Opinion
Rehearing Granted April 26, 1989.
Opinion on pages 168-225 omitted.
REHEARING GRANTED
COUNSEL
[255 Cal.Rptr. 858] [768 P.2d 77] Robert Mann, Santa Monica, under appointment by the Supreme Court, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Andrew D. Amerson, William T. Harter, William R. Weisman and Susan D. Martynec, Los Angeles, Deputy Attys. Gen., for plaintiff and respondent.
OPINION
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
Bronte Lamont Wright was convicted of first degree murder, burglary, rape, and attempted robbery, as well as various enhancements. In addition, the jury sustained three special circumstances, finding the murder was committed while he was engaged in the commission or the attempted commission of the robbery, rape, and burglary. After the penalty phase, the jury set the penalty at death. This appeal is automatic. (Pen.Code, § 190.6.) For the reasons stated below, we conclude that the judgment of guilt must be affirmed but that the erroneous admission of considerable evidence at the penalty phase which was not relevant to any statutory aggravating factor requires reversal of the penalty judgment.
FACTS
Guilt Phase
Mrs. Patricia Hunter, a 76-year-old widow, was last seen alive by a schoolgirl at approximately 4:30 p.m. on April 30, 1981. Assistant Pastor Frank Brown became concerned the following day when Mrs. Hunter failed to attend a Sunday school teachers' meeting. He went to her house but received no response to his knock on the front door or his taps on the side of the house. He crossed the street and enlisted the assistance of another church member, Ms. Hetker. The two returned to Mrs. Hunter's home and entered through the unlocked front door. They discovered Mrs. Hunter's half-clothed body on the living room floor. Brown and Hetker then left and called police from Hetker's residence.
Police found the victim naked from the waist down with socks, slacks, pantyhose, and underwear draped over the lower portion of the body. Blood was found splattered around the room and the upper portion of the telephone receiver was covered in blood. Broken bric-a-brac was strewn around the room indicating the victim struggled with her assailant. A deputy medical examiner determined the victim died from brain damage caused by multiple, violent blows to the head. Marks and discoloration around the victim's eyes were consistent with being struck with the telephone receiver. In addition, there was evidence of strangulation. Further investigation revealed the presence of sperm in the external vaginal area but none inside the vagina. Evidence of penetration was inconclusive.
A police fingerprint expert examined the crime scene and found defendant's palmprint on a copy of Guidepost magazine and on a newspaper. Two neighbors reported seeing defendant, who lived in the area, walk by the victim's house between 3 and 4:30 in the afternoon the day before. Ten to thirty minutes later, the same neighbors saw defendant return, stop in front of the victim's home, and stand there looking at the victim's property for one and one-half to two minutes.
Defendant was arrested the next day. Although he initially denied involvement, he later confessed to the crimes in a tape-recorded interview. He stated he went to the victim's house and asked if he could mow her lawn. When she replied she already had somebody who performed that [768 P.2d 78] job for her, he asked for a glass of water. When she brought the glass to the door, he forced his way in. She began screaming so he hit her. He admitted striking her several times but claimed he left her alive, although he stated she was having difficulty breathing. He confessed to attempting to rape the victim, was equivocal whether he [255 Cal.Rptr. 859] achieved penetration, but admitted ejaculating. He averred he entered the victim's home because he believed she would be an " easy mark" and that he took $5 and some change from the victim. He admitted " murdering" the victim but claimed it was not " intentional."
Defendant did not introduce any evidence at the guilt phase. He was found guilty of first degree murder, second degree burglary, attempted robbery, and rape. (Pen.Code, §§ 187, 459, 664/211, 261.) Various enhancement allegations involving the infliction of great bodily injury on a victim of advanced age, that defendant was on parole following a term of imprisonment for a violent felony in which he used a handgun, and for deadly weapon use were all sustained. (§§ 1203.075, 1203.09, 12022.7, 12022.8, 1203.085, subd. (a), 12022, subd. (b).) Finally, three special circumstances were sustained: that defendant committed a first degree murder while engaged in the commission of an attempted robbery (§ 190.2, subd. (a)(17)(i)), a rape (§ 190.2, subd. (a)(17)(iii)), and a burglary (190.2, subd. (a)(17)(vii)).
All further statutory references are to the Penal Code unless otherwise indicated.
The majority makes two further correct, and in my view, significant observations. First, " the Boyd rule is founded on statutory, rather than constitutional, interpretation. (See People v. Brown (1988) 46 Cal.3d 432, 456, 250 Cal.Rptr. 604, 758 P.2d 1135 [noting that the Boyd rule is not based on the federal Constitution].)" ( Ante, at p. 882, fn. 21 of 255 Cal.Rptr., at p. 101 of 768 P.2d.) Second, although in Boyd we found that nonstatutory aggravating evidence had been erroneously admitted at the penalty phase therein, " we did not need to reach the prejudice question in that case because we reversed the penalty judgment on another ground and only discussed the problem of irrelevant aggravating evidence for the guidance of the trial court on remand. ([ Boyd, supra, 38 Cal.3d] at p. 772, 215 Cal.Rptr. 1, 700 P.2d 782.)" (Maj. opn. at p. 882 of 255 Cal.Rptr., at p. 101 of 768 P.2d.)
Penalty Phase
At the penalty phase of defendant's trial, the prosecution presented much evidence documenting defendant's criminal history. On December 18, 1972, defendant, then 18 years old, and a juvenile accomplice entered the home of 80-year-old Shiu Maruyama and ransacked the residence looking for money. The accomplice held the victim at defendant's direction but had to constantly remind defendant not to harm her. They tried to force a ring from the victim's finger but were unsuccessful. Defendant was apprehended at the scene and confessed his involvement in the crime to Agent Cauchon. Cauchon testified at the penalty phase that defendant did not appear to exhibit any remorse during his description of the crime. Defendant was eventually convicted of second degree burglary.
On June 21, 1974, defendant robbed two different victims in a Pasadena bank parking lot. The first, Jennifer Salsbury, testified defendant approached her as she was getting into her car, exhibited a gun, and took her wallet. Salsbury then drove away when defendant told her she would not be harmed if she left the scene. Minutes after the Salsbury robbery, defendant robbed Muriel Cunningham in the same parking lot. After exhibiting his gun, defendant took the victim's purse containing between $50 and $60 and fled on foot. Although both victims later testified against defendant, defendant was apparently not convicted of these robberies.
On March 20, 1977, defendant, armed with a shotgun, robbed Stephen Hardin, who was working as a desk clerk in a Glendale motel. After obtaining between $200 and $300, defendant forced Hardin to remove his trousers and stay in a closet until defendant made good his escape. Although Hardin testified against defendant, there is no indication a conviction was obtained.
Four days later, defendant entered a convenience store in Glendale wearing a ski mask and holding a gun. He instructed Tracie George, the clerk, to give him all the money in the register and she complied. Ronald Pure, George's boyfriend, was also present and ordered by defendant to lie on the floor. Defendant was apprehended when Glendale Police Officer Tuosto observed defendant fleeing the scene. Tuosto found defendant in possession of the stolen money, the handgun, and the ski mask. The handgun was fully operational and the bullet in the chamber exhibited an indentation demonstrating the firing pin had struck the bullet but the gun had misfired. Defendant was convicted of first degree robbery with use of a handgun as well as assault with intent to commit robbery.
[768 P.2d 79]On June 25, 1977, Deputy Sheriff Molina observed defendant and victim Shires together in a locked cell in county jail. Shires was bleeding from two slashes on his abdomen. A search revealed a razor blade secreted in the cell's toilet. Defendant was later convicted of assault with a deadly weapon.
[255 Cal.Rptr. 860]In addition to the incidents related above, the trial court took judicial notice that defendant had been convicted of two 1974 robberies involving use of a handgun against victims Darland Shaw and Lena Johnson.
The prosecution also presented much evidence describing defendant's adjustment in prison. Correctional Officer Ortiz testified he observed defendant on October 30, 1977, straddling an inmate named Martin and punching him. Martin was spitting out blood. After correctional officers broke up the altercation, defendant jumped back into the fray, striking Martin two more times. The write-up of the incident concluded Martin provoked the fight but that defendant struck the first blows.
Gregory Avila testified he was a counselor at the California Men's Colony and on May 16, 1978, he interviewed defendant to determine whether he wished to participate in any educational or vocational training. Defendant replied he did not want to go to school. When queried how he planned to make a living after leaving prison, defendant replied that if he saw something he wanted, he would just take it. Defendant expressly stated he had no intention of altering his criminal conduct.
On August 10, 1978, defendant was overheard threatening Correctional Officer J.R. Duran that Duran's " body" would be the next one found in the recreation shack. An inmate's dead body had been discovered in the shack just 15 minutes earlier. Gelatini, a kitchen worker at San Quentin, testified and recounted a 1979 incident in which defendant became verbally abusive towards her, allegedly threw a piece of paper at her, and needed to be restrained by guards. However, the write-up of this incident shows defendant admitted making unbecoming remarks towards Gelatini but was falsely accused of throwing the paper at her. He admitted he became upset with her because she had previously been " tolerant" of him but had subsequently changed.
The prosecution also presented evidence showing defendant had problems adjusting to different prison settings. In late 1978, defendant approached Corrections Sergeant Ochoa and demanded a transfer out of his quad, saying he would hurt somebody unless he was transferred. A similar threat occurred in late 1979 when defendant told Counselor Bauer that someone would die if he was transferred to a different unit. On November 6, 1979, defendant was being interviewed by Program Administrator Nyberg concerning the administrative decision to place defendant in restricted housing. Defendant became verbally abusive, upset the conference table, threw a chair, and was restrained by Nyberg. However, the write-up of the incident showed defendant did not throw the chair at anyone and that no one was injured.
On June 19, 1979, Correctional Counselor John Williams interviewed defendant in San Quentin. Defendant said that he was going to kill several women and one man when he was released from prison. He further averred he would make headlines and would not be captured by police. Williams reported defendant was a " sick, " " dangerous" prisoner and warned staff to use caution when seeing him. Similarly, Correctional Counselor Crook testified that on December 4, 1980, he interviewed defendant about his post-release plans and defendant replied, " I am freaky on the streets" and " I like to do all sorts of freaky things with the ladies."
The penalty phase evidence produced by the defense consisted of testimony by defendant's mother and his uncle, as well as psychological evidence establishing defendant's low intelligence. Defendant's mother, Brooksie Wilson (Wilson), testified defendant's father was physically abusive to both her and defendant. The father beat defendant in the head and would lock the children in a closet when Wilson was away at night school. Wilson recalled one incident [768 P.2d 80] where defendant's father struck defendant in the head with a brick.
As a result of the beatings, Wilson fled with her children to California when defendant was two years old. Wilson remarried but her second husband was an alcoholic and was jealous of the attention Wilson showed towards defendant. He often demanded to know whether Wilson loved him [255 Cal.Rptr. 861] more than defendant. Wilson's second husband refused on numerous occasions to allow defendant to enter the house and made defendant sleep in the backyard several times. Defendant fought constantly with his stepfather, one time getting into a fight with him after the stepfather physically abused defendant's mother. On one occasion, defendant's natural father and his stepfather had a confrontation which resulted in both drawing guns. Defendant witnessed this entire incident.
In school, defendant was diagnosed as having a learning problem. His attention span was very short. He was always placed in special classes and routinely received failing grades. In high school, he only attended school for two or three hours a day and spent the remainder of the day playing on the school grounds. Wilson estimated defendant's " mentality" was that of a 13-year-old. She described him as " very immature" but protective of her, saying he became very upset when anyone directed a derogatory remark at her. He knew she was struggling to make a success of her life and he would clean people's houses or yards and bring her half the money.
She desperately tried to obtain help for her son but was unsuccessful. Her appeal to the Director of the California Youth Authority was fruitless. She characterized defendant's stay in the California Youth Authority as merely a custodial situation and that no real attempt was made to rehabilitate him. She said he received virtually no supervision on parole.
John Williams, defendant's uncle, had known defendant since defendant was two years old. Williams described defendant as a good worker who obeyed orders. However, he related an incident where, upon being chastised, defendant began rubbing his hands together in a frenzy, repeating, " I don't know" over and over again. Williams said defendant became anxious when someone raised his voice. Finally, Williams implied he and his wife recognized that defendant needed psychiatric help.
Dr. Robert Van Vorast testified he was a clinical psychologist who worked for the California Youth Authority and treated defendant between 1974 and 1976. Van Vorast concluded defendant's intelligence was in the " borderline" to " low dull normal" range, meaning fourth or fifth grade level or slightly higher. " Continual intensive supervision" and regular therapeutic help was necessary for defendant to function in the community.
Dr. Michael Maloney testified he was also a clinical psychologist and had examined defendant. When asked whether he found any evidence defendant suffered from brain damage, he replied, " [a]s a psychologist, what we really look for is certain patterns of behavior and certain deficits in certain areas. [¶ ] From that point of view, Mr. Wright clearly has deficits in certain perception areas, perceptual motor areas. [¶ ] I don't know that there have been any hard clinical findings, medical findings to suggest brain damage, but he has a pattern that looks like that from a psychological point of view, and it has been commented on back in to teenage years when he was at the California Youth Authority."
After discussing the results of some tests he had defendant take, Dr. Maloney continued: " Oftentimes [test results such as defendant's are] ... suggestive of some disorganization in the brain and I might add that a person certainly could fake this, but Mr. Wright has had references made to this kind of difficulty for years, much predating his arrest in this case. [¶ ] So he does have a problem in this area, and as I said, it's often suggestive of organic brain disfunction [ sic ] and certainly not diagnostic of it. [¶ ] It does not mean that he has it, but there is something that is disfunctional [ sic ] in that area." Finally, Dr. Maloney confirmed Dr. Van Vorast's test results [768 P.2d 81] concerning defendant's low intelligence.
After considering this evidence, the jury set the penalty at death. Motions for modification of the death verdict and for a new trial were denied.
DISCUSSION
I. Guilt Phase
1. Speedy Trial
Defendant first contends his conviction must be reversed due to a violation of [255 Cal.Rptr. 862] his statutory right to a speedy trial. He was arraigned on July 10, 1981, and went to trial on August 13, 1982. During the interim, several continuances were granted at defense counsel's request. On at least one occasion, defendant personally waived time. There was no pretrial objection by either defendant or defense counsel on speedy trial grounds.
Section 1382 states " [t]he court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: ... (b) When a defendant is not brought to trial in a superior court within 60 days after the ... filing of the information...." Of course, a continuance granted at the request of counsel constitutes such good cause ( People v. Kirkpatrick (1972) 7 Cal.3d 480, 486, 102 Cal.Rptr. 744, 498 P.2d 992), at least in the absence of evidence showing incompetence of counsel ( Townsend v. Superior Court (1975) 15 Cal.3d 774, 781, 126 Cal.Rptr. 251, 543 P.2d 619), or under circumstances where counsel's request for a continuance was prompted by his need to service other clients and where the defendant himself objects to the delay. ( People v. Johnson (1980) 26 Cal.3d 557, 566-569, 162 Cal.Rptr. 431, 606 P.2d 738.) Normally, a defendant's failure to timely object to the delay and thereafter move for dismissal of the charges is deemed a waiver of his right to a speedy trial. ( Sykes v. Superior Court (1973) 9 Cal.3d 83, 94, 106 Cal.Rptr. 786, 507 P.2d 90; People v. Wilson (1963) 60 Cal.2d 139, 146, 32 Cal.Rptr. 44, 383 P.2d 452.)
Defendant recognizes he failed to timely object but argues his waiver was not a knowing and intelligent one because his defense attorney and the trial judge collaborated to prevent him from learning why counsel sought the several continuances. In support, defendant claims the trial judge misinformed him regarding defense counsel's legal experience, thereby lulling him into the belief counsel would preserve his rights. However, defendant's citation to the record merely shows the trial court told defendant his appointed counsel was " an excellent attorney ... very effective ... very thorough ... [and] conscientious." It does not appear the trial court misled defendant by this comment.
Defendant also complains he was denied an opportunity to participate in the proceedings and was thus uninformed as to the reasons for the various continuances. This claim stems from a bench meeting between counsel, the prosecutor, and the judge out of defendant's hearing. At this meeting, counsel admitted this was his first trial involving special circumstances and that one reason for the requested continuance was to allow him time to attend a public defender's seminar on trying such cases. In addition, other reasons (his own [768 P.2d 82] workload, his investigator's vacation) were discussed.
In a related claim, defendant contends this bench conference denied him his due process right to be present at a critical phase of the proceedings. However, " the accused is not entitled to be personally present ... at bench discussions which occur outside of the jury's presence on questions of law or other matters in which defendant's presence does not bear a ‘ " reasonably substantial relation to the fullness of his opportunity to defend against the charge." ’ " ( People v. Jackson (1980) 28 Cal.3d 264, 309, 168 Cal.Rptr. 603, 618 P.2d 149, quoting In re Lessard (1965) 62 Cal.2d 497, 506, 42 Cal.Rptr. 583, 399 P.2d 39.) Moreover, the " burden is upon defendant to demonstrate that his absence prejudiced his case or denied him a fair and impartial trial." ( Jackson, supra, 28 Cal.3d at p. 310, 168 Cal.Rptr. 603, 618 P.2d 149.)
We assume defendant means to argue that had he known this was counsel's first trial involving special circumstances murder, he would have personally objected to a further continuance. This is illogical. While counsel's relative inexperience may have prompted defendant to move for appointment of new counsel or to proceed without an attorney, it could not have led defendant to refuse to waive time with the concomitant result that his attorney would [255 Cal.Rptr. 863] have to go to trial both less experienced and less prepared.
Defendant further points to defense counsel's statement at the bench that a conference out of defendant's hearing was necessary " because of problems of client control." This statement, defendant claims, is indicative of counsel's belief that what would be said— namely that this was counsel's first special circumstances murder trial— would prompt defendant to refuse to waive time. Although it appears the " client control" remark revealed counsel's belief that his anticipated comments would further provoke defendant, as stated above, we doubt they would have prompted defendant to refuse to waive time. Instead, counsel was probably just attempting to avoid erosion of the attorney-client relationship.
In the absence of anything in the record supporting defendant's claim his own attorney and the trial court collaborated to prevent him from personally objecting to further continuances, we conclude his failure to timely object and move for dismissal was a valid waiver that precludes appellate review. ( Wilson, supra, 60 Cal.2d at p. 146, 32 Cal.Rptr. 44, 383 P.2d 452.)
2. Arrest Warrant
Prior to trial, defendant moved to suppress his confession to police pursuant to section 1538.5, claiming the arrest warrant was not supported by probable cause. At the section 1538.5 hearing, the parties discovered the original affidavit in support of the arrest warrant had been destroyed by the superior court clerk's office in accordance with their internal policy. Defendant promptly objected to the introduction of secondary evidence to establish the contents of the missing affidavit, citing the best evidence rule. (Evid.Code, § 1500.)
Evidence Code section 1500 states " Except as otherwise provided by statute, no evidence other than the original of a writing is admissible to prove the content of a writing. This section shall be known and may be cited as the best evidence rule."
The trial court reserved judgment on the objection and permitted the People to question the police officers involved in the procurement of the arrest warrant. Sergeant Gray testified he prepared the affidavit in support of the arrest warrant and it consisted of photocopies of the police reports up to the date of submission to the magistrate, Judge Franciscus. The prosecutor, who had obtained a new copy of the applicable police reports in the meantime, showed the new copy to Sergeant Gray and asked, " So the information that you presented to Judge Franciscus is everything that is visible and legible on these pages; is that correct?" Gray responded: " Yes, to the best of my recollection, that is the complete document that I gave Judge Franciscus." Joseph Downs, a police fingerprint expert, testified he matched the palmprints found at the scene to exemplars of defendant's palmprints. His findings were included in the police reports which Sergeant Gray testified were submitted to the magistrate.
In restating the issue, the trial judge averred: " Anyhow, the main point is that the testimony is these pages are the same or copies of the pages without alteration of what was submitted to Judge Franciscus. [¶ ] Now, do you [defense counsel] wish to be heard on that?" Counsel replied: " I have no evidence to the contrary. " (Emphasis added.) After listening to further argument, the trial judge denied defendant's objection based on the best evidence rule, saying, " The testimony [is] that People's 9 [the new copy of the police reports] was produced from those originals and they have not been modified. I therefore conclude that what I saw is what Judge [768 P.2d 83] Franciscus saw and that I have the equivalent of the document that Judge Franciscus issued the warrant on, and therefore whatever the objection was with respect to the Best Evidence Rule is overruled." Although not explicitly mentioned, the trial judge apparently permitted proof of the contents of the original writing by secondary evidence pursuant to Evidence Code section 1501, which states, " A copy of a writing is not made inadmissible by the best evidence rule if the writing is lost or has been destroyed without fraudulent intent [255 Cal.Rptr. 864] on the part of the proponent of the evidence."
Defendant now argues the admission of such secondary evidence was error. In support, he relies on two theories. First, he claims there was no evidence the original writing was lost or destroyed. The record reveals an off-the-record discussion was held mid-hearing (presumably between the trial judge and Sergeant Gray) after which the trial judge made these remarks: " We have learned from Agent Gray that a policy of the Superior Court Clerk's Office requires the destruction of police reports attached to a Superior Court file, and the file— the reports which were used to procure the arrest warrant from Judge Franciscus ... were destroyed in the course of that policy...."
As defendant now points out, the trial judge's statement was not evidence since he was not testifying under oath. However, although defendant made a general best-evidence-rule objection, he failed to object on foundational grounds to the prosecution's failure to establish the original writing was lost or destroyed. Evidence Code section 353, subdivision (a) not only requires a timely objection but one " so stated as to make clear the specific ground of the objection or motion." This requirement is necessary to give the party proffering the evidence an opportunity to correct any defect in the evidence. ( In re Robert B. (1985) 172 Cal.App.3d 763, 773, 218 Cal.Rptr. 337; People v. Dorsey (1974) 43 Cal.App.3d 953, 960, 118 Cal.Rptr. 362.) This rationale is especially appropriate here since the failure to place into evidence the information concerning the loss of the affidavit was apparently an oversight which could have been easily corrected by having someone from the clerk's office testify.
Defendant also complains the trial court clearly erred by finding People's Exhibit Number 9 (the new copy of the police reports) was identical to the original affidavit since the cover sheet of the original affidavit survived and stated, " These reports and statement consist of 45 pages." However, People's Exhibit Number 9 consisted of 59 pages. Although defendant failed to raise this objection at trial as well, we need not rely on that omission to deny relief. This " new" information concerning the " extra" 14 pages does not alone invalidate the admission of the newly photocopied police reports as a copy of the lost original under Evidence Code section 1501. Rather, it merely comprises additional evidence which defense counsel could have used to impeach Sergeant Gray's testimony that People's Exhibit Number 9 was identical to the lost affidavit. However, an examination of People's Exhibit Number 9, considered in conjunction with Sergeant Gray's testimony, demonstrates failure to take full advantage of this impeaching evidence was not prejudicial.
People's Exhibit Number 9 consists of (1) initial police reports describing the crime scene, sufficient to show a murder had occurred, (2) reports of neighbors reporting the suspicious presence of defendant; (3) the autopsy report; (4) Downs's report matching defendant's palm print to those found at the crime scene; (5) several booking, arrest, and other law enforcement documents showing defendant's criminal record; and (6) copies of defendant's fingerprints and palm prints. In response to defense counsel's questions, Sergeant Gray testified he would not have attempted to obtain a warrant based on just defendant's prior record or even the suspicious sighting in the neighborhood. However, based on that evidence plus the palm-print evidence, which he termed the " key element, " Gray testified he presented to Judge Franciscus on May 8, 1981, copies of all police reports in the case prepared up to that day.
[768 P.2d 84]Significantly, although several pages in People's Exhibit Number 9 are undated or copies of old documents (such as prior arrest reports), the police reports concerning the palm-print evidence, the sightings in the neighborhood, and that a murder had occurred, are all dated prior to May 8, the day the warrant was obtained. In light of Gray's testimony that he would not have attempted to get a warrant unless he had the palm-print evidence, we may thus conclude that even assuming the surviving cover page of the original affidavit is accurate, included in the 45 pages the magistrate [255 Cal.Rptr. 865] saw was evidence of the palm-print evidence, the neighborhood sightings, and that the victim's death was probably the result of a murder. Thus, even assuming Sergeant Gray could have been impeached with the page discrepancy, the failure to object was harmless.
3. Random Jury Selection
Defendant next challenges the method in which the trial judge selected the initial group of 21 jurors for voir dire from among the 84 veniremen. Apparently concerned that the traditional method of choosing the group of veniremen to voir dire, i.e., a random draw of 12 names from a trial jury box, would inconvenience the 84 veniremen since the courtroom only sat 48 people, the trial judge decided to designate the first 21 veniremen who came through the courtroom door as the first group.
Defense counsel objected to this procedure, claiming it violated his right to a randomly selected jury. Specifically, counsel argued cliques among veniremen would lead them to enter the courtroom together resulting in all or none being in the first 21 people. In addition, counsel speculated that a venireman with an aggressive personality might " self-select" himself by entering first due to his eagerness to serve. Finally, after the first 21 were seated, counsel noted (out of the jury's hearing) that no Blacks were among the first 21 and that several of the Black veniremen were seated together in the back of the room. The trial judge overruled the defense objection.
In response to this last argument, the trial judge commented: " Well, I am a little more expert on whether or not he needs to have some Blacks on the jury, and I will say it again: He murdered, allegedly, a 70-odd-year-old elderly black lady. I don't think he is going to get an awful lot of sympathy from Blacks. [¶ ] And I would indicate that selection of jurors by picking names at random from the box would not produce any other distribution."
The prosecutor suggested an alternative procedure which would have addressed the logistical problems of the small courtroom while better ensuring a random draw. The trial judge admitted the " solution is a good one, but I don't think it's necessary" and commenced to implement the unique procedure. Later, the prosecutor expressed his misgivings and told the judge he believed the Penal Code required a random draw of names from the trial jury box. However, by that time several prospective jurors had been voir dired and defense counsel objected to any " irregular procedures." After reviewing the code, the trial judge concluded that the statutes did not direct a specific method of picking jurors and overruled all the objections.
Defendant now complains the trial court's actions denied his right to a randomly selected jury. " Trial juries for criminal actions are formed in the same manner as trial juries in civil actions." (§ 1046.) Once the panel of prospective jurors is drawn and " in a manner to insure random selection, " (former Code Civ.Proc., § 246), the panel is sent to the trial court in order to choose a jury from this panel. Code of Civil Procedure section 600 provides the applicable procedure: the clerk " must draw from the trial jury box of the court the ballots containing the names of the jurors, until the jury is completed, or the ballots are exhausted."
Of course, " a party is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits." ( People v. Wheeler (1978) 22 Cal.3d 258, 277, 148 Cal.Rptr. 890, 583 P.2d 748.) However, failure to comply with the procedure set forth in Code of Civil Procedure section 600 does not necessarily [768 P.2d 85] require reversal. " A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury in civil actions...." (Former § 1059, emphasis added.)
Defendant relies on People v. Johnson (1894) 104 Cal. 418, 38 P. 91. In Johnson, as here, jurors were not selected by a random draw of names from the trial jury box. Instead, the bailiff selected 12 men from among the veniremen present in the courtroom and those 12 eventually served without objection from defense counsel. Although [255 Cal.Rptr. 866] this court held the failure to object waived the error, we noted that " [t]his mode of impanelling a jury differs materially from that prescribed in the statutes of the state, and if it had been done against the objection of defendant it would have constituted sufficient reason for reversal." ( Johnson, supra, at p. 419, 38 P. 91.)
Although defendant argues the instant case contains an error which is " virtually identical" to that in Johnson, supra, 104 Cal. 418, 38 P. 91, that case is clearly distinguishable since in Johnson the bailiff personally chose the jury from among the veniremen. Thus, the draw was not random but was instead subject to the biases— both conscious and unconscious— of the person making the selections. By contrast, the unique selection procedure employed here was much more a random draw. Thus, Johnson is unpersuasive.
The question remains whether the selection procedure employed here constituted a " material departure" from that set forth in Code of Civil Procedure section 600. We hold it does not. Although defense counsel's scenarios in support of his claim the procedure was not random are possible, the record shows several panels of veniremen were called for voir dire. Moreover, to the extent the procedure had the potential to manifest some subtle bias, that potential was not achieved since after the first 21 veniremen were questioned, the selection of all following groups of veniremen were chosen by the normal method. Significantly, unlike in Johnson, supra, 104 Cal. 418, 38 P. 91, selection of the jurors was not undertaken by a person but by the fortuity of entering the courtroom door. There is no evidence the veniremen were aware of the trial court's unique selection method. The record shows defense counsel was able to fully question the veniremen and exercise his peremptory challenges. While we caution future courts to avoid the unique procedure employed here, we hold that on these facts, there was no material departure from the statutory procedure sufficient to sustain a challenge to the validity of the jury.
4. Peremptory Challenges
a. Use of the Struck Jury Method to Pick Jurors
After voir dire was completed for the first 21 prospective jurors but prior to the exercise of the first peremptory challenge, defense counsel objected to the " irregular picking of the jury" and requested that no more than 12 persons be present in the jury box at any one time, arguing the juror selection procedure employed by the court thus far was not permitted by the Penal Code. The court noted the objection and impliedly overruled it, stating " Well, the Penal Code doesn't specify, Mr. Blum. It allows for a little creative judging and that's what we're doing here."
Each side then exercised 5 peremptory challenges each against the initial 21 person panel and the court had the clerk pick an additional 10 names at random. After 9 further peremptory challenges were made (leaving a jury of 12), another 6 jurors were picked at random. Further challenges left the panel at 11. The court said it would " do this one more time" but, after a renewed objection by defense counsel was overruled, counsel withdrew his last peremptory challenge leaving the jury at 12. However, the prosecutor then challenged 1 juror and 5 more names were drawn. After 3 more challenges, the prosecutor accepted the jury of 13.
The trial court indicated that if both sides passed on a jury of 13, 1 juror would be eliminated by a random draw. Defense counsel challenged a final juror, leaving 12 and both sides then accepted the jury.
[768 P.2d 86]Defendant contends the trial court's decision to have him direct his peremptory challenges against a potential jury of more than 12 persons improperly diluted his right to exercise his peremptory challenges. Former section 1088 stated in pertinent part that " each party shall be entitled to have the panel full before exercising any peremptory challenge." Although past cases involved the failure to maintain a full complement of 12 jurors when the parties were exercising their peremptory challenges (see People v. Scoggins (1869) 37 Cal. 676; [255 Cal.Rptr. 867] People v. Dufur (1917) 34 Cal.App. 644, 168 P. 590), whether former section 1088 is violated when more than 12 persons are in the jury box is a question of first impression.
Both Scoggins and Dufur were decided before the enactment of the language in section 1088 requiring a " full panel."
A recent federal case cogently explains the different methods for exercising peremptory challenges posed here. " In the ‘ jury box’ system of jury selection, the parties exercise their challenges against jurors already seated in the box, and who will remain on the jury unless challenged." ( United States v. Ricks (4th Cir.1986) 802 F.2d 731, 733.) This is the system used in California. However, " the ‘ struck jury’ method of jury selection [is] where the trial judge tenders to each party a list of qualified veniremen and each side exercises its peremptories against the names on the list. If, after each side exercises its strikes, there remains more than twelve persons on the list, the trial judge must decide which twelve will constitute the jury." ( Ibid., fns. omitted.) The trial judge apparently attempted to employ the " struck jury" method in this case.
We perceive the crux of defendant's argument to concern the reality that strategic use of one's peremptory challenge against a prospective juror requires knowledge of the personalities of the remaining 11 jurors on the panel. Acceptance of one juror may depend on the presence of another juror on the panel; an attorney may desire to obtain a balance of personalities on a jury. Forcing defendant to exercise his challenges against a panel of 21 prospective jurors made it much more difficult for counsel to evaluate the suitability of any particular juror since counsel could not be certain who the other 11 jurors would be; if both sides passed on a panel consisting of more than 12 jurors, actual service of any 1 juror depended on the luck of the draw.
These same concerns are present in cases involving less than a full panel. For example, this court in Scoggins, supra, 37 Cal. 676, was faced with a situation where the trial court had the clerk choose one juror at a time and insisted both sides decide whether that juror was acceptable before moving on to the next one. Describing the procedure then applicable, we noted the trial court should have randomly drawn 12 names and had all 12 jurors sit in the jury box for voir dire and the exercise of peremptory challenges. We noted " [t]he theory of the law probably is that the right to challenge peremptorily cannot be exercised so judiciously until the panel is filled with competent and qualified jurors, of whom each party is allowed to reject a certain number without assigning any reason therefor." ( Scoggins, supra, 37 Cal. at p. 680, emphasis added.) We thus recognized early on that the composition of the entire panel was relevant to the exercise of a peremptory challenge against any one juror.
We have recognized the importance of the composition of the entire panel in a more recent case. In In re Mendes (1979) 23 Cal.3d 847, 153 Cal.Rptr. 831, 592 P.2d 318, 12 jurors were chosen but before the alternate could be selected, one of the 12 was discharged due to a death in the family. The defendants challenged the trial court decision to reopen jury selection and permit the exercise of any unused peremptory challenges against the remaining 11 jurors. This court affirmed, saying, " there was a valid reason for the court to allow peremptory challenges [against the 11 jurors already chosen; ] so that both sides could satisfy themselves to the best of [768 P.2d 87] their ability with the final composition of the jury." ( Id. at p. 855, 153 Cal.Rptr. 831, 592 P.2d 318.) We then quoted with apparent approval the trial court's comments in support of its ruling: " ‘ There is a possibility that somebody might have in the back of their mind that the new juror wouldn't fit in with the total panel.’ " ( Ibid. )
It is thus manifest that knowing the composition of the entire panel is relevant to the wise exercise of a peremptory challenge against a particular juror. (But see [255 Cal.Rptr. 868] United States v. Blouin (2d Cir.1981) 666 F.2d 796, 798-799 [suggesting the struck-jury system is more advantageous from a strategic point of view].) However, that the trial court's procedure made the exercise of a peremptory challenge more difficult does not inexorably lead to a conclusion that the trial court committed reversible error. This is not a case where defendant was prohibited from exercising the full complement of his allotted challenges; such an error would be reversible per se. ( People v. Armendariz (1984) 37 Cal.3d 573, 584, 209 Cal.Rptr. 664, 693 P.2d 243.) Instead, the trial court's insistence on a self-proclaimed " creative" system merely carried a potential for prejudice.
However, we cannot say that potential was realized here. First, to the extent the procedure impinged on defense counsel's strategy, the prosecutor labored under the same handicap. Second, and more importantly, the " final" 12 jurors were not chosen by a random draw from a larger pool. Instead, the panel was pared down to the final 12 via the challenge process. Indeed, by the end of the session, both defense counsel and the prosecutor were able to see who the other jurors would most likely be. Thus, although defendant claims that under the trial court's system a defendant could logically be forced to exercise his 26 challenges against a group of " 50 or 100 or 5000" panelists, that is not what happened here.
Unlike in Armendariz, supra, 37 Cal.3d 573, 209 Cal.Rptr. 664, 693 P.2d 243, where the defendant was prohibited from using all his allotted challenges, the error here was not a fundamental misstep. Instead, it was more in the nature of a departure from the statutory order of exercising the challenges or in allowing the prosecutor to challenge a juror after initially passing. In such cases, the law has long been that relief will not be granted on appeal absent a showing of prejudice. ( People v. Mitchell (1964) 61 Cal.2d 353, 38 Cal.Rptr. 726, 392 P.2d 526; People v. Hoyt (1942) 20 Cal.2d 306, 125 P.2d 29; People v. Saugstad (1962) 203 Cal.App.2d 536, 21 Cal.Rptr. 740.) Thus, even if forcing defendant to exercise his peremptory challenges against more than 12 prospective jurors at a time violated section 1088's requirement of a " full panel, " we find that procedure harmless on these particular facts.
However, we caution future courts that section 1088's reference to a " full panel" means a panel of 12 jurors, no more and certainly not fewer. That the error in this case was harmless is merely due to the unique facts of this case.
b. Purposeful Discrimination Under Batson v. Kentucky
During voir dire, the prosecutor exercised a peremptory challenge against a prospective juror named Ms. Givan. Defense counsel objected and the following colloquy occurred:
" MR. BLUM [defense counsel]: Defense objects, noting the point that Miss Givan is black. I see no reason
" THE COURT: Overruled.
" MR. BLUM: Can I just state the basis that it is systematic exclusion.
" THE COURT: Seeing as she is the first black that is seated on the jury, I can't see how you can get systematic exclusion.
" MR. COLLIER [prosecutor]: I would also note for the record that during the Witherspoon voir dire, Miss s Givan said [768 P.2d 88] she can only vote for the death penalty if she was absolutely forced to, and I am not about to place anybody on the jury since that's the only issue— who is going to indicate that."
Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. See also Wainwright v. Witt (1985) 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (clarifying the Witherspoon standard). Although defendant did not contest the prosecutor's statement at trial, on appeal he points out that the record does not support the prosecutor's recollection of the potential juror's Witherspoon response, and he argues that the trial court thus erred in overruling his objection.
Defendant now contends the prosecutor excused Ms. Givan for racial reasons and thus violated his right to equal protection under the federal Constitution. [255 Cal.Rptr. 869]( Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.) To establish a prima facie case of discriminatory motive, " the defendant first must show that he is a member of a cognizable racial group, [citation], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." ( Id. at p. 96, 106 S.Ct. at p. 1722.) Next, the defendant must show that the totality of the relevant evidence demonstrates the prosecutor was exercising peremptory challenges to exclude veniremen on account of their race. " This combination of factors in the empaneling of the petit jury ... raises the necessary inference of purposeful discrimination." ( Ibid. ) " Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." ( Id. at p. 97, 106 S.Ct. at p. 1723; cf. Wheeler, supra, 22 Cal.3d at pp. 280-282, 148 Cal.Rptr. 890, 583 P.2d 748 [adopting this same procedure].)
Defendant does not allege the prosecutor's actions violated his right to a jury drawn from a fair crosssection of the community under the state Constitution. ( People v. Snow (1987) 44 Cal.3d 216, 242 Cal.Rptr. 477, 746 P.2d 452; People v. Turner (1986) 42 Cal.3d 711, 715-716, 230 Cal.Rptr. 656, 726 P.2d 102, and cases cited; People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.) Batson expressly declined to reach the Sixth Amendment question, instead choosing to address only the equal protection issue. ( Batson, supra 476 U.S. at pp. 84-85, fn. 4, 106 S.Ct. at p. 1716, fn. 4.)
There is no doubt Blacks constitute a cognizable racial group for the purposes of our analysis. (See generally, Batson, supra, 476 U.S. 79, 106 S.Ct. 1712; cf. Turner, supra, 42 Cal.3d at p. 719, 230 Cal.Rptr. 656, 726 P.2d 102; Wheeler, supra, 22 Cal.3d at p. 280, fn. 26, 148 Cal.Rptr. 890, 583 P.2d 748.) However, it does not appear defendant established a prima facie case of purposeful discrimination or systematic exclusion based on his brief observation that Ms. Givan is Black. People v. Rousseau (1982) 129 Cal.App.3d 526, 179 Cal.Rptr. 892, is illustrative. In Rousseau, supra, a Wheeler case, the prosecutor challenged the only two Blacks on the jury panel. In an attempt to satisfy the dictates of Wheeler, counsel objected and simply noted that " ‘ there were only two blacks on the whole panel, and they were both challenged by the district attorney.’ " ( Rousseau, supra, 129 Cal.App.3d at p. 536, 179 Cal.Rptr. 892.) The Rousseau court found counsel's summary explanation was inadequate to trigger the People's obligation to provide a racially neutral explanation for the challenge. ( Id. at pp. 536-537, 179 Cal.Rptr. 892; see also Turner, supra, 42 Cal.3d at p. 719, fn. 4, 230 Cal.Rptr. 656, 726 P.2d 102.) As in Rousseau, supra, defendant's brief explanation of his basis for his objection was insufficient to establish a prima facie showing of systematic exclusion or purposeful discrimination.
Although the record is susceptible to a claim that the trial judge cut counsel off before he could state the grounds of his objection, such an argument is untenable. Although the trial judge was somewhat abrupt, counsel did not present at trial, and does not now present any further support for his claim the prosecutor's challenge of Ms. Givan was racially motivated.
In sum, we find no federal constitutional error.
5. Denial of a Representative Jury
Defendant next contends he was denied his Sixth Amendment right to a jury representative of the community because several jurors were excused from service when they expressed at voir dire an unwillingness to impose the death penalty. However, it is clear the exclusion of such jurors is constitutionally permissible. ( People v. Balderas (1985) 41 Cal.3d 144, 191, 222 Cal.Rptr. 184, 711 P.2d 480 and cases cited therein; Lockhart v. McCree (1986) 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137.)
[768 P.2d 89]6. Ex Parte Communication With a Juror
During voir dire, several veniremen were excused on the basis of anticipated financial hardship, but juror Facsina stated she would not suffer any financial hardship by serving as a juror in defendant's trial, estimated to last six weeks. Fascina eventually became one of the twelve jurors chosen to try defendant's case. Testimony began on September 15, 1982. Also on that date, [255 Cal.Rptr. 870] Phyllis Sandahl, the personnel administrator for Facsina's employer, wrote the court and expressed the company's policy of paying its employees for a maximum of 10 days of jury service and requested company employees be excused from service of a longer duration.
The trial judge responded to the employer with his own letter on September 16, 1982. He noted Facsina was a sitting juror in defendant's case, described the seriousness of the charges, and expressed surprise at the company's 10-day policy, saying he was informed the company would pay Fascina for the duration of the trial. The judge's letter then continued that this new revelation came " at a very bad time. In order to excuse her in the middle of the trial I would have to declare a mistrial and run the risk of freeing a man against whom a large amount of evidence has already been presented. I am certain that such a result would not be desired by your company." The judge closed by stating " Your re-consideration in this matter is vital." Fascina's employer wrote back the next day to inform the trial judge Fascina would be allowed 20 paid days for jury service and an extended unpaid leave of absence that would not affect her position with the company.
On September 22, 1982, the jury returned guilty verdicts against the defendant. The trial judge then called Fascina (who had served as foreman of the jury) over for a side-bar discussion. He told her he understood she was not being paid for her service and asked her if the situation was causing her undue hardship. She replied in the negative. He also asked her if she wished to be relieved and she replied she had come this far and felt it was her duty to continue. Neither the prosecutor nor defense counsel was party to this conversation or was notified of the judge's letter to Fascina's employer.
There is a brief mention in the trial transcript of the trial judge calling Juror Fascina over for a conference but the actual conversation was not reported. We ordered preparation of a settled statement to reconstruct the substance of the conversation.
Defendant first argues we can infer from the dates on the trial judge's letter and on the letters from Fascina's employer that the judge's letter was hand carried. Defendant thus argues that Fascina " may well have" read the letter with its arguably misleading statements that the employer's revelation came at a " bad time, " that a " large amount" of evidence had been produced, and that excusing Fascina would " risk" freeing a dangerous man. This information, defendant continues, could have communicated to Fascina that the trial judge believed defendant was guilty, thereby prejudicing Fascina against him.
Although the record does not unequivocally establish whether Fascina read the trial judge's letter during the trial, it suggests that she probably did. Phyllis Sandahl, the personnel administrator for Fascina's employer, filed an affidavit which states it " would have been my normal practice to show" the trial judge's letter to Fascina and goes on to aver that " I believe I showed her the letter at that time and that she read it." Furthermore, Fascina's testimony at the hearing to settle the record provides additional evidence from which we may conclude she read the letter. She answered in the affirmative when [768 P.2d 90] asked if she had had " occasion" to read the letter. When she was then asked whether she had read the letter before or after her side-bar conversation with the judge, she replied, " I would think it was before, but I won't swear to it, because I don't know, I don't remember."
Although the trial court declined to admit the affidavit into evidence at the hearing to settle the record, defense counsel was permitted to file it with the court as an offer of proof and the appellate record was thereafter augmented to include the affidavit. As such it " shall be deemed a part of the record on appeal." (Cal.Rules of Court, rule 12(a).) Since it is thus unnecessary to grant defendant's motion to take judicial notice of the affidavit, the motion is denied.
Even assuming she read the letter on the day it was written, however, it does not appear any prejudice resulted. While the trial judge exaggerated the amount of evidence [255 Cal.Rptr. 871] which had already been produced at trial, there was overwhelming evidence of defendant's guilt, including his palm print and his confession. Moreover, it must have been clear to Fascina that the possibility of her being dismissed from the case certainly did come at a " bad time" since all concerned had already come through a lengthy voir dire process. Finally, defendant overstates the " ominous tone" of the trial judge's letter; Fascina was already aware of the seriousness of the charges against defendant. In short, even if we can assume Fascina read the letter, we cannot say she was prejudiced against defendant as a result.
Defendant also argues the trial judge's ex parte side-bar communication with Fascina requires reversal of all his convictions, claiming the communication violated his constitutional rights to the effective assistance of counsel and to be present at all critical stages of his criminal trial. It is well settled that the trial court should not entertain, let alone initiate, communications with individual jurors except in open court with prior notification to counsel. ( Paulson v. Superior Court (1962) 58 Cal.2d 1, 7, 22 Cal.Rptr. 649, 372 P.2d 641.) " This rule is based on the precept that a defendant should be afforded an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendant's case. [Citations.]" ( People v. Garcia (1984) 160 Cal.App.3d 82, 88, 206 Cal.Rptr. 468.)
While the rule against ex parte communications with jurors is based on a defendant's constitutional right to personal presence at all critical stages of his trial and on his right to counsel, " [t]here is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. [The conclusion] ... that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society's interest in the administration of criminal justice." ( Rushen v. Spain (1983) 464 U.S. 114, 118-119, 104 S.Ct. 453, 455-456, 78 L.Ed.2d 267, italics in original, fn. omitted [per curiam opn.].) Although such communications violate a defendant's right to presence at all critical stages and his right to counsel and thus constitute federal constitutional error, reversal is not required if the error is found harmless beyond a reasonable doubt. ( Rushen, supra, at pp. 117-120, 104 S.Ct. at pp. 454-456; People v. Hogan (1982) 31 Cal.3d 815, 850, 183 Cal.Rptr. 817, 647 P.2d 93 [plur. opn. of Bird, C.J.]; see Chapman v. California (1967) 386 U.S. 18, 20-21, 87 S.Ct. 824, 826, 17 L.Ed.2d 705.)
In this case, the transcript to settle the record shows Fascina told Judge Alston that continuing with the trial would not cause her any financial hardship. Moreover, Fascina did not recall Judge Alston putting any pressure on her to remain in the case and she affirmed the decision to remain on the jury was entirely her own. We thus conclude that although it was error for Judge Alston to communicate with Fascina without counsel present, the error was harmless beyond a reasonable doubt.
We also reject defendant's further contention that reversal is required because the trial court failed to hold a hearing on Fascina's fitness to continue. Although we held a failure to hold a hearing under similar circumstances was " an abuse of discretion subject to appellate review" ( People v. Burgener (1986) 41 Cal.3d 505, 519-520, 224 Cal.Rptr. 112, 714 P.2d 1251), the trial court's misstep in this case was clearly harmless. Although a contested hearing was not held, the trial court made a sincere attempt to determine Fascina's ability to continue and its decision to leave Fascina on the jury was supported by substantial evidence. (See Burgener, supra, at p. 520, 224 Cal.Rptr. 112, 714 P.2d 1251.)
[768 P.2d 91]7. Corpus Delicti
Defendant next argues his convictions for attempted robbery, rape, and burglary, as well as the three special circumstances based on those felonies, must be reversed because the evidence adduced at trial— excluding his extrajudicial statements— failed [255 Cal.Rptr. 872] to establish the corpus delicti of those crimes.
In any criminal prosecution, the corpus delicti, i.e., the body or elements of the crime, must be established by the prosecution independently from the extrajudicial statements, confessions or admissions of the defendant. ( People v. Towler (1982) 31 Cal.3d 105, 115, 181 Cal.Rptr. 391, 641 P.2d 1253; People v. Mehaffey (1948) 32 Cal.2d 535, 545, 197 P.2d 12.) The elements of the corpus delicti are (1) the injury, loss or harm, and (2) the criminal agency that has caused the injury, loss or harm. ( Jones v. Superior Court (1979) 96 Cal.App.3d 390, 393, 157 Cal.Rptr. 809.) " The independent proof may be circumstantial evidence [citation], and it need not be beyond a reasonable doubt. A slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient. [Citations.]" ( People v. Alcala (1984) 36 Cal.3d 604, 624-625, 205 Cal.Rptr. 775, 685 P.2d 1126.) It is not necessary for the independent evidence to establish defendant was the perpetrator. ( People v. Cullen (1951) 37 Cal.2d 614, 624, 234 P.2d 1; Jones, supra, 96 Cal.App.3d at p. 393, 157 Cal.Rptr. 809.) The corpus delicti rule applies to the special circumstance allegations. ( People v. Robbins (1988) 45 Cal.3d 867, 885, 248 Cal.Rptr. 172, 755 P.2d 355; People v. Mattson (1984) 37 Cal.3d 85, 93-94, 207 Cal.Rptr. 278, 688 P.2d 887.)
Defendant first argues the People failed to establish the corpus delicti of attempted robbery before admission of defendant's confession. However, defense counsel never lodged an objection on this ground, instead confining his objection to Miranda. (See Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) By failing to object, defendant cannot now complain the evidence was improperly admitted. ( People v. Mitchell (1966) 239 Cal.App.2d 318, 323, 48 Cal.Rptr. 533.) It may be that " proof of the corpus delicti was available and at hand during the trial, but that in the absence of [a] specific objection calling for such proof it was omitted." ( Ibid. )
Defendant obliquely admits the absence of an objection but contends his trial counsel rendered ineffective assistance because there could be no reasonable tactical reason for declining to object. To show counsel provided inadequate assistance, defendant must demonstrate " that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates ... [and] that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense." ( People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859; see also People v. Fosselman (1983) 33 Cal.3d 572, 583-584, 189 Cal.Rptr. 855, 659 P.2d 1144 [need only show defendant was prejudiced by his attorney's inadequate performance]; Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.)
Since the record provides no clue as to why counsel failed to object, we would normally affirm on appeal and require defendant to proceed via habeas corpus. ( Pope, supra, 23 Cal.3d at p. 426, 152 Cal.Rptr. 732, 590 P.2d 859.) Although this rule does not apply if " there simply could be no satisfactory explanation" for the omission ( ibid. ), it may well be that counsel was aware of additional evidence of attempted robbery aside from defendant's own statements, and did not wish to invite its presentation. ( Mitchell, supra, 239 Cal.App.2d at p. 323, 48 Cal.Rptr. 533.) On this record, then, we cannot conclude defense counsel was ineffective for failing to object.
We need not rely on the failure to object to dispose of defendant's further corpus delicti arguments. The partially clothed condition of the victim's body, clear evidence of force applied to her, and the presence of semen on the external genital [768 P.2d 92] area of the victim together permit a reasonable inference a rape occurred. Defendant's contention there was no evidence of penetration is premised on the wrong standard: there need only be slight evidence of that element of rape and such may be inferred from the above mentioned circumstantial evidence. [255 Cal.Rptr. 873]( Alcala, supra, 36 Cal.3d at pp. 624-625, 205 Cal.Rptr. 775, 685 P.2d 1126.)
Similarly, we conclude the evidence established the corpus delicti of the crime of burglary. There is no disputing that there was evidence of a forcible rape inside the residence. Although defendant complains there was no independent evidence he entered without consent ( People v. Gauze (1975) 15 Cal.3d 709, 713-714, 125 Cal.Rptr. 773, 542 P.2d 1365), this much may be inferred (at least to satisfy the corpus delicti rule) from the circumstantial evidence adduced at trial.
8. Circumstantial Evidence Instruction
Defendant next argues the trial court erred by declining to instruct the jury with CALJIC No. 2.01. That instruction concerns the proper consideration of circumstantial evidence. However, the obligation to read CALJIC No. 2.01 to the jury arises only in those cases where circumstantial evidence is " substantially relied on for proof of guilt." ( People v. Wiley (1976) 18 Cal.3d 162, 174, 133 Cal.Rptr. 135, 554 P.2d 881, quoting People v. Yrigoyen (1955) 45 Cal.2d 46, 49, 286 P.2d 1.) " The reason for this rule is found in the danger of misleading and confusing the jury where the inculpatory evidence consists wholly or largely of direct evidence of the crime. [Citation.]" ( People v. Jerman (1946) 29 Cal.2d 189, 197, 173 P.2d 805.) " Extrajudicial admissions, although hearsay, are not the type of indirect evidence as to which the instructions on circumstantial evidence are applicable. [Citation.]" ( Wiley, supra, 18 Cal.3d at p. 174, 133 Cal.Rptr. 135, 554 P.2d 881.)
CALJIC No. 2.01 (1979 rev.) states: " However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.
Defendant contends the People relied largely on circumstantial evidence to prove the rape and burglary charges. However, it is apparent the People relied on the following statements defendant made during a postarrest interrogation with police to prove defendant's guilt: (1) that he had forcible intercourse with the victim; (2) that she was alive during the rape; and (3) that he forced his way into the victim's home with the intent to take her money. Since it is clear the People placed their primary reliance on these statements and not on circumstantial evidence, the trial court properly denied defendant's request for CALJIC No. 2.01.
Defendant concedes his postarrest inculpatory statements were a large part of the People's case. However, he characterizes his statements as contradictory, requiring circumstantial evidence for corroboration. Since this corroboration was critical to the People's case, he argues the People " substantially relied" on circumstantial evidence thereby requiring the instruction. This reasoning is suspect (see People v. Williams (1984) 162 Cal.App.3d 869, 874-876, 208 Cal.Rptr. 790 [circumstantial corroborating evidence insufficient to trigger [768 P.2d 93] a duty to give CALJIC No. 2.01]) but in any case the transcript of the interrogation does not support defendant's claim he made contradictory statements. The transcript shows defendant unequivocally admitted the rape, the forcible entry, and his larcenous intent. Since the People did not " substantially rely" on circumstantial evidence [255 Cal.Rptr. 874] to prove defendant was guilty of rape and burglary, it follows the trial court correctly denied defendant's request to read CALJIC No. 2.01 to the jury.
Defendant also argues the trial court had a sua sponte duty to give CALJIC No. 2.01 at the penalty phase since the prosecutor relied heavily on circumstantial evidence during his closing argument. However, the People did not " substantially rely" on circumstantial evidence at the penalty phase either. Thus, even assuming arguendo that CALJIC No. 2.01 applies at the penalty phase, no sua sponte duty arose.
9. Failure to Advise Defendant of the Consequences of the Stipulation Concerning the Victim's Age and His Own Parolee Status
During defendant's trial, counsel agreed to stipulate that the victim was 76 years old at the time of her demise, and that defendant was on parole for armed robbery at the time of the crime. Defendant now contends his convictions must be reversed since he was not advised of the consequences of the stipulations nor asked to join in them. He relies on People v . Hall (1980) 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826, where the court indicated, in dictum, that " trial courts in the future would be well-advised to assure the record adequately reflects the fact that a defendant is advised of any constitutional rights waived when stipulating to the status of an ex-felon." (28 Cal.3d at p. 157, fn. 9, 167 Cal.Rptr. 844, 616 P.2d 826.)
Even if we were to assume that this dictum in Hall should properly be extended to the stipulations at issue here, reversal would not be warranted. In People v. Wright (1987) 43 Cal.3d 487, 233 Cal.Rptr. 69, 729 P.2d 260, we held that when a defendant's submission or stipulation is not tantamount to a guilty plea " [a] trial court's failure to comply with [a] judicial rule of criminal procedure [like that articulated in Hall ] requires reversal only if it is reasonably probable a result more favorable to the defendant would have been reached if he had been properly advised. [Citations.]" (43 Cal.3d at p. 495, 233 Cal.Rptr. 69, 729 P.2d 260 [fns. omitted].)
In this case, the factual stipulations appear routine; there is nothing in the record showing the People would have had any difficulty proving the victim's age or defendant's parolee status. Both facts are of a type which are easily verifiable by resort to standard sources. Moreover, we fail to perceive how defendant suffered prejudice since none of the three enhancements added an additional enhancement term to defendant's overall sentence but merely prohibited probation or a suspended sentence. Inasmuch as the special circumstance allegations were sustained, the minimum sentence he could have received was life imprisonment without the possibility of parole. Thus, the possibility of probation or a suspended sentence was nonexistent. We thus conclude that even assuming the failure to obtain Boykin-Tahl waivers (395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d 72) from defendant prior to counsel agreeing to the stipulations was error, it was harmless. ( People v. Watson (1956), 46 Cal.2d 818, 836, 299 P.2d 243.)
10. Dissatisfaction With Counsel
At the July 13, 1981, trial setting conference, defendant first broached the subject of his dissatisfaction with defense counsel. Noting the book he was reading (Behind Charles Manson) advised that " the worst thing to get" was an " overworked PD, " defendant averred that he was not getting along with counsel and wanted " at least a state appointed attorney." Although defendant did not make a clear request to proceed in propria persona, he made this statement: " And I feel like this— like me and he can't get along. If I got to go down, let me go down by myself because I really don't need no overworked PD trying [768 P.2d 94] to help me fight my case when he not [ sic ] going to do nothing for me."
Counsel responded that he had been getting along with defendant until that morning, when counsel told defendant he was too busy to make defendant a copy of the charges against him for his own use. In addition, counsel refused to exchange some money for defendant, saying that was not [255 Cal.Rptr. 875] one of his functions. The matter apparently ended after the trial court lectured defendant on counsel's competence and experience and that defendant stood a better chance of acquittal with him than without him.
Defendant next expressed his dissatisfaction with counsel over a year later on August 16, 1982. Defendant's complaint centered around counsel's advice that defendant should plead guilty. In addition, defendant alleged that counsel told defendant to plead guilty because he wanted to avoid looking silly at trial, thus damaging his professional reputation. To punctuate his claim counsel was not competent, defendant noted he had done some checking and discovered that defense counsel " is just a deputy public defender from the public defender's office, and it states, you know, in law on the special circumstances case you're entitled by law to two attorneys and right now I'm facing the special circumstances case and I ain't even got one lawyer, not even one and it says by law you're entitled to two...."
The trial court thereupon informed defendant that his counsel was indeed an attorney. When it then tried to determine whether defendant had discussed these matters with counsel, defendant tried to begin a discussion of another subject. The trial court interjected: " Wait a minute ... [¶ ] You have to tell me certain things now that I need to know in order for me to make a decision as to whether to relieve [counsel] ... and let you go pro per."
Defense counsel reported he told defendant that the evidence of guilt was very strong and that a guilty plea might save his life. He added that he told defendant that a strong argument at the guilt phase would not be made in order to preserve counsel's credibility with the jury at the penalty phase. The trial court informed defendant his attorney knew much more about the case than anyone and his suggestion to plead guilty was not a face-saving maneuver but a tactical decision based on an appraisal of the strength of the People's evidence. In the course of this discussion, the trial court stated counsel " is a person who has tried several cases similar to this before, cases involving the possibility of a death penalty in a murder trial."
a. Faretta
Defendant first claims his right to self-representation under Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, was violated, claiming the trial court's statement concerning counsel's experience in capital cases was false, thereby preventing him from making an informed decision whether to assume the responsibility of his own defense. To support his claim the court's comment was a misrepresentation, he directs our attention to an April 6, 1982, pretrial hearing where counsel told the trial judge, outside the hearing of defendant and the jury, that defendant's case was the first special-circumstances case he had tried. (See discussion, ante, at p. 862 of 255 Cal.Rptr., at p. 81 of 768 P.2d.)
Even assuming defendant's factual premise is correct, however, we perceive no problem under Faretta, supra, 422 U.S. 806, 95 S.Ct. 2525. " [I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial." ( People v. Windham (1977) 19 Cal.3d 121, 127-128, 137 Cal.Rptr. 8, 560 P.2d 1187 [emphasis added].) Here defendant failed to clearly indicate at the August 16, 1982, hearing that he desired to have counsel relieved and to proceed pro se. The record, read as a whole, shows defendant was unhappy for two reasons: because he believed counsel was not a " real" attorney, and because counsel encouraged him to plead guilty. The only mention by defendant [768 P.2d 95] of a desire to proceed without an attorney came at the hearing more than a year previously and even then the " request" was somewhat ambiguous (" If I got to go down, let me go down by myself...."). While the trial court mentioned on August 16 that it was trying to determine whether to relieve counsel and let defendant proceed in propria persona, this comment came in the context of the Marsden [255 Cal.Rptr. 876] motion ( People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44) and it does not appear the trial court understood defendant's complaints to reflect a desire to proceed without representation but rather went to his unhappiness with defense counsel. We thus conclude that the trial court did not violate defendant's constitutional right to self-representation under Faretta, supra, 422 U.S. 806, 95 S.Ct. 2525, since he never made a timely, unequivocal assertion of that right.
b. Marsden
Defendant also contends these same misrepresentations demonstrate the trial court failed to conduct a proper Marsden hearing. In Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, we held that the right of an accused to the effective assistance of counsel may include the right to have present counsel discharged and substitute counsel appointed. In order to thoughtfully exercise its discretion whether to discharge present counsel, a trial court is thus required to listen to a defendant's complaints about his attorney. ( Marsden, supra, at pp. 123-124, 84 Cal.Rptr. 156, 465 P.2d 44.) " [A] judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney." ( Id. at p. 124, 84 Cal.Rptr. 156, 465 P.2d 44.)
However, it is apparent that the alleged misrepresentations did not implicate defendant's Marsden rights. The record shows the trial court patiently listened to defendant's complaints about counsel, asked counsel for his side of the story, and resolved the matter to defendant's apparent satisfaction by explaining public defenders were " real" attorneys and that counsel's recommendation that defendant should plead guilty was not a face-saving measure but an honest appraisal of the strength of the People's case. The record reveals defendant never really requested substitute counsel be appointed but that he was merely unhappy with present counsel's handling of the case. We perceive no Marsden error.
Defendant asserts the trial court cut him off and would not allow him to speak. This grossly exaggerates the record. Read in context, the comment alluded to merely indicates the trial judge desired to address defendant's complaints in an orderly fashion and did not want to allow defendant to engage in a rambling monologue detailing his various complaints. (See discussion, ante, at p. 875 of 255 Cal.Rptr., at p. 94 of 768 P.2d.)
Defendant also complains about the trial court's comment at the July 13, 1981, hearing that " I wouldn't have a chance to appoint another lawyer anyhow." Defendant claims this was an intentional misrepresentation designed to derail his desire for substitute counsel. Read in context, however, the comment was merely a wry observation on the length of defendant's explanation and on his reluctance to stop talking.
c. Keenan
Defendant next urges reversal is required because the trial court failed to properly consider appointment of a second attorney to assist defense counsel. Although we have held appointment of a second attorney in a capital case is authorized by section 987.9 (see Keenan v. Superior Court (1982) 31 Cal.3d 424, 180 Cal.Rptr. 489, 640 P.2d 108), the record in this case shows defendant never actually moved for appointment of such counsel. Instead, we interpret defendant's reference to the possibility of second counsel as an attempt to underscore his argument that since he was merely represented by an " overworked [768 P.2d 96] PD, " he had not been afforded even a single attorney let alone two.
In addition, we noted in Keenan, supra, 31 Cal.3d 424, 180 Cal.Rptr. 489, 640 P.2d 108, that " in assessing the need for another attorney the court must focus on the complexity of the issues involved, keeping in mind the critical role that pretrial preparation may play in the eventual outcome of [255 Cal.Rptr. 877] the prosecution." ( Id. at p. 432, 180 Cal.Rptr. 489, 640 P.2d 108.) Defendant here made no showing of the complexity of the issues involved. Indeed, the mention of second counsel came on August 16, 1982, the day in which counsel announced ready for trial. Since voir dire commenced on August 18, it does not appear a sufficient showing of need for second counsel could have been made. It thus follows the trial court did not err by failing to appoint second counsel.
11. Judicial Hostility
Defendant next identifies 11 instances where he claims the trial judge's comments were sarcastic and disparaging of defense counsel. The instances range from comments during voir dire to comments when ruling on objections to closing argument in the penalty phase. After examining the record, we agree with the People that, read in context, the judge's comments do not betray a bias against defense counsel. Moreover, defense counsel failed to object to any of the enumerated 11 comments where a timely objection would have allowed the court to clear up any misunderstanding. ( People v. Ramos (1982) 30 Cal.3d 553, 576, 180 Cal.Rptr. 266, 639 P.2d 908; People v. Lanphear (1980) 26 Cal.3d 814, 836, 163 Cal.Rptr. 601, 608 P.2d 689.) Defendant thus waived this issue for appeal. ( Ibid. )
Indeed, in ruling on defendant's pretrial requests to discharge counsel, the trial judge praised defense counsel's abilities quite highly. Moreover, the trial judge extemporized at one point during pretrial proceedings that he " was a person who conscientiously opposes the death penalty" but of course affirmed his willingness to carry out the law and would not " allow my personal opinions to interfere with my duties as a judge." Perhaps not surprisingly, the People sought to disqualify the trial judge the next day. They were unsuccessful.
12. Ineffective Assistance of Counsel
Defendant next argues defense counsel provided ineffective assistance of counsel on several counts. As mentioned, ante, to show counsel provided inadequate assistance, defendant must demonstrate " that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates ... [and] that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense." ( Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859; see also Fosselman, supra, 33 Cal.3d at pp. 583-584, 189 Cal.Rptr. 855, 659 P.2d 1144 [need only show defendant was prejudiced by his attorney's inadequate performance]; Strickland v. Washington, supra, 466 U.S. 668, 104 S.Ct. 2052.) We consider defendant's many arguments seriatim.
a. Misrepresentation of Counsel's Skill and Experience
Defendant first argues counsel's silence in the face of the trial court's erroneous assertion that counsel had previously tried a death penalty case constituted ineffective assistance. He speculates counsel's failure to correct the judge was to preserve a workable if not amicable attorney-client relationship. However, he reasons defense counsel's failure to reveal the truth about his lack of experience prejudiced him in four possible ways: (1) he was " talked into" waiving his Faretta rights; (2) he was denied the right to make an informed decision whether to waive his speedy trial rights; (3) he was similarly denied the right to make an informed decision whether or not to testify; and (4) he would have participated more in trial strategy had he known counsel was inexperienced.
As the People argue, however, defendant has not demonstrated how the outcome of the trial would have been any different had counsel " corrected" the trial court. Although defendant speculates the trial outcome may have been different because he would have taken a more active role in the formation and implementation of the myriad [768 P.2d 97] tactical decisions he left to counsel, this argument fails for two reasons. First, trial tactics are ordinarily left to the discretion of trial counsel. ( People v. Haylock (1980) 113 Cal.App.3d 146, 151, 169 Cal.Rptr. 658.) Second, defendant's argument is too general to conclude counsel's inaction resulted in prejudice. For example, defendant does not demonstrate how he would have been [255 Cal.Rptr. 878] better off had he not waived his speedy trial rights. In light of the overwhelming evidence of guilt, we conclude this first ineffectiveness-of-counsel argument is meritless.
b. Second Counsel
Defendant next contends counsel should have sought second counsel because of his relative lack of experience. However, that counsel had not yet tried a death penalty case does not inescapably lead to a conclusion that appointment of second counsel was necessary absent some evidence he was so inexperienced that he could not provide effective assistance. (Accord, People v. Gzikowski (1982) 32 Cal.3d 580, 186 Cal.Rptr. 339, 651 P.2d 1145 [after lead counsel was relieved, second counsel was too inexperienced to continue alone; the trial court abused its discretion by denying a continuance to allow second counsel to hire a new lead counsel].) Lack of prior experience in a capital case does not necessarily mean counsel is incompetent. (See Smith v. Superior Court (1968) 68 Cal.2d 547, 552-553, fn. 1, 68 Cal.Rptr. 1, 440 P.2d 65.) It is clear defendant has not shown counsel was ineffective on this ground.
c. Discovery Compliance
Defendant next contends defense counsel's questioning of Sergeant Gray at a January 18, 1982, hearing to determine compliance with a previous discovery order was inadequate because counsel merely asked general questions and did not memorialize for the record the particular documents turned over to the defense by the prosecution. However, defendant fails to demonstrate how he was prejudiced by counsel's alleged inadequacy at this hearing.
d. Exclusion of Family Members From Proceedings
Defendant next argues counsel was ineffective for failing to object when the prosecutor successfully moved to exclude all potential witnesses, including defendant's mother and uncle. He speculates these excluded relatives could have assisted trial counsel by observing the demeanor of witnesses, contributing insights into the probable thinking of jurors, and by lending moral support. In addition, he claims the appearance that his family cared for him and his fate may have impressed the jury to vote for life rather than death at the penalty phase. However, even assuming counsel should have objected, these benefits are too speculative to conclude that counsel's inaction prejudiced defendant.
e. Jury Selection
Defendant next makes a variety of arguments which he claims demonstrates counsel provided ineffective assistance during voir dire. First, he maintains counsel should have excluded more prospective jurors based on their answers to questions concerning the death penalty. In particular, he focuses on four jurors, all of whom eventually served on the jury: Corrales, Fernandez, Brinkman, and Hunter. However, defendant relies on answers by these four jurors given during voir dire which are taken out of context. Read in context, all four jurors affirmed their willingness and ability to listen to the evidence and to follow the instructions as given by the judge.
Defendant secondly attacks counsel's decision not to use up his remaining nine peremptory challenges, claiming such failure " possibly" precluded raising any claim on appeal that the trial court unfairly limited questioning on voir dire. (See People v. Hernandez (1979) 94 Cal.App.3d 715, 719, 156 Cal.Rptr. 572 [limitation of voir dire does not prejudice a defendant unless he used all his peremptory challenges]; but see People v. Box (1984) 152 Cal.App.3d 461, 199 Cal.Rptr. 532 [refusing to find a [768 P.2d 98] firm rule and holding defendant's failure to use his final peremptory challenge did not preclude a finding of prejudice].) However, even assuming counsel's failure to use his remaining challenges was unwise, defendant fails to establish the trial court committed any error during the jury selection process.
[255 Cal.Rptr. 879]Third, defendant urges we find counsel was incompetent for failing to object during voir dire when the trial court repeatedly " defined" mitigating evidence as something which " makes it better." However, the trial court did not purport to be giving an exhaustive definition of the term— he himself labelled his definition " just an off-the-shelf quickie definition" — and in any case the instructions given at the penalty phase obviated any prejudice.
Fourth, defendant argues counsel should have objected at voir dire when, after mentioning life without possibility of parole and death, the trial judge stated " Neither penalty has any favor as far as the law is concerned." Taken in context, however, the judge's comments clearly meant the jury must listen and evaluate the evidence presented at the penalty phase before deciding which penalty was appropriate. In sum, defendant fails to demonstrate he is entitled to reversal for ineffectiveness of counsel during jury selection.
f. Failure to Move to Disqualify the Trial Judge
Defendant next submits counsel was ineffective for failing to seek to disqualify the trial judge after he stated that if the jury returned a death verdict, he would " do my job as a judge ... and I will pronounce that sentence." We cannot discern any prejudice flowing from counsel's inaction and note the People sought to disqualify the trial judge the next day but were unsuccessful.
g. Section 1538.5 Motion to Suppress
Defendant next argues counsel was incompetent for failing to notice the discrepancy between the number of pages in the original affidavit in support of the arrest warrant and the photocopies produced for introduction into evidence under Evidence Code section 1501. However, the record shows counsel vigorously argued the section 1538.5 motion to suppress the confession and we cannot say counsel was incompetent for failing to notice this small notation on the cover sheet of the affidavit. Moreover, although defendant contends it is " impossible" that the photocopies were the same as the original affidavit because of the page discrepancy, he fails to entertain the possibility that the original cover sheet might have been wrong. Since Sergeant Gray testified he presented all police reports to the magistrate, we conclude defendant has not demonstrated counsel's alleged omission was prejudicial. (See discussion, ante, at pp. 863-865 of 255 Cal.Rptr., at pp. 82-84 of 768 P.2d.)
h. Trial Strategy
Defendant maintains counsel provided ineffective assistance by conceding defendant's guilt during his guilt phase closing argument. However, the cases defendant cited in support are distinguishable. In Young v. Zant (11th Cir.1982) 677 F.2d 792, 797 and footnote 10, counsel argued " Under the evidence of this case, I only ask you for life ... under the evidence of this case he will never get a pardon." It was thus clear the attorney in that case admitted defendant was guilty of the charged crime: malice murder. Similarly, in Francis v. Spraggins (11th Cir.1983) 720 F.2d 1190, 1193-1194, the defendant, a mentally retarded man, pleaded not guilty and testified he was innocent. Nevertheless, counsel essentially admitted during his guilt phase argument that his client was guilty of murder. The circuit court of appeal properly held this constituted ineffective assistance of counsel.
By contrast, counsel in the instant case told the jury " it appears fairly clear by the evidence as to what happened" but then went on to argue there was insufficient evidence of the charged felonies. For example, he argued the burglary charge must fall because there was insufficient evidence to prove beyond a reasonable doubt that defendant entered the victim's home with [768 P.2d 99] felonious intent. Counsel also attacked the attempted robbery charge, arguing there was no evidence defendant took money from the victim herself. Finally, counsel argued there was insufficient evidence defendant raped the victim. Unlike in the two federal cases cited above, counsel in this case did not abandon the interests of [255 Cal.Rptr. 880] his client but provided a strong closing argument and attacked the various charges.
Moreover, in light of defendant's confession to police, the discovery of his palm prints, and the neighbors' observations of defendant surveying the victim's house the day of the killing, we cannot say counsel's strategy was unreasonable. In a case involving a similar situation, we commented that " it is entirely understandable that trial counsel, given the weight of incriminating evidence, made no sweeping declarations of his client's innocence but instead adopted a more realistic approach, namely, that although defendant ... may have aided and abetted the acts of violence which caused the victims' deaths, nonetheless any such acts were unpremeditated and lacked the requisite deliberation or intent to kill. As stated in a recent case, ‘ good trial tactics demanded complete candor’ with the jury. [Citations.] Under the circumstances we cannot equate such candor with incompetence." ( People v. Jackson, supra, 28 Cal.3d 264, 292-293, 168 Cal.Rptr. 603, 618 P.2d 149.)
As in Jackson, supra, 28 Cal.3d 264, 168 Cal.Rptr. 603, 618 P.2d 149, counsel in the instant case reasonably concluded that the evidence of defendant's guilt of the murder was overwhelming and wisely chose to concentrate his energies on convincing the jury that the charged felonies— which would set the degree at first degree and also potentially expose defendant to the ultimate penalty— were untrue or at least not sufficiently proven. We conclude counsel's strategic decision did not constitute ineffective assistance.
13. Polling of the Jury
In a bare six-line argument citing no cases, defendant also contends reversal is required because the record fails to reflect the twelfth juror (Juror Corrales) indicated his agreement with the verdict. Defendant is correct that the record only documents 11 jurors giving their assent to the verdict. However, " [w]here a jury is incompletely polled and no request is made for correcting the error, such further polling may be deemed waived by defendant, who cannot sit idly by and then claim error on appeal when the inadvertence could have readily been corrected upon his merely directing the attention of the court thereto." ( People v. Lessard (1962) 58 Cal.2d 447, 452, 25 Cal.Rptr. 78, 375 P.2d 46.)
II. Special Circumstances
1. Carlos Error
Defendant next argues the special circumstance findings must be set aside because the trial court failed to instruct the jury that proof of intent to kill was essential to sustain the three felony-based special-circumstance allegations. ( Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862.) However, we have held Carlos must be disapproved in light of intervening federal case law and a fresh examination of the state statutory scheme. ( People v. Anderson (1987) 43 Cal.3d 1104, 1138-1148, 240 Cal.Rptr. 585, 742 P.2d 1306.) In addition, the record establishes beyond a reasonable doubt that defendant was the actual killer in this case, satisfying the requirement of Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140. ( Cabana v. Bullock (1986) 474 U.S. 376, 390-391, 106 S.Ct. 689, 699-700, 88 L.Ed.2d 704.) We thus conclude the trial court did not err by failing to instruct on intent to kill.
2. Was There Sufficient Evidence the Murder Was Committed to Advance the Rape?
Defendant next contends we must reverse the rape-murder special-circumstance finding because there was insufficient evidence that defendant killed Mrs. Hunter in order to facilitate or advance the rape. The pertinent statutory language requires proof that the " murder was committed [768 P.2d 100] while the defendant was engaged in ... the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies: ... (iii) Rape in violation of Section 261." (§ 190.2, subd. (a)(17).)
[255 Cal.Rptr. 881] We have interpreted this language to require more than just a temporal connection between the felony and the homicide. Thus, the statutory language is not fulfilled if the evidence shows the commission of the felony was merely incidental to the murder. ( People v. Green (1980) 27 Cal.3d 1, 61, 164 Cal.Rptr. 1, 609 P.2d 468.) In People v. Thompson (1980) 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883, a case involving an alleged robbery-murder, we said " [a] murder is not committed during a robbery within the meaning of the statute unless the accused has ‘ killed in cold blood in order to advance an independent felonious purpose, e.g., [has] carried out an execution-style slaying of the victim of or witness to a holdup, a kidnaping, or a rape.’ " ( Thompson, supra, at p. 322, 165 Cal.Rptr. 289, 611 P.2d 883, quoting Green, supra, 27 Cal.3d at p. 61, 164 Cal.Rptr. 1, 609 P.2d 468 [first emphasis in original, second emphasis added in Thompson ]; see generally, People v. Kimble (1988) 44 Cal.3d 480, 499-503, 244 Cal.Rptr. 148, 749 P.2d 803.)
Defendant argues the evidence demonstrates defendant went to the victim's home to rob her, beat her when she began screaming, and then decided to rape her as an " afterthought" after he saw her lying on the floor. Thus, he claims there was insufficient evidence he killed Mrs. Hunter to advance an independent felonious purpose with respect to the rape. However, while we agree the inferences defendant draws from the evidence are possible, they are not the sole inferences which may be drawn from the evidence. It is also possible that after defendant raped the victim, he realized the victim could identify him since he lived just down the street from her and killed her to prevent her identification of him as the perpetrator. The jury was properly instructed on this point, and we assume it found this latter scenario was true. Since there was substantial evidence to support this version, we reject defendant's claim the rape-murder special-circumstance finding must be reversed.
Indeed, the prosecutor made this precise point in closing argument: " The defendant was on parole for armed robbery from San Quentin. She was a neighbor, lived a half a block from him. [¶ ] He says in the tape she knew who he was. She could identify him, send him back to prison immediately. [¶ ] He intended to murder the moment he decided to go in and rob her. She had to be eliminated as a witness. She could send him back to prison."
The jury was instructed with the 1980 revision of CALJIC No. 8.81.17, which in part tells the jury it must find " that the murder was committed in order to carry out or advance the commission of the crime of attempted robbery, rape or burglary, or ... [to] facilitate the escape or to avoid detection. [¶ ] In other words, the special circumstances referred to in these instructions are not established if the attempted robbery, rape or residential burglary was merely incidental to the commission of the crime of murder."
III. Penalty Phase
Although defendant raises a plethora of arguments related to the penalty phase of his trial, we need only discuss one since we find that issue dispositive. Defendant challenges the admission of testimony from nine witnesses, all of whom recounted defendant's threats and maladjustment while in prison. Specifically, he challenges the testimony of (1) Linda Brown (who overheard defendant's veiled death threat against Officer Duran); (2) John Bauer (who reported defendant's threat that someone would die if he were transferred); (3) William Nyberg (who was present when defendant threw a temper tantrum when told he would be transferred to restrictive housing); (4) Teri Gelatini (the San Quentin kitchen worker who was subjected to defendant's verbal abuse); (5) Gregory Avila (the prison counselor to whom defendant said he would just take what he wanted when he got out of prison); (6) Harold Bard (a San Quentin counselor who reported defendant was housed at the Adjustment Center, the place where the most violent inmates are kept); (7) Jose [768 P.2d 101] Ochoa (who heard defendant's promise he would injure someone if transferred); (8) Ernest Crook (a correctional counselor to whom defendant told he liked to do " freaky things" to women); and (9) John Williams (who heard defendant say he intended to kill several people when he was released from prison).
[255 Cal.Rptr. 882]We first discussed the admissibility of such evidence in People v. Boyd (1985) 38 Cal.3d 762, 215 Cal.Rptr. 1, 700 P.2d 782, a case decided three years after the trial in this case. Although we reversed the special circumstance finding in that case because the jury was not instructed on intent to kill ( Carlos, supra, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862; but see Anderson, supra, 43 Cal.3d 1104, 240 Cal.Rptr. 585, 742 P.2d 1306 [disapproving Carlos ]), we addressed, for the benefit of the trial court on remand, the question of whether " under the 1978 initiative the prosecution can present evidence at the penalty phase which is not relevant to any of the specific aggravating or mitigating factors listed in the 1978 law." ( Boyd, supra, 38 Cal.3d at p. 772, 215 Cal.Rptr. 1, 700 P.2d 782.) We concluded that " [t]he admission of prosecution evidence irrelevant to the enumerated factors would be inconsistent with the provisions of the 1978 law which expressly bar evidence of nonviolent crimes except for felony convictions." ( Id. at p. 774, 215 Cal.Rptr. 1, 700 P.2d 782.) " Consequently, the prosecution's case for aggravation is limited to evidence relevant to the listed factors exclusive of factor (k)...." ( Id. at p. 775, 215 Cal.Rptr. 1, 700 P.2d 782.) Inasmuch as the testimony of the nine witnesses challenged in this case was not relevant to any statutory aggravating factor, the evidence was inadmissible under Boyd, supra.
Although defendant did not object to the admission of the evidence on the basis of the legal theory embraced in Boyd, the People do not argue that defendant thereby waived his right to raise the issue on appeal, and we agree that, under the circumstances, it would be inappropriate to preclude defendant from pursuing the issue on this ground. Inasmuch as the trial judge refused to give a jury instruction requested by defense counsel which would have expressly limited the jury to considering only those aggravating factors set forth in section 190.3 (see discussion, post), it is clear that any objection on Boyd grounds would have been futile. We thus conclude that it would be inappropriate to bar defendant from raising the present claim because of his counsel's failure to anticipate Boyd.
While Boyd, supra, 35 Cal.3d 762, 215 Cal.Rptr. 1, 700 P.2d 782, makes clear that our current statutory death penalty scheme contemplates that only aggravating evidence which is relevant to a statutory aggravating factor should be admitted, we stress that the Boyd rule is founded on statutory, rather than constitutional, interpretation. (See People v. Brown ( John G. ) (1988) 46 Cal.3d 432, 456, 250 Cal.Rptr. 604, 758 P.2d 1135 [noting that the Boyd rule is not based on the federal Constitution].) Although one might reasonably argue that evidence of defendant's past performance in prison is sufficiently relevant to the jury's decision at the penalty phase that the current California statute should be amended to authorize the consideration of such evidence at that phase, it is not within our province to depart from the controlling statutory scheme. We cannot legislate. In concluding the testimony of the nine witnesses admitted against defendant violated the statutory prohibition against such evidence, we simply apply section 190.3 as it presently exists to the facts of the case before us.
Although we found such error in Boyd, supra, 38 Cal.3d 762, 215 Cal.Rptr. 1, 700 P.2d 782, we did not need to reach the prejudice question in that case because we reversed the penalty judgment on another ground and only discussed the problem of irrelevant aggravating evidence for the guidance of the trial court on remand. ( Id. at p. 772, 215 Cal.Rptr. 1, 700 P.2d 782.) In this case, we must determine whether the error was prejudicial. As we recently explained in Brown (John G.), supra, 46 Cal.3d at page 449, 250 Cal.Rptr. 604, 758 P.2d 1135, in evaluating prejudice we must determine whether there is a " reasonable possibility" that the penalty judgment was affected by the erroneous admission of evidence.
The People argue the Boyd error, supra, 38 Cal.3d 762, 215 Cal.Rptr. 1, 700 P.2d 782, was harmless because the improper evidence— which they characterize as " verbal threats, foul language and failures to control his temper" — could not have prejudiced defendant in light of other, properly admitted aggravating evidence detailing [768 P.2d 102] defendant's robbery of Shiu Maruyama, his armed robbery of Jennifer Salsbury, Muriel Cunningham, Stephen Hardin, Tracie George, Darland Shaw, and Lena Johnson, and his assaults on Ronald Pure and inmate Michael Shires.
While the properly admitted aggravating evidence in this case was unquestionably [255 Cal.Rptr. 883] strong, we nevertheless conclude there remains a reasonable possibility that the penalty verdict was affected by the Boyd error. First, the People unpersuasively minimize the significance of the improperly admitted evidence. The " verbal threats" were not limited to mere promises to commit additional crimes or even to hurt others in the future; they were threats to kill. To a penalty phase jury deciding whether a defendant should spend the rest of his life in prison, the potential danger he poses to others in the prison setting— guards, counselors, other inmates— must have been an important consideration.
Significantly, the prosecutor stressed this precise point in closing argument. After reviewing the improperly admitted testimony of all nine witnesses, the prosecutor continued: " So we're left with a proposition that the defendant is violent inside prison or outside prison. [¶ ] Mr. Blum [defense counsel] might tell you well, life without possibility of parole is sufficient here. [¶ ] We will just keep him locked up and that will be fine, no real danger if we keep him locked up; even though we know about the Shires incident. [¶ ] I wonder if Mr. Blum would feel so secure if Mr. Blum had to be a prisoner that was in custody with the defendant and the defendant had some real or imaginary grievance with him. [¶ ] Say, for example, there was some prisoner in prison for forgery or some kind of drug charge and the defendant had some kind of grievance against him, how safe do you think that prisoner would be? [¶ ] How safe do you think the guard would be? [¶ ] How safe do you think the woman guards would be? [¶ ] Do you think they would feel safe to turn their back on the defendant? [¶ ] Why should we create that kind of burden on those people? [¶ ] Shouldn't we be concerned about future victims here? " (Emphasis added.)
Near the end of his argument, the prosecutor returned to this theme, saying " I think ... the evidence clearly indicates that the defendant is a cold-blooded brutal killer. Why he is that way we don't know and we'll never know. But we do know he is extremely dangerous, extremely violent. [¶ ] And we must think about the protection of society, both to society inside and outside of prison. " (Emphasis added.)
Thus, contrary to the People's attempt to label the improper evidence as merely " verbal threats, " we find the evidence informed the jury that defendant may be unable to peacefully coexist with others in the prison setting, thus tending to demonstrate that the death penalty was appropriate. Moreover, the prosecutor's heavy reliance on that idea in closing argument exacerbated the prejudice flowing from the error in admitting the evidence. (Accord, People v. Guzman (1988) 45 Cal.3d 915, 963, 248 Cal.Rptr. 467, 755 P.2d 917 [finding no Boyd error but noting it was significant that " the prosecution made no effort to capitalize on the testimony." ].)
The People's characterization of the improper evidence as merely demonstrating " failures to control his temper" similarly overlooks the impact such evidence would have on a penalty phase jury. In addition to the threats against prison personnel, the jury heard testimony from John Williams, a correctional counselor at San Quentin, who recounted defendant's boast that when released from prison, he would kill several women and one man, that he would make headlines, and that the police would not catch him. Another correctional counselor, Ernest Crook, recalled an interview with defendant where he said " I like to do all sorts of freaky things with the ladies."
As with the evidence of the threats, the prosecutor, in closing argument, underscored for the jury the importance of Williams's and Crook's testimony, emphasizing at one point that " I'm sure everybody would agree that raping a 76-year-old woman as she lay dying on the floor in a pool of blood is pretty freaky." We thus cannot subscribe to the People's bland [768 P.2d 103] characterization of the improper evidence as merely showing defendant failed to control his temper. Instead, the evidence had an inflammatory nature and, coupled with the prosecutor's emphasis of it in closing argument and his pointed suggestion that defendant was so violent he would be a danger to others in prison, it is clear this evidence was prejudicial.
[255 Cal.Rptr. 884]Moreover, this case is readily distinguishable from People v. McLain (1988) 46 Cal.3d 97, 249 Cal.Rptr. 630, 757 P.2d 569, a recent case in which this court found Boyd error harmless. In McLain, supra, the properly admitted aggravating evidence was extremely strong. The circumstances of McLain's crime were extraordinarily aggravated: eight years after he had raped eleven-year-old Jodi W., he sought her out to again rape her as revenge for her testimony against him in the prior trial. Not finding her, he and a juvenile accomplice raped and killed another woman. In addition, the prosecutor introduced evidence that defendant had 11 prior felony convictions including a prior murder and a prior rape.
In mitigation, " [t]he defense presented evidence that defendant had a difficult childhood and suffered from narcissistic personality disorder and antisocial personality disorder, but had been kind and helpful to relatives and friends and had behaved well during his time in prison." ( McLain, supra, 46 Cal.3d at p. 105, 249 Cal.Rptr. 630, 757 P.2d 569.)
In addition to the foregoing properly admitted aggravating evidence, the prosecution presented additional evidence which was arguably irrelevant to a statutory aggravating factor. Specifically, the prosecution called a number of witnesses at the penalty phase who testified the defendant had remarked that a certain restroom would be a " good" location to commit a rape, that the defendant asked an acquaintance if he would help him commit a rape and, later, a nonviolent escape, that he would shoot a police officer " under certain circumstances, " and that his next escape would not be nonviolent. Finally, one of the defendant's letters was introduced into evidence which essentially stated he would not attempt to reform his criminal ways. ( McLain, supra, 46 Cal.3d at p. 110, 249 Cal.Rptr. 630, 757 P.2d 569.) Assuming for argument's sake that the admission of this latter evidence was error under Boyd, supra, 38 Cal.3d 762, 215 Cal.Rptr. 1, 700 P.2d 782, we found the error harmless since " the evidence in aggravation was overwhelming and the evidence in mitigation was minimal." ( McLain, supra, 46 Cal.3d at p. 110, 249 Cal.Rptr. 630, 757 P.2d 569.)
By contrast, the defendant here had fewer prior crimes which did not include murder and rape, also had evidence of a difficult childhood, did not use juvenile accomplices, and most importantly, presented substantial evidence of a mental impairment. Unlike in McLain, supra, 46 Cal.3d 97, 249 Cal.Rptr. 630, 757 P.2d 569, we cannot say the properly admitted aggravating evidence was " overwhelming" nor that defendant's mitigating evidence was " minimal." ( Id. at p. 110, 249 Cal.Rptr. 630, 757 P.2d 569.)
The People next contend that the error was harmless because the improperly admitted evidence merely duplicated the evidence that defendant himself introduced. However, defendant's evidence showing he had behavior problems cannot be legitimately described as duplicative of the inflammatory testimony presented by the People. While defendant's mitigating evidence demonstrated he had poor impulse control, it did not reveal his threats of violence and intent to commit future murders. Moreover, the defendant did not present any evidence that can be fairly characterized as duplicative of the inflammatory statements regarding his intention to do " freaky" things with women.
Lastly, the People argue the Boyd error was harmless because the improper aggravating evidence would have been admissible on rebuttal anyway. Although nonstatutory aggravating evidence is inadmissible under Boyd, supra, 38 Cal.3d 762, 215 Cal.Rptr. 1, 700 P.2d 782, nonstatutory mitigating evidence is permissible under section 190.3, factor (k), so-called " factor (k)" evidence. " Once the defense has [768 P.2d 104] presented evidence of circumstances admissible under factor (k), however, prosecution rebuttal evidence would be admissible as evidence tending to ‘ disprove any disputed fact that is of consequence to the determination of the action.’ (Evid.Code, § 210.)" ( Boyd, supra, 38 Cal.3d at p. 776, 215 Cal.Rptr. 1, 700 P.2d 782; see also [255 Cal.Rptr. 885] People v. Rodriguez (1986) 42 Cal.3d 730, 791-792, 230 Cal.Rptr. 667, 726 P.2d 113.)
We recently cautioned that the mere fact a defendant presents some mitigating evidence of his good character does not " open the door to any and all ‘ bad character’ evidence the prosecution can dredge up. As in other cases, the scope of rebuttal must be specific, and evidence presented or argued as rebuttal must relate directly to a particular incident or character trait defendant offers in his own behalf." ( Rodriguez, supra, 42 Cal.3d at 792, fn. 24, 230 Cal.Rptr. 667, 726 P.2d 113 [emphasis in original].)
Since defendant's mother testified he never received rehabilitative assistance while incarcerated, that she did not think her son had a violent temper nor that he was dangerous, the People argue their evidence would have been admissible as proper rebuttal. However, defendant persuasively replies that had he known the challenged evidence was only admissible on rebuttal, he would have refrained from asking Mrs. Wilson any questions that would have opened the door to rebuttal testimony by the nine correctional department employees. This seems plausible since defense counsel was aware of the prosecution's desire to introduce the testimony of the nine correctional employees, having been apprised of their intended testimony prior to the penalty phase pursuant to section 190.3. Thus, had the prosecution held these witnesses for possible rebuttal testimony, defense counsel could have tailored his questioning of Mrs. Wilson to prevent the admission of the now challenged evidence. We are thus unpersuaded by any of the People's theories in support of their position that the admission of the improper aggravating evidence was harmless.
Exacerbating the prejudice flowing from the admission of nonstatutory aggravating evidence was the trial court's refusal to give an instruction, proposed by defense counsel, limiting the jury's consideration of aggravating evidence to that evidence relating to statutory factors. Although the People argue it was not prejudicial to refuse this instruction since the state may legitimately permit consideration of nonstatutory aggravating factors by a jury in a capital case (see Proffitt v. Florida (1976) 428 U.S. 242, 256-257, fn. 14, 96 S.Ct. 2960, 2968-2969, fn. 14, 49 L.Ed.2d 913; Harris v. Pulley (9th Cir.1982) 692 F.2d 1189, 1194, revd. on other grounds, Pulley v. Harris (1984) 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29), they fail to recognize that although such a system may be constitutional, " [a] State is, of course, free to decide as a matter of state law to limit the evidence of aggravating factors that the prosecution may offer at the sentencing hearing." ( Zant v. Stephens (1983) 462 U.S. 862, 878, fn. 17, 103 S.Ct. 2733, 2743, fn. 17.) As is made clear in Boyd, supra, 38 Cal.3d at pages 775-776, 215 Cal.Rptr. 1, 700 P.2d 782, California has erected a system prohibiting aggravating evidence which is not relevant to a statutory aggravating factor. It follows the failure to give the proffered limiting instruction intensified the prejudice flowing from the error.
The defendant proposed the following instruction: " I have previously read to you the list of aggravating circumstances which the law permits you to consider if you find that any of them is established by the evidence. You are not allowed to take account of any other facts or circumstances as the basis of deciding that the death penalty would be an appropriate punishment in this case."
In sum, we conclude there was a reasonable possibility the clear Boyd error affected the penalty judgment. Inasmuch as we remand to the trial court for a new, properly conducted penalty phase trial, it is not necessary for us to address defendant's many other contentions as to penalty error.
CONCLUSION
The judgment as to guilt and the special circumstance findings are affirmed. The judgment as to penalty is reversed.
[768 P.2d 105]MOSK, BROUSSARD and SPARKS, KEITH F., JJ., concur.
Associate Justice, Court of Appeal, Third Appellate District, assigned by the Chairperson of the Judicial Council.
EAGLESON, Justice, dissenting.
I dissent from reversal of the penalty verdict solely on grounds of prejudicial [255 Cal.Rptr. 886] " Boyd " error. ( People v. Boyd (1985) 38 Cal.3d 762, 215 Cal.Rptr. 1, 700 P.2d 782.)
At the outset, some clarification is in order. Three years after the trial in this case, this court decided Boyd, supra, 38 Cal.3d 762, 215 Cal.Rptr. 1, 700 P.2d 782, wherein we held, as the majority correctly notes ( ante, at p. 882 of 255 Cal.Rptr., at p. 101 of 768 P.2d), that under the 1978 death penalty law, " [t]he admission of prosecution evidence irrelevant to the enumerated factors [set forth in Penal Code section 190.3] would be inconsistent with the provisions in the 1978 law which expressly bar evidence of nonviolent crimes except for felony convictions." (Id., 38 Cal.3d at p. 774, 215 Cal.Rptr. 1, 700 P.2d 782.) We concluded in Boyd that, " [c]onsequently the prosecution's case for aggravation is limited to evidence relevant to the listed factors exclusive of factor (k)...." (Id., at p. 775, 215 Cal.Rptr. 1, 700 P.2d 782.)1
Six months after Boyd we filed People v. Phillips (1985) 41 Cal.3d 29, 222 Cal.Rptr. 127, 711 P.2d 423. Phillips was a 1977 death penalty law case. In Phillips we held that insofar as (former) Penal Code section 190.3, factor (b), contemplated consideration of a defendant's criminal history as an aggravating circumstance, such evidence " must be limited to ... conduct that demonstrates the commission of an actual crime, specifically, the violation of a penal statute...." (Id., at p. 72, 222 Cal.Rptr. 127, 711 P.2d 423.)
Here, defendant challenges the admission of the penalty phase testimony of nine witnesses, each of whom recounted defendant's threats and maladjustment while in prison. Specifically, he challenges the testimony of: (1) Linda Brown, who overheard defendant threatening Correctional Officer Duran that Duran's " body" would be the next one found in the recreation shack (an inmate's dead body had been discovered in the shack 15 minutes earlier); (2) John Bauer (who reported defendant's threat that someone would die if he were transferred); (3) William Nyberg (who was present when defendant threw a temper tantrum when told he would be transferred to restrictive housing); (4) Teri Gelatini (a female San Quentin kitchen worker who was subjected to defendant's verbal abuse when he became upset because she was no longer " tolerant" of him; (5) Gregory Avila (a prison counselor to whom defendant said he would just take what he wanted when he got out of prison); (6) Harold Bard (another counselor who reported to the jury that defendant was housed at the adjustment center where violent inmates are housed); (7) Jose Ochoa (who heard defendant's promise that he would injure someone if transferred); (8) Ernest Cook (a correctional counselor to whom defendant stated he liked to do " freaky things" to women); and (9) John Williams (who overheard defendant say he intended to kill several people when released from prison). (See maj. opn. at pp. 860, 881-882 of 255 Cal.Rptr., at pp. 79-100, 101 of 768 P.2d.)
The majority has oversimplified the issues and erroneously concluded that reversal is required because, " Inasmuch as the testimony of the nine witnesses challenged in this case was not relevant to any statutory aggravating factor, the evidence was inadmissible under Boyd, supra." (Maj. opn. at p. 882, of 255 Cal.Rptr., at p. 101 [768 P.2d 106] of 768 P.2d fn. omitted.) To be sure, some of the challenged testimony was nonstatutory aggravating evidence inadmissible under Boyd — for example, Counselor Bard's testimony that defendant had been housed at the adjustment center where violent inmates are routinely housed.
[255 Cal.Rptr. 887]In contrast, most of the challenged testimony here was plainly relevant under factor (b)— the presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence. Some of the evidence of defendant's " threats of violence" while incarcerated may well have been inadmissible under the prophylactic rule fashioned by this court in Phillips, supra, 41 Cal.3d 29, 222 Cal.Rptr. 127, 711 P.2d 423— i.e., because the threats did not amount to " actual crimes." However, even were I to agree with the majority that prejudicial error is demonstrated on this record from erroneous admission of the challenged evidence— I would not join in reversal of the penalty verdict on the oversimplified and misguided conclusion that " the testimony of the nine witnesses challenged in this case was not relevant to any statutory aggravating factor...." (Maj. opn. at p. 882 of 255 Cal.Rptr., at p. 101 of 768 P.2d.) Such a conclusion flies in the face of the People's legislative intent in adopting factor (b) as part and parcel of the 1978 death penalty initiative.
Turning to the question of prejudice, I note that we have never held that Boyd or Phillips error alone could constitute reversible error. (See People v. Boyd, supra, 38 Cal.3d at p. 779, 215 Cal.Rptr. 1, 700 P.2d 782 [admission of nonstatutory aggravating evidence concerning nonviolent escape attempt, threats of violence, violation of parole, failure to cooperate with rehabilitation programs, and reputation for violence, discussed solely for guidance on retrial; reversal of special circumstances and penalty verdict predicated on Carlos error ( Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862) ]; People v. Phillips, supra, 41 Cal.3d at pp. 82-83, 222 Cal.Rptr. 127, 711 P.2d 423 [erroneous admission of evidence of defendant's murderous plots not amounting to " actual crimes"; reversal predicated on compounded effect of failure to instruct on reasonable doubt under People v. Robertson (1982) 33 Cal.3d 21, 188 Cal.Rptr. 77, 655 P.2d 279]; see also People v. Walker (1988) 47 Cal.3d 605, 639-640, 253 Cal.Rptr. 863, 765 P.2d 70 [threat to kill undercover police officer]; People v. Coleman (1988) 46 Cal.3d 749, 788, 251 Cal.Rptr. 83, 759 P.2d 1260 [threat to prison guard]; People v. Brown (1988) 46 Cal.3d 432, 449, 250 Cal.Rptr. 604, 758 P.2d 1135 [instigation of food riot, threats of sexual and other violence]; People v. Boyde (1988) 46 Cal.3d 212, 249-250, 250 Cal.Rptr. 83, 758 P.2d 25 [no effort to reform while on California Youth Authority parole, victim-impact of other offenses, two nonnoticed violent offenses]; People v. McLain (1988) 46 Cal.3d 97, 110, 249 Cal.Rptr. 630, 757 P.2d 569 [six instances of prior threats of violence, including threats of escape and willingness to kill a police officer]; People v. Belmontes (1988) 45 Cal.3d 744, 809, 248 Cal.Rptr. 126, 755 P.2d 310 [prior possession of handgun with statement that it was " all the protection (defendant) needed" ]; People v. Silva (1988) 45 Cal.3d 604, 636, 247 Cal.Rptr. 573, 754 P.2d 1070 [threat to kill guard]; People v. Lucky (1988) 45 Cal.3d 259, 303, 247 Cal.Rptr. 1, 753 P.2d 1052 [drug addiction and manipulative behavior on parole]; People v. Williams (1988) 44 Cal.3d 1127, 1147, 245 Cal.Rptr. 635, 751 P.2d 901 [reference to guilt phase evidence of escape plan and threat to kill witness].)
Here defendant was convicted of first degree murder, burglary, rape, and attempted robbery. Enhancement allegations that he had used a deadly weapon, inflicted great bodily injury on a victim of advanced age, and that he had been on parole following a term of imprisonment for a violent felony in which he had used a handgun, were all sustained. The jury also found true three felony-murder special-circumstance allegations.
The half-naked body of the victim, a 76-year-old widow, was discovered on her living room floor. She died of multiple, violent blows to the head. Splattered blood [768 P.2d 107] and broken objects strewn about the home indicated she had struggled with her assailant. There was also evidence of strangulation.
Defendant initially denied involvement, and later confessed to the crimes in a tape-recorded interview. He persuaded the victim [255 Cal.Rptr. 888] to open her front door by ruse, admittedly for the purpose of robbing her since she was an " easy mark, " then forced entry into her home, savagely beat her, and at some point attempted to rape her— accomplishing ejaculation. Defendant further admitted " murdering" the victim, but claimed it was not " intentional." (Maj. opn. at p. 859 of 255 Cal.Rptr., at p. 99 of 768 P.2d.) The entire fiasco netted him $5 and some odd change. The defense introduced no evidence at the guilt phase.
At the penalty phase, extensive evidence was presented documenting defendant's criminal history. In 1972 he was convicted of second degree burglary; having forced entry into the home of an 80-year-old woman along with an accomplice and ransacked the residence in search of money. During the episode defendant directed his accomplice to hold the victim, and he had to constantly be reminded not to harm her. An unsuccessful attempt was made to force a ring from the woman's finger.
In 1974, defendant robbed two different female victims at gunpoint in a Pasadena bank parking lot, stealing their wallet and purse respectively. Although both victims testified against defendant, he was not convicted of these robberies. According to the majority opinion, the trial court also took judicial notice that defendant had been convicted of two additional 1974 robberies involving the use of a handgun against female victims.
In 1977, defendant, armed with a shotgun, robbed a Glendale motel desk clerk of between $200 and $300. He forced the victim to remove his trousers and stay in a closet until defendant made good his escape. Once again, although the victim testified against defendant, the record does not establish that a conviction was obtained.
Four days later, defendant entered a Glendale convenience store wearing a ski mask and robbed the female clerk at gunpoint. The clerk's boyfriend was present in the store and was ordered by defendant to lie on the ground. Defendant was apprehended in possession of the stolen money and a handgun. The gun was fully operational; a bullet in the chamber exhibited an indentation demonstrating that the firing pin had struck the shell casing but the round had misfired. As a result of this incident defendant was convicted of first degree robbery with use of a handgun, and assault with intent to commit robbery.
Finally, in mid-1977, defendant used a razor blade to slash the abdomen of his county jail cellmate, leading to his conviction of assault with a deadly weapon.
As we recently explained in People v. Brown, supra, 46 Cal.3d at page 449, 250 Cal.Rptr. 604, 758 P.2d 1135, in evaluating prejudice we must determine whether there is a " reasonable possibility" that the penalty judgment was affected by the erroneous admission of evidence. In Brown " [w]e ... emphasize[d] that a ‘ mere’ or ‘ technical’ possibility that an error might have affected a verdict will not trigger reversal. Instead, when faced with penalty phase error not amounting to a federal constitutional violation, we will affirm the judgment unless we conclude there is a reasonable (i.e., realistic) possibility that the jury would have rendered a different verdict had the error or errors not occurred." (Id., at p. 448, 250 Cal.Rptr. 604, 758 P.2d 1135.)
I conclude there is no reasonable or realistic possibility that the jury's penalty verdict here was affected by the erroneous admission of evidence of defendant's threats and " maladjustment" while in prison.
Evidence that, while in prison, defendant announced he would steal or kill upon his transfer or release, once threw a " temper tantrum, " once voiced pleasure at doing " freaky things" to women, on one occasion verbally abused a kitchen worker who he felt was no longer tolerant of him, and at some point was housed in the adjustment center, simply pales in comparison to the [768 P.2d 108] facts of the crimes for which he was charged and/or convicted. Defendant raped, robbed and violently beat to death a 74-year-old woman in the instant episode; robbed an 80-year-old female victim in 1972; committed four armed robberies at gunpoint in 1974; committed an armed robbery (with a shotgun) in 1977— during [255 Cal.Rptr. 889] which incident he forced his victim to disrobe in a closet; held up a convenience store clerk at gunpoint four days later, assaulted her boyfriend who was present— unsuccessfully attempting to fire off a shot; and twice slashed his county jail cellmate in the abdomen with a razor.
I credit the jurors with being able to distinguish between threats and proven acts, and to weigh their respective evidentiary value accordingly. The erroneous introduction of evidence of defendant's threats while incarcerated— inadmissible under Boyd, supra, 38 Cal.3d 762, 215 Cal.Rptr. 1, 700 P.2d 782 or Phillips, supra, 41 Cal.3d 29, 222 Cal.Rptr. 127, 711 P.2d 423— was in my view merely cumulative to defendant's admissible, proven track record of violent criminal conduct and recidivism. Defendant may have threatened to kill when he got out of prison— but the admissible evidence heard by this jury established that he in fact killed this elderly victim, in brutally violent fashion, during the instant burglary-rape-robbery. He may have threatened to harm persons within the prison— but the jury already knew, from competent admissible evidence, that he in fact had assaulted his cellmate with a razor in 1977, twice slashing that victim in the abdomen. The jurors could not possibly have drawn any more damaging an inference from the inadmissible evidence of defendant's " maladjustment" and threats of violence while in prison— than they surely must have drawn from his established record of violent crime and recidivism.
I perceive no realistic possibility that the challenged evidence alone tipped the scales in persuading the jury that defendant " may be unable to peacefully coexist with others in the prison setting...." (Maj. opn. at p. 883 of 255 Cal.Rptr., at p. 102 of 768 P.2d.) The majority emphasize the testimony of prison Counselor Crook, who recalled that defendant once told him, " I like to do all sorts of freaky things with the ladies." (Maj. opn. at p. 883 of 255 Cal.Rptr., at p. 102 of 768 P.2d.) The prosecutor argued to the jury in straightforward fashion: " I'm sure everybody would agree that raping a 76-year-old woman as she lay dying on the floor in a pool of blood is pretty freaky." His message was clear; defendant's proven record of violent conduct left little to the jurors' imaginations as to whether or how he would carry through on his voiced threats and desires, be it while incarcerated, or upon his release.
In conclusion, given the facts of the instant crimes and defendant's documented criminal history, there is no realistic possibility that the evidence of his maladjustment while in prison begot this penalty verdict. We have not hesitated to find such inadmissible " threat" evidence harmless in previous cases. ( Ante, at p. 887 of 255 Cal.Rptr., at p. 106 of 768 P.2d.) I would similarly find the erroneous introduction of such evidence harmless in this case.
LUCAS, C.J., and PANELLI, J., concur.
In this case, we fail to see how a counsel's reasons justifying his motion for a continuance were substantially related to defendant's defense. Moreover, even assuming error, there was no prejudice. Although defendant argues he might have refused to waive time had he been privy to the discussions at bench, this is pure speculation, contradicted by his willingness to waive time evidenced in other parts of the record.
" Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt.
" Also, if the circumstantial evidence [as to any particular count] is susceptible of two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, it is your duty to adopt that interpretation which points to the defendant's innocence, and reject that interpretation which points to his guilt.
" If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and to reject the unreasonable."
Similarly, defendant argues the trial judge's comment, " There just isn't any alternative, " shows the court was unwilling to discharge counsel and appoint a new attorney. Read in context, however, the judge was clearly referring to defendant's request for appointment of an attorney who was not a public defender.