1254-1256 [135 Cal.Rptr.2d 639, 70 P.3d 1054].) If the People do not make such a request within 60 days after the filing of our remittitur in the trial court, that court shall proceed as if the opinion modified the judgment to reflect a sentence of two years on count 2, and a consecutive sentence of three years on the attendant enhancement, thereby reducing defendant's aggregate determinate sentence to 24 years four months. (See People v. Edwards, supra, 39 Cal.3d at p. 118.) The court shall then prepare an amended abstract of judgment reflecting those modifications, and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
Cantil-Sakauye, C. J., Baxter, J., Werdegar, J., Chin, J., Liu, J., and Perren, J.,
CALJIC No. 8.81.17 accurately states the law. (Dykes, supra, 46 Cal.4th at p. 761, fn. 5.) "The `carry out or advance' language found in the pattern instruction is based upon our cases and constitutes merely another way of describing the Green rule — that a felony murder is not established by proof of a felony that was merely incidental to a murder." (Ibid.) Nonetheless, CALCRIM No. 730, which omits any reference to "carry out or advance" is clearer. That instruction states in part: "in order for this special circumstance to be true, the People must prove that the defendant intended to commit [the felony] independent of the killing. If you find that the defendant only intended to commit murder and the commission of [the felony] was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved." (Ibid.)
"While you may not now acquit Kevin Boyce of either murder or the special circumstances, you may evaluate the evidence presented in light of determining which punishment shall be imposed. This includes any doubts you may entertain on the question of guilt or the circumstances of the defendant's involvement and participation in the crimes, including but, not limited to, the issue of the identification of the actual person who shot Mr. York. This is called lingering or residual doubt. The concept of lingering or residual doubt exists somewhere between absolute truth and reasonable doubt.
"You were previously required to find each element of the charges and the special circumstances beyond a reasonable doubt. However, as you were instructed previously, reasonable doubt is not a mere possible doubt; because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. Thus you may have had a doubt as to his guilt or the appropriate participation or involvement and therefore culpability level in the crimes, but concluded it was not a reasonable doubt.
"Before determining the appropriate penalty to be imposed upon Kevin Boyce you may determine if the People have proven the case based upon a higher standard than reasonable doubt. Only you are the judges of what standard of proof must be met before imposing a sentence of death in light of all of the instructions the court has given you. However, you may determine, aside from any other mitigation evidence presented, that there is some doubt, and based upon that finding impose a sentence of life without possibility of parole." (Proposed instruction No. 12.)
"The adjudication of guilt is not infallible and any lingering doubts you entertain on the question of guilt or culpability level may be considered by you in determining the appropriate penalty, including the possibility that at some time in the future, facts may come to light which have not yet been discovered.
"It may be considered as a factor in mitigation if you have a lingering doubt as to the guilt or culpability level of the defendant." (Proposed instruction No. 13.)
"The adjudication of guilt is not infallible, and any lingering doubts you entertain on the question of guilt, or level of participation and involvement in the crimes, or the circumstances of defendant's participation and involvement in the crimes may be considered by you in determining the appropriate penalty. The weight such lingering doubts should carry, if any, is for you to determine." (Proposed instruction No. 14.)
"Each individual juror may consider as a mitigating factor residual or lingering doubt as to whether defendant intentionally and/or personally killed the victim. Lingering or residual doubt is defined as the state of mind between beyond a reasonable doubt and beyond all possible doubts.
"Thus, if any individual juror has a lingering or residual doubt about whether the defendant intentionally and/or personally killed the victim, he or she must consider this as a mitigating factor and assign to it the weight you deem appropriate." (Proposed instruction No. 15.)
"A person may be under the influence of mental or emotional disturbance even though his mental and emotional disturbance was not so strong as to preclude deliberation or premeditation.
"Mental and emotional disturbance may result from any cause or may exist without apparent cause.
"For this mitigating circumstance to exist, it is sufficient that the defendant's mind or emotions were disturbed, from any cause, whether from consumption of drugs, mental illness, or other cause, and that he was under the influence of that disturbance when he killed. A person would be under the influence of mental or emotional disturbance if a mental or emotional condition existed which influenced his conduct so as to make it different than it otherwise would have been.
"So, if you are satisfied from the evidence that defendant was under the influence of mental or emotional disturbance, from any cause, then it would be your duty to find this a mitigating circumstance."
In 2002, section 1170.1, subdivision (d) was amended to expressly codify the valid portion of California Rules of Court, former rule 428(b). The amendment provided: "If an enhancement is punishable by one of three terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation, and state the reasons for its sentence choice, other than the middle term, on the record at the time of sentencing." (Stats. 2002, ch. 126, § 1, pp. 690, 691.)
In response to the United States Supreme Court's decision in Cunningham, supra, 547 U.S. 270, the Legislature amended sections 1170, subdivision (b) and 1170.1, subdivision (d). (Stats. 2007, ch. 3, § 2, p. 5; Stats. 2009, ch. 171, § 5.) As discussed, post, at pages 729-730, those amendments eliminated the requirement that the trial court start with the middle term, and instead authorized the court to impose any of the three possible terms in its discretion.