People v. Rices , 4 Cal. 5th 49 ( 2017 )

Filed 12/11/17
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S175851
v. )
)
JEAN PIERRE RICES, )
) San Diego County
Defendant and Appellant. ) Super. Ct. No. SCE266581
____________________________________)
Defendant, Jean Pierre Rices, and codefendant, Anthony Miller, were
charged with crimes arising out of a liquor store robbery during which defendant
shot and killed two people. The prosecutor sought the death penalty against
defendant but not Miller. Defendant pleaded guilty to the first degree murders of
Heather Mattia and Firas Eiso under the special circumstances of multiple murder
and murder in the course of a robbery. He admitted enhancement allegations that
he personally used a firearm during the commission of the murders and previously
suffered certain felony convictions. Miller’s guilt trial and defendant’s penalty
trial were held simultaneously before separate juries. Defendant’s jury returned a
verdict of death. The court denied the automatic motion to modify the verdict and
imposed a judgment of death. This appeal is automatic. We affirm the judgment.
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I. THE FACTS
A. Overview
In March 2006, defendant and Miller robbed a liquor store, ordering the
two victims to lie on the floor. As Miller was leaving the store, defendant fatally
shot both victims in the back of the head. Much of what occurred during the
robbery, although not the actual shooting, was captured on videotape that was
played to the jury. The prosecution also presented evidence of defendant’s other
criminal conduct involving force or violence.
Defendant presented substantial evidence in mitigation, largely focusing on
his unfortunate childhood and how it contributed to his criminal behavior.
B. The Liquor Store Robbery
On March 1, 2006, shortly after 11:00 p.m., Heather Mattia, the co-owner
of the Granada Liquor store in El Cajon, and her employee, Firas Eiso, walked out
of the store after closing it for the night. Defendant and Miller confronted them
outside and forced them back into the store. Miller wore gloves and a mask;
defendant wore gloves but no mask.
Inside the store, Mattia and Eiso were ordered to lie on the floor and forced
to crawl in front of the counter. Miller, holding a bag, went behind the counter. A
short time later, Miller left the store. As Miller was leaving, defendant shot both
victims in the back of the head while they were lying on the floor. Defendant then
left the store, gun in hand, joined Miller, and they drove away. Just under four
minutes elapsed from the time the victims were forced back into the store until
defendant left the store.
The bodies, lying facedown side by side in pools of blood, were soon
discovered. Police found two nine-millimeter bullet casings nearby. A bullet was
found under Eiso’s body. A second bullet was found in a stack of beverage cans,
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where it had come to rest after ricocheting around. The drawers to some cash
registers had been pulled out.
Both Mattia and Eiso died of a single gunshot wound through the head.
Mattia also suffered grazing wounds to her forearm, finger, and hand, probably
caused by the same bullet after it passed through her head. The condition of
Mattia’s lungs indicated she was still breathing for about 15-20 minutes after she
was shot. Her head wound was such that the body might have twitched
involuntarily until she died. The autopsy revealed no indications of a struggle.
The parties stipulated that if called as witnesses, Rodney Hodges and
Dwayne Hooks — defendant’s cohorts in later crimes — as well as Debbie Mays,
would testify that, on separate occasions, defendant told each of them that he had
shot two people in the head during the liquor store robbery, and the legs of the
female victim twitched after he shot her.
Miller testified on his own behalf. Most, although not all, of his testimony
was in front of defendant’s penalty jury as well as Miller’s guilt jury. On the night
of the robbery, he rode to the liquor store with defendant and Nichele Hopson,
who drove. Miller was just going along for the ride and thought they were going
to buy something to drink. When he and defendant got out of the car, defendant
pulled out a gun, tossed Miller a bag, and told him they were going to do a
robbery. Miller was “scared out of [his] wits.” Because defendant had a firearm,
Miller felt he had no choice but to do as he was directed. Inside the bag were
gloves and a mask, which defendant told him to put on. Defendant then told
Miller to follow him into the store.
When Miller stepped into the store, he saw Mattia and Eiso lying on the
floor. Defendant was still holding the gun. Following defendant’s orders, Miller
took money from the cash register, which he put into the bag. The victims were
cooperating and saying things like, “Just take the money, leave me alone.” Mattia
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told them where the money was. After Miller took the money, defendant told him
to leave the store, which he did. Miller did not hear any shots, but Hopson told
him she heard some. Then defendant got into the car and told Hopson to drive
away.
The prosecution cross-examined Miller about his prior statements — in
which he confessed to his involvement in the crime and did not implicate
defendant in the manner he did at trial — and impeached him with a friendly letter
he wrote to defendant in jail after his arrest. Miller also acknowledged that he had
previously told the police he heard Mattia say, “Please don’t kill me. I just want to
be with my family”; and he heard Eiso begging for his life. Miller testified he lied
to the police and did not actually hear these statements. He also testified that
defendant never made threats to force him to participate in the robbery.
C. Defendant’s Other Crimes
The prosecution presented evidence of defendant’s felony convictions and
other criminal conduct.
On February 10, 1999, defendant and another man robbed a Taco Bell
restaurant in San Diego, netting about $150. The manager testified she saw the
butt of a gun in defendant’s pocket. Defendant admitted his involvement in the
robbery.
On March 7, 1999, defendant and two others approached Paul Hillard while
he was sitting in his car. Wielding a gun, defendant ordered Hillard to get out of
the car and lie on the ground. One of the three took $304 from Hillard, and then
they drove away in Hillard’s car. Police found defendant a short time later sitting
in the front passenger seat of the car. A gun was recovered from that seat, and
defendant admitted he was the one holding the gun during the robbery.
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On July 28, 2006, defendant and Rodney Hodges unsuccessfully attempted
to rob a Bank of America branch in El Cajon. During the attempt, defendant fired
two shots with a handgun.
On July 31, 2006, defendant, armed with a handgun, and Dwayne Hooks
robbed a Washington Mutual Bank branch in Lakeside. Defendant pointed the
handgun close to a teller’s head, ordered her to unlock a cash drawer, and then
ordered her to lie on the floor. During the robbery, defendant dropped some keys
that were later identified as those given to him before the robbery. Defendant and
Hooks left the bank with about $25,000 in cash. Unbeknownst to them, however,
the cash contained a “dye pack,” which activates when it is taken through the
sensors on the bank doors. While defendant and Hooks were driving away, the
pack exploded, sending red dye and tear gas into the car’s interior. Defendant’s
saliva was later found mixed with the dye on the surface of the getaway car.
On January 12, 2008, while in jail, defendant and other inmates assaulted
another inmate. On May 29, 2008, defendant and another inmate assaulted a
different inmate, who suffered “minor injuries” as a result.
On August 8, 2008, defendant assaulted Deputy Sheriff James Clements,
slicing him with a razor blade. Clements needed ten stitches and four staples to
close head wounds, and suffered other lacerations. When asked later whether he
was injured, defendant said he was not and added, “But I blasted your cop.”
On August 11, 2008, correctional officers found a piece of metal that “was
started to be sharpened” in the waistband of defendant’s pants. The next day,
while being transported for medical treatment, defendant threatened jail deputies,
including threats of “gassing” — or “throwing urine or feces on” — correctional
personnel.
The parties stipulated that defendant suffered the following felony
convictions: a 1999 conviction for robbing Hillard while armed with a firearm; a
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2000 conviction for possession of cocaine base for sale; a 2001 conviction for
possession of a deadly weapon while incarcerated in prison; a conviction for the
July 28, 2006, attempted robbery of the Bank of America while armed with a
firearm; a conviction for the July 31, 2006, robbery of the Washington Mutual
Bank while armed with a firearm; and a conviction for the attempted murder of
Deputy Clements, a peace officer, and the infliction of great bodily injury. He was
in custody on these matters from March 8, 1999, to December 3, 1999, from
November 16, 2000, to October 1, 2005, and after August 23, 2006.
D. Defense Evidence
Defendant presented several witnesses in mitigation who said his mother
was a prostitute addicted to PCP, and his father was her pimp. His father was
absent from his life and played no role in raising him. His mother was neglectful
and unaffectionate, and she abandoned him at a Jack in the Box restaurant when
he was five years old. After that, he was raised by relatives or was shuttled
through several placements, including a group home.
Dr. Rahn Minagawa, a forensic psychologist, described defendant’s
childhood as “pretty horrendous.” In his opinion, defendant should have received
therapy or other professional intervention at various times during his early
childhood. In addition, defendant’s “gang membership,” beginning at an early
age, was a negative influence that contributed to his criminal behavior.
Barbara Duey, an attorney with the Children’s Law Center of Los Angeles,
testified that, although defendant received therapy when he was 13 and 14 years
old, he should have received it earlier when he most needed it.
Daniel Vasquez, a former warden at San Quentin State Prison, reviewed
defendant’s prison records. Defendant was imprisoned between 2000 and 2005,
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but his only assaultive conduct during that time was one act of mutual combat.
There were no assaults against prison staff.
II. DISCUSSION
A. Pretrial Issues Regarding Defendant’s Representation
Two attorneys represented defendant at trial: Mark Chambers and William
Wolfe. Defendant raises several issues regarding Chambers’s representation.
1. Factual Background
The court originally appointed the public defender’s office to represent
defendant. On March 21, 2007, that office declared a conflict. Acting through
San Diego County’s “Private Conflicts Counsel,” the court appointed Chambers to
represent defendant. When the court asked whether Chambers was “on the list of
class six attorneys by and through Private Conflicts Counsel,” Chambers said he
was. According to a document filed with the trial court on January 23, 2008,
Chambers was to receive a total fee of $137,000 through the end of trial. He had
already received $17,000, was to receive $40,000 “forthwith” (that is, as of
January 23, 2008), and was to receive $40,000 at the commencement of hearings
on pretrial motions and the final $40,000 after the jury was impaneled. When
Chambers was first appointed, the district attorney had not yet decided whether to
seek the death penalty against defendant. On November 7, 2007, the district
attorney announced the intent to seek the death penalty, and the court appointed
Wolfe to assist Chambers in the defense.
On December 13, 2007, attorneys Patricia Robinson and Sandra Resnick,
representing San Diego County’s Private Conflicts Counsel, appeared in court to
argue that Chambers was not qualified to defend a death penalty case. At their
request, the court held a hearing outside the prosecutor’s presence.
7
Robinson told the court that Chambers was a class five, not class six,
attorney. The Private Conflicts Counsel’s “capital case committee” believed that a
class five attorney could act as “second chair,” but not “first chair,” in defending a
capital case. Resnick suggested the court appoint an independent attorney to
advise defendant “about what his options are and what all of this means.”
Chambers responded that he had been representing defendant for several months,
including during the preliminary hearing. He said he met the qualifications to
defend a capital case provided in the California Rules of Court, rule 4.117, and the
guidelines established by the American Bar Association (ABA). He had
established a working relationship with Wolfe, who was acting as second chair.
He did not want to act as second chair in the case.
In responding to Chambers’s representations, Resnick did not mention the
California rules, but she implicitly agreed that Chambers’s qualifications satisfied
the ABA guidelines. She said that Chambers had only acted as advisory counsel
in one capital case and standby counsel in another. The Private Conflicts
Counsel’s own guidelines required that an attorney act at least as a second chair in
a capital case before acting as first chair.
Chambers said he had been involved in two capital cases, one the
“Michaels” case. (See People v. Michaels (2002) 28 Cal.4th 486.) In the
Michaels case, he explained, the defendant technically represented himself but he,
Chambers, actually tried the entire case: “I selected the jury, I did the opening, I
examined all of the witnesses, I did the closing, and I argued the motions they
previously drafted. Mr. Michaels really didn’t participate in the trial other than be
there.” He added that he had defended “at least 30 first degree homicide cases in
this county.” Later, he added that the Private Conflicts Counsel had originally
considered him to be a “class six” attorney. Robinson agreed with this statement
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but said that more recently the organization had reevaluated matters and now
Chambers was “approved for class five.”
Defendant asked to speak. He said, “I don’t need no advisory,” he did not
“need to talk to anybody,” and “I don’t want to speak with another attorney. I
already heard everything that’s going on. I don’t need to talk with him.” He said
he wanted to keep Chambers as his attorney because he had “built a relationship”
with him. He believed that getting another new attorney at that stage “was going
to be real bad to my case. If I have to start all over with another lawyer, then
that’s going to be a time period that I’m losing ground.” He went into detail. He
pointed out that a new attorney would not have done the preliminary hearing, and
if the court “threw him in the case,” he would not “know what’s going on,” and
would have “no relationship. Nothing.”
The court ultimately continued the matter and appointed Attorney Donald
Levine to speak with defendant about the situation. The next hearing was held on
January 11, 2008, with Levine present. At first, the hearing was held in the
prosecutor’s presence. The court asked the deputy district attorney to leave the
courtroom, as the hearing would be a “sealed proceeding.” Before she left, she
said she did not know what role Levine had in defendant’s case. But she informed
the court and defendant that Levine had represented a person who had information
in the case and was willing to cooperate. She said Levine “was involved in
conversations with this person wanting to come forward to provide testimony
against Mr. Rices. Given that information, I don’t know what the court’s position
is on having Mr. Levine being involved in possibly defending Mr. Rices.” At that
point, the prosecutor left the courtroom and the hearing proceeded in her absence.
Levine said he had reviewed the materials and then spoke in private with
defendant. He “did not inquire as to any specifics as to this case,” but he
discussed with defendant capital case procedures, including the fact that Chambers
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was “technically not . . . qualified, according to the Private Conflicts Counsel
guidelines.” He inquired whether defendant “was satisfied with his current
representation.” He said that “basically, Mr. Rices indicated that although there
may have been some difficulties early on between himself and Mr. Chambers that
they have ironed those out. That he believes that Mr. Chambers is working in his
best interest. In fact, that he believes that Mr. Chambers has developed a rapport
with the witnesses in this case, which Mr. Rices stressed was hard to do . . . . And
it would not be in Mr. Rices’s best interest if Mr. Chambers was removed from
this case. When I discussed with him the question of whether Mr. Chambers
qualified, technically, according to the [Private Conflicts Counsel] guidelines, Mr.
Rices felt that Mr. Chambers was sufficiently qualified to handle his case, both
through the guilt and penalty phase and he is satisfied with his representation.”
Levine believed that defendant understood the situation and found him to be
“articulate [and] intelligent.” Defendant “would object to Mr. Chambers being
relieved as counsel” and, “in fact, he would request to go pro per if that were to
occur.”
Defendant then asked why the court “sen[t] somebody to me that
represented a confidential informant or a cooperating witness?” The court
responded that it did not know about any involvement Levine may have had in the
case. It offered to appoint another lawyer to speak with defendant. Defendant
said, “No. I don’t believe I would like that.” When he asked again why Levine
had been appointed, the court explained that it had not known of any conflict, and
that it knew very little about the case. It again offered to appoint another attorney
to speak with him if he would prefer. Defendant said, “No, I don’t prefer it.”
When the court inquired, defendant said he wanted to keep both Chambers and
Wolfe as his attorneys.
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The court then reaffirmed the appointment of Chambers and Wolfe as
defendant’s attorneys: “The court has examined the transcript, considered the
guidelines, considered the comments of Mr. Levine, who was appointed to counsel
independently with Mr. Rices, regarding what a capital case is, what a capital
attorney does for a client, how the case is managed or handled, and Mr. Rices has
desired to retain this particular defense team, which desire has been stated to me
on two separate occasions, a month apart. It appears to me, upon also reviewing
this transcript, that the qualifications of both Mr. Chambers and Mr. Wolfe are
more than adequate to handle this case, based upon their rendition of their personal
and professional experience in this area and giving heavy consideration as well to
Mr. Rices’s desire.”
On April 29, 2008, defendant told the court he wanted a “Marsden”
hearing. (People v. Marsden (1970) 2 Cal.3d 118.) The court conducted the
hearing outside the presence of the prosecutors. (The hearing was thus conducted
after defendant’s January 12, 2008, assault on a jail inmate, and before his May
29, 2008, assault on another inmate and his August 8, 2008, assault on Deputy
Clements.)
Defendant told the court he wanted to “fire him . . . because I can’t work
with him.” At that point, defendant did not specifically state whether he meant
Chambers or Wolfe, but as the hearing progressed it became clear he was referring
to Chambers. He said he had given Chambers information about his mental state,
but Chambers was not taking him seriously. He had originally “brought it to the
Sheriff’s attention, Deputy Rodriguez. I told him that I was . . . hearing voices . . .
in my head. I told him I needed some . . . psych detention [sic; perhaps meaning
“attention”] . . . .” When Rodriguez asked him what was going on, defendant told
him, “I couldn’t tell him what the voices was in my head because it was
inappropriate for me to tell him.”
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Defendant said the voices were “telling me to kill people,” “to slice
people’s throats open.” “I would actually see me doing it . . . out of nowhere for
no reason. And it was certain things that was going on in the county jail where I
was doing things and I didn’t remember I was doing them. Like being violent
towards people. And it was a couple of incidents that happened where some
inmates that came to me and like man, you know, you did this and you did that,
and I didn’t remember what I was doing. So I knew something was wrong.” He
felt he could not tell a deputy because “that could be used against me . . . .
Probably for my case, they tell the D.A. that I’m going around killing people.”
Defendant told the court that he spoke with Chambers about the situation,
and then “he goes and tells the deputies that I want to kill somebody or was
attempting to kill myself.” Defendant felt that Chambers’s doing so violated the
attorney-client privilege. He explained, “I agreed for him to tell the watch
commander that I needed to see the psych, but I didn’t agree for him to disclose
information of why I needed to see the psych. And Deputy Rodriguez came and
told me specifically that they were going to put me in the rubber room because my
attorney had told the watch commander that I feel like being violent towards other
people. And that’s not what I told him. I told him I had been feeling like that the
past couple of weeks. I didn’t tell him I was feeling like that at that present time.
It spurts in and out.”
Defendant said he explained to Chambers that he had not been “in my right
mind lately. I haven’t been able to do nothing. I really can’t help you right now in
the case. I was really trying to explain that to him and really let him know, but he
seemed to feel like I’d been joking with him or playing . . . some kind of game.”
He reiterated that he had “a problem with voices in my head. Things going on.
Just because I look all right doesn’t mean I’m all right. And I’m trying to stress to
him that point.”
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The court then asked Chambers whether defendant had been examined
earlier in the case. Chambers said that once, before he entered the case, defendant
“had a 1368 episode.”1 At that point, “Dr. Solvang” evaluated him. Chambers
had received that evaluation when he spoke with defendant. Chambers confirmed
to the court that defendant had told him essentially what defendant had just
represented. “Between Mr. Rices and myself, it was decided since he had already
requested to see the mental health provider doctor at the detention facility, that I
would contact the staff there and attempt to move that meeting up. So when I left
there, I called the watch commander and lieutenant and told the lieutenant, as Mr.
Rices had agreed, that he had the potential of acting out, was the descriptive
phrase that I used to the watch commander.”
Defendant interjected that he “never agreed to that.” The court said it
would let defendant have the final word, then Chambers continued. Chambers
said that “based upon that, they apparently saw him that afternoon.” He added,
“One of the other things that Mr. Rices and I discussed was the acquiring funding
and getting a defense psychologist . . . because we didn’t really have one to fit in
that slot at this point.” He said that a funding motion had been filed the previous
day.
Defendant responded that “just because I ain’t going around doing stupid
stuff don’t mean that I don’t got problems. I’m trying to explain to him. I told
him I can’t even read, I can’t even write right now. . . . I can barely function
inside the unit I’m in because of the voices inside my head right now.”
The court denied defendant’s Marsden motion: “I’ve listened to your
request and I appreciate how you’ve presented it. It appears to me that at the
1 In this context, Chambers was likely referring to Penal Code section 1368,
which addresses the procedure to follow when a judge doubts a defendant’s
mental competence.
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present time, you’re tracking real well. You’re a very articulate individual. I’ve
reviewed the work that Mr. Chambers has performed on your behalf. I do not
believe there is grounds for granting your request to relieve your attorney. And
I’m going to indicate that Mr. Chambers has stated that there is a funding request
that has been recently made. This issue can obviously be placed before the court
at a future time.”
At that point defendant said he wanted to represent himself because he did
not trust his lawyer. The court scheduled a hearing on that motion for a later date.
At the next hearing, after the speaking with his attorneys, defendant told the court
he no longer wished to represent himself.
Chambers and Wolfe continued to represent defendant from that point on.
2. Alleged Conflict of Advisory Counsel
Defendant argues that when the prosecutor informed the court Levine had
represented someone else involved in the case, the court should have held a further
hearing regarding the possible conflict and, if a conflict existed, appointed a
second independent counsel. However, defendant declined a second independent
counsel and did not even want the first. In any event, contrary to the Private
Conflicts Counsel’s assertions, Chambers was fully qualified to represent
defendant.
At the hearing, Chambers stated that he was qualified to defend a capital
case under both California’s standards for appointment of capital counsel (Cal.
Rules of Court, rule 4.117) and the ABA guidelines. The attorneys from the
Private Conflicts Counsel agreed, at least implicitly, that he was qualified under
those standards, but they claimed Chambers was unqualified under their own,
separate, guidelines, which required attorneys to have acted as second chair before
they could act as first chair in a capital case. We have said that the ABA
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guidelines do not establish the standards for effective representation. (People v.
Williams (2013) 56 Cal.4th 630, 692.) But it appears Chambers met those
standards. Any failure to satisfy the Private Conflicts Counsel’s own standards
did not render Chambers unqualified to represent defendant.
Moreover, it appears that Chambers satisfied even the Private Conflicts
Counsel’s standards. He had previously been involved in two capital cases,
including the “Michaels” case, in which he had effectively acted as first chair at
trial even though the defendant technically represented himself. As stated in our
opinion in that case, “Although defendant represented himself, with [Attorney
Richard] Grossberg and Chambers as his advisory counsel, at trial Chambers, who
initially had been second counsel, took on the role of lead counsel. Grossberg did
not participate and defendant’s participation was minimal. Whenever the judge
asked defendant if he intended to participate, he replied that Chambers was his
attorney and would represent him. Chambers conducted the voir dire, examined
witnesses, and presented all arguments, both at the guilt phase and at the penalty
phase.” (People v. Michaels, supra, 28 Cal.4th at p. 521.) Thus, he acted as
second chair until trial and as first chair at trial.
Even if we assume the court should have investigated a possible conflict of
interest for Levine, defendant has not shown prejudice. “When a defendant claims
that a trial court’s inquiry into a potential conflict was inadequate, the defendant
still must demonstrate the impact of the conflict on counsel’s performance.”
(People v. Cornwell (2005) 37 Cal.4th 50, 78 [rejecting the argument that Wood v.
Georgia (1981) 450 U.S. 261 required a different rule]; accord, People v. Nguyen
(2015) 61 Cal.4th 1015, 1071.) “Absent a demonstration of prejudice, we will not
remand to the trial court for further inquiry.” (Nguyen, at p. 1072.) The court
asked Levine only to inquire into whether defendant still wanted Chambers to
represent him. Levine did not inquire into the case itself. The possible conflict
15
cannot have compromised this simple task. Moreover, defendant said repeatedly
he wanted Chambers to represent him despite the Private Conflicts Counsel’s
assertions, and he confirmed this desire after Levine told the court the results of
his consultation with defendant. We see no prejudice.
3. Trial Counsel’s Alleged Conflict of Interest
Based on what occurred at the April 29, 2008, Marsden hearing, defendant
contends that Chambers acted under a conflict of interest, as he had to “choose
between becoming a witness at trial or keeping the case as counsel.” He argues
that once defendant told him about the voices he claimed to be hearing, Chambers
was a potential witness because he could testify about what defendant had told
him, either to support a mental defense or as mitigating evidence. We disagree.
“A criminal defendant is guaranteed the right to the assistance of counsel
by the Sixth Amendment to the United States Constitution and article I, section 15
of the California Constitution. This constitutional right includes the correlative
right to representation free from any conflict of interest that undermines counsel’s
loyalty to his or her client.” (People v. Doolin (2009) 45 Cal.4th 390, 417
(Doolin).) “For both state and federal purposes, a claim of conflicted
representation is one variety of claim that counsel provided ineffective assistance.
Hence, to obtain reversal of a criminal verdict, the defendant must demonstrate
that (1) counsel labored under an actual conflict of interest that adversely affected
counsel’s performance, and (2) absent counsel’s deficiencies arising from the
conflict, it is reasonably probable the result of the proceeding would have been
different. (Mickens v. Taylor (2002) 535 U.S. 162, 166 (Mickens); Doolin, supra,
at pp. 417-418, 421; see Strickland v. Washington (1984) 466 U.S. 668, 687,
694.)” (People v. Mai (2013) 57 Cal.4th 986, 1009-1010.)
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Determining “whether counsel’s performance was ‘adversely affected’ . . .
‘requires an inquiry into whether counsel “pulled his punches,” i.e., whether
counsel failed to represent defendant as vigorously as he might have, had there
been no conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by
the record. But where a conflict of interest causes an attorney not to do
something, the record may not reflect such an omission. We must therefore
examine the record to determine (i) whether arguments or actions omitted would
likely have been made by counsel who did not have a conflict of interest, and (ii)
whether there may have been a tactical reason (other than the asserted conflict of
interest) that might have caused any such omission.’ (People v. Cox (2003) 30
Cal.4th 916, 948-949, italics omitted.” (Doolin, supra, 45 Cal.4th at p. 418.)
Prejudice is generally presumed “when defense counsel ‘actively represented
conflicting interests.’ (Mickens, supra, 535 U.S. at p. 166.)” (Doolin, at p. 418,
fn. omitted; but see People v. Rundle (2008) 43 Cal.4th 76, 172-173 [prejudice is
not always presumed in cases of a claimed conflict of interest].)
Defendant contends the compensation agreement between Chambers and
the court itself created a conflict. He notes that if Chambers had withdrawn from
further representation due to the asserted conflict, he would not have received the
bulk of the fixed fee. Thus, he argues, Chambers’s own interests conflicted with
his client’s. We have rejected a similar argument regarding a fixed fee agreement
despite the “theoretical possibility” that “under the agreement [the] lawyer could
maximize his own compensation by cutting expenses for investigative and expert
services.” (Doolin, supra, 45 Cal.4th at p. 416.) Citing Maxwell v. Superior
Court (1982) 30 Cal.3d 606, we observed that most fee agreements may create a
conflict. A flat fee could create an incentive to dispose of the case quickly, an
hourly fee could create an incentive to drag the case out, and a contingent fee
arrangement could create a conflict between the client’s interest in obtaining the
17
largest possible recovery and the attorney’s interest in obtaining a substantial fee
with the least effort. (Doolin, at p. 416.) “ ‘ “Fortunately most attorneys serve
their clients honorably despite the opportunity to profit by neglecting or betraying
the client’s interest.” ’ ” (Ibid.) “[W]e assume attorneys are not so unethical as to
neglect their clients’ interests to advance their own. Any such obvious
malfeasance is clearly the exception not the rule.” (Ibid.) The mere existence of
the fixed fee agreement does not entitle defendant to relief. (Id. at pp. 416-417.)
Defendant also argues a conflict existed even aside from the fee agreement.
He notes that about a month after the Marsden hearing, he assaulted a jail inmate,
and about two months after that, he assaulted Deputy Clements. He contends that
Chambers could have testified about the alleged voices to support a mental
defense regarding those assaults, but that Chambers presented no such defense.
Accordingly, he argues that Chambers labored under a conflict of interest because
he was a potential witness.
We rejected a similar contention in People v. Dunkle (2005) 36 Cal.4th 861(Dunkle). In that case, “the penalty defense centered on defendant’s current
mental state, and counsel had testified during the second competency trial
concerning the same subject matter.” (Id. at p. 914.) The defense attorney “did
not himself testify [at the penalty phase] despite his personal knowledge of facts
supporting the penalty defense.” (Ibid.) The defendant argued “that counsel was
ethically obligated to withdraw from representing him and to testify as a witness in
the penalty phase, thus generating a conflict between the obligation and his self-
interest in maintaining employment on the case.” (Id. at p. 915.)
In evaluating the argument, we explained that “[a]n attorney must withdraw
from representation, absent the client’s informed written consent, whenever he or
she knows or should know he or she ought to be a material witness in the client’s
cause. (Rules Prof. Conduct, rule 5-210; see Comden v. Superior Court (1978) 20
18
Cal.3d 906, 911, fn. 1 [motion to disqualify opposing counsel].) The
determination whether an attorney ought to testify ordinarily is based on an
evaluation of all pertinent factors, including the significance of the matters to
which the attorney might testify, the weight the testimony might have in resolving
such matters, and the availability of other witnesses or documentary evidence by
which these matters may be independently established. (Comden, supra, at p.
913.) An attorney should ‘resolve any doubt in favor of preserving the integrity of
his testimony and against his continued participation as trial counsel.’ (Id. at p.
915.)” (Dunkle, supra, 36 Cal.4th at p. 915.)
In finding no conflict of interest in Dunkle, we explained that the defense
attorney had “some unique personal knowledge, to which he testified during the
competency trial, of the same general subject matter. He therefore could have
given relevant testimony during the penalty phase. But [Penal Code] section
190.3, factor (k), permits the jury to consider a virtually unlimited range of
mitigating evidence [citation], and trial counsel in every case has unique personal
knowledge of the defendant that conceivably might be relevant or useful in the
penalty phase. We have never suggested that counsel therefore must withdraw
from penalty phase representation and testify on the defendant’s behalf, and we
reject any such implication now.” (Dunkle, supra, 36 Cal.4th at p. 916.)
We similarly see no conflict requiring Chambers to withdraw from
representation in this case. If a credible mental defense (or mitigating evidence)
existed, and if defendant’s claim to be hearing voices could significantly aid such
a defense, the evidence was readily available in other forms than counsel’s
testimony. The sheriff’s deputy to whom defendant spoke about his “voices,” and
to whom the attorney spoke later, could have presented evidence. More
importantly, defendant could have said the same thing to a mental health expert
examining him for a possible mental defense, and that expert could testify, as an
19
expert did in Dunkle, supra, 36 Cal.4th at pages 915 to 916. A mental health
expert would be in a better position than a lay attorney to evaluate whether the
voices were genuine or merely self-serving claims, and whether, in light of all the
information at the expert’s disposal, defendant had a valid mental defense and, if
so, to credibly testify to that effect.
The record presents no basis to conclude that counsel pulled his punches
despite any asserted conflict. As defendant argues, counsel presented no mental
defense regarding the jail assaults. But he did present a vigorous penalty phase
defense in mitigation, centering around defendant’s horrendous childhood and the
effect it had on his later criminal behavior. The record does not disclose why
counsel did not additionally present a mental defense regarding the assaults. But it
does reflect that counsel had the benefit of an earlier mental health expert’s
evaluation of defendant, and that he had requested funding to obtain the services
of another mental health expert. We do not know the results of the funding
request, but counsel may well have had tactical reasons to focus on defendant’s
childhood and its impact on him rather than present a mental defense based on the
reported voices. (People v. Doolin, supra, 45 Cal.4th at p. 418.) The experts
might not have uncovered anything to support a credible mental defense. Counsel
might also have been concerned that the jury would suspect the claimed voices
were not genuine but merely a self-serving attempt to provide a defense for
defendant’s repeated violent behavior, which would detract from the defense that
counsel did present. Accordingly, on this record, we find no basis to conclude that
counsel should have withdrawn from representation when defendant told him
about the voices.
Defendant also argues that counsel’s informing the authorities about the
reported voices exacerbated the conflict. He asserts that counsel properly
informed the authorities of defendant’s claims under Evidence Code section 956.5,
20
which provides that the attorney-client privilege does not exist “if the lawyer
reasonably believes that disclosure of any confidential communication relating to
representation of a client is necessary to prevent a criminal act that the lawyer
reasonably believes is likely to result in the death of, or substantial bodily harm to,
an individual.” (See Rules Prof. Conduct, rule 3-100(B) [similar].) Then he
asserts that providing such information against his client presented another
conflict. But Chambers did not tell the authorities about the voices due to
Evidence Code section 956.5. He said he did it with his client’s permission to try
to obtain mental health services for him. Indeed, defendant complained that
Chambers did not seem to be taking his claim of hearing voices seriously enough.
Relying on Wood v. Georgia, supra, 450 U.S. 261, defendant also argues
that at least the trial court should have conducted an additional inquiry when it
learned of the asserted conflict. In deciding this question, “[w]e look to whether
facts known to the trial court raised the possibility of a conflict of interest obliging
it to inquire further.” (Dunkle, supra, 36 Cal.4th at p. 916.) The court did inquire
into whether Chambers had information about a possible mental defense. That
inquiry was sufficient under the circumstances. As in Dunkle, at pages 915 to 916,
counsel could easily have presented a mental defense through experts if a valid
one existed. For essentially the same reasons we have rejected defendant’s
argument that counsel labored under a conflict of interest, “we do not believe the
circumstances ‘impose[d] upon the court a duty to inquire further’ into the
possibility of a conflict of interest. (Wood, supra, 450 U.S. at p. 272.)” (People v.
Rundle, supra, 43 Cal.4th at p. 176.) For similar reasons, we also reject
defendant’s related argument that the trial court had to inquire into a possible
conflict months after the Marsden hearing, when it learned that the prosecution
intended to proffer in aggravation evidence of defendant’s later assaults, and his
21
claim that these circumstances violated his Eighth Amendment right “to a fair and
reliable penalty determination.” (People v. Jenkins (2000) 22 Cal.4th 900, 1044.)
4. Denial of Marsden Motion
Defendant argues the trial court should have granted defendant’s Marsden
motion “after learning that counsel had, in apparent compliance with Rule of
Professional Conduct 3-100(B),” reported to jail authorities that defendant was
hearing voices. Once again, counsel did not report what defendant had told him to
comply with that rule, but to try to obtain mental health services for defendant. To
the extent defendant contends the court had to grant his motion because he said he
could not work with or trust Chambers due to Chambers’s revealing what
defendant had said about the voices, we disagree.
“When a defendant seeks to obtain a new court-appointed counsel on the
basis of inadequate representation, the court must permit him or her to explain the
basis of [the] contention and to relate specific instances of inadequate
performance. The court must appoint a new attorney if the record clearly shows
the current attorney is not providing adequate representation or that the defendant
and counsel have such an irreconcilable conflict that ineffective representation is
likely to result. [Citations.] If the court holds an adequate hearing, its ruling is
reviewed for abuse of discretion.” (People v. Rodriguez (2014) 58 Cal.4th 587,
623.)
We see no abuse of discretion. The court held a full hearing and permitted
defendant to states his reasons for wanting a new attorney. Chambers had
informed the authorities of defendant’s claimed voices with, he stated, defendant’s
consent, to try to obtain mental health services for defendant. Defendant disagreed
regarding the exact scope of his agreeing to Chambers’s telling the authorities.
But, “[t]o the extent there was a credibility question between defendant and
22
counsel at the hearing, the court was ‘entitled to accept counsel’s explanation.’ ”
(People v. Smith (1993) 6 Cal.4th 684, 696, quoting People v. Webster (1991) 54
Cal.3d 411, 436.)
B. Change of Venue
Defendant contends the trial court prejudicially erred in denying his motion
to change venue. It did not.
1. Factual Background
On June 16, 2008, defendant moved to change venue from San Diego
County or, in the alternative, to transfer the trial from the East County judicial
district to another judicial district within the county. He attached to the motion
voluminous copies of media accounts of the crime and his later arrest. He also
cited the results of a public opinion poll that showed that 70 percent of those
surveyed in the East County judicial district had heard of the case, that of those
who had heard of the case, 28 percent said they believed defendant was guilty, and
that, of those 28 percent who believed defendant guilty, 22 percent said they
would be biased against defendant. The percentages were smaller for other
judicial districts in San Diego County. Defendant also argued that the victims
were “Chaldean, Catholics of Iraqi descent,” and that a “large Chaldean
community” exists within San Diego County, concentrated in the East County
district.
The motion was heard on November 17, 2008. The court stated that it had
considered the possibility of drawing the jury venire equally from the entire
county and not just within the East County district. It discussed the logistics with
the jury commissioner. But drawing equally from the entire county was not
feasible because prospective jurors were allowed to report to whichever court
within the county was the most convenient to them.
23
At the end of the hearing, the court denied the motion without prejudice to
renewal during jury selection. It agreed that the case had “received extensive
pretrial news coverage,” but found it was not “necessarily sensational or
inflammatory. There has not been what we call a ‘drum beat’ of continued
publicity regarding the trial. . . . [T]here was extensive coverage of a very unusual
level of grief that the murders provoked within a very close-knit East County
community. We call it our Chaldean community. The coverage of this
community reaction was very extensive, but it also appeared to be straightforward
in the sense of covering what actually happened. I’m unaware of any coverage
regarding this outpouring of grief that was, in fact, sensational or calculated to
inflame additional community reaction.”
The court noted that the public opinion survey, although showing greater
awareness of the case within the East County than other parts of the county,
showed that most prospective jurors from East County would not “have firm
attitudes about the case.” It also noted that the jury would not be called on to
decide guilt, as that had already been established. It believed that the issue of guilt
“is the one that’s most vulnerable to pretrial publicity. The fear that pretrial
coverage of an arrest of a suspect or suspects leaves prospective jurors with an
impression that the police have the right person is no longer an obstacle in this
case to a fair trial . . . .”
Regarding the size of the community, the court estimated that about
500,000 people live in the East County district. Because of the policy permitting
prospective jurors to report to whichever court within the county they chose, the
court also believed that some of those who reported to the East County would
come from other parts of the county. It noted that, before the crimes, defendant
“had no special prominence or notoriety in the East County.” It found that the
nature of the news coverage “did not create an image of Mr. Rices wherein East
24
County residents would find Mr. Rices a particularly loathsome or threatening
individual. I believe the news coverage was essentially the type of news coverage
that could be expected in a case that alleged double murders.”
Regarding the victims, the court stated that “apparently the victims’ youth
and Chaldean heritage triggered a very extraordinary degree of sympathy and grief
in the East District’s Chaldean community. This outpouring of emotion was
covered by both print and electronic media. I find that this Chaldean community
is obviously a very vital and significant element of East County society and
culture.” But it found that that community constituted only a small part of the East
County population. “So this is part of my findings as to the status of the victims,
that the community of Chaldeans is obviously important; it’s not sizeable; the
victims were members of that community; and they became prominent as a result
of the crimes and the mourning that occurred post-crime. Before that, they were
not highly visible or prominent members of either the East County or the Chaldean
community.”
The court concluded that “the size of the population, together with those
survey results, suggest strongly that a fair and impartial jury can be selected from
an East County draw.”
On May 27, 2009, during jury selection, defendant renewed the motion to
change venue. The court denied the renewed motion: “I did carefully review
question 79 on the questionnaire, which is the question, ‘Based upon what you
know, have read, or heard about this case, is there any reason why you cannot or
should not be a juror in this case?’ I could be wrong. There could have been a
handful of people who indicated ‘yes,’ but my recollection is it was almost
uniformly ‘no.’ Even those who indicated they have heard or read something,
most of those responses then referred to ‘I know about what you’ve revealed in
25
your introduction to the case, that there was the robbery, the two murders.’[2] And
I do not feel that in any sense the pool of prospective jurors were tainted by
publicity in any fashion. Most of them said vaguely, ‘I remember something, but
it’s been three years.’ Therefore, the renewed motion for a change of venue is
denied.”
2. Analysis
“On a defendant’s motion, the court must order a change of venue ‘when it
appears that there is a reasonable likelihood that a fair and impartial trial cannot be
had in the county.’ ([Pen. Code] § 1033, subd. (a); see People v. Famalaro (2011)
52 Cal.4th 1, 21.) On appeal from the denial of a change of venue, we accept the
trial court’s factual findings where supported by substantial evidence, but we
review independently the court’s ultimate determination whether it was reasonably
likely the defendant could receive a fair trial in the county. In deciding whether to
change venue, the trial court, and this court in its independent review, considers
several factors, including the nature and gravity of the offense, the nature and
extent of the media coverage, the size of the community, the defendant’s status
within the community, and the victim’s prominence. On appeal, a defendant
challenging the court’s denial of a change of venue must show both error and
prejudice, that is, that it was not reasonably likely the defendant could receive a
2 The jury questionnaire that all prospective jurors in defendant’s penalty
trial were asked to fill out informed them about the case as follows: “This case
involves a robbery and shooting that occurred at the Granada Liquor Store in El
Cajon on March 1, 2006. Ms. Heather Mattia, the liquor store co-owner, and her
employee, Mr. Firas Eiso, were fatally shot in the back of the head. Both victims
were members of the Chaldean community. Two individuals, Jean Pierre Rices
and Anthony Miller, were arrested and charged with the murders in November
2006. The defendant in this case, Jean Pierre Rices, recently pled guilty to the
killings.”
26
fair trial at the time of the motion, and that it is reasonably likely he did not in fact
receive a fair trial.” (People v. Rountree (2013) 56 Cal.4th 823, 837 (Rountree).)
Contrary to defendant’s argument, this is not one of the “extreme case[s]”
in which prejudice is presumed. (Skilling v. United States (2010) 561 U.S. 358,
381 [prejudice was not presumed despite pervasive publicity from the Enron
scandal].) Indeed, this case is nothing like the cases in which the high court has
presumed prejudice. (See generally People v. Avila (2014) 59 Cal.4th 496, 509-
510 (Avila).) “There was no circus or carnival atmosphere, no spectacular
confession repeatedly televised in a small community and seen by three actual
jurors. Although there was indeed much publicity about this case, especially
around the time of the crime, that alone did not make this such an extreme case.”
(Id. at p. 510.)
The charged offenses are obviously the most serious, but that circumstance
does not alone compel a change of venue. (Rountree, supra, 56 Cal.4th at pp. 837-
838.) This is especially true given that defendant pleaded guilty to those crimes.
“As the trial court recognized, neither the size of the community, nor defendant’s
status within the community, nor the victim’s prominence supported a change of
venue.” (Avila, supra, 59 Cal.4th at p. 507.) “Although there was an
understandable outpouring of sympathy for the victims immediately after the
crime, they had no particular celebrity status in the community.” (People v.
Edwards (1991) 54 Cal.3d 787, 807-808.) As defendant argues, and the trial court
noted, the victims were members of the close-knit Chaldean community in the
East County district, and that community, understandably, grieved heavily over its
loss. But even assuming what we should not assume — that members of the
Chaldean community could not provide defendant a fair trial — that community
constituted only a small portion of the large overall population in the East County
27
district. The victims’ ethnicity did not establish that a fair trial could not be had in
the East County district.
As defendant stresses, the publicity was at times heavy, as is to be expected
of a crime of this nature. But the record supports the trial court’s finding that it
was not so inflammatory as to preclude a fair trial. Defendant notes that much of
the publicity described the crimes as execution-style murders or the like.
Defendant cites portions culled from the voluminous record that described the
crimes as “brutal,” “cold-blooded,” “evil,” “horrible,” or “horrific.” One
newspaper account quoted a man as saying that the perpetrator “is a coward, an
animal,” and other accounts suggested the perpetrator was dangerous or without a
conscience. But these descriptions, selected from generally factual and
noninflammatory reporting, are not by themselves necessarily prejudicial.
Defendant’s guilt was established by the time the trial began, and any actual juror
would learn soon enough that the murders were, indeed, execution style, and that
the other words aptly described them. Defendant argues that some of the publicity
mentioned circumstances, such as his supposedly bragging about the murders, that
were not presented at trial. But that alone did not taint the entire venire.
“ ‘[P]retrial publicity — even pervasive, adverse publicity — does not inevitably
lead to an unfair trial.’ ” (Skilling v. United States, supra, 561 U.S. at p. 384.)
“As a whole, the publicity, while a cause for concern, was far less pervasive and
potentially prejudicial than, for example, that in People v. Leonard (2007) 40
Cal.4th 1370, 1395, which we described as ‘sensational and extensive.’ ”
(Rountree, supra, 56 Cal.4th at p. 838.)
Moreover, over three years elapsed between the time of the crime and the
trial, and about two and a half years between defendant’s arrest for the murders
and the trial. Most of the publicity occurred around the time of the crimes or
defendant’s arrest. This lengthy passage of time blunted the publicity’s prejudicial
28
impact. (Rountree, supra, 56 Cal.4th at p. 838.) The publicity did not itself
establish that the East County district could not provide a fair trial.
Defendant also relies in part on the public opinion poll. But the poll
supports denial of a change of venue. Conducted long before the trial, it showed
that at the time of the poll, some 70 percent of the East District population had
heard of the case. But of that 70 percent, only 28 percent, meaning about 20
percent of the total population, said they believed defendant was guilty, and only
22 percent of those, meaning about four to five percent of the total population, said
they would be biased. These are far lower numbers than those in other cases in
which we have upheld the denial of a change of venue. (See Rountree, supra, 56
Cal.4th at pp. 838-839 [surveying cases].) Moreover, as the trial court noted, a
belief that defendant was guilty was not necessarily prejudicial. The jurors were
not called on to decide defendant’s guilt. It was already established that he was
guilty.
For these reasons, we find no error, that is, no reasonable likelihood
defendant could not receive a fair trial in the East County district at the time he
moved for a change of venue. He has also shown no prejudice. He “has not
shown that it is reasonably likely he did not in fact receive a fair trial.” (Avila,
supra, 59 Cal.4th at p. 508.)
In trying to show prejudice, defendant notes that most of the prospective
jurors who reported for duty did live within the East County district. But that does
not show the trial was unfair. In fact, as the trial court found when it denied the
renewed motion to change venue, the court and parties had little difficulty finding
a jury untainted by the publicity. And the trial court was in the best position to
judge the matter. “When pretrial publicity is at issue, ‘primary reliance on the
judgment of the trial court makes [especially] good sense’ because the judge ‘sits
in the locale where the publicity is said to have had its effect’ and may base her
29
evaluation on her ‘own perception of the depth and extent of news stories that
might influence a juror.’ ” (Skilling v. United States, supra, 561 U.S. at p. 386.)
Of the 12 actual jurors, five had neither heard of nor discussed the case.
The others had heard of the case only vaguely, and there is no indication any
remembered more about it than what they were informed in court. None indicated
they remembered an arrest being made. Only two said they had ever discussed the
case, and those only briefly and generally. None had an opinion regarding
defendant based on anything he or she had heard outside of the courtroom. Two
jurors did express an opinion that was obviously based on what they had been
informed about the case. One juror, who had never previously heard of the case,
said of defendant, “He is a murderer who must have had a bad childhood with lots
of violence and alcohol and drugs.” The second said she had no opinion of
defendant “other than he sounds obviously violent and without regard for human
life.” All of the jurors stated there was no reason they should not be jurors in the
case. The answers of the alternative jurors showed similarly little acquaintance
with the case.
Trying to show he could not or did not receive a fair trial, defendant cites
three particularly inflammatory opinions in the questionnaires from prospective
jurors (who did not become actual jurors) expressing the view that defendant
should either be killed, “fried,” or hanged. Given the horrendous nature of the
crimes, such opinions could undoubtedly be found in any community, not just the
East County portion of San Diego County. The fact that a few prospective jurors,
out of 242 who filled out questionnaires, expressed such opinions does not show
that defendant could not or did not receive a fair trial in the East County judicial
district.
None of the actual jurors had a preexisting opinion about the case.
“Although a preexisting opinion is not disqualifying if the juror can set the opinion
30
aside and decide the case solely on the evidence presented in court [citation], these
jurors did not even present that issue.” (Avila, supra, 59 Cal.4th at p. 512.)
Accordingly, “[t]his record presents no reason to find a reasonable likelihood that
defendant did not receive a fair trial before impartial jurors.” (Id. at p. 513.) We
find neither error nor prejudice.
C. Jury Selection Issues
Defendant contends the court committed several errors during jury
selection.
1. Denial of Challenges for Cause
Defendant contends the court erred in denying his challenge for cause as to
three prospective jurors, V.B., T.T., and L.M.
Preliminarily, the Attorney General contends defendant has not preserved
the issue for appellate review. To preserve a contention that the court erred in
denying a challenge for cause to a prospective juror, the defendant must (1)
exercise a peremptory challenge to remove that prospective juror, (2) exhaust all
peremptory challenges or somehow justify the failure to do so, and (3) express
dissatisfaction with the jury that is ultimately selected. (People v. Souza (2012) 54
Cal.4th 90, 130; People v. Mills (2010) 48 Cal.4th 158, 186-187 & fn. 8.)
Defendant did exercise peremptory challenges to all three of the jurors in question,
and he did exhaust his peremptory challenges. But the Attorney General argues he
did not express dissatisfaction with the final jury. We disagree. Before the jury
was finally selected, defendant moved for the court to reconsider the denial of his
challenges for cause or, in the alternative, for additional peremptory challenges.
The court denied the motion. Later, after the jury was selected and the court was
about to begin selecting alternate jurors, defendant again renewed the motion for
more peremptory challenges, which the court again denied. Although defense
31
counsel did not say the precise words, “I am dissatisfied with the jury,” the action
of requesting additional peremptory challenges after the jury had been selected
effectively expressed that dissatisfaction. We have never required any specific
wording, just an expression of dissatisfaction. The claim is cognizable.
However, defendant has not shown prejudice even if we assume the court
should have removed those prospective jurors. “ ‘So long as the jury that sits is
impartial, the fact that the defendant had to use a peremptory challenge to achieve
that result does not mean the Sixth Amendment was violated.’ (Ross v. Oklahoma
(1988) 487 U.S. 81, 88; see People v. Gordon (1990) 50 Cal.3d 1223, 1248, fn. 4
[finding the high court’s reasoning in Ross persuasive and ‘applicable to the state
constitutional analogues to the federal constitutional rights’ to due process and an
impartial jury considered in Ross].)” (People v. Edwards (2013) 57 Cal.4th 658,
753.) “While the claim is thus properly before us, we may reject it without
examining the merits of defendant’s challenges for cause because defendant
cannot show prejudice.” (People v. Yeoman (2003) 31 Cal.4th 93, 114 (Yeoman).)
To prevail, “defendant must demonstrate that the court’s rulings affected his right
to a fair and impartial jury,” that is, that an incompetent juror was forced on him.
(Ibid.) We recently reaffirmed that “Yeoman sets forth the correct standard for a
defendant to demonstrate prejudice after properly preserving a claim that the
defense used peremptory challenges to cure a trial court’s erroneous denial of one
or more for-cause challenges.” (People v. Black (2014) 58 Cal.4th 912, 920.)
Defendant argues that language in some of our cases had made it unclear at
the time of trial what the rule regarding prejudice was and, therefore, it would be
unfair to apply the rule stated in Yeoman to him. Those cases suggested in dicta
that a defendant could additionally show prejudice by showing the desire to
exercise additional peremptory challenges to some of the sitting jurors. (E.g.,
People v. Blair (2005) 36 Cal.4th 686, 742; People v. Bittaker (1989) 48 Cal.3d
321046, 1087.) “But we have never reversed a case based on Bittaker’s dictum.
[Citation.] We therefore reject the Bittaker dictum in our own cases that cite it,
and now conclude that it has no applicability in a determination whether a
defendant has been prejudiced by a denial of a for-cause challenge.” (People v.
Black, supra, 58 Cal.4th at p. 919.) Any uncertainty dicta in other cases might
have caused does not preclude applying our holding in Yeoman, supra, 31 Cal.4th
93, which predated the trial. Indeed, we applied that holding to the defendants in
Yeoman and Black themselves.
Because of questions of reliance, in some cases, where it was unclear what
a defendant had to do to preserve an appellate claim, we have made a newly
announced rule regarding cognizability prospective only. (E.g., People v. Scott
(1994) 9 Cal.4th 331, 357-358 [rule requiring an objection at sentencing].)
Indeed, for this reason, the rule requiring the defendant to express dissatisfaction
with the jury has been applied only to cases tried after 1994. (People v. Mills,
supra, 48 Cal.4th at p. 187.) But cognizability is not the issue; we have found this
claim cognizable. A defendant does not rely at trial on a rule regarding prejudice.
Accordingly, we can fairly apply the Yeoman holding to this case.
Defendant does not demonstrate that any sitting juror was biased and
should have been excused for cause. Accordingly, he has not shown prejudice
even if we assume the court should have granted the challenges for cause to the
three prospective jurors.
2. Limitation on Voir Dire
Defendant contends the trial court impermissibly curtailed voir dire of
prospective jurors regarding their attitude towards the death penalty. The jury
questionnaire explained the basic facts of the case to the prospective jurors. (See
fn. 2, ante.) Additionally, the court advised the prospective jurors about the kinds
33
of mitigating and aggravating evidence they might be called on to consider,
including whether the defendant had engaged in other violent criminal activity or
had other felony convictions.
Defense counsel wanted to provide more specific information about
defendant’s convictions. He wanted to advise the prospective jurors about “the
conviction of the two murders, the attempted murder, the conviction of the
carjacking, the conviction of the shank in the prison.” The court permitted defense
counsel to go into defendant’s two convictions for “premeditated murder,” but not
the specifics of the other convictions. It explained that the voir dire proceedings
were “not opportunities to figure out which jurors are going to side with you based
upon the evidence you can summarize and which jurors are going to be kind of
against you. This kind of inquiry is to ensure that we have people who are open to
both penalties, not based upon the specific evidence, but based upon a general
assessment of their thinking, their principles.” Later, when defendant renewed his
request, the court again denied it. It said it would not allow counsel to seek
“advisory opinions regarding evidence that’s going to come into the case.”
Defendant contends the court erred in not permitting him to specify the
convictions in questioning the jurors. We disagree. The information given to the
prospective jurors provided the parties ample opportunity to question them about
their attitudes towards the death penalty in this case. “Death-qualification voir
dire must avoid two extremes. It must not be so abstract that it fails to identify
jurors whose death penalty views would prevent or substantially impair their
performance as jurors. Likewise, it must not be so specific as to require
prejudgment based on a summary of potential evidence. [Citation.] The court
may not categorically prohibit inquiry into a subject ‘likely to be of great
significance to prospective jurors’ in deciding penalty. [Citations.] However, the
court ‘has considerable discretion in determining the scope of voir dire’ . . . .”
34
(People v. Leon (2015) 61 Cal.4th 569, 586.) The defendant does not have the
right to ask specific questions that might invite the prospective jurors to prejudge
the issue based on evidence that might be presented, or to educate the jury on the
case’s facts. (People v. Zambrano (2007) 41 Cal.4th 1082, 1120.)
Not allowing defense counsel to list the specific convictions came within
the court’s considerable discretion. The jury knew much about the case, and the
parties were able meaningfully to examine them on their views of the death
penalty in light of this information. Defense counsel could probe the prospective
jurors’ views as applied to the general facts of the case. (People v. Zambrano,
supra, 41 Cal.4th at p. 1120.) Because counsel had the opportunity to inquire on
the general subject, “refusal to include a particular question is not error.” (People
v. Leon, supra, 61 Cal.4th at p. 587.) The court’s ruling “did not deprive the
defendant of all opportunity to ascertain jurors’ views on case-specific facts.”
(Ibid.) We see no error.
3. Excusing a Prospective Juror Due to Her Views on the Death
Penalty
Defendant contends the court erred in excluding one prospective juror,
H.W., due to her views on the death penalty.
“A prospective juror in a capital case may be excluded for cause if his or
her views on capital punishment ‘would “prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his
oath.” ’ (Wainwright v. Witt (1985) 469 U.S. 412, 424.) Prospective jurors ‘may
not know how they will react when faced with imposing the death sentence, or
may be unable to articulate, or may wish to hide their true feelings.’ (Id. at
p. 425.) Accordingly, ‘deference must be paid to the trial judge who sees and
hears the juror’ and must determine whether the ‘prospective juror would be
unable to faithfully and impartially apply the law.’ (Id. at p. 426.) We apply this
35
standard to determine whether excusing a prospective juror in a capital case for
cause based on the prospective juror’s views on capital punishment violates the
defendant’s right to an impartial jury under article I, section 16 of the California
Constitution. [Citations.]
“ ‘ “On appeal, we will uphold the trial court’s ruling if it is fairly
supported by the record, accepting as binding the trial court’s determination as to
the prospective juror’s true state of mind when the prospective juror has made
statements that are conflicting or ambiguous.” ’ [Citation.] ‘ “In many cases, a
prospective juror’s responses to questions on voir dire will be halting, equivocal,
or even conflicting. Given the juror’s probable unfamiliarity with the complexity
of the law, coupled with the stress and anxiety of being a prospective juror in a
capital case, such equivocation should be expected. Under such circumstances, we
defer to the trial court’s evaluation of a prospective juror’s state of mind, and such
evaluation is binding on appellate courts.’ ’ ” (People v. Souza, supra, 54 Cal.4th
at pp. 122-123; see Uttecht v. Brown (2007) 551 U.S. 1, 9, 20, 22.)
Applying these rules, we see no error. H.W. stated on the jury
questionnaire, “I am somewhat biased against the death penalty. I think it’s harsh
& severe. No going back.” She also said she would not automatically vote for life
in prison. During voir dire, she said, “I remember this robbery happening very
well. I kind of live near the community, and I remember seeing the funeral cars.
And I just have a very unsettling feeling in my stomach. I do not feel I could
make a fair assumption. One — the girl that was shot shares the same first name
as me, and we’re about the same age, and it’s just — I do not want the stress of
having to make a verdict on her death.” She would find the decision difficult.
Later, H.W. said she could consider the death penalty as an option, but she also
said, “I think it’s a heavy burden.” She said she was “willing” to serve, but added,
“I just don’t know subconsciously if I have other beliefs.” She also said that
36
considering imposing the death penalty “would be stressful on me, and I don’t
know if I can make a fair assumption, but I would try.”
The prosecutor challenged H.W. for cause, arguing that “it’s almost an
overall assessment of her ability to sit as a juror on this case as much as it is
anything else.” The court excused her. It stated, “In listening to her, watching her
body language, it does appear to me she likewise would be substantially impaired
in her ability to return a verdict of death.”
This case presents a classic example of why we “owe deference to the trial
court, which is in a superior position to determine the demeanor and qualifications
of a potential juror.” (Uttecht v. Brown, supra, 551 U.S. at p. 22.) H.W.’s
answers were equivocal and somewhat contradictory. Even she questioned
whether she could return a verdict of death. The trial court specifically referred to
her body language, that is, her demeanor, in its ruling. In that situation, “[w]e
defer to the trial court’s evaluation of a prospective juror’s state of mind.” (People
v. Souza, supra, 54 Cal.4th at p. 126.) Accordingly, we find no error.
Defendant also contends the standard of Wainwright v. Witt, supra, 469
U.S. 412, should be abandoned and, apparently, replaced with a new rule
prohibiting the trial court from excusing prospective jurors due to their views on
the death penalty. However, the United States Supreme Court developed that
standard and has recently reiterated it. (White v. Wheeler (2015) __ U.S. __, __
[136 S.Ct. 456, 460].) If that standard is to be abandoned or modified, and death
qualifying the jury prohibited, it is up to that court to do so. (People v. Capistrano
(2014) 59 Cal.4th 830, 864.) Defendant suggests we should do so ourselves on
independent state grounds. However, we have long adopted the Witt rule as also
stating the standard under the California Constitution. (People v. Souza, supra, 54
Cal.4th at pp. 122-123; People v. Ghent (1987) 43 Cal.3d 739, 767 [“Because we
think Witt’s review standard and underlying rationale make good sense, and
37
because California courts have generally followed the teachings of the high court
in determining when a prospective juror properly may be excused for cause
because of his views regarding capital punishment, we adopt the Witt standard.”].)
We decline defendant’s invitation to depart from that standard.
D. Issues Regarding Miller’s Testimony
Codefendant Miller testified on his own behalf during his guilt trial.
Defendant’s penalty jury heard most of Miller’s testimony. Defendant raises
several issues regarding that testimony.
1. Claim of Ineffective Assistance of Counsel for Not Objecting to the
Testimony
Defendant contends his penalty jury should not have heard Miller’s
testimony. He did not object at trial to that testimony, so he has forfeited the issue
on appeal. (People v. Riel (2000) 22 Cal.4th 1153, 1178-1179.) Recognizing this
circumstance, defendant contends his attorneys were ineffective for not objecting.
“ ‘To establish ineffective assistance of counsel, a defendant must show that (1)
counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and (2) counsel’s deficient performance was
prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the
result would have been more favorable to the defendant. [Citation.] “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland v. Washington (1984) 466 U.S. 668, 694.)’ ” (Riel, at p.
1175.) “ ‘Whether to object to inadmissible evidence is a tactical decision;
because trial counsel’s tactical decisions are accorded substantial deference
[citations], failure to object seldom establishes counsel’s incompetence.’ ” (Id. at
p. 1185.)
Defendant contends there could have been no tactical reason for counsel not
to object to his jury hearing Miller’s testimony. We disagree. Counsel might have
38
believed it advantageous for his jury to be reminded that defendant did not act
alone. Moreover, counsel might have believed that if Miller tried to blame
defendant for Miller’s criminal behavior, he would lose credibility given his prior
inconsistent statements. Counsel might also have believed that Miller’s deflecting
the blame might compare unfavorably with defendant’s acceptance of
responsibility, as reflected in his guilty plea. On this record, we cannot say that
counsel acted incompetently in not objecting.
Moreover, an objection would have lacked merit. Miller was the only
living person, other than defendant, who was present in the liquor store during the
robbery. His testimony was highly relevant to the circumstances of the crime, a
sentencing factor for the jury to consider. (Pen. Code, § 190.3, factor (a).)
Defendant had the opportunity to confront and cross-examine Miller.
(Defendant’s attorneys did not actually cross-examine Miller, possibly believing
that the prosecutor’s extensive cross-examination, which undercut Miller’s
credibility, was sufficient. But that does not matter; what matters is the
opportunity to cross-examine. (People v. Rodriguez, supra, 58 Cal.4th at p. 634.))
No rule prevents one defendant from presenting testimony damaging to another
defendant. (People v. Keenan (1988) 46 Cal.3d 478, 500 & fn. 5.) “An essential
goal of a trial is that the fact finder determine what happened through a
fundamentally fair and reliable process.” (People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 381 [regarding denial of severance].) Allowing
defendant’s jury to hear testimony from the other participant in the crime, subject
to cross-examination, was entirely fair. Indeed, the jury’s ability to compare the
relative culpability of the two participants made the judgment more, not less,
reliable. (Kansas v. Carr (2016) 577 U.S. __, __ [136 S.Ct. 633, 645-646]; People
v. Sánchez (2016) 63 Cal.4th 411, 465-466.)
39
Defendant contends that allowing his jury to hear Miller’s testimony
transformed Miller into the prosecutor, and that private prosecutions are not
permitted. However, although Miller, like any other witness, presented relevant
and admissible evidence, he was not prosecuting defendant. He was defending
against criminal charges. At all times, the San Diego County District Attorney’s
office was the prosecutor. That office unquestionably had the authority to
prosecute both defendant and Miller. Accordingly, we see no basis on which to
exclude Miller’s testimony had defendant objected. “Because there was no sound
legal basis for objection, counsel’s failure to object to the admission of the
evidence cannot establish ineffective assistance.” (People v. Cudjo (1993) 6
Cal.4th 585, 616.)
Defendant makes much of certain evidence presented against Miller that
Miller’s jury, but not his, heard. The prosecution presented evidence of Miller’s
confession to the police during its case-in-chief against Miller, but defendant’s
jury was not permitted to hear that evidence. The reason was that, until Miller
testified and defendant had the opportunity to confront him, Miller’s statements
were not admissible against defendant. (See generally Crawford v. Washington
(2004) 541 U.S. 36.) Defendant asserts that, as he states it, “Miller later admitted
that it was his idea to rob the store.” He contrasts that asserted admission with
Miller’s trial testimony blaming defendant for the crime, and implicitly faults his
attorneys for not eliciting this evidence on his own behalf.
Defendant’s assertion is not quite accurate. Miller said that when he and
defendant were talking about locations to rob, Miller suggested the liquor store
because of his knowledge of it. Miller did not say that it was his idea to commit a
robbery, only that he suggested the liquor store as the target. Miller also told the
investigator that defendant was calling the shots, and that, after the liquor store
40
robbery, defendant asked Miller to participate in another robbery, but Miller
declined.
It was probably wise for defendant’s attorneys not to go into Miller’s
statements. Suggesting a particular target after the decision to commit a robbery
has been made is different from having the idea to commit the robbery in the first
place. As a whole, Miller’s statements to the police indicated that defendant, not
Miller, was the leader. The rest of the evidence did so also. Several years before
the liquor store robbery, defendant committed two armed robberies or carjackings.
After a period of incarceration for these crimes, he committed three additional
armed robberies or attempted robberies, with a different cohort each time. Given
these facts, it would be difficult for counsel to credibly portray defendant as a
mere follower, not a leader. Any such attempt might have only served to undercut
the extensive case in mitigation the defense did present — that his horrific
childhood, and the lack of professional intervention when needed, led to his
criminal career.
In sum, defendant fails to demonstrate that his attorneys were ineffective in
failing to object to Miller’s testimony.
2. Failure to Provide Discovery of a “Free Talk”
After Miller’s arrest, he gave certain statements to the police. Defendant
received discovery of those statements. Later, Miller gave what the parties called
a “free talk.” As used here, it appears that a “free talk” is a statement about the
crime that a criminal defendant provides to the prosecutor or investigators (or
both), in defense counsel’s presence, with the aim of possibly leading to a plea
bargain and the defendant’s testifying against a codefendant. The free talk was
generally consistent with Miller’s later trial testimony, except that in the free talk
he also stated that he heard defendant say, “I gotta smoke ’em,” because they had
41
seen his face; that he tried to talk defendant out of it; and that he heard Heather
Mattia begging for her life.
Normally, the prosecution must disclose to the defendant statements of
other defendants. (Pen. Code, § 1054.1.) However, the prosecutor moved the
court, pursuant to Penal Code section 1054.7, for permission not to provide
discovery of the free talk, which it described as information provided by “John
Doe # 1.”3 The prosecutor represented that none of the information was
exculpatory but was, instead, incriminatory. Defendant opposed the motion.
After a hearing in defendant’s absence, the court granted the motion,
finding “good cause to defer disclosure of the name, address and statement of John
Doe No. 1” (i.e., Miller). The court “weighed the following: a) the possibility of
danger to John Doe No. 1 if his identity is disclosed immediately; b) the nature of
the statements attributed to John Doe No. 1; c) the inculpatory information
provided by John Doe No. 1 would not serve the interests of Defendant Rices on
the issue of penalty; d) the information contained in the statements is available in
other materials already disclosed to the defense; e) the representation of the People
that John Doe No. 1 will not be called as a witness by the People; and f) the
absence of detriment to defendant’s right of confrontation if disclosure is
delayed.”
The People did not call Miller as a witness. He did, however, testify on his
own behalf, partly in front of defendant’s penalty jury. It is not clear from the
record to what extent, if at all, defendant’s attorneys were aware of the existence
3 Penal Code section 1054.7 provides that disclosure may be “denied,
restricted, or deferred” if “good cause is shown.” “ ‘Good cause’ is limited to
threats or possible danger to the safety of a victim or witness, possible loss or
destruction of evidence, or possible compromise of other investigations by law
enforcement.” (Ibid.)
42
of the free talk. In a discussion during part of the case against Miller, held before
Miller testified but in the absence of defendant’s attorneys, the prosecutor stated
that it had “communicated” to defense counsel Chambers one inconsistent
statement Miller made in the free talk. He told counsel that Miller said a different
person was the getaway driver, rather than someone called “Nut-Nut,” who Miller
had originally identified as the driver. The prosecutor said he did so “because I
have a Brady obligation. [Brady v. Maryland (1963) 373 U.S. 83.] And I said [to
defendant’s counsel], you need to know that he identified someone different as the
driver. I did not give them any more details.” Miller’s attorney stated at the same
hearing, “I think Mr. Chambers knows that there’s been a free talk.” Because the
record is unclear, we will assume that defendant’s attorneys were unaware that the
free talk had occurred. The prosecution did not provide discovery of the free talk
until after trial.
Defendant contends that either the court or the prosecutor should have
provided discovery of the free talk before Miller testified, and the failure to do so
violated his constitutional rights to due process and the effective assistance of
counsel. As the prosecutor represented to the court in its motion not to provide the
discovery, nothing in the free talk was favorable to defendant. Accordingly, there
was no error under Brady v. Maryland, supra, 373 U.S. 83 (concerning the
prosecutor’s duty to disclose exculpatory evidence). However, we will assume
that once Miller chose to testify, it should have been apparent to both the court and
prosecutor that the free talk had to be disclosed to defendant, and that the failure to
disclose it violated his constitutional rights.
“To the extent the denial of discovery implicated defendant’s federal due
process rights [citation], the applicable test is whether the error is harmless beyond
a reasonable doubt.” (People v. Gonzalez (2006) 38 Cal.4th 932, 961.) The free
talk contained nothing favorable to defendant. It was generally consistent with
43
Miller’s later trial testimony except that it contained statements even more
damaging to defendant than anything in that testimony. The prosecution made no
use of the free talk. Even if he had known of it, defendant could not have used it
either to impeach Miller’s trial testimony or as prior inconsistent statements.
Defendant did know Miller’s earlier statements to the police, which were quite
different from his trial testimony and the free talk. Defendant could have
challenged Miller’s credibility with those earlier statements. He did not do so
himself, presumably because the prosecution had already done it effectively.
Defendant argues that had his attorneys known of the free talk, and thus of
the likelihood that Miller would try to shift blame to defendant, they would surely
have objected to his jury’s hearing Miller’s testimony. On this record, we do not
know. Counsel might still have believed that any attempt by Miller to shift blame
to defendant would be discredited by his earlier statements, as, indeed, it was,
although by the prosecutor. And, given defendant’s acceptance of responsibility
for his crimes, counsel might reasonably have believed that discrediting Miller
would benefit defendant. But even if we assume counsel would have objected to
defendant’s jury hearing Miller’s testimony had they known of the free talk, as we
have explained, no valid basis for such an objection existed.
Miller’s testimony (as distinguished from his prior statements to police)
was not particularly important. He did try to blame defendant for the robbery, but
the prosecution effectively challenged his credibility with his prior statements and
a friendly letter he wrote to defendant after his arrest. (See pt. II. H., post.) His
testimony received little comment in the parties’ jury arguments. The prosecutor,
like defense counsel, described it as “incredible.” He argued that Miller’s prior
statements were more reliable than his trial testimony. The prosecutor relied on no
portion of Miller’s testimony in his arguments to the jury. The only significant
item of evidence to come out of Miller’s testimony was his prior statement —
44
which he repudiated at trial — that defendant shot the victims while they were
begging for their lives. Because defendant had the opportunity to confront Miller,
that statement was admissible both as impeachment and for its truth. (Evid. Code,
§ 1235; see People v. Rodriguez, supra, 58 Cal.4th at p. 633.) The prosecutor did
emphasize that statement in his jury argument. He argued, “If there wasn’t one
shred of aggravating evidence beyond that, not one thing, you would be justified
in saying, ‘For that conduct, Jean Pierre Rices, you deserve to die.’ ” Defendant’s
knowledge of the free talk could have had no effect on the credibility or impact of
that prior statement.
For these reasons, disclosing the free talk before Miller testified would not
have significantly affected the trial. Any constitutional violation was harmless
beyond a reasonable doubt.
3. Asserted Instructional Error
The court instructed the jury that, because Miller was an accomplice in the
crimes, it should view “with caution” any of his statements or testimony that
tended to incriminate defendant. Defendant contends the court should additionally
have instructed the jury that Miller’s testimony or statements required
corroboration before the jury could consider them. (Pen. Code, § 1111.) It did not
have to so instruct. Defendant had already been convicted of the crimes to which
Miller testified. His testimony merely went to the circumstances of the crime, a
sentencing factor for the jury to consider (Pen. Code, § 190.3, factor (a)), not to
whether defendant was guilty. A corroboration instruction at the penalty phase is
appropriate when the accomplice testifies about unadjudicated crimes under Penal
Code section 190.3, factor (b). (People v. Hernandez (2003) 30 Cal.4th 835, 873-
874.) But it is not needed when the accomplice testifies about crimes of which the
defendant has already been convicted. (People v. Moore (2011) 51 Cal.4th 1104,
45
1143-1144; People v. Williams (1997) 16 Cal.4th 153, 275-276; People v. Easley
(1988) 46 Cal.3d 712, 733-734.)
Defendant argues that Miller did not merely testify that defendant
committed the crimes but provided details beyond their minimum elements. That
does not matter. The accomplice corroboration requirement only applies when the
prosecution is proving a previously unadjudicated crime, not when the witness
merely testifies about details of a crime that has already been adjudicated. This is
because when corroboration is required, such corroboration “may be slight and
entitled to little consideration when standing alone. However, it must tend to
implicate the defendant by relating to an act that is an element of the crime. It
need not by itself establish every element, but must, without aid from the
accomplice’s testimony, tend to connect the defendant with the offense.” (People
v. Nelson (2011) 51 Cal.4th 198, 218.) When the defendant has been convicted of
the crime, this standard will always have been satisfied. Hence, no accomplice
corroboration is needed. (People v. Easley, supra, 46 Cal.3d at p. 734.) For these
reasons, there was also no federal constitutional violation. (People v. Sattiewhite
(2014) 59 Cal.4th 446, 473.)
The conclusion that no corroboration instruction was warranted also
disposes of defendant’s additional argument that his attorneys were ineffective in
failing to request one.
E. Defendant’s Criminal Conduct While a Juvenile
The prosecution presented evidence in aggravation of two crimes of
violence defendant committed in 1999, when he was 17 years old, and of his
conviction for one of those crimes. Defendant contends reliance on such evidence
violated his rights under the Eighth Amendment to the United States Constitution.
It did not.
46
“We have long held that evidence of violent juvenile misconduct that
would have been a crime if committed by an adult is admissible under [Penal
Code] section 190.3, factor (b). [Citations.] We also have repeatedly held that the
admission of such evidence passes constitutional muster. [Citations.]
Nevertheless, defendant argues admission of the evidence was unconstitutional in
light of the high court’s decision in Roper v. Simmons (2005) 543 U.S. 551,
holding that the Eighth and Fourteenth Amendments prohibit execution of
individuals who were under 18 years of age at the time of their capital crimes.
Defendant’s reliance on Roper is misplaced. We recently have rejected
defendant’s argument by explaining that Roper ‘says nothing about the propriety
of permitting a capital jury, trying an adult, to consider evidence of violent
offenses committed when the defendant was a juvenile.’ (People v. Bramit (2009)
46 Cal.4th 1221, 1239; accord, People v. Taylor (2010) 48 Cal.4th 574, 653-654.”
(People v. Lee (2011) 51 Cal.4th 620, 649.)
Defendant cites two additional recent high court decisions concerning when
a person may receive a sentence of life in prison without parole for crimes
committed while a juvenile. (Miller v. Alabama (2012) 567 U.S. 460; Graham v.
Florida (2010) 560 U.S. 48.) The same reasoning applies to those cases. They do
not address the question of whether evidence of juvenile misconduct can be
considered on the question of what punishment a defendant may receive for crimes
committed as an adult. Defendant also argues that the high court’s yet more recent
decision in Hall v. Florida (2014) __ U.S. __ [134 S.Ct. 1986] affects this issue. It
does not. That case, involving a Florida restriction on evidence admissible to
show that a person has an intellectual disability, is even further afield from this
question than the other cases defendant cites. The high court has never suggested
that evidence of juvenile misconduct may not be admitted in deciding the proper
punishment for crimes an adult commits.
47
Defendant did not receive the death penalty for his juvenile crimes. He
received the death penalty for the execution-style murders of two unresisting
robbery victims committed when he was an adult. No legal principle prohibits
admitting evidence of his violent juvenile conduct on the question of what the
punishment for those crimes should be.
F. Excluding Evidence of the Impact of Defendant’s Execution on His
Family
Defendant’s aunt testified on his behalf in mitigation. She testified that she
loved him. Defendant then asked her, “What do you think the penalty for the
crimes that he’s committed should be?” The court sustained the prosecutor’s
objection to the question “as formed.” Defendant then asked, “Do you think he
should get the death penalty?” When the prosecution again objected, the court and
parties held a conference outside the jury’s presence. The court explained its
ruling: “As to the objection, I believe we may be in a generally relevant area.
[The witness] has indicated she loves Mr. Rices, and I will allow you to inquire as
to her thoughts about what impact certain penalties might have on her due to that
degree of love. But just offering opinion as to what penalty, I’m going to sustain
that objection. It has to be linked, somehow, to a circumstantial tidbit of evidence
regarding Mr. Rices and his character before I would allow that type of question.”
Later, defendant called his grandmother as another witness in mitigation.
He asked her, “Do you have an opinion about what the impact would be on Jean
Pierre’s family if he was to be executed?” The court sustained the prosecutor’s
objection, then held a conference outside the jury’s hearing. The court explained
that “the impact of execution on the defendant’s family is not relevant, necessarily,
to a mitigating factor in the case. If somehow it might indirectly bear on his
character, that’s one thing, but this question doesn’t get to that. . . . His character,
obviously, he’s got positive characteristics, go for it. But right now, you’re just
48
saying what impact would this have on the family. That’s not relevant to a
character trait of Mr. Rices.” In front of the jury, defendant elicited the witness’s
testimony that defendant had a positive relationship with his son, whom he loved,
and that “the main thing is for him to be with one of his parents.”
When the parties and court were discussing jury instructions, the prosecutor
objected to the following language that defendant had requested from CALCRIM
No. 763: “[Y]ou may consider evidence about the impact the defendant’s
execution would have on [his] family if that evidence demonstrates some positive
quality of the defendant’s background or character.” He argued there was no
evidence to support the instruction. The court stated that it tended to agree, but
withheld a final ruling until it reviewed the case of People v. Ochoa (1998) 19
Cal.4th 353 (Ochoa). Later, after it reviewed that case and the transcript of the
relevant testimony, the court sustained the prosecutor’s objection to that sentence
of the instruction.
Ultimately, the court instructed the jury: “Although you may consider
sympathy or compassion for the defendant, you may not let sympathy for the
defendant’s family influence your decision.” (CALCRIM No. 763.)
Defendant contends the court erred in not permitting the questions
regarding the impact defendant’s execution would have on his family. It did not.
In Ochoa, supra, 19 Cal.4th 353, the case the trial court consulted, we explained
that “what is ultimately relevant is a defendant’s background and character — not
the distress of his or her family. A defendant may offer evidence that he or she is
loved by family members or others, and that these individuals want him or her to
live. But this evidence is relevant because it constitutes indirect evidence of the
defendant’s character. The jury must decide whether the defendant deserves to
die, not whether the defendant’s family deserves to suffer the pain of having a
family member executed.” (Id. at p. 456.) “In summary, we hold that sympathy
49
for a defendant’s family is not a matter that a capital jury can consider in
mitigation, but that family members may offer testimony of the impact of an
execution on them if by so doing they illuminate some positive quality of the
defendant’s background or character.” (Ibid.) We have repeatedly reiterated these
principles. (E.g., People v. Williams (2013) 56 Cal.4th 165, 197-198, & cases
cited.) “Nothing contrary to these principles occurred at trial.” (Ochoa, at p. 456.)
Defendant contends that Ochoa, supra, 19 Cal.4th 353, was wrongly
decided. We have rejected substantially similar arguments and continue to do so.
(People v. Bennett (2009) 45 Cal.4th 577, 602.)
G. Prosecution’s Argument Regarding Future Dangerousness
Over objection, the court permitted the prosecutor to argue to the jury that
the evidence of defendant’s violent criminal conduct while incarcerated showed
that he would be dangerous in a prison setting in the future. Defendant contends
the argument was improper because future dangerousness is not one of the
statutory factors in aggravation listed in Penal Code section 190.3.
“The circumstances of a defendant’s crimes, his unadjudicated violent
conduct, and his violent conduct underlying a prior conviction, are aggravating
factors under [Penal Code] section 190.3, factors (a), (b), and (c). [Citation.] A
prediction that a defendant will be dangerous in the future based on evidence
admitted under factors (a)–(c) is not itself a fact or an aggravating factor. It is an
inference drawn from the aggravating evidence, and is properly argued by a
prosecutor and considered by the jury in making its penalty determination.
[Citation.] As the high court has recognized, ‘ “any sentencing authority must
predict a convicted person’s probable future conduct when it engages in the
process of determining what punishment to impose.” ’ (California v. Ramos
(1983) 463 U.S. 992, 1002.) And as the Attorney General observes, our cases
50
stand ‘for the unsurprising proposition that the prosecution may make reasonable
inferences from properly admitted evidence to argue for imposition of the death
penalty.’ ” (People v. Romero and Self (2015) 62 Cal.4th 1, 53.) There was no
error.
H. Trial Court’s Ex Parte Communication with the Jury
As discussed previously, codefendant Miller testified on his own behalf,
partly in front of defendant’s penalty jury. In essence, Miller claimed defendant
forced him to participate in the robbery. The prosecutor cross-examined him at
length and impeached his credibility with his prior inconsistent statements. The
prosecutor also showed Miller a blowup of a letter Miller had written to defendant.
The blowup was marked in front of defendant’s jury as People’s Exhibits 65 and
65A. In his testimony, Miller acknowledged that he had written the letter to
defendant, and that it contained the following language: “ ‘I love you, boy, and
the struggle only gets better. Until pencil meets paper again, your protégé, with
love, lil bro, Ant.” (“Ant.” is apparently short for Anthony, Miller’s first name.)
The prosecutor concluded his cross-examination of Miller in front of defendant’s
jury by asking, “That letter was sent since you’ve been in custody facing charges
on this case, correct?” Miller said yes. The prosecutor then said, “Thank you, sir.
I have no further questions.”
Although People’s Exhibits 65 and 65A were marked and shown to Miller
in front of defendant’s jury, and placed into evidence in Miller’s guilt trial, it does
not appear the exhibits were formally received in evidence in defendant’s penalty
trial. The clerk’s transcript indicates that, during deliberations, the jury “made an
oral request” to see exhibits 65 and 65A, “which were not received into evidence
on the Rices case but were presented to both juries during the overlapping
evidence with the Miller case. The Court directs the bailiff to inform the jurors of
51
this fact.” The jury continued its deliberations and reached a verdict later the same
day.
During the record settlement process, the court settled the record regarding
what occurred: “The Clerk’s Minutes of June 24, 2009, show that the jury made
an oral request to see Exhibit 65 and 65a which had been shown to them in open
court. The communication was not recorded by the court reporter. Defendant has
asked for record settlement on this matter. The court has reviewed its notes and
the Clerk’s Transcript. The record is settled on this matter as follows: At 1:57
p.m. that day, (1) the jury made an oral communication to the bailiff for People’s
Exhibits 65 and 65a, (2) the bailiff relayed the jury’s request to the court, (3) the
court advised the bailiff to tell the jury that these exhibits were not admitted into
evidence in Mr. Rices’s trial, and (4) the bailiff relayed this information to the
jury. Neither counsel for the People nor counsel for defendant were notified of the
jury’s note or the court’s communication.”
Defendant contends, and the Attorney General concedes, that the court’s ex
parte communication with the jury violated his federal constitutional “right to
personal presence at all critical stages of the trial and the right to counsel . . . .”
(Rushen v. Spain (1983) 464 U.S. 114, 117.) We agree the court committed
federal constitutional error. “ ‘This rule is based on the precept that a defendant
should be afforded an adequate opportunity to evaluate the propriety of a proposed
judicial response in order to pose an objection or suggest a different reply more
favorable to the defendant’s case.’ ” (People v. Wright (1990) 52 Cal.3d 367,
402.) However, the error was “harmless beyond a reasonable doubt.” (Rushen v.
Spain, at p. 121.) “Although such communications violate a defendant’s right to
be present, and represented by counsel, at all critical stages of his trial, and thus
constitute federal constitutional error, reversal is not required where the error can
52
be demonstrated harmless beyond a reasonable doubt.” (Wright, at p. 403; accord,
People v. Clark (2011) 52 Cal.4th 856, 987.)
Noting that his right to the effective assistance of counsel is implicated, and
citing United States v. Cronic (1984) 466 U.S. 648, defendant argues that the error
is reversible per se even without a showing of prejudice. We disagree. “Cronic
recognized a narrow exception to” the rule that a defendant claiming ineffective
assistance of counsel must show prejudice. (Florida v. Nixon (2004) 543 U.S.
175, 190.) The high court has made clear that exception is very narrow. It cited
Bell v. Cone (2002) 535 U.S. 685, 696-697, as holding that “for Cronic’s
presumed prejudice standard to apply, counsel’s ‘failure must be complete.’ ”
(Florida v. Nixon, at p. 190.) This exception does not apply here. As we explain,
the error had little effect on counsel’s performance or the trial. There was no
complete failure of counsel. The error is subject to normal federal harmless error
analysis, as established in Rushen v. Spain, supra, 464 U.S. 114.
Defendant argues that if counsel had been informed of the jury’s request, he
might have argued successfully that the exhibits either had been or should be
received into evidence. We agree and will assume that, had the court consulted
counsel, it would have provided the exhibits to the jury. But that is the extent of
the error’s effect. It prevented the jury from viewing the physical exhibits, but it
did not negate Miller’s oral testimony. That testimony is what impeached his
credibility.
In front of defendant’s jury, Miller acknowledged that he wrote the letter to
defendant after his arrest in this case, and that the letter contained the language
read into the record. This testimony impeached Miller’s testimony blaming
defendant. The physical exhibits contain nothing significant not included in the
oral testimony that might have further impeached Miller or otherwise helped
defendant.
53
As discussed previously, both parties, including the prosecutor, argued to
the jury that Miller’s trial testimony was not credible. The prosecutor relied on
none of that testimony in arguing the case to the jury. Rather, he cited in
aggravation only Miller’s prior statement regarding the victims’ pleading for their
lives. If anything, the letter— which suggested Miller would not have lied to
defendant’s detriment — bolstered the credibility of that statement. For these
reasons, the ex parte communication — which, we will assume, erroneously
prevented the jury from viewing the physical letter — was harmless beyond a
reasonable doubt. For the same reasons, the error did not violate defendant’s right
under the Eighth Amendment to the United States Constitution to a reliable
penalty determination.
I. Denial of New Trial Motion
Defendant moved for a new trial on several grounds, two of which were
that the court erred in denying mistrial motions he made during the trial. Both
mistrial motions were based on a witness’s saying something that was
inadmissible against defendant. The court denied the motion for a new trial.
Defendant contends the court erred.
The standard of review of a ruling denying a mistrial motion and a ruling
denying a new trial motion is the same: abuse of discretion. (People v. Harris
(2013) 57 Cal.4th 804, 848 [mistrial motion]; People v. Coffman and Marlowe
(2004) 34 Cal.4th 1, 127 [new trial motion].) As we explain, the court acted
within its discretion when it denied the mistrial motion on both occasions and,
accordingly, it acted within its discretion when it later denied a new trial on the
same grounds.
54
1. Reference to Gang Membership
The court and parties anticipated — correctly, as it turned out — that the
prosecution would not present any evidence that defendant belonged to a gang.
When Miller testified in front of defendant’s jury, he referred to defendant’s
“reputation” of “being a gang member.” Defendant objected. The court allowed
Miller’s jury to consider the testimony, but it admonished defendant’s jury “to
disregard that reference to ‘gang’ and you are to treat it as though you never heard
it.” Defendant moved for a mistrial based on this reference, which the court
denied. Later, based on defendant’s objections on other grounds, the court
dismissed defendant’s jury for the remainder of Miller’s testimony to prevent
prejudicial evidence coming in against him.
A court should grant a mistrial motion based on a witness’s statement if it
judges the defendant has been prejudiced in a way that an admonition or
instruction cannot cure. Because this is inherently a speculative matter, the trial
court has considerable discretion in ruling on a mistrial motion. (People v. Harris,
supra, 57 Cal.4th at p. 848.) Here, the court acted well within its discretion. No
prosecution evidence connected defendant with a gang. In light of the prompt
admonition, the fleeting and vague reference, by a witness with an obvious motive
to besmirch defendant, could not have prejudiced defendant. Miller’s statement
was not “so incurably prejudicial that a new trial was required.” (People v.
Ledesma (2006) 39 Cal.4th 641, 683.)
The lack of prejudice was even clearer when the court ruled on the new trial
motion. As the prosecution pointed out in opposing the motion, defendant himself
interjected his gang membership into the case. Dr. Rahn Minagawa, his expert
witness, testified that his gang membership was a bad influence contributing to his
criminal behavior. (See People v. Dement (2011) 53 Cal.4th 1, 40 [witness’s
improper statement “was largely duplicative of evidence the jury properly
55
received”].) Thus, the court acted within its discretion in denying the new trial
motion.
2. Reference to Defendant’s Bragging
During pretrial hearings, the court excluded evidence regarding defendant’s
overt remorselessness. James Hoefer, the investigator in this case, testified at
length about the investigation. At one point, he stated, “We eventually received
information from witnesses who stated that Mr. Rices bragged about —.” The
prosecutor cut him off, and defendant moved to strike the statement. The court
admonished the jury, “There’s certain things that I’ve excluded in terms of his
description of what other people have said because it’s technically hearsay.” It
said it was “striking the word that you [the prosecutor] cut him off on, ‘bragged.’
It is to be disregarded.” The questioning continued with no further reference to
bragging.
Later, defendant moved for a mistrial due to the witness’s reference to
bragging. The court denied the motion: “Based upon my belief that it was
unintentional, based upon my belief that this jury will abide by my instruction,
which I’m going to give at the time of the legal instructions that they are to
disregard, fully, any evidence that they have been directed to disregard, I do not
believe that this inadvertent comment justifies a mistrial.” As part of the
instructions at the end of the evidence portion of trial, the court instructed the jury,
“If I ordered testimony stricken from the record, you must disregard it and must
not consider that testimony for any purpose.”
We see no abuse of discretion in denying either the mistrial motion or new
trial motion on this basis. This reference, cut off immediately, did not even
indicate what defendant was supposedly bragging about. Moreover, the court
promptly admonished the jury to disregard it.
56
J. Denial of the Automatic Motion to Modify the Verdict
The court denied defendant’s automatic motion to modify the verdict. In
ruling on the motion, the court may consider only the evidence presented to the
jury. (People v. Rodriguez, supra, 58 Cal.4th at p. 651.) Defendant contends that
he is entitled to a new hearing on the motion because the trial court had reviewed
the contents of Miller’s free talk before trial. He stresses that he was not aware of
the free talk at the time of the hearing and thus had no opportunity to discuss its
contents. (See pt. II.D.2., ante.) There was no error.
At the outset of its ruling, the trial court stated, “I have considered only the
evidence presented to the jury.” Its lengthy discussion of the aggravating and
mitigating factors — limited to that evidence — confirms this statement. The
court never referred to any statement similar to those in the free talk. Defendant
notes that the court specifically stated that it had not considered information
contained in the presentence report. But that statement does not somehow imply
that it considered the free talk. We have no reason to doubt that, as it stated, the
court considered only the evidence presented to the jury.
Defendant relies on Gardner v. Florida (1977) 430 U.S. 349. In that case,
“When the trial judge imposed the death sentence he stated that he was relying in
part on information in a presentence investigation report. Portions of the report
were not disclosed to counsel for the parties.” (Id. at p. 351.) The high court
found this procedure violated due process. There is a fundamental difference
between Gardner and this case. In Gardner, the court considered the information
not disclosed to the defendant; here, the court did not consider that information.
Gardner does not aid defendant. We see no error in the court’s denial of the
motion to modify the verdict.
57
K. Challenges to California’s Death Penalty Law
Defendant reiterates numerous challenges to California’s death penalty law
that we have already rejected. We see no reason to reconsider our previous
decisions.
Penal Code section 190.3, factor (i) (the age of the defendant) is not
unconstitutionally vague. (Tuilaepa v. California (1994) 512 U.S. 967, 977;
People v. Sanders (1995) 11 Cal.4th 475, 563-564.) “Penal Code sections 190.2
and 190.3 are not impermissibly broad, and factor (a) of Penal Code section 190.3
does not make imposition of the death penalty arbitrary and capricious.” (People
v. Sánchez, supra, 63 Cal.4th at p. 487.) Other than the penalty verdict itself, the
jury need not achieve unanimity. (Ibid.) Except for other crimes evidence and
prior convictions, the jury need not make findings beyond a reasonable doubt.
(Ibid.) The court’s instructions need not delete inapplicable sentencing factors.
(Id. at p. 488.) The instructions need not delineate between aggravating and
mitigating factors. (People v. Dykes (2009) 46 Cal.4th 731, 814.) The sentencing
factors are not impermissibly vague and ill-defined. (People v. Schmeck (2005) 37
Cal.4th 240, 305.) “Penal Code ‘[s]ection 190.3’s use of adjectives such as
“extreme” and “substantial” in describing mitigating circumstances does not
impermissibly limit the jury’s consideration of mitigating factors.’ ” (Sánchez, at
pp. 487-488.) “[N]o instruction on burden of proof is needed.” (Id. at p. 487.)
“California’s use of the death penalty does not violate international law.” (Id. at p.
488.)
58
III. CONCLUSION
We affirm the judgment.
CHIN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
NARES, J.*
_____________________________
*Associate Justice of the Court of Appeal, Fourth Appellate District, Division
One, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
59
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Rices
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S175851
Date Filed: December 11, 2017
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: Lantz Lewis
__________________________________________________________________________________
Counsel:
Cliff Gardner, under appointment by the Supreme Court, and Rudolph J. Alejo for Defendant and
Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens, Michael Murphy, Robin
Urbanski and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Cliff Gardner
1448 San Pablo Avenue
Berkeley, CA 94702
(510) 524-1093
Alana Cohen Butler
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9227