PEOPLE v. BOYCERespondent’s BriefCal.January 25, 2011 SUPREME COURTC7 In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CAPITAL CASE CALIFORNIA, Case No. S092240 Respondent, SUPREME COURT v. of FILED KEVIN BOYCE, JAN 265 201! Appellant. ; ; Frederik K. Ohlrich Clerk County Superior Court Case No. 97NF23T6 Deputy Honorable Frank F. Fasel, Judge RESPONDENT?’S BRIEF KAMALAD. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General HOLLy D. WILKENS Supervising Deputy Attorney General CHRISTINE LEVINGSTON BERGMAN Deputy Attorney General State Bar No. 225146. 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2247 Fax: (619) 645-2271 Email: Christine.Bergman@doj.ca.gov Attorneysfor Respondent nenspny 5)EAL| \/ | ial rl 2 I4U TABLE OF CONTENTS Page ImtrOduction..........scccsscsssscccscecessccesceseseeesssecessseceeecsseecsnsseseesenssesseeecseeesseeeseeees 1 Statement ofthe Case... .eccccsecsescsscceceeceecsseccsssssccerecessersesssreesserseaeaaeees 2 Statement Of Facts ..........ccsccssscsscesseesacessesesesseeessessscsesecseeseessseseceteseesceeeesenees 5 ALQUMEN 0... ceeseeeeeeeesececsceeesseeceeesesecesseecssesesteecsecesseeescesdceaseseeessnesseeseonas 51 I. Boyce’s death sentence does not constitute cruel and unusual punishment ..............ccecsscecsscesseesssescseecesrneesseseseeeees 51 I. Thetrial court properly admitted the 911 tapes...............06 53 A. Thetrial court properly admitted the 911 audio tapes in the guilt phase oftrial as the two 911 calls were relevant and not unduly prejudicial......... 58 B. Thetrial court properly permitted the jury to consider the 911 tapes during the penalty phase as circumstancesofthe crime underfactor(a).......... 60 C. Admission ofthe 911 tapes did not deny Boyce CUE PLOCESS.......eeceeseeeseceseessecesecetecteesseseeseeseeaeeneeenss 62 D. ~ Even assumingerror, Boyce was not prejudiced ___ by the admission of the 911 tapes.............steneesneesseees 63 Ul. The trial court properly instructed the jury with | CALJIC No. 2.52, regarding flight indicating Consciousness OfQuilt...eesscestessecessesseeesseeseessseeseeeneee 66 IV. Sufficient evidence supports the special finding that _ Boycekilled a peace officer in retaliation for the performanceofhis duties; this special circumstanceis not unconstitutionally Vague...........sesecseeeteceesseessesteneeneesees 72 V. Sufficient evidence supports the jury’s special circumstance findings that the murder was committed while Boyce was engaged in commission of a robbery and in commission of second degree burglary;thetrial court properly respondedto the jury’s note; the felony- murder special circumstanceis not unconstitutional........... 79 VI. VIL. D. TABLE OF CONTENTS (continued) Substantial evidence supports the robbery- murder and burglary-murderspecial Circumstance findingS 0.0.0.0... eseesssecssecesestseseeesceees 79 Boyceforfeited the right tochallenge the trial court’s responseto the jury’s question regarding the robbery-murder/burglary-murderspecial circumstances; in any event, the trial court properly responded to the jury’s question................ 84 California’s felony-murder special circumstance adequately narrowsthe class of first degree . murderers eligible for the death penalty.................. 90 Multiple felony-murder special circumstances may properly be considered bythe penalty jury....... 90 Thetrial court properly denied Boyce’s.untimely and equivocal request for self-representation..............scceeceeeeeees 91 Thetrial court correctly refused Boyce’s proposed IMStIUCTIONS........... ese eeeecececteneeeeecceceseecsenesececsesecosenseseeseeaees 101 A. Trial court properly refused Boyce’s proposed instructions regarding the jurors’ consideration of compassion, sympathy and mercy............2:000+ 101 Trial court properly refused Boyce’s proposed instructions regarding the jurors’ consideration of lingering doubt 0.0.00... eesceeeseeeceseceseeneeeeeeers 104 Trial court properly refused Boyce’s proposed instruction regarding the jurors’ consideration ofmental and emotional disturbance...................... 109 Trial court properly refused Boyce’s proposed instructions regarding mitigating evidence............. 111 ii TABLE OF CONTENTS (continued) | Page VIII. Boyce was not prejudiced by the court’s failure to XI. instruct the jury not to double count the special circumstancesas factors in aggravation; thetrial court properly refused Boyce’s requested instruction that the jury could notrely solely on thefacts of the offense in determining the appropriate penalty...eeeeeseeeeeeneees 115 The court’s failure to reinstruct the penalty jury with applicable guilt phase instructions was harmlesserror..... 119 Boyce’s upper term sentences on his noncapital crimes should be upheld; the trial court did not err by imposing consecutive terms; the abstract ofjudgment correctly reflects the stayed terms ............ceccceeseeceeeeeeeeeeees 127 A. Thetrial court properly imposed the upper term.... 129 B. The error was harmless.............csccccsssceseteesseceseeesees 130 C. Thetrial court properly imposed consecutive SENCENCES 00.22... ceeecccessccceeeccescecscceeneccssctacersseecenecerees 133 California’s death penalty statute is not Unconstitutional .............cseccseeeeeeseeesssetseeeseetsseesseesseesesstees LOD A. Penal Codesection 190.2 is not impermissibly oo DOA0.0...eee eeeeceececeesecesncesseeseeetetescecesnecsaeesneceeesetaes 135 B. Penal Codesection 190.3, subdivision (a),is not impermissibly broad .......:...ceceeeeeeeeeeseeseeeeseeeeeeeees 135 C. The standard penalty phaseinstructions do not impermissibly fail to set forth the appropriate burden Ofproof.......ccecesesssesesssssesssesesssscsssssssessseseees 136 1. There Is NoRequirement the Jury Find Aggravating Factors Outweigh the Mitigating Factors Beyond a Reasonable Doubt..........000000sessenessenceasenteaceceserseeetateess 136 2. There IsNo Requirementto Instruct on the Burden ofProofor Its Absence............. 138 ii TABLE OF CONTENTS (continued) Page 3. There Is No Requirement the Jury Unanimously Determine Which Aggravating Factors They Relied Upon or That Boyce Engagedin Prior Unadjudicated Criminal Activity ............... 139 4. CALJIC No. 8.88 Is Not Impermissibly Vague and Ambiguousfor Using the Word “Substantial”...........cscesecssceeeseeeneeenee 139 5. CALJIC No.8.88 Is Not Unconstitutional for Failing to Inform the Jury That the Central Determination Is Whether Death Is the Appropriate Punishment ............cescecsececsecseceseeeeseeceeeeeceees 140 6. TheInstructions Were Not Constitutionally Deficient Because They Failed to Inform the Jurors That If Mitigation Outweighed Aggravation, They Must Return a Sentence ofLife ~ without the Possibility of Parole.................. 140 7. There Is No Requirementto Inform the ' Jury That There Is a Presumption of Life.... 140 D. Written findings are not constitutionally TOEQUITE” ..0........csscsesccssscesstccssrecseesstesseeecseeeescessrscecses 141 E. The instructions on mitigating and aggravating factors were constitutional...............:sccscceecseceesseeeaes 141 1. The Use ofWords Such as “Extreme”Is Constitutionally Permissible................ccee 141 2. There IsNo Constitutional Requirement to Delete Inapplicable Sentencing Factors ............deneseusseeseeseseceeceetsecteeesseceesecere LAD 3. There Is No Constitutional Requirement to Designate Which Factors Was Mitigating...eeeccscsseecescceceeceeteeteeeeeesees 142 iv TABLE OF CONTENTS: (continued) Page F, Intercase proportionality review is not constitutionally required ...........ccsccsescesseceseeeseeeseeees 142 G. California’s capital sentencing sentencing scheme doesnot violate equal protection............... 143 H. California’s death penalty law doesnotviolate International laW ............ceseseecesseesesseeseeeeeeescssseneeees 143 Conclusion «0.0... scseeeseececenceeceecesseneeecaeesencceaecnenseeaeeecuneseceeeaesaseaeeasseessens 144 TABLE OF AUTHORITIES Page CASES Adamsv. Carroll (9th Cir. 1989) 875 F.2d 1441 ocecesesceceseccssrecssececseeseeeseeneeeeeeoes 92, 93 Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]......... 136, 137, 138 Atkins v. Virginia (2002) 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335]...eee51, 52 | Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] ......... 128, 136, 138 Brewerv. Williams (1977) 430 U.S.387 [97 S.Ct. 1232, 51 L.Ed.2d 424] oo.eee91, 93 Brown v. Sanders (2006) 546 U.S. 212 [126 S.Ct. 884, 163 L.Ed.2d 723]oeeeeeeee 78, 91 Brown v. Wainwright (Sth Cir. 1982) 665 F.2d 607 0...cececsccsssenscrceecesececesecceeseeceseeeeseacecereesearen 93 Carnley v. ‘Cochran (1962) 369 U.S. 506 [82 S.Ct.884, 8 L.Ed.2d 70] ou...eeeescceseeeeeeeeneeteees 91 Carroll v. Secretary, Dept. ofCorrections (11th Cir. 2009) 574 F.3d 1354 oo.eseeccseseseceseeenessceseseeseceesseseesesessenees 52 Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] occ.sescesseseeeeeespassim Clemonsv. Mississippi . (1990) 494 U.S. 738 [110 S.Ct. 1441, 108 L.Ed.2d 725] 0...eeeeeseeeeeeee 78 _- Commonwealth vy. Baumhammers (Pa. 2008) 960 A.2d 59.......sovesesesestcesstesseesensceccecesuececseseseeesseseseeeceneesseeenees 51 Connally v. General Constr. Co. (1926) 269 U.S.385 [46 S.Ct. 126, 70 L.Ed. 322] 0... cccsesessssssssseseseeseeees 78 V1 Conservatorship ofEarly (1983) 35 Cal.3d 244 oocesesseseseeessssccssnsesesssecssssssssacsscnscseteseeneseeees 125 Cunningham vy. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]...eeepassim "Diaz v. State (Fla. 2006) 945 S0.2d 1136.0... esessecsesesssescssesesssessssesesesseeseesenseeeeeesees 51 Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] .....cecepassim Franklin v. Lynaugh (1988) 487 U.S. 164 [108 S.Ct. 2320, 101 L.Ed.2d 155] ooeee107 Grandstaffv. City ofBorger (Sth Cir. 1985) 767 F.2d 161 occseseesecseeeeeeceneseeseesnecscssessessestseseseetens 77 Hodge v. Henderson (S.D.N.Y. 1990) 761 F.Supp. 993.00... cececessessecscesscessesecsseeseseseeeeseeeeereaes 93 In re Hawthorne (2005) 35 Cal4th 40 oosessseecseesstseesstensensseecsceeeenssseeeesaccnasersensenteas 51 Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L:Ed.2d 560]...eee73, 80 - Jackson v. Ylst . (9th Cir. 1990) 921 F.2d 882 oooiccssessseeseseseeeeseseseecnesecsecetevenenaeees 92, 93 Lacy v. Lewis (C.D.Cal. 2000) 123 F.Supp.2d 533 oo... cecssesecsesesecstececeecseceetsceseeseeeesens 92 Lewis v. State (Ga. 2005) 620 S.E.2d 778.0...“sassssseesuscsssessussssecsucssscssuccnsessseesueesnecenece 51 Maysv. State © (Tex. 2010) 318 S.W.3d 368...cecsscsesssccessessseseesesssssesetensesaessssnesesenees 51 Meeks v. Craven (9th Cir. 1973) 482 F.2d 465ccccccccssesssccccsresssssesssecsccsssecessacssscsesssesees 91 Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] oo... ceescssseseseseeees 19 Oregonv. Ice (2009) 555 U.S. 160 [129 S.Ct. 711, 714-715, 172 L.Ed.2d 517]............ 133 vii People Lucero (2000) 23 Cal.4th 692 0...cscseeeeessnsseessseeserscacesccscesseeeensonseesenceeseetes 114 People v. Abilez (2007) 41 Cal.4th 472 oo.ccessseccscceecesccenesenseesseseessnecscecesseeeeeenees 139, 141 People v. Albarran (2007) 149 Cal.App.4th 214 oo...ecsesececeeseeeeeeseesseseeceaceeeereesesenssnseeeeas 63 People v. Alfaro (2007) 41 Cal.4th 1277 «0...wissauesenessesevecesenaseesnennneenesseseeueeeaeeseeneees 143 People v. Ashmus (1991) 54 Cal.3d 932 ooo. eeeeseeseeeeesesseseeessccsecceeesceececseeeareeesseasensenseeeases 108 People v. Avila (2009) 46 Cal.4th 680 00...ceceeseeensesssncecesosseceeeseessessesesseesessseceerstereese LOB People v. Ayala , (2000) 24 Cal.4th 243 ou.eeesscseesecessesseeeeecacerssecseesseeeesesseesenees117, 118 ' People v. Barnes . (1986) 42 Cal.3d 284 oooceeessecscnsesecseeseeeeessesnsesscncssenesssceeeeseetscesseeseuee 72 Peoplev. Barnett (1998) 17 Cal.4th 1044ooeeesscsseeseessesensenseesseeensenseeeeessesstsscsseseuces 99 People v. Beames (2007) 40 Cal.4th 907 0...cccsssesccsseeecseessceessesesssctenessesesseceesesaesarenssaneees 142 People v. Bean (1988) 46 Cal.3d 919occccssescsssesssssscsssssnsessssstssseseeasesscsesessseseesseeaseees 73 People v. Benavides (2005) 35 Cal.4th 69.0.0...ses eeaseaeeeneenssesssessneseseseseccasesssssnatenneennesanees 69, 71 People v. Benson i (1990) 52 Cal.3d 754 oo.csesesssssscsssssssssscsesesssessssssssssssncsesssssessesesees 103 People v. Bittaker (1989) 48 Cal.3d 1046uo.seseescescescesesseeeeneeseseesseserseessereesceeaeees 79, 91 People v. Black (2007) 41 Cal.4th 799 (Black1secesseneseceeteesenessassensonncesnsesensenes 129, 130, 133 People v. Blair (2005) 36 Cal.4th 6860ceecccsseececescsecenccececeeceusseseneseceeesseesaceneseesres 100 Vili People v. Bolden (2002) 29 Cal.4th 515 vo. ceesecsessecscescecsecseseressssesssssssesesssessecssesesenss 80, 84 People v. Bolin (1998) 18 Cal4th 297 oo... cccccsesseeseecescseesessnesessssesssnesssseecsesesaaes 114, 115 People v. Box (2000) 23 Cal.4th 1153 oo...cceecseeccscesecensteestseessssssccsesneasssssseeseeseesseseeses 61 People v. Boyer (2006) 38 Cal.4th 412 oooeeesseeseeesessseaeeeessosesseneaseeescensesnssneesseeases 103 People v. Boyette (2002) 29 Cal.4th 381 uo...eesesecccseetecsecsecsecescesceessseneseeesserssesseperssseseneees 69 People v. Brady (2010) 50 Cal.4th 547 ooo. ccccsscecssssscesetresceeessescaseneeseeetsnssssesseesenseasenees 69 People v. Bramit (2009) 46 Cal.4th 1221 occcsesceceeeesessesssseseecsesssessessseceassereeees 140, 142 ' People v. Brasure (2008) 42 Cal.4th 1037 ooeeeeescscesseesesesescesessseasscsescscesasesssensseeeseees 124 People v. Breaux (1991) 1 Cal.4th 281...sesesseeeessseesseenceseseaseceeseceseesesesseessesacennsensens 112 People v. Brown (1988) 46 Cal.3d 432 vuccecsecesesscsssesesssescssessnesssessessseeseresessscnstsssseeeenenes 124 People v. Brown (2003) 31 Cal.4th 518 ooeeecesssescseesecesseesscssssenessesenesseseeeeeees 107, 110 People v. Brown . (2004) 33 Cal.4th 382 vcccccccccsssssscssseescsssvecssssesscssessssssseesssnseseseesseeeeeeee TT, 137 People v. Burney (2009) 47 Cal.4th 203.0... ssecsessessesesssseresseessssssssssesasssreertesees 104, 139, 142 People v. Burton (1989) 48 Cal.3d 843 ooccessceeeeecceseceneceeeeteesssenssnesseesensereeseeseeeeteeceeee 93 People v. Carpenter (1997) 15 Cal4th 312oeesessesersseeesssssseesesstescsesenenesseneneseseeeseesessweveeee 138 People v. Carrington (2009) 47 Cal4th 145 ooesesssctetesssetesesecsseceseessrsceeeeserseesteeesseesseessers 140 ix People v. Carter (2003) 30 Cal.4th 1166 oo...cesseesceceeseeeecesseeseneeneeeens 123, 124, 125, 126 People v. Carter (2005) 36 Cal.4th 1114cceccccscecessscssseecsnssscseeseeseeseessesaceeeesaeeaseeeenes 71 People v. Celis (2004) 33 Cal.4th 667 0...cseescscssscesessecsseseseeseceeeeseceeeeneeaeeseesascseecereeaes 76 People v. Chatman (2006) 38 Cal.4th 344oeceeeeseecreteeseneeenes Veneueeeacesseneesnesaceotenseeneess 126 People v. Clark (1990) 50 Cal.3d 583 o..c. ee ecescssscsscteceseseesesenceecensessseseneesceasenseseseeeesesoes 80, 83 People v. Coelho (2001) 89 Cal.App.4th 861 oo.csscssecessersecesesestecsessssscessessesseseeseenesees 135 People v. Coffman (2004) 34 Cal.4th 1 ooeeceecceseseseecseccaseseesceeresceeseeseesecesseseeesonaeeessvane80 People v. Cook (2007) 40 Cal.4th 1334 oooceseescsseetcepsssscesecensesaceteeseeeseceseseseesnsraes 139 People v. Cordero (1989) 216 Cal.App.3d 275 oo... eeesssctsecsscesceesensesceeecsecseeseessorssceesaessetegs 90 People v. Cornwell (2005) 37 Cal.4th 50 ou.csessescseeetecteeeessscssseesenesseseeenesssnees 138, 141, 142 People v. Cox (1991) 53 Cal.3d 618 oo... cescesssccsssesssseteesscsesecsecesrsensersaseensensseee Vesseeeeens 107 People v. Cox (2003) 30 Cal.4th 916 0...eeescesesssesenseecsscessnsesecesssecescessssssseesesessesscnasees 55 People v. Crandell (1988) 46 Cal.3d 833 oo... eecesesceeseecesscescsressesceerseeeeasenseneeneeesesee® 68, 69, 71 People v. DePriest — (2007) 42 Cal4th 1 ooeeeseseeceesascesssssecsesenssncssceceseesseeeceeeseesenseesees 104 People v. Dominguez (2006) 39 Cal4th 1141 ooeccsccscscssesssscssessseesereseccseeseescceceaseastereeesees 80 People v. Doolin (2009) 45 Cal4th 390 0.ecscccsceeecsescseesacssssecsacerecscseeesctseeseseneees 93, 97 People v. Dunkle (2005) 36 Cal.4th 861 oeccessscsecessssescssecseseeessssesssessesssessesssesesensees 143 People v. Dykes (2009) 46 Cal.4th 731 occeeseesecsceeessesstecescsseseeeesssseesaveseaeresseseees 87, 139 People v. Edwards a, (1991) 54 Cal.3d 787 oo.ccescscecseescseseessssrssessssesessassssnsesscseseeesesseneens 102 People v. Elliot (2005) 37 Cal.4th 453 ooo.ececceeceecssecesscsecsceeeeneeseeseseseesesenecseesesensesspassim People v. Ervine (2009) 47 Cal4th 745 oo.eecsccssessscsecsecsesseesssenecesessssetsesseseeeonaseess 104, 122 People v. Fauber (1992) 2 Cal4th 792 oo.seeccsseseeceecscsceeessessscesessccsseccseseesseeseeseseesesees 107 People v. Fernandez (1990) 226 Cal.App.3d 669 oo... cccccscessecessessscsecesseecesseasesescenseneeseeceerenseas 134 People v. Frierson (1991) 53 Cal.3d 730 oo ieeeseceecsscssscceeseessecsesessseceeseceseensesecsseteateneaseetsnses 93 People v. Gonzalez (1990) 51 Cal.3d 1179 ooeeccsseccsseecesenssseessseeesesssesssesseesnsnentesses 88, 89 ‘People v. Gray (2005) 37 Cal.4th 168 occcscscssssctesssctsecessessescesscseseeeaseeeeeseeesesareneneeeees 108 People v. Green * (1980) 27 Cal.3d. 1 ooccesecscctsceceseresesssesssssesecessesseeeeeesaesenceseesceeseees 80, 89 People v. Green (1988) 200 Cal.App.3d 538 veccssssccsssssccssssscsssssscsssesecsssececsseeceenecerees 134, 135 People v. Griffin (2004) 33 Cal.4th 536occesesccssceeeqeeseseccesecseseeeeeeseessesnececeaees 103, 139 People v. Guerra (2006) 37 Cal4th 1067 oo.eeeceessesssssesessessssecsestessersssessesssesessssceseseenses 69 People v. Gurule (2002) 28 Cal4th 557oesesscssssccscscensssssesseseacsnsssseseeseeeeseeseseeeesees 90, 110 People v. Halvorsen (2007) 42 Cal.4th 379oeeeeeseseensseesseneateteseneseseseeteseeeusnseecssceuscesensaaes 93 Xi People v. Hardy (1992) 2 Cal.4th 86 oocsscsescsetsescsecssssersssesserssserasseseesseesesesesenses 93, 97 People v. Harris (2005) 37 Cal.4th 310 oo... cccscsscssesssscsccssescsesssesssssscessessseeerseseesseaenenseees 135 People v. Hawthorne (2009) 46 Cal.4th 67 occesccseseeeeeceseescnecsecsesssssecseseasenseasersescnesees 61, 62 People v. Hayes (1990) 52 Cal.3d 577 ooo ecsscsnsessesssssessessecceesecscessenesscesseeseaseeetessenees 83, 138 People v. Heard (2003) 31 Cal.4th 946 ooecccsceeesscsensecssecesseesecesseteeeseesenseeeseesseceaesenens 54 People v. Hill (1998) 17 Cal.4th 800 o....eeccscssscecesseessesssssstessssssssessssseessssorssessesesees 81 People v. Hillery (1965) 62 Cal.2d 692oceesssscssesscscsssssssssersscessecsssssssesesseseesesoesceesasesenee 73 People v. Hillhouse (2002) 27 Cal.4th 469 oo.eeceeesseeseeesseseaeseseseeseseneesesssesesesesssenssseseeesees 70 People v. Hines . (1997) 15 Cal4th 997occcecssessecsersessseseesscsesssseesnesenseeeseeeaees 108, 114° People v. Hoang , (2006) 145 CalApp.4th 264 oo... ccscsssscsscssssesesssssctsssseessessesessssseneeeeseses 69 People v. Horning (2004) 34 Cal4th 871eeceeetesscesscsscececceecessseeesssssnseseeseessesecesenennesenees 84 People v. Howard _ (2008) 42 Cal.4th 1000....... doossennsacescesssncasecsssoussacsessassreesssscesasesscasonneesoeseeees 69 People v. Hughes (2002) 27 Cal.4th 287 0...eesecseesceecsecseescneesseeesessscseeeseceeceaseeeeeeetansees 69, 87 People v. Jackson (1996) 13 Cal.4th 1164oocssscesesseeseesssrecserersesessessesseessesesceceesonees 69 Peoplev. Jackson (2009) 45 Cal.4th 662 00.eccsceteseseeseseceerecneeesVeseesecaeassesseeeeeeee 51, 140 People v. Jenkins (2000) 22 Cal4th 900 oo.csessesecseessesenseccssesnessesneseeeseaceeseess 74, 94, 136 Xil People v. Johnson (1980) 26 Cal.3d 557oesessssseveseeceensusseceettaneevssesssssnvtssessn 72, 73, 80 People v. Johnson (1992) 3 Cal.4th 1183 oooeccsescescceeeseteesesseessscessesesseesssssaeseeeassasereas 107 People v. Jones (1962) 211 CalApp.2d 63.0...ee ecssscesseseeseessceesscsstersecsesessenesstocsseseeeenees 83 People v. Jones (1984) 155 Cal.App.3d 153 occeeecseeseeeressesnseesesesstesesssseassesseesseeneaes 54 People v. Jones (2003) 29 Cal.4th 1229...eeesescsecesseensssssseenssserssssnssnserenssnsseeeesnsescenees 143 People v. Jurado (2006) 38 Cal4th 72 ........cecessssesccecessesceeecscesseeasececeseosssnesescssenesesonsaees 69, 70 People v. Kimble (1988) 44 Cal.3d 480 oo.ececesccsserscnecseeseesesscsesessassasserseseassnsssseesenseesesons 88 People v. Kipp (2001) 26 Cal.4th 1100oeccescescesceseeteescesaseeeeeesacesseeeseessasoesenes 139, 141 People v. Lang (1989) 49 Cal.3d 991] ooeeeseseescseecaeeecseccsecsescsenesereceesesssassseeestaeeeseas 100 People v. Ledesma (2006) 39 Cal.4th 641oecccesesseecetecsecscessesetsssceseesessscssceeceseseeteeees 79 People v. Lenart (2004) 32 Cal4th 1107 o..ceecssscessscscsceeesscscesesecsestecsacesesseesansnsesseetees 138 People v. Lewis (2001) 26 Cal4th 334... cscssscscsersssesseetssenssenssseteneetseetensees sesseceneeneenenses 103- People v. Lewis (2008) 43 Cal.4th 415 ooecsseeseseeeecssseeereneeseeeeneeeeeas 79, 123, 124, 126 People v. Loker (2008) 44 Cal4th 691 oo.ecescesecsccescenserseeessecsererseesseaseseerseesssensnesess 124 People v.Manriquez . (2005) 37 Cal.4th 547 oo... secsscscessscsesessssssessssssrsssseesessssssscasseseassesenseeseases 143 People v. Marchialette (1975) 45 Cal.App.3d 974 .....ssesscssssesessesseseessersensssssssneesesetseseseeseseeesesees 69 Xili People v. Marks (2003) 31 Cal.4th 197 oo.ccecssceessesssssssseesssesseseeseesssessesesiseneaeesseneeseeseses 87 People v. Marsden (1970) 2 Cal.3d 118 oo.eeeceeeecccneerecsecsnecseesseescecssescesscersceseesenseensens 94, 98 People v. Marshall (1996) 13 Cal.4th 799oceeccsscsnsessssssscececscscscsseessenesseaseseeeeeseeeseceeess 99 People v. Marshall (1997) 15 Cal.4th 1 ocecccecscesseseescsesccetscessensecnecesseeesseneesaseaee 91, 92, 93 People v. Martinez | (2009) 47 Cal.4th 399 ooccescesetesseceresasecssscsessaceacesncessosesnseasenseeeees 139 People v. Mason (1991) 52 Cal. 3d 909 ooo cccccceeesessesenesneseeeaceccesaececseesaesaseneesaneaeenaeeaneseees 68 People v. Maury (2003) 30 Cal.4th 342 oo.cccsccscssessssssseresseeescsscseesecssescessonceseessesatecesons 136 People v.Mayfield (1997) 14 Cal.4th 668 ooo.ccsecessceeseeessseesecsencetsesseeseeseeeees 72, 80, 93, 99 People v. McCleod (1997) 55 Cal.App.4th 1205 oo... escscsssssesscsscsesssscseseessseressecsetesesensensees 88 People v. McPeters (1992) 2 Cal.4th 1148.........hesssceseeeeceeesenscessenseseceenaecacenaneeseseeconncesasensesenesss 103 People v. Medina (1995) 11 Cal.4th 694ocecccesscesreessesecesecesseessesssessesteeeseeeneees 108, 140 People v. Melton (1988) 44 Cal.3d 713 oecccsessseescssesssscessescsesssssesesssensesseeseceeseees 116, 126 People v. Mendoza (2000) 24 Cal.4th 130 .......ccesscssssecsssesssssssserssscsesessenssnssesessenssesesnssesseeesees 69 People v. Monterroso (2004) 34 Cal.4th 743 oo.ecsecssecscsssecessstasssceeeessstsssseseseeeeesseeeees 117, 118 People v. Moon (2005) 37 Cal.4th 1 occceecsccscsscesrssssssecssssseeesssssssenssoessessssenssesensenenspassim People v. Mungia (2008) 44 Cal.4th 1101 ooeecseeeesessseceesssseccssesecsecsseesseesseseseeseeees 143 XiV People v. Musselwhite (1998) 17 Cal.4th 1216 .occcccccssscssessssesssesssscssesssnessssessessecessessasesneeesecenesessees 90 People v. Nakahara (2003) 30 Cal.4th 705 oo...ccesesessccssescerecssssecsssenessseseevssseseessessssseasseseess 69 People v. Navarette (2003) 30 Cal4th 458 oootetetecceeeceseecseseessaeeseesecasessesasseesesensossensesees 89 People v. Nicolaus (1991) 54 Cal.3d S51 occceeesscsecsecseeseesecsecsecnecseesecscssessisenssesaseessonseneses 69 People v. Osband (1996) 13 Cal4th 622 oo.ceeceescesseeenecsseseesscereseesacseeseessesesseseaees 108, 134 People v. Panah (2005) 35 Cal.4th 395oeccecsssccssenessssseeseseneseecesscasesseseeeaeeeees 143, 144 People v. Parson (2008) 44 Cal.4th 332 oesseccssssssssescsecscessserscsssesessseeeessesssesessesesensensees 142 People v. Partida (2005) 37 Cal.4th 428 oo... ecccsseessseseeesseeesseteeeeesnseneessacesseusesasenceseeaesesene’ 63 People v. Perry ce (2006) 38 Cal.4th 302 ooo.eeesssscssecsesseseseseeeseeeeeesenseasensens 139, 141, 142 People v. Pieters (1991) 52 Cal.3d 894oecscscccseececeecesscescenetsesesecessseeeesnssdeensessnsessesues 76. People v. Porter (1987) 194 Cal.App.3d 34 ooetessseeeseeecsersccseesecescesccscesseseesessnesaenes 134 People v. Prieto (2003) 30 Cal.4th 226 ...cccccesccssessesesssecsoscessecsssusssscssseesssseseusessuesseversuenses 137 People v. Prince _ (2007) 40 Cal.4th 1179 oooeecscscessssecsssssseecessesesseseesnesseseeseens 138, 142 People v. Ramos (2004) 34 Cal4th 494 ooecssnsscersetsctsrsestscsseesersssseeseseseesensensseseatses 136 People v. Riggs | (2008) 44 Cal4th 248 0... escccsesnecssenssssesssesesesecsseeeseresesessseesressecerseseees 141 People v. Rincon-Pineda (1975) 14 Cal.3d 864 ooteeceeeeeessesesegececessenseaeseaeaceeeseesesetessescseseres 123 XV PetAMERAREREE REETBN na eat Mite a Eanoctet People v. Rodrigues (1994) 8 Cal.4th 1060 oooeeeecnesseessseeseesseesesseesessenseesaeees 55, 87, 107 People v. Rodriguez (1986) 42 Cal.3d 730 oo...eetsereeeeens esesessesessesseeseessassesssceseesacceesenseaenees 77 People v. Rogers (2006) 46 Cal.4th 1136 oo.escsesesseescssersesesscsssesecssecesensereessererensnees 140 People v. Roybal (1998) 19 Cal.4th 481 ooeeeesesecsscreesssesesssesensesseesesaseeee 59, 60, 63, 68 People v. Saad (1951) 105 Cal.App.2d Supp. 851eeeeeesseeseesesseeeteeeeeesseeteeenneeeeeenes 78 People v. Salcido (2008) 44 Cal.4th 93 0... eesssescssseessssescssesssseesssessssesssnssssnessenessssnens 112, 142 People v. Samayoa (1997) 15 Cal.4th 795 ccecccscsssscsscssssscccccssssssssssssssesssssssssssssssegeeceeceseneeeeseen 114 People v. Sanders (1995) 11 Cal.4th 475 oieeeecncesecsscsecssesesssessscrscsessessssssesneseesnseaneseeaees 108 People v. Sandoval (2007) 41 Cal.4th 825oeeccssscsscsscnsssepeesscneseeeseesesesseenes 128, 130, 132 People v. Scott (1994) 9 Cal.4th 331 oo.cesccssssssceccscseececencnesceseeeeelescseceeseeseeeeeseareeaearene 134 People v. Seaton (2001) 26 Cal.4th 598 wi. ccessessscssesscecsessesssessseesessesesssssrsseceeseeseseesseeseseres 83 People v. Shepardson (1967) 251 Cal.App.2d 33 0... eecesseessssesecssssssesscsessscnssesssserssaseseesesensatens 83 People v: Slaughter . (2002) 27 Cal.4th 1187 ccsscccccsscssscscsssssessecsssssssseassssesesceesesasssssesasseeen 107 People v. Smith (2005) 35 Cal.4th 334...sosesscscusecussousenssessaneeavseesetssvesrsenneesonnten 61, 142 People v. Smithey (1999) 20 Cal4th 936 oocccsecsecsecesssesensessssessessssesssceseessesseoees 68, 70, 88 People v. Stanley + (2006) 39 Cal.4th 913 ooessseecescssssssesssssrssssssseessssseseseessceseseesesees 90, 94 XV1 People v. Stevens (2007) 41 Cal.4th 182 oo...cscccescesneeeseesneeecseserseeecsesssseeesssesssseseseaesegs 138 People v. Swanson (1981) 123 Cal.App.3d 1024oeeeeeneecsceecenessceeesesssestesesesteasseneneens 134 People v. Thompson (1990) 50 Cal.3d 134 ooocseecsssecssersceeeseeseeceeseseseseeeeseeerseesaeeeseeseeesneed 83 People v. Thornton (2007) 41 Cal.4th 391 ........sacesacesaeessecsessneusceaeesueesceeccaeseeesssceseseneeesseensoneseaee 70 People v. Towler (1982) 31 Cal.3d 105 ooeseesseceesscssrecntenesseseneeseenessssasseseeerssrsseceesseereresees 73 People v. Towne (2008) 44 Cal4th 63oecsessscessereecsencseseseeeenseeesacseesedeneserseeseeseoneseees 129 People v. Turner (1990) 50 Cal.3d 668 oo... cece esccccteseeesecseeeneeees baceneceeneeeenecacensceeeeees 69, 70, 80 People v. Valdez (2004) 32 Cal.4th 73 oo... cccccssscstsesssecsssceseecessseseessseeseaeesesesesseeesentessseseaaenes 92 _ People v. Visciotti ; (1992) 2 Cal.4th 1 ececccsscssscnsssesssenescnsvensstsnessesseesasssseseessseseseesseens 68, 69 People v. Ward (2005) 36 Cal4th 186 v0... csceccscceccerseeesssecsssesscessessceesusessseesaeessssessaeeeees 137 People v. Watson (1956) 46 Cal.2d 818 oo... cecssecetsscscessscesseseseenessesteeeteeateesneeseeees 63, 71, 90 People v. Welch . (1993) 5 Cal.4th 228 wcccsscsssssssscsssssesssssseessssecessescsssesscsssveessessessesesssseessaes 134 People v. Wharton (1991) 53 Cal.3d 522 oo.eesescssssesesessssssssesescsscapecseesseeseseescseeneseeeseesceees 113 People v. Whisenhunt - (2008) 44 Cal.4th 174 occcccccscsssessscssscecescesssentectasessucnscesscesseceees 118, 137 People v. Wilkins (1990) 225 Cal.App.3d 299 ou.eesscsessssssessseecsssessecsesscscessenseseesseeseeeseres99 People v. Williams (2006) 40 Cal.4th 287........ sessanesensesenscuesesessensastecsesesteneneseneesesenenenseseaetaesen® 111 XVii Peoplev. Wilson (2008) 43 Cal.4thr 1 oo.eeecccsessesseeesereeesenssseeseesseeseeereereseesnseees 122, 124 People v. Windham (1977) 19 Cal.3d 121 oocesccstccsecseceecesncessssseeeccsesssesecsaeesrecesensees 94, 99 People v. Wrest (1992) 3 Cal.4th 1088 ooo.escesccsecseeessesssesscsseececsesteeecsessscessessssnesenesees 61 People v. Wright (1985) 39 Cal.3d 576cccsssteecsscessesssssesssecssesesscaseseseneeecnsessnesaseeenees 60 People v. Yarbrough (2008) 169 Cal.App.4th 303 oo... cccssscsesseesecsesecssesesecsessecessesseeeeseeeeesee 88 People v. Zamudio (2008) 43 Cal.4th 327oecsecsessesescssscseressssesesereeseeesseesesesesesneees 84, 135 People v. Zapien . (1993) 4 Cal.4th 929oeseseeesesscsesesssessscesscsceseseeesesseasesesssecesacseseeeeesens 80 People v. Zavala (2005) 130 Cal.App.4th 758 oo...eeesceescsessscsecesceessseetesersssceneeseesseearee 90 Reese v. Nix (8th Cir. 1991) 942 F.2d 1276 ooo.cesscssccseseeeessnnesssceeneecsesesetecseeessneeees 92 Ring v. Arizona. (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] sesessenseesseues 136, 137 Shannon v. United States (1994) 512 U.S. 573 [114 S.Ct. 2419, 129 L.Ed.2d 459] 0...cee eesseeeeeee 70 ShisInday v. Quartermain (Sth Cir. 2007) 511 F.3d 514wececcsccessteceseesceceseesecenseetssesscenseseenes 51 State v. Hancock (Ohio 2006) 840 N.E.2d 1032seceseseesecacacscscavsns Lescasssesssssccescsseessepeestonsuces 51, 52 State v. Johnson (Mo. 2006) 207 S.W.3d 24 ooeessssscsseesesceseseeerstsesseeesasseeeseeerssneeseeeseseeees 51 Tigner v. Texas - (1940) 310 U.S. 141 [60 S.Ct. 879, 84 L.Ed. 1124] oo.ecsseeeeeneeeees 52 Tuilaepa v. California ~ (1994) 512 U.S. 967 [114S.Ct. 2630, 129 L.Ed.2d. 750]... cececssssereees 107 XVili United States v. Bennett (LOth Cir. 1976) 539 F.2d 45 oeeceseseeesestesesecensenseseeneseateseesseseansasennens 93 United States v. Scheffer (1998) 523 U.S. 303 [118 S.Ct. 1261, 140 L.Ed.2d 413] oo...eeeeeees 125 United States v. Wade (1967) 388 U.S. 218 [87 S.Ct. 1926, 18 L.Ed.2d 1149] 0...cceeeteseeeees 91 United States v. Weisz (D.C.Cir. 1983) 718 F.2d 413... escecesececeeseestenseneeesseenesssnesesssesteneesneneees 92 Waddington v. Sarausad (2009) 555 U.S, 179 [129 S.Ct. 823, 172 L-Ed.2d 532] oo... .cecesseeessesesees 89 Williams v. Bartlett (2nd Cir. 1994) 44. F.3d 95.0...escsccessseecetceesseeessseusscsssonesessessessesseasneees 93 Zant v. Stephens (1983) 462 U.S. 862 [103 S.Ct. 2733, 77 L.Ed.2d 235]...eeseseeeneees 78 STATUTES Evidence Code § 210... ecccsesseesecssccssersrsesnseceesscseesenasssepsssuesesssnecsaesateeseesseeccesensensecseenesses 54 I)|Vestesecasescesstesscuaessseessecseesseesseesseesceeseesseeseeesssersses OF § 352. cccecscsscetsctseseesssesssssecessssssenssccesscscegseceessecessecasssesseeeeseees 54, 56, 60, 63 - § 780... ccscesscssccssccsscenscscesccesssencecsesseseesseacsssesseseceesseneesensesatsnseneseneeneetaceetenss 54 Penal Code § 187, sUbd.(8)...eecesccssseescsscesscerscssesccsenesscesucessseeeseessaserecsecsseeseaseatesetes 3 § 190.2... cesscsssccsssscescessssesscssecsrseseeesessccersesnesssessessesstecseteneeeneseaseesers 73, 135 § 190.2, SUDA.(2)...cesseessseseneesecctecenetensesscsecesccacesteesessecsessosaseceeateeseeess 74 § 190.2, subd. (€)(7)........ccsscsscsssseccssccsrscssssecssssssecsesesscesseessseneesceeneesaeesnes 3, 74 § 190.2, SUDA.(a)(17) sooesssssssesssssescessseeeesassasvessessssvessceesveseccesnuassssscasben 81, 89 §190.2, SUC. (€)(17)(1) .....ccssssscessessscsecerscssecsceseseseesesesseeseseneseesensesseesneersoes 3 § 190.2, subd. (€)(17)(7) 0. ccescccesesccesssnesscersssesacscessesnesssncsecsansseserssecsassasens 3 § 190.3... eecescsescsseceeeecsessssersssssssstesereesesesesssesssecsscscaceceteesssssssearseasaestsespassim § 190.3, SUDA. (a)......cscececsssseessseeeescesstessnsesssssenseeessssessscesssesseseseneeseaeeeen 135 §§ 211/212.5, subd. (c)/213,‘subd. 0) 3, 81 § 240...ee cecesesccssceesecsecescesnssetessecsscsesecseessseaseessreseaeesseecsessaeesssacesrsenseeenes 121 § SOLcccccsssesssssessseocecensessessestssceeteseessesseseesseageesecneeseeeseseassreseeseneenenases 83. §§ 459-460, subd.(b)...............sesesesesseaessseeseeseaserscesscsessenesseesscssessassecseaesusaseee 3 §§ 664-211/212.5, subd. (c)/213, subd. (€)(2).........cescescsessetseseeesecereesneeeeees 3 — § 667.5, SUD. (D) occeeececcsnsecencctssseesssecsenssecessesesssecoesacescenceuseasenassesnsens 4 §§ 667, subd. (a)(1) & 1192.7, subd. (C).......:csccsscesscesscesrsesssensesseeeesseesesenses 4 §§ 667, subds. (d) & (e)(1) & 1170.12, subds. (b) & (©)Q) sasenssensssnscensnseess4 SQ LIQ7TCoeessesccssssecescersssescensessesscncenssesssnsstesstseseeuesesaeseseeessssssssesssesseesenes 68 xix eesecteseesusveceeransesesssseee 87 § 1170, Subd. (b) ..ccssssecsscccccsssssesescccsssssssssecesseccssenssssesesesseseeceeresssssecseseeeeees 128 § 1192.7, subd. (C)(1) seccccsscssssecsssccssssssssecesescsscccssssssseseceseersenssnsseeseeseeeensee 3,4 § 1239, Subd. (b). ..cccecseccossssecsccsscssesecessssssveseccensssssscecsessssssersceerssssussessesereneeess 5 §§ 12022.5, subd.(a), & 1192.7, subd. (C)(8)...cccscsevessesececcesssssssesssesesecessneee4 CONSTITUTIONAL PROVISIONS California Constitution Article I, §§ 7, 15, 17 ......ceecescescssscsssssessseececsecsesceesencseescenssesaeneeseeeeesseaeecees 123 Article I, § 16.0...eeeeeeseeeeeesse aceeaeeucesceeesessessecsseacenseneeaecueenetseesssneesees 127 United States Constitution Eighth Amendment«00.0... esseeseeeesceeeeeseenseseeeneeees sesecesaeensenseseeeeoneespassim Fourteenth Amendment...............eescescsscesssseceseceeseeseseecsnessseeeaseeaeoneespassim Sixth Amendment «0.0.0...ce sessscsesseesensesecescscesseeseseessssessessesesseeeeeesspassim COURTRULES California Rules of Court TUleS 4.405-4.452 oeeeseecssscseescsecsssessessseseccsseseecnsssssccseeseeeeseseesatersesasens 132 tule 406, subdivision (b)(4)............ceeessesscssccsceseeecesssertecenscsareeeseetenseeeees 134 Tule 421, subd. (a)(1).........:cssesessscseceereceeceeneessesecsersseeesseseeseeeneeesaesceseees 131 Tule 421, subd. (D)(1) oeeee seececeeesceseceseeesneeresssesascssseessneseneeereesnesesees 131 Tule 421, SUDA. (D)(2)......ee eeseeeeceecssescenseecenssescsrsesesceatecsaceeseeseseeeeasseeeses 129 Tule 421, Subd. (D)(3) 0...eseesscesceeseesecesseeseceeseseseeceecensesessesesecseeeenseneees 129 TUle 421, stbd. (b)(4) oeeccencesesseesseseseesseesnsebeceeceteesseseneesesensesseesnees 130 Tule 421, subd. (b)(5) oeseeescesesseecencscessensesseseeesececesscesesassenseeetensaeenes 130 OTHER AUTHORITIES | CALJIC : NO. 2.90......sscsccsscsesescesscsncersesesesssscssatscesrseeseceusnsaseaseeseseeacseeeneessensecsesssessens 126 NO. 8.85. 2...ececcsessceeseseescssessescessesseseesesneeessessencessaneaceasceeseaseeeees 120, 122, 142 No.8.88...........sccessessessenseeerensesceseseasearescesresssoneenseaseesonseeeteesasteasensceeeseeespassim NO. 2.06.......cccsscccccececcescecseceoseereccenceusecenssacsctsaescsecseescsacecescsaseasscseceasencaneasees 70 NO. 2.90...cccesssccscseeseceseeccetesceecectsssseseacacsaceetscsscssesscsnsscesessaneeseseacsecsnseesacees 70 NO. 8.85 .ccccccscsssssssssscsssssssececesesesesesssesesccesesesesssesessseseseseseseessesesseseesecesPOSSI NO. 8.81.7 ...ccecesccssescecsecssccscensencecsscesssscssseaceceseseessceessacscesesnesssaceassetensaseneseeas 74 NO. 8.81.8.......cccescsssscsssececsscessesscecessesserseessesecsssscesesscesessesscaccaceesensarsnssaserees 75 NO. 8.81.17... essccsscscesessessssscsscnsesecsseeseccesasaceeesecsseseecesceaceseeeeeeteseeespassim NO. LOL...escesceecessecesceecseesessccscescesceeesassessssscseeeesreeeeesearsaceaceseseasensencess 119 NO. 1.02... ceesessesscceessscscecesecessescccscssnenecoceesssssuesesaseeseasacenseasacseeesesseesseses 121 NO. 1.03 ...cceesessesseeecscensesesacesseeseseqecseseeosseeseseeseaseasecses ceesearescesceaceacenenseacees 119 NO.1.05...cecsssccsecesseescseceesecesenecsscecseeconscereessascseseaseecseserssenserssasenseseacesnsess 119 NO. 16.140... cesssssseesscceccecesceseecsceeesecessesecsseacccaceecensesenseuseaeeeeaceeseasensees 121 NO. 2.001... csesescseessesccereecsesessessceecssnsessesesseseasccsesseeasssesesaceaceesecerseeseneaes 119 NO. 2.01 oo... ceccececsssscessescesscesscesseeeesesernseseeseeseeseaeenaessesteseeceneesescesesesaesensens 119 NO. 2.02......cccccsscesscsssesscsseescesscesececesscescsaceneesesseseseaseseeeseseeeeaeerseseasesaeeasens 119 NO. 2.03 .....cccsccecsesssesssssscsssesessecsnecsesssesscseessaesaecenecenseneetsesedseaesuedenesensesesens 119 NO. 2.1 Levecceccscssscssessscsnscssseceesecssessessssensesnescecseceneceessnceseesecsesecetsnaeeaeenasees 119 NO. 2.13 ....cccccscssscecsssesscssceseesseesccsseesasensceeesseseseescesseesnestsesseecnsesneseneeeasensenes 119 NO. 2.20......cccccssessssssessccscessessscseessscessssacerscessensesnesenessesssesseeseeseneteacceasoneees 121 NO. 2.21 Linc ecccccssccssscesscsscesetcsscesececseescsesessccsacseacsssassseressneseneseceeeseneceatennes 121 NO. 2.21.2....ccccscesccscccscecsssnseonscssecscensesncescenscesssencesasencesseseseccsaesssesscenseessens 119 NO. 2.22.....ccccesccsssccsssessccessesscesssecesessseecsesensecensecsesesnecseeeesnesseueeseseesatenesanes 119 NO. 2.27 ..cccccssccssccecesssesscececsecssecsscensescenseesecenseaneeseesesensesaaseneesseeseesseeeaceeneoes 119 NO. 2.52... ccsccesecssscsccenceseessscccescesessseeseceseeceseesecenseeeeseaeesssecseeeeeenseoneaespassim NO. 2.60.....cccsccssssscesscossssrsesscssscseceseesceesessecsssessseaeenessaeeseeseseessuesssenteeesereses 121 NO. 2.61... ceecccessssceeceeceeessccesnecsccsecsncessesscssaseaesesesnessaeenaeseuseacesensesneeess wee 120 NO. 2.80... ecceesceccessecseecesecesccesesseesnceseesessesscesenesseusnsenseetsesacesanseseenseeeeeess 121 NO. 2.81 oo. eeccsscsccsssessecensecscssssnsesecssecssseneessenseesseseesensesscstecsseecesesseeenesneeses 119 NO. 2.82 .....ccccecccscecessessrsensssenscesccsscesceesssonacesseeseaeceseseesesetesenesecscessteseeeesaes 119 NO. 2.90... cceeccssscsccsscessescessesssssssenecsceesecsasecesenessueceesstsesseessseseeenesenssenesseeass 119 NO. 8.84.1... .cccceecscsscesscssessscssscseecsecosessecsecenscsuecsuesessseesnesensesseesseessessuesssents 122 NO. 8.84.1 oo... eesccesesscccsescesccsesesesnesescsessceessesecersesesessseuesseessesessesenssteeeneeees 120 NO. 8.85(K) 00... cesccssscssecscssseesesneesssssessaeseessnsesecsusesessesenesseeseesessseaeesnesntcenes 108 NO. 8.87....cccccsssssecctsccscssecsesensessccesecenseessssescssauecsecsstesaesessecesessesesseseete 121, 122 NO. 9.00.......cccsecsteesteeeeee cccecceccoscesscssceesosecseeesesnaseeseeseseccesceceacesneeasensseseees 121 Nos. 1.01, 1.03, amd 1.05 0.0... ccsccssscesscscsecseceneeseeessecssseceeecsstsesseeeseeeseees 122 NO. 2.22... cescssccncesseessescsencesssensenaevsccenssteesesenseseusseesscecaesacessseeseesaeentesseeenes 123 NO. 2.61 oo.eeceeceeseseseseessesseesacencescsencesssesscneesssenssseesnsesssssesseessceessseneseeeses 122 NO. 2.90... eccsccssseeecsscesccencsscsscesescccesscseuseeeensesaeseeessssssesseessteenesenseaeessseaes 122 NO. 8.84...eeccessscesscceessssseescesuceessssetseseeesssenesssesseestsesessesseesasessesseess 120 No.8.85...........saceseesceeseesaesaecsaeceeesesseesseueestesassnesscesaesseesesesneeesetenedecesoneees 116 NO.8.86....cccsscssssssessssssssscsesscsesesscscssssusscsesscecsusscssavcsssesseseseescsesnsseeesess 120, 121 NO. 8.88 ..cccsssssssessssneessessccacessssesenessseesceass seseoseesecseeneseneseeeatenss satesneeesseenees 139 Nos. 1.00 through 2.81 0... ccsesssesscssseesssscenecseeessenseeseesseesstseneeenesancnsnenes 122 Nos. 1.02, 2.20, 2.21.1, 2.80, 8.84, 8.84.1, 8.85, 8.86, 8.87, and 8.88 .....120 INTRODUCTION On a summernight in 1997, Appellant Kevin Boyce and his cohort Willis burst into the De Cut Salon in Buena Park, planningto rob the place. AmyParish was inside the salon styling the hair ofher sister, Jennifer Parish, and Jennifer’s fiancé, Shayne York. Jennifer Parish and Shayne York were both off-duty Los Angeles County Sheriff’s Deputies. At gunpoint, Boyce and Willis ordered the three victims to the groundand began searching for money. When the robbers determined the salon’s cash drawerhadlittle money, they began robbing Ms. Parish, Deputy Parish, and’ Deputy York. As Boyce was going through Deputy York’s pockets, Boyce found his badge. Boyce questioned where Deputy York worked and discovered Deputy York workedat ajail where Boyce had previously been incarcerated. Boyce accused Deputy York oftreating “us Nigger Crips like shit in jail.” After obtaining the PIN number for Deputy York’s ATMcard, Boyce shot Deputy York execution-style in the back of the head. Deputy York died from the single gunshot wound. Boyce and Willis finished robbing Deputy Parish and then fled. Before being caught by police, Boyce and Willis stopped later that same evening at a Lamppost Pizza in Yorba Linda where they robbed the customers and emptied the cash registers and safe. The jury convicted Boyce of capital murder with special circumstances, to wit, murder committed during the commission of a burglary and robbery, andkilling of a peaceofficer in retaliation for the performanceofhis official duties. The jury also found Boyce guilty of several counts of robbery and burglary, and foundthe firearm use enhancements true. After the penalty phase, the jury returned a verdict of death. Thetrial court sentenced Boyce to deathfor the murder, and to a determinate term of 34 years and six monthsfor the other offenses. In this appeal, Boyce challenges the admissibility of the audio tapes of the calls to 911 by Ms. Parish and Deputy Parish. He also contends the court erred by instructing the jury on flight. Additionally, Boyce separately claims the evidenceis insufficient to support the jury’s true findings on the three special circumstances. Boyce contends thetrial court improperly denied him hisright of self- representation in the penalty phase ofhistrial. Boycefurther claims his death sentence is cruel and unusualpunishment becauseheis significantly impairedintellectually, brained damaged, and severely mentally ill. Boyce challenges the determinate sentence imposed for his non-capital crimes. Healso raises a series of challenges to the penalty-phaseinstructions and to California’s death penalty law;all of which have been repeatedly rejected by this Court. The judgment shouldbe affirmed in its entirety. The trial court properly exercisedits discretion in admitting the audio of the 911 calls from the survivors of the robbery atthe hairsalon in the guilt phase, and allowing consideration of those calls as circumstances of the crime in the penalty phase. Thetrial court also properly instructed the jury on flight. Substantial evidence supports the jury’s true findings onall three of the special circumstance allegations. Thetrial court properly denied Boyce’s untimely, equivocal motion to represent himself. The Eighth Amendment does not prohibit imposing the death penalty on Boyce. Thetrial court did not err in sentencing Boyce for his non-capital crimes. Finally, Boyce provides no persuasive reason for this Court to reconsider its prior precedentrejecting the standardattacks on the penalty phaseinstructions and death penalty law that he raises here. STATEMENT OF THE CASE On July 30, 1999, the Orange County District Attorney filed an amendedinformation charging appellant Kevin Boyce and Andre Willis with the murder of Los Angeles CountySheriffs Deputy ShayneYork (Pen. Code, § 187, subd. (a) [Count 1].) It was alleged the murder was a serious felony (Pen. Code, § 1192.7, subd. (c)(1)) committed under the following special circumstances: while engaged in the commission of second degree burglary (Pen. Code, § 190.2, subd. (a)(17)(7)); while engagedin the commission of robbery (Pen. Code, § 190.2, subd. (a)(17)(1)); and as to Boyce only, that Boyceintentionally killed Deputy York, a peaceofficer, in retaliation for the performance of his duties (Pen. Code, § 190.2, subd. (a)(7)). The amendedinformation also alleged the following crimes: second degree robbery ofJennifer Parish (Pen. Code, §§ 211/212.5, subd. (c)/213, subd. (a)(2) [Count 2]); second degree robbery of Amy Parish (Pen. Code, §§ 211/212.5, subd. (c)/213, subd. (a)(2) [Count 3]); second degree commercial burglary ofDe Cut Salon (Pen. Code, §§ 459-460, subd. (b) [Count 4]); second degree robbery of Rodney Tamparong (Pen. Code, §§ 211/212.5, subd. (c)/213, subd. (a)(2) [Count 5]); second degree robbery of Edward Tharp (Pen. Code, §§ 211/212.5, subd. (c)/213, subd.(a)(2) [Count 6]); second degree robbery ofMark Cook (Pen. Code, §§ 211/212.5, subd. (c)/213, subd. (a)(2) [Count 7])'; second degree robbery of Christopher Pierce (Pen. Code, §§ 211/212.5, subd. (c)/213, subd. (a)(2) [Count 8]); attempted second degree robbery of Ernest Zuniga (Pen. Code, §§ 664-211/212.5, subd. (c)/213, subd. (a)(2) [Count 9]); attempted second degree robbery of Sean Gillette (Pen. Code, §§ 664- 211/212.5, subd. (c)/213, subd. (a)(2) [Count 10]); and second degree commercial burglary of Lamppost Pizza (Pen. Code, §§ 459- 460, subd.(b) {Count 11]). | _' On August15, 2000, Count 7 was amendedto allege attempted robbery (Pen. Code, §§ 664-211/212.5, subd. (c)/213, subd. (a)(2)). (9 CT 3070.) nnnenneeeneeeeneeeeeeNeaEEneOR meets Baud Meera = om aeahe The amended information alleged the robberies and attempted robberies (counts 2-3, & 5-10) were serious felonies within the meaning of Penal Code section 1192.7, subdivision (c)(1), and that Boyce and Willis personally used a firearm during the commission and attempted commission of the crimes (Pen. Code, §§ 12022.5, subd. (a), & 1192.7, subd. (c)(8)). Additionally, the information alleged Boyce sustained a prior serious or violent criminal conviction (Pen. Code, §§ 667, subds. (d) & (e)(1), & 1170.12, subds. (b) & (c)(1)), a prior serious criminal conviction (Pen. Code, §§ 667, subd. (a)(1), & 1192.7, subd.(c)), and failed to remain free from prison custody during the five years subsequent to serving a _ prison term (Pen. Code, § 667.5, subd. (b)). (7 CT 2098-2102.) On July 24, 2000,the trial court severed Willis’s case from Boyce’s. (4 PRT 999-115 — 999-118.) Boyce’strial by jury began on July 25, 2000. (9 CT 2899.) On August 22, 2000, the jury found Boyceguilty ofall counts, found true each special circumstanceallegations, and found Boyce personally used a firearm, specifically, a handgun, during commission of. the crimes.” (10 CT 3251-3275, 3354-3357.) The penalty phase commenced on August 28, 2000. (10 CT 3363.) On September7, 2000, the jury found the appropriate penalty to be death. (10 CT 3508, 3572.) | On September 29, 2000,the trial court heard and denied the automatic motion to modify the jury’s penalty verdict. (11 CT 3648-3652.) The court sentenced Boyce to death for the murder of Deputy York committed with special circumstances. The court stayed the determinate sentence of 34 years and four months, which was imposed for the remaining counts and ?Trial on the prior conviction allegations was bifurcated from the substantive chargesandallegations. (4 PRT 115.) The prosecution moved to dismiss the prior conviction allegations after the jury returned a verdict of death. (12 RT 4059-4060; 10 CT 3573.) ordered to be served consecutively to the death sentence because the court relied on the facts underlying these offenses to deny the Motion to Modify the Death Penalty. (11 CT 3653-3656.) This appeal is automatic. (Pen. Code, § 1239, subd. (b).) STATEMENT OF FACTS Guilt Phase A. Prosecution’s Case in Chief 1. Robbery/Murderat De Cut Salon In August, 1997, Deputies Shayne York and Jennifer Parish were Los Angeles County Sheriff's Deputies workingat the Peter Pitchess Honor Farm, East Facility, also known as “Wayside,” in Castaic. (4 RT 1804- 1806.) The deputies were engaged to be married the following spring. (4 RT 1804.) On August 14, 1997, they planned to go to Las Vegas to celebrate Deputy Parish’s birthday. (4 RT 1804-1805.) Before leaving, Deputy York went to an ATM machine and withdrew $200. (4 RT 1806.) The deputies ordered and ate pizza, and then went to Long Beach to drop off their dogs at Deputy Parish’s mother’s house. (4 RT 1807-1808.) The two then stopped in Buena Park at De Cut Hair Salon to havetheir hair done by Amy Parish, Deputy Parish’s sister. They arrived around 7:30 p.m. (4 RT 1808; 6 RT 2149.) Ms.Parish put highlighting foils in Deputy Parish’s hair and began cutting Deputy York’s hair. No otherclients or employees remainedin the salon. (4 RT 1808-1811.) Suddenly, Ms. Parish looked towards the front doorofthe salonwith a frightened expression on her face. (4 RT 1811, 1841.) At approximately 8:00 p.m., Appellant Boyce and Andre Willis, armed with guns, burst through the front doors. (4 RT 1812; 6 RT 2150.) Willis, wearing green pants and a black sweatshirt pulled up over his head, pointed agun at Ms.Parish’s stomach. (4 RT 1812-1813; 6 RT 2150- 2151.) The gun was a semi-automatic and appearedto be either a Glock or aaa rT nine-millimeter. The gun he was holding resembled the gun depictedin the photographin prosecution’s exhibit number 2. (4 RT 1814-1815, 1843- 1848, 1891-1893; 6 RT 2151, 2216.) Willis yelled, “Get the fuck on the ground, whiteys.” (4 RT 1815, 1854; 6 RT 2151, 2204.) Thethree got on the ground, face down with their armsspread out in prone position. Because of the close quarters, Deputy York’s head crossed the lower part of DeputyParish’s body, and Ms.Parish’s feet were by Deputy Parish’s head. (4 RT 1816-1818, 1891; 6 RT 2152-2153, 2174.) - Boyce and Willis asked for the location of the moneyandthecashregister. (4 RT 1818-1819, 1855-1856; 6 RT 2155.) As Willis remained near the victims, Boyce looked for the cash register. (4 RT 1819-1821, 1853.) Boyce yelled, “Where’s the fucking money? Where’s the fucking money?” (4. RT 1821.) Ms. Parish explained there was no cashregister, as the moneywas kept in a drawerup front. (4 RT 1856; 6 RT 2155.) When Boyce found the cash drawer, he becameagitated because there was only about $11 in it. (4 RT 1823, 1857-1858, 1861; 6 RT 2157-2158.) Ms. Parish gave Boyce approximately $30 or $40 that she hadin her pocket. (4 RT 1824; 6 RT 2156.) Boyce approached Deputy York andsaid, “Whereis the money? Give meyour wallet.” Deputy York politely complied. (4 RT 1824-1825, 1863; 6 RT 2158.) After taking the wallet, Boyce demandedmore money. Deputy York said he had a hundreddollars in his frontpocket, and offered Boyce his watch. Boyce took the money, but not the watch. (4 RT 1826- 1827; 6 RT 2158.) Boyce asked Deputy York for his ATM card andhis PIN number. Deputy York apparently did not understand what Boyce was asking, becausehehesitated. (4 RT 1827-1828, 1867-1869; 6 RT 2158.) Boyce kicked Deputy York several times during this encounter. (4 RT © 1837-1838, 1860, 1869.) Boyce then found Deputy York’s badge, which was in his left back pocket. (4 RT 1824, 1828-1830.) Boyce said, “Well, well, well. Look what we have here, a mother fucking pig. Whitey is a mother fucking pig.” (4 RT 1828-1829; 6 RT 2158.) Boyce asked, “Where the fuck you workat, whitey?” Deputy York responded, “Wayside.” Boyce then asked whereat - Wayside and Yorkreplied, “East Facility.” (4 RT 1830; 6 RT 2159.) Boyce asked Deputy York if he “liked to treat Nigger Crips like shit in jail?” (4 RT 1830, 1875; 6 RT 2159.) Deputy York said “No,sir.” Boyce said, “No, I know youlike to treat us Nigger Crips like shit in jail.” (4 RT 1830, 1866-1867, 1875, 1878-1879; 6 RT 2159.) Deputy York said, “No, sir.” (4 RT 1831; 6 RT 2159.) Boyce again asked Deputy York for his PIN number. Deputy Yorkstill hesitated. Deputy Parish said, “the PIN number, the access code to your ATM card.” Deputy York then said “5455.” (4 RT 1831, 1870, 1892-1893.) After Deputy York gave Boyce his PIN number, Boycesaid “Fuck the whitey,” and shot York in the back of his head. (4 RT 1831, 1870;5 RT 2021-2024, 2037-2045; 6 RT 2238-2241, 2243, 2285-2286; 13 JQCT 3808- 3809, 3819-3820, 3825, 3857.) Deputy York collapsed on Deputy Parish; she could feel the blood pouring on her legs. (4 RT 1831.) Attrial, Ms. Parish said she could smell the blood and hear it pumpingout of Deputy York’s body. (6 RT 2160.) Boyce said something to the effect that he had always wantedto kill a “cop.” (4 RT 1832, 1877-1878; 6RT 2160.) | Willis approached Deputy Parish andlifted her by the back of her pants while searching her pockets. Her pockets were empty. Willis then tugged at Deputy Parish’s engagementring but it would not comeoff. Willis toldher to take off thering and he walked over to her purse. (4 RT 1832, 1862-1864.) Deputy Parish took off her engagement ring and gaveit to Willis. (4 RT 1833, 1866.) Willis also took her watch. (4 RT 1833.) While going through Deputy Parish’s purse, Willis foundher badge and said, ““We’ve got another mother fucking pig in here.” Willis asked “whois the other fucking white pig?” (4 RT 1834, 1883; 6 RT 2162.) Deputy Parish raised her hand andsaid she was. Willis said, “Don’t worry,bitch. We’re not going to shoot you. You’re a fucking woman.” (4 RT 1835, 1884; 6 RT 2162.) Willis found Deputy Parish’s ATM card and asked for the PIN number. Deputy Parish could not remember her PIN numberbut told Willis it was written on the sleeve envelope containing the card. (4 RT 1835-1836, 1879-1882.) Willis told Deputy Parish and Ms.Parish notto get up, and he and Boyceleft the salon. (4 RT 1837, 1884; 6 RT 2163.) Deputy Parish carefully slid out from under Deputy York and wentto the front doorto see if she could see anything, but she could not. (4 RT 1838, 1884-1885, 1890.) Deputy Parish returned to Deputy York, who wasbleeding from his nose, ears, mouth, and neck. She held him like a baby in her arms and talked to him: (4 RT 1839.) Ms. Parish called 911, and then hung up so she could lock the door. (6 RT 2165-2166.) Deputy Parish then grabbed the phone and called 911. (4 RT 1839; 6 RT 2165-2166.) Deputy Parish told the 911 operator that her husband hadbeenshotin the head and was on the floor ofthe hair salon. (JQCT? 3769-3771.) Tape-recordings of Ms. Parish’s and Deputy Parish’s 911 calls were played for the jury at.trial. (4 RT 1839-1840; 6 RT 2166-2167; Exh. Nos. 11 & 71.) Deputy York was takento the hospital where doctors performed a craniotomy to try to reduce the pressure on his brain and prolonghislife. (5 RT 2049.) The bullet impactedthe left side, internal portionofhis skull. (5 RT 2050.) When the bullet struck the back of Deputy York’s skull, it caused a numberoffragments to break into several pieces inside the skull. ayQCTrefers to the Clerk’s Transcript containing the juror questionnaires. (5 RT 2050-2051.) Deputy York died due to swelling of the brain and a fractured skullas a result of the gunshot woundto his head. (5 RT 2054.) The pathologist who performed the autopsy on Deputy York opinedthat the pathwayofthe bullet was consistent with the shooter standing over Deputy York, who waslying on the ground,andfiring straight down into the skull. (5 RT 2053-2054.) 2. Robberies at Lamppost Pizza Within two hours of Deputy.York being fatally shot, at approximately 10:00 p.m. that same evening, fellow rugby players Edward Tharp, Sean | Gillette, Mark Cook, and Christopher Pierce were at a Lamppost Pizza in Yorba Linda. (5 RT 2055-2056, 2089, 2122-2123.) Rodney Tamparong, one ofthe pizza parlor’s managers, went out the back door to empty the trash. (5 RT 2056-2057, 2137-2138.) Tamparong saw a white convertible Ford Mustang backedinto a parkingstall. Willis and Boyce were standing next toit. (5 RT 2138-2139.) Willis called Tamparong overto the car, but, feeling that something was not right, Tamparong back-pedaledinto the restaurant saying, “Whoa, whoa.” (5 RT 2139-2140, 2123, 2144.) Willis grabbed the door and forced his way inside. (5 RT 2058-2059, 2139-2140.) Willis, who hadhis hands up undermeath his shirt, ordered everyoneto the ground. Willis said something like, “Get on the floor, mother fuckers.” (5 RT 2059-2060, 2070-2073, 2097-2098, 2118, 2123, 2140.) Willis was wearing dark clothing, dark shoes or boots, and gloves. (5 RT 2061, 2073- 2075, 2088.) | Willis went to the door and let in Boyce, who was wearing a dark sweatshirt with a tee-shirt underneath,light blue pants, and dirty white sneakers. (5 RT 2060-2061, 2063, 2072, 2118-2119, 2123-2124.) Boyce pulled a semi-automatic gunout andtold everyone to empty their pockets. (5 RT 2063, 2065-2066, 2090-2091, 2113-2114.) Willis asked whothe manager-was. Ernest Zuniga stood up and said that he was. (5 RT 2077, 2116-2117, 2125, 2141.) Zuniga took Willis to the back where the cash registers and safe were located, and gave Willis the money, which was approximately $60.00 from the cash register and $483 from the safe. (5 RT 2066, 2078, 2125-2127, 2132-2133, 2142.) Boyce ordered the men on the groundto take out their wallets and cash, and turn their pockets inside out. (5 RT 2092, 2107.) Cook took his moneyoutofhis pants pockets and put it down the front of his pants. Cook then turned his pockets inside out to makeit look like he did not have any money. (5 RT 2092.) Boyce kicked Cook while Cook was laying on the ground. (5 RT 2091.) Boyce kicked Tharp nearhis crotch and took his wallet. (5 RT 2067- - 2068, 2080.) Tharp had about $80 in his wallet. (5 RT 2069.) Boyce approachedGillette and put the gun in his face. Gillette did not have a wallet but he had a nylon briefcase containing paperwork. (5 RT 2109.) Boycetold Gillette to open the briefcase and Boyce shoved the gun into Gillette’s face. (5 RT 2109-21 10, 2121.) Boyce kicked Pierce as he was surrendering his wallet. (5 RT 2092-2093.) Boyce asked the men on the ground of any of them were “cops.” Cooksaid, “no, we are teachers.” (5 RT 2069, 2082-2083, 2093, 2102, 2107, 2125, 2142.) Tamparong, who was a park rangerat the time, hid his wallet underneath a table so Boyce would not think he wasa police officer. (5 RT 2142.) Boyce asked Cook what he taught and Cook said,“special ed.” (5 RT 2093, 2107.) Boyce said that he was in “special ed” class. (5 RT 2093, 2095, 2102-2103, 2107.) When Willis returned, he asked Tamparongfor his wallet, and Tamparongsaid he did not havea wallet. - Willis searched Tamparong and then movedon. (5 RT 2084, 2143.) Boyce told the men notto look at them and not to move. Boyce and Willis then escaped through the back door. (5 RT 2096.) | 10 Soe heee svninabetiARned Shortly after the robberies at the pizza restaurant, police drove Tharp and Tamparongto a location on the 91 Freeway. Tharp identified Willis as the first robber and Boyce as the second robber. Tamparongidentified Willis as the first robber. (5 RT 2061-2062; 2143-2144.) Tharp correctly identified Willis in both a photographic line-up andin live line-upat the Orange County Jail on December 1997. (5 RT 2062.) Tharp also correctly identified Boyce as the gunmanin live line-up in December 1997 and. again at trial ina photograph. (5 RT 2064-2065.) In December 1997, Zuniga attendeda live line-up at the Orange County jail. Atfirst, Zuniga thought he could not identify anyone even though he hada feeling one of the menin the line-up was Willis. Zunigalater called the investigator and said he believed Willis was the person in the numberfiveposition.* (5 RT 2130-2131.) 3. The Arrest and Investigation Less than three hours after Deputy York wasfatally shot, at approximately 10:40 p.m. that same evening, Fullerton Police Officer Nathan Marple heard a broadcast to look for a white convertible Ford Mustang. (4 RT 1894.) Officer Marple saw a white convertible Mustang driving northbound on Harbor Boulevard, over the 91 freeway, and then entering the westbound 91 freeway. (4 RT 1895.) Officer Marple followed the Mustang and after back-up units arrived, made a felony car stop between the Valley View and Knott Avenue exits. (4 RT 1895-1896; 5 RT 1965.) Willis was driving the Mustang and Boycewas the sole passenger. (4 RT 1897.) The officers detained and eventually arrested Willis and Boyce. (4 RT 1902-1903.) No weapons were found during a cursory search ofthe car. (4 RT 1903-1907, 1918-1919.) * Willis was in position numberfivein the live line-up. (6 RT 2164; Exh. No.61.) 11 RRSENEISTPEOTRRESST: CIEaE aug GoNg Officers drove Ms.Parish to a field line-up on the 91 freeway, and told her she could not identify the person based on clothing. (6 RT 2163.) She thought she recognized one of the two men she was shown becauseof his clothing and shoes,but she did not see muchofhis face in the salon because he was wearing a knit cap and sweatshirt pulled tightly around his face, so she was unableto positively identify him.’ (6 RT 2163.) In December1997, Ms.Parish correctly identified Willis as being in position numberfive in a live line-up. (6 RT 2164.) Attrial, Ms. Parish correctly identified Willis in a photographicline-up, andalso correctly identified Boycein a photographic line-up. (6 RT 2164-2165.)° BuenaPark Police Officer Michael Quam searched Boyce and Willis at the Buena Parkjail. (5 RT 1995.) Officer Quam found the following during his search of Willis: $557 in currencyin his left sock; a Guess watch in his left back pants pocket; $48.40 in currency andcoin, and a pagerin his right front pants pocket; $51, all singles, in his right sock; and $100.26 in currency and coin, and somekeysinhis left front pants pocket. (5 RT 1996-1997.) During the search of Boyce, OfficerQuam found: $200in his left sock; a blue bandana and a.right-handed green glovein his right back ° Attrial, Ms. Parish said Exhibit No. 35 appeared to be the same type of knit cap, and Exhibit No. 32 appearedto be the same type of sweatshirt. (6 RT 2163-2164.) ° Orange County District Attorney Investigator Douglas Kennedy interviewed Ms.Parish two daysafter the shooting. Ms.Parish initially said she could not identify the shooter. (6 RT 2177-2179.) She then told Investigator Kennedy that she thought the shooter wasthe first person through the door, or Willis. (6 RT 2180-2183, 2191.) On May 5, 1998, Ms.Parish told Investigator Kennedy that based on the positions ofthe robbers, she believed the second person, or Boyce, had to have been the one whopulled the trigger. (6 RT 2177, 2218-2220.) Attrial, Ms. Parish explained her thoughts were all over the place in the days after the shooting, she was exhausted,distraught, and more concerned with Deputy York’s condition than her interview with Kennedy. (6 RT 2185, 2218.) 12 eatEAPRNEREEron ate MenEs tae wee Saget a emit ateaienneaeeis | BERS EMRRARREIRR ea thege REEMA eg VBERAeiNRnetRIOEREeA pants pocket; a green left-handed glove and a brown right-handed glove in his left back pants pocket; $53.25 in coin andcurrency,lipstick and cigarettes in a plastic bag in his right front pants pocket; and keys in his right shoe. (5 RT 1998-1999.) The total amount ofmoney found on Willis was $756.66, and $253.25 was the total amount ofmoney found on Boyce’s person. (5 RT 2000-2001.) During a search of the Mustang,officers found a black hooded sweatshirt, a baseball cap with the words “Del Amo,” gray knit gloves, a black knit watch cap, and a small Phillips screwdriver. (5S RT 1972-1975, 1986.) Deputy York’s Ford Citibank card, and Deputy Parish’s Kaiser Permanente Federal Credit Union card and Wells Fargo ATM card were found underneath the center console in the Mustang. (4 RT 1835, 1837; 5 RT 1975-1977, 1986-1988.) Two handguns were found underneath the speakers on the passenger side. (5 RT 1977-1978, 1988-1990.) One of the handguns was loaded and had the hammercockedback,readyto fire (Exh. No. 2), and the other gun had rounds in the cylinder with one expended round lined up with the barrel (Exh. No. 37). (5 RT 1978-1981, 1992- ~ 1993.) Deputy York’s ATM card, a business card from De Cut Hair Salon with “5545” written on it, and an address book were foundinsidethe lining ofthe Mustang’s trunk. (4 RT 1924-1925, 1928-1929.) Deputy Parish’s engagement ring was never found. (4 RT 1833, 1926, 1931; 5 RT 1969, 2002.) | | The parties stipulated that Deputy York’s ATM card was used to withdraw $200 from a California Federal bank in Yorba Linda at 9:41 p.m. on August 14, 1997. (6 RT 2285.) Theparties also stipulated that Boyce _ wasincarcerated at Pitchess Detention Facility, also known as Wayside, from October 1, 1994 through December7, 1994, (6 RT 2285-2286.) 13 ttnaneORENeNOEAeyAN acsseet Further, there is no record that Willis was ever incarcerated at Wayside. (6 RT 2286.) Boyce’s fingerprint was found on the left side, above the grip and below the hammerarea, of the same Colt revolver that had one expended roundlined up with the barrel (Exh. No. 37). (5 RT 2021-2024.) Projectile fragments found in Deputy York’s brain matched that same Colt revolver (Exhibit Number 37) recovered from the Mustang that Boyce and Willis were in when stoppedby police within hours of the shooting of Deputy York. (5 RT 2037-2045.) A latent fingerprint found on Deputy York’s Ford Citibank Visa matched Willis. (5 RT 2025-2027, 2029-2030.) Latent fingerprints recovered from the cash drawer did not match either Boyce or Willis. (5 RT 2019-2020, 2029.) On August 15, 1997, Willis and Boyce were placed together in an interview room at Buena Park Police Department. Investigator Cecil Reece listened and watched a covert conversation between the two. (6 RT 2291- 2293.) The conversation was recorded. Because the recording wasdifficult to understand at times, Investigator Reece took the tapesto a lab to try to remove someofthe background noise. The modified or enhanced tape was played for the jury. (6 RT 2294-2297, 2301-2302 [Exhibits 79 (transcript) & 80 (audiotape)].) Investigator Reece observed that during the conversation, Willis and Boyce whispered to each other at times, and looked around the room and underthe table as if they were looking for something. (6 RT2293.) Willis told Boyce they hadpictures of “take out.” (13 JQCT 3882.) Boyce asked Willis what they were saying they did, and Willis said they robbed salon andpizza place, and one person was a “peep out,” and they had a gun for the robbery. (13 JOCT 3883.) Willis said they will fight the 14 robbery and attempted murder. Boycereplies, ““We should have blown up (inaudible).” (13 JOCT 3884.) Willis said, whenthe mother fuckers comeandtalk,I’1l put it on a third person. Somebodythey don’t need to (inaudible)I ain’t going down for no mother fucking watch coward. I’Il put it on a third person. (13 JQCT 3884.) Boyce asked whothethird person was. Willis replied, “He (inaudible). I already know,I already know,I already know you’re shit is clean and who wasthe driver.” (13 JQCT 3884.) Boyce asked Willis if he was going to make up a story and Willis said, I already know whowasthe driver. I already know there was two people that went in. (Inaudible) whoop de whoop whoop (inaudible) the gun, gonna show who had, when they come back with the gun, who did the shooting, whoop, whoop, whoop. Uh ... damn. (13 JQCT 3884.) The conversation continued: — Boyce: What this crime is? (Inaudible) (Inaudible) I ain’t doing (inaudible) I sure ain’t doing it for no mother fuckin’ watch ~ coward. Willis: Both ofus. Willis: (Inaudible) watch coward. Attempted murder. (Inaudible) mother fuckin’ (inaudible). Think again. How do I know whatcrimeit is; you’re a real nigger. What I’m askin’ you, I’m gonnaride it out, man. Boyce: (Inaudible). Willis: I’m telling you this, I’m gonna ride it out, ok. But, in the end result in trial time (inaudible) both of us don’t need to go to hell for this shit. Boyce: Keep it down. Popo issittin’ right there. Man, two. strikes, that’s 25 anyway. We’retotally fucked. Willis: Huh? 15 Boyce: Man, we’retotally fucked. What do they care. The mother fucker’s lying and shit always seeing something. Probably arrested for a parole violation. Willis: Have to do, though. (Inaudible)trial . . . go to trial over this, you know what I’m saying? (Inaudible.) So, I mean how you feel? Just leave it just how it is, you know whatI’m saying, go one with the trial andall that shit, you know what I’m saying? — Boyce: I ain’t done shit. (Inaudible.) So far as we know (inaudible) goddamn witnesses (inaudible) what with that shit. Willis: (Inaudible) and they got the damn card,too. Boyce: Huh? Willis: The card, the card. Boyce: Oh, yeah. Willis: (Inaudible) ATM card (inaudible) ashtray on side (inaudible). (13 JOCT 3885-3886.) After a detective told Willis and Boyce they had five more minutes to talk, the conversation continued: Willis: You get what I’m saying? Now I’m just saying, Cuzz (inaudible) I don’t see no mother fuckin’ wayto get the hell out of this shit. You know whatI’m saying? { (Inaudible) I mean, you know (inaudible) both of us... you know whatI’m saying (inaudible). | Boyce: (Inaudible.) Oh man, they can’t proveit (inaudible). | ‘They can’t prove nothing. Willis: No. No. (Inaudible.) 16 Mf Boyce: They can’t prove a mother fuckin’ thing. It’s my word against they mother fuckin’ word. I still don’t see what’s going on. Boyce: They didn’t even tell me what I was cominginthis mother fucker for. Shit... Damn. Willis: I don’t know, Cuzz. (Inaudible) what I see in the end we might as well, fuckin’ I don’t care. You know both ofus ain’t closer to hell (inaudible) one mother fuckin’thing.. . Boyce: I’m gonnatry to fight this shit. § I don’t understand this shit?. You know? Willis: Yo, yo, yo mama, yo what are your feelings cuzz? I _ mean, being real. When weride this shit out as long as we can. Whenweseethis shit ain’t going away, you know. Don’ttakeit wrong, man. But whatI’m speaking is what’s on my mind. I’m not saying these people’s are (inaudible). I’m gonnaridethis all the way out, Cuzz. I’m gonnaseeif there’s any changes... they got evidence. Know what I’m saying? (Inaudible.) Cuzz, - you know what I’m saying? Gonnalet both ofus takethis attempt murder charge? Boyce: (Inaudible.) Willis: After we ride this shit out, you still ain’t gonna say anything. We both real niggers. I want to know yo... yo opinion, Cuzz. Boyce: (Inaudible) how can they putthis shit on somebody, though? Whothe nigga supposed to attempted murder anyway? . Willis: Some mother fucka... Boyce: Female, male, what? _ Willis: Some mother fuckin’ male, police. Boyce: Male police? What mother fucker that bold? I didn’t | killno police. ( Damn. . . 17 ceeeeene ecneeSNRE eeeet NNOATS EAE NRma Awe WE NEN ny ss SAREGatntateerdinteiy Willis: That’s what I’m saying (inaudible), you know what I'm saying? You know whatI’m saying? (Inaudible), Cuzz. If, if a ... § You know whatI’m saying? (Inaudible.) Boyce: What does that shit carry anyway? Willis: Attempted? Shit, I don’t know. (Inaudible.) I don’t know,I don’t know. Boyce: (Inaudible.) Willis: Nah, you know whatI’m saying,I’m trying to talk to you man. We mightnot get a chanceto talk in a while. You know whatI’m saying? I also know that, you know what I’m saying? How,nigger, if, how I would doit,how niggers,all niggers don’t doit like that. We’re true niggers, Cuzz. [ll comeat you real. In your. . in your headfull of lead, two mother fuckers. (Inaudible) you know that, you knowthatcold. Boyce: This shit’s all fucked up. They’re probably gonna separate us, huh? Willis: They might, I don’t know. I don’t even know. (13 JOCT 3888-3889.) Attrial, Investigator Reece explained that when Willis was talking aboutpictures of“take out,” Willis made a gesture with his hands,like pointing a gun. (6 RT 2298.) Willis made this same gesture whenhesaid “they have got pictures.” (6 RT 2299.) When Willis told Boyce “they got the damncard, too,” Willis made a gesture as if he was picking something up with his right index finger and thumb. (6 RT 2299.) Buena Park Police Officer Daniel Binyon, an African-American officer working gang detail, listened to the recording of the covert conversation between Willis and Boyce,andtestified regarding street slang used by African-American males. (6 RT 2263-2264.) Officer Binyon explained that “watch coward”is slang for correctional officer or custodial workers, “take out” refers to either 4 handgunorto literally take someone out, ie. hurt somebody, “peep out” meansto either see something ortelling 18 ‘ someoneto look at something, “popo”is slang for police officer, “whoop, dewhoop, whoop”is similar to et cetera, et cetera, and Crip gang members often call each other “cuz.” (6 RT 2264-2270.) On August 17, 1997, after being advised of and waiving his Miranda’ rights, Boyce spokewith Investigator Kennedy and BuenaPark Police Homicide Investigator Ruben Gomez. (6 RT 2224; 13 JQCT 3781-3782.) Anaudiotape of theinterview was playedfor the jury. (6 RT 2226-2227 [Exhibits 72 (transcript) & 74 (audiotape)].) At the beginning ofthe interview, Boyce claimed he was innocent and denied any knowledge ofthe pizza parlor robbery or any guns. (6 RT 2231, 2235; 13 JQCT 3782-3794.) Boyce said the money found on him when he was arrested was from gambling and selling marijuana. (13 JQCT 3797.) Boycethen said if he could smoke onecigarette, he would tell them what happened. (13 JOCT 3802.) Boycesaid he hadsplit personalities, he did not like the name Kevin Boyce, and that his name was Osiris. (13 JQCT 3804.) “I’m Osiris: Yup. I ain’t Kevin Boyce. That’s a white man’s name. My nameis Osiris X.” Boyce said that Osiris does not rob — “guess Osiris musta had too much, um,the devil juice or as alcohol, his drugs.” (13 JQCT 3805.) Boyce then said, “Yeah. I can’t tell ya exactly what happened. All I rememberis pow ya and I waslike, damn.” (13 JQCT 3805.) Boyce then gavehis versionsofthe events. Boyce said someonehadtold him the hair salon near Knott’s Berry Farm was an easy hit and had a safe with $7,000. (13 JQCT 3807, 3829, 3851.) Boyce asked Willis for a ride to the salon— Willis did not know about the robbery and did not go in the salon. (13 JQCT 3807-3808.) Boycesaid he walkedinto the hair salon and told everyoneto be quiet and ” Mirandav. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]. 19 “PEERASEEESE AlRMAEsae6 get on the floor. Boyce said he asked where the safe was, and wastold there was not a safe. (6 RT 2240-2241; 13 JQCT 3808-3809, 3819.) Boycesaid there were only two people in the hair salon: a male and a female. The male wassitting in a chair and quickly got to the ground. (6 RT 2242; 13 JQCT 3809-3810, 3834-3835, 3854.) Boyce drew a diagram indicating the placementofthe victims. (6 RT 2242-2243; 13 JQCT 3832- 3836.) Boyce said they gave him the moneyfrom their pockets. (13 JQCT 3809.) | Boycesaid he wentto the cash register and took about $13 from it. (13 JQCT 3819-3820, 3856-3857.) Boyce said he had a semi-automatic gun, nine-millimeter, that he was holdingin his left hand. (6 RT 2243; 13 JQCT 3810, 3825, 3828, 3859.) Boyce said he walkedby a chair and must have bumpedinto it with the gun becauseall he remembered was “pow ya” and the gun went off. (6 RT 2238-2241; 13 JOCT 3809, 3820, 3825, 3857.) Boyce said he picked up the shell casing andlater threw it away. (13 JOCT 3826, 3828, 3859-3860.) The female then started crying. Boyce said he took money from the female but no jewelry. (13 JQCT 3820.) Boyce described the female as having red or reddish brown hair and being heavyset.’ She gave him about $5 or $7 from herlittle black purse. (13 JQCT 3841, 3855.) Boycesaid he never saw a badge, and if he knew the male was a deputy sheriff, he “woulda been got up outta there,” and thought it was a set up. (13 JOCT 3809, 3838.) Boycesaid he did not take the male’s wallet. (13 JQCT 3829.) Boycealso said he did not take any ATM cards orcredit 8 During closing argument, defense counselnoted that Boyce “actually even describes [Amy Parish] as kind of a big boned woman, kind of reddish black hair.” (8 RT 2792.) 20° cards, and that he did not know how to work an ATM machine. (13 JQCT 3839-3840, 3869.) Boyce admitted committing the robberies at Lamppost Pizza. Boyce saw the pizza place when they were driving and told Willis to take him over there. (13 JQCT 3814.) Boyce said there were four people inside the Lamppost Pizza: two men and two women. Boyce walked in with a gun and told everyone to get down. (6 RT 2245; 13 JQCT 3815-3816, 3862.) Boycesaid he did not take any wallets during the robbery of the pizza parlor, only money. (6 RT 2245; 13 JOQCT 3816, 3866.) When Detective Kennedy told Boyce that some of the wallets were taken, Boyce replied, “Really, y’ali did notfind it in the car?” (13 JQCT 3816.) Boycesaid he - did not know anything about wallets being dumped somewhere. (13 JQCT 3816.) Boycesaid that no shots werefired at the pizza parlor — “Learned from the last mistake. So I kept myfingeroffthe trigger.” (13 JQCT 3817-3818.) | _ Boycesaid he did everything himself and Willis waited outside. Boycesaid Willis was lying if he said he was involved, and they should let - Willis go. (13 JOCT 3811-3812, 3818-3819.) Boyce also said Willis also did not have anything to do with the robbery ofthe pizza parlor. (6 RT 2239-2240, 2245-2246; 13 JOCT 3869.) — Boyce said he was in Wayside in 1994 but did not have anytrouble with the deputies there. (13 JQCT 3839.) On August 19, 1997, a trucker found a wallet near the truck stop by the Weir Canyon exit on the 91 freeway. The wallet contained cards belonging to Edward Tharp. (4 RT 1920-1921.) Other items belonging to Tharp were also found along the freeway. (4 RT 1921-1922: 5 RT 2015.) Mf MI! 21 B. Guilt Phase Defense BuenaPark Police Lieutenant Kenneth Coovert and Sergeant Robin Sells testified regarding the search efforts to locate evidence that might have been discarded from the robberies. (7 RT 2409-2410, 2415-2416.) Volunteers and police Explorers searched the areas near the Lamppost Pizza in Yorba Linda, the truck scales off the 91 freeway, the area of the 91 freeway near the Valley View exit, and the area around the ATM that was used to withdraw money from Deputy York’s account. (7 RT 2411-2414, 2416-2419.) No diamond engagementring or any other evidence was found. (7 RT 2414, 2419-2420.) The defense called Christopher Pierce, the fourth rugbyplayerat Lamppost Pizza, to testify regarding the robbery. Pierce confirmed he was at LamppostPizza the night of August 14, 1997, with Cook, Tharp, and Gillette. (7 RT 2421-2422.) Pierce saw Rodney Tamparonggo out the back doorto take out the trash, and return with his hands up saying “whoa, whoa.” (7 RT 2423.) Pierce said the first robber came through the door with his hand underhis jacket, like he was holding a gun. The robbertold the men to get on the ground. (7 RT 2425-2428.) The first robber wentout the back doorandtalked to someone. He then cameback inside and a second robberentered with a shiny metal semi-automatic pistol in his hand. (7 RT 2430-2432.) | Asthe first robber took the two employeesinto the back room,the ‘second robbertold the rugby players to empty their pockets. (7 RT 2430, 2432.) The second robber kicked him and kicked Cook. (7 RT 2432, 2436.) Pierce took his wallet out of his pocket and gaveit to the second tTobber. His wallet contained his driver’s license, military dependent identification, ATM card and about $8 cash. (7 RT 2432-2433.) The second robber took his wallet and putit in a clear plastic bag. No one ever 22 asked him for his PIN. (7 RT 2433, 2436-2437.) Pierce’s wallet was never recovered. (7 RT 2436-2437.) The second robber asked the rugby players why they wereat the pizza parlor so late. They explained theyhad been at rugbypractice. The robber asked what rugby was, and after Cooksaid it was like football, the robber asked if it was an English or European sport. (7 RT 2433-2434.) The | second robberthen asked if any of them were “cops.” Cook said no, they were teachers. After hearing that they taught “special ed,” the robber said that he was in “special ed.” (7 RT 2434.) The first robber came back and told the group to stay on the ground while the robbers left. (7 RT 2435.) Dr. Richard Leo, Ph.D.,testified as an expert regarding police interrogation practices. (7 RT 2444-2453.) Dr. Leo explained the different type of interrogation techniquesthat police are trained to use, and how certain techniques can foster or induce false statements or admissions. (7 RT 2457-2462.) Dr. Leo said the type of techniquesthat are likely to lead to unreliable statements include (1) ones that communicate differential or lenient treatment in exchange for an admission or confession,(2) confronting a suspect with what a co-defendantsaid, and (2) building rapport, and being friendly and sympathetic. (7 RT 2471 -2474.) Dr. Leo reviewed the 103-pagetranscript of Investigator Kennedy’s interrogation of Boycein order to look for certain techniques. (7 RT 2465.) Dr. Leosaid thatatfirst, the officers essentially told Boyce that he was caught. (7 RT 2466-2467.) Then the officers told Boyce that it might have been an accidental shooting, whichis a technique usedto makethe suspect feel less morally or legally culpable. Dr.Leo said this theme was used a few times duringthe interview. (7 RT 2467-2468.) Dr. Leo pointed outthe discussion regarding giving: Boyce a cigarette, and said that promisesor. offers such as a cigarette, can transform an interrogation into an inducement of some type. (7 RT 2476-2477.) Dr. Leo explained the post-admission 23 Sony20) esoCtraSeis cewanes Mt tan wu es the Fone ti phaseornarrative is important to look at when determiningthe reliability of the admission. This part ofthe interrogation demonstrates whether the narrative fits the crime scene facts andis corroborated by the evidence. (7 RT 2477-2480.) On cross-examination, Dr. Leo said he would expect a lower percentage of false confessions from suspects with a prior criminal record. (7 RT 2483-2484.) Dr. Leo acknowledged that a simplification of what he was sayingis that police have developed techniques to interrogate defendants and in responseto those techniques, some defendants tell the truth and others lie. (7 RT 2484-2485.) Dr. Kara Cross, Ph.D., a clinical psychologist specializing in neuropsychology, reviewed Boyce’s school records, met with Boyce for 10 hours, and administered six different neuropsychological tests on Boyce. (7 RT 2486-2495, 2504-2505.) Dr. Cross noted that when Boyce was seven years old, he was given the Slosson Intelligence Test and the result was an intelligence quotientor I.Q. of 114, placing Boyce in the above-average range. (7 RT 2506-2509.) Around the sametime, Boyce was also given the Peabody Picture Vocabulary Test and his I.Q. was 83, in the below average range. (7 RT 2509-2510.) Dr. Cross believed the difference in the results of these two tests showed that something was wrong with either the administration, scoring, or taking of the tests. (7 RT 2510-2511.) Dr. Crosssaid in the late 1970’s/early 1980’s, the Slosson Test was revised, and was administered to Boyce again. Boycescored an I.Q.of 80, in the below average range. (7 RT 2512.) Boycealso re-took the Peabodytest and scored arounda 70,in the borderline intellectual functioning range. (7 RT 2512-2513.) a | | Dr. Cross gaveBoyce six neuropsychological tests that tested for varying functions such as motor skills, sensory skills, and verbal skills. (7 RT 2518-2520.) Dr. Cross said the testing was delayed because Boyce 24 would get frustrated very easily and wouldeither divert attention off the testing or begantelling personalized anecdotal stories, i.e. go off on a tangent. (7 RT 2520-2522.) Thefirst test given to Boyce was the Stroop Test, which measures a person’s ability to focus on agiven task at hand while tuning out interferences. (7 RT 2523-2525.) Boyce’s score placed him in the bottom twopercentofthe population, indicating some type of organic brain impairment. She explained the test was indicating there was probably something wrong with Boyce’s frontal lobe ofhis brain. (7 RT 2527-2529.) The nexttest was the Wisconsin Card Sorting Test, which measures for skills that fall within the frontal lobe area such as judgment, problem- solving ability, logic, reasoning, and someverbal skills. (7 RT 2530-2533.) Boycescored in the bottom onepercent, indicating an inability to filter out interference in frontal lobe activity. This result was consistent with the | result on the Stroop Test. (7 RT.2533-2534.) On the Memory for Designs Test, which evaluates an individual’s visual spatial memory andfine motor coordination, Boyce scored a seven outof fifteen. This score indicated some type of impairment perhaps to motorskills, vision, or memory. (7 RT 2535-2537.) Dr. Cross administered the Wechsler Adult Intelligence Scale, or WAIS,which was one ofthe mostly widely used I.Q, tests. This test consists of 14 different subtests. (7 RT 2538-2539.) Boyce’s verbal 1.Q. was 80, and his Performance I.Q., which measuresvisual spatial ability, was 68. (7 RT 2540-2543.) Boyce’s Full Scale I.Q. which combinesall the scores together to show an overall global functioning was 69, in the extremely low or mentally retarded range. (7 RT 2544.) | The next part of the WAIS was the Verbal ComprehensionIndex, whichtests a person’s ability to take in auditory and visual information, processit, and communicate with words,i.e. understand what people have 25 to say andinterpret it using verbal skills. (7 RT 2544-2546.) Boyce’s score was86, in the below average range or bottom 16 percent. Dr. Cross found this to be a strength for Boyce. (7 RT 2546.) On the Performance Organization test, which measuresa person’s ability to visually see and organize the world according to patterns and images, Boyce scored 65, in the bottom one percent. (7 RT 2546-2547.) Boyce’s lowest score on the various tests administered by Dr. Cross wasthe score of 57 on the Working Memory Test, which tests immediate recall. (7 RT 2548-2549.) Lastly, on the Processing Speed Test, which tests how quickly a person can process information, Boyce wasin the bottom two percent, indicating Boyce’s working memory was impaired and he could not hold on to what was in his memory. (7 RT 2549-2550.) Dr. Cross found that based on the WAISresults, Boyce could take in information just as well as almost anyone, but the problem waswith his processing of the information and his understanding of what the information meant, (7 RT 2550-2551.) Boyce’s ability to use logic, to abstract, to have good problem-solvingskills, i.e. to take in information and hold it in his memory, work with it, come out with a logical conclusion and take appropriate action was impaired. (7 RT 2551-2552.) Dr. Cross found Boyce’srelative strengths were his verbal skills and ability to be a pool of ' general information. (7 RT 2552.) Dr. Cross also gave Boyce the Luria Nebraska NeuropsychTest, which localized the dysfunction in the brain. (7RT 2563-2572.) The test revealed that one of Boyce’s strengths was immediate memory. His expressiveor receptive speech wasa relative strength. (7 RT 2574-2575.) Boyce’s areas of impairment werehis intellectual processing,i.e. the logic, problem-solving, abstract, and reasoningabilities. Boyce’s reading, writing and arithmetic were significantly elevated, and his rhythm andtactical functions were elevated. (7 RT 2575-2576.) Boyce’s memory,his 26 bad neaRARERAREOngREIee expressive and receptive speech and motorskills were not impaired. (7 RT 2576-2577.) Dr. Cross opined that Boyce’s current scores were completely consistent with his scores from age seven through twelve years old. Dr. Crosstestified that consistency with prior test scores was oneofthe strongest measurements for malingering and here there was a 99.9 percent probability that Boyce is not malingering. (7 RT 2560-2561.) Dr. Cross gave Boycethe Reys Test for malingering, and the results did not indicate Boyce was malingering. (7 RT 2561-2563.) On cross-examination, Dr. Cross said Boyce wasable to know the difference between right and wrong, able to understand cause and effect, and able to makedecisions and choices. (7 RT 2578-2579.) Further, Boycehadthe ability to decide whetherornotto tell the truth, could decide whetheror not to kick somebody or rob somebody,and had the coordination to pull the trigger of a gun. (7 RT 2579.) Boycealso was able to communicate, and to read and write. (7 RT 2580.) Terrence Pascoe, a forensic document examiner, compared two samples of Boyce’s writing to the numbers“5455”that were written on the back of the De Cut Hair Salon businesscard. (7 RT 2608, 2615-2616.) Pascoe concludedthe writer of the samples was probably not the writer of the numbers “5455”on theback ofthe business card. (7 RT 2619-2620, 2622-2626.) On cross-examination, Pascoe acknowledged he was not. given writing samples from Willis. (7 RT 2633.) C. Prosecution Rebuttal The prosecution did not offer any rebuttal evidence during the guilt phase. ~ II! Mf Il 27 Penalty Phase A. Prosecution’s Case-in-Aggravation In addition to relying on the facts and circumstances surrounding the murder of Deputy York and the robberies at both the hair salon and the pizza parlor, the prosecution presented the following evidence in aggravation: DamaniGraytestified that it 1987, when he was twelve-years old, he was walking to a bus stop in Los Angeles when Boyce approached him and asked whatset or gang he was from. (9 RT 3064.) After Gray said he was not from any set or gang, Boyce asked Gray if he wanted to be from Rollin’ 60’s Crip gang. Gray said no, and Boyce grabbed him and punched him unconscious. (9 RT 3064-3065.) When Gray awoke,schoolpolice officers were arresting Boyce. (9 RT 3065-3066, 3086, 3089-3090, 3096.) A couple of months before the penalty phasetrial, Gray identified. Boyce in a photographic line-up as theperson whoattacked him. (9 RT 3065-3066.) On cross-examination, Gray acknowledgedthat in April 1995, he had an argument with his wife. Gray denied punchinghis wife in the face, grabbing herby the throat, or dragging her into the hall. Gray also said he did not threaten to kill her. (9. RT 3075-3077.) Gray said he called the police two dayslater to escort him to his hometo obtain some belongings. - (9 RT 3077.) On a different occasion, when his wife was throwing his belongings into a dumpster, hesaid “if you don’t stop throwing my stuff into the dumpster, I will kill you.” Gray testified that he meantit | figuratively, notliterally, and he did not mean it as a physical threat. (9 RT 3080-3081.) Gray also admitted that in 1994 he was arrested for callinga man andtelling him he had his dog and would return the dog for $500. (9 RT 3085-3086.) On redirect, Graysaid that none of this information changed the fact that Boyce beat him up when he was 12-years old. (9 RT 3086.) Gray also 28 said he wasstill married to the same woman,andthat they had some troubles five years prior and went to counseling. At the time oftrial, Gray wasa full-time student, worked full-time and was a father. (9 RT 3086- 3088.) Robert L. Jonestestified that in 1987, he was a Los Angeles Unified SchoolDistrict police officer, and he wrote a report regarding an incident between Boyce and Gray. Boyce wasarrested as the suspect and Gray was the victim. (9 RT 3089-3090.) Although the report wrongly attributed the statement to Gray, Jones recalled that Boyce said “he is going to fuck up the punkwhohad him arrested whenhegets outofjail.” (9 RT 3092- 3094.) The prosecution presented documentary evidence of two prior convictions for Boyce: a conviction for robbery on January 31, 1989, and a conviction for possession of a firearm by a felon on November 18, 1994. (9 - RT 3097-3098 [Exhibits 81 & 82].) | Brandon York, Deputy York’s youngerbrother, testified Deputy York was 17 monthsolder than him, and growing up they were just a grade apart in school. They did everything together from playing sports to being roommates in college. (9 RT 3099.) Brandon said hefelt like one ofthe biggest parts of his life was gone. He and Deputy York had alwaystalked about watching their children grow up together and taking family vacations together. (9 RT 3101.) Brandon did not have a weddingparty at his wedding because his best man wasnot there. (9 RT 3101.) Brandon said he missed just being able to talk to Deputy York and watching sports together. Deputy York washis best friend. (9 RT 3102.) Deputy Parrish testified that she and Deputy York were to be married in June 1998. (9 RT 3103.) She described their relationship as extraordinary — they were best friends and did everything together from working together to being at home together. (9 RT 3104.) Not a day goes 29 _ by without her thinking of Deputy York and whathe lookedlike that night and what was doneto him. She is reminded ofhim every day at work. She began wearing Deputy. York’s badge number, as a reminderthat he is not there to wear it. Deputy Parrish said how hardit was to go back homeand see Deputy York’s clothes and everything that said he should bethere, but in reality he never would be coming back home. (9 RT 3105.) Daniel York, Deputy York’sfather, a retired Los Angeles County Sheriff’s Deputy,testified that half of his life is gone. He explained he had a great relationship with both of his sons from managing their baseball teams growingup,to fishing and golfing together. Daniel had workedat the samefacility as Deputy Yorkand they knew lot of the same people. Deputy York often would call his father to talk about work and ask for his advice. (9 RT 3107-3108.) Daniel said he was on his wayto Salt Lake City for a family reunion whenhereceivedthe call about his son being shot and killed. (9 RT 3108.) Daniel said what he misses most is Deputy York’s smile and his love for others. (9 RT 3109.) Patricia Steele, Deputy York’s mother, testified regarding the void her son’s murderhasleft in her life. She was very close to Deputy York and his brother, and the boys were her whole life. (9 RT 3110.) She explained her son’s death was like a stone that drops and just spreads, and affects every aspect of yourlife and mostofthe time, she just feels like she is going through the motions day to day. (9 RT 3111-3112.) She will never be the same. Although her mind knows what happened, herheart does not wantto believe Deputy York is gone. (9 RT 3112-3113.) ‘B. Defense Case-in- Mitigation Boycepresented the testimony of Los Angeles Police Officer Maria Gholizadeh and of Los Angeles Police Lieutenant Andrew Monsue to impeach Gray’s testimony. Officer Gholizadehtestified regarding a 1995 spousal abuse complaint involving Gray where it was alleged that Gray 30 punchedhis wife in. the face, choked her, dragged her outside, and threatenedto kill her if she called the police. (9 RT 3124-3127.) Lieutenant Monsuetestified regarding a follow-up interview to the spousal abuse complaint. (9 RT 3198-3202.) In mitigation, Boyce presented numerous family members and friends whotestified regarding Boyce’s childhood and the impact his death would have on them. . . In 1969, in Grand Rapids, Michigan, Boyce’s mother, Vertis Boyce became pregnantwith Boyce. Cleveland Moore, Sr. was the father. (9 RT 3330-3334, 3347-3351.) Shortly after Boyce was born, Vertis moved to Louisiana to marry Terry Boyce, who was in the military. (9 RT 3142- 3143, 3334, 3350-3351.) Around age two, Boyce’s family moved to North Carolina. (9 RT 3144-3146, 3284-3285, 3288-3289.) There, Evelyn Collier Dixon, Boyce’s aunt, helped take care of Boyce when he was young. (11 RT 3591, 3606.) Boyce was an average baby, nothing unusual. He had some upper respiratory problems when he was three months old and a fever from a cold. Boyce also had someseizures during thattime. (11 RT 3606.) Dixon remembered only one incident where Boyce had a seizure and an incident when he hada high fever, and her mother, Boyce’s grandmother, took him to the doctor’ (11 RT 3610.) Dixon never saw Boyce’s skin blister from a fever. (11 RT 3614.) However, attrial, Vertis said Boyce had a fever that was so bad that Boyce’s skin peeled off. (9RT 3144-3146.) Vertis then said she did not rememberthis and did nottell the defense investigator that Boyce had a * Dixon said that when she and Vertis were young, their grandmother Hattie told them they did not go see a medical doctor for a medical problem because they had “Dr, Jesus.” Before Boyce was born, Vertis put down “Dr. Jesus” on a medical form. (11 RT 3607-3609.) 31 terrible fever where his skin blistered. Vertis then said she did remember Boyce’s skin peeling.’ (9 RT 3148-3149.) Orange County Public Defender Investigator John Depkotestified that Vertis told him the fever wasso severethatit caused Boyce’s skin to peel off. Vertis said she did not seek medical attention becauseat the time, she did not believe in medical doctors. (9 RT 3362-3363.) Vertis told Depko the fever occurred - around the same time Boyce was beginningtotalk, andafter the fever, Boycedid not talk for approximately two years. (9 RT 3363-3364.) Vertis saidthat when Boycestarted talking again aroundagefive, he spoke with a stutter"! (9 RT 3364.) : | Cleveland Mooretestified that he had kept in contact with Vertis and she never said anything about Boyce having seizures or a fever. (9 RT 3354.) | | | Dixon noticed Boyce had a speech impedimentbut was told he might be mimicking his uncle whostuttered. (11 RT 3615-3616.) Vertis told her Boyce was seeing a speech therapist in North Carolina. (11 RT 3616.) Dixon said when Boycestoppedstuttering, the tone of his voice was louder. (11 RT 3646.) Boycegot along well with Dixon’s son, Sean. Boyce was an average, sweet, quiet child and played with Sean. (11 RT 3613-3614.) Boyce also got along well with Dixon’s daughter, La Rhonda. La Rhonda had some '° Attrial, Vertis contradicted herself several times. According to several family membersandfriends, Vertis had a drinking problem which began around 1985. When Boyce was born, Vertis did not drink or smoke and was described as a “real churchygirl.” AfterVertis began drinking, she became moreaggressive andassertive. (9 RT 3271, 3296, 3327-3330, 3345-3346; 11 RT 3600-3602, 3647-3648.) - | Vertis testified that Boyce did not stop talking at age two and did not havetrouble talking from age two to four. Vertis said that Boyce’s uncle stuttered and Boyce would mimic him. Vertis said everyone stuttered where they grew up. (9 RT 3152-3153.) 32 mental infirmities and was slow in learning. (9 RT 3189; 11 RT 3593- 3595.) La Rhonda had someproblems developing speech when she was growing up andatthe timeoftrial, she lived in a group homefor developmentally retarded persons. (11 RT 3595-3596.) Boyce and La Rhonda were very close, favorite cousins. Boyce wasa quiet child but he would open up around La Rhonda. (11 RT 3596-3597.) Boyce would protect La Rhonda when other kids would ostracize her. Boyce made La Rhonda laugh. (9 RT 3189; 11 RT 3597-3598.) Brenda Boyce, Boyce’s aunt anda teacher, spent time with Boyce in _ North Carolina. Brendasaid Boyce wasquiet and played by himselfa lot, but wasa delightful, rambunctious young boy who did things other normal kids did at his age. (9RT 3289.) Brenda said Boyce was alwaysplayful, running around and getting into things like a two- or three-year old. (9 RT 3311-3312.) Boyce’s cousin, Tony Boyce,also spenta lot of time with Boycein North Carolina. Tony said Boyce was quiet and shy, kept to himselfbut was jovial. Boyce did not play with a lot of other children but instead stayed in the house with his family. (9 RT 3249-3257.) Tony did not notice that Boyce was slow or would stutter. (9 RT 3256-3257.) Trudith Bell, Boyce’s first grade teacher in North Carolina,testified that “educable-wise,” Boyce was one of her worst students. (9 RT 3204- 3209.) Bell said Boyce had special needs — he had repeated kindergarten onceand wasstill not preparedforfirst grade.'* (9 RT 3210.) Bell felt that 2 Attrial, Vertis testified that the school in North Carolina told her that Boyce would have to repeat kindergarten. According to Vertis, Boyce ‘did not repeat kindergarten and wassingled out because he was “black.” (9 RT 3166-3168.) Vertis denied that Boyce had any learning problems in school, and said he was alwayspolite. (9 RT 3169.) However, according (continued...) 33 Boyce was immature and very shy. Shesaid Boyce would getfrustrated and would not do his school work. (9 RT 3210-3211.) At that time, the school did not have the resources to deal with someonelike Boyce. (9 RT 3211-3212, 3214.) They had a special class for the educable mentally retarded, but Boyce did not qualify because his LQ. wasnot below 70. (9 RT 3212-3213.) Boyce was placed in a speech program becauseofhis stuttering. (9 RT 3213-3214, 3235.) Bell said she referred Boyce to the mental health clinic, and had a conference with Vertis and asked Vertis to take Boyce to the mental heath clinic. (9 RT 3223-3224.) Vertis wasalso having problems with Boyce at home. (9 RT 3225.) Accordingto Bell, Evelyn Edmisten, an education specialist and “employee ofmental health,” met with Boyce and his mother. (9 RT 3228-3229.) Bell had told Edmisten that Boyce had been - having problemsin the classroom,that he did not get along well with his peers, did not do his work, gave up too easily and got frustrated, and was a loner and an introvert. (9 RT 3229-3230.) Bell talked to Edmisten about Boyce’s need to repeat first grade, and Vertis being uncooperative. (9 RT (...continued) to defense Investigator Depko,Vertis said that she insisted Boyce repeat first grade. (9 RT 3365.) Brenda Boycesaid that Vertis told her she was concerned about Boyce repeating kindergarten because Vertis did not want him labeled as a slow learner or an exceptional child. (9 RT 3290-3291.) Brenda said it was better to keep him back when he was youngerand that Boyce should be tested. (9 RT 3291-3292.) Brenda thought that Vertis never really accepted the fact that Boyce had anylearning problems. Brenda said Boyce had obvious problems— he stuttered and mumbled his words and sometimesdid not use full sentences. (9 RT 3293-3295.) Brenda said Vertis moved the family to Californiaafter the school recommended Boyce repeatfirst grade. (9 RT 3294.) 34 3231-3232.) Boyce movedafter the end of the school year. (9 RT 3226- 3228.) Bell said besides the stuttering, Boyce had delayed language. (9 RT 3241.) Bell also said that Boyce had failed a vision test, but was not referred to an optometrist. Bell explained thata person needs to haveall of his sensesin order to be ableto learn. (9 RT 3242.) Boyce, his mother, andhis sister moved to Los Angeles in 1978. Terry Boyce stayed behind but joined the family a year later. (9 RT 3166, 3173.) During the year Terry Boyce stayed in North Carolina, he had a relationship with Hazeline Smith. (9 RT 3313-3314.) Ms. Smith met Boyce when Boyceandhis sister Michelle stayed with Terry during the summerof 1979. (9 RT 3315.) Boyce wasnot as outgoing as Michelle and he kept to himself. (9 RT 3319.) Boyce would stutter when hegot excited, and the other children would make fun ofhim. (9 RT 3321.) After Boyce warmed up to Smith, he was clingy and needy, and spent mostofthe time with her. (9 RT 3323-3324.) Smith thought Boyce was scared and did not have the confidence to speak out or play with the other children. (9 RT 3325.) At somepoint, Terry suddenly left with his children and moved back to California. (9 RT 3324.) In Los Angeles, Boyce, his mother andsister initially lived with _ Hattie Wilson, Vertis’s sister. Boyce was five or six years old. (11 RT 3820-3822.) Boyce was quiet, very respectful, and an obedient child. Boyce appeared to be shy andhestuttered a lot. (11 RT 3823.) Boyce was very close to his grandmotherNellie. (9 RT 3307; 11 RT 3824, 3837- - 3839.) After Terry Boyce movedto California in 1979, the family moved to Huntington Beach. (9 RT 3166, 3173.) Brenda visited the family in Huntington Beach andsaid that Boyce wasstill quiet but he played with other children. (9 RT 3303.) 35 The Boyce family then relocated to South Central Los Angeles. (9 RT 3165, 3175, 3177-3178.) The school referred Boyce to mental health services and special education. (9 RT 3175.) At some point, Boyce went to speech therapy for his stuttering. (9 RT 3176.) Boyce stopped going to special education classes around junior high school because he no longer wanted to do so. (9 RT 3183-3184.) When Boycewas sevenoreight years old, he attended the First Baptist Church in Los Angeles with his stepdad and grandmother. (10 RT 3566-3569.) Reverend Jeff Barbertestified that Boyce was very quiet at church — he was well-behaved and did not say too muchor play with the other children. Boyce attended church until he was a teenager. Reverend Barber thought Boyce was an unusualchild and perceived him as being sad. (10 RT 3570-3574.) When Boyce was 10 or 12 years old, Boyce’s aunt, Hattie Wilson, remembered him having a fever and going to the hospital. (11 RT 3826- 3827.) Wilson thought Boyce had someallergic reaction to Penicillin and was inacoma. (11 RT 3827.) Dixonalso recalled that when Boyce lived in California, he had another high fever. She thought Boyce was about nine years old. Vertis would not take him to the doctor because she did not have insurance. (11 RT 3619.) Dixon told Vertis to pretend Boyce was Sean, who did have medical coverage, so Vertis did so. (11 RT 3620.) Dixon said that Vertis did not like being told howto raise her children. Onetime their mother, Nellie, told Vertis that Boyce might need © some psychiatric care like La Rhonda andVertis said, “No, because | nothing is wrong with mychild.” Vertis had a pattern of this kind of denial. (11 RT 3633-3634.) One Easter, the children were given Easter poemsto read. La Rhonda, whohad been diagnosed educable retarded, could not learn hers. Boyce had trouble with his poem and Vertis got upset 36 with him because he could not concentrate on the speech. (11 RT 3635- 3636.) In 1983, when Boyce was 13-years old, he went to Michigan to meet his father, Cleveland Moore. Boycefirst spent about a week with Ann Moore and her family, and then spent about three weeks in Lansing, Michigan with his father, stepmother and family. (9 RT 3335-3336, 3354- 3356.) Boyce was quiet and “‘stand-offish,” but he talked to the other children. (9 RT 3340, 3357-3358.) It appeared Boycefit in at his father’s house and he played with the other boys. (9 RT 3341, 3360.) Boyce did not wantto leave when it was time for him to go home. (9 RT 3357-3358.) Boyce did notsee his father after this. (9 RT 3358.) That same year, Boyce’s cousin Tonyvisited him in Los Angeles. Boyce hadstarted wearing “saggy” pants but everything else seemed fine with Boyce andhis family. (9 RT 3257-3259.) A few years later,Tony lived with Boyce’s family for about one year and shared a room with _ Boyce. (9 RT 3261.) Boyce wasstill laid back and quiet, but was also polite and respectful towards others. Boycestill wore the “saggy”pants and told Tony they were living in a “Crip” neighborhood. (9 RT 3263.) Boyce said he was a memberofthe Rolling 60’s Crip gang, but that he was more involved in the neighborhoodthan the gang because it was something to do, like family. (9 RT 3263-3264, 3282.) Boyce’s Uncle Rusty was just a few years older than Boyceand in a gang. (9 RT 3266-3268.) Tony thought Boyce was moretalkative and open around Rusty. (9 RT 327 1) At that point, Boyce had been kicked out of a few high schools and did not go out very much. Tony said Boyce had a few male friends but he spent a lot of time talking. to females on the phone. (9 RT 3265.) At some point, Boyce quit goingto high school. (9 RT 3191.) Boyce’s parents supported him anddid not make him get a job. (9 RT 3191.) 37 CF ~ante ytONiECARORBEAAES Gm et Beet eg Runpata ehHyARDSeS ti Around 1986, Vertis talked to Ann Moore about her concern with ~ Boyce and gangs.'* Vertis said Boyce was misbehaving and admiring the wrong people. (9 RT 3345-3346.) Around this same time,Vertis also called Cleveland Moore and said she was concerned because Boyce had gotten involved in a gang in Los Angeles. Vertis asked if Boyce could move to Michigan. Mr. Mooresaidhe could if that was what he wanted to do. Moore never heard back from Vertis until some timelater to inform him he hada grandchildin California. (9 RT 3359.) | While the Boyce family wasliving in California, Boyce’s great- grandmotherHattie lived with them. Boyce helped take care of Hattie because she wasolder and sick. (9 RT 3179-3180; 11 RT 3638-3639.) In 1985 through 1987, Boyce helped wash Hattie’s clothes, helped herto the bathroom, and madesure she had food. (11 RT 3639, 3837-3839.) When Hattie died in 1994, Boyce was devastated. (11 RT 3641.) Boyce was a pallbearer at Hattie’s funeral. (11 RT 3839.) Seven months later, Boyce’s grandmother Nellie died. Dixon thought that Boyce was incarcerated when Nellie died. (11 RT 3642.) In 1985, Brenda Boyce saw Boycein Texas at wedding. Boyce was wearing baggy pants down to his hips. Boyce was cooperative and polite, and kept to himself. (9 RT 3304.) According to Boyce’s aunt, Hattie Wilson, it was around 1988 when Boyce was spendingtime with his Uncle Rusty, who was involvedin a gang. (11 RT 3825, 3828-3829.) Dixon alsotestified thatlater in life was when Boyce spent moretime with and lookedupto his uncles, Rusty, Greg, and Terry, and that was when Boycestarted wearing baggy pants. (11 RT 3624-3625.) 'S But, according to Vertis, Boyce spenta lot of time at home and did not go out “gang-banging.” (9 RT 3188.) 38 on tn ehaMRRORRM8 Hattie Wilson knew Boyce was drinking, and aroundthat time, Boyce was smoking PCP or “sherms.” (11 RT 3830-3832.) Wilson said sometimes Boyce would be “all spaced out” and she would see himjust staring or talking to trees or walls. (11 RT 3832.) Wilson said when Boyce | was underthe influence, he would refer to himself as “Osiris.” (11 RT 3833.) Aroundthis same time, Wilson wasaddicted to cocaine and Boyce discouraged her from using it. Boyce was 17 and 18 years old and he would say to her “Auntie Hattie Mae, get yourself together, I love you.” Boycealways loved her and respected her. (11 RT 3827-3828, 3834-3835.) Boycehas a daughter, Kevonna, whowassevenyearsold at the time of trial. Vertis said that Kevonnavisited Boycein jail, and the two loved each other and had a goodrelationship. (9 RT 3193-3194.) Chavon White is Kevonna’s mother. (11 RT 3718.) Chavon’s father, Walter White, testified that he met Boyce in 1992, when his daughter began dating Boyce. (11 RT 3708-3709.) When Chavon met Boyce, she hada five-year old daughter. (11 RT 371 1.) White said that Boyce was different from the other guys that Chavon dated. Boyce was polite and showedrespect for him, such as calling him “Mr. White.” (11 RT 3711-3712.) White said Boycealso treated Chavon very well. (11 RT 3715.) His only complaint about Boyce was that he would not get ajob. (11 RT 3716.) White said that Boyce was sort of quiet but he had a sense ofhumor. The two wouldtalk about sports. (11 RT 3716-3718.) When Boyce and Chavonwere together, Chavon would go to work and Boyce stayedhome and took care of the children during the day — he fed them, got them dressed, kept them clean, and changed diapers. (11 RT 3719-3721.) White . said Boyce was‘a goodfather and was kindandgentle to both girls. (11 RT 3722-3723.) 39 Vertis testified that she learned about “Osiris” after Boyce spent time in prison. Boycesaid this was his name,and Vertis thought it was normal. (9 RT 3192-3193, 3368.) Vertis said Boyce slept for two days after she first heard him call himself Osiris. She did not know if he had been doing drugsat the time. After that time, Boyce often referred to himself as Osiris. (9 RT 3368-3369.) On August 4, 1997, about ten days before the murder, Dixon was . visiting California and she saw Boyce. She said Boyce wasvery polite to her. (11 RT 3621.) Dixon did not notice anything unusual about Boyce, and said he was quiet and reserved, and was homea lot during the evenings. (11 RT 3622.) Dixon said Boyce watcheda lot of television and was a loner. (11 RT 3623.) Boyce’s family members testified regarding the impact a death “sentence would have upon them. Boyce’ s mother said her family would be hurt and empty, and she loved Boyce more than anybodyin the world. (9 RT 3195-3196.) Boyce’s cousin Tony said he was shocked bythe convictions because he never saw a “bad bone” in Boyce. Tony said Boyce’s death would hurt him. (9 RT 3280-3281.) Brenda Boyce said Boyce’s death would belike a light went out, one that was flickering for a long time but no one bothered to see why. (9 RT 3311-3312.) Boycealso presented several experts in mitigation. Alex Alonso testified regarding gangs in Los Angeles. Alonso had completedhis Master’s thesis on Territoriality Among African-American Street Gangs in Los Angeles, and was currently a doctoral student in human geographyat the University of Southern California. (10 RT 3376-3380.) Alonso explained that from 1972 to 1996, there was a rise in the numberofgang members and gang activity, and an expansion of gangterritory in Los Angeles. (10 RT 3394-3395.) Alonso was familiar with the Rollin’ 60’s, a 40 Crip gang associated with the Hyde Park area in South Central Los Angeles. (10 RT 3399-3400.) | Alonsosaid youth in a certain neighborhood will be aware ofthe gangs and learn the boundaries of the gang and where not to go. Some people are perceived.to be in a gang because of where they live, even if they are not actually part of the gang. (10 RT 3409.) Defense counsel showed Alonso mapsofwhere Boyce lived and went to school in South Central Los Angeles. Alonso described what gangscontrolled thoseareas. (10 RT 3416-3428.) For example, where Boycelived on 4th Avenue was controlled by the Rollin’s 60’s Crip gang. (10 RT 3421-3422.) The address that Damani Graytestified that he lived at was claimed by the Inglewood Blood Gang,a rival to the Rollin’ 60’s gang. (10 RT 3423.) On cross-examination, Alonso said he was associated with the Rollin’ 20 Bloods andstill lived in a neighborhood controlled by the Rollin’ 20 Bloods. (10 RT 3431-3433.) Alonso said if a gang memberis told to commit a robbery or murder, doing so would elevate his status within the gang. (10 RT 3435.) Alonso agreed that gang members generally do not get along with the police but said only a small minority of gang members would pull the trigger andkill a police officer. (10 RT 3437-3438.) Killing a police officer may imposea greater status for a gang member with other - gang members, even in prison. (10 RT 3438.) | Dr. James H. Johnson,Jr., a sociologist and professor of management, " sociology and public policy,testified regarding urban social geography and inner city youth. Dr. Johnson was an expert on the economic background of South Central Los Angeles from the 1950’s forward, and the phases of its development and effect on the sociology of an individual. (11 RT 3650- 3658.) Dr. Johnson had documented the experiences ofyoung African- American males in South Central Los Angeles. (11 RT 3659.) Dr. Johnson 4] ENaIONCTCNRIATRIMONR neegee Sena. ee ae, tena te tae Nak ty cate te Set? explained to the jury the history of the formation of gangs in the South Central area. (11 RT 3361-3664.) Dr. Johnsonsaid he reviewed and evaluated materials provided to him regarding Boyce. (11 RT 3667-3668.) Dr. Johnson explained the factors that determine whether a male African-American innercity youth in South Central will succeed or start committing crimes. First, children are less likely to succeed if their parents do not have the proper parenting skills and family management skills that are critical to successful child development. (11 RT 3669-3670.) Second, even when parents havegoodparentingskills, if the family lives in a community withoutwhatis called “mediating institutions,” or ways to encourage children to pursue mainstream avenues of social and economic mobility, and discourage dysfunctional and antisocial behaviors, this can lead to criminal behavior. This is common with children who often moved residences because they are notable to place down roots and build a networkofinstitutional resources and key individuals that can make a different in their lives. (11 RT 3670.) Dr. Johnson said there is a high correlation between residential moves and school moves= both are very disruptive. (11 RT 3670.) Dr. Johnson explained movingis disruptive for everyone, but in a family context, such as developing ties to places and people, those ties are broken when you moveandit is a disruptive process in and ofitself. (11 RT 3671.) Dr. Johnson saw this disruptive process with the residential and school moves that Boyce encountered. (11 RT 3671.) Between birth and age 17, Boyce moved residences 17 times and wentto 23 different schools through tenth grade. (11 RT 3671, 3699-3701.) Based on his studies, Dr. Johnson said that among students who entered high school in 1984 in predominantly African-American high schools, between 60 and 79 percent of those students did not graduate in 42 1988. (11 RT 3692.) Dr. Johns acknowledged that one reason for this was stricter standardized testing. (11 RT 3693.) Dr. Joseph Cervantes, a clinical psychologist and college professor, testified regarding child developmentissues and how they impact pathology or aberrant behavior. (11 RT 3724-3725.) Dr. Cervantes said developmental milestones, such as speech and language, fine and gross motorskills, intellectual functioning, theability to attach to others or interpersonal functioning are primary things to look at when evaluating a child. For example, if a child does not learn to speak until age four, five, or even six years old, that will set a certain stage for somedifficulties with developmental deviation and potentially mental retardation and learning ~ disabilities. Itis a signal that something could be amiss. (11 RT 3730.) Dr. Cervantes said if milestones are not met when they are supposedto be, it becomes difficult to catch up and can hinder growth in the future. (11 RT 3734-3735.) Ifa child is shy, quiet, withdrawn and a loner, this may be a sign of a milestone issue. (11 RT 3736.) Dr. Cervantessaid that most children begin talking around 10 to 12 months of age, and by twoyears are talking. (11 RT 3737.) Ifa child is slow to begin talking, for example, not until four or five years old, and if there is a speech or language problem,it may be a sign ofpossible retardation, a learning disability, or an aphasia,i.e. being able to see and understandbutnot being able to speak. (11 RT 3737-3738.) Dr. Cervantes explained that self-esteem is embeddedin the physical, emotional, mental, and overall psychological frameworkofa developing child. (11 RT 3738.) Dr. Cervantes said linking learning stability with brain damageis a controversial area. Some think that some neurological mis-wiring impacts a child’s ability to be able to learn. (11 RT 3740.) Seizures and febrile activity oftentimes can compromise the brain and be a precursorto later problems. Thereis a “strong relationship” between febrile seizures in 43 younginfants and children, and later problems with academic functioning, learning disabilities, and attention deficit disorder. (11 RT 3741.) Whena child’s developmentallife cycle is impacted with speech and language difficulty or impaired intellectual functioning, it may lead to negative experiencesin school suchas havinglittle or no friends, and an instable social life. (11 RT 3742-3743.) The child’s level of self-esteem will probably below,his social relationships will be minimalor nonexistent, _ andifthere is intellectual impairment,it will set the stage for how the child views himself in terms of future relationships, employmentandability to eam a living. (11 RT 3743.) A child with compromised speech and languageintellectual functioning and interpersonal functioning will have a skewed perception of | the world and will tend not to understand the rules ofhow to socialize. (11 RT 3745-3746.) This person will not be able to cognitively think through situations or react to situations with reason, so he mightstrike out or be aggressive. (11 RT 3746-3747.) . Dr. Samuel Benson, M.D., testifiedregarding his evaluation of Boyce. Dr. Benson’s specialty is psycho pharmacology, a sub-branch ofpsychiatry that uses medicationsto treat the very seriously ill. (10 RT 3439-3440.) The defense hired Dr. Benson to evaluate Boyce, andas part of the evaluation, Dr. Benson reviewed a neurological report from Dr. Kenneth Nudleman,a report from Dr. Kara Cross, Boyce’s school records from birth through junior high school, and some mental health records and __ psychiatrists’ reports. (10 RT 3447-3449, 3450, 3453, 3549-3550.) Dr. Bensonalso revieweddefense investigative reports prepared regarding interviews of several people whotestified for the defense in the penalty phase, including BrendaBoyce, Tony Boyce, Evelyn Collier, Trudith Bell, and Vertis and Terry Boyce. (10 RT 3450-3451, 3549-3550.) Dr. Benson unsuccessfully tried to meet with Vertis Boyce. (10 RT 3451-3452.) Dr. 44 Benson met with Boyceat the jail approximately six times, for an hour and a half each time. Boyce would not discuss the facts underlying the current crimes with Dr. Benson. (10 RT 3449, 3454, 3549-3550; 11 RT 3803- 3804.) Dr. Benson opined that Boyce had organic brain damage. He formed his opinion after reviewing Dr. Nudleman’s report based on a December 22, 1997, test performed on Boyce. Dr. Bensonsaid a diagnosis of organicity damage was consistent with Dr. Nudleman’sreport that the Q.E.E.G.(a type of electroencephalogram or E.E.G.) was abnormal. Dr. Benson’s opinion was also consistent with Dr. Cross’s report and diagnosis that Boyce has a moderate to high probability of organicity. (10 RT 3460- 3464.) Dr. Benson diagnosed Boyce based on the multiaxial system in the D.S.M. IV book. Axis I deals with the mental disorderofthe patient, i.e. whatis the psychiatric diagnosis particularly as related to the mental disease. It represents major psychiatric disorders, i.e. the inability to test and understandreality as it presents itself. Schizophrenia, organic brain disease, and depression would fall into this category. (10 RT 3469, 3479.) _Dr. Benson diagnosed Boyce with organic brain disease and ruled out delusional disorder. The specific diagnosis was psychosis N.O.S., ruling out delusional disorder and substance abuse disorder including alcohol, marijuana, and Phencyclidine (10 RT 3468-3470.) Under Axis II,Dr. Benson diagnosed Boyce with schizotypal disorder with borderline features and specific learning disabilities, secondary to organic brain disease since childhood. (10 RT 3468.) This axis looks at how well a person handlessituations understress, i.e. the defense mechanism orthe style aperson has when maximally stimulated. (10 RT 3470-3471 .) Dr. Benson diagnosed Boyce as schizotypal and opinedthat Boyce exhibits all of the factors that make a person schizotypal: ideas of 45 reference, odd beliefs, magical thinking, unusual perceptions, perceptual experiences, odd thinking and speech, suspiciousnessor paranoid ideation, inappropriate orrestricted affect, behavior or appearancethatis odd, eccentric or peculiar, lack of close friends and confidantes other than relatives, and excessive social anxiety. Only five out of these nine factors is neededto be diagnosed schizotypal. (10 RT 3471-3472, 3535-3539.) Dr. Benson’sfinding under the second part of Axis II was specific learning disability secondary to organic brain damage since childhood. The © learning disability finding was based on Boyce’s school records. (10 RT 3472.) Dr. Benson looked at Boyce’s history and risk factors to explain the organic brain damage, and the most reasonable explanation was that Boyce suffered periods of high fevers, starting at age two or three, and according to Vertis and Brenda Boyce,seizures, for which Boyce did not receive adequate medical care. (10 RT 3472-3475, 3562.) A severe fever can cause brain damage because a brain cannot take high temperatures. (10 RT 3516, 3518.) Dr. Benson saw that Boyce had a 105 degree fever from measles. (10 RT 3518.) Dr. Benson found no problems under Axis III, which deals with medical issues. (10 RT 3468, 3475, 3479.) Under Axis IV, psychological stressors, i.e. what kind ofstress the person has been under, Dr. Benson . noted that Boyce had been incarcerated, whichis very stressful. (10 RT 3468, 3475, 3479-3480.) Lastly, AxisV deals with the global assessment of functioning, or G.A.F., which is basically one’s ability to function generally. (10 RT 3468, 3475, 3480.) Boyce’s highest assessment of functioning in the past year was 40; the range for G.A.F.is from 10 to 100. (10 RT 3476.) A person with a G.A.F.ofless than 40 is not functioning very well, i.e. his level ofunderstanding of his environmentor how heis | getting along in the word is low. Dr. Benson opined that Boyce’s G.A.F. had not been higher than 40 in the past year. (10 RT 3477.) 46 The factors that influenced Dr. Benson’s diagnosis of organic psychosis were Boyce’s symptomsofauditory and visual!hallucinations, his delusions of grandeur and persecution, illogical and magical thinking, poorvision andlimited reality testing, combined with the neurological results from the E.E.G. (10 RT 3480.) Dr. Benson opined that when Boyce was a small child, he had difficulties doing well in school and getting along with his peers, so he had certain coping mechanisms,including hallucinations and delusions. (10 RT 3501-3503, 3507.) Boycetold Dr. Bensonthat hefirst heard voices that no one else could hear aroundagethree or four. (11 RT 3806.) Boycesaid he calledit the | powerof“special forces.” Dr. Benson explained that whena troubled brain becamedelusional, Boyce would hear an authoritarian voice that would explain things to him that were troubling. (11 RT 3792.) An example of this was that Boyce told Dr. Benson he believed his grandmother was somehow responsible for him going to prison. This appeared to be a way for Boyce to deal with his grandmother’s death. (11 RT 3792-3793.) There wasalso evidence that Boyce heard voices in kindergarten, a type of hallucination. (10 RT 3518.) Boyce said that when he wasin kindergarten, a voice told him to pick up a wooden cubeandthrowit at a girl. (11 RT 3793.) . Boyce described a psychotic episode he had when he was ten years old. Boyce slept with the lights on because he was afraid of demonsin the darkness. Boyce describeda particular trance-like state in which he headed or commanded God’s armyagainst evil. (11 RT 3793-3794.) Dr. Benson said that although Boyce was almost borderline mentally retarded, he found it unsurprising that he was ableto recall an event fromwhen he was 10 years old and anotherincident from kindergarten. (11 RT 3805-3806.) Dr. Bensonsaid it appeared Boyce was struggling with his identity and the reality he was facing, i.e. not being able to compete with others 47 academically and havingdifficulties at home. In this kind of situation, the brain, in order to function, will create a more desired mental state. The person may develop delusionsor false beliefs in order to function. (11 RT 3790.) Dr. Benson opinedthat the hallucinations and delusionsoriginated from organic brain damage. Boyce’s delusions and hallucinations progressively intensified since whenhefirst heard voices. (11 RT 3795- 3796.) Dr. Benson could not find any school records that mentioned.Boyce hearing voices. Dr. Bensonthinks he received this information from Boyce himself. (11 RT 3817-3818.) Dr. Bensonattributes the voices to Boyce’s organic brain damage, and believes Boyceis legitimately hearing voices and that Boyceis being truthful. (11 RT 3818.) ___ Dr. Benson revieweda report dated March 1998 regarding an interview with Michelle Boyce. Michelle said the Osiris phenomenon started in 1986, when Boyce returned from a stay at juvenile hall, and Boyceclaimed to bea reincarnation of the Egyptian God Osiris, Lord of the Dead. (11 RT 3788-3789.) Michelle said Boyce had an obsession with Osiris since that time and had not waveredfrom his belief since then. (11 RT 3789.) Dr. Benson also reviewed a report from an interview with Chavon White dated June 2000. Chavon said Boycereferred to Osiris as his king and told Chavon she washis queen. Shesaid the subject about Osiris just cameout of theblue one day. (11 RT 3790-3791.) Dr. Benson opinedthat “Osiris” was also a coping mechanism. (10 RT 3501-3503, 3507.) Dr. Benson noted that there was a connection between Boyce’s history of learning disability, stuttering and speech formation issues, and his organic brain damage or dysfunction. Specifically, there was a lack of speech between ages two and four, and after that Boyce had developmental issues, (10 RT 3484-3485.) School records from 1980, when Boyce was 48 nine-years old, said he was having difficulty with vocabulary and forming sentences. The records showed Boyce was withdrawn and immature, and had difficulty adjusting with his peers. (10 RT 3520-3523.) School records through 1983 consistently showed Boyce had low academic functioning, delayed speech development, vocabulary below normal, and reading and learning dysfunction. (10 RT 3524-3531.) Dr. Benson did not diagnose Boyce with antisocial personality. (10 RT 3480-3482, 3554-3558; 11 RT 3799.) Dr. Benson found that Boyce’s history and analysis are consistent with schizotypal personality and Boyce therefore doesnotfit the criteria for antisocial personality. | (10 RT 3482- 3483.) A diagnosisofantisocial personality isbased on a lifelong pattern of behavior, and most people have incidents that can fit into an antisocial episode, but that does not meanthe personhas anantisocial personality. (10 RT 3563.). Schizotypal is defined as something affecting a person’s reality testing, i.e. he or she does not perceive the world in the same way as the majority ofpeople do. (10 RT 3563-3564.) Episodes of psychosisis a characteristic of schizotypal personality. (10 RT 3565.) Dr. Benson determined Boyce wasnot an antisocial personality but was schizotypal because of Boyce’sstyle, i.e. generally trying to get along and be helpful, quiet and straight-forward, andnota trickster. People who are antisocial are deceitful, cheating, and havea lot of history of getting things by deceit. Boyce’s pattern showed he wasnotlike that, and there was nothing in the records showing that. (10 RT 3565.) Dr. Benson acknowledged that he was not saying that Boyce could not write, make a choice,or pull a trigger of a gun. (10 RT 3519-3520.) On cross-examination, Dr. Benson acknowledged that some of Boyce’s records includedpositive comments, such as stating that Boyce was a fine boy and was progressing with his reading. One record said that Boyce neededto work on self-control. Teachers stated that “I have enjoyed 49 having [Boyce] in myclass this year,” and that Boyce was “trying very hardin all areas. Great family. Parents very cooperative. Well liked. Too shy to appreciate it” (10 RT 3540-3541.) The records also said that Boyce disliked academicsbut liked the nonacademicactivities such as taking trumpet lessons and playing sports. A record from 1983 noted that Boyce was“still showing a quick temper,”but he excelled when he wasin his element, such as playing basketball. (10 RT 3541-3542, 3554.) Regarding Boyce’s medical history, a school record from 1980 said “besides 105-degree fever with measles, the medical history appears unremarkable.” This was the only mention in the records about a high fever and it did not say when the fever occurred. (10 RT 3542-3543.) People that were around Boyceas a babysaid he had fevers from infant to around three-years old, and Dr. Benson got the impression Boyce had suffered more than a single episode of a high fever. (10 RT 3543-3544.) Dr. Benson discussed Roseola, which is a childhood viral infection. Symptomsinclude a rash and high fever. (10 RT 3544-3547.) Boyce told Dr. Benson he began “gang-banging” whenhe was 14 or 15 years old. (11 RT 3801.) Boyce described the time he spentin prison, including going to Pelican Bayfor assaulting a police officer. The assault occurred when Boyce was in a different prison and assaulted a correctional officer. (11 RT 3801-3802.) Boyce did not say a voice told him to commit the assault or any other crimes. (11 RT 3802-3803.) | Mf Mf Mf 50 ARGUMENT I. BOYCE’S DEATH SENTENCE DOES NOT CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT Boyce contendshis death sentence must be vacated because the Eighth Amendmentprohibits imposition of the death penalty on people whoare mentally ill. (AOB 62-81.) Boyce’s contention is legally unsupportable. In Atkins v. Virginia (2002) 536 U.S. 304, 321 (122 S.Ct. 2242, 153 L.Ed.2d 335], the United States Supreme Court held that execution of a mentally retarded criminalis “cruel and unusual punishment” under the Eighth Amendment. Boycefirst claims the record contains “clear and convincing evidence”that he is mentally retarded as defined by Atkins. As Boyce acknowledges, however, post-conviction Atkins claims must be raised by a petition for writ of habeas corpus. (AOB62,citing Jn re Hawthorne (2005) 35 Cal.4th 40, 47; People v. Jackson (2009) 45 Cal.4th’ 662, 679-680.) Accordingly, Boyce expressly states that he is not raising his Atkins’ claim on direct appeal. (AOB 62.) Instead, Boyce contends that the evidence establishedheis “significantly brain damaged and severely mentally ill,” and, thus, the rationales underlying Atkins apply equally to the execution ofacriminal whois severely mentally ill. (AOB 62-78.) As Boyce acknowledges (AOB 70, fn. 37),state and federal courts have declined to extend the holdingin Atkins to mentalillness. (ShisInday v. Quartermain (5th Cir. 2007) 511 F.3d 514, 521; Mays v. State (Tex. 2010) 318 S.W.3d 368, 379-380; Diaz v. State (Fla. 2006) 945 So.2d 1 136, 1150-115 1; Commonwealth v. Baumhammers (Pa. 2008) 960 A.2d 59, 96-97; State v. Johnson (Mo. 2006) 207 S.W.3d 24, 51; Lewis v. State (Ga. 2005) 620 S.E.2d 778, 764; State v. Hancock (Ohio 2006) 840 N.E.2d 1032, 1059-1060.) There is no reason for this Court to conclude otherwise. Boycefails to show a national 31 legislative consensus has developed against the execution ofmentally ill individuals, as was the case in Atkins with mentally retarded individuals. (Atkins v. Virginia, supra, 536 U.S. at pp. 314-317.) The United States Supreme Court did not rely in Atkins, as does Boycehere, on the opinion of mental health organizations, law reviews, and a Gallup poll survey of Americans. (See AOB 72-78.) Given the absenceoflegislative consensus, there is no need to turn to the question ofwhether any such national consensusis supported by United States Supreme Court’s recognition of retribution and deterrence as justifications for the death penalty. (See Atkins v. Virginia, supra, 536 U.S.at p. 318 [“[O]ur death penalty jurisprudence provides two reasonsconsistent with the legislative consensusthat the mentally retarded should be categorically excluded from execution”].)'* . For these same reasons, Boyce’s death sentence does not violate his rights under the Due Process and Equal Protection Clauses of the state and federal Constitutions (see AOB 78-81). (See Carroll v. Secretary, Dept. of Corrections (11th Cir. 2009) 574 F.3d 1354, 1370; State v. Hancock, supra, 840 N.E.2d at pp. 1059-1060; see also Tiigner v. Texas (1940) 310 U.S. 141, 147 [60 S.Ct. 879, 84 L.Ed. 1124] [holding equal protection “does not ' In addition to being legally unsupportable, Boyce’s claim of cruel and unusual punishment predicated on mentalillness is factually unsupported. The evidence established that Boyce knewthe difference between right and wrong, he was able to make choices and knew the consequencesofhis actions. When he was younger, Boycecared for his ailing great-grandmother (9 RT 3179-3180; 11 RT 3638-3639, 3837-3839), andlater in life took care of his daughter (11 RT 3719-3721.) Boyce was characterized as a “good father.” (11 RT 3722-3723.) Just days before the murder, Boyce’s aunt was in town and she said Boyce wasvery polite to her, offering to pick up items from the store for her. She did not notice anything unusual about him. (11 RT 3621-3623.) Viewed as a whole, the evidence does notfactually support Boyce’s theory ofmentalillness. 52 require things whichare different in fact or opinion to be treated in law as though they were the same”’].) IJ. THE TRIAL COURT PROPERLY ADMITTED THE 911 TAPES Boyce contendsthetrial court denied him his state and federal constitutionalrights by erroneously admitting into evidence during the guilt phaseofhis trial audio recordings of the 911 calls made after Boyce and Willis fled the salon, arguing the tapes ofthe calls were irrelevant and unduly prejudicial. (AOB 82-90.) Boyce further claimsthetrial court erred in permitting the jury to consider the 911 tapes as circumstances of the crimes during the penalty phase. (AOB 90-96.) Thetrial court acted within its discretion in admitting the evidence. In any event, Boyce was not prejudiced by admission ofthe 911 calls during the guilt phaseofhistrial, nor consideration of as evidence ofthe circumstances of the murder of | Deputy York during the penalty phase. Two 911 calls were made from the salon after Boyce shot Deputy York,the first by Ms. Parish, the second by Deputy Parish. During their respective testimony, the prosecutor played Deputy Parish’s and Ms. Parish’s 911 calls. (4 RT 1839-1840 [Exhibit Nos. 10 (transcript) & 11 (tape)]; 6 RT 2166-2167 [Exhibit Nos. 71 (tape) & 70 (transcript)].) When Ms.Parishcalled 91 1, she stated there was a gunshot victim whowas shotin the back ofthe head but was still breathing. Ms. Parish said, “He’s shot in the backofthe head andthere’s stuff comingoutofhis nose.” The dispatcher told Ms. Parish to “lay him down.” Ms. Parish said, “Tt’s two black men. They each have a gun. . Please help him . . . They took the guns with them.” The dispatcher told Ms. Parish what to do for the bleeding. Ms.Parish told the dispatcher a police officer was there and _ asked where the ambulance was. The dispatcher told Ms. Parish the _ ambulance was on the way. Ms.Parish said, “Oh, God. (Background voices) Yes. Right here. All you need. Right here. All you need. I’m 53 trying sir.” The police officer told Ms. Parish to hang up andshe did so. (See Exh. No. 70; 13 JQCT 3773-3776.) In hercall to 911, Deputy Parish indicated they needed an ambulance and said, “My husband’s been shotin the head. I’m over here * * * so hurry yeah.” Deputy Parishtold the dispatcher hewas on thefloor, at a hair salon, and she gave the dispatcher the address. The transcript of the 911 call then noted that “due to an unknown technical difficulty with the tape this was the only information received by the recording device for this incident. It’s unknown whatthe trouble was and why there was no more | recorded.” (See Exh. No. 10; 13 JQCT 3769-3771.) Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is evidence “having any tendencyin reason to prove or disprove any disputed fact that is of consequenceto the determination ofthe action.” (Evid. Code, § 210.) The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive. (People v. Heard (2003) 31 Cal.4th 946, 973.) Any evidenceis admissible to support the credibility of a witnessifit will establish a fact that has a tendency in reasonto provethetruthfulness of the witness’s testimony. (People v. Jones (1984) 155 Cal.App.3d 153, 182; Evid. Code, § 780.) . ‘Onceit is determined that evidence is relevant, the provisions of Evidence Code section 352 become important. Evidence Codesection 352 provides: The court in its discretion may exclude evidenceif its probative value is substantially outweighed by the probability thatits admission will (a) necessitate undue consumption oftime or(b) create the substantial danger of undueprejudice, of confusing _ the issues, or of misleading the jury. Ml Ml 54 A trial court’s determination of whether evidence is admissible is subject to the abuse of discretion standard on review. (People v. Cox (2003) 30 Cal.4th 916, 955.) Where, . . .a discretionary poweris inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd mannerthat resulted in a manifest miscarriage ofjustice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) Before trial, Boyce filed a motion in limine to exclude admission of the 911 tapes. (7 CT 2374-2378.) Boyce claimed the tapes were not relevantin either the guilt or penalty phases, and were more prejudicial than probative. Boyce also summarily objected on constitutional grounds. (7 CT 2377-2378.) The prosecution opposed the motion in limine, asserting , the tape!’ was relevant to provide a description of the crimescene, prove elements of murder including malice, bolster the credibility of Deputy Parish and Ms.Parish, and rebut Boyce’s defense of accident. The prosecution further explained the tape was not moreprejudicial than probative, and should be admitted in both the guilt and penalty phases. (8 CT 2565-2568.) At a hearing on the motion, defense counsel added that there was nothing relevant in the 911 tapes, and even if there was somerelevancy,“it would be beyondprejudicial to play in front of anyjury other than appealing to the emotionsor affect of the tape. It adds nothing to any disputed issue in this case.” (3 PRT 810.) Defense counselalso said it was '? Boyce asserts his motion addressed both 911 tapes: from Deputy Parish and Ms. Parish. (AOB82,fn. 42.) The prosecutor’s written opposition appears to address only Deputy Parrish’s tape. (8 CT2565- 2568.) The hearings on the motion addressed both tapes. (4 PRT 999-22.) 35 the defense’s intent to concede any discrepancies or inconsistencies which mayarise as a result of the trauma involvedin the incident — “it was . massive andintense and that’s probably understating it.” (3 PRT 810.) Defense counsel further argued the prosecution “missed the mark”in the opposition papers becausethe tape did not actually show whatthe prosecution claimed it showed. (3 PRT 810-81 1.) The tapes did not “rebut malice,” nor show premeditation and deliberation. Further, the defense was not going to allege the shooting was an accident. (3 PRT 811.) Defense counsel said the tapes were “the most emotional thing I have ever heard in mylife,” and the prosecutor even admitted the tapes show “so much human -suffering.” (3 PRT 812.) Defense counsel also said that even if the tapes had somerelevance, the tapes did not need to be played. Rather, the transcript could be used as rebuttal. (3 PRT 812.) With respect to the penalty phase, defense counsel acknowledgedit wasa different standard than Evidence Codesection 352, but admissibility still had to be reviewedfor relevance, and for due process andfairness. (3 PRT 812-813.) The prosecutor explained the probative value of the tapes included that they described the crime scene and were valuable to show the truth and fresh recollection ofthe witnesses. (3 PRT 813-814.) The prosecutor rebutted defense counsel’s claim that the defense was not going say it was an accident, because Boyce’s own statementto the police was that the gun wentoff accidentally. (3 PRT 814-815.) Thetrial court said it had not received a copy of the tapes. The prosecutor indicated he would provide the tapes to the court and the matter wassubmitted. (3 PRT 815.) At a subsequenthearing,the trial courtsaid it had listened to the tapes andread the transcript. The court heard further argument. (4 PRT 999-22.) 56 Defense counsel again argued there wasno relevanceor probative value to the tapes: There is nothing here that advances, that I can see, or supports the theory of the prosecution in any way. Nothing that’s in dispute, nothing that we are saying did not happen. Ofcourse, you alwayshavethe prejudicial effect regarding tone ofvoice, things like that, and circumstancesright after the incident. | (4 PRT 999-25.) Defense counsel thennoted that the prosecution’s brief appeared to discuss things that werenot on the tape, such as descriptions of the individuals involved and the location of the wound. (4 PRT 999-25 — 999- 26.) The prosecutor respondedthat there had been some confusion over whatwas originally thought to be the transcript and tape, and what was a compilation of memory. The prosecutor said the tape was admissible as a spontaneousstatement. (4 PRT 999-26.) The tape showedthe complaining witnesses talking about two Black men and guns. The prosecution had to prove certain issues such as identity, and the tapes showed the witnesses’ credibility, i.e. the impression as it was fresh in their minds, contemporaneouswith the murder and robbery. (4 PRT 999-26 — 999-27.) Defense counsel said they were not disputing identity, and even if they were, the prosecution could proveit on the witness stand. It is the tape that’s the issue. They are not goingto be able to provethat, and he will admit that right now. That’s not a problem. So when weget to the tape, we are further removed and we have more prejudice and no value at all. Now,ifsomething happens on the witness stand where he can’t proveit or weplaceit in issue to some such a degreethat he needs,that I can’t do anything aboutthat - - and that’s acceptable, but that’s not where weareatatall. (4 PRT 999-27.) 57 The prosecutor responded that he does have to prove identity, and unless the prejudicial value substantially outweighs the probative value, he should be able to prove it the way he wants to prove it. The 911 tapes, spontaneousstatements,traditionally have been admissible on an issue in question that he has the burden ofproving. (4 PRT 999-27 — 999-28.) The court asked defense counselif there was an identification issue, and noted there appearedto be an issue as to whether there were one or two suspects in the salon when the shooting occurred. (4 PRT 999-28.) Defense counsel said he did not see an issue as to whether there were one or two peoplein the salon, and agreed they wereboth African-Americans. And that was what the tape addressed — two Blacks with guns. That was not in dispute. (4 PRT 999-28 — 999-29.) Defense counsel said there was not an identification issue “with respect to that at all.” (4 PRT 999-29.) Thetrial court overruled Boyce’s objections: Okay. I don’t know,I - - the court is going to overrule the objection. I do see somecredibility/believability issues. I see some classic 2.20 CALJIC issues that go to these people’s, what I am going to assumeis goingto beproffered testimony. AndI think the People havea right to put that on, put that evidence on out front, so to speak, as opposed to reserving and waiting and seeing whether you can rehabilitate somebody. The court has done the weighing process, and the probative value outweighs any prejudicial effect and they both shall be admissible pending further objection on other grounds,if there are any. (8 PRT 999-29.) A. The Trial Court Properly Admitted the 911 Audio Tapesin the Guilt Phase of Trial As the Two 911 Calls Were Relevant and Not Unduly Prejudicial Here,thetrial court properly exercisedits discretion by admitting the 911 tapes because the tapes of the calls by Ms. Parish and Deputy Parish were relevant andthere was no substantial danger ofundue prejudice. Even 58 though Deputy Parish and Ms.Parish were upset during their respective calls, the tape recordings servedto bolster their credibility as the two eyewitnesses to Deputy York’s shooting. The tapes werealso relevant to refute Boyce’s statementto Investigators Kennedy and Gomez,claiming that the gun wentoff accidentally. (6 RT 2238-2239, 2240-2241; 13 JQCT 3809, 3820, 3825, 3857.) Both Deputy Parish and Ms.Parish told the 911 operator that Deputy York wasshotin the back of the head. (13 JQCT 3769, 3773- 3774.) This was consistent with Ms. Parish’s testimony that Boyce was standing over Deputy York when he discovered the deputy’s badge and subsequently shot him. (6 RT 2158-2160, 2175-2176, 2218-2219.) It also corroborated the forensic pathologist’s testimony that the pathway ofthe bullet was consistent with the shooter standing over Deputy York andfiring straight down. (5 RT 2053-2054.) Further, evidence that Deputy York was shot “execution style” in the back of the head contradicted Boyce’s statement that he must have bumpeda chair andthe gun wentoff. (6 RT 2238-2239, 2240-2241; 13 JOCT 3809, 3820, 3825, 3857.) Thetapes also refuted the defense theory that a third person was involved and Boyce was merely a lookout. (See Defense Opening Statement, 4 RT 1782, 1786, 1794-1795, 1798.) Ms. Parishtold the 911 operator that there were “two Black men. They each have a gun.” Ms. Parish said, “They took the guns with them.” Ms. Parish also said something about a hood. There was no mention ofa third person standing outside. (13 JQCT 3774.) In People v. Roybal (1998) 19 Cal.4th 481, this Court upheld the admission in the guilt phaseof a 911 call made by a victim’s husband _ where he described the scene ofhis wife’s murder. In Roybal, the defense objected to the admission ofthe recording on hearsay and relevance grounds. (/d. at p. 515.) This Court found that the recording had probative 59 value in dispelling alternative theories made by the defense and in describing the scene of the crime. (Roybal, supra, at pp. 516-517.) The same general analysis applies here. Additionally, the probative value of the tapes was not substantially . outweighed by the danger of undueprejudice. Theprejudice referredto in Evidence Codesection 352 applies to evidence that uniquely tends to evoke an emotional bias against one party as an individual and has very little effect on the issues. (People v. Wright (1985) 39 Cal.3d 576, 585.) Section 352 is designed to avoid “undue”prejudice, which differs from the prejudice or damagecreated by relevant, probative evidence. Here, the crux of the defense wasto discredit Deputy Parish’s and Ms. Parish’s testimony placing Boyceinside the salon as the shooter. As stated above, the 911 recordings were relevant to support Deputy Parish’s and Ms. Parish’s credibility. Thus, the tapes addressedanissuein the case, i.e. whether the jury should credit the sisters’ testimony regarding their recollection of what occurred at the salon. The statements in the calls were descriptive and not highly inflammatory such as to evoke an emotional | bias. (See People v. Roybal, supra, 19 Cal.4th at p. 517.) Accordingly, the trial court reasonably determined the probative valueofthe calls outweighed the potential for prejudice. | B. The Trial Court Properly Permitted the Jury to Consider the 911 Tapes During the Penalty Phase as Circumstances of the Crime under Factor (a) Boyce also contendsthe trial court erred in permitting the jury to consider the 911 calls during the penalty phaseofthe trial. (AOB 90-91.) Having properly admittedthe tapes of the 911 calls in the guilt phase, the trial court did noterr in allowing the jury to consider that evidence as part of its penalty determination. 60 During the penalty phase, the trial court properly told the jury it could consider evidence from the guilt phase, including the 911 tapes, in making the penalty determination. Aspart of the penalty phase instructions, the trial court told the jury,“[iJn determining which penalty is to be imposed on the defendant, you shall considerall the evidence which has been received during any part ofthe trial of this case.” (CALJIC No.8.85; 12 RT 4039; 10 CT 3442.) This was proper because factor (a) of Penal Code section 190.3 allows the jury to consider the circumstancesof the crime during the penalty phase. A trial court’s discretion to exclude circumstances-of-the-crime evidence as unduly prejudicial is more circumscribedin the penalty phase than at the guilt phase. (People v. Box (2000) 23 Cal.4th 1153, 1201.) Accordingly, even assumingerror in admitting the tapes in the guilt phase, it does not follow that the jury would have been precluded from considering the tapes in the penalty phase. To the extent the 911 calls evidenced the pain and suffering ofBoyce’s victims, it would be relevantto the penalty determination. (People v. Smith (2005) 35 Cal.4th 334, 364, citing People v. Wrest (1992) 3 Cal.4th 1088, 1107-1108.) Evidence may be excluded underthe due process clause or Evidence Codesection 352if it is ‘unduly inflammatory’ {citation], but that language refers to an extremesituation. Evidencerelating to the suffering of the victim and prosecutorial commenton that suffering are appropriate in death penalty cases. (People v. Smith, supra, 35 Cal.4th at p. 364, citing Wrest, supra, 3 Cal.4th - at pp. 1107-1108.) In People v. Hawthorne (2009) 46 Cal.4th 67, this Court upheld admission of a 911 tape as relevant victim impact evidence during the penalty phase. There, oneofthe victims, a 16-year-oldgirl, called 911 and said two men hadjust entered her house and shot both her and her mother 61 in the back of the head. (Hawthorne, supra, at p. 101.) The girl described the assailants to the 911 operator. (/bid.) After a friend arrived and took overthe call, the girl could be heard screaming in the background whenshe discovered her injured mother. (Jbid.) The prosecution played the tape during the victim’s testimony and again during rebuttal argument. (/bid.) The Hawthorne Court found, [T]he 911 tape clearly showed the immediate impact and harm caused by defendant’s criminal conduct on the surviving victim and was relevant becauseit ‘could provide legitimate reasons to swaythe jury to. . . impose the ultimate sanction.’ [Citations.] The 911 tape here wasrelevant underfactor(a) of section 190.3. [Citations.] (Id. at p. 102.) Thetrial court did not err in allowing the jury to consider the 911 tapes that were played during the guilt phase as circumstancesofthe crime during the penalty phase in order to show the impact on Deputy Parish and Ms.Parish of having been robbed and witnessing Deputy York being shot to death. The tapes were undeniably relevant to the jury’s penalty phase determination. There was no undue emphasis on the tapes. The prosecutor did not refer to the tapes in closing argument and the court simply told the jury it could considerall guilt phase evidence when makingthe penalty determination, which necessarily included the 911 tapes. Accordingly, the trial court did not abuseits discretion by allowing the jury to consider the 911 tapes during the penalty phase. C. Admission of the 911 Tapes Did Not Deny Boyce Due Process , Boycecontends that admission of the 911 tapes was adenial of due process that rendered his trial fundamentally unfair. (AOB 93-94.) Since, as explained above,thetrial court properly admitted the recording of the 62 911 calls understate law in the guilt phase, the jury’s consideration ofthe tapes in the guilt and penalty phasesoftrial did not renderhis trial fundamentally unfair so as to offend due process. “[T]he admission of evidence . . . results in a due processviolation only if it makesthetrial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439.) Here, there were clearly “permissible inferences the jury [could have] draw/[n] from the evidence.” (See People v. Albarran (2007) 149 Cal.App.4th 214, 229-230.) As noted above, Deputy Parish’s and Ms. Parish’s testimony was consistentwith their statements during the 911 calls. (4 RT 1812-1813, 1818, 1831, 1843, 1890; 6 RT 2150-2151, 2158- 2160, 2175-2176, 2195, 2199-2200, 2218-2219.) Accordingly, any claim that introduction of the tapes rendered Boyce’strial fundamentally unfair should be rejected. (See People v. Roybal, supra, 19 Cal.4th at p. 517, fn. 10.) D. Even Assuming Error, Boyce was Not Prejudiced by the Admission of the 911 Tapes Evenifthe trial court erred in admitting the 911 tapes, Boyce was not prejudiced. trial court’s erroneous admission of evidence pursuant to Evidence Code section 352 constitutestrial error, and as such is subject to. the harmlesserror standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836, which requires the People to demonstrate it is not _ reasonably probable that the defendant would have enjoyed a more favorable outcomeabéentthetrial court’s error in admitting the evidencein question. Considering the evidence against Boyce,it is not reasonably probable he would have enjoyed a different outcomeif only the court had excluded the audio tapes of the two 911 calls made after he shot Deputy York. The evidenceattrial established Boyce targeted the De Cut Salon because he believedit contained a safe with several thousanddollars. (13 63 INEaeameESRSETOPE meeaterTDMihi tainr 9 ipneanietHeeReDer JQCT 3807, 3829, 3851.) At approximately 8:00 pm that night, Boyce and Willis, wearing sweatshirts with hoods and caps, burst through the doors of the salon, armed with guns. (4 RT 1812-1813; 6 RT 2150-2151.) Boyce and Willis ordered Deputy York, Deputy Parish, and Ms. Parish to the ground and began searching for money. (4 RT 1814-1815, 1818-1821, 1843-1848, 1853-1856, 1891-1893; 6 RT 2151, 2155, 2216.) Deputy Parish couldtell that Willis was walking back and forth in a space near her and the other victims, while Boyce was looking for acash register or cash drawer. (4 RT 1820-1823, 1853, 1856-1858, 1860-1861.) Boyce became upset after finding only about $11 in the cash drawer, so he asked each individual for money. (4 RT 1824-1828, 1863, 1867-1869; 6 RT 2156, 2158.) . The evidence further established Boyce wasthe robber standing over Deputy York, demanding his money, ATM card, and PIN number. When Boyce shot Deputy York, Deputy Parish knew Willis was next to her and was not the shooter. (4 RT 1820-1829, 1831, 1853, 1870, 1875, 1892- 1893.) Ms. Parish told Investigator Kennedythat based on the positioning of the robbers, she also believed Boyce wasthe shooter. (6 RT 2177, 2218- 2220.) WhenBoyce found out Deputy York worked at Wayside, Boyce askedifhe “liked to treat Nigger Cripslike shit in jail.” (4 RT 1830, 1866- 1867, 1875-1876, 1878-1879; 6 RT 2159.) The parties stipulated that Boyce spent time in Wayside and Willis did not. (6 RT 2285-2286.) There was also evidence that Boyce was a Crip. (6 RT 2264-2270.) After Boyce shot Deputy York,he said he had always wantedto kill a “cop.” (4 RT 1832, 1877-1878; 6 RT 2160.) The murder weapon was found in Willis’s car after Willis and Boyce werearrested. (5 RT 2037-2045.) Deputy Parish and Ms.Parishidentified the other gun found in Willis’s car as the weapon used by Willis. (4RT 64 1814-1815, 1845-1848; 5 RT 1977-1981, 1988-1993; 6 RT 2151, 2195- 2199, 2216; Exhibit No. 2.) Boyce’s fingerprint was found on the murder weapon. (5 RT 2021-2024.) Deputy York’scredit card and Deputy Parish’s ATM card were found underneath the center console in Willis’s car. (4 RT 1835, 1837; 5 RT 1975-1977, 1986-1988.) A business card from the salon with the PIN for York’s ATM card wasfoundin the trunk of Willis’s car. (4 RT 1924-1925, 1928-1929.) Two hundred dollars was found in Boyce’s sock. (5 RT 1998-1999.) Deputy York had approximately $200 when he wentto the salon. (4 RT 1807; 6 RT 2285.) Attrial, Ms. Parish identified Boyce and Willis in photographic lineups. (6 RT 2164-2165.) | ‘During his interview with Investigator Kennedy, Boyce admitted being in the salon and shooting Deputy York. (13 JOQCT 3805, 3807-3810, 3819-3820, 3825, 3834-3835,.3854, 3857; 6 RT 2238-2243.) The covert tape between Willis and Boyce corroboratedcertain things such asthe police finding the guns and the ATM card, and the fact Boyce shota police officer. (13 JOCT 3882, 3885-3886; 6 RT 2264-2270, 2298-2299.) Lastly, evidence of the robberiesat LamppostPizza further | established Boyce killed Deputy York. Boyce did not dispute he was involved in the Lamppost Pizza robberies. (13 JQCT 3814.) Tharp identified Boyce as one of the robbers. (5 RT 2064-2065.) Aswith the salon, Boyceand Willis were the only two involved in the crimes. Similar language wasused at both crime scenes. (4 RT 1815, 1854; 5 RT 2059- 2060, 2070-2073, 2092, 2097-2098, 2107, 2118, 2123, 2140; 6 RT 2151, | 2204.) Boyce asked the victims if any of them were “cops.” (5 RT 2069, 2082-2083, 2093, 2102, 2107, 2125, 2142; 7 RT 2434.) Boyce kicked someofthe victims duringthe LamppostPizza robberies, as he did Deputy York. (4 RT 1837-1838, 1860, 1869; 5 RT 2067-2068, 2080, 2091-2093; 7 RT 2432, 2436.) Boyce made derogatory comments towards “whites”at 65 - oS FeewreincnytaySteAAEMdats nicheateniAPAaNBaryLT: in ERR wn hee ek tenn ne ay Wes dence ata tiger MO both the salon and the pizza parlor. (4 RT 1815, 1828-1831, 1854, 1870; 5 RT 2091; 6 RT 2151, 2158-2160, 2204.) ' | Accordingly, there was overwhelming evidence that Boyce was the shooter. Moreover, the prosecutor did not refer to the tapes in closing argument. Thus, absent admission of the 911 tapes, it is not reasonably probable the jury would have reached a result more favorable to Boyce. II. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH CALJIC NO. 2.52, REGARDING FLIGHT INDICATING CONSCIOUSNESS OF GUILT Boyce contendsthat the trial court erred whenit instructed the jury | regarding flight indicating consciousness of guilt (CALJIC No. 2.52), becausethe instruction was not supported by substantial evidence, and because it unduly favored the prosecution, was “argumentative and unnecessary,” should not be given when identity was conceded, and allowed an impermissible inference concerning Boyce’s guilt. (AOB 97- 104.) Boyce’s claims are without merit. Thetrial court properly instructed. the jury with CALJIC No. 2.52 as substantial evidence supported the instruction. Moreover, this Court has repeatedly rejected Boyce’s general challenges to CALJIC No. 2.52 (and other similar instructions regarding consciousnessof guilt), and Boyce has offered no reason for this Court to reconsider itsprior decisionsin the instant case. Finally, assumingthetrial court erred, Boycehasfailed to establish that he was prejudiced as a result of the trial court instructing the jury with CALJIC No.2.52. During a discussion of the applicable instructionsin the guilt phase, the trial court was reading through the CALJIC numbersofthe instructions that it intended to give when Boyce objected to CALJIC No. 2.52, regarding flight after crime demonstrating consciousnessofguilt. (7 RT 2640.) Defense counsel argued, They went and did another crime. I'm notsurethat's flight. They obviously fled from the crime,but I don't think that's what 66 aropmmmNkSentence Mebane tnipngeh ee is intended. Wait a minute. One second. § I don't think it's applicable. We don't thinkit's applicable. I don't know what theory. (7 RT 2640.) The prosecutorsaid the fact Boyce and Willis committed another crime did not negate flight. The point was that they left the scene and did not really go anywhereat first; they ended up at the pizza parlor with some stops in between. They then fled from the.scene of the robberies at Lamppost Pizza and were caught driving down the 91 freeway. Flight simply meansthey do notstick around and own upto the crime. (7 RT 2640-2641.) Defense counsel disagreed and said every crime then has ' flight unless the perpetrators are caught at the location. Defense counsel did not believe that wasthe typeof flight contemplated by the Legislature. “Flight would be a chase on the 91 freeway, somethingto that effect. That’s not what’s occurring. Nothing is occurring except doing a crime and then doing another crime.” (7 RT 2641.) Defense counsel said that the Use Note to CALJIC No. 2.52 said an arrest at a later date and location different from the location of the crime was not sufficient to warrant giving the flight instruction. (7 RT 2641.) Thetrial court said evidence offlight was admissible and relevant as relating to consciousness of guilt. (7 RT 2641.) The prosecutor agreed and said that was why flight was admissible — leaving the sceneofthe crime shows someguilty mind, i.e. knowing they did something wrong,and that is why they leave andact like they did nothing wrong. Flight was only relevantif it showed that. (7 RT 2641-2642.) Defense counsel disagreed and said there would be flight in every case where the defendant wasnotarrested at the scene of the crime. He said flight only occurred when a defendant led police on a chase or got out of a car when being pulled over and ran away — that wasreflective of 67 consciousnessof guilt. He argued the instruction only covered acts over and above the commission ofthe crime and leaving the scene. (7RT 2642.) The prosecutor respondedthat the instruction contemplates someone who commits a crimeandtheninstead ofcalling the police or rendering aid, i.e. an act showing a non-guilty state of mind, the person leaves the scene, showing a guilty state of mind. (7 RT 2642-2643.) The - trial court took the issue under submission. (7 RT 2643.) Later, thetrial court overruled defense counsel’s objection and said it would give the flight instruction. (8 RT 2657.) Thetrial court subsequently instructed the jury with CALJIC No. 2.52, as follows: The flight of a person immediately after the commission of a crime, or after he is accused ofa crime,is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by youin light ofall the other proved facts in deciding whether a defendantis guilty or not guilty. The weight to which this circumstanceis entitled is a matter for you to decide. (8 RT 2875; 9 CT 3105.) There wasnoinstructional error. An instruction on flight is properly given if the jury could reasonably infer that a defendant's flight reflects consciousness of guilt and that flight was to avoid being arrested. (People v. Smithey (1999) 20 Cal.4th 936, 982; People v. Roybal, supra, 19 Cal.4th at p. 517; People v. Visciotti (1992) 2 Cal.4th 1, 60; People v. Crandell (1988) 46 Cal.3d 833, 869.) Where evidence of a defendant's flight is relied uponas tending to show guilt, the instruction must be given. (Pen Code, § 1127c; People v. Mason (1991) 52 Cal. 3d 909, 943.) Boyce’sact of getting into Willis’s vehicle and driving away from the crime scene immediately after shooting Deputy York, without summoning help or rendering aid for Deputy York, demonstrates that he fled the scene in order to avoid arrest, and justifies the trial court’s act of instruction the 68 wrthpreatsinNRSNPOR jury with CALJIC No. 2.52. (People v. Jurado (2006) 38 Cal.4th 72, 126; People v. Turner (1990) 50 Cal.3d 668, 694-695; People v. Visciotti, supra, 2 Cal.4th at pp. 60-61; People v. Hoang (2006) 145 Cal.App.4th 264, 276- 277 [defendant’s act of leaving the scene of the crime quickly and in silence is sufficient to warrant giving of CALJIC No.2.52]; People v. Marchialette (1975) 45 Cal.App.3d 974, 981 [defendant’s act of leaving scene of the shooting hastily and without explanation or rendering aid warrants CALJIC No.2.52].) Boyce devotes the majority of his argumentto asserting that CALJIC No. 2.52 unduly favored the prosecution,is argumentative and unnecessary, - and allowsan irrational permissive inference about a defendant’s guilt. -(AOB 98-102:) As Boyce acknowledges, this Court has repeatedly rejected these precise challenges to CALJIC No. 2.52, and to other similar | instructions providing for permissive inferences. (People v. Brady (2010) 50 Cal.4th 547, 567; People v. Howard (2008)42 Cal.4th 1000, 1021; People v. Jurado, supra, 38 Cal.4that p. 125; People.v. Guerra (2006) 37 Cal.4th 1067, 1137; People v. Benavides (2005)35 Cal.4th 69, 100; People v. Hughes (2002) 27 Cal.4th 287, 348; People v. Nakahara (2003) 30 Cal.4th 705, 713; People v. Boyette (2002) 29 Cal.4th 381, 438-439; People v. Mendoza (2000) 24 Cal.4th 130, 179.) This court has also repeatedly rejected Boyce’s specific claim that consciousness:of guilt instructions permit irrational permissive inferences concerning a defendant’s mental state. (People v. Guerra, supra, 37 Cal.4th at p. 1137; People v. Nakahara, supra, 30 Cal.4th at p. 713; People v. Jackson (1996)13 Cal.4th 1164, 1222-1224; People v.Nicolaus (1991) 54 Cal.3d 551, 579; People v. Crandell, supra, 46 Cal.3d at p. 871.) While acknowledging that this Court has repeatedly rejected these claims, and Boyce asks this Court to reconsider its prior decisions. (AOB 98-99, 102.) However, Boyce has not 69 SASWIEPEMTASESoPaEIEIA BEATSHOH oe Bo ee = Bh pee poate shania teemtents 0 SataneEEGRINSNPEIAhe, provided this Court with any reason to do so. (See People v. Jurado, supra, 38 Cal.4th at p. 125.) Similarly, Boyce acknowledges this Court has repeatedly rejected his claim that the flight instruction should not be given when identity is concededbut asks the Court to reconsider the issue. (AOB 100-101.) Again, Boyce has not provided this Court with any reason to do so. (See People v. Thornton (2007) 41 Cal.4th 391, 438-439 [CALJIC Nos. 2.06 and 2.52 are proper when defendant “admits someorall ofthe charged conduct, merely disputing its criminal implications”]; People v. Moon (2005) 37 Cal.4th 1, 28 [instruction proper where defendant admitted shooting, and his theory was that he was guilty only of second degree murder]; People v. Smithey, supra, 20 Cal.4th at p. 983 [“According to defendant, CALJIC No. 2.52 should be given only whenthe identity of the perpetratoris disputed, and not whenthe principal disputed issue is the defendant's mental state at the time of the crime.”]; People v. Turner, supra, 50 Cal.3d at p. 694 & fn. 10 [consciousness of guilt instruction proper where prosecution contended that defendant intended to murder androb victim and defendantclaimed unintentional killing in self-defense and deniedintentto steal].) Boyce complainsthat instructing the jury with CALJIC No. 2.52 lessened the burden of proof. (AOB 104.) Boyce has forfeited his claim because he failed to preserve the issue by objecting on those grounds below. (People v. Hillhouse (2002) 27 Cal.4th 469, 503.) Evenifhis claim had been properly preserved for appeal, he would notbe entitled to relief as his contention is without merit. The jury was instructed with CALJIC No. 2.90 (9 CT 3115) on the burden ofproof, andit is presumedthat the jury followed this instruction and therefore the People carried the burden of " proving Boyce’s guilt beyond a reasonable doubt. (See Shannonv. United States (1994) 512 U.S. 573, 585 [114 S.Ct. 2419, 129 L.Ed.2d 459].) . 70 Furthermore, given thatthetrial court properly instructed the jury with CALJIC No. 2.52, Boyce’s federal constitutional claims under the Sixth, Eighth, and Fourteenth Amendmentsalsofail. (See People v. Benavides, supra, 35 Cal.4th at p. 100.) Finally, even assumingthetrial court erred when it instructed the jury with CALJIC No. 2.52, any error was harmlessas it is not reasonably probable that Boyce would have received a more favorable outcomeattrial hadthetrial court refrained from giving the challengedinstruction. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Crandell, supra, 46 Cal.3d at p. 870 [error in instructing jury with CALJIC No. 2.52 evaluated under Watson].) Underthe challengedinstruction, the existence and significance of flight were left to the jury to determine,and the instruction expressly informedjurors that flight was not sufficient to establish guilt. (8 RT 2875; 9 CT 3105; see People v. Carter (2005) 36 Cal.4th 1114, 1182-1183 People v. Crandell, supra, 46 Cal.3d at p. 870.) Moreover, hadthe trial court refrained from giving the instruction, the jury wouldhavestill been aware of Boyce’s flight following the offense and been able to give this evidence the same weight during deliberations. (People v. Moon, supra, 37 Cal.4th at p. 28.) | The flight instruction “did not figure in the prosecutor’s closing _ argument” in any manner. (People v. Crandell, supra, 46 Cal.3d at p. 870; see 8 RT 2660-2741, 2840-2864.) As previously explained, the People introduced overwhelming evidence demonstrating Boyce’s mentalstate in killing Deputy York. (See ArgumentII, supra.) Had the trial court refrained from instructing the jury with CALJIC No. 2.52, the outcome of Boyce’strial would have been no different. (People v. Crandell, supra, 46 Cal.3d at p. 869.) Evenassessing prejudice under the morestringent standard articulated in Chapmanforerrors of constitutional magnitude, Boyce was not 71 SURANaHERAENAEiALERC NriHoRRREBERTameyeneoe S eetNRRRROCen prejudiced. It is clear beyond a reasonable doubt that the outcome would not have beendifferent if the trial court had not given CALJIC No. 2.52 in light of the overwhelmingnature of the evidence of Boyce’s guilt, and the prosecutor’s utter lack of reliance on Boyce’s flight during closing ‘argument. (Chapmanv. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) IV. SUFFICIENT EVIDENCE SUPPORTS THE SPECIAL FINDING THAT BOYCE KILLED A PEACE OFFICER IN RETALIATION FOR THE PERFORMANCE OFHIS DUTIES; THIS SPECIAL CIRCUMSTANCEIS NOT UNCONSTITUTIONALLY VAGUE Boyce contends the evidence wasinsufficient to establish he killed Deputy Yorkinretaliation for the performanceofhis official duties. Boyce also asserts the special circumstance ofkilling a peace officerin retaliation for the performanceofhis duties is unconstitutionally vague. (AOB 105- . 116.) Substantial evidence supports the special circumstancefinding. Moreover,the special circumstance ofkilling a peace officer in retaliation for the performanceofhis duties is not unconstitutionally vague. The law governing “sufficiency of the evidence”claimsis well established, and applies to special circumstancefindings as well as guilty verdicts. (People v. Mayfield (1997) 14 Cal.4th 668, 790-791.) When a court reviewsa claim ofinsufficient evidence, it must view the evidence in the light most favorable to the judgment of conviction and presumein support of that judgmentthe existence of every fact the jury could have ‘reasonably deduced from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Johnson (1980) 26 Cal.3d 557, 576-577.) The oft- repeatedruleis that, whena verdictis attacked on the groundthatthere is no substantial evidenceto sustain it, the power ofan appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it. (People v. Johnson, supra, 26 Cal.3d at p. 577.) When two or 72 more inferences are reasonably deducible from the facts, a reviewing court is without powerto substitute its deductions for those of thetrier of fact. ’ (Johnson, supra, at p. 577,) It is ofno consequencethat the reviewing court, believing other evidence, or drawing different inferences, might have reached a conclusion contrary to the one reachedbythetrier of fact.bid.) To the extent the prosecution relied upon circumstantial evidence, the standard ofreview is the same. (People v. Bean (1988) 46 Cal.3d 919, 932; People v. Towler (1982) 31 Cal.3d 105, 118.) Although it is the duty of the jury to acquit a defendantifit finds that circumstantial evidenceis susceptible of two interpretations, one of which suggests guilt and the other innocence,“it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt.” (People v. Bean, supra, 46 Cal.3d at pp. 932-933.) Indeed, if the circumstances reasonably justify the trier of fact’s findings,“‘the opinion of the reviewing court that thecircumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’” (/d., at p. 933, quoting People v. Hillery (1965) 62 Cal.2d 692, 702.) The standard of review mandated by the federal Constitution is the sameas the state standard articulated above. Thatis, the critical inquiry is to determine whether the evidence could reasonably support a finding of guilt beyond a reasonable doubt. The reviewing court does not determine whether itbelieves that the evidenceat trial established guilt beyond a reasonable doubt, but whether, after viewing the evidencein the light most favorable to the prosecution, any rationaltrier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. (Jacksonv. Virginia (1979) 443 U.S. 307, 318 [99 S.Ct. 2781, 61 L.Ed.2d 560].) , Penal Code section 190.2 lists multiple “special circumstances” under which a defendant, convicted offirst-degree murder, may be sentencedto 73 teTHRBRatte am either death or life imprisonment without the possibility of parole. This section expressly provides that “one or more” circumstances may be found true. (Pen. Code, § 190.2, subd. (a).) As relevant hete, the seventh circumstance provides, The victim was a peaceofficer . .. who, while engaged in the course of the performanceofhis or her duties, was intentionally killed, and the defendant knew,or reasonably should have . known,that the victim was a peaceofficer engagedin the performanceofhis or her duties; or the victim was a peace officer . . . or a former peaceofficer . . . and wasintentionally killed in retaliation for the performanceofhisorherofficial duties. (People v. Jenkins (2000) 22 Cal.4th 900, 1019; Pen. Code, § 190.2, subd. (a)(7).) Accordingly, the jury here was instructedthatin order to find the special circumstance of murder of a peace officer true, each of the following facts must be proved: | (1) The person murdered was a peaceofficer; and (2) The person murdered wasintentionally killed in retaliation for the performanceofhis duties. If you find that the defendant wasnotthe actual killer of a humanbeing,or if you are unable to decide whether the defendant was the actual killer, you cannot find this special circumstanceto be true as to the defendant. — (8 RT 2889; 9 CT 3136 [CALJIC No.8.81.7].) The jury was further instructed on the definition of “in the performanceofhis duties:”. _ Any lawful actor conduct while engaged in the maintenance of the peace and security of the community orin the investigation or prevention of crime. . Guarding or transporting any person lawfully underarrest or undergoing imprisonmentin anycity or county jail or in any 74 prison or institution under the jurisdiction of the California Department of Corrections or California Youth Authority. (8 RT 2889-2890; 9 CT 3137 [CALJIC No.8.81.8].) Boyce does notdispute that Deputy York was a peace officer who workedat the Wayside correctional facility. He also acknowledges that he was incarcerated at Wayside for several months in 1994. (AOB 110-111.) Boyce, however, argues that insufficient evidence supports the jury’s true finding on the peace officer special circumstance allegation because Deputy York’s performanceofhis duties at Wayside occurred a few years after Boyce was incarcerated there. (AOB 110-113.) The evidence overwhelmingly established that Boyce killed Deputy Yorkin retaliation for the official performanceofhis duties, i.e. guarding the inmates at Wayside. After Boyce found Deputy York’s badge, Boyce asked York where he worked. After hearing that Deputy York worked at the East Facility at Wayside, Boyce askedifhe “liked to treat Nigger Crips like shit in jail?” (4 RT 1828-1830, 1875; 6 RT 2158-2159.) When Deputy Yorkpolitely said, “No,sir,” Boyce said, “No, I know youlike to treat ----- Nigger Cripslike shit in jail.” (4 RT 1830-1831, 1866-1867, 1875, 1878- 1879; 6 RT 2159, emphasis added.) After obtaining Deputy York’s ATM PIN number, Boyce said, “Fuck the whitey” and shot York in the back of the head. (4 RT 1831, 1870; 6 RT 2160.) Boyce then said somethinglike he had always wantedto kill a “cop.” (4 RT 1832, 1877-1878; 6 RT 2160.) The parties stipulated that Boyce wasincarcerated in Pitchess Detention Facility, also known as Wayside, from October 1, 1994 through December 7, 1994. (6 RT 2285-2286.) Additionally, the evidence showedthat Boyce was a Crip gang member. (13 JOCT 3888-3889; 6 RT 2264-2270.) Deputy Parishtestified that it was not uncommonfor African-American Crip members to be housed at Wayside. (4 RT 1841.) 75 PBN ORgsRCaS Fw ao ete oa staat ty SERS ReeORRReRRSACa iachtS38 os fvta ra EnaEERDREISSMRS. cents ene 8 cance tne _ The evidence clearly established that Boyce was upset by the way he wastreated at Wayside so he shot and killed Deputy York inretaliation for the way Boyce believed York, as a guard in the jail, treated people like Boyce. As. the prosecutor correctly argued, ... the bottom lineis that although [Deputy York] was not on duty as a peaceofficer at the time that the murder took place,it was because Mr. Boyce wasangry at the fact that he found out that [Deputy York] had — was a guard at Wayside, a place where Mr. Boyce had been incarcerated. And I am goingto talk about that a little bit later. So it is in retaliation for that, and that’s the lawful performance. , (8 RT 2684.) Accordingly, substantial evidence supports the jury’strue finding on the peace officer special circumstance allegation. Boyce further contends that the peace officer special circumstance as appliedin this case is unconstitutionally vague and fails to provide adequate notice becauseit is unclear whether the officer’s performance of his official duties mustrelate to the defendant. (AOB 113-114.) Boyceis - attempting to place an additional elementinto the statute. There is no need to look beyondits language to understand its meaning. Theplain language ofthe statute clearly states that the killing of the peace officer must be in retaliation for the performanceofthe officer’s official duties. There is no requirementofa directrelationship between the officer and the defendant. The killing simply has to be donein return for or as pay back for past performanceofthe victim officer’s duties. | “The fundamental purpose of statutory construction is to ascertain the intent of the lawmakersso as to effectuate the purpose of the law.” (People v. Pieters (1991) 52 Cal.3d 894, 898.) Society has an especially strong interest in protecting police officers because they, in turn, protect the public’s safety. (See People v. Celis (2004) 33 Cal.4th 667, 680 [recognizing that “the work of a police officerin the field is often fraught 76 fa 8SMstanapbthane At with danger”; see also Grandstaffv. City ofBorger (Sth Cir. 1985) 767 F.2d 161, 166 [noting that police “officers stand at the front of law and the order processesof society” because they “restrain the violator, protect the compliant, and represent constituted authority in the scenes ofboth peace andturbulence of community life’”].) “[W]eall dependon not only the presence but the commitment of law enforcementofficers to help ensure safe and peaceable communities ..” (People v. Brown (2004) 33 Cal.4th 382, 400.) As this Court acknowledged in People v. Rodriguez (1986)42 Cal.3d 730, society considers the killing of a peace officer “especially serious for several reasons.” The community abhors the human cost to these especially endangeredofficers and their families, ‘who regularly mustrisk their lives in order to guard the safety of other persons and property.’ [Citation.] Murders of this kind threaten the communityat large by hindering the completion ofvital public safety tasks; they evince a particular contempt for law and government, and theystrike at the heart of a system of ordered liberty. Applying longstanding values, the electorate may reasonably concludethat an intentional murderer increases his culpability, already great, when he kills one whom he knew or ‘ should have known wasa police officer performing his duties. (Id. at p. 781 [rejecting constitutional challenges to peace officer special circumstancestatute].) Here, by its plain language, the peace officer special circumstance unambiguouslystates that one whokills a police officer to retaliate, i.e., get backat, the officer for performinghis official duties, i.e. guarding inmates at a countyjail, will suffer a higher penalty. No person ofordinary intelligence would be left guessing as to the meaning of this language. There is nothing aboutthe statute that suggests it should be limited to motivation based on distinct act performed by a peace officer or one directed specifically at the defendant. 77 Moreover, contrary to Boyce’s claim, the jury’s note did notindicate it was confused by the languageof the statute. Rather, the jury asked if the peace officer had to be performing a duty at the time of the crime,and the trial court responded “no.” (See 8 RT 2915-2916.) The court told the jury if it did not answer the jury’s question appropriately, then to write another note with morespecificity.. The fact that the jury did not do so indicated that the trial court properly interpreted and respondedto the jury’s question. (8 RT 2916.) Thestatute is “sufficiently explicit to inform those whoare subject to it what conduct on their part will render them liable to its penalties.” (People v. Saad (1951) 105 Cal.App.2d Supp. 851, 854 quoting Connally v. General Constr. Co. (1926) 269 U.S. 385, 391 [46 S.Ct. 126, 70 L.Ed. 322].) Lastly, Boyce contends that even if the robbery-murder and burglary- murder special circumstancesare upheld,if the peace officer special circumstance finding is vacated, his death judgmentmust be reversed because the prosecution’s reliance on an invalid circumstance caused distortion in the jury’s weighing process. (AOB at 114-116.) The United States Supreme Court, however, rejected a similar argument in Brownv. Sanders (2006) 546 U.S. 212, 220-225 [126 S.Ct. 884, 163 L.Ed.2d 723]. In Sanders, the court held that the invalidation of two special circumstances on appeal did not render a death sentence unconstitutional where two other special circumstances were proper and where, ashere,all the facts and circumstances admissible to prove the invalid special circumstances were properly introduced underanother factor regarding the circumstancesofthe crime. (See also Clemons v. Mississippi (1990) 494 U.S. 738, 745-50 [110 S.Ct. 1441, 108 L.Ed.2d 725] [regarding appellate reconsideration of death judgment]; Zant v. Stephens (1983) 462 U.S. 862, 890 [103 S.Ct. 2733, 77 L.Ed.2d 235] [invalidity of one aggravating factor does not require vacation 78 iachecnee of death sentence]; Peoplev. Lewis(2008) 43 Cal.4th 415, 520; People v. Ledesma(2006) 39 Cal.4th 641, 716.) A single valid special circumstance is sufficient to determine the defendantis eligible for the death penalty. (People v. Bittaker (1989) 48 Cal.3d 1046, 1102.) Accordingly, Boyce’s claim mustbe rejected. . V. SUFFICIENT EVIDENCE SUPPORTS THE JURY’S SPECIAL CIRCUMSTANCEFINDINGS THAT THE MURDER WAS COMMITTED WHILE BOYCE WAS ENGAGED IN COMMISSION OF A ROBBERYAND IN COMMISSION OF SECOND DEGREE BURGLARY; THE TRIAL COURT PROPERLY RESPONDED TO THE JURY’S NOTE; THE FELONY-MURDER SPECIAL CIRCUMSTANCEIS NOT UNCONSTITUTIONAL Boyce contendsinsufficient evidence supports the true findings on the robbery-murder and burglary-murder special circumstance findings because the evidencedid not establish that the killing was committed in order to advance an independentfelonious purpose. (AOB 121-124.) Boyce further claimsthetrial court incorrectly respondedto the jury’s note regarding the robbery-murder /burglary-murder special circumstanceinstruction. (AOB 124-127.) Finally, Boyceasserts the robbery-murder/burglary-murder special circumstancesare unconstitutional, and reversal is required. (AOB 127-130.) Substantial evidence supports the robbery-murder and burglary- murder special circumstance findings. Moreover, with defense counsel’s acquiescence,the trial court properly respondedto the jury’s note regarding the robbery-murder /burglary-murder special circumstanceinstruction. Lastly, the special circumstancesare constitutional. A.. Substantial Evidence Supports the Robbery-Murder and Burglary-Murder Special Circumstance Findings Boyce contends the robbery-murderspecial circumstance was not supported by sufficient evidence because the killing was not committed in order to advance the independent felonious purpose ofrobbery. (AOB 121- 124.) Substantial evidence, however, supports the jury’s truefinding. 79 seenRMRREARSLRA he IEE (RPG AR BEE OVERS AERESTaBGRTESEENAEIMNne Asstated above, in determining whether the evidenceis sufficient to support a criminal conviction, “the relevant question is whether, after viewing the evidencein the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (People v. Johnson, supra, 26 Cal.3d at p. 576; Jackson v. Virginia, supra, 443 U.S.at pp. 318-319.) The sametest is used to determine the sufficiency of the evidence for a special circumstance allegation. (People v. Mayfield, supra, 14 Cal.4th at pp. 790-791.) To prove a felony-murderspecial circumstance, the defendant must have “intended to commit the felonyat the time he killed the victim and... the killing and the felony were part of one continuoustransaction. [Citations.]” (People v. Coffman (2004) 34 Cal.4th 1, 88.) In other words, the underlying felony may not be “merely incidental to murder[.]” (People v. Green (1980) 27 Cal.3d 1, 61, overruled on other groundsas stated in People v. Dominguez (2006) 39 Cal.4th 1141,1 155; see People v. Turner, supra, 50 Cal.3dat p. 688 [“the elements of a robbery-murderspecial circumstanceare not presentif theft of the victim’s property was merely - ‘incidental’ to a murder”].) Concurrentintents to kill and to commit an independent felony will support a felony-murder special circumstance. (People v. Clark (1990) 50 Cal.3d 583, 608-609; see People v. Zapien (1993) 4 Cal.4th 929, 984-985 [where the evidence suggested a pre-existing intentto kill and then rob the victim, the robbery-murder special circumstance finding was proper because the robbery was not merely incidental to the murder]; People v. Bolden (2002) 29 Cal.4th 515, 554 [special circumstance may be imposedifthe defendant acted with the independent but concurrentintentsto kill and rob].) For purposes of a robbery-murderspecial circumstanceallegation, the jury is required to find that the murder was committed while the defendant was engaged in the commission of, attempted commission of, or immediate 80 flight after committing or attempting to commit a robbery. (Pen. Code, § 190.2, subd. (a)(17).) Robbery is “the felonious taking ofpersonal property in the possession of another, from his person or immediate presence, and against his will, accomplished by meansofforce or fear.” (Pen. Code, § 211; People v. Hill (1998) 17 Cal.4th 800, 849.) Here, there was substantial evidence from whicha rationaltrier of fact could have found the robbery-murder special circumstance true beyond a reasonable doubt. Boyce believed the hair salon had a safe containing $7,000 and was an “easy hit.” (13 JQCT 3807, 3829, 3851.) Boyce and Willis entered the salon armed with guns and ordered the occupants to the ground. (4 RT 1812-1815, 1843-1848, 1854, 1891-1893; 6 RT 2150-2151, 2204, 2216.) The robbers asked for the location of the safe or cash register and became angry and agitated when they foundout there wasnosafe, just a cash drawer with approximately $11 in it. (4 RT 1818-1823, 1853-1858, 1861; 6 RT 2155, 2157-2158.) In order to get more money, Boyce and Willis began robbing the victims. It was during this pursuit for money and ATM PIN codesthat a frustrated Boyce shot and killed Deputy York. (4 RT 1824-1831, 1837-1838, 1860, 1863, 1866-1869, 1870, 1875, 1878- 1879, 1892-1893; 6 RT 2156, 2158-2160.) After shooting Deputy York, Willis continued to rob Deputy Parish before the two fled the salon. (4 RT 1832-1837, 1862-1864, 1866, 1879-1 884; 6 RT 2162-2163.) Contrary to Boyce’s claim, the prosecutor did not concedethat the killing was not committed to advance the robbery or burglary. (See AOB 123.) Rather, during closing argument, the prosecutor told the jury it had to determine if the murder was committed during a robbery or burglary. (8 RT 2673.) The prosecutorpointed out that $200 cash was found in Boyce’s sock when he was arrested; the same amount ofmoney Deputy York had withdrawn from an ATM machineearlier that night. (8 RT 2717.) The prosecutor concludedhis closing argumentbytelling the jury that Boyce 81 iBsERREEDhMERof ER SE came peti! acest CHOeG HRAa SRNRiyiD MOREatRBms eee killedDeputy York for two reasons: one,in retaliation for being a peace officer, and two,in the commission ofa robberyand burglary. (8 RT 2739- 2740.) The prosecutor said Boyce and Willis chose that salon for a reason, i.e. the money that was supposedto bein a safe; killing Deputy York helped Boyce and Willis facilitate their robbery and escape. (8 RT 2740.) The prosecutor argued that it must have been a surpriseto find a police officer at the salon, but it did not prevent the robbery. from happening. (8 RT 2740-2741.) | During rebuttal argument, the prosecutor told the jury that Boyce could have had morethan onereason for killing Deputy York: WhatI meanis that the perpetrator can have twodifferent reasons. He... could have more than two. Butin this case could have two different things going on. Thereis nothing that excludes one from the other. © If you consider what happenedinthat salon, ifyou consider the fact that when [Deputy York]is killed, numberone,it eliminates the only male that’s there in the salon. I suggested yesterday, andI repeatthis, that there isno expectation there was going to be any males there. There was probably no expectation there was going to be anybody there because the salon was closed beyond maybejust a worker. But we don’t knowthatforsure, so I’m not going to ask you to speculate aboutthat. (8 RT 2845-2846.) . The prosecutor then pointed out that the robbery did not end after Boyce shot Deputy York. Rather, the robbery continued, with property being taken from Deputy Parish; having Deputy York out ofthe picture madethe job easier. (8 RT 2846.) These facts and circumstances are consistent with theperpetrators intending to rob their victims, andkill _ Deputy Yorkto eliminate a witness andaffect their escape. In light of the above, substantial evidence supported the robbery-murderspecial circumstancefinding. 82 "eseemeeiARECONADEpt Further, contrary to Boyce’s claim (AOB 121-124), substantial evidence supports the jury’s finding on the burglary-murderspecial circumstancefinding. A burglary is committed if the defendant enters a residence or other enumeratedstructure “with intent to commit grand or petit larceny or any felony.” (Pen. Code, § 459.) But “the felony-murder rule and the burglary-murderspecial circumstance do not apply to a burglary committed for the sole purpose of assaulting orkilling the homicide victim. [Citations.]” (People v. Seaton (2001) 26 Cal.4th 598, 646.) On the other hand,a killing is committed in the perpetration of a burglary if the killing and burglary “are parts of one continuous ~ transaction.” (People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Thompson (1990) 50 Cal.3d 134, 176.) Here, substantial evidence supports the burglary-murder special circumstance finding. As stated above, the evidence clearly established Boyceand Willis entered the salon with the intent to steal money. Moreover, someofthe items stolen from the salon were found in Willis’s car after the officers arrested Boyce and Willis. (4 RT 1835, 1837; 5 RT 1975-1977, 1986-1988, 1996-1997.) “There is no better proofthat a burglar entered with the intent to commit theft than a showingthat he did commit it.” (People v. Shépardson (1967) 251 Cal.App.2d 33, 36, quoting People v. Jones (1962) 211 Cal.App.2d 63, 71-72.) Thus, the evidence established that Boyce had a felonious purpose independent of murder upon entering the salon. (See People v. Clark, supra, 50 Cal.3d at pp. 608-609.) Accordingly, the jury’s true finding as to the burglary-murderspecial circumstance allegation was supported by substantial evidence. _ Insun, the evidence amply supports the jury’s true findings on the robbery-murder and burglary-murderspecial circumstance findings. That the evidencealso supports the jury’s true finding on the peace officer . retaliation special circumstance finding “does not render the evidence 83
