People v. Streeter (2012) · DecisionDepot

People v. Streeter

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jun 7, 2012 No. S078027Published

Before: Chin

AI Brief

AI-generated · verify before citing

Holding. The court affirmed the defendant's conviction for first degree murder and the sentence of death, finding no reversible error in the proceedings.

Issues

Whether the prosecutor's use of peremptory challenges against African-American prospective jurors violated the defendant's constitutional rights under Batson and Wheeler.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We affirm the judgment.”

Filed 6/7/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S078027 v. ) ) HOWARD LARCELL STREETER, ) ) San Bernardino County Defendant and Appellant. ) Super. Ct. No. FVA07519 ____________________________________)

A jury convicted defendant Howard Larcell Streeter of the first degree murder of Yolanda Buttler. (Pen. Code, § 187.)1 It found true special- circumstance allegations of lying in wait (§ 190.2, subd. (a)(15)) and the intentional infliction of torture (§ 190.2, subd. (a)(18)). The trial court declared a mistrial as to the penalty phase after the jury could not reach a verdict. At the beginning of the penalty phase retrial, the trial court released the jury after granting defendant‘s motion for a continuance. At the second penalty retrial, the jury returned a verdict of death, and the trial court imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

1 All further statutory references are to the Penal Code unless otherwise indicated.

I. FACTS

A. Guilt Phase

1. The Prosecution‘s Case Defendant and Yolanda Buttler lived together for about five years in Fontana. They lived with their child, ―Little Howie,‖ Yolanda‘s two older children, Patrick and Lawanda, and Yolanda‘s niece, Shavonda. In December 1996, Yolanda told her siblings, Lucinda and Quentin Buttler, that defendant was beating her and had pulled hair, and that she was afraid of him and wanted to leave him. They agreed to help Yolanda secretly move out of her home when defendant was at work. Quentin advised Yolanda to get a restraining order. In early January 1997, Yolanda moved out with the children. Initially, Yolanda went to her sister‘s house in Los Angeles, but then she decided to stay in a motel for safety reasons. After a week‘s stay in the motel, Yolanda and the children moved to an apartment in Victorville. On February 7, 1997, Yolanda applied for a restraining order against defendant. In her declaration, she described an incident that had occurred on December 30, 1996, during which defendant had pulled her braided extensions so hard because she would not have sex with him that he pulled hair out of her head. In April 1997, defendant called Yolanda and convinced her to allow him to see Little Howie. They met in a public area without incident. Afterwards, defendant called frequently and tried to convince Yolanda to reconcile with him. He wanted to see Little Howie again. Yolanda agreed to meet him at a Chuck E. Cheese restaurant in Fontana.

Related research

defendant. When he got to them, Patrick saw that Yolanda and the plastic container were on the ground and defendant was hitting Yolanda. Bystanders also witnessed the events. John Martinez was in the restaurant‘s parking lot when he heard a woman yelling for help. A ―couple of‖ children were nearby. Martinez heard defendant yelling and saw him beating Yolanda and pulling her hair. Defendant struck Yolanda more than four times and slammed her to the ground. He went to his car, took out what appeared to be a plastic antifreeze container from the trunk, and poured gasoline from the container onto Yolanda‘s car and then on her body. Martinez then saw Patrick drive Yolanda‘s car to another area of the parking lot. Defendant dragged Yolanda back towards his car ―because he had nothing to light the lady with.‖ Martinez ran into a store next to the restaurant and told the owner to call 911. When Martinez and the owner went outside, Yolanda was already on fire and was burning from the top of her head to her waist. People were throwing water on her and wrapping her in blankets. Anzerita Chonnay also saw the incident. She heard Yolanda and defendant yelling at each other and saw defendant hitting and kicking Yolanda. Chonnay ran inside a store to have someone call 911. When she returned outside, Chonnay saw defendant retrieve a container from the trunk of his car and began pouring something from it, while people were yelling at him. A man tried to intervene, but defendant pushed him away. Chonnay then saw Yolanda ―on fire.‖ The flames shot up ―real high.‖ Several people tried to extinguish the fire with their clothing. While Yolanda was burning, Patrick watched as he held the two younger children. Edward Jasso was seated in his car in the restaurant‘s parking lot and saw Yolanda and defendant in the parking lot. Jasso saw liquid being thrown. At first, Jasso thought they were having a water fight, but then realized they were not playing after he saw defendant push Yolanda to the ground. Defendant began hitting and kicking Yolanda, and called her a ―fucking bitch.‖ Jasso got out of his

and screaming in pain, and repeatedly asked about her children. The paramedics reassured her that the children were with the police. Because Yolanda‘s burns were so deep and her skin was so thickened, the paramedics could not find or gain access intravenously to a vein and were unable to administer pain medication to Yolanda. Instead, they attempted to relieve her pain by pouring cold water on her burns. While being transported, Yolanda grasped one of the paramedics, pulled him close to her face, and begged, ―Just kill me. Please kill me.‖ Yolanda endured the 20-minute ambulance ride without any pain medication. Yolanda was admitted to the hospital in critical condition. She suffered extensive second and third degree burns from the waist up, including her entire face, arms, front chest, and back. Yolanda sustained burns to 55 to 60 percent of her body‘s surface. According to the pathologist, the extent of the pain suffered from these burns could be extreme and severe. Her lungs were dense and swollen, evidence of organ failure. Yolanda was treated in the hospital‘s burn unit for 10 days until her death. She died from pulmonary failure caused by the effects of thermocutaneous burns. At the scene, the police found a clump of Yolanda‘s hair, one earring, and the plastic container. Defendant‘s car was in the parking lot with a ―Club‖ locking device on the steering wheel and the car‘s gas cap sitting on its bumper. Defendant‘s shoes, the plastic container, and several items of Yolanda‘s clothing tested positive for gasoline residue. No gasoline residue was found on defendant‘s shorts, socks, or underwear, or on Yolanda‘s earrings or hair. Inside the glove compartment of defendant‘s car, the police found a note written by defendant on the back of a smog certificate attached to a vehicle registration form. The note read: ―to mom and pop, I hate to do you gys like this but I don‘t like liveing the way I am so I don‘t know what to say but I love you both and I am very sorry to

brought Little Howie and Shavonda and spent an hour and 45 minutes with him. When defendant said he wanted to see them again, Yolanda told him to call. During the next several weeks, defendant repeatedly called Yolanda and told her he wanted her back. When she refused, defendant warned that if she did not return, he would do something to himself. They agreed to meet at a Chuck E. Cheese restaurant at 4:00 p.m. on April 27, 1997. Defendant stated that he arrived on time, and became angry and frustrated because he waited for Yolanda and the children for 30 to 45 minutes. When Yolanda drove up, defendant took Little Howie out of Yolanda‘s car, declared he was going to leave, placed Little Howie inside his car, and got into the driver‘s seat. As he tried to remove the locking device from the steering wheel, Yolanda began arguing with defendant about taking Little Howie, and scratched and hit defendant. Defendant pushed her away and got out of the car. They got into a ―scuffle.‖ Defendant stated that he took out the container of gasoline that he normally kept in the trunk of his car for his carburetor, but did not know why he took the container out. He was upset and in a ―rage‖ and remembered only ―bits and pieces‖ of the proceeding events, including pouring gasoline on Yolanda and himself. Someone tried to grab him, and the next thing he knew, they were both on fire. Defendant testified that he did not intend to set Yolanda on fire and kill her. Regarding the note, defendant explained that it was a suicide note and his statement he knew what he did to Yolanda was wrong was only a reference to the December 30, 1996 incident, the subject of Yolanda‘s declaration for the restraining order. Defendant claimed that, during that incident, they argued over Yolanda‘s refusal to have sex with him and that he only pulled on Yolanda‘s braided hair extensions so that she would come to bed. He denied raping her and claimed he still loved her. Defendant further claimed that he did not intend to hurt Yolanda. Instead, when he wrote that Yolanda did not deserve ―to live like me,‖

court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.‘ [Citation.]‖ (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted (Johnson).) Without objection from defense counsel, the prosecutor exercised his third peremptory challenge to excuse Prospective Juror No. 3 and his fourth peremptory challenge to excuse Prospective Juror No. 44. After the prosecutor used his fifth and final challenge to excuse Prospective Juror No. 46, defense counsel made a Wheeler/Batson motion because the prosecutor had excused three prospective jurors who were African–American. At the time of the motion, seven African- Americans had been called to the jury box. The prosecutor peremptorily excused three of them, while the defense peremptorily excused two of them. Two African- American prospective jurors remained in the jury box. In support of his motion, defendant argued that the prosecutor used his last three peremptory challenges to ―systematically eliminat[e] Black jurors.‖ When the trial court noted that the defense peremptorily challenged two African- American prospective jurors, defense counsel explained that he was justified in those excusals, and that they had come after the trial court denied his challenges to them for cause. The trial court responded, ―I don‘t think there is any dispute that you had a valid reason in your mind and your client‘s mind to excuse the two. You did. That is not an issue, really.‖ The prosecutor argued that defendant failed to make a prima facie showing and offered to relate his concerns regarding Prospective Juror No. 44. The trial court responded, ―If you wish.‖ The prosecutor commented that she had a BA in sociology, and had ―done social work and nursing all of her life.‖ The prosecutor further commented that her questionnaire answers indicated that although some murders may be intentional, the fact they are committed by a person who is temporarily insane or emotional might affect her decision regarding imposition of

Regardless of the standard or considerations used by the trial court, we have reviewed the record independently (applying the high court‘s standard) to resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race. (People v. Hawthorne, supra, 46 Cal.4th at p. 79.) We conclude that the record does not support such an inference. In establishing a prima facie showing, a defendant has the burden of demonstrating that the facts and circumstances of the case raise an inference that the prosecutor excluded prospective jurors based on race. (Batson, supra, 476 U.S. at p. 96.) Notably, defendant‘s only stated basis for establishing a prima facie case at trial was that the prosecutor exercised three of five peremptory challenges against African-American jurors. Defendant attempts to buttress that stated basis by arguing on appeal that 28 percent of the prospective jurors called to the jury box were African-American, while the prosecutor used a disproportionate ratio of his strikes (60 percent) against African-Americans. However, defendant‘s numerical showing falls short of a prima facie case. (People v. Clark (2011) 52 Cal.4th 856, 905 [no prima facie case where prosecutor challenged four of five African-American prospective jurors ]; People v. Cornwell (2005) 37 Cal.4th 50, 70 [no prima facie case where prosecutor challenged one out of two African- American prospective jurors]; People v. Yeoman (2003) 31 Cal.4th 93, 115 [prima facie case not established by cursory reference to prosecutor‘s strike of three prospective jurors by name, number, occupation and race]; People v. Farnum (2002) 28 Cal.4th 107, 136-137 [prima facie case not established by asserting prosecutor exercised four of five peremptory challenges against Black prospective jurors]; People v. Adanandus (2007) 157 Cal.App.4th 496, 503-504 [no prima facie case established by asserting prosecutor exercised three peremptory challenges against Black prospective jurors].)

against an African-American juror. Prospective Juror No. 44 was replaced by another African-American juror (No. 46), leaving four African-American jurors seated in the jury box. After defense counsel exercised his seventh peremptory challenge, the prosecutor accepted the jury a fifth time, with those four African- American jurors (Nos. 23, 35, 42, and 46) seated. Defense counsel used his eighth peremptory challenge against Prospective Juror No. 35. The prosecutor used his fifth peremptory challenge against Prospective Juror No. 46, leaving two African- American prospective jurors seated in the jury box (Nos. 23 and 42). Defendant then made a Wheeler/Batson motion. After the trial court denied the motion, defense counsel exercised his ninth and final peremptory challenge against Prospective Juror No. 42, his third peremptory challenge against an African-American prospective juror. Prospective Juror No. 23 was the only African-American juror who sat on the final penalty phase jury. Thus, the record reflects that before defendant made the Wheeler/Batson motion, the prosecutor accepted the jury five times with up to four African- American prospective jurors seated in the jury box. The prosecutor accepted the jury four times with Prospective Juror No. 3 seated and one time with Prospective Juror No. 46 seated before finally excusing them. (People v. Clark, supra, 52 Cal.4th at p. 906 [no prima facie case where prosecutor passed two African- American jurors during several rounds before finally excusing them].) The prosecutor‘s acceptance of a panel including African-American prospective jurors, while not conclusive, was ― ‗an indication of the prosecutor‘s good faith in exercising his peremptories, and . . . an appropriate fact for the trial judge to consider in ruling on a Wheeler objection . . . .‘ ‖ (People v. Hartsch (2010) 49 Cal.4th 472, 487.) The record also reflects that there was an African-American on the jury panel ultimately sworn, and the prosecutor repeatedly passed that juror on

his peremptory challenges. (People v. Clark, supra, 52 Cal.4th at p. 906; People v. Cornwell, supra, 37 Cal.4th at p. 70; People v. Adanandus, supra, 157 Cal.App.4th at pp. 503-504.) It further reflects that after extensive questioning, the prosecutor successfully rehabilitated two African-American jurors, Prospective Jurors Nos. 35 and 43, staving off defense challenges for cause. The prosecutor‘s desire to keep African-American jurors on the jury tended to show that the prosecutor was motivated by the jurors‘ individual views instead of their race. (People v. Hartsch, supra, 49 Cal.4th at p. 487.) Finally, the record of voir dire shows race-neutral reasons for the prosecutor‘s excusals of Prospective Jurors Nos. 3, 44, and 46. Prospective Juror No. 3 was a married, 27-year-old woman with two children who worked for the San Bernardino County Department of Social Services as a social services caseworker. On the questionnaire, she stated that she ―strongly disagreed‖ that anyone who intentionally killed another person should get the death penalty. She stated that if under certain circumstances, the person killed with ―good reason‖ he or she ―should be punished, but not put to death.‖ She explained, ―[w]hen I say good reason, I mean in their minds.‖ Prospective Juror No. 3 further stated that ―maybe‖ the death penalty was appropriate in cases where a person of sound mind admits to death and commits willful acts of cruelty, such as execution-style or gang murders. From Prospective Juror No. 3‘s responses, the prosecutor could have reasonably been concerned with her emphasis on the killer‘s subjective perspective, especially in a case such as this one, where the defense would be that the defendant snapped under extreme emotional despair and did not intend to kill. Her responses also indicated a willingness to impose the death penalty only under very limited circumstances and if the defendant confessed, facts not present in this case. As with Prospective Juror No. 44, the prosecutor could also have reasonably

stated he was concerned that another attorney had been visiting defendant in jail, that this would interfere with his representation of defendant, and that defendant refused to provide Amador reasons for the visits. A jail log revealed that Attorney David Karlson had visited defendant nine times from July 25, 1998 to October 28, 1998. Defendant denied that Karlson was interfering with Amador‘s representation. He explained that Karlson had said there was nothing he could do for defendant on his case until after the penalty phase ended. Defendant felt that because Amador did not want to represent him, he too did not want Amador representing him. Amador clarified that he was not currently asking to be relieved, but that if Karlson‘s jail visits continued, he would ask to be relieved. The court issued an order to show cause against Karlson and appointed Attorney Nascin to consult with defendant regarding the need for a Marsden motion. On November 4, 1998, the trial court held a hearing regarding Attorney Karlson‘s jail visits with defendant. Karlson testified that defendant asked to speak with him after the jury hung on the penalty verdict. On October 28th, Karlson visited defendant briefly and told him that because defendant was already represented, he could not advise him on the case until after the trial and his attorney-client relationship with Amador had ended. Karlson assured the court he would follow its order barring any future contacts with defendant. Attorney Nascin then requested a Marsden hearing; after talking with defendant, he felt that there was a breakdown in the relationship between defendant and Amador. On the following day, the trial court held a Marsden hearing, with Nascin representing defendant. Defendant initially testified that he had lost confidence in Amador for two reasons. First, Amador had asked to be relieved as counsel. Second, Amador had failed to respond to his requests during the guilt phase to pursue other evidence and to ask witnesses certain questions. When asked about his first Marsden motion, defendant explained that he had withdrawn the motion

after Amador assured him things would be better and that ―he had stuff up his sleeves he was going to bring out.‖ But, as the trial progressed, defendant felt that Amador was not fighting for him and giving him ―100 percent,‖ and that he did not receive a fair trial. Defendant testified that his feelings about Amador ―really changed‖ when the trial court dismissed the jury after its penalty deadlock. He had questions on what was going to happen next, but could not reach Amador by telephone. Defendant was told that Amador had gone to Reno and would return the following morning. But, Amador did not call or visit him during the two-week period after the mistrial. Because he and his family were concerned about the future proceedings, defendant contacted Karlson for information, but Karlson did not provide any answers. Defendant stated that he lost confidence in Amador because he felt that if Amador was professional and had been doing a good job, he would not have been concerned about defendant‘s contacts with Karlson. Defendant also questioned why Amador had advised him not to testify and why he told the court of that advisement, even though defendant wanted to testify. Finally, defendant stated he felt that there was no communication between him and Amador. Amador testified that on defendant‘s suggestion, the defense team spoke to several witnesses. Because several of these witnesses had ―nothing good to say‖ about defendant, they determined that these witnesses would have caused more harm to defendant‘s case. For example, one witness related that a few days before he burned Yolanda, defendant wanted to borrow a handgun. Amador denied that he told defendant that he had ―something up‖ his ―sleeve.‖ Amador testified that because defendant did not want him as his lawyer and did not like Amador, he felt uncomfortable and did not want to represent defendant. Amador felt that their relationship had broken down and was irreparably harmed. Because defendant refused to tell him why Attorney Karlson

was visiting him so often, Amador felt that defendant was not candid and did not cooperate with him. However, Amador believed that if defendant was counseled to cooperate and communicate with him, Amador could still try the case. His personal feelings would not detract from his professional representation of defendant. On the adequacy of Amador‘s representation, the trial court found that defendant‘s complaints about his failure to pursue certain matters and his unpreparedness were not specific enough, and that counsel‘s advice to defendant not to testify was an insufficient showing of ineffective representation. Regarding Amador‘s failure to see defendant after the penalty mistrial, the court noted that the quality of representation does not depend solely on the number of times a defendant speaks with his attorney. It commented that throughout the proceedings in this case, Amador conducted the defense appropriately, was prepared, and argued persuasively. It saw nothing unfair about the trial. The court noted that given the evidence and defendant‘s confession at the guilt phase, defendant could not have expected a not guilty verdict. The court further noted that, at the first penalty trial, Amador was able to convince a jury to hang on the verdict. The trial court found that ―what we have here, very unfortunately, is a personal relationship that has broken down.‖ The court noted that Amador asked to be relieved based only on his perception that defendant had been consulting another attorney, who might have been ―second-guessing‖ Amador‘s representation of defendant. The court further noted that defendant ―joined in‖ Amador‘s motion, but did not initiate the motion for relief. It was only at that point that defendant lost confidence in Amador‘s ability to defend him. Despite their personal relationship, the trial court denied Amador‘s and defendant‘s motions for relief of counsel because there was not an irreconcilable conflict and there was no showing of ineffective representation. The court

―about the situation with Mr. Amador.‖ Defendant replied yes. The court explained that during the proceedings in Amador‘s absence and Ducre‘s presence, ―nothing will happen regarding the presentation of your case or the prosecution‘s case except to explain to the jury the procedure and hand out the questionnaires and have them returned on a later date.‖ When asked if he would consent to that procedure, defendant replied yes. During Ducre‘s presence, three groups of prospective jurors were called into the courtroom and sworn. The first group appeared on the morning of January 19. The second group was brought in that afternoon, while the third group came in on the following morning. During all three sessions, the trial court introduced the parties, read the information, related that Attorney Ducre would be sitting in that day because defendant‘s attorney, Amador, was ill, and explained the proceeding was a penalty phase trial. It discussed the jury selection procedure and schedule, including the fact that questionnaires would be distributed, and the prospective jurors would be dismissed and ordered to return on February 1st with the completed questionnaires. After the questionnaires were distributed, the court explained the grounds for a hardship excusal. The court asked those prospective jurors claiming hardship to stay and dismissed the other prospective jurors. After questioning, the court dismissed those prospective jurors who had been excused by stipulation. After the above proceedings, the trial court ordered the prosecutor to meet with Amador to discuss the questionnaires and return to court on February 1. On that date, Amador was present in court when the first group of prospective jurors returned with their completed questionnaires. The Attorney General claims that defendant cannot challenge his attorney‘s absence because he consented to Amador‘s absence and the substitution of Attorney Ducre. Defendant responds that defendant agreed to have stand-in

counsel only for the purpose of handing out the jury questionnaires and was not advised that the court would be excusing prospective jurors for hardship in Amador‘s absence. Defendant argues that, under these circumstances, he did not waive his right to have his attorney present during the excusal proceedings. Because we conclude that defendant was not deprived of his right to counsel, we need not decide the waiver issue. On the merits, defendant contends that the absence of Amador during jury selection proceedings constituted a ―structural error‖ that requires automatic reversal of the judgment without reference to harmless error analysis. (Arizona v. Fulminate (1991) 499 U.S. 279, 309.) Alternatively, he argues that Amador‘s absence was a presumptively prejudicial violation of his right to counsel at a critical stage of the proceedings. (Bell v. Cone (2002) 535 U.S. 685, 695-697; United States v. Cronic (1984) 466 U.S. 648, 659.) ―A criminal defendant enjoys the right to counsel under both the state and federal Constitutions (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, Gideon v. Wainwright (1963) 372 U.S. 335, 339-345, People v. Koontz (2002) 27 Cal.4th 1041, 1069, 119 Cal.Rptr.2d 859, 46 P.3d 335.) A complete denial of counsel at a critical stage of the proceedings, including during jury voir dire (Gomez v. United States (1989) 490 U.S. 858, 873), gives rise to a presumption that the trial was unfair. (Cronic, supra, 466 U.S. at p. 659). But when the defendant is represented by counsel, the presumption of prejudice will only stand when counsel entirely failed to subject the prosecution's case to meaningful adversarial testing. (Bell v. Cone (2002) 535 U.S. 685, 695; Cronic, at p. 659.)‖ (People v. Benavides (2005) 35 Cal.4th 69, 86.) We reject defendant‘s claims for several reasons. First, because defendant had an attorney representing him at all times during the jury selection proceedings, there was not a complete denial of counsel, let alone ―structural error.‖ (People v.

Benavides, supra, 35 Cal.4th at p. 86 [defense cocounsel‘s conducting of voir dire in absence of lead counsel not a violation of right to counsel]; Carroll v. Renico (6th Cir. 2007) 475 F.3d 708, 712-713.) Second, we question whether Amador‘s absence and Ducre‘s presence occurred during a critical stage of the proceedings. Hardship screening of the jury pool is not a critical stage of the proceedings. (People v. Ervin (2000) 22 Cal.4th 48, 72 [defendant had no absolute right to be present during hardship screening]; People v. Basuta (2001) 94 Cal.App.4th 370, 395-396 [jury commissioner‘s screening of jury pool for financial hardship in absence of defense counsel or defendant not constitutionally significant].) Here, the court‘s hardship screening and distribution of juror questionnaires bore ― ‗no reasonable, substantial relation to [defendant‘s] opportunity to defend the charges against him‘ ‖ (People v. Ervin, supra, 22 Cal.4th at p. 74), nor was there even an opportunity for counsel to subject the prosecution's case to meaningful adversarial testing during the preliminary portion of the jury selection process. (Bell v. Cone, supra, 535 U.S. at p. 695; United States v. Cronic, supra, 466 U.S. at p. 659.) Thus, defendant was not presumptively prejudiced by Amador‘s absence. Moreover, defendant has failed to show he was actually prejudiced. Defendant argues that Amador‘s presence was necessary because he ―had an awareness of trial strategy and an understanding of the unique aspects of the case.‖ Hardship excusals ― ‗are to be granted only on a sufficient showing that the individual circumstances of the prospective juror make it unreasonably difficult for the person to serve or that hardship to the public will occur if the person must serve in the particular case.‘ ‖ (People v. Tate (2010) 49 Cal.4th 635, 663.) The propriety of a hardship excusal does not depend on the underlying facts of the specific case, but rather on the juror‘s individual circumstances of hardship in

serving on a jury in general. Thus, intimate knowledge of the case is not necessary for counsel‘s effective representation during hardship excusals. Defendant contends that stand-in counsel failed to object to the trial court‘s use of a more lenient standard for hardship excusals than designated in California Rules of Court, rule 2.1008. For example, he argues that financial hardship excusals were granted by the court or by stipulation without a showing that there was an ―extreme‖ burden (Cal. Rules of Court, rule 2.1008(d)(3)) and were granted to full-time students and those with planned vacations, criteria not designated in the rules of court. However, as the Attorney General argues, even if Attorney Amador had been present, the result would have been the same. As she points out, in the first trial, Amador stipulated to the excusal of jurors who requested a hardship dismissal on the same grounds defendant now claims were too permissive. Moreover, there is no showing that any of the hardship excusals were improper or an abuse of discretion. ―[R]ule 2.1008‘s strictures on the jury commissioner‘s authority to issue hardship excusals do not necessarily apply to hardship excusals granted by the trial court during voir dire.‖ (People v. Tate, supra, 49 Cal.4th at p. 665, fn. 18.) Defendant has failed to show that any of those excusals resulted in the seating of biased jurors or that the panel from which persons were excused for hardship reasons was less than representative. (See People v. Tate, supra, 49 Cal.4th at p. 663, fn. 16.) Finally, defendant argues that Attorney Ducre failed to object when the trial court stated that because a previous jury had determined defendant‘s guilt and the truth of the special circumstances, it ―will not be something that you will have to concern yourself with.‖ He claims that he was prejudiced because the statement undermined the concept of lingering doubt. As discussed below, the trial court‘s statement was not incorrect. (See post, pp. 77-79.) Moreover, as the Attorney General points out, it was likely that Amador himself would not have objected.

To prove torture murder, the prosecution must establish ― ‗a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose.‘ ‖ (People v. D‘Arcy (2010) 48 Cal.4th 257, 293.) To prove a torture-murder special circumstance, the prosecution must show that defendant intended to kill and had a torturous intent, i.e., an intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose. (People v. Elliot (2005) 37 Cal.4th 453, 479.) The jury may infer the intent to inflict extreme pain from the circumstances of the crime, the nature of the killing, and the condition of the victim's body. (People v. Chatman (2006) 38 Cal.4th 344, 390.) People v. Cole, supra, 33 Cal.4th 1158, is on point. There, the defendant poured gasoline on the victim and set her on fire. Like Yolanda, the victim in Cole sustained burns over 50 percent of her body, died 10 days later from severe respiratory problems, and had been in a violent, abusive relationship with her killer. In Cole, we held that evidence of the victim‘s suffering — in the form of expert testimony and photographs — was relevant to prove intent to inflict extreme pain, required for both murder by torture and the torture-murder special circumstance, and to prove the commission of an act calculated to cause extreme pain, required for the torture-murder special circumstance. (People v. Cole, supra, 33 Cal.4th at pp. 1196-1199.) Defendant argues that Cole is distinguishable because it is a pre-Proposition 115 case, while this is a post-Proposition 115 case. He is correct that Proposition 115, effective June 6, 1990, eliminated ― ‗proof of the infliction of extreme physical pain no matter how long its duration‘ ‖ as an element of the torture- murder special circumstance. (People v. Cole, supra, 33 Cal.4th at p. 1197, fn. 7.) Nevertheless, the evidence here, as in Cole, was relevant to prove intent to inflict extreme pain. (See also People v. D‘Arcy, supra, 48 Cal.4th at pp. 298-299

confrontation unless defendant engaged in conduct designed to prevent absent witness from testifying].) Defendant responds that the rule is inapplicable here because defendant did not engage in conduct designed to prevent the witness from testifying. We need not decide this question because any error in admitting the declaration was harmless beyond a reasonable doubt. (Harrington v. California (1969) 395 U.S. 250, 288.) First, the declaration‘s statements merely corroborated testimony presented in the form of live witnesses. The prosecution presented extensive evidence of defendant‘s violent, abusive relationship with Yolanda at both phases of trial. During the guilt and penalty phases, Yolanda‘s daughter, Lawanda, testified about the December 30, 1996 event, but in greater detail. She described that on that day, she was awoken by her mother‘s screams and saw defendant pulling on Yolanda‘s hair and dragging Shavonda by her leg brace in the presence of Little Howie. Defendant warned Lawanda that if she continued watching, he would pull Yolanda‘s hair harder. Defendant got on top of Yolanda. Because defendant‘s and Yolanda‘s pants were down, it appeared he was trying to do something ―sexually.‖ Defendant ―tortured‖ Yolanda for hours. The next day, Yolanda‘s head was sore. Lawanda identified a photograph of her mother depicting the head injuries she suffered that night. Lawanda stated that before this incident, defendant continually threw things around the house, argued with and threatened Yolanda, and pushed her around. Other witnesses provided further details about their relationship. During the guilt and penalty phases, Yolanda‘s sister, Lucinda Buttler, testified that she saw defendant push Yolanda out of the door when Yolanda did not want to leave the house after her father‘s funeral and that Yolanda told her defendant was abusive during the last year or two of their relationship. During the guilt phase, Yolanda‘s brother, Quentin Buttler, testified that he saw and photographed

1) Deliberate, Premeditated Murder Defendant contends that the prosecution presented insufficient evidence of premeditation and deliberation because none of the categories of evidence set forth in People v. Anderson (1968) 70 Cal.2d 15 were met in this case. In Anderson, we ―identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing.‖ (People v. Bolin (1998) 18 Cal.4th 297, 331.) ―However, these factors are not exclusive, nor are they invariably determinative.‖ (People v. Combs, supra, 34 Cal.4th at p. 850.) ― ‗Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]‘ ‖ (People v. Bolin, supra, 18 Cal.4th at pp. 331-332.) As to planning and motive, defendant argues that although he was distraught about his failed relationship with Yolanda, the evidence showed only that he planned to meet with Yolanda, visit with his son, Little Howie, and try to win her back. He contends it does not show that he intended to kill her. As to the manner of killing, defendant argues that the evidence showed the killing was a rash, impulsive explosion of violence brought on by his having to wait for Yolanda, who was late. In so arguing, defendant primarily relies on his own testimony, and asks us to reject any incriminating inferences that the jury could have reasonably deduced from the prosecution‘s evidence. The evidence in all three categories was overwhelming. The prosecution‘s evidence showed that defendant was controlling toward Yolanda, that he repeatedly physically abused Yolanda, and that Yolanda was afraid of him to the extent that she sought a restraining order against him and secretly left him and hid in a hotel instead of staying at her sister‘s house. When he was trying to find Yolanda and Little Howie, defendant went to the houses of Yolanda‘s siblings and

after he and Yolanda were dead, and that was why defendant asked his parents to care for Little Howie. Moreover, the jury could have reasonably concluded that defendant planned the precise manner of killing. Defendant stated that he arrived on time at 4:00 p.m. to meet Yolanda and the children and became angry and frustrated because they were late. However, the jury could have reasonably rejected his testimony that they were late, since the 911 call reporting Yolanda on fire was received at 3:21 p.m. Yolanda‘s son, Patrick, stated that defendant appeared nervous as they drove up to the Chuck E. Cheese restaurant. The police found that the gas cap from defendant‘s car was on the car‘s bumper and that the car‘s steering wheel was locked by a Club device. Thus, the jury could have reasonably concluded that defendant came early, before Yolanda‘s arrival, and siphoned gasoline out of his gas tank to fill the plastic container he intended to use to pour gasoline on Yolanda. Further, it could have reasonably rejected defendant‘s testimony that he only intended to take his son on a drive. Instead, it could have reasonably concluded that defendant placed Little Howie in his car for his safety, so that he could then beat and incapacitate Yolanda to enable him to pour gasoline on her and her car, and set her on fire. Finally, the manner of killing itself demonstrates premeditation and deliberation. The evidence revealed that defendant was still angry at Yolanda for leaving him and taking his son. Edward Jasso testified that, while beating Yolanda, defendant looked angry and called her a ―fucking bitch.‖ Moreover, the evidence showed that defendant‘s acts occurred in stages. Defendant beat and kicked Yolanda repeatedly, then stopped to retrieve the plastic container from his car. He returned to Yolanda and poured gasoline on her. He dragged Yolanda to his car, but then released her to retrieve a cigarette lighter from his car. He then chased her and set her on fire. Thus, the jury could have reasonably concluded

of passion, in an ―explosion of violence,‖ as with the intent to inflict cruel suffering.‘ ‖ (People v. Cole, supra, 33 Cal.4th at pp. 1213-1214.) Defendant argues that the only reasonable interpretation of the evidence is that the acts of pouring gasoline on Yolanda and setting her on fire was simply an unplanned, impulsive explosion of violence resulting from a fight that spun out of control. Again, defendant relies primarily on his own testimony at trial, while ignoring the prosecution‘s evidence and the reasonable inferences to be drawn therefrom. Given defendant‘s prior physical abuse of Yolanda, his attempts to control her by preventing communication with her family, his anger with Yolanda for leaving him and taking his child, and concealing her whereabouts, and the repeated threats against Yolanda‘s family, the jury could have reasonably concluded that when defendant intentionally set Yolanda on fire as he had planned, he intended to cause Yolanda extreme pain and suffering as punishment or for revenge. (See e.g., People v. Cole, supra, 33 Cal.4th at p. 1214 [torture- murder conviction supported by evidence of prior tumultuous domestic relationship, victim‘s plan to leave defendant, threats against victim, and manner of killing victim by burning her with flammable liquid].) As the prosecutor argued, someone who sets a person on fire with gasoline clearly intends to inflict extreme and prolonged pain on that person. Moreover, after defendant set Yolanda on fire, he fled from the scene and failed to aid in rescue attempts. (See People v. Martinez (1952) 38 Cal.2d 556, 561 [defendant burned wife with gasoline and failed to aid in and hindered rescue attempts].) Such evidence, together with the resulting condition of Yolanda‘s body and her painful, prolonged death 10 days later ―permitted an inference that defendant set [the victim] on fire with the intent to inflict extreme pain for the purpose of revenge.‖ (People v. D‘Arcy, supra, 48 Cal.4th at p. 294; see also People v. Whisenhunt, supra, 44 Cal.4th at p. 201 [victim‘s wounds inflicted by defendant‘s attack and

requirements of the lying-in-wait special circumstance were slightly different from, and more stringent than, the requirements for lying-in-wait first degree murder. [Citation.] Whereas lying-in-wait first degree murder required only that the murder be perpetrated ‗by means of‘ lying in wait (§ 189), the lying-in-wait special circumstance applied to murder committed ‗while lying in wait‘ (§ 190.2, former subd. (a)(15), italics added).‖ (People v. Lewis, supra, 43 Cal.4th at pp. 511-512.) Further, the lying-in-wait special circumstance requires intent to kill, while lying-in-wait murder requires only a wanton and reckless intent to inflict injury likely to cause death. (People v. Moon (2005) 37 Cal.4th 1, 24, fn. 1.) As shown below, because the evidence supports the special circumstance, it necessarily supports the theory of lying-in-wait first degree murder. ― ‗ ―The lying-in-wait special circumstance requires ‗an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage . . . .‘ [Citations.] ‗The element of concealment is satisfied by a showing ― ‗that a defendant's true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.‘ ‖ ‘ [Citation.]‖ [Citation.]‘ [Citation.]‖ (People v. Combs, supra, 34 Cal.4th at p. 853.) First, the evidence established that defendant concealed his intent to kill Yolanda. From the note to his parents, the jury could have reasonably concluded that defendant intended to kill Yolanda. He concealed his purpose by luring Yolanda to the restaurant under the pretext of an attempted reconciliation and a familial visit. Patrick testified that defendant had been calling Yolanda, claiming he wanted to reconcile with her. Defendant testified that he had convinced Yolanda to bring the children to meet him once before, and that the meeting had

occurred without incident. Defendant further testified that he told Yolanda he wanted to get back together with her, and when she refused he told her he might do something to himself. She then agreed to meet him at the Chuck E. Cheese restaurant. (See People v. Sims (1993) 5 Cal.4th 405, 433 [defendant lured victim to motel room on pretext of ordering pizza, concealing true intent to rob and murder him].) Moreover, from the removed gas cap from defendant‘s car, the jury could have reasonably concluded that defendant prepared the instruments of her killing before Yolanda‘s arrival at the restaurant. Defendant claims that there is no evidence his concealed purpose was a murderous one. Instead, he argues the evidence shows that his pretextual request to see Yolanda concealed his true purpose of taking his son from her. Again, defendant focuses solely on his own testimony. In contrast, the prosecution‘s evidence revealed that before Yolanda arrived, defendant locked his steering wheel, which was not conducive to a quick getaway with his son. Moreover, defendant had the opportunity to leave after he secured Little Howie in his car, but did not. Indeed, as the Attorney General points out, the defense did not even argue to the jury that defendant‘s true concealed purpose was to take his son from Yolanda. The evidence supports the jury‘s finding that defendant concealed his intent to kill Yolanda. Second, the evidence showed that defendant engaged in a substantial period of watching and waiting for an opportune time to act. ―Watchful‖ does not require actual watching; it can include being ―alert and vigilant‖ in anticipation of the victim‘s arrival to take him or her by surprise. (People v. Sims, supra, 5 Cal.4th at p. 433.) The jury could have reasonably concluded that defendant was at the restaurant long enough to secure his car with the Club locking device and remove gasoline from his gas tank to fill up the plastic container in his trunk. Defendant testified that he waited for Yolanda for 30 to 40 minutes. Although defendant

testified that he and Yolanda planned to meet at 4:00 p.m., the 911 call reporting Yolanda on fire was received at 3:21 p.m. The jury could have reasonably concluded that if Yolanda was early for the meeting, defendant arrived even earlier and waited to take her by surprise. According to Patrick, defendant was clapping his hands and appeared nervous when they arrived at the restaurant. Thus, the evidence reflects that defendant was waiting nervously for Yolanda‘s arrival to set his deadly plan in motion. Finally, the evidence reflects that immediately after the period of watching and waiting, defendant launched a surprise attack on the unsuspecting victim from a position of advantage. Immediately after Yolanda‘s arrival, defendant grabbed Little Howie and placed him in his car. From this evidence, the jury could have reasonably inferred that defendant placed his son there for safety purposes, to protect him from the fire defendant intended to start. When Yolanda attempted to retrieve her son, she and defendant began to argue and push each other. Defendant beat and kicked Yolanda and returned to his car to retrieve the gasoline, which he then poured on Yolanda‘s car and on Yolanda. He then beat her again and grabbed her by the hair and attempted to drag her back to his car to get something with which to ignite the gasoline. Finally, defendant let Yolanda go and went to his car for the lighter. Yolanda tried to get away, but defendant caught her and set her on fire. Defendant argues that there was insufficient evidence the killing took place ―while lying in wait‖ (§ 190.2, former subd. (a)(15)), i.e., ― ‗during the period of concealment and watchful waiting.‘ ‖ (People v. Lewis, supra, 43 Cal.4th at p. 512.) ―Although we have not defined the parameters of a murder committed ‗during the period of concealment and watchful waiting,‘ the language of [CALJIC No. 8.81.15 (1989 rev.)] supplies meaning to that phrase. That instruction stated: ‗Thus, for a killing to be perpetrated while lying in wait, both

the concealment and watchful waiting as well as the killing must occur during the same time period, or in an uninterrupted attack commencing no later than the moment concealment ends. [¶] If there is a clear interruption separating the period of lying in wait from the period during which the killing takes place, so that there is neither an immediate killing nor a continuous flow of the uninterrupted lethal events, the special circumstance is not proved.‘ ‖ (People v. Lewis, supra, 43 Cal.4th at p. 512.) Here, the trial court instructed the jury in the language of CALJIC No. 8.81.15. Yolanda met with defendant under the belief he wanted a reconciliation and to visit with Little Howie. Instead, defendant launched a surprise attack with the intent to set her on fire. It began with the preparatory step of taking Little Howie away from his mother, and was followed immediately with the beating of Yolanda when she attempted to retrieve her son and the lethal acts of dousing Yolanda with gasoline and igniting it. Although there were discrete events during which defendant beat Yolanda, went to his car to retrieve gasoline and the lighter, and poured gasoline on Yolanda and lit it, the time between each event took only minutes or seconds. Thus, contrary to defendant‘s claim, ―no ‗cognizable interruption‘ occurred between the period of watchful waiting and the commencement of the murderous and continuous assault which ultimately caused her death.‖ (People v. Morales (1989) 48 Cal.3d 527, 558; People v. Carpenter (1997) 15 Cal.4th 312, 389 [end of lying in wait, attempted rape, and killing occurred within minutes]); compare with People v. Lewis, supra, 43 Cal.4th at pp. 511, 514-515 [cognizable interruption occurred between period of watchful waiting and killings, when defendant and accomplices kidnapped victims and proceeded to drive them to ATM machines from which he withdrew their funds before killing them]; Domino v. Superior Court (1982) 129 Cal.App.3d 1000, 1011-1012 [cognizable interruption when defendant killed victim hours after

kidnapping that was preceded by period of lying in wait].) Moreover, the jury could reasonably find no lapse in defendant‘s culpable mental state between the homicide and the period of watchful waiting. (People v. Lewis, supra, 43 Cal.4th at p. 514, quoting People v. Carpenter, supra, 15 Cal.4th at p. 389 [no cognizable interruption where no lapse in defendant‘s culpable mental state].) Defendant argues that Yolanda was not surprised as evidenced by her attempt to flee when defendant retrieved the plastic container. However, the attack on her had already begun. Initially, on seeing defendant as planned and on having had a prior, peaceful meeting with defendant, Yolanda would not immediately have suspected she was in danger and could not have anticipated defendant‘s deadly intentions. (See e.g., People v. Moon, supra, 37 Cal.4th at pp. 22, 24 [being well acquainted with defendant, victim would not immediately suspect danger].) Also, because it appeared that the prior domestic assaults on Yolanda occurred within the privacy of their home, the jury could reasonably infer that she could not have anticipated that defendant would beat her in public and certainly not set her on fire there. (See e.g., People v. Stevens (2007) 41 Cal.4th 182, 203 [defendant lured victim into vulnerable position by creating or exploiting false sense of security].) Because we find that substantial evidence supports the lying-in-wait special circumstance, we also conclude there was substantial evidence to support the lying-in-wait theory of first degree murder. Defendant contends that if we conclude the evidence is sufficient to support the lying-in-wait special-circumstance finding here, then the special circumstance is unconstitutional as applied to this case. In essence, defendant argues that the lying-in-wait special circumstance is too broad if the facts of this case fall within it. ―That is simply another way to state his facial attack on the statute, which we have rejected [below]. [Citation.]‖ (People v. Lewis, supra, 43 Cal.4th at p. 517.)

purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage, the special circumstance of murder while lying in wait has been established.‖ (Ibid.) Because the instruction required an intentional killing and an uninterrupted connection between the lethal acts and the period of lying in wait, a reasonable jury would not have believed that the nonlethal act and intent of taking Little Howie would have satisfied the requirements of concealment of purpose and watchful waiting to act. Second, defendant contends that the special instructions given by the court at the prosecutor‘s request, together with CALJIC No. 8.81.15, failed to instruct on an intent to kill and eliminated the immediacy of attack requirement. Again, he is wrong. The prosecutor requested three special instructions on lying in wait. Although defendant objected to special instructions 1 and 3, the trial court gave all three special instructions. Special instruction 1 emphasized that the special circumstance of lying in wait — unlike lying-in-wait murder — required that the killing be committed ―while‖ lying in wait. Elaborating on the distinction, special instruction 3 explained: ―Use of the word ‗while‘ in the special circumstance of lying in wait means that the killing must take place during the period of concealment and watchful waiting or the lethal acts must begin at and flow continuously from the moment the concealment and watchful waiting ends. If a cognizable interruption separates the period of lying in wait from the period during which the killing takes place, the special circumstance does not exist. A brief interval of time between the killer‘s first appearance and the acts inflicted which cause the killing do not necessarily negate a surprise attack, so long as there is a continuous flow in the culpable state of mind between the period of watchful waiting and the homicide.‖

Focusing on the last sentence of special instruction 3, defendant claims that because ―it is not clear to what culpable state of mind the instruction refers,‖ the jury ―could equate culpable mental state with one that is non-lethal or merely deceitful,‖ i.e., that defendant‘s intent was to take his son from Yolanda by a ruse. However, when considered with CALJIC No. 8.81.15, it is clear that the necessary ―culpable state of mind‖ was the intent to kill. Moreover, during closing argument, the prosecutor emphasized the requirement of intent to kill. Thus, there is no reasonable likelihood the jury misapplied the instruction in the manner defendant claims. (People v. Huggins (2006) 38 Cal.4th 175, 192.) Defendant further claims that the last sentence of special instruction 3 told the jury that ― ‗the continuous flow‘ only need be ‗the culpable state of mind‘ regardless of the actual events that had occurred‖ and that a continuous flow of the lethal events was not required. Again, defendant focuses on an isolated sentence rather than the full context. The first sentence of special instruction 3 told the jury that ―the lethal acts must begin at and flow continuously from the moment the concealment and watchful waiting ends.‖ CALJIC No. 8.81.15 also told the jury that ―If there is a clear interruption separating the period of lying in wait from the period during which the killing takes place, so that there is neither an immediate killing nor a continuous flow of the uninterrupted lethal events, the special circumstance is not proved.‖ (Italics added.) The instruction further stated that the surprise attack must occur immediately after the period of watching and waiting. Considered as a whole, the instructions clearly conveyed the immediacy requirement regarding the lethal acts. Finally, defendant contends that the lying-in-wait special circumstance is unconstitutional because there is no meaningful distinction between the special circumstance, and premeditated, deliberate murder and murder by means of lying in wait. He also argues the special circumstance does not meaningfully

8.88) instructed, in the unadorned language of section 190.3, that the jury ―shall‖ impose a sentence of death if it concludes that the aggravating circumstances outweigh the mitigating circumstances. Conversely, it instructed that the jury ―shall‖ impose a sentence of confinement in state prison for life without possibility of parole if it concludes that the aggravating circumstances do not outweigh the mitigating circumstances. (People v. Myers (1987) 43 Cal.3d 250, 273; People v. Allen (1986) 42 Cal.3d 1222, 1276.) In Brown, we held that an instruction using this language could confuse and mislead the jury regarding the manner in which penalty should be determined. (Brown, supra, 40 Cal.3d at p. 544, fn. 17.) ―One danger is that the jury will perform the weighing process in a mechanical fashion by comparing the number of factors in aggravation with the number in mitigation, or by the arbitrary assignment of weights to the factors. [Citation.] The other danger is that the jury will fail to understand that our statutory scheme does not require any juror to vote for the death penalty unless, as a result of the weighing process, the juror personally determines that death is the appropriate penalty under all the circumstances. [Citations.]‖ (People v. Edelbacher (1989) 47 Cal.3d 983, 1035 (Edelbacher).) Regarding pre-Brown cases, in which the trial court instructed in the unadorned language of section 190.3, we stated we would examine each prior case ―on its own merits to determine whether, in context, the sentencer may have been misled to defendant‘s prejudice about the scope of its sentencing discretion under the 1978 law.‖ (Brown, supra, 40 Cal.3d at p. 544, fn. 17.) Consequently, in such pre-Brown cases, we reviewed the whole record, including the arguments of counsel, to determine whether instructing in the unadorned statutory language and omitting clarifying language, may have mislead the jury to defendant‘s prejudice concerning the proper scope of its sentencing discretion. (See e.g., Edelbacher, supra, 47 Cal.3d at p. 1037; People v. Myers,

supra, 43 Cal.3d at p. 275 (Myers); People v. Allen, supra, 42 Cal.3d at pp. 1277- 1280 (Allen).) In Allen, we held that it was not likely the jury was misled about the scope of its sentencing discretion. In making that determination, we emphasized that the prosecutor, during argument, did nothing to mislead the jury about the weighing process and its weighing discretion, but that ―he in fact left it with the understanding that the value to be assigned to the aggravating and mitigating factors was a matter to be decided by each individual juror.‖ (Allen, supra, 42 Cal.3d at p. 1278.) Also, we noted that during argument, the prosecutor never misled the jury about its sole responsibility of determining the appropriate penalty based on its individualized weighing discretion, but instead focused on the appropriateness of the death penalty under all the circumstances of the case. (Id. at pp. 1278-1280.) In Myers, we held that it was unlikely the jury was misled regarding the first source of potential confusion — the nature of the weighing process — identified in Brown. We relied on the fact that the prosecutor and defense counsel correctly argued that the jury was free to ― ‗attach whatever weight is appropriate‘ to each of the relevant factors.‖ (Myers, supra, 43 Cal.3d at p. 275.) Regarding the second source of potential confusion — the discretionary nature of the penalty determination — identified in Brown, we concluded that there ―seem[ed] no question but that the jury may well have been misled to defendant‘s prejudice.‖ (Ibid.) We noted that the prosecutor incorrectly argued that the penalty determination was simply a weighing process, that the determination of penalty was mandatory based on whether the aggravating or mitigating circumstances preponderated, and that when the weighing process was completed, the jury could not return a penalty verdict based on its personal preference. (Ibid.) In reversing the death judgment, we further noted that ―the prosecutor‘s characterization of the

jury‘s function . . . was not refuted or corrected by the court‘s instructions.‖ (Id. at p. 276.) As in Allen and Myers, the trial court in Edelbacher instructed in the unadorned language of section 190.3. In determining whether there was substantial danger that the jury was misled with respect to the two sources of potential confusion identified in Brown, we looked to the instructions given, the arguments of counsel, and the trial court‘s failure to instruct on crucial aspects of the penalty process. (Edelbacher, supra, 47 Cal.3d at pp. 1036-1041.) Regarding the nature of the weighing process, we noted that the court gave a supplemental explanatory instruction that told the jury it was not to determine the ultimate punishment by simply counting the number of aggravating and mitigating circumstances on each side, but to determine their weight by their relative convincing force. On the other hand, the court refused to instruct that the weight to be given any factor was to be decided by each juror individually. We concluded that ―on the whole,‖ the arguments of counsel were ―not seriously misleading‖ because the prosecutor and defense counsel correctly stated in argument that the weighing process was qualitative and that the sheer number of factors in aggravation or mitigation was not determinative. (Edelbacher, supra, 47 Cal.3d at p.1036.) Regarding the discretionary nature of the penalty determination within the context of the weighing process, we noted that the trial court did not inform the jury that its responsibility, based on its individualized weighing discretion, was to determine the appropriate penalty or that the weight to be given any factor was to be decided by each juror individually. (Edelbacher, supra, 47 Cal.3d at pp. 1036- 1037.) We stated that, ―The failure to give any sufficient clarifying instruction on this crucial aspect of the penalty determination process requires us to examine the whole record, including the arguments of counsel, to determine whether the jury

may have been misled to defendant‘s prejudice concerning the proper scope of its sentencing discretion.‖ (Edelbacher, supra, 47 Cal.3d at p. 1037.) We noted that during argument, the prosecutor repeatedly emphasized that the determination was simply a weighing process and that a death sentence was mandatory if aggravating circumstances preponderated, without reference to the jury‘s view of the appropriateness of the penalty. Although defense counsel stressed the individualized and moral or normative nature of the penalty decision (Edelbacher, supra, 47 Cal.3d at pp. 1037-1040), we reasoned that ―[t]he prosecutor and defense counsel, through their arguments, constructed starkly different models of the sentencing process‖ and there was ―no way of knowing which model the jurors adopted in reaching their penalty verdict.‖ (Id. at p. 1040.) Thus, there was a substantial danger the jury was misled with respect to the proper context of the weighing process and the discretionary nature of the penalty determination. (Id. at p. 1036.) In People v. Brasure, supra, 42 Cal.4th 1037 (a post-Brown case), the trial court substituted its own instruction for CALJIC No. 8.88. It told the jury it ― ‗shall impose a sentence of death if the jury concludes that the aggravating circumstances outweigh the mitigating circumstances‘ ‖ and ―omitted the language of CALJIC No. 8.88 providing that to return a death verdict each juror ‗must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole.‘ ‖ (People v. Brasure, supra, 42 Cal.4th at pp. 1060-1061.) After considering the totality of the instructions and arguments, we concluded that there was no reasonable likelihood the trial court's failure to instruct as directed in Brown misled the jurors as to the scope of their sentencing discretion or responsibility. (People v. Brasure, supra, 42 Cal.4th at pp. 1062, 1064-1065.)

Unlike the above cases, the trial court here did not give a confusing or misleading instruction, but failed to instruct the jury at all on the procedure used in determining penalty. (See Henderson v. Kibbe (1977) 431 U.S. 145, 155 [―[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law‖].) However, after considering the instructions given, the arguments of counsel, and the court‘s response to the jury‘s note during deliberations, we conclude that the court‘s failure to instruct in the pertinent language of CALJIC No. 8.88 did not mislead the jury or leave it without adequate guidance as to the scope of their sentencing discretion or responsibility. (People v. Brasure, supra, 42 Cal.4th at pp. 1062, 1064-1065; cf. People v. Moon, supra, 37 Cal.4th at p. 39 [omission of evidentiary instructions at penalty phase, though error, was harmless; defendant failed to demonstrate that instructions given, to a reasonable likelihood, precluded jury from considering any constitutionally relevant mitigating evidence].) Before the court instructed the jury, the parties gave their closing arguments. Neither party objected to the opposing party‘s comments on the procedure used in determining the appropriate penalty. During argument, the prosecutor never suggested that the weighing process was a mechanical, quantitative process, but instead told the jury it involved a qualitative process, allowing each juror the choice to assign any moral or sympathetic value to each of the factors. In this regard, the prosecutor argued: ―In this phase, you must consider any sympathetic aspect of the defendant‘s character or anything else that he has coming to him for mitigation. You must consider that and weigh it. That‘s only fair. So go ahead and do that.‖ The prosecutor further stated: ―If [defendant] deserves any sympathy, again, then give it to him. If he is sincere about finding God, then good for him. But what he has done is simply not

Also, defense counsel clarified even further the individualized and moral or normative nature of both the weighing process and the ultimate, penalty determination. He emphasized that the jury could apply sympathy or moral values to specifically designated factors, stating ―[y]ou could apply some value to it, sympathy or moral value of your own. You own feelings, not somebody else‘s.‖ (Italics added.) Counsel further emphasized that the final decision regarding penalty was an individual one: ―[y]ou have to decide whether or not he lives or dies. That has to come from you. You have to apply your sympathetic and moral values that you have on your own.‖ Defense counsel concluded his argument with the final remarks: ―When you go back there and decide and think of this and look at this, remember that the letter of the law allows you as an individual, as a person, to decide whether or not you are going to accept a factor or you are going to apply some less value to one factor than you will the other factor. That is you, as individuals, must do that in your own conscience, your own way. ―We need each and every one of your decisions, your judgment. We need for you to go in there and talk and discuss it with each other and not get angry with each other, and discuss it with each other, so that you can come to a reasonable verdict. Whatever the law requires. We need for you to listen to the others when the others are against you or for the people that are against one or two persons. Listen. The one or two persons, maybe they might have something to offer. But whatever it is, we need each and every one of you individually to come up with a decision.‖ The trial court then instructed that the jury was to determine which penalty to impose, death or confinement in the state prison for life without possibility of parole, and that the ―law expressly states that it voices no opinion as to which penalty is preferred.‖ It instructed, in the language of CALJIC No. 8.85, that ―[i]n

should have responded with the giving of CALJIC No. 8.88, nevertheless, it reaffirmed that it was within the jury‘s discretion to arrive at the appropriate penalty. The court‘s response correctly informed the jurors that even after they engaged in the weighing process, they had the discretion to vote for life without possibility of parole. Defendant argues that the note‘s second question shows that certain jurors did not believe that death was the appropriate penalty, but were unsure whether this merely constituted a mitigating circumstance that should be weighed against aggravating circumstances or whether their belief that death was not the appropriate penalty was sufficient to vote for life even if aggravation outweighed mitigation. However, as the Attorney General argues, defendant reads too much into the question. The note could also be interpreted as asking whether the absence of an aggravating circumstance is a mitigating circumstance. (Cf. People v. Jackson, supra, 45 Cal.4th at p. 695 [trial court not required to instruct that the absence of a mitigating factor is not aggravating].) Twenty-two minutes after the trial court sent its response to the jury, the jury sent another note stating, ―We cannot all come to a verdict. No unanimous verdict.‖ The trial court informed the jurors that it would not be in session on Friday or the following Monday and directed them to return the following Tuesday after a four-day break. The jury resumed deliberations on Tuesday morning and reached a verdict that afternoon. As the Attorney General argues, the jury‘s deadlock indicates that the jury understood they could vote for life without parole even under the circumstances presented in the note, i.e., where the aggravating circumstances substantially outweighed the mitigating circumstances or as defendant argues, where one or more jurors felt the case did not meet the minimum standards for death. The jury‘s deadlock further shows that at least one juror chose to exercise his or her

Before the penalty retrial, defense counsel moved to exclude photographs of the victim‘s injuries and the ambulance recording as irrelevant. Counsel argued that defendant had already been convicted of committing murder by torture at the guilt phase and that the only purpose for admitting the photographs and ambulance tape would be to inflame the jury. The prosecutor argued that the evidence was relevant to show the circumstances of the crime (§ 190.3, factor (a)) and was particularly important to the jury‘s understanding of the nature and extent of Yolanda‘s injuries since this was not the same jury that had heard the guilt phase evidence. The prosecutor further argued that the ambulance tape was relevant as victim impact evidence. Defense counsel responded that the proffered evidence did not show the circumstances of the crime, only occurrences ―after the fact.‖ The trial court admitted two of the photographs and the ambulance tape as factor (a) evidence and as victim impact evidence. It expressly determined that the probative value of the evidence outweighed its prejudicial effect. As stated previously, the photographs and ambulance tape were highly relevant to the issues relating to torture murder and the torture special circumstance. (See ante, at pp. 34-40.) Thus, the trial court correctly admitted the evidence to show the circumstances of the crime (§ 190.3, factor (a)). Also, the court properly admitted the evidence as victim impact evidence to show the immediate impact of the crime on the victim and on the children who witnessed their mother or aunt burning and in pain. (See People v. Hawthorne, supra, 46 Cal.4th at pp. 101-103.) Given the relevance of the photographs and the ambulance tape, the trial court did not abuse its broad discretion in concluding the evidence was more probative than prejudicial. (People v. Hawthorne, supra, 46 Cal.4th at p. 103.) Having concluded there was no error and no prejudice, we also reject defendant‘s federal constitutional claims. (Ibid.)

of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (People v. Mendoza (2011) 52 Cal.4th 1056, 1096.) ― ‗ ―The jury need not make written findings, or achieve unanimity as to specific aggravating circumstances, or find beyond a reasonable doubt that an aggravating circumstance is proved (except for other crimes), that aggravating circumstances outweigh mitigating circumstances, or that death is the appropriate penalty. [Citations.] The death penalty statute is not unconstitutional for failing to provide the jury with instructions of the burden of proof and standard of proof for finding aggravating and mitigating circumstances in reaching a penalty determination.‖ ‘ ‖ (People v. Hawthorne, supra, 46 Cal.4th at p. 104.) Moreover, jury unanimity is not required with regard to unadjudicated criminal activity. (People v. Dykes (2009) 46 Cal.4th 731, 799.) The trial court was not required to instruct the jury that there is no burden of proof at the penalty phase, and that the beyond-a- reasonable-doubt standard and requirement of jury unanimity do not apply to mitigating factors. (People v. Mendoza, supra, 52 Cal.4th at pp. 1096-1097.) Defendant was not entitled to an instruction regarding a presumption of life. (People v. McKinnon (2011) 52 Cal.4th 610, 698.) The use of such adjectives in the sentencing factors statute as ―extreme‖ (§ 190.3, factors (d) & (g)), and ―substantial‖ (§ 190.3, factor (g)) is constitutional. (People v. Mendoza, supra, 52 Cal.4th at p. 1098.) A trial court is not required to delete inapplicable sentencing factors or to instruct that statutory mitigating factors are relevant solely as potential mitigators. (Id. at p.1097.) Intercase proportionality review is not constitutionally required. (People v. McKinnon, supra, 52 Cal.4th at p. 698.) Equal protection principles do not require the same procedural safeguards that apply to sentencing determinations in noncapital trials. (People v. Clark, supra, 52 Cal.4th at p. 1008.) Finally, defendant‘s sentence does not violate international law, ―as no authority ‗prohibit[s] a sentence of death rendered in accordance with

People v. Streeter

AI Brief

IN THE SUPREME COURT OF CALIFORNIA

I. FACTS

More from California Supreme Court

Related research

C. Guilt Phase Issues

DISPOSITION

CHIN, J.

AI Brief