On September 4, 1998, a jury convicted Timothy Russell of the murders of Riverside County Sheriff's Deputies Michael Haugen and James Lehmann (Pen. Code,
Defendant and his wife, Elaine Russell, had a tumultuous and violent relationship. Early in the couple's relationship, defendant had a particularly violent encounter with his wife in which he threw furniture, ripped the phone cord from the wall, choked his wife, and held a gun to her head. During this incident, defendant told his wife that if she called the police, he would kill both her and the police.
In the early morning hours of Friday, January 3, 1997, following the years-long deterioration of the marriage, Elaine confronted defendant with her suspicion that he was using drugs. Defendant and Elaine had both previously used methamphetamine. Elaine asked defendant to leave the house the couple shared with their two children; defendant acquiesced. Defendant spent the rest of that night in the sign shop where he worked and sought the advice of his old friend, Jeffrey Alleva, later that day. Defendant and Alleva had not been in contact recently, although they had formerly been close friends.
Alleva testified that defendant appeared sad and concerned and indicated to Alleva that he needed to make changes and get his life in order. Defendant
During his 10-minute conversation with Brown, defendant drank from a large bottle of beer. Brown later testified that defendant became more agitated, raised his voice, made large gestures, and made statements about his wife that Brown viewed as inappropriate. Defendant's conversation with Brown eventually woke Elaine and the couple's two children. Elaine emerged from her bedroom and asked defendant to leave, which caused defendant to become more agitated. Elaine left the room briefly; upon her return, defendant kicked her and threw her to the floor. Elaine begged for defendant to leave the house. Defendant finally agreed to leave. He tore the telephone wire out of the wall on his way out, yelling at Elaine and Brown "not to f—k with his job, his life, and not to call the cops."
After defendant left, Elaine quickly went to the house of her neighbors, John and Twilla Gideon, to call the police. Shortly thereafter, defendant returned to his house with an unloaded M-1 rifle, asking Brown where the bullets to the gun were located. Brown initially told defendant that she did not know, but after defendant threatened to kill Brown, she relented and told defendant where to find the bullets. Defendant had a history of recreational gun use and was proficient with the guns he owned, which included a.22-caliber Uzi firearm and the M-1 rifle. Defendant used the guns in target practice, and was described as a "very good shot."
Defendant threatened to hold Brown hostage because he knew Elaine was calling the police. He said that he would kill Brown if necessary. Defendant walked outside and fired his gun four or five times. Brown testified that defendant came back inside, telling her to get out because the police were on their way and he was "going to kill [the police]." Brown testified that defendant told her to take the kids and run. Brown took the children to the Gideons' house.
Brown noticed a police car arriving as she ran across to the Gideons' home. She took the children to the safety of the master bedroom at the rear of the Gideons' home, and shortly she thereafter heard around six shots fired.
Deputy Lehmann had been shot in the head. Deputy Haugen had been shot in the chest and toe. Both men were dead by the time the next responding officer, Deputy Mark Smith, arrived at the scene. Both still had their weapons holstered.
Following the shooting, defendant ran into the desert; in the morning, between 7:00 and 7:30 a.m., he emerged from the desert and was arrested without incident. Defendant admitted firing shots in the air in front of the deputies, but said that he only shot to "scare" them.
Defendant made a number of statements to police concerning the shooting. Defendant first spoke with Senior Detective Eric Spidle the morning of January 5, 1997. Defendant offered to show Detective Spidle where he had dropped his gun, and the two drove into the desert where defendant showed Detective Spidle where he had placed the gun and ammunition. The weapon and other evidence were recovered, and defendant was taken to the Riverside County Sheriff's station, where his clothing was taken, his blood analyzed, and his body tested for gunshot residue. When defendant was taken into custody, he had no methamphetamine, cocaine, opiates, alcohol or lithium in his blood. He had an injury and blood on the right side of his face. An expert presented testimony that the gunshot residue found on defendant's hand and face at that time had a "very similar chemical composition" to the residue on the expended cartridges found at the scene of the crime. The gunshot residue found on defendant's face indicated the gun had been held close to his face when it was being fired.
Defendant initially declined to be interviewed, but later changed his mind and gave a videotaped interview after waiving his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602].) Defendant spoke at length about his deteriorating relationship with his wife, who had admitted to cheating on defendant and had left the couple's home with their children. About six months prior to the shootings, Elaine called defendant and asked if she and the children could return to the couple's home; defendant agreed. Prior to Elaine's return, defendant had been attending Alcoholics Anonymous meetings and felt like he was "able to handle life"; following Elaine's return home, defendant began drinking again.
Defendant explained that he was intoxicated on the night of the shooting, having consumed about a 12-pack of beer. After fighting with his wife,
Officers investigating the scene found defendant's gun in the location he had pointed out, with one live round in it and three magazines lying underneath it. While examining the scene, investigators found two groupings of .30-caliber shell casings around the same location, indicating that four rounds had been discharged at one target and eight rounds had been fired at a second target. Five more shell casings were found in the front yard of defendant's home.
The prosecution presented testimony from a forensic pathologist, who stated that the entrance trajectories of Deputy Lehmann's and Deputy Haugen's wounds were inconsistent with a hypothesis that the injuries resulted from ricocheted bullets. The trajectory of the bullet that killed Deputy Lehmann was slightly front to back, left to right, and slightly downward. Deputy Haugen's wound was consistent with the bullet's passing through his bulletproof vest before entering his chest, which only high-velocity projectiles are capable of doing.
The defense presented three witnesses during the guilt phase of the trial. Riverside County Sheriff's Sergeant David Wilson, a forensic supervisor who was at the crime scene when defendant reenacted the shootings, testified that he heard defendant state that he had been running southbound on a dirt road, had seen the deputies walk into the intersection and approach his home, and that he pointed his gun at the ground near the deputies and started shooting. Defendant said that he saw sparks, which might have been his shots ricocheting off the asphalt, and that he did not see the deputies after he fired the shots.
Charles Darnell, a retired Army officer with 22 years of service, reviewed defendant's military record, and testified that defendant, who had been training to be a medic, had received only the basic level of weapons training
Detective Eric Spidle, the prosecution's investigating officer, testified for the defense that in test-firing the M-1 for speed, he expended 12 rounds in 4.85 seconds and 2.9 seconds in two different tests. In a third test, he deliberately fired more slowly, and expended 12 rounds in 10 seconds. The test measured timing, and not accuracy.
The Riverside County Sheriff's Department tested defendant's M-1 rifle in the condition it was in when received. Twelve shots were fired from a distance of 132 feet, and the rounds hit the target slightly high and to the left.
The prosecution presented victim impact evidence from friends of the deceased officers and members of their families. Deputy Haugen's wife, Elizabeth, described the devastating effect her husband's death had on her and their two children, Katy and Stephen. The Haugens' niece, Jacqueline Mangham, provided more testimony relating to the impact of the death on Elizabeth and Stephen Haugen. Deputy Haugen's father-in-law, Geoffrey Mangham, stated that his wife grew ill after the funeral as a result of stress surrounding the death.
Deputy Lehmann's wife, Valerie, described the effect of his death on her and their children, six-year-old Ashley and 10-year-old Christopher. Deputy Lehmann's brother-in-law, James Odam, gave further testimony as to the death's impact on Christopher, who had become an angry child.
The defense presented several witnesses during the first penalty phase. Gordon Young, a pastor at defendant's church who had provided counseling
Detective Spidle testified to defendant's actions at the time of the arrest. Spidle stated that when he told defendant that the deputies were dead, defendant "tilted his head back, closed his eyes, became a little teary-eyed [and his] emotion changed a bit." He confirmed that he had described defendant in his report as "visibly emotional."
Defendant's mother, Lucille Williams, gave testimony as to the difficulties defendant faced while growing up. Williams testified that defendant's father was an alcoholic who died when defendant was 10 years old; Williams's subsequent husband abused defendant. Defendant behaved poorly while in school, dropped out, and joined the Army at age 17. Williams testified that defendant was "totally changed" and began having mood swings after being the victim of a beating and robbery in which he suffered severe head trauma. Defendant had problems with alcohol after leaving the Army. Williams testified that defendant's arrest was difficult for her, and that the arrest impacted his children. She stated that she did not believe defendant would intentionally take a life.
With respect to the circumstances of the crime, most of the evidence presented at the penalty phase retrial was the same as the evidence presented during the original guilt phase. At the retrial, however, defendant's videotaped statements made following the shooting were not played. Instead, Detective Spidle testified about defendant's statements and his demeanor following the shootings. Additional forensic evidence was presented regarding the test-firing of defendant's M-1 rifle. Forensic scientist Richard Whalley testified that the gun fired five inches high and to the left, and if the gun was not lowered between each shot, the recoil caused the gun to elevate, increasing the angle of each subsequent shot. Mr. Whalley also testified that he conducted firing tests from heights of 32 and 42 inches from the ground, and the expended shell casings fell from the weapon in a 20-inch circle and a 17- to 19-inch circle, respectively.
The prosecution again presented evidence regarding the impact of Deputies Haugen's and Lehmann's deaths on their friends and family. Deputy Haugen's wife, Elizabeth, again testified regarding her 15-year relationship with her husband, how hard he had worked to gain acceptance into, and successfully complete, the police academy, and his devotion to his career. Deputy Haugen's niece also testified for a second time, relaying the contents of a letter Deputy Haugen had sent to her shortly before his death about his experience as a police officer.
Elizabeth Haugen learned of her husband's death from her neighbor, whose husband also worked for the sheriff's department. Stephen, Deputy Haugen's 10-year-old son, was very upset following his father's death; his grades slipped, his behavior became problematic, and eventually he decided to attend a boarding school to avoid being at his house. At the time of the penalty retrial, Stephen had been seeing a psychologist, taking antidepressants, and preferred living at a boarding school to living at his former home.
Deputy Lehmann's wife, Valerie, also testified again about her over-20-year relationship with her husband and the devastating impact of his death on her and their two children. Upon learning of her husband's death, Valerie became hysterical, called her family for help, and ran to a neighbor's house seeking assistance. When she returned to her home a short while later, she found her children hysterical after they had been told that their father was dead. Christopher, Deputy Lehmann's 10-year-old son, became an angry and agitated child following his father's death, and began having seizures shortly after his father's death. Ashley, Deputy Lehmann's six-year-old daughter, also became a very emotional child following her father's death and would not mention his name.
The defense presented evidence from Edward Verde, M.D., of the Veterans Administration medical center, who had no recollection of defendant but testified regarding his medical records. Dr. Verde testified that defendant was diagnosed with drug and alcohol dependence in 1984, and was treated, off and on, for a period of five months. Defendant failed to complete an addiction treatment program during that time. He returned to the hospital for treatment in August 1984, but was not admitted. For a three-month period between November 1986 and January 1987, defendant again attempted to, but did not, complete an addiction treatment program at the hospital.
In March and April 1996, defendant returned to the Veterans Administration medical center, where he was diagnosed with amphetamine, alcohol, and
Jeffrey Alleva, who originally testified for the prosecution, testified for defendant at the penalty phase retrial. Alleva's testimony, concerning defendant's demeanor in the days leading up to the shootings, did not deviate from his previous testimony.
Defendant's previous employer, David Wakefield, testified that defendant was a normal, trustworthy employee. Wakefield testified that Elaine Russell had a verbal altercation with defendant while he was at work, and defendant called shortly thereafter and quit. Defendant's employer at the time of the shooting, Melvin Wachs, testified again on defendant's behalf, providing much the same testimony as he did at the first penalty phase trial. On the Friday before the shootings, while discussing his marital problems, defendant mentioned that he felt as though his wife had been putting "speed" in his coffee.
Defendant's mother testified on defendant's behalf at the second penalty phase trial; her testimony was consistent with her earlier statements. Pastor Gordon Young again testified on defendant's behalf, largely reiterating his earlier testimony, and adding that once defendant gave Pastor Young an Army rifle for safekeeping. Pastor Young also stated that he felt defendant made himself look better during counseling sessions by "fudging" the truth.
Detective Spidle offered testimony regarding defendant's statements to police following the shootings. Detective Spidle testified that defendant became "a little teary eyed" upon learning that Deputies Lehmann and Haugen were dead. Detective Spidle testified concerning the extent of defendant's cooperation with police—that defendant showed police the location where he had dropped the rifle, and agreed to be interviewed at the scene and at the police station. Detective Spidle stated that defendant was cooperative, and appeared regretful.
Defendant alleges that the trial court erroneously instructed the jury on the lying-in-wait theory of murder. He further alleges that the prosecutor improperly suggested that the jury could convict defendant of first degree murder based upon a lying-in-wait theory even if the jury believed defendant's account of the facts, which showed that no substantial period of watching and waiting occurred prior to the shooting. Defendant claims the prosecutor's suggestion, coupled with instructional error, violated defendant's rights to due process and a fair trial under the state and federal Constitutions. Defendant suggests his conviction is based potentially upon an erroneous theory of murder and must be reversed because it cannot be determined whether the jury relied on a legally adequate or inadequate theory to convict him of first degree murder.
During his interviews with Detective Spidle following the shootings, defendant explained that he saw the officers approaching, "saw the silhouette of them, and I thought well if I shoot in front of [them] . . . they'll run back the other way." Defendant then claims he "took off" running. When pressed later in the interview regarding the circumstances surrounding the shooting, defendant explained that his initial plan was to sneak past the officers. Defendant revised his plan when he realized he could see the officers and became concerned that they could also see him. Acknowledging that his initial plan of running past the officers would not help him evade detection, defendant explained that he crafted a new plan to run away from the officers and "put a line of fire down in front of [the officers] to turn them back." Defendant either slowed down or stopped while running away from the officers, aimed "in the general direction" of the officers' silhouettes, and shot at them a number of times.
The jury was instructed on the elements of first degree murder by lying in wait pursuant to CALJIC No. 8.25, and received a special instruction regarding lying-in-wait murder pursuant to defendant's request. CALJIC No. 8.25 defines murder by lying in wait "as a waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take the other person by surprise [even though the victim is aware of the murderer's presence]. The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation. [¶] [The
Defendant requested that the jury receive a special instruction regarding lying in wait. The court incorporated two paragraphs of defendant's requested special instruction into the instructions given to the jury; the court found that the remaining portion of the requested instruction was not a correct statement of the law.
Defendant claims that there was insufficient evidence to establish that a substantial period of watching and waiting, a necessary element of lying-in-wait murder, occurred in this case. Defendant suggests that the prosecutor's argument that the jury could believe defendant's story and nonetheless convict him of lying-in-wait murder was erroneous because defendant would have had "at most a few seconds" to decide on his course of conduct, which defendant suggests is insufficient to constitute a substantial period of watching and waiting. Defendant also contends that the jury instructions concerning lying-in-wait murder were inadequate because they did not convey that the
Defendant acknowledges that "no particular words are necessary" to convey that the period of watching and waiting must be substantial, and
We conclude that the evidence was sufficient to support the lying-in-wait theory of first degree murder, and the instructions adequately conveyed the elements of the crime. Because we find no error, we conclude that the jury's conviction was necessarily based on a legally adequate theory of murder and reversal is not warranted.
Defendant alleges that the trial court erroneously denied his guilt and penalty phase motions to have the jury view the scene of the murder, in violation of article I, section 15 of the California Constitution as well as the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Before the beginning of the guilt phase, defendant filed a motion requesting that the jury view the scene of the shooting at night. Defendant contended that the "extreme darkness" at the scene was crucial to his defense theory that he did not intend to kill the officers. Defendant raised the issue twice more, and the prosecutor objected to the jury view. The prosecution contended that defendant's own statements revealed that he could see the officers' silhouettes, and could see well enough to note that there was a size discrepancy between the officers. Brown and Twilla Gideon also testified about the lighting conditions at the scene, explaining that they could see the officers' bodies lying in the intersection and that one of the officers had facial hair. The prosecutor argued that a jury view of the scene was unnecessary because the issue was not whether defendant could see the officers, but whether he aimed at them.
The trial court denied defendant's guilt phase motion, explaining that it would be impossible to duplicate the lighting conditions of the scene because the trial was conducted during the summer months, while the crime occurred in January. Additionally, the court explained that there was ample evidence that it was "pitch black" and "difficult to see" on the night of the murder. Finally, the court agreed with the prosecutor's argument that the issue was one of aiming, not one of visibility.
Defendant argues that testimony that the scene was "pitch black" was not sufficient to "address the real issue of how that level of darkness affected visibility." Defendant also contends the trial "court failed to recognize that the visibility at the scene was highly relevant to whether appellant aimed at the officers." Defendant's arguments are unavailing. Defendant admitted that he was able to see the officers' silhouettes; we fail to see how a jury view of the scene would assist the jury in determining whether defendant aimed at those silhouettes. We conclude that the court did not abuse its discretion in denying defendant's request to have the jury view the scene of the murders. As the court noted, testimonial evidence adequately informed the jury as to the lighting conditions at the scene. The trial court reasonably concluded that a jury view—conducted at a different time of night and a different time of year with very different lighting conditions—was unnecessary.
Defendant argues that the court's questioning of a juror after allegations of impropriety were made intruded upon the jurors' deliberations and coerced a guilty verdict in violation of defendant's rights to due process, a fair trial, and a unanimous jury verdict under the state and federal Constitutions. For the reasons addressed below, we conclude that defendant's claims are not meritorious.
After two days of deliberations, the court received a note from Juror No. 2 expressing concern about Juror No. 8's ability to deliberate objectively. The note explained that Juror No. 2 was concerned that Juror No. 8 was "unable to set aside her empathy for the defendant," "unable to set aside her own personal experience relating to mental illness," and that "she seems to be suffering personal angst during the process stating `pick on somebody else, I can't do this anymore.' `I've had it!' `Can I abstain?'"
Upon receipt of this notification, the court asked counsel to address how it wished to proceed. Defense counsel argued that if the court thought "it would be appropriate, to call out the juror . . . referred to, which is Juror No. 8 and . . . make inquiry whether or not she's able to continue or is she deliberating," the court should do so. Because the note was received from a juror who was not the foreperson, the court suggested instead that it call the foreperson to see whether the issue raised by Juror No. 2 "is a problem and then take it from there." Counsel for both parties agreed. The court took a moment before the foreperson entered the court to make clear that it "tread[s] very lightly on these issues and [does not] want to intrude on the deliberations... . [B]y talking to the foreperson first," the court and parties will "get a better take on whether or not this is a general perception of the other jurors."
The court explained to the foreperson, Juror No. 12, that it had received a letter suggesting that there was a juror experiencing difficulty "setting aside his or her sympathy for the defendant and objectively deliberating on the case." Juror No. 12 agreed that there was an issue with a juror, and independently named Juror No. 8 as the individual experiencing the problem. The court clarified that it did not wish to intrude in any way in the deliberative process, and requested that the foreperson not mention the individual jurors' votes regarding guilt or innocence, but asked the foreperson to explain how jurors were "deliberating or refusing to deliberate."
The court asked counsel how they wished to proceed in light of the foreperson's statement. Counsel for defendant requested that the jury continue its deliberations undisturbed. The People argued that it seemed, based upon the letter and the foreperson's statement, that Juror No. 8 was basing her decision upon personal experience instead of the evidence, against the court's instruction, and that she may be unable to set aside her sympathy for defendant. The People argued, and the court agreed, that direct inquiry of Juror No. 8 was mandated.
The court stressed with Juror No. 8 that it would not be asking how she or any other jurors were voting, but only whether any "jurors are using pity or sympathy for a defendant in any way in this case." The court explained that the jury's instructions and "black letter law [require] that a juror must not in any case allow pity or sympathy for a defendant to interfere with the deliberation process or influence his or her vote in the jury process." The court asked if Juror No. 8 believed her feelings of sympathy for defendant interfered with her deliberative process, to which she responded in the negative. Juror No. 8 explained that she understood both that it would be unfair and against the law to allow her sympathy for defendant to interfere with the deliberative process, and that she understood that she could not allow a particular personal event in her background to interfere with or influence her objectivity. The court directed Juror No. 8 not to allow events in her past to "interfere with [her] objectivity in this case" and "direct[ed her] to further deliberate with the jurors. That means to discuss the evidence. Objectively." Juror No. 8 explained that the jury had "gone over and over" the evidence, and the court directed her to return to the deliberation room and continue to deliberate.
The People expressed concern that Juror No. 8's statements apparently conflicted with the statements in the note and those made by the foreperson.
As an initial matter, the People suggest that defendant's claims concerning Juror No. 8 are barred because he invited the error by initially suggesting that the court question Juror No. 8. As the People explain, the doctrine of invited error applies when a defendant, for tactical reasons, makes a request acceded to by the trial court and claims on appeal that the court erred in granting the request. (People v. Williams (2008) 43 Cal.4th 584, 629 [75 Cal.Rptr.3d 691, 181 P.3d 1035]; People v. Wickersham (1982) 32 Cal.3d 307, 330 [185 Cal.Rptr. 436, 650 P.2d 311], disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 201 [47 Cal.Rptr.2d 569, 906 P.2d 531].) Here, although defendant initially suggested that the court question Juror No. 8, and acquiesced to the court's alternate suggestion that it first question the foreperson, defendant ultimately reversed his position, suggesting that the jury should continue deliberating without questioning Juror No. 8. The court rejected defendant's later suggestion, and questioned Juror No. 8. Accordingly, we conclude that defendant did not invite any error he now claims occurred.
The People suggest in the alternative that defendant's claims concerning Juror No. 8 are forfeited. Defendant did not object to the trial court's decision to "bring out . . . Juror No. 8" after the prosecution suggested that the court do so. After the court admonished Juror No. 8, it engaged in a brief colloquy with the prosecutor regarding whether any further steps were necessary. Defense counsel did not comment throughout the duration of the court's exchange with Juror No. 8, nor did counsel join in the conversation between the prosecutor and the court after Juror No. 8 left the courtroom. Defense counsel did not object to Juror No. 8's continued service on the jury, and did not request a mistrial based upon juror misconduct. A claim of prejudicial misconduct is waived when the defendant fails to object to a juror's continued service and fails to seek a mistrial based upon prejudice. (People v. Stanley (2006) 39 Cal.4th 913, 950 [47 Cal.Rptr.3d 420, 140 P.3d 736].) Here, defendant's claim that the court's questions of Juror No. 8 constituted reversible error because they were improper, intrusive, and coercive is forfeited because defendant failed to object. As discussed more fully below, defendant's claims additionally fail on the merits.
More specifically, the court instructed Juror No. 8 that she could not permit her feelings of pity and sympathy for defendant to influence her deliberative process and directed her not to permit "a particular personal event in [her] life . . . to interfere with [her] objectivity in this case." It then directed her to resume deliberations. The court at no time suggested that it favored any particular verdict; indeed, it stated, "I am not and will not be asking you questions about how people are voting or how you are voting, one way or the other. It doesn't make any difference to me." We conclude that neither the court's instruction to Juror No. 8 to follow the law, nor the court's express statement that it did not wish to know the votes and that such knowledge made no difference, was coercive. As in People v. Pride, the court's instruction that deliberations continue cannot be construed as coercive. (People v. Pride, supra, 3 Cal.4th at p. 266.)
Defendant makes a few final arguments without reference to any authority. He first contends the court's comment to the foreperson, "I'll discuss with the attorneys if we have any recourse," improperly invaded the secrecy of the jury's deliberations. He also suggests that the court's colloquy with the foreperson was improper because the court neither requested that the foreperson keep the exchange confidential, nor did the court hold the conversation in
Because we conclude that the trial court did not err by questioning the foreperson or Juror No. 8 regarding allegations of misconduct, reversal is not warranted under either the harmless error or the reasonable probability standard proposed by defendant. (Chapman v. California, supra, 386 U.S. 18; People v. Watson, supra, 46 Cal.2d 818.)
This claim concerns the inconsistencies in defendant's and Brown's statements regarding whether or not defendant told Brown that he planned to kill the officers. On the night of the murders, after firing several shots into the air, defendant returned to the home he had shared with his wife and told Brown that police were coming and that "he was going to kill them." When asked whether he used those words, Brown replied in the affirmative. Brown was later impeached on cross-examination when she was confronted with her earlier grand jury testimony that defendant told her only that "the police were coming and that he [(defendant)] was going down." While being cross-examined, Brown explained that when she gave her testimony before the grand jury she did not recall precisely what defendant had said concerning his plans to kill the police officers, but that the "gist" of defendant's comments was that "he was going to kill the cops."
Immediately following his arrest, defendant agreed to be interviewed by Detective Spidle regarding the shootings. During that first interview, defendant told Detective Spidle that he "never told" Brown that he planned to shoot
Based on these inconsistent statements, the prosecutor asserted during closing argument that the jury could "conclude that [defendant] was lying, [and that] he did, in fact, threaten the police officers . . . [and] did what he told [Brown] he was going to do. He was going to kill the cops. [¶] The judge is going to tell you that if you find that [defendant] lied to [Detective] Spidle you can use what is called a consciousness of guilt. He has something to hide."
The jury was instructed based on CALJIC No. 2.03, which currently and as given provides: "If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide."
Defendant argues that the trial court erroneously instructed on consciousness of guilt, and that the court's error in giving this instruction violated defendant's Sixth and Fourteenth Amendment rights under the United States Constitution, as well as his rights pursuant to article I, sections 7, 15, and 16 of the California Constitution. Defendant primarily argues that the court erred in instructing the jury pursuant to CALJIC No. 2.03 because there was insufficient evidence supporting the instruction. Defendant also contends that the instruction permitted the jury to draw an improper inference concerning defendant's intent in committing the shootings, and contends that the instruction is impermissibly argumentative. For the reasons explained below, we reject each of defendant's contentions.
Moreover, we conclude that ample additional evidence was presented justifying the court's decision to instruct the jury pursuant to CALJIC No. 2.03. In addition to the inconsistent statements regarding defendant's stated intent to harm the officers, the prosecution suggests that CALJIC No. 2.03 would have been appropriately given to the jury to consider the conflicting evidence that defendant initially planned to sneak past the officers as they approached and his later decision to run in the opposite direction; and defendant's statement to Brown that he planned to "take out" the officers, and defendant's later testimony that he intended only to shoot in front of the officers to scare but not to injure them. Ample evidence of defendant's potentially false or deliberately misleading statements was presented; accordingly, the trial court did not err by instructing the jury with CALJIC No. 2.03.
Defendant also contends that his inconsistent statements do not demonstrate that he was "being willfully false in any meaningful way." Defendant relies on People v. Mattson (1990) 50 Cal.3d 826, 872 [268 Cal.Rptr. 802, 789 P.2d 983], in which we noted that the inference of consciousness of guilt and the probative value of a denial are "tenuous" where a defendant initially denies but later confesses to committing a crime. Defendant argues that the connection between the inconsistent statements here is even more tenuous. We disagree.
Defendant argues that instructing the jury pursuant to CALJIC No. 2.03 allowed the jury to improperly infer guilt from evidence that otherwise would not have properly been susceptible of such an inference, and that the instruction was impermissibly argumentative. Defendant acknowledges that we have repeatedly rejected these claims and presents us with no reason to reconsider our earlier decisions. (See People v. McWhorter (2009) 47 Cal.4th 318, 377 [97 Cal.Rptr.3d 412, 212 P.3d 692]; Carrington, supra, 47 Cal.4th at p. 188.)
Defendant argues that the court's error in instructing the jury pursuant to CALJIC No. 2.03 requires reversal because it cannot be demonstrated that the error was harmless beyond a reasonable doubt pursuant to Chapman v. California, supra, 386 U.S. at page 24. In light of defendant's numerous taped confessions, we conclude that error, if any, in instructing the jury pursuant to CALJIC No. 2.03 was harmless.
Defendant contends that the trial court's failure to require that the jury unanimously decide which statutory form of first degree murder he committed—deliberate and premeditated or by lying in wait—violated his rights under the state and federal Constitutions to due process, to have the state establish proof of murder beyond a reasonable doubt, and to a reliable determination of whether he committed a capital offense. As defendant acknowledges, we have previously considered and rejected such claims. (See People v. Nakahara (2003) 30 Cal.4th 705, 712 [134 Cal.Rptr.2d 223, 68 P.3d 1190]; People v. Hardy, supra, 2 Cal.4th at p. 162.) In Schad v. Arizona (1991) 501 U.S. 624, 636 [115 L.Ed.2d 555, 111 S.Ct. 2491], the high court held that a jury need not unanimously decide the theory of murder, felony or malice, upon which it based its guilty verdict, because those theories are not distinct elements of the crime but are instead merely distinct means of committing the offense. Defendant urges us to distinguish Schad v. Arizona; we decline to do so.
Finally, defendant argues that the trial court's erroneous failure to require juror unanimity constituted structural error requiring reversal of the entire judgment. (Sullivan v. Louisiana (1993) 508 U.S. 275, 282 [124 L.Ed.2d 182, 113 S.Ct. 2078].) Because we find no error, structural or otherwise, reversal is not warranted.
Defendant argues that the court's denial of his request to introduce, as evidence of the circumstances of the crime and of his character and background, the three videotaped statements he made to police following his arrest violated his rights to due process and a fair and reliable penalty determination under the state and federal Constitutions, as well as section 190.3, factors (a) and (k).
At the guilt phase, the taped statements were introduced by the prosecution as party admissions pursuant to Evidence Code section 1220. Defendant suggests that because the prosecution introduced the statements during the guilt phase of the trial, it must be precluded from objecting to introduction of those same statements in a penalty retrial. During the penalty retrial, the prosecution did not seek to introduce the taped statements, and defendant was not able to avail himself of Evidence Code section 1220 because that provision applies only to statements offered against a party declarant, not offered by that party. (Evid. Code, § 1220.) Defendant argued that the statements were relevant and admissible as evidence concerning the circumstances of the crime and as mitigating evidence, and were admissible pursuant to section 190.3, factors (a) and (k). The prosecution argued that the statements should be excluded, even if relevant, because they were unreliable, self-serving hearsay. The prosecutor argued that the statements were made nearly 12 hours following the shootings and over four hours after defendant's arrest—not immediately following defendant's being made aware of the officers' deaths. The prosecution also noted that defendant initially did not want to speak with law enforcement officers, and that his eventual statements were inconsistent with the physical evidence and lacked corroboration.
Defendant attempts to distinguish several cases in which we concluded that taped statements made by a defendant could not be introduced for their truth during the penalty phases of the trial. (See People v. Jurado (2006) 38 Cal.4th 72,
We also reject defendant's contention that there exists an independent state law basis to introduce his videotaped statements. Defendant argues that this court possesses the inherent authority to recognize exceptions to the hearsay rule, though he acknowledges that we "do so cautiously in light of the venerable policy against admitting declarations by witnesses who cannot be cross-examined." (People v. Demetrulias (2006) 39 Cal.4th 1, 27 [45 Cal.Rptr.3d 407, 137 P.3d 229].) Defendant suggests that the reliability of his statements, coupled with the fact that the statements were introduced at the guilt phase of his trial, compels this court to recognize a narrow exception to the hearsay rule. We disagree. As previously explained, the statements are self-serving and uncorroborated by physical evidence; defendant presents us with no reason to ignore our admonition to proceed cautiously when recognizing exceptions to the hearsay rule.
Finally, defendant suggests that his nonverbal conduct on the tapes was character evidence of his remorse admissible under section 190.3, factor (k). The People argue that defendant forfeited this claim by failing to argue in the briefing or argument before the trial court that he sought to introduce the nonassertive conduct on the tapes as mitigating character evidence. Assuming without deciding that the argument is not forfeited and is meritorious, any error was harmless. Detective Spidle testified regarding defendant's emotional state while defendant made the statements. Detective Spidle noted that he used the word "remorse" in his report, though he believed it would be more accurate to say that defendant felt regret. Detective Spidle also explained that defendant was initially cooperative with the police, showing them where he had hidden the gun. Upon learning that the officers were dead, Detective Spidle testified that defendant became teary eyed and visibly emotional. We conclude that defendant was able to, and did, present evidence of remorse; any error in failing to admit the nonassertive conduct contained in defendant's taped statements was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
Defendant argues that the trial court erroneously excused seven prospective jurors prior to voir dire based upon their answers to jury questionnaires in violation of his rights to a fair trial, due process, and a reliable penalty determination under the state and federal Constitutions. For the reasons addressed below, we reject defendant's claim.
The trial court and the parties discussed and agreed upon the language of the penalty retrial jury questionnaires. Prior to conducting voir dire, the court informed the parties that it had reviewed all of the completed jury questionnaires and had made a tentative ruling as to about 25 prospective jurors, which it reviewed with the parties. The court explained that it wished to "solicit any opposition from counsel" before it excused the jurors, and ensure that the parties had "an opportunity to be heard." The court then proceeded in numeric order to discuss the jurors about whom it had concerns or "red flags" based upon the answers in the jury questionnaires. On a number of occasions, either defense counsel or the prosecutor indicated his desire for the court to conduct further inquiry of the prospective juror at issue, which the court agreed to do.
The People argue that defendant invited any error by agreeing with the questions posed in the questionnaire and agreeing to the excusal of the seven prospective jurors. Assuming without deciding that error was not invited and the claim is not forfeited, we conclude that the court did not err by excusing the seven prospective jurors opposed to the death penalty. We review de novo a trial court's decision to excuse a prospective juror based solely upon that juror's written response to a questionnaire. (People v. Avila (2006) 38 Cal.4th 491, 529 [43 Cal.Rptr.3d 1, 133 P.3d 1076].) In People v. Avila, we concluded that a trial court's excusal of four prospective jurors based solely upon their written responses to the jury questionnaire was proper because the jurors' responses demonstrated an inability to perform their duties as jurors. (People v. Avila, supra, 38 Cal.4th at pp. 529-533.) People v. Avila distinguished our decision in People v. Stewart, in which we held that the trial court erred by excusing for cause five prospective jurors based upon their answers to a jury questionnaire that asked whether the prospective juror's views on the death penalty would prevent or make it very difficult for him or her to impose the penalty. (People v. Stewart (2004) 33 Cal.4th 425, 442, 444-445 [15 Cal.Rptr.3d 656, 93 P.3d 271]; People v. Avila, supra, 38 Cal.4th at p. 530.) Based on the "make it very difficult" language in the questionnaire, we concluded in People v. Stewart that it was not possible to ascertain whether a juror's response supported disqualification under the Wainwright v. Witt standard requiring that such person's views on the death penalty would prevent or substantially impair that person's ability to perform his or her duties. (People v. Stewart, supra, 33 Cal.4th at pp. 444-445; Wainwright v. Witt, supra, 469 U.S. at p. 424.)
Here, the questions did not suffer from the same deficiency present in People v. Stewart; the questions probed whether a prospective juror would experience difficulty imposing the death penalty, but also very directly asked whether a juror would "always" vote for or against the death penalty no matter what the evidence demonstrated. From a prospective juror's responses, it was possible to ascertain whether that juror would automatically vote for or against the death penalty, and thus whether that juror would be prevented
Defendant argues that the questionnaires inadequately queried whether the prospective jurors' views regarding the death penalty would interfere with the requirement that jurors follow the law. We disagree. As was also the case in People v. Avila, the responses to questions posed to prospective jurors here suggest that the court properly excused the prospective jurors for cause "based solely on [their] answers to the written questionnaire [because] it is clear from the answers that [the prospective jurors are] unwilling to temporarily set aside [their] own beliefs and follow the law." (People v. Avila, supra, 38 Cal.4th at p. 531.) "With respect to each of these excusals, we conclude that the trial court's determinations, based solely on the questionnaire responses, were correct." (Ibid.)
Defendant challenges the court's excusal of Prospective Juror R.D., explaining that R.D.'s responses were not "clear, unequivocal, and internally consistent," as were the responses of the prospective juror in People v. Avila, R.V., who had "indicated she strongly opposed the death penalty and would in every case automatically vote for life imprisonment without the possibility of parole, regardless of the evidence that might be produced during trial." (People v. Avila, supra, 38 Cal.4th at p. 531.) We conclude Prospective Juror R.D.'s responses were analogous to those of Prospective Juror R.V. discussed in People v. Avila. When asked if there existed "any religious or moral feeling that would make it difficult or impossible for you to sit in judgment of another person," R.D. responded that he was "against capital punishment," and went on to explain that he would "not always" follow the law if it differed from his beliefs, that his "no on capital punishment" feelings might prevent him from being a fair and impartial juror, that he "strongly opposed" the death penalty, and that "no matter what the evidence was, [he would] ALWAYS vote [against]
As in People v. Avila, although Prospective Juror T.T. responded "yes" when queried whether he would follow the law as instructed even if those instructions differed from his beliefs or opinions, "taken together, [T.T.'s] answers to the jury questionnaire professed an opposition to the death penalty that would prevent him from performing his duties as a juror." (People v. Avila, supra, 38 Cal.4th at p. 532.) Prospective Juror T.T. stated he "could not condemn a person to receive the death penalty, under any circumstance" (italics added), that he strongly opposed the death penalty, and that he would always vote for a life sentence. In light of those answers, the trial court did not err by excusing him for cause based solely upon his responses to the questionnaire.
Defendant argues that although the responses by Prospective Jurors M.G., D.F., and S.O. were not internally inconsistent, the court should have questioned them because they might have held more nuanced views regarding the death penalty than their written responses to the questionnaire suggested. We disagree. Prospective Juror M.G. expressed a view strongly against the death penalty, stating, "I am against the death penalty," "[m]y religion does not allow me to pass judgment, especially in this case," and explaining he could never vote for death because he "could not be forgiven." Prospective Juror D.F.'s responses were also unequivocally anti-death-penalty; he explained he did "not believe in taking a human life for any reason," and twice indicated his strong opposition to abortion on the same grounds. Finally, Prospective Juror S.O. consistently indicated a strong anti-death-penalty view, explaining, "I could not stand being responsible for someone's death." We conclude the court did not err by excusing these seven prospective jurors based solely on their clear and unequivocal written responses to the questionnaire.
Defendant argues that the presentation of victim impact evidence at his penalty retrial violated section 190.3, Evidence Code section 352, and his state and federal constitutional rights to due process, a fair trial, and a reliable penalty determination. Specifically, defendant contends that evidence concerning the character of the victims was excessive and partially inadmissible, that testimony of the victims' children was cumulative and prejudicial, that victim impact evidence was irrelevant or inadmissible under Evidence Code section 352, and that character evidence elicited from one victim's daughter violated Booth v. Maryland's prohibition against the admission of certain victim impact statements. (Booth v. Maryland (1987) 482 U.S. 496, 503, 508 [96 L.Ed.2d 440, 107 S.Ct. 2529], overruled in part in Payne v. Tennessee (1991) 501 U.S. 808, 825 [115 L.Ed.2d 720, 111 S.Ct. 2597].) We find no error.
Deputy Lehmann's wife testified about the impact of her husband's death on her and her children. His daughter testified about the fear she experienced as a result of her father's death. Deputy Lehmann's father-in-law spoke about Deputy Lehmann's kind nature. Deputy Lehmann's brother-in-law testified regarding the devastating impact of the officer's death on his son, Christopher, and about Christopher's destructive behavior following his father's death. Deputy Lehmann's mother testified about the heart attack she suffered just weeks after her son was killed.
Deputy Haugen's wife testified regarding her relationship with her husband, and testified as to the impact of his death on her and her children. Deputy Haugen's niece testified about her correspondence with her uncle. Deputy Haugen's son testified about grieving for his father, and the changes to his family following his father's death. Omar Rodriguez described the reaction of Deputy Haugen's family when he informed them that Deputy Haugen had been killed. In addition to the testimony described above, 57 images of the victims and their families were introduced into evidence.
Here, a few relatives of each victim testified concerning the character of the victims and the impact of their deaths upon their families. Defendant's argument that evidence regarding the victims' characters was excessive and irrelevant is unavailing. Evidence regarding the character of the victim is admissible to demonstrate how a victim's family is impacted by the loss and to show the "`victim's "uniqueness as an individual human being," whatever the jury might think the loss to the community resulting from his death might be.'" (People v. Brown (2004) 33 Cal.4th 382, 398 [15 Cal.Rptr.3d 624, 93 P.3d 244], quoting Payne v. Tennessee, supra, 501 U.S. at p. 823.)
Though the victims' wives did testify about the impact of their husbands' deaths on their families, we reject defendant's claims that the victims' children were precluded from providing testimony regarding their personal experiences resulting from the deaths of their fathers. (See People v. Panah (2005) 35 Cal.4th 395, 495 [25 Cal.Rptr.3d 672, 107 P.3d 790] ["There is no requirement that family members confine their testimony about the impact of the victim's death to themselves, omitting mention of other family members."].) Testimony provided by Deputy Lehmann's mother and daughter was similarly admissible because it was not so prejudicial that it rendered the trial fundamentally unfair. (Payne v. Tennessee, supra, 501 U.S. at p. 825.) Assuming without deciding that any of the victim impact testimony was erroneously admitted, any error was harmless beyond a reasonable doubt in light of the overwhelming evidence in aggravation. (Chapman v. California, supra, 386 U.S. at p. 24.)
Defendant alleges that the trial court erred by denying his request to instruct the jury concerning victim impact evidence, and erred by failing to instruct the jury sua sponte regarding victim impact evidence, in violation of his state and federal constitutional rights to due process, a fair trial, and a reliable penalty determination.
In People v. Harris (2005) 37 Cal.4th 310, 358-359 [33 Cal.Rptr.3d 509, 118 P.3d 545], and People v. Ochoa (2001) 26 Cal.4th 398, 445 [110 Cal.Rptr.2d 324, 28 P.3d 78], two cases defendant attempts to distinguish, we concluded that the trial court did not err by refusing to provide an instruction similar to the one requested by defendant here. In People v. Harris, we explained that the requested instruction was "unclear as to whose emotional reaction it directed the jurors to consider with caution—that of the victim's family or the jurors' own." (People v. Harris, supra, 37 Cal.4th at p. 359.) Defendant's requested instruction here suffers from the same defect.
Defendant argues that People v. Harris is distinguishable because the trial court in Harris provided the jury with an instruction concerning victim impact evidence requested by the prosecution, and no such instruction was provided here. In People v. Ochoa, however, we concluded that the jury was adequately instructed pursuant to CALJIC No. 8.84.1. (People v. Ochoa, supra, 26 Cal.4th 398, 455.) Just as in People v. Ochoa, the jury here was given an instruction broadly cautioning it to determine the facts from the evidence presented, to follow the law, and to avoid being swayed by bias or prejudice against defendant. (See CALJIC No. 8.84.1.) We have consistently concluded that neither the trial court's refusal to provide a victim impact evidence instruction worded similarly to defendant's proposed instruction, nor the trial court's refusal to sua sponte provide a similar instruction, constitutes error. Defendant presents us with no reason to reconsider our prior holdings.
Here, defendant claims that evidence of uncharged crimes was introduced in several ways. During his opening statement at the penalty retrial, the prosecutor explained to the jury that defendant abused his wife and had gone to jail in the past when his wife called the police. The prosecution elicited testimony from defendant's former brother-in-law that defendant had "mistreated" his wife during their marriage. During cross-examination of Dr. Verde from the Veterans Administration medical center, the prosecutor elicited testimony concerning 12 incidents of domestic violence referred to in defendant's medical records. The prosecution also elicited testimony from Pastor Young that defendant's wife stated several weeks before the shootings that defendant had threatened to shoot her. Finally, the prosecutor stated during his closing argument that defendant was abusive towards his wife.
The People argue that none of the evidence concerning domestic abuse was introduced as a factor in aggravation under section 190.3, factor (b), but instead was introduced to show defendant's intent to commit the instant crimes. This was elicited through defendant's brother-in-law's testimony concerning defendant's past statements that defendant would not be bothered by shooting a police officer. Similarly, the People claim that testimony elicited during the cross-examinations of Dr. Verde and Pastor Young demonstrated defendant's unchanging nature (presumably to show that defendant continued to believe he would not be bothered by shooting a police officer) and the likelihood that defendant would act on threats made previously, or to show a factor in mitigation, such as defendant's acting while under the influence of extreme mental or emotional disturbance.
The People rely heavily on People v. Rich, in which we concluded that a court need only give a Robertson reasonable doubt instruction "`when
Even if the trial court's failure to provide sua sponte a Robertson instruction constituted error, any error was harmless because it is not reasonably probable that providing the omitted instruction would have altered the verdict. (People v. Brown (1988) 46 Cal.3d 432, 446-449 [250 Cal.Rptr. 604, 758 P.2d 1135]; People v. Avena (1996) 13 Cal.4th 394, 433-435 [53 Cal.Rptr.2d 301, 916 P.2d 1000].) Defendant did not argue during the penalty phase of his trial, and does not argue now, that the evidence concerning the alleged domestic abuse was inaccurate. (See People v. Avena, supra, 13 Cal.4th at p. 433 [uncontroverted other crimes evidence renders failure to give Robertson instruction nonprejudicial].) Indeed, defense counsel alluded to the domestic abuse in his own cross-examination of the People's witness, Pastor Young. Pastor Young testified that defendant's wife would call seeking counseling because she was fearful that defendant would harm her; Pastor Young also testified that defendant brought Pastor Young a gun because he wanted to "remove [it] from [his] home, because [he] want[ed] to work on [his] relationship with Elaine." Far from arguing that evidence concerning the
Defendant requested that the jury be instructed that the absence of any prior felony convictions is a factor in mitigation. The jury was instructed, pursuant to CALJIC No. 8.85, that it must "consider, take into account, and be guided by the following factors, if applicable . . . . C, the presence or absence of any prior felony conviction other than the crimes for which the defendant has been tried in the present proceedings." Defendant alleges that the court's refusal to give a more specific instruction, stating in particular that the absence of a prior felony conviction is a mitigating factor,
Defendant argues that the trial court erroneously refused his request to instruct the jury that it "should not double count aggravating factors which are special circumstances," and that this error violated his rights to due process and a reliable penalty determination under the Eighth and Fourteenth Amendments to the United States Constitution. We disagree. Even if the court erred by failing to provide defendant's requested instruction, we have repeatedly held that no prejudice results from such an error where, as here, the prosecutor does not suggest that double counting aggravating factors is permissible and the jury receives the standard instruction concerning the weighing of aggravating and mitigating factors. (People v. Melton (1988) 44 Cal.3d 713, 774-775 [244 Cal.Rptr. 867, 750 P.2d 741]; see People v. Ayala (2000) 24 Cal.4th 243, 289 [99 Cal.Rptr.2d 532, 6 P.3d 193] [standard instruction does not encourage double counting of aggravating factors]; see also People v. Burney, supra, 47 Cal.4th at p. 267.)
Defendant argues that the jury was improperly permitted to consider the circumstances of the crimes as uncharged violent crimes under section 190.3, factor (b) (factor (b)) in violation of his state and federal constitutional rights to due process, a fair trial, and a reliable penalty determination. Specifically, defendant contends that evidence concerning the events leading up to the shootings of Deputies Lehmann and Haugen, which formed the basis for the additional charged crimes of assault with a deadly weapon of Brown (which was dismissed during trial) and misdemeanor spousal abuse of Elaine Russell (to which defendant pleaded no contest before trial), were improperly considered by the jury as factor (b) evidence. Defendant's claim fails.
Factor (b) permits a jury to consider "[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." The court instructed the jury pursuant to CALJIC No. 8.85, which, with regard to factor (b), informs the jury that it may consider evidence of criminal activity "other than the crime[s] for which the defendant has been tried in the present proceedings." Here, the only evidence about which defendant complains concerns the circumstances of the charged crimes, not criminal activity other than charged crimes and circumstances surrounding them. Accordingly, defendant's claim that the jury was improperly permitted to consider evidence regarding the circumstances of the charged crimes as factor (b) evidence is
Defendant raises a host of federal constitutional challenges to the instructions given during the penalty phase of the trial to preserve them, recognizing that this court has repeatedly rejected similar contentions. Defendant argues that the court erred by failing to instruct the jury that it must find beyond a reasonable doubt that aggravating factors outweigh mitigating factors before it imposes a sentence of death. We have repeatedly rejected this claim, and defendant presents us with no reason to reconsider our prior holdings.
Defendant argues that the concluding instruction given to the jury, a modified version of CALJIC No. 8.88, was flawed because it failed to adequately convey deliberative principles, was misleading and was vague.
Defendant argues that the phrase "so substantial" in the final paragraph of the instruction—that jurors may return a verdict of death if each is "persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants [a judgment of] death" (italics added)—created a vague and directionless standard in violation of the Eighth and Fourteenth Amendments to the United States Constitution. We disagree. As an initial matter, we note that defendant did not request a clarifying instruction; accordingly, any objection he has to the instruction is forfeited. (People v. Arias (1996) 13 Cal.4th 92, 171 [51 Cal.Rptr.2d 770, 913 P.2d 980].) Defendant's claim also fails on the merits. We have consistently held that the "so substantial" language in CALJIC No. 8.88 "is not inadequate or misleading. By advising that a death verdict should be returned only if aggravation is `so substantial in comparison with' mitigation that death is `warranted,' the instruction clearly admonishes the jury to determine whether the balance of aggravation and mitigation makes death the appropriate penalty." (People v. Arias, supra, 13 Cal.4th at p. 171; see also People v. Breaux (1991) 1 Cal.4th 281, 315-316 [3 Cal.Rptr.2d 81, 821 P.2d 585].)
Defendant next contends that the instruction's use of the term "warrants" was inadequate because jurors are called upon to decide whether death is the "appropriate" penalty, not whether it is warranted. We rejected an identical argument in People v. Breaux, concluding that the "contention is spurious." (People v. Breaux, supra, 1 Cal.4th at p. 316; see also People v. Friend (2009) 47 Cal.4th 1, 90 [97 Cal.Rptr.3d 1, 211 P.3d 520] ["The phrases `so substantial' and `warranted' in CALJIC No. 8.88 are not unconstitutionally vague."].) Finally defendant suggests that the instruction was inadequate because it failed to convey to the jury that it must impose a life sentence if it did not find that aggravating factors outweighed mitigating factors. We have consistently concluded otherwise. (People v. Friend, supra, 47 Cal.4th at p. 90; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 124 [17 Cal.Rptr.3d 710, 96 P.3d 30].)
Defendant raises numerous challenges to the jury instructions concerning section 190.3 (CALJIC Nos. 8.85, 8.88, as given), all of which this court has
Defendant also argues that the failure of CALJIC Nos. 8.85 and 8.88 to require written findings deprived him of his rights to due process, meaningful appellate review, and equal protection pursuant to the Eighth and Fourteenth Amendments to the United States Constitution. We have consistently concluded otherwise. (People v. Geier (2007) 41 Cal.4th 555, 620 [61 Cal.Rptr.3d 580, 161 P.3d 104].) Finally, defendant erroneously suggests that California's death penalty scheme denies capital defendants equal protection of the laws; we have repeatedly concluded to the contrary. (People v. Gutierrez, supra, 45 Cal.4th at p. 831; People v. Zamudio (2008) 43 Cal.4th 327, 373 [75 Cal.Rptr.3d 289, 181 P.3d 105].)
Defendant argues that the California capital sentencing scheme's lack of intercase proportionality review violates his rights to be free from the arbitrary and capricious imposition of a capital sentence pursuant to the Eighth and Fourteenth Amendments to the United States Constitution. We have repeatedly rejected similar claims, and are presented with no arguments compelling us to alter our long-standing rule. (People v. Gutierrez, supra, 45 Cal.4th at p. 833; People v. Hoyos (2007) 41 Cal.4th 872, 927 [63 Cal.Rptr.3d 1, 162 P.3d 528].)
Defendant argues that even if individual errors do not warrant reversal, the cumulative effect of multiple errors resulted in prejudice to defendant mandating reversal. We disagree. To the extent we concluded or assumed that the trial court erred, no single error warranted reversal, and we are not persuaded that reversal is warranted when those same nonprejudicial errors are considered collectively.
Defendant's final contention—that his death sentence and California's capital sentencing scheme are inconsistent with international norms, and therefore violate the Eighth and Fourteenth Amendments to the United States Constitution—has been repeatedly rejected by this court. (People v. Curl (2009) 46 Cal.4th 339, 362-363 [93 Cal.Rptr.3d 537, 207 P.3d 2].)
We affirm the judgment.
George, C.J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Corrigan, J., concurred.
The court's opinion, which I have signed, states that the waiting and watching required to support a first degree murder conviction on a lying-in-wait theory need not continue for any particular length of time. For this reason, it rejects defendant's argument that the trial court should have instructed the jury that the period of waiting and watching must be substantial. (Maj. opn., ante, at pp. 1242-1245.) I agree.
I write separately to explain why my concurrence here does not conflict with my concurring and dissenting opinion in People v. Stevens (2007) 41 Cal.4th 182, 214 [59 Cal.Rptr.3d 196, 158 P.3d 763] (Stevens). There, I expressed the view that a period of waiting and watching must be substantial. But in Stevens I was addressing lying in wait as a special circumstance (Pen. Code, § 190.2, subd. (a)(15)) rather than, as here, lying in wait as a form of first degree murder.
As I explained in Stevens, California's death penalty law, which the voters enacted in 1978, contains a list of special circumstances that make a first degree murder punishable by death. (Pen. Code, § 190.2, subd. (a).) The list includes lying in wait, but not premeditation and deliberation. In this way, the provisions of our death penalty law reflect a determination by the voters that lying-in-wait murder is "more heinous than premeditated murder." (Stevens, supra, 41 Cal.4th at p. 215 (conc. & dis. opn. of Kennard, J.).) Thus, I concluded, the voters must have intended that the lying-in-wait special circumstance be defined "in a manner that differed significantly from premeditated murder." (Ibid.)
To make that important distinction, I concluded that the waiting and watching required to support the lying-in-wait special circumstance must
