A jury convicted defendant Kenneth Ray Bivert of the first degree murder of Leonard Swartz. (Pen. Code, § 187.)
Defendant was convicted of charges related to the November 23, 1996, assault of inmate Rick Dixon and the February 5, 1997, murder of inmate Leonard Swartz.
In the fall of 1996, defendant and Dixon were inmates at the Salinas Valley State Prison (SVSP) in Monterey County. Building B, in which both were housed, was self-segregated by the inmates according to race; the White and Hispanic inmates occupied one side of the dayroom and yard, while the Black and other-race inmates occupied the other. Dixon understood defendant to be "in charge of `the woods,'" a group of White inmates. Defendant approached Dixon and told him there was a "piece of shit" White pedophile named Dennis, who had purchased drugs from a Black inmate, an act considered "bad business" by "the woods." Defendant told Dixon that if he wanted to "earn his bolts" he would have to "deal with" inmate Dennis. Dixon understood this to mean that if he wanted to gain membership in "the woods" he would have to stab Dennis. Dixon refused, even though he knew he might suffer consequences for not acceding to defendant's request. Dixon later overheard defendant say he wanted to "do something drastic to get moved . . . to Pelican Bay [State Prison] where . . . he could get more run of the place."
On November 23, 1996, as Dixon was walking toward his cell, inmate Steve Petty snuck up behind him, wrapped shoestrings around his neck, and pulled him backward. Defendant then approached and stabbed Dixon with a homemade ice pick seven times in his upper chest, sides, and lower abdomen. A contrasting version of events was offered by inmate D,
Defendant was transferred to administrative segregation at Pelican Bay State Prison pending the investigation into the stabbing. He was returned to the general population at SVSP in early 1997. While defendant was on the prison yard shortly after his return, inmate D asked him if he was going to try to get his old prison job back. Defendant replied that he "wasn't going to be around that long" because "he was going to hit a suspected child molester" who "needed to be gutted."
Inmate C's cell was on the first tier, directly beneath defendant's on the second tier, and through the ventilation system he could hear sounds from defendant's cell. A few days before February 5, 1997, inmate C could hear scraping from upstairs and, suspecting that defendant was making an inmate-manufactured weapon, or shank, he "hollered up and asked the people that lived upstairs if they wanted everybody to know what they were doing." Defendant answered that it did not matter to him if anybody heard what he was doing.
Over breakfast on the morning of February 5, 1997, defendant told inmate C that inmate Leonard Swartz "was a child molester" who "didn't belong on the face of the earth for what he did and he needs to be dealt with." Defendant said that "one of his missions while in prison was to take care of the scum such as that, that people with crimes like that didn't belong. They didn't belong alive." Defendant believed in "the White race taking care of their own," and that "over the years [the White] race had gotten soft, and he couldn't believe the people they were letting walk around nowadays." Defendant was known to approach young, new prisoners and "try to plant seeds in them as far as what the White race is all about and what they should do."
At 11:25 a.m. on February 5, 1997, Officer Erica Carbajal was on duty in the dayroom in building B at SVSP when two inmates approached her and asked for some paperwork that was in a nearby office. She retrieved the paperwork and, when leaving the office, noticed that the dayroom was uncharacteristically quiet. She turned and saw inmate Leonard Swartz stagger toward her, covered in blood and clutching his hands to his throat. He fell to the floor in front of her. She sounded the alarm, ordered the inmates to drop to the floor where they stood, and summoned medical assistance.
At that same time, inmate F was gathering his belongings from his cell on the second tier to go to the showers when he heard the sounds of a fight. He turned and saw defendant punching and slapping another inmate, who was trying to fend him off, and then saw the other inmate grab his neck and defendant throw something. Inmate G heard the attack. He turned to see defendant and Swartz standing face to face, and defendant then made two quick motions that landed near Swartz's neck. Inmate A, who had been playing dominoes with Swartz just moments before the attack, witnessed the stabbing and identified defendant as the assailant.
Officer Tiffany Haro was the first to reach Swartz. She tried to staunch the flow of blood from his neck with a stack of paper towels from the office, and when that did not work, she and Officer Jeffrey Mantel placed Swartz in a chokehold to apply more pressure. Swartz nonetheless continued to bleed profusely while he was being carried on a stretcher to the infirmary, where staff began treatment. Shortly thereafter, he was transported by ambulance to Natividad Medical Center in Salinas.
Officers who arrived at the dayroom in response to the alarm saw trails and pools of blood. The officers instructed the inmates to move up against the walls of the dayroom, where they were searched for wounds, weapons, or any other relevant evidence. One officer discovered a shank on the floor near the pools of blood. The officers who searched defendant noted his hands were trembling and he was shaking. Inmate G observed that while defendant was being searched his legs shook. Officers conducted a Hemastix test
The officer who collected defendant's clothing noted red spots on defendant's blue jeans and shoes. A blue chambray state-issued shirt was found in the nearby stairwell, draped over the handrail. It had red spots on the sleeves and was still wet with perspiration.
On February 22, 1997, 17 days after the attack, while still in the hospital, Leonard Swartz suffered an epileptic seizure and died. Forensic pathologist Dr. John Hain testified the underlying cause of death was the stab wound to the carotid artery in Swartz's neck. The wound had caused severe blood loss, which caused brain damage in the form of strokes, which in turn caused the fatal seizure.
Defendant was transferred to California State Prison, Corcoran, following the attack, where he was housed with inmate J for a week in May 1997. Defendant admitted to inmate J that he had stabbed a fellow inmate at SVSP in November 1996, and that he was upset with himself for using an ice pick type of shank because he knew that weapon would not kill anybody. He was upset that that victim had lived. He admitted that while he was in administrative segregation for that stabbing, he made up a list of victims targeted for "hits" upon his return to the general population at SVSP. Defendant said he was "exalted" to have been released back to the same yard where he was before and where the inmates on his hit list were housed. He said "it was like a gift" when they put him "right in the building, right where he wanted to be to get that dude" who was at the top of his hit list. He knew the man to be a child molester and said he prepared to kill him by making a knife specifically for him. He sharpened one whole side of the weapon on the ceiling of his cell "so that when he stuck it in . . . it could be like a ripping piece, a killing piece." Defendant then told inmate J that he had lain in wait for his victim in the dayroom. He had stood by a table with his leg propped up on one of the stools and the shank in his back pocket, waiting for the man to walk past him. When the man did so, defendant "did a full handball swing and just buried it in his neck," "[ripping] the dude's neck wide open." Defendant knew where the carotid artery was, and that "if you could sever that, the chances of a victim living [were] not very good." Defendant said he was able to clean his hands so there was no visible blood, but there was blood on his shoes. He reasoned he could explain away any blood on his hands and clothes by saying that "the dude bumped into me when he was leaking." He had set out to do the killing, he was happy about it, and he would have bragging rights when he was returned to Pelican Bay State Prison.
Margaret Aceves, senior criminalist at the Department of Justice's DNA lab, concluded DNA in Swartz's blood matched that present on the pants collected from defendant on February 5, 1997.
Gary Craft, an investigator with the Monterey County District Attorney's Office, testified that inside a book confiscated from defendant's property at Pelican Bay State Prison were the handwritten words, "Nonexistence of the unfit has and will be the law of nature" and "The one who knows the secret does not speak; the one who speaks does not know the secret."
Defendant offered evidence to show that the inmates who testified against him had reason to falsify their stories because they were given benefits in exchange for their testimony, in that they were transferred to a "soft yard," a housing placement within the Department of Corrections that did not have the same inherent risks of danger as a general population yard. He also offered the testimony of a Department of Justice criminalist who examined defendant's cell at SVSP and found no signs of scraping.
The prosecution presented certified documents that proved defendant had suffered three prior convictions for first degree murder in 1988 and was a life prisoner at the time of the capital murder.
The People offered as evidence in aggravation defendant's leading role in three homicides in Yolo County and participation in two in-prison assaults.
Over the course of the Labor Day weekend in 1987, when he was a 17-year-old high school student, defendant, armed with a shotgun, and a
The following Tuesday, defendant skipped school and, with his uncle's handguns, again visited the slough with a friend, where they ran into a couple who were fishing. Defendant told his friend he wanted to take their car to use to rob a bank. After a few minutes of conversation, defendant shot the woman in the back and then continued shooting, hitting and killing the man. When the woman continued to scream, defendant shot her in the head, killing her. Defendant was "jovial" when he threw their bodies and belongings into the slough and took their car. Defendant and his friend drove to Oregon, where they were apprehended.
Defendant eventually pleaded guilty to the three murders and was sentenced to a term of 52 years to life imprisonment. He was serving this term in SVSP at the time of the capital crime.
In September 1995, while incarcerated at California State Prison, Sacramento, defendant joined in a fight that started between two other inmates on the administrative segregation yard. He only stopped fighting after the guards repeated oral warnings and fired two rubber bullets.
In January 1997, on the administrative segregation yard at SVSP, defendant approached and struck inmate Wright. Inmate Steve Petty joined the fight, which stopped only after the guards repeated oral warnings and fired two rubber bullets.
Defendant presented no evidence at the penalty phase of trial.
Before trial, defendant moved to have separate juries decide his guilt and the truth of the prior-murder special-circumstance allegation, with the special
Defendant argues the trial court's ruling violated his rights to a fair trial and an impartial jury. We conclude the trial court did not err.
Defendant further asserts the denial of the motion violated his rights to due process and fundamental fairness under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, arguing that trying the case before a single jury limited his ability to adequately voir dire the prospective jurors. (See Mu'min v. Virginia (1991) 500 U.S. 415, 425-432 [114 L.Ed.2d 493, 111 S.Ct. 1899].) Defendant failed to explicitly make these constitutional arguments in the trial court, but because they do not invoke facts or legal standards different from those the trial court was asked to apply, and merely assert that the trial court's denial of the motion had the additional legal consequence of violating his rights under the United States Constitution, they are not forfeited on appeal. (See People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 [42 Cal.Rptr.3d 677, 133 P.3d 581].)
Although the issues are thus preserved, defendant fails to show the trial court's ruling resulted in fundamental unfairness or the denial of due process. Defendant argues that the prosecution's strongest evidence in aggravation was the three prior murder convictions, and defendant's strongest evidence in mitigation was the fact the victim in this case was a child molester. Because of the court's ruling, he argues, the prosecution was able to question prospective jurors concerning their thoughts regarding the appropriateness of a death sentence for the murder of a child molester, but he was "unable to ask the prospective jurors if they would automatically vote for the death penalty in light of defendant's prior murder convictions." He asserts that this resulted in a constitutionally unfair advantage for the prosecution.
In fact, defendant's claim that he was "unable" to ask prospective jurors whether prior murder convictions would cause them to automatically vote for the death penalty is belied by the record. As the trial court suggested, counsel asked numerous prospective jurors whether the existence of various special circumstances, including a prior murder conviction, would, by themselves, cause them to vote for death. The questions were framed in a neutral fashion,
Defendant fails to show that the trial court's denial of his motion for separate juries precluded him from assessing the qualifications of the prospective jurors or otherwise resulted in fundamental unfairness.
Defendant next contends the trial court erred in excusing for cause Prospective Juror No. 3, who he asserts was not biased against the death penalty, in violation of Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844] and Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]. Defendant argues the trial court's ruling violated his rights to a fair trial and an impartial jury under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. We conclude the trial court did not err and defendant's constitutional rights were not violated.
In her written questionnaire, Prospective Juror No. 3 indicated that she supported the death penalty, believed in "an eye for an eye," and "would not automatically vote for either life without the possibility of parole or the death penalty," but would "consider all the evidence and vote [her] conscience."
During voir dire examination, the court outlined four categories of thought about the death penalty: Category one would include "persons who do not believe in the death penalty, who would not support the death penalty and who, if placed in this position, would always vote for life without the possibility of parole." Category two would include "those persons who strongly support the death penalty, who are strong proponents of the death penalty, and who, when given the choice, would always vote for a sentence of
Prospective Juror No. 3 placed herself in category three: Although she accepted the theory of the death penalty, she could not personally impose it because she "wouldn't want to feel guilty."
The trial court asked the parties if they would be willing to stipulate to the excusal for cause of Prospective Juror No. 3. Defense counsel did not stipulate or object, but submitted the matter to the court. We have held the failure to object does not forfeit a claim raised on appeal pursuant to Wainwright v. Witt, supra, 469 U.S. 412, and Witherspoon v. Illinois, supra, 391 U.S. 510, although it suggests counsel concurred in the assessment the juror was excusable. (See People v. Schmeck (2005) 37 Cal.4th 240, 262 [33 Cal.Rptr.3d 397, 118 P.3d 451].)
Prospective Juror No. 3, although initially indicating she would not automatically vote for either life without the possibility of parole or the death penalty, but would consider all the evidence and vote her conscience, thereafter stated on examination during voir dire that she would never vote for the death penalty because she would not want to feel guilty. The record thus supports the trial court's conclusion that Prospective Juror No. 3 held views that would prevent or substantially impair her ability to impartially apply the law in accordance with the court's instructions. We find no error in the court's decision to excuse her for cause.
Defendant claims the court erred in denying his motion to excuse for cause Prospective Juror No. 8. He argues the prospective juror's views, as expressed in the juror questionnaire and voir dire examination, revealed a bias in favor of the death penalty.
In his questionnaire, Prospective Juror No. 8 indicated that he strongly supported the death penalty, thought it "never should have been repealed" and "murderers should never have another opportunity to kill again." He thought the murder of an inmate was a less serious crime than the murder of a
He also indicated he could see himself, in the appropriate situation, finding life in prison to be an appropriate punishment, and rejecting the death penalty. He would not automatically vote for either life without the possibility of parole or the death penalty, but would consider all the evidence and vote his conscience.
The court initially concluded, based on the questionnaire alone, that Prospective Juror No. 8 was not qualified to sit as a juror because his answers indicated he would not engage in a weighing of the evidence and, because defendant had prior convictions for murder, would automatically vote for the death penalty. When the prosecutor refused to stipulate to his excusal for cause, voir dire commenced. Prospective Juror No. 8 stated that he understood "the legal concept and how the death penalty should be imposed." But he did not "happen to personally agree with the way it works. But . . . [he would] follow the directions of the Court on how to impose a penalty as determined by law." If he learned that defendant had been convicted of a prior murder, he would not automatically vote for the death penalty, but "would wonder why that person had the opportunity." He would not "let [his] personal judgment interfere with [his] following the letter of the law." He would consider everything and follow the judge's directions, and his personal opinions would not interfere with his ability to give defendant a fair and impartial judgment.
Defense counsel then asked, "If you were Mr. Bivert, would you feel comfortable having a juror like yourself being on the jury?" Prospective Juror No. 8 suggested that, in light of his strong views in favor of the death penalty, if he were defendant "he wouldn't want to take a chance on me being on this jury. At least I hope he wouldn't." He repeated, however, that although he strongly favored the death penalty, it "doesn't mean I would automatically go for it."
The defense thereafter challenged Prospective Juror No. 8 for cause. The court denied the motion, stating: "It's very clear that juror number 8 personally strongly supports the death penalty, but he also was very clear in stating that despite his personal opinion, he would follow the law in the case and he placed himself in category four [(one who could keep an open mind, consider the evidence presented, weigh the mitigating factors against the aggravating factors, and then make a decision)]. He never placed himself in category two [(one who strongly supports the death penalty and would always vote for the death penalty no matter the evidence)]. In other words, he never said that he would vote for the death penalty in all circumstances.
Defendant thereafter used one of his peremptory challenges to excuse Prospective Juror No. 8 and exhausted his peremptory challenges. At no time did he express any dissatisfaction with the jury panel as sworn.
Defendant argues that counsel may have failed to express dissatisfaction with the panel as sworn because he was "concerned that, if the juror selection process continued, a juror even worse than Juror No. 8 may have been seated." He argues he should not be precluded from asserting on appeal "`the deprivation of . . . fundamental, constitutional rights.'" He fails to show, however, which fundamental constitutional rights would be implicated had he objected to the jury as sworn and a "worse juror" for the defense been seated.
We have acknowledged that an expression of dissatisfaction with the jury panel as sworn is required to preserve this issue for appeal, but have noted that in light of arguably conflicting language in People v. Bittaker (1989) 48 Cal.3d 1046, 1087-1088 [259 Cal.Rptr. 630, 774 P.2d 659] (which suggests that an express statement of dissatisfaction is unnecessary if a defendant exhausts his or her peremptory challenges) and People v. Crittenden (1994) 9 Cal.4th 83, 121, footnote 4 [36 Cal.Rptr.2d 474, 885 P.2d 887] (which clarified that an expression of dissatisfaction is in fact required), we would decline to apply this rule to cases tried before 1994, when Crittenden was decided. (People v. Mills, supra, 48 Cal.4th at pp. 186-187.) Because defendant was tried in 2001, the requirement of an express statement of dissatisfaction applies to his case, and thus he has not preserved this issue for appeal.
The trial court did not err in denying defendant's challenge for cause to Prospective Juror No. 8. He initially indicated he strongly supported the death penalty and believed that if a defendant murdered an inmate it was not as heinous a crime as if he had murdered a noninmate, but even if the victim was an inmate child molester, he would have no problem voting for the death penalty. Prospective Juror No. 8 also stated that if his and defendant's roles were switched, in light of his strong views on the death penalty, he would not want to have a juror like himself sitting in judgment. Nevertheless, as strong as were his statements in support of the death penalty, the record supports the determination that Prospective Juror No. 8 did not express an unalterable preference for the death penalty. He consistently said that in spite of his strong views, he would follow the law as instructed by the court, and under the appropriate circumstances, he could vote for life imprisonment without the possibility of parole over the death penalty. He would commit to following the law, would not let his personal views interfere with "the letter of the law," and would weigh the mitigating and aggravating factors before making a decision. He would not "automatically go for it."
The record thus supports the trial court's finding that Prospective Juror No. 8's views would not substantially impair the performance of his duties as a juror. The court did not err in denying defendant's motion to dismiss Prospective Juror No. 8 for cause.
Defendant next argues the court erred in admitting evidence he was a White supremacist and a racist.
Before trial, defendant moved to exclude evidence regarding White supremacist philosophies, any racially oriented or White supremacist material found in his possession in prison, or racially oriented statements made by
The trial court ruled that evidence regarding White supremacist philosophies generally would not be admitted, but evidence of defendant's statements regarding the assault of Rick Dixon, the murder of Leonard Swartz, and the events leading up to the crimes, including statements regarding his motives, which might include elements of racism and White supremacist philosophies, would be admissible.
Defendant argues the court erred in admitting the following evidence: defendant was in charge of "the woods," or White inmates, in building B at SVSP and "assigned to himself" the duty to "clean up the trash that White people let slide these days"; defendant thought the White race had "gotten soft over the years and people like Swartz" would have to be "dealt with"; defendant told inmate C his "mission in prison was to take care of scum like Swartz"; defendant could not understand "why the White race was allowing Swartz to live"; defendant thought it was the responsibility of White people to "take care of" child molesters; defendant told inmate P he was targeting child molesters, Blacks, and "rats," and the gene pool should be cleansed of all persons with any kind of defect, a "sort of Hitler concept"; defendant told Dixon that in order to earn the respect of "the woods" in the building, Dixon would have to stab inmate Dennis, who had purchased drugs from an inmate of another race; Dixon refused to stab Dennis; defendant wanted to beat a Muslim to death; and the prison population was self-segregated by race, and each race was responsible for dealing with its own "rats" or pedophiles.
Defendant argues that any motivation he may have had to commit the charged offenses was limited to his desire to kill child molesters, that evidence of his desire to kill child molesters was not evidence he was a racist, and that any evidence showing him to be a racist was irrelevant, inflammatory, and prejudicial. He argues that evidence creating the image of him as a White racist permeated the prosecution's case, skewed the jury's decisionmaking process to his detriment, and should not have been admitted.
Defendant placed all material issues in dispute by pleading not guilty. (See People v. Roldan (2005) 35 Cal.4th 646, 705-706 [27 Cal.Rptr.3d 360, 110 P.3d 289].) The evidence that defendant was in charge of an association of White inmates at SVSP, that he assigned duties to himself and others, and that the duties included actions designed to effectuate his desire to "clean up" the White race by eliminating child molesters and to punish White inmates who associated with inmates of other races, was relevant in the guilt phase of trial. This evidence tended logically to prove defendant harbored the intent and motive to assault Dixon for not obeying his commands, to assault Dennis because he purchased drugs from an inmate of another race, and to kill Swartz for being a child molester. It also tended to prove defendant's prior attitude toward the victims, which was a relevant factor in determining whether his actions were deliberate and premeditated. (See People v. Quartermain (1997) 16 Cal.4th 600, 628 [66 Cal.Rptr.2d 609, 941 P.2d 788].) That this evidence also revealed defendant to be a racist did not render it inadmissible. Evidence tending to prove defendant was a eugenicist who favored the supposed purity of the White race also tended to prove his motive and intent to assault and kill individuals he deemed to be acting in ways contrary to his ideal.
For the first time on appeal, defendant raises the claim that the trial court's ruling violated his rights under the First Amendment to the United States Constitution. Assuming the claim was properly preserved for appeal (see People v. Boyer, supra, 38 Cal.4th at p. 441), it fails on the merits.
Defendant argues that evidence of his membership in an association of White inmates allowed the prosecution to imply he was evil. This evidence served only to inflame the passions of the jury, he asserts, and resulted in a fundamentally unfair trial. He relies on Dawson v. Delaware (1992) 503 U.S. 159 [117 L.Ed.2d 309, 112 S.Ct. 1093], in which the United States Supreme Court found constitutional error in the admission of a stipulation that proved inmate Dawson was a member of the Aryan Brotherhood prison gang and that the gang held White racist beliefs. In that case, the murder did not involve any elements of racial hatred. The court held that because the murder was not shown to be tied in any way to the Aryan Brotherhood, evidence of Dawson's membership invited the jury to draw inferences that tended to prove nothing more than his abstract beliefs, which were protected by the First Amendment. (503 U.S. at pp. 166-167.)
Finally, defendant argues the admission of evidence of his White supremacist ideas violated his rights to due process and a fair trial because it was irrelevant, inflammatory, and prejudicial. Assuming the claim was properly preserved for appeal (see People v. Boyer, supra, 38 Cal.4th at p. 441), it fails on the merits.
Defendant argues the court erred in refusing his request to amend the cautionary instruction to include in-custody percipient witnesses inmates A, F,
An examination of the legislative history of section 1127a, which was enacted in 1989 and formed the basis for cautionary instruction CALJIC No. 3.20, reveals the Legislature made a deliberate and rational distinction between in-custody percipient witnesses and in-custody informant witnesses. The Legislature acted in response to a highly publicized case in Los Angeles in which a jailhouse informant, through nefarious means and by posing on the jailhouse telephone as an investigator, convinced law enforcement officers and investigators that he was in legitimate need of confidentially held information about an ongoing criminal case. He later used this information to testify falsely to having heard a "confession" of the defendant in the ongoing case, and received favorable treatment in his own case in exchange for his testimony. The Legislature recognized that in-custody informant witnesses differ in nature and character from in-custody percipient witnesses. Section
Thus, the jury was adequately instructed on factors that might have affected the strength and credibility of the percipient witnesses' testimony. Defendant cites no legal authority or factual support for the proposition that the instructions encouraged the jurors to give the testimony of the percipient witnesses special credence or weight, and we find none.
Defendant contends his case differs from the previous cases in which we found no error in the consideration of prior juvenile violent conduct. Unlike People v. Lee, supra, 51 Cal.4th at pages 648-649, which involved assault, battery, and robbery, People v. Taylor, supra, 48 Cal.4th at pages 653-654, which involved sexual assault, and People v. Bramit, supra, 46 Cal.4th at page 1239, which involved robbery and assault, defendant's prior juvenile violent conduct involved three brutal, unprovoked murders. But this difference does not compel us to reconsider our prior decisions in favor of a rule in which no prior juvenile conduct is admissible in the penalty phase of a capital trial. As we have previously noted, Roper v. Simmons, supra, 543 U.S. 551, spoke only to the question of punishment for juvenile offenses, while defendant's challenge "is to the admissibility of evidence, not the imposition of punishment." (Bramit, at p. 1239.) That the juvenile conduct here was more severe than the juvenile conduct at issue in our prior cases does not alter this conclusion.
Defendant further asserts it was primarily because of his three prior murders, rather than his having murdered a convicted child molester in prison, that the jury returned a verdict of death after less than one and one-half hours of deliberation. On this ground as well, he urges this court to
Defendant's argument is both speculative and unpersuasive. As a formal matter, contrary to defendant's assertions, the death sentence imposed was for his commission, as an adult, of the capital offense of the first degree murder of Leonard Swartz, with special circumstances of lying in wait and prior first degree murder. Evidence of the three murders committed while a juvenile was, pursuant to section 190.3, factor (b), introduced in aggravation to "enable the jury to make an individualized assessment of the character and history of . . . defendant to determine the nature of the punishment to be imposed." (People v. Grant (1988) 45 Cal.3d 829, 851 [248 Cal.Rptr. 444, 755 P.2d 894].) In their determination of the appropriate punishment, the jury could properly consider defendant's commission of three prior murders.
Without any evidence the jurors' sentencing decision was more influenced by defendant's prior violent conduct than by the capital offense, defendant's claim is purely speculative. The jurors may well have regarded the capital crime itself—the premeditated, unprovoked killing of a fellow inmate by a life prisoner—as egregious enough to warrant the death penalty. Moreover, any attempt to ground the claim in evidence of the jurors' subjective reasoning processes would violate Evidence Code section 1150. (People v. Collins (2010) 49 Cal.4th 175, 250 [110 Cal.Rptr.3d 384, 232 P.3d 32].) Defendant has not established that the use in aggravation of three prior murders he committed as a juvenile rendered his death sentence for the charged in-prison murder unconstitutional.
Defendant raises a number of facial constitutional challenges to California's death penalty law, claims we have repeatedly rejected and find no persuasive reason to reexamine.
As we recently observed in People v. Letner and Tobin (2010) 50 Cal.4th 99, 208 [112 Cal.Rptr.3d 746, 235 P.3d 62], "`[W]e reiterate that the death penalty statutes adequately narrow the class of murderers eligible for the death penalty, are not impermissibly vague or overbroad, and do not result in an "arbitrary and capricious" or "wanton and freakish" penalty determination. [We] also have held that the statutes do not require that the prosecution carry
"`There is no violation of the equal protection of the laws as a result of the statutes' asserted failure to provide for capital defendants some procedural guarantees afforded to noncapital defendants.'" (People v. Letner and Tobin, supra, 50 Cal.4th at p. 208.)
Further, "[t]he statutes are not invalid because they permit the jury to consider in aggravation, under section 190.3, factor (b), evidence of a defendant's unadjudicated offenses." (People v. Letner and Tobin, supra, 50 Cal.4th at p. 208.) "`The use in the statutes, and in the standard jury instructions, of terms such as "extreme," "substantial," "reasonably believed," and "at the time of the offense" in setting forth the mitigating factors does not impermissibly limit the mitigation evidence or otherwise result in an arbitrary or capricious penalty determination. The statutes, as translated into those standard jury instructions, adequately and properly describe the process by which the jury is to reach its penalty determination. There is no need to instruct the jury at the penalty phase (1) regarding a burden of proof, except as to section 190.3, factors (b) and (c), or the absence of a burden of proof, (2) regarding the meaning of the term "mitigation," (3) that mitigating factors can be considered only in mitigation, (4) that if the mitigating evidence outweighs the aggravating evidence, the jury must impose a sentence of life without the possibility of parole, or (5) that the jury is not required to impose the death penalty even if it finds the aggravating evidence outweighs the mitigating evidence. The trial court need not omit from the instructions any mitigating factors that appear not to apply to the defendant's case.' [Citation.] [¶] `There is no requirement that the trial court or this court engage in intercase proportionality review when examining a death verdict. A sentence of death that comports with state and federal statutory and constitutional law does not violate international law or norms . . . .'" (Id. at pp. 208-209.)
The judgment of the superior court is affirmed.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Chin, J., Corrigan, J., and Haerle, J.,
Prospective Juror No. 8 replied: "No, I wouldn't. But my—I would wonder why that person had the opportunity. [¶] Again, it's my personal belief, but I'm not going to let my personal judgment interfere with me following the letter of the law. Okay?"
He asked Prospective Juror No. 49: "[T]here are other special circumstances. For example, there's one where you could essentially murder someone for financial gain. . . . [Or] where the defendant has been convicted of a previous murder in the first or second degree. And there's another kind of special circumstance where if you kill a judge or a prosecutor. Those are all special circumstances that would entitle a jury to decide whether or not a person lives or dies. [¶] Of the special circumstance examples that I've given you, would any of those tell you `I'm going to vote for death no matter what the facts are in the penalty phase'?"
Prospective Juror No. 49 replied, "No," that he would be willing to listen to and evaluate each and every circumstance.
Defense counsel asked Prospective Juror No. 82: "I'm going to give you a few special circumstances and what I'd like to know is if you hear any of these special circumstances and if they were assumed to be true, . . . would you automatically say `that's the death penalty. I don't need to hear anymore'? [¶] For example, there's a special circumstance[ ] that the murder was intentional and carried out for financial gain. . . . There's another one that says that the defendant was convicted previously of murder in the second degree. . . . There's another one that says if . . . a victim was a peace officer or a judge or a prosecutor that's a special circumstance."
Prospective Juror No. 82 replied: "No. I think I would need to know everything that was connected with the case."
Inmate D testified he spoke with defendant following defendant's return to SVSP after his attack on Dixon.
Inmate J, defendant's cellmate at California State Prison, Corcoran, where defendant was sent immediately following the attack on Swartz, testified to statements defendant made regarding both attacks.
Inmate P, defendant's cellmate at Pelican Bay State Prison, testified to defendant's desire to cleanse the White race and defendant's statements regarding how he had stabbed Swartz.
Inmate R met defendant at Pelican Bay State Prison and testified to statements defendant had made regarding both attacks.
Inmate F testified he was on the second tier at the time of the attack on Swartz, and he heard and saw the attack as it happened.
Inmate G testified he saw and heard the attack on Swartz as it happened, and he saw defendant shake while being searched.
