IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
DELANEY GERAL MARKS,
Defendant and Appellant.
Super. Ct. No. 109184
A jury convicted defendant Delaney Geral Marks of two counts of first
degree murder (Pen. Code, § 187; all further statutory references are to this code
unless otherwise indicated) and two counts of attempted premeditated murder
(§§ 664, 187). With respect to all counts, the jury found true the allegation that
defendant personally used a firearm (§ 12022.5). With respect to the attempted
murders, the jury found defendant personally inflicted great bodily injury upon the
victims (§ 12022.7). It found true the special circumstance allegations that
defendant committed multiple murders (§ 190.2, subd. (a)(3)), committed murder
in the commission, attempted commission or flight from a robbery (§ 190.2,
subd. (a)(17)(A)), and committed murder against a transportation worker
(§ 190.25). At a subsequent proceeding, it found beyond a reasonable doubt
defendant had suffered four prior felony convictions and served two prior prison
terms. The jury set the penalty for the capital crimes at death. The trial court
denied defendant’s motion to modify the sentence (§ 190.4, subd. (e)). This
appeal is automatic (Cal. Const., art. VI, § 11; Pen. Code, § 1239).
For the reasons stated below, we affirm the judgment in its entirety.
A. Guilt Phase
1. The People’s Case
a) The Taco Bell Shooting
On October 17, 1990, at approximately 7:30 p.m., defendant entered the
Taco Bell on Jackson and 14th Streets in Oakland. He appeared normal to
Sherman Boyd, a Taco Bell employee who had seen him on several occasions
inside the Taco Bell and elsewhere in the community. The two men
acknowledged each other. Defendant ordered two encharitos and Boyd began
preparing the order.
Defendant pulled out a gun, pointed it at the head of Taco Bell employee
Mui Luong, and fired. As blood flowed from her face, she fell. Defendant did not
appear upset or excited; he displayed “no remorse, no feelings whatsoever.” It
seemed to customer Grace Haynes that defendant acted as if the shooting were
“something that is done every day.” Defendant quickly left through the
restaurant’s exit onto Jackson Street, where he walked toward Lake Merritt.
Boyd, Haynes, customer Diane Griffin, and Taco Bell assistant manager
Marla Harris all identified defendant in court as the shooter. All four had also
selected defendant from a lineup without hesitation.
Ms. Luong survived the shooting, but suffered brain damage because the
shooting blocked the flow of oxygen and blood to her brain. She also suffered
spinal shock, in which the spinal cord “basically . . . shuts down.” In the three and
one-half years between the shooting and the trial, Luong had never returned home.
Her brother visits her at the rehabilitation center and speaks to her, but she never
responds, and it appears as if she does not recognize him at all.
b) The Gourmet Market Shootings
At approximately 7:40 p.m. that same evening, Peter Baeza and John Myers
were working, and Denise Frelow was shopping, in the Gourmet Market, a
convenience store located on Jackson Street, 795 feet from the Taco Bell. Myers
observed a male enter the store but did not pay him any attention. The male raised
his arm as if to point to one of the bottles in the liquor section. He fired a gun and
Myers fell backwards. Baeza, the store owner, crouched behind the deli cooler,
holding a cordless telephone, with which Myers expected him to call 911.
Defendant fired another shot, prompting Baeza to drop the phone, fall to the floor
and cough blood. Defendant “breezed out” of the store, “real cool and calm, like
nothing had happened . . . .”
Baeza died at the scene. Myers was rushed to the hospital, where he
arrived “in shock and in a coma.” To save his life, Myers required massive
transfusions. Doctors also removed a kidney and a majority of his liver. Myers
was released from the hospital on November 9, but continued to suffer sporadic
An autopsy on Baeza revealed the cause of death was a bullet wound to the
side of the chest. Forensic evidence further revealed the shooter fired the gun
from a distance of approximately 18 inches.
Myers and Frelow testified the shooter was a Black male with braids in his
hair; Myers recalled he wore a brown jacket. Both in court and in his October 22,
1990, statement to police, Myers described the shooter as being approximately
five feet eight inches tall, with a medium build. Frelow testified the shooter was
between five feet six inches and five feet nine inches tall, weighing approximately
155 or 160 pounds. In an earlier statement to police, she described the shooter as
being about five feet six or seven inches tall. Defendant’s self-described
measurements were five feet five inches tall and 150 pounds. On October 22,
1990, Frelow observed a lineup of suspects, from which she selected defendant as
the person she thought shot Baeza and Myers, although she was not sure.
c) The Taxicab Shooting
Austin Williams, a Nigerian émigré, worked for the same taxicab company
as Daniel McDermott. On October 17, 1990, both drivers were lined up at a taxi
stand on 13th Street near Broadway in Oakland. A man and a woman walked
hurriedly toward Mr. Williams’s taxi; the man went to the front passenger door
and the woman went to the rear passenger door. The man was wearing a brown
jacket, and the woman was wearing a multicolored dress that had diamond shapes
in its pattern. She also had a scar on her face. Williams informed the couple that
his was not the next taxi available. The couple then entered McDermott’s taxi,
which drove them away from the stand.
Susan Yi was living at her parents’ home on Eagle Avenue in Alameda. At
approximately 8:30 p.m. that night an automobile drove up that she thought might
be her father’s car but was a yellow taxicab. She saw a Black male standing
outside the front passenger door, leaning in, as if paying the driver. The man was
yelling at a woman, who Yi saw walk away from the taxi. She was Black,
heavyset, and wore a multicolored dress. The couple appeared to be boyfriend and
girlfriend. A “couple of minutes later” Yi heard what sounded like firecrackers,
except louder, coming from the area where the taxicab was parked. She then
heard the “skid of tires backing up real fast,” and she saw the taxi was moving in
reverse very fast.
Robin Menefee had been defendant’s girlfriend for about a year. As of
October 17, they were living together in the park under a train. Defendant had a
.38-caliber gun that he had possessed for a couple of days. That evening, neither
had money, so they “panhandled,” and then bought beer and wine. As Menefee
sat on a platform near Lake Merritt, defendant told her to stay there and wait for
him. He returned 30 to 60 minutes later and told her that he had shot two people.
He acted “like his normal self.”
Menefee accompanied defendant to a taxi stand at 13th and Broadway
because she was scared that defendant would shoot her too if she left him.
Defendant and Menefee attempted to enter one taxi, but the driver, who had an
African accent, told them he was not moving. They then entered McDermott’s
taxi, with Menefee sitting in back and defendant sitting in front. Defendant and
McDermott discussed the World Series game that was being broadcast on the
radio at the time. McDermott drove them to a parking lot near Eagle Avenue,
where defendant’s grandmother lived. Neither defendant nor Menefee had any
money to pay for the ride.
When the taxi stopped, defendant told Menefee to leave the taxi. She went
into an alley to urinate. She heard a gunshot coming from where the taxi was
parked. Defendant ran toward Menefee and told her that he had shot the driver.
Defendant continued to act normally. The taxi’s horn began honking.
The couple knocked on the door of defendant’s grandmother’s home, but
no one answered. They then hid under an apartment house for about 25 minutes,
after which the couple walked to a store and defendant bought some groceries. As
they later sat waiting for a bus, police arrested defendant. Menefee has a scar on
The autopsy on McDermott revealed he had no injuries indicating any kind
of struggle. The cause of death was a bullet wound to the face.
It was McDermott’s long-standing habit to bring five $1 bills to work so he
could make change. Defendant had seven $1 bills and 43 cents on his person at
the time of his arrest; 75 cents but no paper currency was found on McDermott’s
body. No money was found in the taxi.
Sergeant Mark Landes brought Austin Williams to where defendant was
being detained to see whether Williams could identify him. Williams told
Sergeant Landes that defendant looked very similar to the man who attempted to
enter his taxi, but he could not be certain. He noted the defendant’s skin color and
complexion were the same as that of his would-be passenger, and the hairstyle was
also very similar, but Williams had not had a good enough look at the man to
make a positive identification.
Sergeant Landes retrieved a jacket from the alley near the home of
defendant’s grandmother. Defendant refused to put on the jacket in court to
determine whether it fit. The court instructed the jury it could consider that refusal
as reflecting a consciousness of guilt.
d) Evidence Pertaining to All Counts
Sergeant Mark O’Connell of the Alameda Police Department examined
defendant’s revolver and found there were four expended casings and one live
round remaining. Lansing Lee, a criminalist for the Oakland Police Department,
examined the revolver found on defendant and the four bullets removed from the
bodies of Mui Luong, Peter Baeza, Daniel McDermott, and from the vicinity of
John Myers. Lee concluded with “virtually absolute certainty” that the bullets
fired at Baeza and Myers came from defendant’s gun. Lee’s analysis “indicated”
the bullet recovered from McDermott came from the gun, and the analysis
“suggested” the bullet that injured Luong also came from that source. It was
“highly unlikely” that any of the bullets were fired from a gun other than
2. Defense Evidence
Defendant denied shooting anyone at the Taco Bell, the Gourmet Market or
in a taxicab on October 17, 1990. Defendant testified he cashed a check for $170
on October 15. He had instructed Robin Menefee never to ask whether he had
money; defendant always told people he was broke. When Robin Menefee left
defendant’s presence, he spent the rest of the evening of October 17
unsuccessfully looking for certain individuals. After his search, he sat on his
grandmother’s porch, disgusted that she would not answer. Defendant’s
grandmother, Norah Marks, testified that defendant came by after 10:00 p.m., after
which time she does not open her door.
Menefee returned and told defendant that her cousin, Felix Mitchell,
wanted to talk to him. Defendant then obtained the gun presented in the People’s
case. It was the first time in his life he had ever possessed a firearm. He was to
transport it to a mystery drug location on High Street for $150. Defendant later
bought some groceries on Webster Street for Menefee and himself. They were
waiting at a bus stop so defendant could bring the gun to High Street when police
Sergeant Mark Landes examined defendant’s hands for gunshot residue
four hours after the shooting. They were clean. Joseph Fabiny, a criminalist for
the Alameda County Sheriff’s Department, testified that gunshot residue would
more likely be found on someone if he or she had fired four shots instead of one.
On May 27, 1991, Fabiny examined the jacket recovered by the People for
gunshot residue and found none.
Sergeant Mark O’Connell interviewed defendant just past midnight on
October 18, 1990. Defendant told Sergeant O’Connell he had found the gun a
couple of days earlier. Lieutenant Daniel Voznik also questioned defendant in the
early morning hours after the shootings. Defendant explained he had found the
gun in some bushes on San Pablo Avenue two days prior to the shooting. He did
not mention that someone had given it to him to transport in exchange for $150.
Johnny Wemken was working as court bailiff on the afternoon of
March 31, 1994. He observed defendant conversing with another inmate charged
with murder, Latonya Harris. Harris asked defendant why he was in custody, and
defendant answered that “he was in for three murders.” When she asked how they
died, defendant answered, “I shot them.”
Harris confirmed some of Bailiff Wemken’s testimony. She asked
defendant about his charges, and he responded that he was fighting a murder
charge. When she asked how they died, he answered, “They got shot.” He did not
say, “I shot them.”
B. Penalty Phase
1. The People’s Evidence
The People presented evidence of specific instances of defendant’s
misconduct against both civilians and law enforcement officers. The People also
presented evidence of the effect of the murders on the families of Daniel
McDermott and Peter Baeza.
a) Other Violent Criminal Conduct
Brenda Bailey grew up with defendant. She was home on December 14,
1978, when defendant visited to use her phone. When he finished his call, he
made derogatory comments about Bailey’s brothers. After she told defendant she
did not want to hear his comments, he hit her in the head with a telephone.
Defendant pulled her from her chair onto the concrete floor, breaking two of her
teeth. Defendant then pushed her through the very thick bathroom window.
Defendant threw fingernail polish and Comet on her. For this incident, she needed
26 stitches on the inside of her chin and 27 on the outside. Defendant threatened
that if she told anyone about the attack, he would put a bomb in her six-year-old
son’s mouth, cut off her nine-year-old son’s head, and kill her mother.
Shirley Hitchens had lived with defendant for about a year. He beat her and
stabbed her with a knife, so she ran away, leaving her keys, clothes, furniture,
everything. In the early morning hours of January 31, 1982, Hitchens was walking
on a street when defendant drove up and told her to get in his car. She refused
because she was scared. She ran and told Bobby Jones, who approached
defendant’s car. Defendant tried to grab Hitchens, but Jones intervened. Witness
Jeff Heilbronner saw defendant holding a knife, chasing another man around a car.
Someone shouted that the police were coming, and defendant jumped into his car,
and put it in reverse. Officer Terry Lewis grabbed Bobby Jones, and they fell to
the ground. Police officers twice ordered defendant to exit and not start his car,
but defendant began driving backwards. The officers warned defendant that there
were people behind him. Defendant drove over both Jones and Officer Lewis. If
defendant had driven straight backwards, he would have driven over Officer
Lewis’s lower leg. Instead, defendant turned the wheels so the car drove over the
officer’s lower back. Officer Lewis suffered bruises when the car pinned his arms
against the street.
On December 24, 1988, Jim Payne and his son Trent went to a 7-Eleven
store to rent a movie. When the father pulled out money to pay, defendant
grabbed about $400 to $500. Defendant knocked Payne to the ground and
bloodied his nose.
The People also described several instances of defendant’s violent criminal
conduct inside correctional facilities. On February 4, 1989, Alameda County
Deputy Sheriff Greg Breslin heard a loud banging noise coming from defendant’s
cell in the North County Jail. When Deputy Breslin investigated, defendant told
him, “I didn’t kick the cell, and fuck you.” Defendant adopted a “karate stance”
and challenged Deputy Breslin to fight. Deputy Breslin left the cell and returned
with another deputy, when defendant lunged at Deputy Breslin. Defendant bit him
and punched him in the groin. Defendant taunted Deputy Breslin, “I bit you and
punched you in the balls. How does it feel, punk?” Deputy Breslin recalled
defendant bragged, “I bit him real good. And I remember he cried out like a
On January 19, 1986, James Hewitt was serving as watch commander of
California Men’s Colony West Facility at San Luis Obispo. Defendant, as part of
a group of Black inmates, approached another inmate named Herzog and struck
him in the nose. Such interracial assaults are a special concern to prison security
On March 28, 1989, defendant kicked backward karate-style at Deputy
Jones, who was transporting him in an elevator at North County Jail. When
defendant and the deputies escorting him arrived at their destination, Deputy Jones
removed defendant’s handcuffs. Defendant put his foot on the wall and drove
himself backward into Deputy Jones.
On October 1, 1990, when confined at Santa Rita Jail, defendant asked
Deputy Sheriff Sebastian Tine for toilet paper and a razor for shaving. Deputy
Tine tucked the razor blade inside the paper and gave them to defendant. When
Deputy Tine was distracted, defendant struck him in the face, drawing blood and
knocking off his glasses.
On November 6, 1992, defendant was sitting in a courtroom, with his arms
shackled. When his attorney Joseph Najpaver entered the room, defendant
“bolted” from his chair, and began kicking Najpaver in the groin and waist area
very fast, at least five times. Najpaver was defendant’s attorney from October 30,
1990, until shortly after the November 6 attack.
b) Impact on Survivors
Jacqulin Le Gree was Daniel McDermott’s older daughter. He always was
kind and loving, and went out of his way to help strangers. He was never violent
or angry. Le Gree would have been able to handle her father’s death better if it
had occurred through natural causes or an accident, rather than defendant’s
purposeful act. Le Gree feels the loss most painfully when her children tell her
they do not remember their grandfather.
Ingrid Page was Daniel McDermott’s younger daughter. She last saw her
father as she was preparing to go to Germany as part of her military service. She
could not understand why anyone would want to kill her father, who had never
done anything to anybody. Initially, the hardest aspect of her father’s death was
its unnatural cause. Now the hardest part was that her father never had the chance
to meet her husband or her daughter.
Thomas Carter was an employee of Peter Baeza’s. Until he met Baeza, no
one would give Carter a job because of his seizure disorder. Baeza treated Carter
as a human being, when other people did not and helped him obtain disability
payments for the disorder. He treated Carter like a son. Carter’s seizures had
almost disappeared due to Baeza’s assistance. Since Baeza’s death, however,
Carter has lost his job and has been unable to find another. Carter’s physical
condition then deteriorated, and his fiancée left him. Baeza often extended credit
to the elderly of the neighborhood and was kind to everybody.
Carman Baeza Waller, Peter Baeza’s daughter, described her father as a
“class act, a gentleman.” He taught her about her Chilean heritage and that males
can be gentle. She looked for someone like her father when she was ready to get
married. The most difficult part of her father’s passing was the look in her
mother’s eyes when she learned her husband of 39 years was dead. After the
funeral, the family brought a collage of photographs from Baeza’s life to his
widow’s home. Carmen Waller’s four-year-old son moved all his toys next to the
collage and explained, “I just wanted to play with Poppo, like we used to.”
Peter Baeza’s memorial service was standing-room only. People whom the
family did not know approached them and described Baeza’s acts of kindness.
Many elderly people who could not attend wrote letters and cards. It would have
been easier for Waller to accept her father’s death if it had been the result of poor
health. She wonders what it will be like for her children to grow up without their
Fanny Baeza met her future husband when she was nine years old and he
was seven. They immigrated to the United States from Chile on Easter Sunday,
1962, with their two children, whom they hoped to raise in a better environment.
Baeza worked as an aircraft mechanic until he bought the Gourmet Market in
1972. Fanny Baeza worked as a public health nurse until her retirement in 1985,
when she was supervising nearly 100 other nurses. Peter Baeza was responsible,
honest, and trustworthy. He was a good father, a good husband, and a good
provider. Fanny Baeza was recovering from breast cancer when her husband was
When Ms. Baeza lost her husband, she lost everything. With her children
grown and moved out, all she had was her husband for company. She suffered
financially, as there was little insurance, and nothing remained after probate. She
had to sell her home and begin working again. Since the murder, she wakes up
every morning at 3:15 a.m., the time when she learned of her husband’s death
from a telephone call. Peter Baeza used to call his wife four or five times a day to
tell her how much he loved her. After his death, however, she has become very
lonely, as there is “nobody to call me, nobody to share my day with, nobody to
hear how his day was. Just me.”
Peter Baeza taught his son Charles a work ethic and politeness. Although
the family initially came together after his death, they have since grown further
apart. The financial impact of Peter Baeza’s death was devastating. There was
not enough money in the estate even to pay for the funeral. When Charles and
Fanny Baeza visited the store after the murder, people thanked them for letting
Peter Baeza be a part of their lives. One woman told Charles how she moved to
the neighborhood, fleeing her former husband. She had a young son and no
money. Peter Baeza extended her credit until she got a job. She eventually
became successful, and stated she never would have made it but for Peter Baeza’s
generosity and faith in her. As Charles Baeza summarized, “This is not a regular
guy. There is nobody like him. There never will be. . . . I’ll live my life trying to
be like him.”
2. Defense Evidence
Defendant testified, and presented several witnesses who described his
background. Defendant’s own testimony covered both the general circumstances
of his life and the specific incidents raised by the People’s penalty phase evidence.
(1) Defendant’s Testimony
Defendant was the oldest child in a family of six. His father worked in
construction, and his mother worked for the phone company and then at different
schools. He joined the Navy in 1974 when he was 18, and left two years later. He
received money to continue his education from the government, but he did not do
any work because he did not want to. He began working as a receptionist in 1978
when his girlfriend was pregnant. For the next decade, defendant alternated
among various odd jobs and prison.
After an October 1988 bus accident, defendant began suffering epileptic
seizures. His condition was aggravated when he learned of his mother’s death.
He was in prison and unable to attend the funeral. No one in his family told
defendant for four months because they thought it would affect him and his
participation in prison programs. Defendant was receiving medication for seizures
at the time of the shootings.
Defendant regretted that his father never gave him a “father-son” talk about
the importance of staying in school. His father was jealous that defendant earned
his high school diploma at age 16, whereas he did not obtain one until he was 40.
(2) Other Witnesses
Several other witnesses testified at the penalty phase, including defendant’s
daughter Relisha Marks, his sister Elaine Marks Bell, his aunt Bobbie Jane Redic,
his cousin Lorraine Winn, his brother Damon Marks, and three women who had
known defendant since his childhood or birth, Reverend Betty Williams, Effie
Jones, and Willoris Childs, the grandmother of defendant’s daughter. They
presented mostly consistent testimony that described defendant as having grown
up in a good family environment with religion, where there was no drug or alcohol
abuse, no domestic violence, and with a father who encouraged education and hard
work. Defendant was helpful to his family as a child. He had no more problems
than the average child and was never in serious trouble.
Defendant’s problems began after his discharge from the Navy where he
“lost himself” through drugs. “[I]t seem[ed] as if there had been [a] deterioration
in [defendant’s] thought processes,” as defendant was “talking off the wall.”
Defendant’s father disapproved of defendant’s drug use, but defendant refused to
listen to his father’s advice. Because of defendant’s trouble, his father did not
want him at the family home, at the home of defendant’s grandmother, or at the
funeral of defendant’s mother. Defendant had a close relationship with his mother
and his inability to attend her funeral may have contributed to his problems.
Defendant never hit his daughter (age 15 when she testified), or anyone else
in her presence. She never saw him intoxicated and never had any problems with
him. When he was not in prison, she saw him once or twice a week.
b) Other Violent Criminal Conduct
Defendant testified regarding the specific examples of misconduct
described in the People’s case. Defendant admitted he had four prior convictions,
but asserted he had been falsely convicted. He claimed Shirley Hitchens wanted
to enter his car, and Bobby Jones was the one with a knife chasing defendant. He
did not think he ran over Officer Lewis, but if he did, it was an accident that
happened as he fled for his life. Defendant punched Brenda Bailey in the face
only after she had tried (unsuccessfully) to throw hot chicken grease in his face.
Defendant protected himself against Jim Payne’s “tak[ing] the law into his own
hands,” although defendant admitted he was wrong in taking Payne’s money. He
never hit Payne with his hands.
Defendant explained that he did not attack Deputy Breslin. Defendant had
been reading his Bible when the deputy called him a “son of a bitch.” Defendant
said, “You are the same punk motherfucker [who] called my mother a bitch. Fuck
you.” Deputy Breslin then came running at defendant. Defendant punched
Deputy Breslin in the groin. Defendant slapped him around, but Deputy Breslin
and another deputy hit defendant in the groin, and then they all started laughing.
Defendant did not kick Deputy Jones, who had been shoving defendant.
Defendant punched him, and told him, “I’m just a person, all you got to do is ask
me, and I’ll move.” Defendant struck Deputy Tine because the deputy harassed
him with racial remarks and threw away his book about the prosecution and
execution of Julius and Ethel Rosenberg. Defendant attacked inmate Herzog after
Herzog jumped him. Defendant initially ran away, but realized he had to fight
back, so he did.
Defendant admitted kicking his attorney Joseph Najpaver. Defendant
wanted different counsel because Najpaver told him to plead guilty and accept a
sentence of life imprisonment, and did not gather evidence to show defendant was
innocent. Defendant planned the attack to secure new counsel. “I knew [if] it was
a verbal conflict that wouldn’t grant me justice, but . . . if it’s physical and verbal
he has to be removed. . . . I knew I had to make contact to get rid of him.”
Deputy Sheriff Rachael Lauricella obtained a statement from defendant
after his attack on Deputy Tine. The two men often exchanged insults. After
defendant stated, “I’ll hit you upside your motherfucking head if you disrespect
me,” Deputy Tine then remarked, “I’ll make that son of a bitch regret the day he
ever lived.” When defendant asked about Deputy Tine’s accusation that defendant
was a cell soldier1 hiding in administrative segregation, Deputy Tine repeated the
accusation, so defendant hit him. Defendant did not tell Deputy Lauricella that
Deputy Tine had used any racial epithets.
Defendant agreed that he made the statement to Deputy Lauricella, but
asserted that Deputy Tine had engaged in racial slander for several weeks.
Defendant completed a grievance form against Deputy Tine, who tore it up in
A. Competency Issues
1. Sufficiency of the Evidence
Defendant contends the jury erred in finding him competent to stand trial,
thereby depriving him of due process under both the Fourteenth Amendment to the
United States Constitution and article I, section 15 of the California Constitution.
A defendant is incompetent if “as a result of mental disorder or developmental
disability, the defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a rational manner.”
(§ 1367, subd. (a).) The defendant has the burden of proving incompetency by a
preponderance of the evidence. (§ 1369, subd. (f); People v. Marshall (1997) 15
Cal.4th 1, 31 (Marshall).) An appellate court reviews the record in the light most
favorable to the jury’s determination. (Ibid.) We conclude that substantial
evidence supports the jury’s competency finding. We further find the trial court
properly declined to order a subsequent competency hearing.
Deputy Lauricella explained the term was an insult that described someone
who talked big behind his cell door but did not back up that talk when the door
The defense presented several witnesses to establish defendant’s
incompetence to stand trial. Joseph Najpaver, defendant’s initial attorney,
testified that defendant started out as a cooperative client. But defendant often
interrupted the preliminary hearing proceedings. Defendant wished to have a
different attorney represent him because he believed that Najpaver thought he
was guilty. Defendant brought four Marsden2 motions to obtain new counsel,
during which defendant asserted Najpaver had called him a “nigger,” which
Najpaver had not. Defendant complained that Najpaver and cocounsel Joseph
McGrew “have tried to con . . . or manipulate me to take life sentences for
something I did not do.” Najpaver had tried to negotiate a plea through which
defendant could receive a sentence of life imprisonment without possibility of
parole. Defendant became very angry during the preliminary hearing when his
former girlfriend provided damaging testimony.
Judge George Nelson presided over defendant’s preliminary hearing.
During the hearing, the prosecutor tried to photograph defendant, but defendant
tried to keep his eyes closed, which gave a distorted picture of his face. Judge
Nelson considered this a rational act because it would prevent the prosecution
from developing an accurate photograph. Considering defendant’s overall
behavior during the hearing, however, Judge Nelson concluded defendant “was
acting out in a manner prejudicial to his case,” by distracting his attorney and
influencing his former girlfriend during her testimony. Defendant did not act out
that way when police officers testified.
Dr. James Anderson’s stipulated testimony was that all defendants found
incompetent to stand trial go to Atascadero State Hospital. Dr. John Riley, a
People v. Marsden (1970) 2 Cal.3d 118.
psychologist there, testified that the hospital has a trial competency program that
attempts to restore defendants to competency so they can stand trial. Of those
defendants who come to the hospital, 90 percent return to stand trial, and 93
percent of those complete the trial process. Defendants may stay at Atascadero
State Hospital beyond three years if they have committed a serious felony
involving great bodily injury or the threat of it and remain incompetent and
dangerous. One defendant remained for 12 years until he was deemed competent
to stand trial.
Dr. Fred Rosenthal examined defendant on February 24, 1992. Dr.
Rosenthal concluded defendant was not competent to stand trial, basing this
conclusion mostly on descriptions of his behavior “by a number of people over the
years.” Dr. Rosenthal opined that defendant did not understand the nature of the
charges against him, because defendant indicated the charges concerned only the
possession of a weapon. Defendant was cooperative with Dr. Rosenthal, although
defendant’s comments occasionally went off on tangents. Dr. Rosenthal
considered defendant paranoid because he believed his attorney had made a deal
with the district attorney to convict him and there was thus no chance of
defendant’s “getting any kind of trial.” On cross-examination, Dr. Rosenthal
stated that if he himself were a defendant who maintained his innocence, and his
counsel sought to have him plead guilty and receive a sentence of life
imprisonment without possibility of parole, he would take steps to find a different
attorney. Dr. Rosenthal did not know that defendant had attempted to do so on
four separate occasions.
Josalyn Harris, a mental health counselor at North County and Santa Rita
Jails, saw defendant every week or two from October 1990 to June 1992. He
complained to her about the collusion between the district attorney and the public
defender. Defendant trusted Susan Sawyer (his attorney for the competency
hearing) and thus cooperated with her. Defendant was aware of the possibility that
he might be sentenced to death.
Deputy Sheriff Richard Quinn worked at Santa Rita Jail and conducted
weekly reviews of defendant. Deputy Quinn often recommended that defendant
be housed in administrative segregation or isolation. Defendant wished to remain
segregated from the rest of the jail; he indicated he had received threats from other
inmates. Defendant made excuses to remain segregated. He once stated that if
moved, he would have “disciplinary problems,” which Deputy Quinn interpreted
to mean he might assault staff, other inmates, and generally refuse to “go along
with the program of the jail.” On one occasion, Deputy Quinn wrote, “I believe
that [defendant] is just hiding from the rest of the jail. He does seem to have some
mental problems, remain A[dministration] I[solation].” Deputy Quinn believed
defendant was competent to stand trial.
Dr. Karen Gudiksen worked as a psychiatrist at the Santa Rita Jail. She had
examined approximately 250 people for competency over 20 years and found most
of them incompetent. She examined defendant in February 1992, in March 1992,
and in July 1992. She concluded he was not competent to stand trial, basing that
on defendant’s disorganized speech and bizarre descriptions of physical ailments.
Defendant paused during the interview, as if he were hearing voices. In
determining defendant’s incompetency, Dr. Gudiksen also relied on his history,
which was provided by defendant personally and Attorney Najpaver. Dr.
Gudiksen’s report stated defendant “goes on and on . . . about discrepancies
between his appearance and that described by some of the witnesses.” Dr.
Gudiksen had not read the preliminary hearing transcript, and thus did not know
whether defendant’s point was valid.
Francis McGrew was cocounsel with Najpaver, who was the lead attorney.
During the preliminary hearing, defendant talked to himself, laughed
inappropriately, and made objections. Robin Menefee’s testimony “set him off.”
He remarked, “That’s not true. She’s got a plate in her head. She doesn’t know
what she’s talking about. She’s not a good witness.”
Dr. David Stein, a clinical psychologist, administered neuropsychological
tests to defendant. Defendant had impaired motor skills. Defendant also has
difficulty sequencing material. It took him 170 seconds to complete a project
connecting dots, which the average person completes in 15 to 30 seconds. He was
also unable to copy shapes and figures accurately. Defendant could count
backwards from 20 and could correctly multiply four times three in his head, but
needed to use his fingers to multiply eight times six. He correctly recited the
alphabet, although he added the letter “u” after “q.” He correctly identified the
President of the United States and his predecessor, and the Governor of California.
Based on personal observations and the records he reviewed, Dr. Stein concluded
defendant had emotional and organic problems.
The People presented three witnesses. Holly Lasalle, an accounting
supervisor at Santa Rita Jail, testified that prison records reflected defendant never
spent more money at the prison commissary than he had remaining in his account.
However, she admitted that the records would not reflect any activity if defendant
attempted to make a purchase with insufficient funds. Sergeant Harvey Lewis
testified that defendant completed paperwork requesting legal materials. Deputy
Sheriff Timothy Durbin, a classification officer at Santa Rita Jail, was responsible
for the assignment of inmates. In June 1992, defendant asked Deputy Durbin for a
work assignment. Defendant believed that if he had a job it would look better to
the jury in his upcoming trial. Defendant told Deputy Durbin that he was rejecting
an invitation to appear on the television program America’s Most Wanted because
his attorney had advised him that it was not in his best interests, as he might “trip
himself up.” Defendant stated he would have a competency hearing soon. Deputy
Durbin asked whether that was a hearing to decide whether defendant could fire
his attorney, and defendant responded, “No, it is a competency hearing to see
whether or not I am sane.” Defendant added, “I should lose that in June and I’ll
start my main trial later in the year or early ’93.”
In rebuttal, the defense called Dr. Jules Burstein, a clinical and forensic
psychologist. Dr. Burstein had examined approximately 100 individuals for
competency over the past 11 years, and found approximately 60 to 70 percent of
them incompetent. He had examined defendant for competency in 1989 regarding
a prior case. At that time, Dr. Burstein concluded defendant was competent to
stand trial, as he understood the nature of the charges “only too well,” and that
although his former attorney might have believed defendant was incapable of
cooperating with him, Dr. Burstein believed defendant did not wish to cooperate.
Dr. Burstein had recorded defendant as a malingerer, someone who acts crazy to
stop judicial proceedings against him. In July 1992, however, Dr. Burstein
examined defendant and determined he was not competent, although defendant did
know with which offenses he was charged. Defendant told Dr. Burstein that “he
got along fine” with his new attorney, Susan Sawyer. Before the 1992
examination, Attorney Sawyer informed Dr. Burstein of the conclusions of both
Dr. Rosenthal and Dr. Gudiksen, with whom Dr. Burstein had become acquainted
in 1977. Dr. Burstein was perplexed by Attorney Sawyer’s invitation to examine
defendant, because the determination of incompetency by two doctors is usually
sufficient. In explaining the change in his assessment of defendant from 1989 to
1992, Dr. Burstein noted that the clinician in 1989 found defendant nonpsychotic,
whereas in 1992, Joslyn Harris, whose reputation as a clinician Dr. Burstein
respected, found defendant psychotic.
The jury determined defendant was competent to stand trial. The defense
moved for a judgment notwithstanding the verdict. The court denied the motion,
observing that Deputy Durbin’s testimony alone provided substantial evidence of
Defendant contends insufficient evidence supports the jury’s finding.3 He
relies on People v. Samuel (1981) 29 Cal.3d 489 (Samuel), where the defense
“presented an impressive array of evidence” demonstrating incompetence. (Id. at
p. 497.) We further found that neither of the People’s witnesses contradicted any
of the defense testimony. (Id. at p. 498.) We find Samuel distinguishable from
First, the defense evidence was not compelling. Although the defense
presented expert testimony, the People’s cross-examination called into question
the reliability of the experts’ analyses. As we have explained, expert testimony is
only as reliable as its bases (Marshall, supra, 15 Cal.4th at p. 32), and here they
were suspect. Dr. Gudiksen’s information about defendant’s history was limited
to that which she received from defense counsel and her meetings with defendant.
Dr. Burstein acknowledged he was familiar with the determinations of the other
experts (one of whom was an acquaintance) before examining defendant for
himself. Dr. Burstein also justified his opinion by citing the opinion of another
Furthermore, the defense experts who considered defendant incompetent
were unfamiliar with much of the evidence that tended to render defendant’s
behavior comprehensible. Dr. Rosenthal concluded defendant was paranoid and
Although defendant cites evidence developed during the guilt and penalty
phases, our review is limited to the evidence before the court at the time of the
competency hearing. (See People v. Welch (1999) 20 Cal.4th 701, 739 [trial
court’s decision not to declare doubt as to defendant’s competency cannot be
challenged on appeal by reference to subsequently produced evidence].)
unrealistic about the proceedings because defendant was convinced his attorney
and the district attorney had made a deal to convict him so he would not get a trial.
But Attorney Najpaver had in fact attempted to conclude a plea agreement with
the district attorney, which would have generated a conviction without a trial. Dr.
Rosenthal testified that if his own attorney had tried to have him plead guilty for a
sentence of life imprisonment without possibility of parole even though he
maintained his innocence, he himself would seek new counsel. Dr. Rosenthal did
not know that defendant had tried to do so on four separate occasions. Similarly,
Dr. Gudiksen’s report stated defendant “goes on and on . . . about discrepancies
between his appearance and that described by some of the witnesses.” Dr.
Gudiksen assumed that this repetition indicated that defendant was not “focusing
on the issues,” but she had not read the preliminary hearing transcript, and thus did
not know whether defendant’s concern was a legitimate criticism of the People’s
case against him.
Second, and more importantly, whereas the prosecution in Samuel failed to
contradict any of the defense testimony (Samuel, supra, 29 Cal.3d at p. 498), the
People below produced abundant evidence that contradicted the defense
testimony, most of it coming from defendant’s own mouth. For example, although
Dr. Rosenthal opined that defendant believed the charge concerned only
possession of a weapon, defendant himself remarked, “I didn’t do no Taco Bell
shootings and no Gourmet shootings, and no cab shootings.” Defendant’s
statements support the inference that he fully recognized the magnitude of the
charges he faced and the potential consequences, as well as counsel’s
unwillingness to seek an acquittal. “And this is a life or death, either I get life or I
get death. It’s just cut and dry. Either you get life or you get death, and here are
two people playing with your life. I need somebody who is serious that want to
see me victorious . . . .” Defendant objected to the fact that Attorneys Najpaver
and McGrew “tried to . . . manipulate me to take life sentences for something I did
not do.” At one Marsden hearing, defendant told the court, “I want a public
defender . . . who I can work with, understand me. . . . I know I can’t pick my own
lawyer, but I’m saying if there is a conflict and my life is at stake . . . . I can’t get
my rights with the counsel who don’t believe I’m innocent. He don’t believe I’m
innocent, and he’s addressed me as such.” Defendant also indicated he understood
the nature of the competency hearing: “[I]t is a competency hearing to see
whether or not I am sane.”
Defendant’s statements and conduct further showed he could assist counsel
in the conduct of the defense. Although he did not cooperate with the attorney
who was trying to arrange defendant’s conviction for noncapital murder, he
cooperated with Attorney Sawyer because he trusted her. He took her advice not
to appear on television and he sought work to make a good impression on the jury.
Defendant thus showed he was able to cooperate with counsel but sometimes
refused to do so, largely to achieve a substitution of counsel. In an earlier
proceeding described during the instant hearing, defendant remarked, “I know I
acted like a zip-down fool in the courtroom. I don’t want Mr. Denton as my
attorney and I will not cooperate with him.” Defendant promised to cooperate and
refrain from acting like a “zip-down fool” if he were granted a new attorney.
Furthermore, although defendant’s outbursts did not comport with
courtroom protocol, they did reflect his attempt to provide advice to counsel. For
example, defendant complained that counsel failed to ask a witness who claimed
to have been five feet from the smiling perpetrator whether there was anything
unusual about the perpetrator’s teeth, as defendant had missing teeth. We
conclude there was substantial evidence from which the jury could rationally infer
defendant’s competence to stand trial.
Defendant further contends that his conduct during trial warranted a further
examination of his competency, and the trial court erred in failing to suspend the
proceedings. However, once a defendant has been found to be competent, even
bizarre statements and actions are not enough to require a further inquiry.
(Marshall, supra, 15 Cal.4th at p. 33.) Reviewing courts give great deference to a
trial court’s decision whether to hold a competency hearing. “ ‘ “An appellate
court is in no position to appraise a defendant’s conduct in the trial court as
indicating insanity, a calculated attempt to feign insanity and delay the
proceedings, or sheer temper.” ’ ” (Ibid., quoting People v. Danielson (1992) 3
Cal.4th 691, 727, disapproved on another ground in Price v. Superior Court
(2001) 25 Cal.4th 1046, 1069, fn. 13 (Price).)
Moreover, defendant’s most conspicuous outburst during trial amply proves
his ability to understand the proceedings and assist counsel. When the prosecutor
concluded his redirect examination of John Myers, defendant interrupted, “Your
Honor, I object. This person stated it was not me, it was No. 6 who committed the
shooting. . . . He did not even ask.” Discussion among the attorneys and the court
revealed that Myers had selected a suspect other than defendant at a photographic
lineup. The prosecutor recognized, however, there was a sound tactical reason for
defense counsel’s not asking Myers about his failure to select defendant: Myers
had indicated “it was a toss up” between defendant and the “number six”
individual; Myers finally chose the latter. Although there was a legitimate reason
for not asking Myers about his selection at the lineup, defendant’s comment
reflected he comprehended not just the nature of the proceedings but the state of
the People’s case and its potential deficiencies. Defendant also demonstrated his
ability to offer assistance to counsel, even if such assistance was neither solicited
Defendant was properly found competent to stand trial.
2. Defendant’s Requested Instruction
Defendant requested the following special instruction: “If the defendant is
found mentally competent to stand trial, criminal proceedings will immediately be
resumed and the trial on the offense charged shall be held in the normal course of
the court’s business. [¶] If the defendant is found mentally incompetent to stand
trial, criminal proceedings shall remain suspended until such time as he becomes
mentally competent. In the meantime, the court will order the defendant to be
confined at a state hospital for the care and treatment of the mentally disordered
where he will participate in a program designed to promote the defendant’s speedy
restoration to mental competence.” The trial court refused to read the instruction.
The court stated that Dr. Riley’s testimony regarding Atascadero State Hospital
had already provided the jury with this information, although the court expressed
an inclination to instruct if the jury were confused about the issue. Defendant
contends the court erred in failing to read the instruction, thereby violating his
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution, and article I, sections 7, 15, and 17 of the California
Constitution. We find no error.
The defense again moved for a competency hearing after defendant testified
in the guilt phase. The motion was based in large part on defendant’s frequent
nonresponsiveness to the questions posed. As the trial court found, however,
defendant strategically ignored the limited scope of questions and aggressively
presented to the jury material that would either tend to raise a doubt about his guilt
or engender sympathy for him. The court considered this “an intentional and
volitional and willful decision by him to go outside the scope of questions and
place material before the jury that he perceived to be in his interests.”
The defendant based the request on People v. Moore (1985) 166
Cal.App.3d 540 (Moore). Moore held that a defendant in a sanity proceeding is
entitled upon request to an instruction that a finding of not guilty by reason of
insanity does not entitle the defendant to immediate release as would an ordinary
acquittal. We explained the instruction was designed to preclude the possibility
that jurors would find the defendant sane simply because they perceived no other
way to prevent him from returning to the community. (See People v. Kelly (1992)
1 Cal.4th 495, 538.) Defendant argues the jury likewise might have found
defendant competent simply to prevent his permanent immunity from punishment.
The requested instruction, however, characterized defendant’s return to
competence and the eventual resumption of criminal proceedings as inevitable.
Notwithstanding the hospital’s attempt “to promote the defendant’s speedy
restoration to mental competence,” there was no guarantee of a speedy recovery,
and the instruction was therefore flawed. Furthermore, we have declined to extend
Moore beyond its original context. (People v. Thomas (1992) 2 Cal.4th 489, 539.)
Finally, because the proposed instruction is not constitutionally based, its
erroneous omission does not warrant reversal unless a different result would have
been reasonably probable, which is not the case. (See People v. Young (1987) 189
Cal.App.3d 891, 916 [failure to read Moore instruction reviewed for prejudice
under standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)].)
B. Guilt Phase
1. Courtroom Security
Defendant contends the trial court erred in placing a deputy sheriff next to
him during his testimony. He contends this error deprived him of his rights under
the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States
Constitution and article I, sections 7, 15, and 17 of the California Constitution.
We find no error.
Prior to the start of trial, defense counsel requested that defendant be
subject to physical restraints in the courtroom. One defense attorney expressed
fear that defendant might injure him during trial; the other attorney indicated he
was concerned not with defendant’s injuring him but with defendant’s harming his
defense by misconduct before the jury. The trial court declined to impose the
restraints, concluding the record before it failed to establish the “manifest need”
required by People v. Duran (1976) 16 Cal.3d 282 (Duran), for the restraints.
The proximity of the witness stand to the jury box prompted the court to
revisit the issue once defendant was about to testify. The court proposed two
alternatives: defendant could testify from his position at counsel’s table or he
could testify from the witness stand with a marshal sitting next to him, facing him.
The court recalled defendant’s history, which included assaulting an attorney in
court and a deputy sheriff during this case. After a break, defense counsel
indicated that defendant wished to testify from the witness chair. The court
explained it would position a marshal in a chair next to defendant on the raised
platform that was parallel to Juror No. 7.5 The court recalled defendant’s prior
assaultive behavior, his violation of court orders, and his being removed from the
courtroom for being verbally disruptive earlier in the trial. The court noted that
the jury box was only four feet from where defendant would sit, and it would be
“total dereliction of [the court’s] responsibility” to have the nearest marshal “some
30 or 40 feet away, who would have to go around tables, chairs and other people
[to] get to [defendant].”
It appears that the marshal sat four or five feet from defendant’s side
(facing his ear) next to and slightly behind Juror No. 7.
The court read the following admonition, at the defense’s request: “With
respect to the position of Deputy Scott, you’ll observe that Deputy Scott is seated
up next to the jury box. [¶] First of all, let me indicate to you that you are not to
speculate as to the reasons why Deputy Scott is in this position, nor are you to let
it become part of your deliberations or your conclusions in this case in any way.
This is a perfectly normal procedure, and you should not draw any adverse
[inferences] from this of any kind.”
Defendant cites Duran for the proposition that there must be a “manifest
need” for the placement of the marshal so close to him as he testified. Duran
imposed the manifest need standard for the use of physical restraints.
(Duran, supra, 16 Cal.3d at pp. 290-291.) Duran expressly distinguished such
shackling from monitoring by security personnel. “We are not here concerned
with the use of armed guards in the courtroom. Unless they are present in
unreasonable numbers, such presence need not be justified by the court or the
prosecutor.” (Duran, at p. 291, fn. 8.) The Duran holding encompassed not only
the standard positioning of officers but also their unusual deployment, as is shown
by its citation to People v. David (1939) 12 Cal.2d 639, 644, where a deputy drew
up his chair immediately behind where the defendant was sitting. (See Duran, at
p. 291, fn. 8.) The distinction between shackling and monitoring is long-standing.
The David court distinguished that case’s deployment of security personnel with
the physical restraints that caused prejudice in People v. Harrington (1871) 42
Cal. 165. (People v. David, supra, 12 Cal.2d at p. 644.) Harrington was the
primary authority on which Duran relied, and its reasoning indicates that
courtroom monitoring by security personnel does not necessarily create the
prejudice created by shackling. “ ‘[A]ny . . . physical burdens, pains and
restraints upon a prisoner during the progress of his trial, inevitably tends to
confuse and embarrass his mental faculties, and thereby materially to abridge and
prejudicially affect his constitutional rights of defense; and especially would such
physical bonds and restraints in like manner materially impair and prejudicially
affect his statutory privilege of becoming a competent witness and testifying in his
own behalf.’ ” (Duran, supra, 16 Cal.3d at p. 288, italics added, quoting
Harrington, supra, at p. 168.) The United States Supreme Court has likewise
refused to find the “conspicuous, or at least noticeable, deployment of security
personnel in a courtroom during trial [as] the sort of inherently prejudicial practice
that, like shackling, should be permitted only where justified by an essential state
interest . . . .” (Holbrook v. Flynn (1986) 475 U.S. 560, 568-569.) Holbrook
observed, “While shackling and prison clothes are unmistakable indications of the
need to separate a defendant from the community at large, . . . it is entirely
possible that jurors will not infer anything at all from the presence of the guards
. . . . Our society has become inured to the presence of armed guards in most
public places; they are doubtless taken for granted so long as their numbers or
weaponry do not suggest particular official concern or alarm.” (Id. at p. 569.)
We therefore maintain this distinction between shackling and the
deployment of security personnel, and decline to impose the manifest need
standard for the deployment of marshals inside the courtroom. (Duran, supra, 16
Cal.3d at p. 291, fn. 8.)
Defendant now claims the trial court should have had him testify bound by
restraints not visible to the jury. Defendant never asserted there was a less
intrusive means of securing the courtroom, and his failure to object now bars the
instant claim that through invisible shackling the court could have achieved the
same security benefit with less prejudice to defendant. (See Duran, supra, 16
Cal.3d at p. 289 [failure to object to restraint waives claim].) Furthermore, as
indicated above, physical restraints may well be more distracting and disorienting
to a testifying defendant than a security guard’s presence four or five feet away,
next to (and slightly behind) the jurors.
Defendant had attacked his own counsel in the courtroom, and his
disruptive behavior and violations of court orders had led to his removal at one
point. The court observed the proximity of the witness stand to the jury box, and
reasonably concluded it would be irresponsible to leave the jury unprotected from
a capital defendant with a record of violent behavior in the courtroom. Under any
standard of review, the trial court properly exercised its discretion in securing the
2. Visual Exhibits
Defendant contends the trial court erred in admitting over his objection
both a videotape depicting Mui Luong’s daily activities and photographs of the
crime scenes and victims. He alleges a violation of his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and
sections 7, 15, and 17 of article I of the California Constitution. We find no
a) The Videotape
The People offered into evidence a videotape depicting a typical day for
Mui Luong. The tape shows her receiving physical therapy, with accompanying
explanations from the attending medical personnel. The defense objected to the
tape as being unduly prejudicial under Evidence Code section 352. The defense
argued the tape “does not show great bodily injury. It shows the results of great
bodily injury.” Insofar as the People offered the tape to prove the great bodily
injury allegation, defendant insisted the People should be compelled to accept the
defense’s stipulation that Luong suffered the requisite injury.
The court overruled the objection. The court considered the contrast
between great bodily injury and the results of great bodily injury as “a distinction
without a difference.” The court found the videotape was “certainly not”
“inherently inflammatory.” The court noted “[t]he tape is approximately 36 to 37
minutes long, it depicts for—very nearly all [sic] what’s on the tape is a picture of
the victim, Mui Luong, either lying in bed or being transported to a wheelchair or
to a special table and then back again or having a therapist manipulate her limbs.
There is nothing about this which in any way, in my view, is inherently
inflammatory. There is no blood visible, although that is certainly not dispositive,
there is no indication of overt signs of pain or suffering on the part of the victim.”
The trial court quoted some of our analyses in explaining its decision to
allow the People to use the videotape to prove the allegation rather than accept the
defense’s offer of a stipulation. The court recalled we upheld the admission of
allegedly prejudicial videotape and photographic evidence in People v. Turner
(1990) 50 Cal.3d 668. “The prosecution was not obliged to prove these details
solely from the testimony of live witnesses, and the jury was entitled to see how
the physical details of the scene and body supported the prosecution theory of
murder . . . .” (Id. at p. 706.) Likewise, the court recalled the “strong policy
against depriving the state’s case of its persuasiveness and forcefulness by forcing
the prosecutor to accept stipulations that soften the impact of the evidence in its
entirety.” (People v. McClellan (1969) 71 Cal.2d 793, 802.)
We have upheld the admission of a photograph of a “bloodied, lifeless
body” to “establish that a murder had occurred.” (People v. Scheid (1997) 16
Cal.4th 1, 15 (Scheid).) We observed in Scheid that the existence of other
evidence establishing that fact did not compel the evidence’s exclusion. (Ibid.)
We reiterated the rule that a prosecutor is not obligated “ ‘ “to accept antiseptic
stipulations in lieu of [visual] evidence.” ’ ” (Id. at p. 16, quoting People v.
Crittenden (1994) 9 Cal.4th 83, 133; People v. Pride (1992) 3 Cal.4th 195, 243.)
The People below were similarly entitled to provide visual evidence of Luong’s
condition to prove she had suffered great bodily injury. We therefore find the trial
court correctly allowed the People to decline the stipulation offer.
Regarding the admission of the videotape itself, we find no reversible error.
As the People observe, there would have been no bar to presenting Luong as a live
witness, yet that would likely have been even more harmful to the defense, as well
as a difficult experience for Luong and her caretakers. We also agree with the trial
court’s rejection of any distinction between an injury and the result of that injury.
If the People show the defendant’s mayhem left the victim with only two fingers
on one hand, does a photograph of the hand depict the injury or only its results?
There was thus a basis for introducing some videotape evidence of Ms.
Luong’s condition. On the other hand, the videotape was approximately 37
minutes long, and much of it was arguably cumulative. Regardless of whether the
admission of the entire videotape was proper, any possible error was harmless.
We base this conclusion on not only the overall strength of the People’s case, but
also on defendant’s offered alibi defense. Unlike a defense of mistake or accident,
the videotape would not incline the jury to convict defendant unless it found he
was the perpetrator. (Cf. People v. Scott (1988) 200 Cal.App.3d 1090, 1095 [jury
will not consider flight as inculpatory unless convinced of defendant’s identity as
perpetrator].) Furthermore, the videotape “would clearly have been admissible at
the penalty phase [to show the harm defendant inflicted] even if not at the guilt
phase [citation], thus obviating any possible prejudice at that phase.” (People v.
Smith (2003) 30 Cal.4th 581, 613.)
Although defendant asserts the standard of review is the “harmless beyond
a reasonable doubt” standard prescribed in Chapman v. California (1967) 386 U.S.
18, 24, we have held the application of ordinary rules of evidence like Evidence
Code section 352 does not implicate the federal Constitution, and thus we review
allegations of error under the “reasonable probability” standard of Watson, supra,
46 Cal.2d at page 836. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1125
(Rodrigues); People v. Fudge (1994) 7 Cal.4th 1075, 1103.) Although we apply
Watson, we note that the result would be the same under Chapman.
b) The Photographs
Defendant also objects to the admission of several photographs introduced
over his objection. These photographs included depictions of the bodies of the
two murder victims, Peter Baeza and Daniel McDermott, as well as photographs
of the crime scenes, the Gourmet Market, the Taco Bell, and McDermott’s taxicab,
and those depicting the surgery performed on Mui Luong. Some of the crime
scene photographs portrayed blood splatters and other tangible signs of injury.
The court determined the photographs were illustrative of the testimony, and
therefore found them admissible.
We find the trial court properly exercised its discretion in admitting the
photographs. “ ‘ “ ‘The jury was entitled to see how the physical details of the
scene and the bod[ies] supported the prosecution theory . . . .’ ” ’ ” (Scheid, supra,
16 Cal.4th at p. 16, quoting People v. Pride, supra, 3 Cal.4th at p. 243.) As the
United States Supreme Court has explained, the “persuasive power of the concrete
and particular is often essential to the capacity of jurors to satisfy the obligations
that the law places on them.” (Old Chief v. United States (1997) 519 U.S. 172,
187.) The admitted photographs assisted the jury in understanding the specifics of
the crimes, and the People were entitled to employ such evidence to prove their
Defendant contends the trial court denied him due process of law in
violation of the Fourteenth Amendment in allowing the People to impeach him
with two prior convictions and his parole status at the time of his arrest. We find
the trial court properly exercised its discretion.
a) The Prior Convictions
Before defendant testified, the People referred to four prior convictions with
which they wished to impeach him: a 1989 conviction for grand theft person (Pen.
Code, § 487), a 1985 conviction for sale of marijuana (Health & Saf. Code, § 11360),
a 1983 conviction for battery on a peace officer (Pen. Code, § 243, subd. (c)), and a
1980 conviction for battery with serious bodily injury (Pen. Code, § 243, subd. (d)).
The defense did not challenge the use of the theft and marijuana sale convictions for
impeachment. Although he agreed the two batteries involved moral turpitude,
defendant argued they were too remote to be valid bases for impeachment. However,
the trial court concluded the battery-with-injury conviction did not involve moral
turpitude. The court permitted impeachment through all the other convictions.
Defendant invites us to reconsider Court of Appeal decisions holding that the
sale of marijuana and the battery on a peace officer were offenses involving moral
turpitude. (See, e.g., People v. Lindsay (1989) 209 Cal.App.3d 849; People v.
Standard (1986) 181 Cal.App.3d 431.) Moreover, “ ‘[b]ecause defendant’s crimes
occurred prior to the adoption of Proposition 8 in June 1982 . . . the governing law
[for determining the admissibility of a prior conviction for impeachment] was People
v. Beagle (1972) 6 Cal.3d 441, not People v. Castro (1985) 38 Cal.3d 301.’ ” (People
v. Carpenter (1999) 21 Cal.4th 1016, 1056.) According to defendant’s interpretation,
Beagle applies so long as the prior crimes (used for impeachment) occurred prior to
June 8, 1982, regardless of when the charged offenses occurred. (But see People v.
Gurule (2002) 28 Cal.4th 557, 607.)
We decline to review these claims because defendant forfeited these
arguments by failing to raise them at trial.6 We have held an “ ‘objection must be
made in such a way as to alert the trial court to the nature of the anticipated
evidence and the basis on which exclusion is sought, and to afford the People an
opportunity to establish its admissibility.’ ” (People v. Holt (1997) 15 Cal.4th
619, 666-667, quoting People v. Williams (1988) 44 Cal.3d 883, 906.) A general
objection to the admission or exclusion of evidence, or one based on a different
ground from that advanced at trial, does not preserve the claim for appeal. For
example, in People v. Hill (1992) 3 Cal.4th 959 (disapproved on another ground in
Price, supra, 25 Cal.4th 1046, 1069, fn. 13), the People objected to the admission
of a hearsay statement, and the defense responded that the evidence was not
hearsay because it was in the form of a question. We held the defense could not
appeal the exclusion of the evidence on the ground that the statement was not
hearsay because it explained the defendant’s state of mind, as the defense had not
presented that ground to the court and the People at trial. (Hill, at pp. 988-989.)
Similarly, in People v. Visciotti (1992) 2 Cal.4th 1, the defense objected to only
two specific inquiries during cross-examination, and based those objections on
relevancy and assuming facts not in evidence. We therefore ruled the defendant
had failed to preserve his appellate claims that the prosecutor’s questions
amounted to improper testimony and that the cross-examination exceeded the
scope of direct examination. (Id. at pp. 51-52.) Accordingly, we find defendant
has failed to preserve his challenges to the admissibility of the marijuana or
battery convictions based on the alleged lack of moral turpitude involved or the
Furthermore, only defendant’s battery on a peace officer preceded June 8,
1982 (although his conviction occurred in 1983), and thus defendant’s proposed
rule would not apply to the theft and sale of marijuana convictions.
standards for determining the admissibility of prior convictions for impeachment
purposes. Furthermore, considering the strength of the case against defendant, as
well as the magnitude of these offenses and the relatively minor nature of the prior
convictions, we perceive no reasonable probability of a different result if the
People had not impeached defendant.
b) Defendant’s Parole Status
In his opening statement defendant explained his possession of the gun by
asserting that he was transporting the weapon in exchange for payment. The
prosecutor thus wished to cast doubt upon that explanation by informing the jury
that defendant’s status as a parolee meant that his mere possession of the weapon
could prompt his return to prison. As the trial court observed, the relevance of the
parole status was not its tendency to undermine the credibility of the witness but
the credibility of the testimony.
An analogous use of evidence might occur if a defendant were charged with
theft and his defense at trial was that he had purchased the liquor found in his
possession. The People might wish to introduce defendant’s driver’s license that
revealed he was 16 years old, not because there is anything intrinsically culpable
about being 16 years old but because it would tend to undermine his claim that he
purchased the liquor. Similarly, the evidence of defendant’s parole status was
relevant as to the likelihood that defendant would transport someone else’s gun
and thereby risk returning to prison. Defendant’s own testimony confirmed the
probative nature of his parole status. “When [the police] came up to me, all I
thought was ex-felon with a gun, five years.” Furthermore, there was minimal
prejudice attached to the evidence, in light of the nature of the charged crimes and
the prior felony convictions properly admitted. We therefore conclude the trial
court properly allowed the prosecution to elicit defendant’s parole status.
Finally, in light of the overwhelming strength of the People’s case, any
possible error regarding the admission of either the prior convictions or
defendant’s parole status was surely harmless.
4. Sufficiency of Evidence Supporting the First Degree Murder of
Defendant contends insufficient evidence supports his conviction for the
first degree murder of Daniel McDermott. We conclude sufficient evidence
supports the conviction, on either a premeditation or a felony-murder basis.
In determining the sufficiency of the evidence proving premeditation and
deliberation, we review the entire record in the light most favorable to the People
to determine whether it contains evidence that is reasonable, credible, and of solid
value, from which a rational trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Silva (2001) 25 Cal.4th 345, 368 (Silva).) Evidence
concerning planning, motive, and manner of killing are pertinent to this
determination, but these factors are not exclusive nor are they invariably
The shooting of Daniel McDermott manifested all three factors. Defendant
ordered Robin Menefee out of the taxi, which supports the inference that he did so
to remove her from the scene before he killed. Moreover, if he brought a gun
rather than money with which to pay for the taxi ride, it supports the inference that
he planned a violent encounter with McDermott. (People v. Adcox (1988) 47
Cal.3d 207, 240; People v. Miranda (1987) 44 Cal.3d 57, 87 (Miranda).)
Defendant was found with seven $1 bills, whereas McDermott was found with no
bills (nor was any money found in the car), which tends to show a robbery motive.
Finally, the manner of the killing, a close-range shooting, without any provocation
(defendant discussed the baseball game with McDermott before shooting him) or
evidence of struggle likewise demonstrates premeditation and deliberation.
(People v. Hawkins (1995) 10 Cal.4th 920, 956; People v. Bloyd (1987) 43 Cal.3d
333, 348.) Substantial evidence supports the jury’s finding that the murder of
Daniel McDermott was premeditated.
There was also circumstantial evidence supporting the finding that
defendant murdered McDermott in the commission of a robbery or attempted
robbery. Defendant was found with seven $1 bills and change. The People
presented evidence that it was McDermott’s habit to bring several $1 bills to work,
with which he could make change. Defendant was found with seven $1 bills; no
paper money was found on McDermott’s person or in his car. Moreover, although
defendant and Menefee had no money when they entered the taxi, they were able
to buy groceries later that evening. The People also showed that prior to picking
up defendant on 13th Street and Broadway, McDermott was dispatched to
Berkeley, and he did not inform the dispatcher that the passenger had failed to
show up, which he would have done had the fare been a no-show.
Defendant asserts the evidence that he took property from McDermott is
speculative as “[n]o witness saw any money being taken from Mr. McDermott.”
However, circumstantial evidence may support a first degree robbery-murder
finding, or a robbery-murder special circumstance. (People v. Lewis (2001) 26
Cal.4th 334, 367.) In Lewis, we affirmed a robbery-based special circumstance
finding. “Defendant admitted he had seen Simms keep money in her bra.
Physical evidence also showed that the top of Simms’s blouse was ripped open,
revealing her brassiere containing a folded $20 bill, and that buttons that had come
from Simms’s blouse lay near her body. There was evidence that Simms had
recently cashed a paycheck and that she normally set aside money for rent from
the paycheck and used the rest to purchase crack. Based on these facts, a
reasonable trier of fact could conclude that defendant robbed Simms.” (Ibid.)
We also approved the admission of habit evidence in People v. McPeters
(1992) 2 Cal.4th 1148, where the defendant was found in possession of an
envelope containing over $200 in cash, and evidence established it was the
victim’s habit to store money in envelopes to earmark it for special purchases. (Id.
at pp. 1178-1180.) As in the instant case, no witness observed the defendant take
money from the victim. But we nonetheless held “the jury could infer that
defendant had the opportunity to steal (he leaned into the victim’s car), did steal
(he was found in possession of an envelope with money), and killed his victim to
accomplish his crime.” (Id. at p. 1183.) The same analysis obtains here.
Finally, even if defendant had been found without any money on his
person, the jury could rationally have concluded he shot Mr. McDermott in an
attempt to obtain money. (See Silva, supra, 25 Cal.4th at pp. 368-370.) We
therefore reject defendant’s evidentiary challenge to his conviction for the first
degree murder of Daniel McDermott.
5. Sufficiency of Evidence on the Other Counts and the MultipleMurder Special Circumstance
Defendant challenges the validity of his other convictions. He contends
there was insufficient evidence of premeditation and deliberation regarding the
other three counts. Defendant also asserts the jury improperly relied on a felonymurder theory in convicting him of the first degree murder of Peter Baeza.
Additionally, he contends the absence of a proper first degree murder conviction
invalidates the multiple-murder special circumstance finding. We reject all these
a) Premeditation and Deliberation
The shootings of Mui Luong, Peter Baeza, and John Myers involved a
similar factual predicate: defendant brought a gun to a place of business, shot
workers at close range without any provocation, and maintained a calm, cool
manner. Our decision in Miranda, supra, 44 Cal.3d 57, is thus dispositive. In
Miranda, we observed that the defendant’s bringing a loaded gun into a store and
using it shortly thereafter to kill an unarmed victim reasonably suggested the
defendant considered the possibility of murder in advance. The evidence of
planning is even greater with regard to the shootings of Baeza and Myers, as
defendant walked approximately 800 feet to the Gourmet Market after the Taco
Bell shootings, suggesting the subject of murder was on his mind before he shot
his next victims. Our Miranda decision also concluded the unprovoked shooting
of victims standing unarmed behind a counter a few feet away supported the
inference that the killing was the product of a deliberate plan rather than a rash
explosion of violence. (Id. at p. 87.) The “calm,” “cool,” and “focused” manner
of a shooting also supports the finding of premeditation and deliberation. (People
v. Vorise (1999) 72 Cal.App.4th 312, 319.) Furthermore, defendant shot Baeza
after Baeza had reached for a telephone to call 911. Defendant thus had a motive
to avoid apprehension and identification in shooting him.
We therefore conclude the evidence of premeditation and deliberation was
sufficient for the counts involving Peter Baeza, John Myers, and Mui Luong.
b) The Baeza Verdict
The trial court instructed the jury that “[t]he unlawful killing of a human
being . . . which occurs during the commission or attempted commission of the
crime of robbery is murder in the first degree when the perpetrator had the specific
intent to commit such crime.” Although this instruction did not specify either
victim, the instruction on the robbery-murder special circumstance7 limited its
“The murder was committed while the defendant was engaged in the
commission or attempted commission of the robbery of Daniel McDermott.”
applicability to McDermott’s murder. Defendant now contends the jury might
have erroneously based its finding of first degree murder for the killing of Baeza
on an invalid felony-murder theory. The instruction was correct, as it applied to
the McDermott robbery-murder, and if defendant perceived that the instruction
might confuse jurors, it was defendant’s obligation to seek clarification. (People
v. Arias (1996) 13 Cal.4th 92, 170-171 (Arias); Rodrigues, supra, 8 Cal.4th at p.
Furthermore, even if we assume that the jury considered the felony-murder
theory and insufficient evidence supported it, defendant’s first degree murder
conviction remains valid. Where the jury considers both a factually sufficient and
a factually insufficient ground for conviction, and it cannot be determined on
which ground the jury relied, we affirm the conviction unless there is an
affirmative indication that the jury relied on the invalid ground. (Silva, supra, 25
Cal.4th at pp. 370-371; People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.)
Thus, in a recent case where we observed there was sufficient evidence that the
defendant premeditated and deliberated the murder, we held that if there was
insufficient evidence of felony murder, we could assume the jury relied on the
factually sufficient ground of premeditation. (Silva, at pp. 370-371.) Because
there was sufficient evidence showing Baeza’s murder was premeditated and
deliberate, there is no basis for reversal. (Ibid.)
c) The Multiple-Murder Special Circumstance
The jury thus validly convicted defendant of first degree murder regarding
the murders of both Daniel McDermott and Peter Baeza. Accordingly, the
multiple-murder special circumstance finding was valid.
C. Penalty Phase
1. The Transportation-Worker Special Circumstance
Defendant contends the penalty phase verdict is invalid because one of the
special circumstances found by the jury, the murder of a transportation worker,
does not support a sentence of death, only life imprisonment without parole.
(§ 190.25.) He contends this error violated the heightened reliability requirement
imposed in capital prosecutions by the Eighth and Fourteenth Amendments to the
United States Constitution.
To render a defendant eligible for the death penalty, the jury must find true
at least one of the special circumstances listed in section 190.2. Once it does so,
the jury must then decide in a penalty phase whether the defendant should be
sentenced to death or to life imprisonment without possibility of parole. The jury
weighs the factors listed in section 190.3 in making this determination.
The jury below found three special circumstances: (1) the defendant
committed multiple murders (§ 190.2, subd. (a)(3)); (2) the murder was committed
during a robbery (§ 190.2, subd. (a)(17)(A)); and (3) the victim was a
transportation worker (§ 190.25). Although the transportation-worker special
circumstance is not a special circumstance that supports a death sentence, thereby
leading to a penalty phase, the two section 190.2 special circumstances properly
rendered the defendant death-eligible, subject to the penalty phase, where the jury
would apply the section 190.3 factors. (People v. Hamilton (1988) 45 Cal.3d 351,
364, fn. 7.)
Defendant claims, however, “It does not make any difference whether the
other special circumstances were proved because we have no way of telling for
sure whether it was special circumstance [No.] 1, or 2, or 3, or some combination
. . . which caused the jury to return the death verdict.” But once the jury has found
a section 190.2 special circumstance, the determination of whether to sentence the
defendant to death or life imprisonment without the possibility of parole depends
on the section 190.3 factors. Among these factors is factor (a): “The
circumstances of the crime of which the defendant was convicted in the instant
proceeding and the existence of any special circumstances found to be true
pursuant to Section 190.1.” Accordingly, there was nothing improper about the
prosecutor’s emphasizing that defendant murdered McDermott while he was doing
his job as a taxicab driver, as this was a circumstance of the charged crime.
Section 190.25, subdivision (c) specifically provides “Nothing in this
section shall be construed to prohibit the charging of any [other] special
circumstance.” “While the statute does not authorize the death penalty, it does not
prohibit that penalty if other special circumstances are proved.” (3 Witkin &
Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 459, p. 612.) If we were
to accept defendant’s argument, it would turn the circumstance of killing a taxi
driver on duty, a fact the Legislature has deemed worthy of special sanction (albeit
less than some other special circumstances), into a shield from liability. If the
Legislature had never enacted section 190.25, the prosecutor still would have been
free to argue that the circumstances of the killing, which included the killing of a
taxi driver doing his job, supported a death verdict. (§ 190.3, factor (a).) There
would be no basis for reversal, as both the multiple-murder and robbery-murder
special circumstance findings were valid. By contrast, according to defendant,
because the Legislature decided the killing of a taxi driver supported a sentence of
life imprisonment without parole, we must now reverse. We decline to infer such
an exculpatory effect from the Legislature’s decision to increase the penalty for
murdering transportation workers in cases where there are no other special
2. Defendant’s Prior Conviction of Battery on a Peace Officer
Defendant asserts a violation of his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments, and the California Constitution, because the trial court
instructed the jury that evidence had been introduced to show defendant had four prior
convictions (which the jury had previously determined), including battery on a police
officer. (§ 243, subd. (c).) The jury was further instructed that before it could
consider any alleged crime as an aggravating circumstance, it must be satisfied
beyond a reasonable doubt that defendant was in fact convicted of the prior crime.
Defendant now claims this instruction was error, because there was insufficient
evidence the police officer suffered injury within the meaning of section 243,
subdivision (c). A defendant may collaterally attack a prior conviction, but must
overcome a strong presumption of constitutional validity. (People v. Cunningham
(2001) 25 Cal.4th 926, 1013.) Defendant has never established the invalidity of his
prior conviction, and therefore the instruction was proper.
3. The Victim Impact Testimony of Thomas Carter
Defendant contends the trial court violated his Eighth and Fourteenth
Amendment rights by allowing Thomas Carter to testify about the impact of Peter
Baeza’s death. We conclude the trial court properly admitted the testimony.
Carter testified that because he suffered from a seizure disorder, nobody
would give him a job—except Baeza, who treated him like a son. Baeza helped
Carter in getting financial assistance for his disability. Baeza treated Carter like a
human being, whereas others did not. Prior to Baeza’s death, Carter’s seizures had
improved and were almost gone. Since Baeza’s death, Carter lost his job and was
unable to find any other work. His physical condition deteriorated, and his fiancée
left him. Baeza extended credit to many elderly people.
Defendant contends the evidence should have been excluded because Carter
was not a relative of Baeza’s. The United States Supreme Court has not restricted
the admissibility of victim impact evidence to relatives, however. The court has
recognized the People are entitled to show “the victim is an individual whose
death represents a unique loss to society and in particular to his family.” (Payne v.
Tennessee (1991) 501 U.S. 808, 825.) Furthermore, the separate opinions in
Payne recognized the broad scope of victim impact evidence. The jury may know
“the full extent of the harm caused by the crime, including its impact on the
victim’s family and community.” (Payne v. Tennessee, supra, 501 U.S. 808, 830
(conc. opn. of O’Connor, J.), italics added.) Murderers know their victims
“probably ha[ve] close associates, ‘survivors,’ who will suffer harms and
deprivations from the victim’s death . . . . [T]hey know that their victims are not
human islands, but individuals with parents or children, spouses or friends or
dependents.” (Payne v. Tennessee, supra, 501 U.S. 808, 838 (conc. opn. of
Souter, J.), italics added.) We therefore have drawn from Payne that it is proper to
refer “to the status of the victim and the effect of his loss on friends, loved ones,
and the community as a whole.” (People v. Fierro (1991) 1 Cal.4th 173, 236.)
Defendant’s argument thus must rest on a purported distinction between the
admissibility of evidence describing the murder’s impact on nonrelatives, which
we have permitted, and testimony by nonrelatives, to which defendant now
objects. This distinction is unsound, however, and would prove unworkable in
cases where the only available witnesses were not formally related to the victim.
We therefore hold the trial court properly admitted the testimony of Thomas
4. The Trial Court’s Rereading of CALJIC No. 8.88
During the penalty phase deliberations, the jury passed a note to the court
stating, “We, the jury in the above entitled cause request the following: ‘If a
juror(s) comes to the conclusion that the aggravating circumstances far outweigh
the mitigating circumstances must the juror(s) then automatically choose the death
penalty?’ ” The court answered by reading an excerpt from CALJIC No. 8.88.8
Defendant asserts this reading violated his rights under the Fifth, Sixth, Eighth,
and Fourteenth Amendments of the United States Constitution, and sections 7, 15,
and 17 of article I of the California Constitution. Defendant contends the trial
court “failed to correctly answer” the jury and should have instead given a shorter
answer: “No.” The instruction is a correct statement of law, however, and if
defendant favored further clarification, he needed to request it. His failure to do so
waives this claim. (Arias, supra, 13 Cal.4th at pp. 170-171; Rodrigues, supra, 8
Cal.4th at p. 1192.)
CALJIC No. 8.88 reads: “After having heard all of the evidence and after
having heard and considered the arguments of counsel, you shall consider, take
into account and be guided by the applicable factors, aggravating and mitigating
circumstances upon which you have been instructed. [¶] An aggravating factor is
any fact, condition or event attending the commission of a crime which increases
its guilt or enormity or adds to its injurious consequences which is above and
beyond an element of the crime itself. [¶] A mitigating circumstance is any fact,
condition, or event which as such does not constitute a justification or excuse for
the crime in question, but may be considered as an extenuating circumstance in
determining the appropriateness of the death penalty. [¶] The weighing of
aggravating and mitigating circumstances does not mean a mere mechanical
counting of factors on each side of an imaginary scale or the arbitrary assignment
of weight to any of them. You are free to assign whatever moral or sympathetic
value you deem appropriate to each and all of the various factors you are permitted
to consider. In weighing the various circumstances you determine under the
relevant evidence which penalty is justified and appropriate by considering the
totality of the aggravating circumstances with the totality of the mitigating
circumstances. To return a judgment of death each of you must be persuaded that
the aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole.”
5. Constitutional Challenges
Defendant finally raises numerous challenges to the constitutionality of
California’s capital procedures. We have rejected these claims and do so again.
Accordingly, we reiterate the following holdings: California’s death penalty law
sufficiently narrows the class of death-eligible defendants. (People v. Lewis
(2001) 25 Cal.4th 610, 676; People v. Anderson (2001) 25 Cal.4th 543, 601.) The
law does not impose overly broad death-eligibility for felony murder. (Lewis, at p.
676; Anderson, at p. 601.) The discretion exercised by California prosecutors is
proper. (Lewis, at p. 676; Anderson, at p. 601; People v. Ochoa (2001) 26 Cal.4th
398, 462.) A trial court need not instruct the jury that they must find beyond a
reasonable doubt the following: (1) the existence of aggravating circumstances
except other crimes evidence; (2) that aggravation outweighs mitigation; and (3)
that death is the appropriate penalty (Anderson, at p. 601). The federal
Constitution does not require intercase proportionality review (Pulley v. Harris
(1984) 465 U.S. 37, 50-51), and we perform intracase proportionality review “to
determine whether the penalty is disproportionate to defendant’s personal
culpability.” (People v. Steele (2002) 27 Cal.4th 1230, 1269.) Section 190.3,
factor (a) is not impermissibly vague. (Tuilaepa v. California (1994) 512 U.S.
967, 975-980; Anderson, at p. 601.) It also does not require written findings of
aggravating factors (Tuilaepa, at pp. 975-980; Anderson, at p. 601), bar the
consideration of unadjudicated criminal activity (Tuilaepa, at pp. 976-977;
Anderson, at p. 601; People v. Cain (1995) 10 Cal.4th 1, 69), or require instruction
as to which factors are aggravating and which are mitigating (Anderson, at p. 601;
People v. Box (2000) 23 Cal.4th 1153, 1217). The passing of time between
conviction and execution does not violate the federal Constitution (Ochoa, at pp.
462-464), and lethal injection is a constitutional means of execution (Ochoa, at p.
For the reasons stated herein, the judgment is affirmed.
CONCURRING OPINION BY CHIN, J.
I concur fully in the majority opinion, including its conclusion that
defendant’s arguments regarding impeachment with some of his prior convictions
are not cognizable. (Maj. opn., ante, at pp. 36-38.) I write separately only to note
that the arguments also lack merit.
The California electorate passed Proposition 8 in June 1982. A short time
later, we held that it “applies only to prosecutions for crimes committed on or after
its effective date.” (People v. Smith (1983) 34 Cal.3d 251, 258.) Accordingly,
when the charged crime predated Proposition 8, trial courts had to apply the law
that existed before its adoption, including the law relating to impeachment with a
prior conviction. (See, e.g., People v. Carpenter (1999) 21 Cal.4th 1016, 1056.)
Defendant, however, committed the charged crimes in 1990. Thus, this
prosecution is for crimes committed long after Proposition 8’s effective date. The
date of the charged crime matters, not the date of the prior conviction or its
underlying crime. (People v. Gurule (2002) 28 Cal.4th 557, 607.) Accordingly,
and contrary to defendant’s assertion, Proposition 8 applies to this trial. (E.g.,
People v. Sandoval (1992) 4 Cal.4th 155, 177-178, 186 [applying post-Proposition
8 law to impeachment with a 1979 conviction where the charged crimes occurred
in 1984]; see also People v. Jackson (1985) 37 Cal.3d 826, 833 [Proposition 8’s
five-year enhancement for serious felony convictions applies when the prior
conviction predates, but the charged crime postdates, Proposition 8].)
It has also long been settled that defendant’s prior convictions involve
moral turpitude. (People v. Lindsay (1989) 209 Cal.App.3d 849, 854-858 [battery
on a peace officer]; People v. Clarida (1987) 197 Cal.App.3d 547, 552 [same];
People v. Standard (1986) 181 Cal.App.3d 431, 435 [possession of marijuana for
sale, noting that possession for sale, unlike simple possession, involves the intent
to corrupt others].)
The court’s choice not to discuss the merits of these forfeited arguments
should not be read as casting doubt on any of this settled law.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Marks
Original Appeal XXX
Opinion No. S040575
Date Filed: July 24, 2003
Judge: Jeffrey W. Horner and Michael E. Ballachey
Attorneys for Appellant:
Richard Power, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass
and Dane R. Gillette, Assistant Attorneys General, and Sharon R. Wooden, Deputy Attorney General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
P.O. Box 476
Shingle Springs, CA 95682-0476
Sharon R. Wooden
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004