CORRIGAN, J. —
Ten days after he was released from the California Youth Authority, defendant Grayland Winbush murdered a young woman in her home during a robbery. The victim was beaten, stabbed, and ultimately strangled to death while her boyfriend was out Christmas shopping. The jury convicted defendant of murder in the course of a robbery, with personal use of a deadly weapon.
In December 1995, 20-year-old Erika Beeson lived with 21-year-old Mario Botello in an Oakland apartment. The building had a security gate, and visitors had to be "buzzed in" to enter. Botello sold small amounts of marijuana, mostly to people he knew. He grew up in South Berkeley and had been childhood friends with Norman Patterson. He was 14 when he first met defendant.
During the weeks before defendant's release, Patterson and Botello had spent time together. On December 20, about a week after defendant came home, Patterson took defendant to visit Botello's apartment. Botello, Patterson, and defendant spent the visit talking and smoking marijuana. Beeson was home but did not join the conversation. At one point, defendant noticed a shotgun in the room. He asked if Botello could get him a gun, explaining he wanted to rob some drug dealers. The conversation made Botello uncomfortable. He did not want to help defendant, who was acting aggressively. Botello gave defendant $40 and talked about helping him find a job, but defendant did not appear grateful. Defendant and Patterson left after about an hour.
During the next two days, defendant called Botello five or six times asking for help obtaining a large-caliber gun. Defendant said he wanted to rob some drug dealers in Hayward and asked if Botello knew others he could rob. In one conversation, defendant asked if Botello loved his girlfriend. Botello thought the question was odd but did not consider it a threat. He tried to put defendant off politely, hoping he would drop the subject of guns. Nevertheless, defendant insisted Botello find him a firearm by the end of the week.
December 22 was the day of the murder. Around noon or 1:00 p.m., Maceo Smith brought defendant to the house he shared with his girlfriend, Iva Mosely. Smith had long known defendant but had not seen him in four years. Among other things, the two men discussed committing a robbery together later that night. They called Botello to ask about the gun and announced they would be at his apartment in about 20 minutes. Botello and Smith were close friends. Botello left home immediately, however, to avoid encountering defendant. He asked Beeson to say he would be back later.
After defendant and Smith left, Mosely called Beeson to warn her they were coming. The women were friends and had shared their view that defendant was "weird." Beeson was still speaking with Mosely when defendant and Smith arrived, around 3:00 p.m. They climbed over the security gate and knocked on the apartment door. Beeson opened the door a crack and told them Botello was not home.
Defendant was angry that Botello had left and suggested robbing Botello. Smith refused to participate. Later that evening, defendant called Smith
Various witnesses established the following timeline. Around 3:45 p.m., Botello went Christmas shopping with his friend Grace Sumisaki. He called Beeson between 5:00 and 6:00 p.m. Beeson also spoke to her mother around 6:00 p.m. Two other friends stopped by the apartment in the same time frame. Another friend tried calling Beeson around 8:00 or 9:00 that evening, but the line was busy.
Botello's uncle, Andrew Williams, called around 7:35 p.m. and spoke briefly to Beeson. Williams arrived at Beeson and Botello's apartment between 7:45 and 8:00 p.m. Another young man was ringing the security buzzer, but he soon left. Williams rang the buzzer for about 10 minutes. No one answered. He then went to a friend's house and called the apartment about 10 times between 8:15 and 9:15 p.m. Each time, the line was busy.
Around 8:00 p.m., defendant and Patterson went to Botello's apartment, intending to rob him. Beeson buzzed them through the security gate and met them at the apartment door. Patterson said he wanted to buy some marijuana. Beeson hesitated when she saw defendant but then let them both inside.
Defendant told Patterson to put the couple's puppies in a bedroom. Patterson returned with Botello's shotgun and picked up some containers of marijuana lying nearby. Defendant searched the bedroom and took $300. Defendant became irritated because Beeson did not seem to be taking the robbery seriously. He removed his belt and forced Beeson to the floor. Both he and Patterson choked her. Beeson struggled throughout but remained conscious. After a few minutes, at defendant's direction, Patterson brought him a butcher knife from the kitchen. Defendant stabbed Beeson repeatedly in the face, shoulder, and neck. He and Patterson left immediately afterward. Defendant took the knife with him. Patterson drove to Aquatic Park in Berkeley, where defendant threw the knife in the lagoon.
Defendant and Patterson picked up Smith shortly after he returned home from the movies. The trio went out drinking. Smith noticed defendant now had money to spend.
Knowing her boyfriend would be out, Beeson invited two friends to come over. Jennifer Onweller called around 8:00 p.m. to tell Beeson that she and
Onweller and Kekki arrived at Beeson's apartment around 9:30 p.m. and found the security gate propped open. The apartment door was locked, and no one responded when they knocked. The lights and television were on, but the television was tuned to a sports channel, which was unusual for Beeson. The bedroom door was shut, and they could not see Beeson or the dogs inside. Onweller and Kekki then walked around the corner to a park to see if Beeson had taken her dogs for a walk. Unsuccessful, they returned to the apartment, and Onweller began writing a note. As she did so, Botello arrived. He found the door locked and could hear the dogs barking. Not having a key with him, he removed a screen and opened a window to enter.
The apartment had been ransacked. Beeson lay on the living room floor, covered in blood. She was not breathing. A wadded-up strip of masking tape and pieces of a gold rope necklace lay on the floor near her. The robbers had left a roll of masking tape nearby on the floor. Onweller found the telephone, which had been knocked off the hook, and called 911. Botello spoke with the dispatcher. Sounding "frantic" and "terrified," Botello insisted an ambulance be sent immediately. Police and an ambulance arrived, but Beeson had expired.
An autopsy revealed Beeson died from "[a]sphyxiation due to strangulation and multiple stab wounds." She had multiple scrapes and bruises on her arms, legs, back, and face, including a bruise on her nose matching the size and shape of Botello's shotgun barrel. A ligature mark circling her neck could have been made by a belt. She also had nine stab wounds on her face and neck.
Botello's shotgun, some marijuana, a piece of stereo equipment, and $300 in cash had been stolen. Botello told police he suspected defendant, Smith, and Patterson were responsible.
On December 26, the police discovered that defendant's electronic monitoring ankle bracelet had been disabled from 7:04 p.m. on the night of the murder through Christmas Day. They conducted a brief parole search and adjusted defendant's bracelet but were not ready to question him about Beeson's murder. They did question Smith, however. Smith gave them an unusually precise, "minute-by-minute" alibi for the night of the murder. As the investigation continued, a number of witnesses reported that defendant was bragging about the murder.
While defendant was in jail, Julia P. called the police anonymously to report that she had heard defendant telling his cousin about the murder. Julia knew defendant's cousin, Lakeisha Lovely, and Patterson's girlfriend, Latonya Wilson. According to the caller, defendant said he had broken off his ankle bracelet, then robbed and killed a young Caucasian girl in her home. When Julia heard "Mario's girlfriend" had been stabbed, she was confused about why defendant would have stabbed her since "he always [had] guns on him" now.
On the evening of April 30, 1996, Patterson robbed a gas station and was arrested early the next morning. On the ride to the police station, he asked the officer sitting next to him, "You all didn't come get me about a murder?" The officer responded, "Not unless you want to talk to me about one." They both laughed, and Patterson said, "Naw, I don't think so." In a search of Patterson's home, police recovered the shotgun and stereo equipment stolen from Botello's apartment.
At the police station, Patterson waived his Miranda
Patterson told the police that defendant needed money and wanted to rob Botello. Patterson kept making excuses, but defendant bullied him into going along. After Beeson let them into the apartment, Patterson put the dogs in a back room. When he returned to the living room, defendant was on top of Beeson, choking her with his belt. Defendant continued to struggle with Beeson and ordered him to retrieve the shotgun and marijuana. At one point, defendant hit Beeson in the head with the shotgun barrel. Patterson initially said that defendant took a butcher knife from the kitchen but later admitted that he had retrieved the weapon. Patterson described how defendant assaulted Beeson but denied ever stabbing her himself. Afterward, defendant
Shortly after Patterson's statement, officers interviewed defendant. Defendant waived his Miranda rights and initially denied any involvement. He was confident and self-assured during the questioning. However, after police told him they had evidence against him, showed him pictures of Patterson in custody, and played the first five minutes of Patterson's taped confession, defendant admitted the crimes.
About two weeks later, acting on an anonymous tip, the police interviewed county jail inmate Tyrone Freeman. Freeman had shared a holding cell with defendant on May 8, 1996. Defendant told Freeman that he was in jail on a murder charge and "might have partially confessed." He said he and his brother-in-law "Nate" were committing a robbery but the girl was not cooperating. After sending "Nate" to search the house, defendant said he pistol-whipped the girl, choked her with his belt, and finally stabbed her with a knife he saw lying on the counter. Defendant said he planned to blame the whole crime on "Nate." He would explain that he was tired when he talked to the police and did not remember confessing.
Patterson was released on bail in July 1997. A little over a year later, in September 1998, Patterson called Julia P. and asked her to come out and smoke marijuana. He said nothing about Julia's anonymous phone call to the police, and she did not think he was aware of it. They drove to a park and Patterson asked, "Was that you on that tape?" Scared, Julia denied making the call. Patterson then demanded that Julia have oral sex and punched her in the face when she refused. He beat her severely, knocking out two teeth, breaking her nose, and causing her eyes to swell shut. He also choked her, saying "[t]hat was you on that tape," and threatening to kill her. He said, "I'm going to do you just like we did that bitch." The assault ended when witnesses heard Julia screaming. In 1999, Patterson was convicted of several charges arising from the incident.
Defendant and Patterson were tried together for murder with special circumstance allegations. Emphasizing that no physical evidence linked them to the murder, the defense argued the prosecution's case was based entirely on street rumors and coerced confessions.
Defendant testified, denying any involvement. He admitted he and Smith went to Botello's apartment the afternoon of the murder but denied going back later. Defendant testified he left his grandmother's house around 7:00 p.m. and took a bus to his aunt's home in South Berkeley. Around 10:00 p.m., he and Patterson drank and smoked marijuana with Smith and another friend. Defendant claimed the police had coerced his confession. They threatened him with the death penalty, said they had his fingerprints on Botello's shotgun, and played him the entire recording of Patterson's statement. Defendant said he confessed because the officers told him it would help him avoid the death penalty. He obtained details of the crime from Patterson's statement and things the officers told him. Defendant explained that he lied on the phone call to his mother because the officers were standing nearby and he wanted to keep his deal to avoid the death penalty.
Codefendant Patterson also testified that he had nothing to do with Beeson's killing. He said he did not visit Botello's apartment on the night of the murder and did not see defendant until 10:15 or 10:30 p.m. Patterson claimed he gave a false confession because police officers had assaulted him and threatened the death penalty.
Defendant's aunt testified that defendant sometimes visited her home, but she could not recall the specific date or time of any visit. Botello's landlord testified that he saw a lot of traffic in and out of the apartment and suspected drug activity.
The jury returned guilty verdicts against both defendants on all charges and found the special circumstance allegations true.
The prosecution presented victim impact testimony from Beeson's mother and sister.
The prosecution offered evidence under section 190.3, factor (b) (factor (b)) of other instances in which defendant committed or threatened violence. Seven incidents predated the murder. They involved physical and sexual assaults on other youths and altercations with police and CYA staff members. These incidents are discussed in detail in connection with defendant's claim that the court erred in admitting acts he committed as a juvenile. (See post, at pp. 471-472.) Four incidents occurred between defendant's release from CYA in December 1995 and his robbery arrest in April 1996. The prosecution also presented evidence that defendant sexually assaulted Julia P. three times. Details about these incidents are discussed in connection with defendant's claims of error relating to her testimony. (See post, at pp. 467-471.) In addition, the gas station clerk who was robbed testified that defendant and his accomplice wore ski masks and threatened to shoot if she did not cooperate.
The prosecution also presented factor (b) evidence about several jail incidents. Twice while awaiting trial, defendant attacked a fellow inmate. On February 6, 1998, defendant slipped out of his restraints and charged an inmate boarding a prison bus. After a deputy forced defendant to back away, defendant told the inmate, "That is what you get for calling me PC."
Defendant also attacked prison guards on several occasions. For example,
A defense investigator testified about interviews with two prisoners who saw defendant's altercation with the deputy in the showers. Both said the deputy struck first. Although defendant was shivering, the deputy threatened to send him to the "cold room," then began hitting him and spraying him with pepper spray. The prisoners said defendant was not combative but was simply asking to rinse off.
In addition, the defense offered expert testimony from Jamie Candelaria-Greene, Ph.D., that defendant suffered from learning disabilities and attention deficit hyperactivity disorder (ADHD). On cross-examination, she conceded defendant had been diagnosed with a conduct disorder and met the diagnostic criteria for antisocial personality disorder.
The jury sentenced Patterson to life imprisonment without possibility of parole but sentenced defendant to death. Defendant's appeal is automatic. (§ 1239, subd. (b).)
The trial court ruled on several motions filed pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] (Pitchess).
Defendant sought to discover any complaints against Sergeants Olivas and McKenna for incidents of aggression, use of excessive force, dishonesty, or improper interrogation tactics. Based on defendant's showing, the court reviewed the records for promises of leniency or other improper interrogation tactics. It found no discoverable information. The court also reviewed Oakland Police Department personnel files in response to Patterson's Pitchess motion and found no discoverable information about inappropriate interview tactics. The defense received the officers' training records but no additional discovery through Pitchess proceedings.
The record includes five large volumes of sealed documents pertaining to all of defendant's motions. The trial court made a detailed record of all the materials it found discoverable. Our review confirms that all discoverable materials were properly released. There was no Pitchess error.
Defendant contends the court erred in denying two of his challenges for cause and in granting one prosecution challenge without adequate voir dire. Each challenge involved the panelist's personal views on the death penalty.
Defendant unsuccessfully challenged two prospective jurors for cause. He argued Prospective Juror E.T. was not qualified to serve because voir dire responses indicated he would vote for the death penalty in any case involving an intentional killing during a robbery. Defendant raised a different challenge to Prospective Juror G.M. He maintained G.M. could not be fair because, as a young White woman similar in appearance to Beeson, she would identify too closely with the murder victim. The court denied both challenges.
Weeks later, voir dire concluded and actual selection began. Prospective Juror E.T. was seated early in the process. Neither side exercised a peremptory challenge, and he served as Juror No. 12. Several panelists cycled through the No. 9 seat. Eventually, Prospective Juror G.M. was seated in this position. Immediately afterward, the prosecution and defense declined to exercise any further peremptory challenges. Patterson's attorney declared, "The defense is very satisfied with the jury." As a result, Prospective Juror G.M. served as Juror No. 9.
Defendant now complains the court erred in denying his cause challenges to Juror Nos. 9 and 12. To preserve such a claim, a defendant must exercise a peremptory challenge and remove the prospective juror in question, exhaust all available peremptory challenges, and express "dissatisfaction with the jury as presently constituted." (People v. Mills (2010) 48 Cal.4th 158, 186 [106 Cal.Rptr.3d 153, 226 P.3d 276].) None of these requirements was satisfied.
Defendant did not peremptorily challenge either Juror No. 9 or No. 12, nor did he exhaust his challenges. Counsel for defendant and Patterson were given 30 challenges to exercise jointly in selecting the 12 trial jurors. When counsel accepted the jury panel as constituted, the defense had 25 challenges remaining. Indeed, the defense "passed," indicating its satisfaction with the panel, four times after Prospective Juror E.T. was seated. Finally, rather than expressing dissatisfaction, counsel assured the court the defense was "very satisfied" with the panel chosen.
Accordingly, defendant's claims are not cognizable on appeal. (People v. Thomas (2012) 54 Cal.4th 908, 935 [144 Cal.Rptr.3d 366, 281 P.3d 361]; People v. Hillhouse, supra, 27 Cal.4th at p. 487; People v. Williams (1997) 16 Cal.4th 635, 667 [66 Cal.Rptr.2d 573, 941 P.2d 752].) We decline defendant's invitation to revisit these rules or find his failure to satisfy them was justified. (See Thomas, at p. 935.) Defendant's attempt to derive an alternative standard of forfeiture from People v. Yeoman (2003) 31 Cal.4th 93 [2 Cal.Rptr.3d 186, 72 P.3d 1166] and People v. Boyette (2002) 29 Cal.4th 381 [127 Cal.Rptr.2d 544, 58 P.3d 391] is also unavailing. In those cases, the defendant used a peremptory challenge to excuse the objectionable juror and exhausted all challenges. (Yeoman, at p. 114; Boyette, at p. 416.) Defendant failed to do either.
Next, defendant claims the court erred in excusing Prospective Juror E.I., both because voir dire was inadequate and because her views on the death penalty would not have substantially impaired her ability to serve.
E.I.'s questionnaire responses indicated she was "[m]oderately in favor" of the death penalty. She explained, "it is acceptable punishment for certain crimes but," because of the "heavy responsibility" in imposing it, the defendant "had better be guilty and the jury had better be sure." She said she had been opposed to capital punishment in college but "became for it again" after learning about some horrific crimes. She agreed that California should have a death penalty because "[s]ome crimes are so serious that there are no second chances for the person who committed them. Why spend huge amounts of money on imprisoning these people." Asked whether she would always vote for death if the victim was intentionally killed for the purpose of a robbery by defendants with substantial criminal histories, E.I. responded that an "intentional" killing warranted the death penalty but she did not agree it was "always" appropriate.
In voir dire, when asked if she could realistically consider both sentencing options, E.I. stated that, while both were possible, "it would have to be really, really aggravating circumstances for me to choose the death penalty over life in prison, because that is the most serious thing you can do." When the court probed further, E.I. said she probably would have voted for the death penalty in notorious cases involving serial murder or "incredibly violent" murders like decapitation. The court responded with a general description of the facts here: "In this case the allegation is one person has been killed. There aren't a number of victims like the Yosemite case or Ted Bundy. One victim. [¶] There was no mutilation involved, such as cutting the head off of the victim, things of this nature. That did not occur. [¶] There was no sexual assault involved in the commission of the murder." Given these features of the case, the court asked whether the death penalty would be a realistic sentencing option for E.I. She responded, "It doesn't seem to be the kind of case where I would vote for the death penalty." The court indicated it was inclined to excuse the juror but allowed the attorneys to question her first.
The prosecutor added that the victim had been "involved in marijuana dealing" and described the murder as a kind of "drug deal gone bad," after which the victim was strangled, stabbed and robbed. E.I. responded that she had not heard anything about the case to make the death penalty a possible sentencing option. She noted, "I would have to hear something really different to make the people so incredibly dangerous and deranged that it would have to be death as opposed to life in prison." The murder of a single
After a brief chambers conference, defendant's attorney examined E.I. He explained in some detail that penalty would be decided after a second trial in which the parties presented aggravating and mitigating evidence. Following this lengthy explanation, counsel said, "All I'm asking you, [is] would you wait and listen to the evidence in the second phase, and can you conceive that depending on what the aggravation is that you might return a verdict of death?" E.I. responded, "I don't want to send anybody to death." Counsel asked if she was saying she would not vote for death. She said, "I'm beginning to think more and more — as I'm more and more on the spot, I don't want to live with my conscience." When counsel asked again, "Are you telling me that you would not want to return a verdict of death," E.I. answered, "No."
The court dismissed E.I. for cause, remarking it had formed a "definite impression" from the courtroom voir dire that E.I.'s views on capital punishment would substantially impair her ability to serve. E.I. clearly described the types of cases in which she would consider voting for death, i.e., those involving multiple killings or mutilation, circumstances not present in this case. Moreover, it appeared that, over the course of her questioning, E.I.'s views had become "crystalized that she could never return a verdict of death."
Defendant now complains the court and prosecutor gave the juror a sanitized, "sugarcoat[ed]" version of the incident. Yet, two defense lawyers expanded on those descriptions and on the process for determining penalty. Patterson's attorney stressed that the victim was only 20 years old and was killed in her own apartment by two men who intended to rob her. They choked and stabbed her repeatedly in what he stressed was unquestionably an intentional killing. With that preface, he asked whether such a murder could be sufficient to support a death verdict. Once again, E.I. hedged in responding, stating only that an intentional killing would "sort of ma[ke] that more of a possibility," but consistently emphasized that she would be able to vote for death only in extreme cases.
Moreover, E.I.'s response to defense counsel's final questioning removed any doubt about her inability to serve. Defendant's attorney explained that if the case reached a penalty phase, the parties would present aggravating and mitigating evidence about the crime and the backgrounds of the offenders and
A refinement of views often occurs during voir dire. When panel members are sent to a courtroom, they learn for the first time that they have been called for a capital case. Then, appropriately, their opinions are probed in depth. These questions touch on matters of conscience, morality, social policy, and individual ability that panelists may never have considered in practical detail. The process encourages panelists to think deeply and seriously about their views. It falls to the discerning trial judge to carefully evaluate each panelist's state of mind on these weighty issues. The able trial court did so here. There was no error.
Defendant, who is African-American, complains he was deprived of his constitutional rights to equal protection and a representative jury because the prosecutor exercised peremptory challenges to exclude African-Americans from the jury. (See Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler).)
Because defendant makes several statistical arguments, we discuss the jury selection procedures in some detail. The process, which the court conducted
Jurors were called into the jury box in random order for the parties to exercise peremptory challenges. Each side had 30 challenges, with 12 additional challenges to use for the alternates. Defendant and Patterson agreed to exercise their challenges jointly. The prosecutor exercised 10 peremptory challenges in selecting the trial jury and eight in selecting the alternates. Three of these challenges were made against African-American panelists. After each, the defense jointly asserted a Batson/Wheeler motion. The court held a hearing and issued a detailed ruling denying the motions.
Including alternates, the jury was composed of 11 women and seven men, ranging in age from 24 to 61 years old. All major cities in the county were represented except Fremont, Pleasanton, and Berkeley. Thirteen of the jurors were Caucasian, three were Hispanic, and two were Asian.
The People do not dispute the trial court's finding that a prima facie case had been established. Accordingly, we focus on the third Batson/Wheeler prong and examine whether the African-American panelists were excused due to intentional discrimination. (See People v. Mills, supra, 48 Cal.4th at p. 174; People v. Lenix, supra, 44 Cal.4th at p. 613, fn. 8.)
"We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges `"with great restraint."' [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]" (People v. Burgener, supra, 29 Cal.4th at p. 864.)
The prosecutor used his second peremptory challenge to excuse Prospective Juror E.T., a retired credit manager from Oakland married to a retired federal immigration agent. She stated in the questionnaire that she had been arrested for obstruction of justice but did not explain her answer. During voir dire, she explained that she and a police officer "kind of got into a thing" when she was helping her sister leave her husband. She said the officer pushed her and "made some kind of remarks." She retaliated, and "[i]t escalated from that." She was arrested but the charges were dropped.
In the questionnaire, E.T. described her general opinion about the death penalty as neutral but also stated, "If you take a life be prepared to give up your life." In voir dire, she said she had "mixed feelings" about capital punishment. She explained that, according to the Bible, "only God is supposed to be able to really take somebody's life," and "[i]t's not our place" to kill someone; however, she also believed people shouldn't be allowed to murder others.
The prosecutor cited these mixed feelings about the death penalty as one reason for striking E.T. Another reason, related to the first, was a concern that E.T.'s religious beliefs would make it difficult for her to impose the death penalty. The prosecutor said it raised "a huge red flag" if a potential juror stated that only God can take a life. He explained that, "as a prosecutor in a death penalty case, every single juror that makes [that] answer [has to be excused] either by cause or by peremptory challenge or I'm not doing my job." He noted no one sitting on the jury had given such an answer.
The prosecutor also cited E.T.'s attitude toward law enforcement. Before voir dire, he had obtained the police report related to E.T.'s obstruction of
The prosecutor also observed that Patterson's attorney questioned E.T. only briefly and defendant's attorney asked no questions at all. Their approach raised the concern that E.T. would favor the defense.
The prosecutor used his sixth peremptory challenge to excuse B.C., a 54-year-old receptionist from Oakland. B.C. disclosed in the questionnaire that her daughter had been raped two years earlier by a "high-profile" person who was not convicted. She favored strengthening the justice system to give victims justice. In voir dire, B.C. explained that her daughter's rapist was a professional basketball player. The case was investigated by the Alameda Police Department but was eventually "dropped."
B.C. had previously served as the foreperson in a criminal case. In her questionnaire, she stated that the case resulted in a verdict; however, in voir dire, she reported that the jury hung on one count. They found the defendant guilty of attempted robbery and being a felon in possession of a firearm but could not reach a verdict on an attempted murder charge.
B.C. also expressed the view that minorities are not treated fairly by the justice system, explaining that minorities were usually unable to pay for the same quality of legal representation available to White defendants. In voir dire, B.C. said she thought people who can afford a private attorney "have a better chance in court" than those represented by a public defender, citing the O.J. Simpson case as an example. Patterson's attorney then told B.C. that in addition to retained lawyers and public defenders, some defendants are represented by private lawyers who donate their time. The court remarked after B.C. left the courtroom that this colloquy was misleading. It appeared to give the juror the impression that these defense counsel were donating their time, which was not true. The court noted that the problem had only arisen with B.C. but admonished counsel, "Don't do that again."
The prosecutor gave several reasons for striking B.C. He mentioned her experience as the foreperson of a hung jury. He gave examples of other panelists he had excused specifically because they had served on hung
The prosecutor also struck B.C. because of her views on the criminal justice system. She expressed concern in both the questionnaire and voir dire about the quality of representation received by people who could not afford private lawyers. After this discussion, Patterson's attorney made comments that gave B.C. the clear impression that he was working on the case for free. The impression that defense counsel were working for free was damaging because B.C. seemed to have a "full-fledged belief that if an African-American defendant can't pay his lawyers in the way that O.J. did, [he's] not getting a fair shake." B.C.'s views on money in the criminal justice system were highlighted by her assertion that the police or district attorney's office failed to pursue charges against the professional basketball player who had raped her daughter. The prosecutor summarized: "So here's a juror who's been in this situation before as a foreperson, who was willing to take the easy way out of a hung jury on a difficult count, who has very strongly held views expressed in her questionnaire and her oral voir dire that money gets you good representation, and she has concerns about that in African-American context.... And then we have a defense attorney who stands up and misleads her, leaves her with the impression that he's working for free along with the other lawyers here. That's a race-neutral reason, your honor. That's a situation where that juror was poisoned."
The court found that these reasons reflected the truth of why the prosecutor excused B.C. Again, the court's careful findings are amply supported by the record.
Immediately after Prospective Juror T.W. was called into the jury box, the prosecutor used his 10th peremptory challenge to excuse him. T.W., a 57-year-old maintenance supervisor from Oakland, answered "yes" to questionnaire items asking if he knew anyone who had been investigated or charged with a crime or if anyone in his family had been arrested or convicted of a crime. When asked to explain these answers, however, he simply drew question marks. In response to a question about particular types of crimes that upset him, T.W. said, "Innocent people going to jail." He stated, "I think the system is unfair to Black[s]" when asked about the effectiveness of the criminal justice system and checked "no" when asked if the system treats minorities fairly. Expounding on this answer, he wrote: "So much to say[.] The history of slavery go[es] to[o] deep in this country." Asked if he would like to see changes to the justice system, T.W. responded "no" and explained, "It [is] the people I want to see changed." T.W. said he
The trial court explored some of these responses during T.W.'s voir dire. Asked about his comment that innocent people are going to jail, T.W. said, "We seem to be hearing a lot of it lately" and recalled hearing that another state had released many prisoners from death row for this reason. He also mentioned he was upset by the Riders scandal, a highly publicized case involving allegations of serious misconduct by four Oakland police officers. He affirmed that he held a strong view "that African-Americans have not been and are not now being treated fairly" in the criminal justice system. When asked about his comment that it was "the people" in the justice system he wanted to see changed, he told the court, "Well, I guess I'm talking about White people," although he conceded that "probably a lot of Black people's minds are made up as well, and maybe they're not capable of making decisions based on facts." Asked to explain his comments about race and capital punishment, T.W. said Black people have not been treated fairly in the judicial system and are disproportionately represented on death row.
On the subject of whether he could vote to impose the death penalty on an African-American defendant, T.W. stated that sentencing someone to death would be "a very difficult decision" regardless of the defendant's race. He told the prosecutor that he could conceivably impose the death penalty for the murder of a single adult, but the facts would have to be "pretty heinous" and "ugly." He also said "it seem[ed] unlikely" that he could vote for death for two defendants if only one person had been murdered.
Finally, the prosecutor asked if T.W. himself had any experience with being arrested or taken to jail. He answered that around 20 years earlier, after having too much to drink, he was arrested during an altercation with a cab driver. Although the police took him to jail, T.W. stated that he had "probably" been treated appropriately. Neither of the attorneys conducting voir dire for the defense asked T.W. any questions.
After this voir dire, the prosecutor challenged T.W. for cause. In the questionnaire, which had been signed under penalty of perjury, T.W. stated that he had not been arrested for any crime and had never "visited or been incarcerated in, any jail, prison, or juvenile detention facility." The prosecutor argued T.W.'s prompt and detailed voir dire answers indicated he clearly remembered his previous arrest and trip to jail. His failure to disclose these facts in the questionnaire could not be attributed to faulty memory. The prosecutor was also "deeply concerned" about the juror's views on race. He
The court denied the cause challenge but said it was "not totally satisfied... that this man is a totally impartial juror." The court understood the prosecutor's concern about having T.W. on the jury, noting it would stretch credulity to assume that T.W.'s views on racism and African-Americans on death row would not enter into his deliberations and judgment. However, it could not conclude as a matter of law that T.W. was too biased to serve.
The prosecutor repeated these reasons in explaining why he used a peremptory challenge to excuse T.W. He noted the juror had markedly negative views about the police and had mentioned a recent scandal involving Oakland police officers in particular. Because T.W. said he thought the Oakland Police Department was "a whole lot better now than it had been" despite the egregious misconduct alleged in the case, the prosecutor concluded he held a negative view of the department. The prosecutor's case depended heavily on the credibility of Oakland police officers, and he did not believe T.W. would fairly consider their testimony. Negative views about the Oakland police were also evident in T.W.'s description of his arrest. The prosecutor argued that T.W.'s failure to disclose this incident in the questionnaire reflected a lack of honesty that was an independent, race-neutral ground for excusal. The prosecutor also cited T.W.'s reluctance to impose the death penalty and his clear belief that the criminal justice system is racist. The prosecutor also observed that defense counsel did not ask the juror a single question, which suggested their belief that T.W. leaned heavily in their favor.
Defendant urges this court to conduct a comparative analysis of the excused panelists with all 18 of the seated trial jurors and alternates. However, defendant himself compares the excused panelists with only five of the trial jurors and one alternate. He makes no contention that comparison with any of the other 12 jurors has probative value. Accordingly, we limit our
Defendant raised a comparative analysis argument in the trial court, and the prosecutor responded by explaining why he accepted some jurors who expressed beliefs similar to those he struck. The trial court accepted the prosecutor's reasons, and we too conclude they do not support an inference of discriminatory motive.
Like B.C. and T.W., three seated jurors and one alternate expressed the view that the criminal justice system is unfair to minorities. However, the prosecutor adequately explained why each of the seated jurors was stronger for the prosecution than those excused.
Juror No. 5, a Puerto Rican financial advisor, checked "no" on the questionnaire when asked if the criminal justice system treats minorities fairly and explained, "Empirical data has proven this fact." However, based on this juror's demeanor and questionnaire responses, the prosecutor viewed him as "a conservative person" with "strong beliefs in the need for people to take personal responsibility for their actions." The prosecutor explained that he accepted Juror No. 5 because of his strong support for the death penalty. For example, he stated that he would vote in favor of the death penalty on a ballot initiative because "[c]ertain crimes need to be dealt with [by] the death of the convicted." Even more important, when asked in voir dire whether death or a life sentence would be harder to impose, Juror No. 5 indicated they would be equally difficult. The prosecutor explained that in his experience, a juror who perceives either penalty to be a difficult choice is likely to be "very favorably disposed towards imposing the death penalty."
Juror No. 11 was a fire department captain. He placed an "x" on the questionnaire in between "yes" and "no" when asked if the justice system treats minorities fairly. He explained, "I have seen newspaper and news accounts that address this. I do believe that ethnicity is an issue in the criminal justice system. However, I have no strong personal opinion." The prosecutor recalled that he liked Juror No. 11 because he seemed focused on the issue of remorse. He stated in the questionnaire that the death penalty was appropriate only for cases involving extreme acts for which the defendant showed no remorse. Noting that both defendants had committed significant postmurder violence, including attempts to intimidate a witness, the prosecutor predicted he would "do pretty well on [the remorse] issue" with this juror. Also, like Juror No. 5, Juror No. 11 said in voir dire that both death and life imprisonment are severe penalties, and he would not have more difficulty imposing either one.
Some seated jurors also made statements similar to B.C.'s comments that money is necessary to buy a good defense. However, their sentiments on this issue were generally milder, or qualified. The prosecutor reasonably viewed them as stronger jurors for his side.
Juror No. 8 referred to the influence of wealth obliquely when she commented in the questionnaire that the O.J. Simpson trial had made her "somewhat skeptical" of the effectiveness of the criminal justice system. The prosecutor was impressed with her prior jury service in a murder trial, however. Juror No. 8 and one other juror believed the defendant was guilty of
Juror No. 10, a supervisor of a grocery store meat department, stated in her questionnaire that the criminal justice system is "very effective if you have plenty of
Like Juror No. 10, Alternate Juror No. 16 expressed doubts about the fairness of the justice system to minorities and the indigent. She stated in the questionnaire that the criminal justice system is "generally effective — but access (financially) to effective attorneys can be beneficial." When asked if minorities are fairly treated, she answered, "For the most part yes[,] but as in all aspects of life some people can be judged (unfairly) based on their race or ethnicity." The prosecutor did not recall details of Alternate Juror No. 16's questionnaire or voir dire except that she was strongly in favor of the death penalty and that her brother-in-law was a judge in Kern County. Although she circled the questionnaire response stating she was "moderately in favor" of the death penalty, rather than "strongly in favor," we do not agree with defendant's assertion that the prosecutor mischaracterized the juror's views in a manner that evidences discriminatory pretext. (See Miller-El v. Dretke, supra, 545 U.S. at pp. 244-246; Cook v. LaMarque (9th Cir. 2010) 593 F.3d 810, 818.) Moreover, we find reasonable the prosecutor's reliance on the fact
The prosecutor gave reasonable explanations for why he viewed each of these seated jurors as more favorable than excused panelists E.T., B.C., and T.W. Comparative analysis does not suggest that the prosecutor's reasons for striking these panelists were pretexts for unlawful discrimination.
Apart from individual and comparative juror analyses designed to ferret out pretext, defendant insists discrimination must have occurred because it was statistically improbable that no African-Americans would serve on a jury in Alameda County. He notes that while African-Americans comprised only about 6 percent of the panel, the prosecutor used 30 percent of his peremptory challenges against them, excusing 100 percent of the African-American panelists called into the jury box.
Finally, to the extent defendant's statistical arguments urge that the venire was not representative, the claim has not been preserved for appeal. Defendant neither objected to the panel nor moved to quash the venire. (See People v. Lewis (2001) 25 Cal.4th 610, 634 [106 Cal.Rptr.2d 629, 22 P.3d 392].) Nor has he attempted to support the claim by showing that the jury selection process in Alameda County results in the systematic exclusion of African-Americans. (See Duren v. Missouri (1979) 439 U.S. 357, 364 [58 L.Ed.2d 579, 99 S.Ct. 664]; Lewis, at pp. 634-635.)
On May 1, 1996, police officers questioned Patterson about the murder after they found Botello's shotgun in his home. Patterson initially denied specific knowledge but ultimately admitted his involvement and identified defendant as the murderer. The police then advised Patterson of his Miranda rights again and took a recorded statement. Patterson's interview concluded shortly before 1:00 a.m.
A day later, officers brought defendant to the police department. He was placed in a homicide interview room without handcuffs at 10:15 a.m. About an hour later, Sergeants Enoch Olivas and John McKenna began the interview. Defendant was immediately advised of his Miranda rights and waived them, both orally and in writing. The officers used no physical force during the interview and made no threats or promises to induce cooperation. Altogether, defendant spoke to the police from 11:07 a.m. until 2:00 a.m. the next morning, when he finished giving his final recorded statement about the crimes. This interview was conducted in relatively short sessions, with lengthy breaks between. Defendant was given food, drink, and access to a bathroom.
During the first session, defendant discussed how he knew Botello and Patterson. After 50 minutes of questioning, officers took an hour-long break and defendant had lunch. Questioning resumed for another hour and 15 minutes. Defendant talked more about Patterson and how he knew Maceo Smith. He speculated that a power outage at his grandmother's house was the reason his ankle monitoring bracelet did not transmit a signal during some days in December. At the end of the session, Sergeant Olivas said he had evidence that defendant was involved in Beeson's murder. He did not mention Patterson's interview or disclose other details. Defendant denied any involvement. The third interview session began after a 40-minute break and lasted a little over an hour. Defendant acknowledged visiting Botello's apartment and, contrary to his earlier statements, now admitted he had noticed Botello's shotgun. The officers brought defendant another meal during a 45-minute break.
When the interview resumed for another hour-long session, defendant made additional statements which Sergeant Olivas wrote down verbatim. Defendant said, "`I admit I was there'"; "`If I get the death penalty, I get it'"; "`Once I got there, it all went sour'"; "`I have to play it out'"; and "`I'm fucked.'" Sergeants Olivas and McKenna both testified that they never mentioned the death penalty or any possible punishments. Defendant was the first to mention the penalty. His remark was unsolicited and not responsive. The officers did not acknowledge the remark or discuss penalties with defendant in any way. They took a 90-minute break after this session and set up equipment for the next interview session to be surreptitiously recorded. Sergeant Olivas believed defendant would soon start describing details about the murder, and he did not want to inhibit this disclosure by openly recording.
The next interview session began again shortly after 9:00 p.m. Before the questioning started, defendant remarked, "`I'm going to get what I'm going to get.'" The officers then showed defendant photographs of Beeson and began recording. Defendant then confessed to robbing and murdering Beeson. He gave many details about the chronology, including what he and Patterson each did to Beeson, the items they stole, and how they disposed of the knife. Specifically, he said Patterson hit Beeson with the barrel of Botello's shotgun and she began making a lot of noise. Defendant gave his belt to Patterson and told him to choke her into unconsciousness. When Patterson was unsuccessful, defendant grabbed an end of the belt, and they choked her together for several minutes. Because Beeson was still conscious and they worried about her making noise, defendant took a knife from the kitchen and stabbed her repeatedly in the shoulder and back of the neck. When they left, he thought Beeson was probably dead. Defendant was very animated in retelling the events, even acting out for the officers how he and Patterson had choked their victim and where on the neck he had stabbed her. At the end of this interview session, defendant said, "Man, I get this off my chest, man."
After giving the recorded statement, defendant asked to call his mother. He was allowed to do so but was warned that all telephone calls were monitored. After the recording equipment was installed, defendant called and told his mother that he and Patterson had murdered a woman. He explained he had confessed to the police because he heard a taped statement in which Patterson was trying to minimize his own responsibility. Defendant said he told the police the truth because he thought they would seek the death penalty against him, whereas Patterson would get a reduced sentence. He thought he would probably spend the rest of his life in prison.
Later that night, defendant gave two more recorded statements to a deputy district attorney. The first described the robbery and murder in full detail. The second was an Aranda statement recounting the events of that evening without mention of Patterson's involvement.
Defendant testified that he was not harmed or threatened during the interview, and his physical needs were provided for. The interview's tone was cordial and respectful at the start but turned accusatory when Sergeant McKenna showed him a photograph of Botello's shotgun. McKenna said defendant's fingerprints were found on the gun and the police had learned defendant was pressuring and threatening Botello before the murder. Defendant claimed McKenna said "I might as well help myself, defend myself right now, or else they would have to assume the worst and I would get the death penalty." The officers played him the entire tape of Patterson's confession. Afterward, defendant asked what could happen if he gave additional information. Sergeant McKenna responded that talking could help "clear" him of the death penalty if the murder was unintentional or accidental. Defendant testified that he changed his story because, with Patterson's statement and his fingerprints on the gun, the case against him appeared strong, and he did not want to risk the death penalty. He asked what would happen if he admitted
Sociology professor Richard Ofshe, Ph.D., testified as an expert on influence and police interrogation. Based on the interview tapes and transcripts and defendant's own recollection about unrecorded portions of the interview, Ofshe concluded the police used psychologically coercive tactics to secure defendant's confession. Specifically, in the professor's opinion, defendant's statements in the phone call to his mother indicated he believed he was avoiding the death penalty and securing a lighter sentence by admitting involvement. Although these statements did not prove capital punishment was threatened, they did suggest the subject came up during questioning. Ofshe also testified that defendant's confession was "contaminat[ed]" because it came after defendant heard the recording of Patterson's statement. He explained, "contamination can give someone information necessary to tell a story that fits the crime facts even if they weren't there." Ofshe discounted testimony that the tape was played for only five minutes because Patterson did not implicate defendant until later in his statement. Finally, Ofshe believed defendant's unpersuasive claim that the murder was accidental was an attempt to obtain leniency.
On cross-examination, Ofshe conceded that generally accepted procedure did not require the police to record all phases of defendant's interview. Encouraging defendant to feel angry with Patterson was not a psychologically coercive tactic. Nor was it inappropriate for the police to play defendant a portion of Patterson's recorded confession. Ofshe conceded the police did not appear to have used any psychologically coercive tactics during the recorded portions of defendant's interview.
After examining all relevant circumstances in a lengthy, thoughtful ruling, the court determined beyond a reasonable doubt that all of defendant's statements were voluntary. The court found both police officers credible based on the criteria set forth in CALJIC No. 2.20 and concluded both gave truthful accounts of defendant's interviews. Indeed, with regard to personal demeanor, the court observed that "one would be hard-pressed to find a more mild-mannered, in[]offensive, unantagonistic, soft-spoken, nonconfrontational, pleasant man than Sergeant Olivas." Nothing about the content of defendant's statements or his tone of voice on the recordings suggested he was speaking under physical or psychological duress. Nor did defendant say anything in the recordings to suggest that any deal had been offered regarding his penalty. Based on the officers' unequivocal testimony and the absence of
A confession's voluntariness depends upon the totality of the circumstances in which it was made. (People v. Carrington, supra, 47 Cal.4th at p. 169; Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226 [36 L.Ed.2d 854, 93 S.Ct. 2041].) Relevant factors include: "`"the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity" as well as "the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health."'" (People v. Massie, supra, 19 Cal.4th at p. 576.) No single factor is dispositive. (People v. Williams (2010) 49 Cal.4th 405, 436 [111 Cal.Rptr.3d 589, 233 P.3d 1000].)
Our standard of review is well established. Voluntariness is a legal question subject to independent review; a trial court's related factual findings are upheld if supported by substantial evidence. (People v. Carrington, supra, 47 Cal.4th at p. 169; People v. Holloway (2004) 33 Cal.4th 96, 114 [14 Cal.Rptr.3d 212, 91 P.3d 164]; People v. Massie, supra, 19 Cal.4th at p. 576.) When the evidence conflicts, the reviewing court must accept the version of
There was a square conflict in the evidence concerning whether defendant was threatened or promised leniency. The court's resolution of this factual question rested heavily on credibility assessments. Sergeants Olivas and McKenna both denied mentioning the death penalty or discussing the subject of punishment during defendant's interviews. They testified that defendant made an unsolicited remark about the death penalty in an unrecorded session but that they did not respond or even acknowledge the remark. Although defendant made statements to his mother suggesting a belief he would not get the death penalty if he confessed, nothing in the transcript of the call, or elsewhere in the record, reveals the source of this misunderstanding. The trial court expressly found the officers' testimony credible. It found defendant's contrary account, and his expert's inferences based on that account, unbelievable. Substantial evidence supports these findings. We independently conclude defendant's statements were not coerced by express or implied promises of leniency. (See People v. Tully, supra, 54 Cal.4th at p. 993; People v. Boyette, supra, 29 Cal.4th at p. 412.)
This conclusion is not undermined by defendant's complaint that he was young and "had a limited educational background." Despite his youth, defendant had extensive experience with the criminal justice system, beginning in his early teens. He testified that he knew his Miranda rights. In his phone call to his mother he was even able to explain the difference between "Three Strikes" and indeterminate sentencing for murder. The record also belies defendant's claim that the police deceived him by claiming they had his fingerprints on Botello's shotgun, playing all of Patterson's taped confession, or suggesting that the murder was accidental. None of these assertions was corroborated. The trial court reasonably rejected defendant's testimony.
The cases on which defendant relies are readily distinguishable. In People v. Neal (2003) 31 Cal.4th 63, 80-82 [1 Cal.Rptr.3d 650, 72 P.3d 280], the police deliberately continued questioning after the defendant clearly and repeatedly invoked his right to counsel. This flagrant violation of Miranda weighed heavily in our conclusion that the interrogation was coercive. (Neal, at p. 81.) Neal was also jailed overnight between interviews without food, drink, or access to a toilet. (Id. at p. 84.) Here defendant's personal needs were accommodated and the officers carefully adhered to Miranda, obtaining multiple waivers. (Cf. People v. Williams, supra, 49 Cal.4th at pp. 447-448 [distinguishing Neal on these grounds].) Taylor v. Maddox (9th Cir. 2004) 366 F.3d 992 is neither binding nor apposite. In that habeas corpus proceeding, the Ninth Circuit found a voluntariness determination unreasonable because state courts had ignored highly probative testimony supporting the defendant's account of his interrogation. (Id. at pp. 1005-1007.) The same cannot be said here; indeed, the trial court's careful examination of the evidence is especially notable. Spanning more than 57 pages of the reporter's transcript, the court's discussion covered all relevant evidence in extensive detail.
Before trial, defendant moved to sever his case from Patterson's, arguing their antagonistic defenses would undermine verdict reliability and the introduction of Patterson's statements would violate defendant's right of confrontation. In lengthy hearings, the court and counsel reviewed each line of Patterson's statement to the police and removed all references that arguably inculpated defendant. Having thoroughly and carefully redacted Patterson's statement, the court concluded its admission in a joint trial would not prejudice defendant.
Defendant renewed his motion for severance at various points during the trial when questioning or argument by Patterson's counsel suggested defendant bore primary responsibility. These motions were consistently denied. On appeal, defendant again claims he was prejudiced by Patterson's defense. He focuses on the testimony of two witnesses.
At the guilt phase, evidence was admitted that Julia P. anonymously called the police to report information about the murder. Julia told the police she had overheard defendant telling a cousin he had robbed Beeson, and people were saying defendant had either shot or stabbed Beeson when she refused to cooperate. A recording of this phone call was played at trial. The evidence was offered as proof of Patterson's motive for and consciousness of guilt in the assault. The court admonished the jury that it was being admitted against Patterson only. Nevertheless, defendant complains the evidence was not probative unless the jury found his confession to be true, and he argues the phone call would not have been admitted at all in a separate trial.
Defendant also complains Patterson "abandoned his defense of innocence" by offering the preliminary hearing testimony of Tyrone Freeman. Freeman had testified that, while they were in custody, defendant said he had murdered a girl during a robbery with his brother-in-law "Nate." The testimony implicated Patterson, who was romantically involved with defendant's sister. It also suggested defendant was responsible for the actual killing. Defendant now complains he was prejudiced because the prosecutor elected not to offer Freeman's testimony.
Defendant's arguments for severance fail. The defenses he and Patterson offered at trial were largely consistent. Both testified that they were not present at the murder but were tricked into confessing. They each disavowed their own inculpatory statements. (See Carasi, supra, 44 Cal.4th at p. 1297.) Rather than undermining defendant, Patterson's testimony actually supported his claim that the police had coerced him into making a false confession. Indeed, it was defendant, not the prosecutor, who introduced Patterson's confession. Defendant relied on the tape to explain how he could have confessed to a murder he later claimed to know nothing about.
Significant independent evidence established defendant's guilt. As the trial court observed in denying his severance motion, "overwhelming" proof of defendant's guilt came from evidence "out of his own mouth." He confessed to Beeson's murder repeatedly to the police, prosecutors, and his own mother. These confessions, coupled with testimony from others establishing motive and a timeline for the night of the murder, provided ample proof of defendant's guilt apart from Patterson's statements. Severance was not required. (Letner and Tobin, supra, 50 Cal.4th at p. 150; Carasi, supra, 44 Cal.4th at p. 1298.)
Defendant's additional complaints of prejudice at the penalty phase are unpersuasive. Defendant complains he was denied his right to individualized sentencing because Patterson's counsel portrayed him as the more culpable party. However, this argument would eviscerate the statutory preference for joint trials in all capital cases. (See People v. Hardy (1992) 2 Cal.4th 86, 168 [5 Cal.Rptr.2d 796, 825 P.2d 781].) There is no indication that the jury was unable or unwilling to assess penalty independently, or that it "engaged in improper comparative evaluations" of defendant and Patterson. (People v. Taylor (2001) 26 Cal.4th 1155, 1174 [113 Cal.Rptr.2d 827, 34 P.3d 937].) The jury was told to decide the question of penalty separately as to each
Defendant sought to exclude several photographs taken at the crime scene and just before Beeson's autopsy. He argued the crime scene photos were gruesome, because they showed a large amount of blood, and misleading, because the scene had been altered. Paramedics had removed some of Beeson's clothing while attempting to revive her. Defendant worried her seminude body would suggest a sexual component to the murder. He also objected that photographs of Beeson's nude body on the autopsy table were unnecessarily graphic and largely cumulative of the pathologist's testimony. The prosecutor argued the autopsy photographs were relevant to show Beeson had sustained bruising and other injuries all over her body, not just to her head and neck. Photos of her blood-soaked clothing and of blood at the crime scene illustrated the brutality of the murder and contradicted defendant's self-serving statement that he had merely tried to put Beeson to sleep. Although the paramedics' intervention had changed some aspects of the crime scene, the prosecutor maintained these photos were still relevant to corroborate testimony about the placement of Beeson's body and other items in the room.
The court weighed the probative value and risk of undue prejudice for each item offered, ultimately excluding four photographs. Defendant now claims those admitted were unduly prejudicial under Evidence Code section 352 and their admission violated his federal constitutional rights to due process and a fair trial.
Defendant's claim of prejudice rests largely on the fact that several photos depict Beeson's nude body. Crime scene photos with Beeson's shirt removed
The crime scene photos were the only ones depicting the location of Beeson's body in the room and her blood-soaked clothing. They corroborated the testimony of Botello and police witnesses and would help the jury understand and evaluate testimony about how Beeson was found. (See People v. Pollock (2004) 32 Cal.4th 1153, 1171 [13 Cal.Rptr.3d 34, 89 P.3d 353].) Although unpleasant, they are not particularly gruesome or sexually graphic. Four of the photos show Beeson's body on its side, facing away from the camera. She is wearing only underwear and lying on a blood-soaked shirt with defibrillator pads attached to her chest. Two photos focus on the wounds to the back of her head and neck. These photographs were not so gruesome as to impermissibly sway the jury, which would hear testimony detailing all facts relating to the crime scene and victim. (See People v. Scheid (1997) 16 Cal.4th 1, 20 [65 Cal.Rptr.2d 348, 939 P.2d 748].) Nor could nudity in the photos have misled the jury into thinking there was a sexual component to the murder. As the trial court observed, witnesses explained how medical interventions altered the original crime scene. Botello and the first police officer at the scene testified that Beeson was clothed when they found her. Witnesses repeatedly explained that her clothing had been removed by paramedics. Forensics experts confirmed there was no evidence of any sexual activity. Finally, the prosecutor assured the jury in opening statement that "[t]here was no rape here," and defendant points to no questioning or argument raising that insinuation.
Nor were the autopsy photos impermissibly cumulative because there was no dispute about the cause of death. We have rejected this argument on many occasions. (See People v. Riggs, supra, 44 Cal.4th at p. 304; People v. Scheid, supra, 16 Cal.4th at p. 19; People v. Crittenden, supra, 9 Cal.4th at pp. 134-135.) The photographs were properly admitted to illustrate the testimony of the pathologist and to corroborate other evidence, including statements in both defendants' confessions. (See People v. Thomas, supra, 54 Cal.4th at p. 935; Riggs, at p. 304.)
Defendant contends his federal due process rights were violated when the court stationed a deputy near the witness stand during his testimony. Any error was harmless.
The record was quite different in People v. Hernandez (2011) 51 Cal.4th 733 [121 Cal.Rptr.3d 103, 247 P.3d 167]. There, the trial "court asserted that it had seen a deputy at the witness stand `in every trial I've ever done ... because of security,' and noted that a bailiff was `supposed' to sit behind `all defendants' who testify, `even in a petty theft' case. Despite a direct request from defense counsel, the court refused to make an individualized finding that defendant's behavior warranted this heightened security measure. Instead, the
Here, the court devoted considerable time and attention to the issue. It discussed California cases addressing the use of physical restraints and other courtroom security measures and concluded the posting of deputies in the courtroom was within the court's broad discretion. It also obtained measurements and repositioned seating to ensure that the bailiff would not obstruct jurors' views of defendant and would sit the same distance away from him as when defendant was at counsel table. While the court's legal research and its careful measures to avoid prejudice are commendable, its analysis did not focus on case-specific reasons justifying the security measure.
However, the error was clearly harmless. Two or three bailiffs were stationed in the courtroom throughout the trial, and only one sat near defendant at the witness stand. As the trial court took pains to ensure, the deputy sat three feet away from defendant, maintaining precisely the same distance from the witness chair as from defendant's usual position at counsel table. Nothing in the record suggests the bailiff treated defendant with anything other than courtesy and respect. (See People v. Hernandez, supra, 51 Cal.4th at p. 746.) Moreover, the evidence against defendant was strong, much of it coming from his own detailed statements to the police and his mother. Given the compelling evidence of guilt, it is not reasonably probable defendant would have obtained a more favorable result absent the error. (See
Defendant raises several challenges to victim impact evidence. None has merit.
The prosecution and defense filed motions in connection with victim impact evidence. After a lengthy hearing, the court rejected defendant's argument that victim impact testimony be restricted to family members who were personally present at the murder or would foreseeably be affected by the crime. However, the court precluded testimony from two of Beeson's friends under Evidence Code section 352, finding it would likely be duplicative of other evidence.
The prosecution offered testimony from Beeson's mother and sister. Melitta Beeson described her daughter as loyal, fearless, and artistic, with an infectious sense of humor. Beeson struggled with a learning disability and attended many schools. She was a rebellious teenager who often drank and stayed out late; however, she had matured in the year before her death and was starting to plan for the future. Beeson was very close to her father. Fred Beeson received the call that she was dead, and he had to identify the body. He was "totally devastated" by the murder and died six months later.
Lisa Beeson was close to her younger sister. She had just finished her penultimate semester of law school at Tulane and was out of the country when she learned Beeson had been killed. She came home to parents who were profoundly affected. Her father was depressed but also obsessed with trying to discover what had happened. Lisa withdrew from law school and moved home. She arranged a memorial service for her sister that many people attended. She also arranged a cremation and went with her father to
After reviewing numerous photographs and documents offered by the prosecution, the court excluded roughly half under Evidence Code section 352. It admitted a notebook containing 53 photographs taken throughout Beeson's life, a report card, a group of letters, and a Christmas list Beeson gave her mother shortly before the murder. During closing argument, the court allowed the prosecutor to play an 18-minute video montage displaying photographs of Beeson from the notebook, crime scene, and autopsy, and the audio confessions of defendant and Patterson. The soundtrack consisted of taped excerpts from Iva Mosely's police interview along with both defendants' confessions.
Before addressing the substance of this evidence, defendant claims the court erred in permitting Beeson's sister and mother to both attend the guilt phase and testify as victim impact witnesses. Defense counsel observed these family members silently crying at points during the trial and argued they should be excluded from the courtroom. The court denied the request, noting that it had paid close attention to the audience and had observed nothing remotely prejudicial. There had been no outbursts or vocal demonstrations, nor any other violations of courtroom decorum.
Nor is there merit to defendant's unsupported claim that family members who observe the guilt phase of trial may not testify as victim impact witnesses. His proposal would severely curtail family members' statutory right to attend trial and the scope of permissible victim impact evidence. Preserving a fair trial for the defendant does not require such an extreme limitation on the court's discretion and the universe of victim impact evidence.
Next, defendant raises several challenges to the victim impact evidence admitted. He argues the evidence was excessive and the content was so emotionally charged as to be a memorial service for the victim. He specifically objects to testimony about Beeson's funeral and family visits to her grave. Finally, he complains the victim impact evidence supported "an invidious comparison between the societal worth" of the deceased and defendant.
This victim impact evidence was well within these guidelines and typical in both volume and content to evidence we have routinely deemed acceptable. (See, e.g., People v. Pearson, supra, 56 Cal.4th at p. 467; People v. Kelly (2007) 42 Cal.4th 763, 793 [68 Cal.Rptr.3d 531, 171 P.3d 548].) Testimony from two family members is not excessive. (People v. Booker, supra, 51 Cal.4th at p. 194.) In Pearson, we upheld the admission of victim impact testimony from three family members and six close friends. (Pearson, at pp. 464-467.) In People v. Brady (2010) 50 Cal.4th 547, 573, 576-577 [113 Cal.Rptr.3d 458, 236 P.3d 312], we concluded testimony from a slain police officer's four sisters, fiancee, two fellow officers, police chief, and treating physician was not unfairly excessive.
Finally, defendant complains the victim impact evidence created a risk that the jury's penalty decision would be swayed by improper comparisons between his character and Beeson's. He asserts this risk is particularly acute in cross-racial crimes, where jurors are likely to empathize with a White victim. We rejected similar arguments in People v. Kelly, supra, 42 Cal.4th at page 799. Here, too, the claims lack merit. Nothing in the victim impact evidence or argument, or elsewhere in the record, even remotely encouraged the jury to consider race in reaching a penalty verdict. (See ibid.) Defendant complains the prosecutor's closing argument expressly contrasted the backgrounds of Beeson and defendant. In fact, the prosecutor only fleetingly mentioned that defendant and Beeson were about the same age in the context of discussing defendant's criminal sophistication. He remarked on the absence of defendant's family at the trial but did not invite the jury to compare this lack of involvement with Beeson's family. In fact, it was defense counsel who argued, "we have a clear contrast here" between "the loving support that
During closing argument, the prosecutor played an 18-minute videotape depicting several photographs of Beeson throughout her life and, briefly, in death. The audio track consisted of recorded excerpts from Iva Mosley's interview and the defendants' police statements. All of the visual and auditory material in the videotape had previously been admitted in evidence. There was no accompanying music. After watching the videotape and hearing arguments from counsel, the court ruled that it could be played as a demonstrative aid during closing argument but would not be admitted into evidence.
Defendant complains that the juxtaposition of victim images with excerpts from the confessions was misleading or inflammatory. The trial court rejected these assertions. We have viewed the videotape and agree that the presentation was not prejudicial. In People v. Wash (1993) 6 Cal.4th 215, 256 [24 Cal.Rptr.2d 421, 861 P.2d 1107], the prosecutor displayed slides of the crime scene and victims during opening statement while simultaneously playing audio portions of the defendant's confession. Over defendant's objection that the presentation was inflammatory, we concluded the prosecutor had committed no misconduct because the slides and recordings were later admitted in evidence and their use as demonstrative aids during argument was appropriate. (Id. at pp. 256-257.) The same is true here. The jury had previously received all of the videotape's images and sounds during trial. While the juxtaposition of confessions with images of the murdered victim may have
Before trial, the prosecutor moved to admit evidence that defendant had sexually assaulted Julia P. In a tape-recorded statement, Julia alleged that defendant had exposed himself to her and requested oral sex, then displayed a gun and attempted to rape her. The defense challenged the truth of these claims, noting Julia did not file a police report and had not mentioned the incident in multiple conversations with the police about defendant. The court ruled the evidence admissible, noting the delayed report went to the weight of the evidence and could be explored on cross-examination. In addition, while the alleged conduct was violent and threatening, the court ruled it was not so inflammatory as to require an additional hearing.
At the penalty phase, Julia described three incidents. Once, when she was sitting under a hair dryer, defendant approached with his pants down. He forcefully touched her breasts and neck, exposed his penis, and asked for oral sex. Another time, she was lying on a couch watching television with friends. Defendant suddenly pushed her down, straddled her, pinned her wrists, and tried to pull her pants down. When she resisted, defendant ordered his younger brother to remove her pants. The brother refused, telling defendant to leave her alone. On a third occasion, Julia went into her friend's bathroom to escape defendant when he was pestering her to have sex. Defendant followed her in, shut the door behind him, and turned off the light. He pulled a gun and held the barrel near his chin. Eventually the friend's mother came to the door,
Defendant now claims this evidence was insufficient to demonstrate he used or threatened to use force or violence. To the contrary, Julia P.'s testimony clearly establishes that defendant used force when he groped her under the hair dryer and pinned her to the couch by her wrists. In the third incident, defendant prevented her from leaving the bathroom and brandished a firearm. These acts violated several penal statutes. They were sufficient to be admissible as aggravating evidence. (§ 190.3, factor (b).)
Defendant also complains the court erred in precluding him from cross-examining Julia about two false claims of rape. Counsel asked whether Julia had told her friend Nicole that she had sex with Nicole's boyfriend, "Pie," because he forced himself on her. Julia answered, "no," and the prosecutor objected when counsel tried to inquire further. The court sustained the objection under Evidence Code section 352, finding any probative value of this evidence would be substantially outweighed by its prejudicial effect, undue consumption of time, and confusion of the issues. Defense counsel asserted the evidence was relevant as a false accusation of rape, but when pressed for a more specific offer of proof he conceded he had not been able to locate Nicole or her boyfriend. The court ruled that no further questioning on the subject would be permitted until defendant was prepared to produce either of these witnesses.
During the chambers conference, defense counsel mentioned he also wanted to introduce evidence that Julia told "various people" she had had sex with her friend's grandfather, Zeke. Counsel wanted to ask her about these statements and "hopefully the witness will testify truthfully that she lied." The prosecutor objected that this offer of proof did not even involve a false claim of rape, but only sexual activity. Remarking that the offer of proof was "very vague" and the questioning sought appeared to be "a fishing expedition," the court ruled that this line of questioning would be prohibited unless the defense satisfied Evidence Code section 782.
The same is true here. Julia denied accusing Pie of rape. For this line of questioning to have any relevance, then, the defense would have had to establish both that the accusation was made and that it was false. (See People v. Tidwell, supra, 163 Cal.App.4th at pp. 1457-1458.) The trial court reasonably concluded this inquiry would consume undue amounts of time. Further, it appears that counsel could not establish adequate foundation in light of his admission that he had not located Pie or the person to whom Julia allegedly complained. Defendant's second proffered impeachment was even further afield. As the prosecutor observed, this alleged statement was not a claim of rape, but merely that the witness had sex with someone. It could conceivably have been relevant if the statement was false, but counsel merely "hope[d]" this was the case and did not have ready proof. The court acted well within its discretion in preventing this fishing expedition from diverting undue time and attention from the trial.
On cross-examination, the defense stressed Julia's failure to tell the police about defendant's harassing conduct until shortly before trial and her spotty memory as to what she told the police at various times. In an attempt to rehabilitate her, the prosecutor asked about a tape-recorded statement she made while in the hospital after Patterson's attack. When asked if she remembered telling officers how she learned defendant had murdered Beeson, Julia said she overheard someone named Charles say to her friend Lakeisha, "`your cousin's crazy for killing that white girl.'" The court allowed the statement but instructed the jury it could not be considered for the truth of the matter asserted but only for its bearing on the witness's ability to recall the day in question. Defendant raised another hearsay objection when Julia testified that Lakeisha told her defendant and Patterson had killed Beeson because "`they were trying to rob her, and she wouldn't cooperate so they killed her.'" The court overruled this objection as well and again told the jury the statement could not be considered for its truth.
Defendant now complains the court violated his due process right to a fair penalty hearing by admitting "highly inflammatory evidence." He complains the probative value of the evidence was slight because there was no serious dispute about Julia's ability to recall the day in question, or the reasons why she failed to tell the police about defendant's assaultive conduct. The record belies this assertion. Defense cross-examination repeatedly challenged Julia's memory of details. Moreover, the statements were only prejudicial insofar as they implicated defendant in Beeson's murder. But they were admitted at the penalty phase of trial, after the jury had already convicted him. Accordingly, the statements concerned a crime that was no longer in dispute. Because defendant's authorities all concern the admission of hearsay statements at the guilt phase, they are inapposite to the question of prejudice here. Finally, to the extent defendant's reply brief suggests the statements violated Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354], the claim
Over defendant's objection that they were too remote, the court admitted as factor (b) evidence testimony regarding several acts he committed as a juvenile. (See People v. Anderson (2001) 25 Cal.4th 543, 586 [106 Cal.Rptr.2d 575, 22 P.3d 347].) Defendant now challenges both the direct admission of these juvenile offenses and his expert's testimony on cross-examination about additional incidents. The evidence was properly admitted.
When defendant was 12 years old, he and a companion approached a woman who had arrived home late at night and was sitting in her parked van. Defendant ordered her to open the door and give them her money. When she did not comply, he struck the van's windows with a pole, cracking the glass. Defendant's companion pointed a gun at her and threatened to shoot her. The victim started the ignition and drove off, swerving as she heard gunshots.
Berkeley police officers detained defendant at age 13 after he appeared to throw something into bushes. During a pat search, they found a lump of rock cocaine. Defendant struggled and tried to run but was eventually handcuffed.
When he was 14, defendant led police on a high-speed car chase through city streets for over 30 minutes. He eventually hit a patrol car and submitted to arrest. When read his Miranda warnings, defendant said, "I shouldn't have run. I should have got out of my car and started shooting at you." He then criticized the officer's gun and bragged that he had been shooting a .357 Magnum revolver earlier that night. Defendant said he threw away the gun and some drugs during the chase. A .357 Magnum revolver was found later that night in an area of the chase.
At age 16, defendant was written up three times for being threatening and disrespectful to Juanita Ream, a teaching assistant at CYA. He called her a "coward" and a "bald-hair bitch" and had to be removed from the classroom by security. He was verbally abusive with the CYA officer and youth counselor who tried to talk with him, refused to cooperate in a search, and had to be physically restrained.
When defendant was 17, a CYA officer overheard him tell his roommate: "`You are going to be my pussy. You are going to give it to me. I'll make
The prosecutor mentioned several additional incidents in cross-examining defendant's expert, Dr. Jamie Candelaria-Greene, about material she read in defendant's juvenile records and discipline reports. For example, defendant's mother reported that he played with matches and at age eight had attempted to set fire to a neighbor's home. From age 10 to 13 defendant lived in a group home, where he had three fist fights with peers and threatened staff on three occasions. Dr. Candelaria-Greene denied seeing reports about armed robberies or auto thefts during this period but did see a juvenile hall report that he had threatened a judge. She also saw reports of defendant's violence against his mother and sister. The court instructed the jury that information referred to in these juvenile reports was not admitted for truth but only to show the basis of the expert's opinions.
Defendant urges us to reconsider our holdings based on the Supreme Court's extension of Roper v. Simmons in Miller v. Alabama (2012) 567 U.S. ___ [183 L.Ed.2d 407, 132 S.Ct. 2455] to sentences of life imprisonment without parole. Yet there too the focus was on Eighth Amendment standards for punishing juvenile misconduct. Here, the question is what evidence may
Defendant also complains that the admission of his juvenile misconduct is inconsistent with section 26, which presumes that children under age 14 are incapable of committing a crime. However, the presumption of incapacity can be rebutted by clear and convincing evidence that the minor knew the wrongfulness of his act. (People v. Lewis, supra, 26 Cal.4th at p. 378.) Because defendant did not raise this objection below, the prosecutor did not present evidence and the trial court did not make findings in this regard. To the extent defendant now argues there was insufficient foundation of his capacity, the claim has not been preserved for review. (See People v. Partida (2005) 37 Cal.4th 428, 434-435 [35 Cal.Rptr.3d 644, 122 P.3d 765].)
First, defendant argues that the incident in which he called the CYA teaching assistant a "coward" and "bald-hair bitch" (see ante, at pp. 471-472) did not violate a criminal statute or constitute an imminent threat. The evidence belies his claim. Ream testified that defendant was walking around the classroom, calling her a bitch, and saying he did not have to listen to her. He seemed to be inciting the other students against her. She felt threatened and called security to have him removed. Defendant was verbally abusive to the officer who removed him and the counselor who tried to talk to him. He repeatedly called them cowards and challenged each to "settle things one-on-one." He became physically agitated and had to be placed in a restraint hold. Ream reported the incident on a disciplinary form. When defendant returned to her class afterward, he walked straight to Ream and said, "see, your write-up means nothing. I can do whatever." Ream testified she felt threatened during the encounter.
Next, defendant challenges the admission of several factor (b) incidents arising from his clashes with CYA deputies. All of the evidence was properly admitted.
Deputy Tammy Wyatt reported defendant for passing hot water to another inmate, a rules violation. Angry about his limited access to hot water, defendant warned a deputy that anyone who tried to enter his cell would be assaulted. When Deputy Wyatt brought him a food tray that week, he shoved it back at her. Defendant was interviewed about the disciplinary report and stated that "if he wanted to get a write-up, he could get one for a much more severe incident." He then repeated there would be "trouble" if deputies entered his cell. When the interview ended and defendant's restraints were removed, he refused to step into the pod. Instead, he turned to Deputy Wyatt and told her she had "better not come up to his cell." Contrary to defendant's claim, this remark could only have been intended, and understood, as a threat. Defendant was visibly angry with Deputy Wyatt, had recently tried to hit her with a tray, and had repeatedly threatened to physically assault any deputy who visited his cell. Defendant's warning to Wyatt clearly implied that defendant planned to assault her if she came to a place where he was unrestrained.
Defendant made a similar threat to Deputy William Humphries when the deputy had to tell him repeatedly to end a telephone call and return to his cell. Defendant yelled, "You better check your attitude. You came in here with attitude today. You don't know who you are dealing with. I'll be here every day, Humphries." When the deputy began writing up a discipline report, defendant added, "I don't care if you are writing me up.... I don't care where I get sent. You need to check your stuff. You still have to come in my room." Although defendant now minimizes this incident as mere "mouthing off," his words clearly implied a threat to assault Deputy Humphries when the opportunity arose, and the deputy understood the statements as threatening.
Defendant also challenges the admissibility of Humphries's testimony that this incident occurred when defendant was in an administrative segregation unit for high-profile or violent inmates. Rather than object, defense counsel chose to cross examine the deputy on procedures in the segregated unit. Absent an objection, defendant's current challenge to the testimony is
Finally, defendant argues a deputy impermissibly testified that he had a reputation for violence. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1233 [275 Cal.Rptr. 729, 800 P.2d 1159].) Deputy Charles Foster testified briefly about a factor (b) incident involving Patterson. In cross-examination, defendant's attorney solicited the deputy's views about defendant's demeanor in prison. Deputy Foster recalled having no real problem with defendant, whom he considered no different than most other inmates. On redirect, the prosecutor asked whether defendant had a reputation in the sheriff's department as being excessively violent toward staff. The court allowed the question, finding that counsel's cross-examination had opened the door to inquiry about defendant's character. Foster answered "yes" and confirmed hearing about defendant's reputation over many years from many different deputies.
Parole Officer Craig Jackson testified about defendant's good behavior leading up to his release from CYA. During his last year there, defendant had no serious disciplinary infractions, had a job, attended classes in victim
Defendant contends the court erred in allowing the prosecutor to cross-examine his expert witness about antisocial personality disorder and future dangerousness. Given the scope of the expert's direct examination, these topics were properly raised for impeachment.
The defense called Jamie Candelaria-Greene, Ph.D., an expert in learning disabilities and special education. At the outset of her testimony, the court read a standard instruction explaining that an expert's opinions should be assessed in light of the expert's qualifications and the supporting facts and reasons. Dr. Candelaria-Greene had reviewed defendant's school, medical, probation, and CYA records but had not met with defendant before the trial. Based on her record review, she testified that defendant suffered from ADHD. Defendant had never received medication or counseling for that condition.
Defense counsel specifically asked if the expert was aware of studies examining the effects of giving prisoners ADHD medication, such as Ritalin. She described "an excellent study" in which Colorado adult prisoners who showed classic signs of ADHD were given Ritalin and counseling. After six months, their recidivism rate "plummeted" from the nationwide average of 50 to 60 percent down to 10 percent. Those still in prison were better able to participate in hobbies and vocational education, "but most of all, there was a greater degree of safety associated with ... the prisoners and those around"
On cross-examination, the prosecutor asked about the DSM-IV requirements for diagnosing antisocial personality disorder. The expert eventually agreed that defendant had been repeatedly diagnosed with a conduct disorder and fit the other DSM-IV requirements for antisocial personality disorder. She did not actually give her own diagnosis that defendant had this disorder. Much of her testimony was based on hypothetical questions, and she repeatedly protested that she was not a psychologist. Defendant objected that Dr. Candelaria-Greene was not qualified to testify about the contents of the DSM-IV. The court found the questioning proper because the expert testified on direct examination that she had relied on the DSM-IV in reaching her conclusions. At defendant's request, however, the court gave a limiting instruction explaining that any reports referenced or read during the expert's testimony were not admitted for truth but only to show the basis of her opinions.
The prosecutor also asked about defendant's history of violent incidents in school and CYA. The expert agreed that, without a change in environmental conditions, past violence is the best predictor of future dangerousness. In particular, she testified that defendant's potential for future violence was high given his past behavior. Defendant objected at sidebar that the subject of future dangerousness was beyond her expertise. The court overruled this objection, observing that the "linchpin" of her direct examination testimony was that defendant would be safe around others in prison if he were treated with Ritalin and counseling. Having raised the subject of defendant's future violence in prison, the court ruled the defense could not insulate it from cross-examination. (See People v. Gates (1987) 43 Cal.3d 1168, 1211 [240 Cal.Rptr. 666, 743 P.2d 301], disapproved on another ground in People v. Williams, supra, 49 Cal.4th at p. 459.) When the court later described its ruling on the record, defendant's attorney clarified his objection. He said, "There is no question that we raised it and that it was proper to discuss future dangerousness." Instead, he meant to object that questions about material in psychiatric reports were beyond her area of expertise.
We have never held that cross-examination must be confined to questions about the precise diagnosis an expert offers. Nor do our cases require that prosecutors present alternate diagnoses through rebuttal testimony, instead of cross-examination. Either way, the evidence is permissible as impeachment of the expert's opinion. (See People v. Daniels, supra, 52 Cal.3d at p. 884.) Finally, it would be anomalous to hold that deficiencies in an expert's qualifications somehow shield her opinions from vigorous testing on cross-examination. Indeed, those deficiencies were themselves an appropriate topic of cross-examination. (Evid. Code, § 721, subd. (a).)
Defendant complains the prosecutor committed misconduct when he used two epithets. In opening statement, the prosecutor referred to defendant and Patterson as "evil men." Defendant objected the next day. The court sustained the objection and directed the prosecutor not to use that characterization in the remainder of his opening statement. The second epithet occurred during the cross-examination of Dr. Candelaria-Greene. The prosecutor asked a hypothetical question about assessing an unwilling subject, whom he referred to as a "violent jerk." The court sustained defense counsel's objection and told the prosecutor to rephrase the question. The prosecutor then described in detail all the personality attributes he was referring to with the shorthand "jerk." The defense raised no further objection.
Moreover, the jury was instructed that opening statements are not evidence but merely reflect counsel's prediction of what the evidence will show. With respect to the hypothetical question that insinuated defendant was a "jerk," the jury was also instructed that questions of counsel are not evidence. Considering these admonitions, and the ample evidence of the murder's brutality and defendant's callous behavior afterward, it is not reasonably likely that the prosecutor's description of him as "evil" or a "violent jerk" improperly inflamed the jury. (See People v. Friend, supra, 47 Cal.4th at p. 84.)
Defendant claims the prosecutor committed misconduct three times in closing argument by referencing facts not in evidence.
First, the prosecutor challenged Dr. Candelaria-Greene's credibility by observing that her opinions contradicted those of many experts whose reports she had reviewed. The experts who had evaluated defendant in person all concluded his potential for future violence was high. In contrast, the prosecutor argued, Dr. Candelaria-Greene "wouldn't even sit down with him face-to-face. Now[,] whether that's a [sleight]-of-hand legal strategy or she didn't want to be in the same room with him, don't know. But she wouldn't even sit in the same room with him."
Defendant did not object to this statement and therefore forfeited a claim of misconduct. "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Samayoa (1997) 15 Cal.4th 795, 841 [64 Cal.Rptr.2d 400, 938 P.2d 2].)
The claim also fails on the merits. Defendant complains that the prosecutor's remarks about why Dr. Candelaria-Greene may have failed to meet with defendant were pure speculation. But the challenged remarks were not phrased as assertions. By expressly stating that he did not know why the expert failed to meet with defendant, the prosecutor conceded the reasons he was offering were merely reasonable possibilities. His point was that no conceivable reason justified offering an opinion without an in-person evaluation. In context, it is not reasonably likely the jury would have misunderstood his comments as asserting a definitive reason for the lack of a face-to-face meeting.
Third, defendant complains the prosecutor's closing argument exaggerated the pleasures of prison life. After describing the trauma Beeson's family endured, the prosecutor compared the defendants' life in custody: "They go on. They have their life in jail, their card games, their basketball games.... [¶] There's a social life, their jobs, schools, educational opportunities." Defense counsel objected at sidebar that no evidence had been presented on the conditions in state prison. The court sustained the objection but allowed the prosecutor to argue about evidence that was presented on the conditions in CYA and county jail. When argument resumed, the prosecutor stated: "You've heard from evidence what life is like in jail and what life is like in the California Youth Authority. You get to play sports, basketball, card games, make home-made alcohol; there's marijuana, cookies, and enchiladas, canteen privileges. There are ... telephones, there are letters, there are visits. There's sex. You've heard evidence that a full life exists behind bars. Maybe not the life ... you would like to think of, but ... if you get yourself a life sentence out of this trial, you get to have that institutional life, and you've heard evidence about jail and about the California Youth Authority, and that includes all those things, things to look forward to. Most of the same things that we all have in our lives now, although they're in a different form." He then stressed that defendants had taken all of these joys of life from Beeson and destroyed her family.
Although defendant objected, and his objection was sustained, he did not ask the court to admonish the jury to disregard the prosecutor's argument. Accordingly, he forfeited this challenge on appeal. (People v. Redd (2010) 48 Cal.4th 691, 753 [108 Cal.Rptr.3d 192, 229 P.3d 101].) In any event, it was unlikely the jury would have misunderstood the prosecutor's initial argument to be about state prison conditions. After the sidebar, he repeatedly referenced specific evidence the jury had heard about conditions in both CYA and county jail. Moreover, defense counsel's final argument dispelled any prejudice that may have arisen. While not permitted to discuss any specific prison where defendant might be sent, defendant's attorney argued that the prosecutor's "country club theory" of prison life "never gives us any detail about such things as lack of freedom, lack of choice, even lack of basic privacy. With the
Defendant raises three complaints of misconduct in the prosecutor's rebuttal argument. Each of these claims was forfeited by lack of an objection and, on the merits, fails to establish prejudicial misconduct.
First, defendant contends the prosecutor attacked the integrity of defense counsel by pointing out their positions throughout the trial. He reminded jurors that at the guilt phase defense counsel had argued defendant was innocent and had falsely confessed. The prosecutor then observed, "Now you are being told by the same attorney for the same defendant, oh, well, he did do it. Okay. You guys are right. We tried to fool you last time." Still speaking in the role of defense counsel, the prosecutor said, "It's as though it is whatever we can say to try and fool you and beat you. Whatever we can say to try and trick you into making a mistake as a jury, to get you to make the wrong decision that will favor the defendants. [¶] We will say anything to you, anything whatsoever." The prosecutor then briefly explained the concept of lingering doubt and stressed that it should not apply because, in saying
Defendant failed to raise a timely objection to this argument and therefore forfeited his claim of misconduct. (People v. Gionis (1995) 9 Cal.4th 1196, 1215 [40 Cal.Rptr.2d 456, 892 P.2d 1199].) On the merits, the remarks did not result in prejudicial error.
The prosecutor's remarks here highlight the inconsistency in defense counsel's positions about the truth of the confession. Although counsel nominally accepted the jury's verdict that defendant gave a true confession, he argued the police had promised defendant he could avoid the death penalty by confessing and told the jury, "You, in fact, are the only ones who can give Grayland the benefit of his bargain...." We have upheld prosecutorial arguments suggesting defense counsel's "job" is to confuse the jury and say anything necessary to obtain a favorable verdict. (See People v. Gionis, supra, 9 Cal.4th at pp. 1216-1217; People v. Bell (1989) 49 Cal.3d 502, 538 [262 Cal.Rptr. 1, 778 P.2d 129].) Although the remarks here were somewhat harsher, in that the prosecutor characterized counsel's arguments as intentionally misleading, he did not claim defense counsel had fabricated a defense or deceived the jury about the evidence they were to consider. (See People v. Clark, supra, 52 Cal.4th at p. 961.) In any event, even if the comments were unfair to defense counsel, they "did not comprise a pattern of egregious misbehavior making the trial fundamentally unfair." (People v. Espinoza, supra, 3 Cal.4th at p. 820.) Nor was it reasonably possible they affected the verdict. (See People v. Peoples (2016) 62 Cal.4th 718, 804 [198 Cal.Rptr.3d 365, 365 P.3d 230]; People v. Abilez (2007) 41 Cal.4th 472, 525-526 [61 Cal.Rptr.3d 526,
Next, defendant claims the prosecutor improperly asked jurors to place themselves in the victim's position and argued the facts of other cases. Defendant's attorney had argued Beeson's death was merely an impulsive murder and not "the worst of the worst," such as a terrorist bombing, sniper killing, or one involving kidnapping or sexual assault. In response, the prosecutor asked the jury to imagine the experience of someone murdered by a bomb or a sniper. Those victims are instantaneously killed and "never knew what hit them." Then he asked the jury to think about everything Beeson experienced: being held down on the floor, hit in the face with a shotgun, "having a belt put around your neck.... having two men holding you down on the floor with their knees and each one has an end on that belt and they are pulling and yanking.... [¶] Think about fighting for your life because you want to live." He then argued Beeson suffered more than the 167 people who died instantly in the Oklahoma City bombing. After the court sustained an objection to argument about other cases, the prosecutor rephrased his point only slightly, stating, "She suffered more than a hundred victims suffered in a bomb blast...." Finally, he asked the jury to think about how painful the stabbing must have been and how frightened Beeson must have felt.
Defendant now argues it was misconduct for the prosecutor to suggest that jurors adopt Beeson's position. Because he did not object below, however, the trial court had no opportunity to consider the objection, admonish the jury, or curtail argument along these lines. (See People v. Bemore, supra, 22 Cal.4th at pp. 845-846.) A failure to object and request an admonition will be excused only if an objection would have been futile or an admonition would not have cured the harm. (People v. Cole (2004) 33 Cal.4th 1158, 1201 [17 Cal.Rptr.3d 532, 95 P.3d 811].) Defendant has shown neither; therefore the objection is forfeited on appeal. (People v. Redd, supra, 48 Cal.4th at p. 753.)
Finally, defendant complains the prosecutor ignored the court's ruling when he revised his comparison to the Oklahoma City bombing to describe a generic bombing with "a hundred" victims. Defendant did not renew his objection, thus forfeiting his claim on appeal. (People v. Redd, supra, 48 Cal.4th at p. 753.) In any event, this brief reference to bombing victims did not rise to the level of misconduct. Although the precise crime the prosecutor had in mind was clear from his previous statement, he technically complied with the court's ruling by rephrasing his remark to refer to a generic bombing. No misconduct occurred.
Defendant argues that even if individual acts of prosecutorial misconduct were not prejudicial, the incidents considered together were so cumulatively prejudicial as to require reversal. Although we observed that some statements in the prosecutor's rebuttal argument bordered on misconduct, they did not render the trial unfair or prejudice defendant. None of the other challenged statements constituted misconduct. Accordingly, there was no prejudice to accumulate.
Defendant finds fault with only one specific sentence in this voluminous record. He notes that, when describing the facts leading up to the murder, the court stated that defendant "coveted a gun to use in committing robberies, perhaps in committing murders." Defendant asserts this statement included improper speculation because there was no evidence he wanted a gun to commit murder. The evidence was undisputed that defendant sought a gun to commit robberies. The court qualified its statement about murders by noting that "perhaps" defendant wanted the gun for this purpose as well, and this was a reasonable inference to be drawn from testimony that defendant was not opposed to killing bystanders during robberies. This brief inference from the evidence does not undermine the court's careful, independent, thorough review of the evidence, which we conclude is amply supported by the record.
Defendant claims that even if the alleged errors were individually harmless, they were cumulatively prejudicial. We found that stationing a deputy at the witness stand during defendant's testimony unsupported by case-specific reasons was error, but harmless. In addition, while noting the claim was not preserved, we also found harmless any assumed misconduct arising from the prosecutor's rebuttal argument. There are no additional errors, assumed or otherwise, to accumulate.
Defendant now argues capital punishment for felony murder violates the Eighth Amendment and international law. We have long held that the death
Defendant raises several challenges to the constitutionality of California's capital sentencing scheme, all of which this court has previously rejected. Defendant presents the claims to preserve them for federal review, but he does not persuade us to reconsider any of these settled decisions. Once again, we hold as follows:
Section 190.2 adequately narrows the category of death-eligible defendants and is not impermissibly overbroad under the requirements of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. (People v. Whalen (2013) 56 Cal.4th 1, 90 [152 Cal.Rptr.3d 673, 294 P.3d 915]; People v. Jones (2012) 54 Cal.4th 1, 85 [140 Cal.Rptr.3d 383, 275 P.3d 496].) The various special circumstances are not unduly numerous or expansive. (People v. Linton (2013) 56 Cal.4th 1146, 1214 [158 Cal.Rptr.3d 521, 302 P.3d 927]; People v. Jennings (2010) 50 Cal.4th 616, 688 [114 Cal.Rptr.3d 133, 237 P.3d 474]; People v. Stanley (1995) 10 Cal.4th 764, 842-843 [42 Cal.Rptr.2d 543, 897 P.2d 481].)
The use of unadjudicated criminal activity as an aggravating factor does not violate due process or the right to a jury trial, nor must the jury make a unanimous finding on this or any other evidence admitted under factor (b). (People v. Whalen, supra, 56 Cal.4th at p. 91; People v. Ward (2005) 36 Cal.4th 186, 221-222 [30 Cal.Rptr.3d 464, 114 P.3d 717].)
There is no constitutional requirement that the jury unanimously find beyond a reasonable doubt the existence of aggravating factors, that aggravating factors outweigh mitigating factors, or that death is the appropriate penalty. (People v. Whalen, supra, 56 Cal.4th at p. 90; People v. Clark, supra, 52 Cal.4th at p. 1007; People v. Blair (2005) 36 Cal.4th 686, 753 [31 Cal.Rptr.3d 485, 115 P.3d 1145].) "The high court's decisions interpreting the Sixth Amendment right to jury trial (Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556, 122 S.Ct. 2428]; Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348]) do not require otherwise. [Citations.]" (Clark, at p. 1007; see People v. Prieto (2003) 30 Cal.4th 226, 275 [133 Cal.Rptr.2d 18, 66 P.3d 1123].) Nor does any constitutional provision require an instruction on the reasonable doubt standard for determining penalty at a capital trial. (People v. Linton, supra, 56 Cal.4th at pp. 1215-1216; Blair, at p. 753.) On the contrary, trial courts should not instruct on any burden of proof or persuasion at the penalty phase because sentencing is an inherently moral and normative function, and not a factual one amenable to burden of proof calculations. (People v. Lee, supra, 51 Cal.4th at pp. 655-656; People v. Avila (2009) 46 Cal.4th 680, 724 [94 Cal.Rptr.3d 699, 208 P.3d 634]; People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137 [12 Cal.Rptr.3d 592, 88 P.3d 498]; see Kansas v. Carr (2016) 577 U.S. ___ [193 L.Ed.2d 535, 136 S.Ct. 633, 642] [penalty phase evaluation of mitigating circumstances is not susceptible to a standard of proof].)
The lack of written findings by the jury during the penalty phase does not violate the federal Constitution or deprive a capital defendant of meaningful appellate review. (People v. Linton, supra, 56 Cal.4th at p. 1216; People v. Whalen, supra, 56 Cal.4th at pp. 90-91.) Intercase proportionality review, comparing defendant's case to other murder cases to assess relative culpability, is not required by the due process, equal protection, fair trial, or cruel and unusual punishment clauses of the federal Constitution. (Whalen, at p. 91; People v. Cook (2006) 39 Cal.4th 566, 619 [47 Cal.Rptr.3d 22, 139 P.3d 492].) Nor does the death penalty statute violate equal protection by providing capital defendants with different procedural safeguards than those given to noncapital defendants. (People v. Williams (2008) 43 Cal.4th 584, 650 [75 Cal.Rptr.3d 691, 181 P.3d 1035]; People v. Clark, supra, 52 Cal.4th at p. 1008.) Finally, California's use of the death penalty does not violate international norms or evolving standards of decency in violation of the Eighth and Fourteenth Amendments. (Linton, at p. 1217; Whalen, at p. 92; Clark, at p. 1008.)
The judgment is affirmed.
Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.
LIU, J., Concurring. —
Today's opinion restates two aspects of our Batson/Wheeler jurisprudence that merit reexamination in an appropriate case. (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler).)
First, with respect to comparative juror analysis, the court says: "Pretext is established ... when the compared jurors have expressed `a substantially
Second, today's opinion includes dicta restating that a trial court, in ruling on a Batson motion, may "take into account `the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her. (See Wheeler, supra, 22 Cal.3d at p. 281.)'" (Maj. opn., ante, at p. 434.) To the extent this statement authorizes trial judges to rely on personal knowledge of the prosecutor or experience with the prosecutor's office, I believe it may go too far. We have almost never relied on such a basis for upholding a trial court's Batson ruling (one minor exception is People v. DeHoyos, supra, 57 Cal.4th 79, 115), and there is good reason not to do so.
Adkins v. Warden (11th Cir. 2013) 710 F.3d 1241 (Adkins) is instructive. The prosecutor in that case said he struck a black juror because the juror was
The Eleventh Circuit rejected this approach. In addition to finding that the trial court erred in relying on the prosecutor's declaration because the defendant had no opportunity to rebut it, the appellate court disapproved of the trial court's "reli[ance] ... on non-record evidence which Mr. Adkins did not have an opportunity to rebut, such as the trial court's personal experience with and opinion about the reputation of the prosecutor." (Adkins, supra, 710 F.3d at p. 1254.) "[T]here was no evidence presented during the Batson hearing about the prosecutor's reputation, other than assertions of good faith by the prosecutor. Neither was there evidence of the prosecutor's use of peremptory strikes against blacks in other criminal proceedings. It was therefore not reasonable for the trial court to interject non-record facts into its Batson analysis. Importantly, as with the prosecutor's affidavit itself, Mr. Adkins did not have notice or an opportunity to be heard on these matters." (Id. at p. 1254, fn. 11.)
The Seventh Circuit has similarly rejected a trial court's reliance on such personal knowledge. (See Coulter v. McCann (7th Cir. 2007) 484 F.3d 459, 465 ["The Miller-El [v. Dretke, supra, 545 U.S. 231] Court also had before it evidence that the local prosecutor's office had used a particular process to manipulate the racial composition of the jury in the past. [Citation.] This is different, we note, from a judge's personal testimonial to the character of the state's attorney in a particular case, which seems to be what happened here. At no point in Batson, Miller-El [v. Cockrell (2003) 537 U.S. 322 [154 L.Ed.2d 931, 123 S.Ct. 1029]], or Miller-El [v. Dretke] did the Court endorse anything like this. We realize that judges need to make credibility determinations, but it is very troubling to base such decisions on personal relationships outside of the courtroom."].)
