A jury convicted defendant Dung Dinh Anh Trinh (Trinh) of three counts of first degree murder with a multiple-murder special circumstance, one count of attempted murder, and various firearm enhancements for the shootings and attempted shooting of four staff members at an Anaheim hospital. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(3), 664.)
On the morning of September 14, 1999, Trinh's mother Mot Trinh (Mot) died of cardiac arrest. A few hours later, shortly after 10:30 a.m., Trinh entered the West Anaheim Medical Center (West Anaheim), where Mot had been a patient in May and June 1999. He was armed with two .38-caliber handguns and more than 100 rounds of ammunition.
Hospital employees saw Trinh walk down a second-floor hallway and turn into the office of nursing supervisor Mila Salvador. Salvador was in conversation with a nurse's aide, Marlene Mustaffa. Trinh shot Mustaffa in the head from a foot away. He then pointed a gun at Salvador and fired but missed. Trinh immediately left. Salvador barred the door to her office, attempted to resuscitate Mustaffa, failed, and called 911.
The firing of shots triggered a "code gray" announcement over the hospital public address system, a warning that generally signaled the presence of an unruly patient. The announcement directed male personnel to respond immediately to the progressive care unit on the second floor. Andrew Armenta, working on the first floor, saw Vincent Rosetti running toward a stairwell leading to the second floor and ran behind Rosetti to the stairwell. At the
Staffers Norman Bryan and Ronald Robertson also responded to the code gray from the first floor. As Bryan and Robertson approached the stairwell to the second floor, they heard a gunshot. Bryan turned to evacuate employees, while Robertson ran to close off the first-floor lobby doors. As Robertson was trying to close the doors, Trinh approached him and shot him in the chest. Robertson grabbed Trinh and they fell to the ground. Trinh shot Robertson again. Staffer John Collins and patient Joseph Nuzzo joined in and together pinned down Trinh. While he was being held, Trinh said twice, "They killed my mother" or "You killed my mother." Two handguns, a pouch, and bullets were scattered across the floor; staffer George Wilhelm picked up the guns and locked them in an office. Robertson was taken to the emergency room, where he died.
Police responding to the scene took Trinh into custody. After being placed in the back of a patrol car, Trinh stated angrily, "You American people kill my mother. Now I kill you. You kill my people. I kill you. You know, you just kill my mother. Right now she lay at Martin Luther Hospital by herself. You kill her."
A search of Trinh's truck revealed a map with Martin Luther Hospital circled on it and empty boxes of ammunition. Examination of the handguns and ammunition captured inside West Anaheim showed that one .38-caliber handgun contained spent casings while the other was fully loaded. The pouch Trinh had been carrying contained more than 100 additional rounds of.38-caliber ammunition.
The defense conceded Trinh had shot and killed Mustaffa, Rosetti, and Robertson, and had attempted to shoot Salvador, but presented evidence regarding stressors in Trinh's life that it argued mitigated Trinh's culpability to less than first degree murder.
Trinh and his mother Mot emigrated from Vietnam in 1975, when Trinh was roughly 18. As of 1999, Trinh and his mother had lived together in an apartment in Anaheim for a long time.
In late May 1999, Mot, then 72, collapsed and lost consciousness while Trinh was taking her to the bathroom. She was transported to West Anaheim and stayed there approximately one month. During that time, she underwent
Thereafter, Mot was transferred to La Palma Intercommunity Hospital (La Palma) for an additional month of care and rehabilitation. Trinh was again with her on a daily basis, translating for her and learning how to assist her with basic tasks. In August, following Mot's discharge, Trinh quit his job to care for her full time. Weeks later, he declared bankruptcy.
Around 5:40 a.m. on the morning of September 14, Trinh called 911 and reported that Mot had stopped breathing and had blood coming from her mouth. Trinh received instructions on CPR and paramedics arrived shortly to find him attempting to revive his mother. The paramedics told Trinh his mother's condition was very serious and gave him an address and directions to Martin Luther Hospital, where they were transporting her by ambulance. The directions were correct but the address was wrong; when Trinh arrived at 8:00 a.m., Mot had already died of cardiac arrest. Trinh became very distraught. Asked if anyone needed to be called, Trinh replied that everyone was still in Vietnam.
The defense presented extensive expert testimony concerning Vietnamese family structure, Vietnamese distrust of Western medicine, the need for medically and culturally knowledgeable interpreters to explain procedures, the nature of caregiver burnout, depression among Vietnamese immigrating to the United States in the 1970's, and the grieving process.
Trinh was charged with three counts of first degree murder with special circumstances (multiple murder and lying in wait) and one count of attempted murder. (§§ 187, 189, 190.2, subd. (a)(3), (15), 664, subd. (a).) He was additionally charged with firearm use enhancements for each count. (§§ 12022.5, subd. (a), 12022.53, subds. (c), (d).) Before trial, the court dismissed the lying-in-wait special circumstance on the prosecution's motion.
A jury convicted Trinh on all first degree and attempted murder counts and found the multiple-murder special circumstance true. It also found the firearm use enhancements true.
Trinh's first jury was unable to reach a verdict on penalty, hanging 10 to two in favor of life. A second jury hung as well, 11 to one in favor of death.
In the third penalty trial, the People relied on the circumstances of the crime and victim impact evidence.
Because the jury had not heard the guilt phase evidence, the prosecution presented anew testimony concerning the shootings. It supplemented that evidence by reading back Trinh's testimony from the second penalty phase trial. In that testimony, Trinh testified that he entered the hospital with a clear mind and a plan, executed three people, felt no remorse, would not apologize, and accepted the consequences. The people he killed, he killed because they looked familiar or got in his way. He originally made his plans when he checked his mother out of La Palma in July, but did not act then because he needed to continue to care for her. Once paramedics took his mother away on the morning of September 14, he knew she would die, so he retrieved his ammunition, loaded his guns, and drove to Martin Luther Hospital and then to West Anaheim. Had he not been stopped at West Anaheim, he would have driven on to La Palma and killed people there, then committed suicide. He wished to be sentenced to death because he had no reason left to live and wanted to join his mother in the next life.
The prosecution also introduced victim impact evidence from Mustaffa's husband, Rosetti's mother, siblings, and daughters, Robertson's wife and son, and Mila Salvador herself.
The defense re-presented its guilt phase expert testimony concerning Vietnamese family structure, Vietnamese distrust of Western medicine, the need for medically and culturally knowledgeable interpreters to explain procedures, the nature of caregiver burnout, depression among Vietnamese immigrating to the United States in the 1970's, and the grieving process.
A witness who knew Trinh growing up testified that in Vietnam he had few friends and family aside from Mot. Trinh and Mot were placed in a refugee camp in Guam in 1975 and immigrated to the United States from there. Witnesses testified that after immigrating, Trinh had few if any friends and no family in the United States, spent all his spare time with his mother, and never married because his entire focus was on taking care of her. Trinh was described as a reliable tenant and as an excellent employee at the various restaurants where he worked.
Trinh testified on his own behalf, as he had at each of the penalty phase trials. In a statement to the jury, he declared he entered West Anaheim
Counsel contrasted this testimony with taped interviews of Trinh on the day of the shootings and during the first penalty phase trial. In the taped interviews, Trinh explained that when Mot was hospitalized, some nurses gave her poor care and laughed at her, so after Mot's release from La Palma, he formed a plan to kill those nurses at West Anaheim and La Palma. He waited to carry the plan out because he still needed to take care of Mot.
On September 14, Trinh loaded his guns and placed them and ammunition in his truck before driving to Martin Luther Hospital because he knew Mot was going to die. When he arrived at Martin Luther, he did not shoot anyone because he did not hold them responsible for his mother's condition. He stayed with his mother's body for about one hour. Upon leaving Martin Luther, he drove to West Anaheim; his mother had died, and those who had mistreated her would have to pay. Upon arriving, he walked into the hospital looking for staff he recognized who had mistreated or laughed at his mother. Seeing no one he recognized and not wanting to kill innocent people, he walked out and sat in his truck, then walked in a second time and, when he recognized Mustaffa and Salvador, shot at them. He retreated the way he had come, taking the stairs because he thought the elevators might be shut down. He shot Rosetti and Robertson only because they were preventing him from escaping; he wanted to leave and get to La Palma, carjacking someone if necessary because he believed his truck's description would be broadcast. As he was being subdued, Trinh said, referring to the second-floor staff, "Your guy[s] kill my mother."
Trinh expressed extreme regret for shooting Rosetti and Robertson and hoped they would survive. He asked for forgiveness if they died because he did not intend to kill them. Trinh did intend to kill Mustaffa, however, and expressed no regret at shooting at her or Salvador.
Trinh's first penalty phase testimony was also read. Trinh said nothing he could say would bring anyone back. He walked into West Anaheim with a plan, took three innocent lives, and accepted the consequences for his actions. Trinh closed his narrative: "To all of you folks, the famil[ies] who lost your loved one[s] because of me, I am willing to pay back everything I got, that is, my life. Life for life, eyes for eyes. I owe you my life because of their death.
After two hung juries, Trinh's third penalty phase jury returned a verdict of death.
The day after the Anaheim shootings, a man entered a church in Fort Worth, Texas, and shot 14 people, killing seven of them, before committing suicide. These two incidents followed by less than five months the Columbine High School shootings, in which two students killed 13 people and injured roughly two dozen more before committing suicide. (See Cullen, Columbine (2009) pp. 4-5, 349-353, 372.) On September 16, 1999, two days after the Anaheim shootings and one day after the Fort Worth shootings, Orange County District Attorney Tony Rackauckas announced a new charging policy for public rampage killings. Where formerly the decision whether to charge special circumstances had been made after review by a district attorney's office committee, including potentially input from defense counsel regarding mitigating circumstances, Rackauckas announced public rampage killings would automatically be charged as special circumstance cases. Pursuant to this policy, Trinh was charged with special circumstances murder without a special circumstance committee convening.
Trinh moved to recuse the entire Orange County District Attorney's Office. (§ 1424.) Trinh argued that Rackauckas was personally invested in the case because his father had recently been hospitalized at, and had just a few days before been released from, the hospital where the shootings occurred, and the
While Trinh asserts he has established numerous circumstances giving rise to a conflict of interest, our review of the briefs and record discloses only one alleged conflict: District Attorney Rackauckas's father was a former patient at West Anaheim, the hospital where the shootings occurred. This happenstance, Trinh argues, rendered Rackauckas emotionally invested in the case and was the true reason for his decision to depart from past practice in deciding this case should automatically be charged as a death case. Trinh's remaining allegations, e.g., that Rackauckas failed to exercise discretion by adopting an automatic death policy, that he acted out of personal animus toward Trinh, and that he could be vindictive toward those in his office who disagreed with him on the implementation of the new policy, do not show any independent conflict but are instead supposed consequences flowing from Rackauckas's anger over the location of the shootings.
Substantial evidence supports that determination. Rackauckas submitted a declaration denying any connection between his father's hospitalization and his treatment of Trinh: "My decision to exercise my prosecutorial discretion [by adopting a blanket policy for mass public killings] was entirely unaffected by the fact that I had visited my father at West Anaheim Medical Center a few days before the killings. My father was discharged from the hospital before the day of the shooting and, to my knowledge, neither of us knew any of the victims. The crime was no more upsetting to me than it would have been had my father never been a patient at the hospital." Instead, Rackauckas viewed it as his duty to deter the indiscriminate shooting of strangers in public places and adopted the automatic policy as a result. The trial court was entitled to credit Rackauckas's sworn statements.
In response, Trinh points to evidence he submitted that he claims renders it more likely Rackauckas truly was motivated to intercede by his father's hospitalization. The record includes a declaration from a former assistant district attorney stating that Rackauckas was particularly upset by the killings at West Anaheim because his father had been hospitalized there; he expressed concern about what the media would do if it discovered his father had been a
When renewing his recusal motion before the second penalty phase trial, Trinh submitted a new grand jury report highly critical of various aspects of Rackauckas's conduct in office. None of the criticisms shed new light on Rackauckas's involvement in the prosecution of Trinh. The trial court expressly recognized as much, and its decision to again deny recusal was not an abuse of discretion. Before the third penalty trial, Trinh orally renewed his motion without submitting additional evidence; accordingly, the third denial must be upheld for the same reasons as the first two denials.
Trinh presented a heat of passion defense, claiming he acted upon provocation sufficient to reduce his culpability from first degree murder to second degree murder or manslaughter. (See People v. Carasi (2008) 44 Cal.4th 1263, 1306 [82 Cal.Rptr.3d 265, 190 P.3d 616].) The parties agreed the trial court would instruct the jury with the standard instruction on provocation and heat of passion. The People requested an additional special instruction clarifying that any relevant provocation must come from, or reasonably be believed to come from, the victim. (See People v. Moye (2009) 47 Cal.4th 537, 549-550 [98 Cal.Rptr.3d 113, 213 P.3d 652].) For his part, Trinh sought a pinpoint
Nor was the proposed instruction duplicative. Until our decision in Beltran "clarif[ied] what kind of provocation will suffice to constitute heat of passion and reduce a murder to manslaughter" (People v. Beltran, supra, 56 Cal.4th at p. 938), whether the provocation must be such as to cause an ordinary person of average disposition merely to act rashly or to kill was uncertain. The instructions read to the jury did not specifically address that point.
Finally, the proposed instruction was not argumentative. In its entirety, the instruction attempted only to clarify that Trinh need not prove provocation such as would cause a reasonable person to kill, but only provocation such as would cause a reasonable person to act rashly and from passion rather than judgment. It thus focused the jury on Trinh's theory of the case — that a defendant who was provoked to act rashly by preceding events could have his culpability mitigated — without impermissibly focusing the jury on any particular evidence or demanding favorable inferences from particular facts in the record. Consequently, Trinh was entitled to have the instruction given. (See People v. Ledesma (2006) 39 Cal.4th 641, 720 [47 Cal.Rptr.3d 326, 140 P.3d 657].)
The trial court and parties agreed to instruct the jury with CALJIC Nos. 2.60 and 2.61, prohibiting the jurors from drawing any inferences from or attaching evidentiary significance to Trinh's election not to testify. The court
To controvert these holdings, Trinh relies on People v. Osband (1996) 13 Cal.4th 622, 686-688 [55 Cal.Rptr.2d 26, 919 P.2d 640], which stands for the unexceptional proposition that correct written instructions may cure any oral
On this record, however, that error was harmless. The jury received the requested instructions orally. We presume they heard and followed them. (People v. Pearson (2013) 56 Cal.4th 393, 414 [154 Cal.Rptr.3d 541, 297 P.3d 793]; People v. Whalen (2013) 56 Cal.4th 1, 88 [152 Cal.Rptr.3d 673, 294 P.3d 915]; People v. Homick (2012) 55 Cal.4th 816, 867 [150 Cal.Rptr.3d 1, 289 P.3d 791].) Trinh has pointed to nothing in the record — no evidence of confusion or indications this jury failed to understand or apply the instructions read to it — that would establish a reasonable probability of a more favorable outcome had the jury received written copies of CALJIC Nos. 2.60 and 2.61. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; People v. Seaton, supra, 26 Cal.4th at p. 674; People v. Cooley (1993) 14 Cal.App.4th 1394, 1399-1400 [18 Cal.Rptr.2d 346]; People v. Blakley (1992) 6 Cal.App.4th 1019, 1023-1024 [8 Cal.Rptr.2d 219].)
Trinh's first two penalty phase trials ended in mistrials with the jury deadlocked. Before a third penalty trial, Trinh moved to have the trial court impose a sentence of life without possibility of parole. (§ 190.4, subd. (b); see
Trinh's motion argued that a life sentence was the appropriate punishment based on the same factors a jury would consider, including Trinh's life history and demonstrated character and the role that extreme emotional grief played in the shootings. The motion also argued that Trinh had fabricated testimony in the second penalty trial to increase the chance of a death sentence and would do so again in a third trial. Finally, counsel stressed that the original jury hung 10 to two in favor of life and the second jury was divided only eight to four in favor of death until, allegedly, numerous jurors engaged in misconduct and swung the final division to 11 to one.
The trial court confirmed the People desired a retrial. It then framed the central question before it as "whether or not 12 reasonable citizens will reach a unanimous verdict" — in other words, whether the evidence in the case was such that a verdict would ever be reached, or whether there was a significant risk retrial would yield only another hung jury. Against those probabilities the trial court weighed the cost to the families of the victims. Ultimately acknowledging that the matter required a "[v]ery hard decision," the trial court ordered a retrial.
Trinh finds two faults in the trial court's decisionmaking process. First, he contends the court failed to consider Trinh's mitigating evidence. However,
Second, Trinh argues that the second jury's ultimate 11-to-one division in favor of death was the product of juror misconduct, and the trial court failed to account for that fact when weighing the jury's vote as evidence in favor of possible unanimity the next time around. However, the trial court was well aware of Trinh's allegations of misconduct; they were fleshed out at length in Trinh's moving papers and oral argument. Indeed, before ruling, the court expressly acknowledged the misconduct allegations were relevant to its decision. It simply did not find them dispositive on the ultimate question before it, which was not whether a past juror or jurors had engaged in misconduct, but whether a future jury, properly instructed and warned against similar acts, might arrive at a unanimous verdict, and whether the likelihood of such a verdict was sufficient to justify further costs to the judicial system and to all involved. The trial court's determination that a unanimous verdict was sufficiently likely to warrant a third penalty trial was neither arbitrary nor capricious.
In addition to seeking a favorable exercise of discretion against retrial, Trinh argued to the trial court before both his second and third penalty phase trials that permitting a retrial would be unconstitutional. His motions were denied. Trinh renews his constitutional objections here, arguing that retrial violated his rights to due process and equal protection and the prohibition against cruel and unusual punishment. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 1, 7, 15-17.)
Trinh argues as well that even if not facially unconstitutional, the penalty phase retrial statute is unconstitutional as applied to him. He contends the trial court should have known a third penalty phase would not be "free of serious error," and that in fact his penalty retrial was not. However, as will appear, we reject Trinh's specific claims of penalty phase error (post, at pp. 244-249), and he identifies no errors beyond these that would render retrial unconstitutional. His as-applied challenge thus fails as well.
Both Trinh and the People focus initially on In re Anderson (1968) 69 Cal.2d 613, 621-628 [73 Cal.Rptr. 21, 447 P.2d 117], in which we considered equal protection and due process challenges to an earlier version of California's death penalty scheme and found them without merit, explaining that as with any number of other portions of the Penal Code granting trial judges unfettered discretion, a "statute mitigating capital punishment is not essentially unfair to the wrongdoer for failure to specify standards for the exercise
It does not follow, however, that the retrial statute is unconstitutional for failing to articulate standards a trial court should apply. The statute comes into play only after a jury has determined a defendant is death eligible by finding true beyond a reasonable doubt one or more special circumstances, and before a jury has resolved whether death or life is the more appropriate penalty based on careful consideration of a wealth of aggravating and mitigating circumstances. (§§ 190.2, 190.3.) These twin safeguards — a careful narrowing of the eligible pool, followed by identification of those deserving death through the application of guided discretion — have consistently been held sufficient to render California's death penalty scheme constitutional, by both the United States Supreme Court and this court. (E.g., Tuilaepa v. California (1994) 512 U.S. 967, 971-980 [129 L.Ed.2d 750, 114 S.Ct. 2630]; People v. Williams (2013) 56 Cal.4th 165, 201 [152 Cal.Rptr.3d 778, 294 P.3d 1005].) Section 190.4, subdivision (b), implicates neither the initial eligibility question nor the ultimate question whether death must be imposed. Instead, it affords some death-eligible defendants, those whose penalty phase trials have twice ended in hung juries or mistrials, the opportunity to have a trial judge remove them from the death-eligible pool. No constitutional provision guarantees any death-eligible defendant such a right; the Legislature could have, as it did for defendants whose juries had hung only once, made retrial a matter of course.
During jury selection for Trinh's third penalty trial, the prosecution exercised a peremptory challenge against a Vietnamese-American prospective juror, N.V. Trinh challenged this exercise of a peremptory as race based. The trial court ruled Trinh had made out a prima facie case of discrimination: N.V. "voir dired very well," gave answers "similar to those offered by other jurors," and shared an ethnicity with Trinh. After hearing the prosecutor's reasons and affording Trinh an opportunity to argue, however, the trial court denied the motion. The jury as seated included no Vietnamese-Americans. Trinh renews his objection on appeal, arguing that he was deprived of the right to equal protection and trial by a representative jury. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 16.) We find no error.
"`There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination.' [Citation.]" (People v. Dement (2011) 53 Cal.4th 1, 19 [133 Cal.Rptr.3d 496, 264 P.3d 292]; see Purkett v. Elem (1995) 514 U.S. 765, 768 [131 L.Ed.2d 834, 115 S.Ct. 1769].) Under a now familiar three-step process, to carry this burden a defendant must first "make out a prima facie case `by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citation.] Second, once the defendant has made out a prima facie case, the `burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, `[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination.'" (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410], fn. omitted.) The defendant's ultimate burden is to demonstrate that "it was more likely
The prosecutor explained his decision to strike N.V. as based on three considerations. First, N.V. had reached middle age without ever marrying or having children. Second, he was a postal worker. Third, N.V.'s questionnaire revealed no opinions on the death penalty, and in voir dire the prosecutor was unable to get him to elaborate.
Challenging these reasons as pretextual, Trinh asks us to conduct a comparative analysis with seated jurors Trinh contends shared these characteristics. (See People v. Lenix (2008) 44 Cal.4th 602, 622 [80 Cal.Rptr.3d 98, 187 P.3d 946].) We have explained: "`[T]he trial court's finding is reviewed on the record as it stands at the time the [Batson/Wheeler] ruling is made.' (Lenix, supra, 44 Cal.4th at p. 624.) `If the defendant believes that subsequent events should be considered by the trial court, a renewed objection is required to permit appellate consideration of these subsequent developments.' (Ibid.)" (People v. Chism (2014) 58 Cal.4th 1266, 1319.) Eight of the 12 jurors (Nos. 1-5, 8, 10 & 11) and all four alternates were voir dired and seated after the Batson/Wheeler motion was denied. If Trinh believed the postruling responses of these jurors were relevant, he should have renewed that motion to avoid forfeiture. (Chism, at p. 1319.)
Nevertheless, as in People v. Chism, supra, 58 Cal.4th 1266, we have examined the entire record, including conducting a comparative analysis with all seated jurors. We have also looked at other prospective jurors the prosecution chose to strike. (See Snyder v. Louisiana (2008) 552 U.S. 472, 478 [170 L.Ed.2d 175, 128 S.Ct. 1203] [court may consider other strikes in
The combination of age, marital status and parental status. The prosecutor did not suggest that N.V.'s age or unmarried, childless status alone disqualified him, but that the combination was an issue: a juror who was 45 and single and had never been married or had children was "not the type of juror I would keep." (See People v. Gray (2005) 37 Cal.4th 168, 189 [33 Cal.Rptr.3d 451, 118 P.3d 496] ["a party may decide to excuse a prospective juror for a variety of reasons, finding no single characteristic dispositive"].) Indeed, these demographics distinguished N.V. from every other member of the jury. Among the 16 jurors and alternates, 15 had married, 10 were married with children, and the lone unmarried and childless juror was much younger — 22 — and had had correspondingly less time to decide whether to have a family. The explanation is also consistent with the prosecutor's use of other strikes: the prosecutor used peremptories to remove two other middleaged, unmarried, and childless prospective jurors.
No other seated jurors had connections to the postal service. Trinh correctly notes that one of the alternates, Alternate Juror No. 4, was also a postal employee. However, in examining the four alternate jurors, the prosecutor took a markedly different approach than when selecting the first 12 jurors, engaging them in a much more cursory voir dire and failing to exercise any strikes, in contrast to using 17 peremptories in the selection of the main jury. As well, the other factors expressly relied upon by the prosecutor distinguished N.V. from Alternate Juror No. 4. Unlike N.V., Alternate Juror No. 4
Death penalty views. As a third basis for excusing N.V., the prosecutor explained that N.V.'s questionnaire revealed no opinion about the death penalty, and he was unable in subsequent voir dire to extract any further opinion. The record supports this explanation. Asked his general feelings about the death penalty, N.V. wrote, "None." Asked more specifically whether the death penalty was used too often, too seldom, or randomly, N.V. wrote, "I don't have any opinion, I don't really pay attention [to] the death penalty." To every other one of the dozen or so questions that called for an opinion about the death penalty, N.V. answered summarily "yes" or "no."
Trinh points to five other jurors and one alternate he contends were equally reticent about their death penalty views, but the record does not support his claim. Unlike N.V., none of the five seated jurors responded exclusively with one-word answers, and all at one point or another provided far more insight into their actual thinking. Juror No. 1 confirmed that in "the appropriate circumstances [the death penalty] has its place" and later, in denying any conscientious objection, affirmed that the death penalty "has merit in the right circumstances." She also identified crimes for which she thought death should be automatic. Juror No. 2 indicated that "[i]n some cases, the death penalty is absolutely warranted" and listed examples. Juror No. 3 offered questionnaire
Trinh is correct that Alternate Juror No. 1's responses concerning the death penalty were nearly as sparse as those of N.V., but unlike N.V., the alternate did offer her affirmative belief that death should be "an option" for some cases. Moreover, as indicated, the prosecutor invested much less energy in vetting the alternates. Alternate Juror No. 1 was the last juror chosen; Trinh's counsel joked at the start of the very brief voir dire both sides conducted, "Do you [Alternate Juror No. 1] have any idea how many people are going to buy you lunch if we just accept you?" That the prosecutor accepted Alternate Juror No. 1, a married mother of two, does not cast doubt on the nondiscriminatory reasons he gave for choosing to strike N.V.
Before the third penalty trial, Trinh moved to limit both the scope of the People's victim impact evidence and the number of witnesses per victim. The
Finally, Trinh objects that allowing victim impact testimony exposed the jury to an outburst by one of the witnesses, Suzanne Robertson, in response
As part of his motion before the third penalty trial to limit the scope of victim impact evidence, Trinh identified particular questions he thought were unduly likely to prompt irrelevant or inflammatory responses. The trial court agreed, noting that questions such as "How did you learn of the murder?," "What happened at the funeral?," "What was the hardest thing to do after you found out he was murdered?," and "Anything else you need to tell us?" had consistently yielded irrelevant or improper responses during the second penalty trial, and defense objections to these questions would be sustained.
When it came time to introduce victim impact evidence, the prosecutor disregarded the foregoing admonition and proceeded in short order to ask each of the first five witnesses, and six of the first seven, versions of one or more of the foreclosed questions. Each time, Trinh's counsel objected. Each time, the objection was sustained.
However, Trinh has not shown the misconduct resulted in prejudice. Generally, there is no prejudice where an objection is made and sustained. (People v. Pearson, supra, 56 Cal.4th at p. 427; People v. Tully, supra, 54 Cal.4th at p. 1038; People v. Fuiava (2012) 53 Cal.4th 622, 687 [137 Cal.Rptr.3d 147, 269 P.3d 568]; People v. Dykes (2009) 46 Cal.4th 731, 764 [95 Cal.Rptr.3d 78, 209 P.3d 1].) Because the trial court sustained each objection, no inadmissible testimony was heard by the jury. Nor do we agree with Trinh's contention that the posing of these questions alone implied to the jury that the prosecutor possessed additional information about unspecified, undisclosed devastating impacts from Trinh's acts. Although the repeated asking of these questions was clear misconduct, the consequences of the improper questions fell far short of "infect[ing] the trial with such unfairness as to render the subsequent conviction a denial of due process" (People v. Avila (2009) 46 Cal.4th 680, 711 [94 Cal.Rptr.3d 699, 208 P.3d 634]), and there is no reasonable probability they influenced the verdict (see People v. Turner (2004) 34 Cal.4th 406, 433 [20 Cal.Rptr.3d 182, 99 P.3d 505]).
Before sentencing, Trinh moved for a new trial on various grounds. (See § 1181.) The trial court denied the motion. On appeal, Trinh renews his argument with respect to three of these grounds. We review for an abuse of discretion (People v. Homick, supra, 55 Cal.4th at p. 894) and conclude the trial court did not err.
Trinh's remaining new trial claim rests on an incident of spectator misconduct. As has been mentioned, during direct examination, victim impact witness Suzanne Robertson, the widow of Ronald Robertson, responded directly to a defense counsel objection: "This is a never-ending story. [¶] I am real tired of your objections." According to a defense investigator's declaration, Derek Robertson, Ronald and Suzanne's son, also called out from the audience, "`[S]hut up, bitch.'" In the investigator's opinion, the remark was directed at the male cocounsel for Trinh who interposed the objection.
Trinh contends the trial court should in any event have investigated sua sponte whether the jury had heard Derek Robertson's comment once the court learned of it. However, the court reasonably could have decided the single three-word remark was so de minimis that even if the jury had heard it, there simply was no possibility it would affect the verdict and prejudice Trinh. (People v. Myles, supra, 53 Cal.4th at p. 1215 [spectator misconduct
Following the third penalty phase trial and before sentencing, Trinh moved on constitutional grounds to have the trial court set aside the death verdict and impose a sentence of life without parole. Counsel argued that over the course of three trials, Trinh had learned how best to tailor his testimony to ensure the jury would return his desired verdict, death, and accordingly the verdict was a product of Trinh's fabrications and an unreliable and unfair trial. The People opposed the motion as baseless, and the trial court summarily denied it. Trinh argues this was error, in violation of his rights to due process and a fair and reliable trial. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 1, 7, 13, 15-17, 22.)
These principles apply fully here. Granting Trinh's counsel's contention that Trinh's testimony at the third penalty trial was calculated to persuade the jury to vote for death, we note that the jury was expressly instructed not to abdicate its responsibilities and simply accede to Trinh's wishes.
Trinh argues the trial court erred by failing to address the merits of his motion, but the court was not obligated to explain in any detail the reasons for its ruling, which was manifestly correct under settled precedent that bound it. The court afforded counsel an opportunity to argue the motion; when counsel declined and submitted on the papers, the court's summary denial was sufficient to dispose of the motion (see In re Podesto (1976) 15 Cal.3d 921, 937 [127 Cal.Rptr. 97, 544 P.2d 1297] [recognizing that the requirement of a statement of reasons from a trial court is the exception rather than the rule]; cf. People v. Kelly (2006) 40 Cal.4th 106, 112-117 [51 Cal.Rptr.3d 98, 146 P.3d 547] [discussing the contrasting constitutional requirement that appellate courts state their reasons when disposing of a cause]).
Trinh also argues that People v. Webb, supra, 6 Cal.4th 494, and People v. Guzman, supra, 45 Cal.3d 915, are distinguishable because Trinh's testimony was more inflammatory than in those cases and tantamount to a waiver of his right to a fair trial, and because the trial court was on notice from the previous penalty trials that Trinh would seek to inject irrelevant and untrue statements into his testimony and should have barred retrial to stop him. We find no basis for a distinction. True, Trinh implicitly asked the jury for a death sentence, saying that he "execute[d] three of your fellow U.S. citizen[s]" and "accept[ed]" the same in return and telling the jury to "Do your job." But this is little different from the testimony in Webb and Guzman, in which the defendants went so far as to explicitly ask for death. (Webb, at p. 513; Guzman, at pp. 929-933.) Trinh's counsel presented a full case in mitigation. Trinh's testimony did not amount to a waiver of a fair trial and deprive the state of its interest in a reliable penalty determination. (See
Consequently, we adhere to our prior rulings in People v. Webb, supra, 6 Cal.4th 494, and People v. Guzman, supra, 45 Cal.3d 915, that a defendant's request for death does not irremediably undermine the reliability of the penalty phase trial. Indeed, to conclude otherwise would create a perverse "Catch-22" in which a defendant, by testifying in an inflammatory fashion in a way superficially intended to ensure a death sentence, could thereby become entitled to a life sentence. The trial court did not err in refusing Trinh's request to substitute a sentence of life without possibility of parole in place of the jury's death verdict.
Trinh contends that even if we do not conclude any individual error during the pretrial, guilt, or penalty phase mandates reversal, the cumulative effect of the alleged errors denied him due process and compels reversal. We disagree. The refusal of a heat of passion pinpoint instruction, the failure to provide the jury with copies of CALJIC Nos. 2.60 and 2.61, and the prosecutor's repetition of improper questions did not prejudice Trinh when considered in combination any more than they did when considered individually. Consistent with our review of defendant's individual claims, we find no cumulative error occurred.
Finally, Trinh raises a series of challenges to the constitutionality of California's death penalty. We have rejected each before, and because Trinh offers no compelling arguments in favor of reconsidering these rulings, we do so again.
Neither the failure to impose a burden of proof on the ultimate question of life or death, nor the absence of an instruction that there is no burden of proof, is unconstitutional. (People v. Linton, supra, 56 Cal.4th at p. 1215; People v. McKinnon, supra, 52 Cal.4th at p. 698; People v. Taylor, supra, 48 Cal.4th at p. 658.) Nothing in the state or federal Constitution requires that the penalty jury (1) issue written findings, (2) unanimously agree on any particular aggravating circumstances, or (3) find that aggravating factors outweigh mitigating factors beyond a reasonable doubt. (People v. Homick, supra, 55 Cal.4th at pp. 902-903; People v. Valdez, supra, 55 Cal.4th at pp. 179-180; People v. Gamache, supra, 48 Cal.4th at pp. 406-407.) We have concluded as well that Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348], Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556, 122 S.Ct. 2428], Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531], and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856], cases which impose procedural constraints on factfinding in criminal trials, do not require reexamination of these conclusions: "[T]he ultimate determination of the appropriateness of the penalty and the subordinate determination of the balance of evidence of aggravation and mitigation do not entail the finding of facts that can increase the punishment for murder of the first degree beyond the maximum otherwise prescribed. Moreover, those determinations do not amount to the finding of facts, but rather constitute a single fundamentally normative assessment [citations] that is outside the scope ..." of Apprendi and its progeny. (People v. Griffin (2004) 33 Cal.4th 536, 595 [15 Cal.Rptr.3d 743, 93 P.3d 344]; see People v. Lightsey, supra, 54 Cal.4th at p. 731; People v. McDowell, supra, 54 Cal.4th at p. 443; People v. Jones (2012) 54 Cal.4th 1, 86 [140 Cal.Rptr.3d 383, 275 P.3d 383].)
"CALJIC No. 8.88's use of the words `so substantial,' its use of the word `warrants' instead of `appropriate,' ... and its failure to instruct the jury on a `presumption of life' does not render the instruction invalid." (People v. Rountree (2013) 56 Cal.4th 823, 862-863 [157 Cal.Rptr.3d 1, 301 P.3d 150]; see People v. Linton, supra, 56 Cal.4th at p. 1211; People v. Homick, supra, 55
Neither the state nor the federal Constitution requires intercase proportionality review, also known as comparative proportionality review. (People v. Homick, supra, 55 Cal.4th at p. 903; People v. Valdez, supra, 55 Cal.4th at p. 180; People v. Tully, supra, 54 Cal.4th at p. 1068.) Nor does the equal protection clause require California to include in its capital sentencing scheme every procedural protection provided noncapital defendants. (Valdez, at p. 180; Tully, at p. 1069; People v. Thomas, supra, 54 Cal.4th at p. 949.)
Trinh's argument that California's regular use of capital punishment violates international norms of human decency and thus the Eighth Amendment to the United States Constitution fails "because California does not employ capital punishment in such a manner. The death penalty is available only for the crime of first degree murder, and only when a special circumstance is found true; furthermore, administration of the penalty is governed by constitutional and statutory provisions different from those applying to `regular punishment' for felonies. (E.g., Cal. Const., art. VI, § 11; §§ 190.1-190.9, 1239, subd. (b).)" (People v. Demetrulias (2006) 39 Cal.4th 1, 43-44 [45 Cal.Rptr.3d 407, 137 P.3d 229]; see People v. Homick, supra, 55 Cal.4th at p. 904; People v. Tully, supra, 54 Cal.4th at p. 1070; People v. Thomas, supra, 54 Cal.4th at p. 950.) His argument that application of the death penalty in this particular case violates international law fares no better; it hinges on his previous assertions that his trial was infused with prejudicial constitutional violations. As his trial was not, the conclusion that international norms were also violated fails. (People v. Nunez and Satele (2013) 57 Cal.4th 1, 62 [158 Cal.Rptr.3d 585, 302 P.3d 981]; People v. Lopez (2013) 56 Cal.4th 1028, 1084 [157 Cal.Rptr.3d 570, 301 P.3d 1177]; Homick, at p. 904; Tully, at p. 1070.)
We affirm the trial court's judgment in its entirety.
Cantil-Sakauye, C. J., Baxter, J., Chin, J., Corrigan, J., Liu, J., and Kennard, J.,
The court properly rejects defendant's claim that the prosecutor's strike of Prospective Juror N.V. was motivated by discriminatory
As today's opinion explains, the prosecutor gave credible, race-neutral reasons for dismissing N.V. (Maj. opn., ante, at pp. 241-244.) However, in denying defendant's Batson motion, the trial court relied not only on the prosecutor's stated reasons but also on its own assumption that it was "suspicious" and "very odd" for a person of Vietnamese descent not to have taken a special interest in a murder case involving a Vietnamese defendant. Clearly, that type of explanation for striking prospective jurors, which is based on "assumptions ... which arise solely from the jurors' race," would be impermissible if proffered by the prosecutor. (Batson, supra, 476 U.S. at p. 98; see, e.g., Kesser v. Cambra (9th Cir. 2006) 465 F.3d 351, 362 (en banc) (lead opn. of Bybee, J.) [Native American prospective juror who worked for her tribe could not be dismissed based on prosecutor's assumption that such individuals are "more likely to `associate themselves with the culture and beliefs of the tribe'"].) This is the second time in the past year that we have decided a capital case where the trial court, in denying a Batson claim, voiced its own assumptions about a protected group. (See People v. Williams (2013) 56 Cal.4th 630, 652 [156 Cal.Rptr.3d 214, 299 P.3d 1185] (Williams) [in upholding prosecutor's strikes against five black women, trial judge said that in her experience "`... Black women are very reluctant to impose the death penalty; they find it very difficult no matter what it is.'"].) We cannot accord deference to Batson rulings informed by such impermissible generalizations. (See Williams, at p. 699 (dis. opn. of Werdegar, J.); id. at p. 717 (dis. opn. of Liu, J.).)
Here is the entirety of what the trial court said in analyzing the prosecutor's reasons for striking N.V.: "Like another juror that [the prosecutor] excused, [N.V.] seemed to be very anxious to sit on this case. One thing that [the prosecutor] didn't mention that I thought very odd was [N.V.] read about the case in the paper, and didn't give it any thought. Which is very striking to me, he is Vietnamese, a little younger than Mr. Trinh, but single like Mr. Trinh. I'm not so sure, in fact there is no evidence that he is taking care of his mother or anything like that. I am concerned about excusing postal workers, that just once you start picking on occupations, I think we are all over the place." "When [the prosecutor said that N.V. was] `nonresponsive,' he was really just quick to give a yes or no answer to satisfy the question." "And you [(the prosecutor)] questioned him quite a bit, he had no opinions about the death penalty. He did say no strong feelings for either penalty." "I agree [with the prosecutor], I even went beyond not only that he was overly eager to serve, I just find that strange he didn't take an interest in this case, very, very unusual. In the Lisa Peng case, that entire community was talking,
The trial court's mention of "the Lisa Peng case" appears to be a reference to the high-profile case of Lisa Peng, a Taiwanese woman living in Orange County who was tried three times for murdering her husband's Chinese mistress and their infant son in 1993. (See Pfeifer & Morin, Jury Deadlocks in 3rd Double-Murder Trial, L.A. Times (June 19, 2001) p. B-1.)
Of the 24 lines of transcript comprising the trial court's analysis quoted above, 15 are devoted to its observation that it was "very odd" and "suspicious" for N.V., a Vietnamese-American, not to take special interest in defendant's case after reading about it in the newspaper. These assumptions were compounded by the trial court's statement, unsupported by any evidence, that "that entire community" (presumably Chinese-Americans or Asian-Americans) "was talking, reading the paper, and on and on and on about the [Lisa Peng] case." To his credit, the prosecutor immediately and clearly disavowed any reliance upon the trial court's observations. But it is clear that these observations influenced the trial court's assessment of the credibility of the prosecutor's explanation that N.V.'s unresponsive views on the death penalty were suspect.
As today's opinion holds, defendant did not carry his burden of showing that the prosecutor's motives were based on N.V.'s race. But a "trial court's Batson rulings are not entitled to deference on appeal" where, as here, the ruling is informed by the trial court's own assumptions about a particular racial or ethnic group. (Williams, supra, 56 Cal.4th at p. 717 (dis. opn. of Liu, J.); see Schuette v. BAMN (2014) 572 U.S. ___, ___ [188 L.Ed.2d 613, 134 S.Ct. 1623] (plur. opn. of Kennedy, J.) ["this Court has rejected the assumption that `members of the same racial group — regardless of their age, education, economic status, or the community in which they live — think alike ...'"].)
The court followed with the People's special instruction: "The provocation which incites the killer to act in the heat of passion must be caused by the decedent or reasonably believed by the accused to have been engaged in by the decedent. The provocation must be such as to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection."
Direct examination of Debbie Marshall:
Direct examination of Michael Rosetti:
Direct examination of Angela Rosetti-Smith:
Direct examination of Suzanne Robertson:
