People v. Scully

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT WALTER SCULLY,
Defendant and Appellant.
S062259
Sonoma County Superior Court
SCR-22969
May 24, 2021
Chief Justice Cantil-Sakauye authored the opinion of the Court, in
which Justices Liu, Cuéllar, Kruger, Groban, Jenkins, and Jackson*
concurred.
________________________
* Associate Justice of the Court of Appeal, First Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
PEOPLE v. SCULLY
S062259
Opinion of the Court by Cantil-Sakauye, C. J.
A jury convicted defendant Robert Walter Scully of the first
degree murder and robbery of Sonoma County Deputy Sheriff Frank
Trejo. (Pen. Code, §§ 187, 211.)1 The jury found true the special
circumstance allegations that defendant committed the murder for
the purpose of avoiding arrest (§ 190.2, subd. (a)(5)) and while
engaged in the commission of a robbery (§ 190.2, subd. (a)(17)), and
that defendant intentionally killed a peace officer engaged in the
performance of his duties (§ 190.2, subd. (a)(7)). The jury also
convicted defendant of the possession of a short-barreled shotgun
(former § 12020, subd. (a)), possession of a firearm as a convicted felon
(former § 12021, subd. (a)(1)), burglary (§ 459), assault with a firearm
(§ 245, subd. (a)(2)), and six counts of false imprisonment (§§ 210.5,
236). It found true the allegations that defendant was armed with
and personally used a firearm in the commission of each of the
offenses. (Former §§ 12022, subd. (a)(1), 12022.5.) It also found true
that defendant suffered three prior strike convictions (§ 1170.12),
seven prior serious felony convictions (§§ 667, subd. (a), 1192.7, subd.
(c)), and had served three prior prison terms (§§ 667.5, subds. (a) &
(b)).
Following a penalty trial, the jury returned a verdict of death.
The trial court denied defendant’s motion for a new trial and
1
All further statutory references are to the Penal Code unless
otherwise indicated.
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Opinion of the Court by Cantil-Sakauye, C. J.
application to modify the judgment, and sentenced defendant to
death. This appeal is automatic. (§ 1239, subd. (b).)
We conclude defendant’s claims of error lack merit, and
therefore affirm his convictions and death judgment. We remand the
matter for resentencing to strike a three-year prior prison term
enhancement and otherwise affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Guilt Phase Evidence
1. Prosecution evidence
a. Murder of Deputy Frank Trejo
On March 29, 1995, at approximately 11:30 p.m., Deputy Trejo
informed dispatch that he was stopping a suspicious truck in the
Santa Rosa Saddlery (Saddlery) parking lot. Brenda Moore was
driving the truck; defendant was in the passenger seat. At 11:36 p.m.,
dispatch communicated with another deputy to check the status of
Deputy Trejo. Shortly thereafter, the first officer arrived at the
Saddlery parking lot and found Deputy Trejo dead in front of his
patrol car, lying facedown on his stomach in a pool of blood. The
deputy’s arms were positioned above his head, his fists were clenched,
and his legs were pointed straight back. The deputy’s gun belt,
weapon, radio, and flashlight were missing. His patrol car headlights
were off, and the vehicle spotlight was on and turned toward the
highway.
Several people witnessed the events leading to the shooting of
Deputy Trejo. Jesus Alejandro Ramirez Gutierrez (Ramirez),2
Onesimo Guerrero Tavarez (Guerrero), Oscar Gustavo Aguilar Lopez
(Aguilar), Rhonda Robbins, and Kellie Jones were in the R&S Bar
2
The defense introduced evidence that Ramirez had engaged in
past criminal conduct amounting to a misdemeanor.
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
parking lot when they noticed a sheriff’s patrol car parked behind a
green pickup truck in the adjacent lot. They saw defendant pointing
a shotgun at Deputy Trejo while Moore removed the deputy’s radio
and gun belt from him. Moore reached inside the deputy’s patrol car,
turned off the headlights, and moved the spotlight toward the sky.
Several of the witnesses observed the deputy kneel down on the
ground with his arms raised. Robbins and Jones saw defendant shoot
Deputy Trejo in the face at a close range. Ramirez, Guerrero, and
Aguilar also heard a gunshot; Ramirez noticed a flash come from
defendant’s weapon, and saw the deputy’s body jump. They watched
as defendant and Moore quickly returned to the pickup truck and
drove away.
Early the next morning, police officers located Moore’s truck
abandoned in a church parking lot in Santa Rosa. In a marshy area
between Moore’s truck and where defendant was later apprehended,
police collected a police radio, gun belt, and flashlight belonging to
Deputy Trejo.
Forensic pathologist Dr. Ervin Jindrich performed the autopsy
on Deputy Trejo. He determined the cause of death was a single
gunshot wound to the head. Dr. Jindrich could not state with
certainty the exact position of Deputy Trejo’s body in relation to the
shooter, but he was able to conclude that the deputy more or less faced
the barrel of the shotgun. The large defect in the deputy’s head
indicated that he was shot at close range. Numerous pellets from the
shotgun shell were embedded in Deputy Trejo’s head, and one pellet
had penetrated the distal shoulder. Dr. Jindrich opined that the
single pellet in the shoulder could have occurred if the deputy’s arm
was elevated above his head. Brain tissue was found on the back of
the deputy’s left hand, indicating that his hand was in front of his
body and parallel to his shoulders when shot.
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Opinion of the Court by Cantil-Sakauye, C. J.
Criminologist Richard Waller testified that a shot cup, the
plastic component of a shotgun shell, was recovered from the deputy’s
body during his autopsy. Waller determined the shot cup was fired
from defendant’s sawed-off shotgun. He also concluded that the
distance from the muzzle of the gun to Deputy Trejo was
approximately nine to 10 feet. He further resolved that the blood
spatters on the deputy’s clothing were consistent with high velocity
impact spatter. Scuff marks on the toe area of the deputy’s boots
indicated that there was force coming from the heel toward the front
toe area. Given the muzzle-to-target distance, the presence of brain
matter and glass fragments on the deputy’s body and clothing, and
the location of the blood spatters, Waller concluded that the deputy
was not in a prone position when he was shot.
b. Crimes at Frank Cooper and Yolanda King’s
residence
At approximately 1:30 a.m. on March 30, 1995, hours after the
killing of Deputy Trejo, defendant and Moore entered the Santa Rosa
home of Frank Cooper and his fiancée, Yolanda King.3 The couple and
their family — Yolanda’s son Jeremy, daughter Karen, and Karen’s
toddler son and infant daughter — were asleep. Frank was awakened
by the sound of the back door being kicked in. He left his bedroom to
check on the noise and was confronted by defendant, who pointed a
shotgun at Frank’s head and shouted at him to get down on his knees
or he would “blow [his] goddamn head off.” Yolanda, who was still in
their bedroom, asked Frank to comply. At defendant’s direction,
Frank awakened his family and gathered them in Karen’s bedroom.
Defendant repeatedly told them not to use the phone or look out the
window, or someone would “get hurt.”
3
For clarity, we refer to members of the Cooper/King family by
their first names.
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
Defendant was armed with a sawed-off shotgun and a pistol. He
unloaded the pistol, placed the bullets in socks, and tucked the socks
into his waistband. Moore went downstairs to make a phone call.4
The Cooper/King family remained in Karen’s bedroom for
approximately five hours. At 6:30 a.m., defendant allowed Frank to
leave the bedroom to make coffee. Frank told defendant that Jeremy
had a medical appointment at 7:30 a.m. and suspicions would arise if
they did not appear at the appointed time. Defendant permitted
Frank and Jeremy to leave, but warned Frank that the rest of the
family was still at the house and if anything went wrong, defendant
would kill them.
Upon leaving his home, Frank was stopped by law enforcement
blocking the road. He was able to bypass the police officers and reach
his ex-wife’s house, where he telephoned his son and ultimately
contacted the police. Per police instructions, Frank called his house
and told defendant that he had run out of gas and needed Yolanda to
bring a gasoline can and money to a location in downtown Santa Rosa.
Defendant allowed Yolanda to leave, but he would not permit her to
take Karen’s children outside. Following several telephone calls from
a police hostage negotiator and assurance that they would not be
harmed, defendant and Moore surrendered and were arrested.
During a search of the Cooper/King residence, evidence
specialists found a sawed-off shotgun bearing defendant’s right palm
print and Deputy Trejo’s revolver and speed loader. Specialists also
recovered from the field surrounding the residence a pair of brown
boots and a maroon backpack containing some clothing, a
4
At approximately 3:00 a.m., Moore telephoned her neighbor,
relating to her that defendant “had killed a cop” and was holding
“them” hostage.
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Opinion of the Court by Cantil-Sakauye, C. J.
handkerchief, sunglasses, and a black purse with Moore’s driver’s
license.
c. Conspiracy to commit robbery and attempted robbery
of Marian Wilson
Marian Wilson and Sung Won Kim owned Sushi Hana, a
restaurant in Sebastopol. On March 30, 1995, Wilson read about the
shooting of Deputy Trejo in the newspaper. She recognized the
description of the pickup truck and suspects from an incident that had
occurred near her restaurant the previous evening.
On March 29, 1995, Wilson and Kim closed Sushi Hana at
around 9:00 p.m. and proceeded to clean the restaurant and close out
the cash register. Wilson left to go shopping at the nearby Safeway at
approximately 10:00 p.m. On the drive back to Sushi Hana, Wilson
observed a green pickup truck parked around the corner from the
restaurant with defendant and Moore seated inside. Wilson parked
across the street from Sushi Hana and went inside to collect the
briefcase that contained the day’s receipts and mail. As she returned
to her car, she noticed the same green pickup truck was now parked
directly in front of her vehicle. As Wilson hurried to her car, defendant
and Moore got out of the truck and walked toward her. Wilson got
into her vehicle and circled the block; upon her return, she saw the
green truck headed toward Highway 12. Wilson returned to collect
Kim, who had heard an old car with a loud engine coming down the
alley next to the restaurant while Wilson was away. Kim perceived
the vehicle stop in front of the restaurant for at least 20 seconds. Kim
looked out the window and noticed that the vehicle was a truck.
The prosecution introduced evidence of defendant and Moore’s
possession of a loaded shotgun, watch caps, latex gloves, a pair of
binoculars, and several road maps for Vallejo, Napa, and Sonoma
County that had writings or markings on them. An enlarged view of
Santa Rosa had several areas circled or blacked out with pen.
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Opinion of the Court by Cantil-Sakauye, C. J.
As discussed in more detail below, defendant was charged with
conspiracy to commit robbery and attempted robbery of Wilson, but
he was acquitted on the attempted robbery charge and the court
declared a mistrial on the conspiracy count.
d. Prior felony convictions
In a bifurcated proceeding, the prosecution presented evidence
of defendant’s prior serious felony convictions, prior strike convictions,
and prior prison terms. The jury found the allegations true.
2. Defense evidence
Defendant did not deny shooting Deputy Trejo, but testified that
it was an accident. He also presented evidence intended to show that
prison living conditions had deleteriously impacted his state of mind.
On March 24, 1995, a few days before Deputy Trejo was shot,
defendant was released from Pelican Bay State Prison (PBSP) after
having spent more than a decade in prison. He was ordered to report
to his parole officer in San Diego by March 27. Moore picked up
defendant from prison and offered to drive him at least part of the way
to San Diego.
Defendant stayed at Moore’s home in Crescent City for two days.
During this time and unbeknownst to Moore, defendant found a
sawed-off shotgun in an old van near Moore’s home. Defendant was
aware that it was unlawful for him to possess a firearm as a convicted
felon, and that it was unlawful for anyone to possess a sawed-off
shotgun. Nevertheless, he kept the gun for protection because he
feared attack from the enemies he had made in prison and from
unknown enemies outside prison.
On March 26, defendant and Moore left Crescent City and
arrived in Santa Rosa that evening. Because Moore’s truck had
mechanical problems, the pair stayed in motels for the next few days
awaiting repair of the truck. Defendant was aware that he was late
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
in reporting for parole and admitted that he did not call the San Diego
parole office or look for a local parole office to explain the problems he
was having in getting to San Diego to report on time.
On March 29, Moore decided that she would drive defendant
only as far as San Francisco. On the way to San Francisco that
evening, Moore got lost driving out toward the coast. She drove to
Sebastopol and told defendant she wanted to return home. Defendant
became upset and yelled at Moore, insisting that she drive him to San
Francisco. Moore continued to drive around in circles as they argued.
Moore finally stopped the truck in the Saddlery parking lot. Almost
immediately, Deputy Trejo pulled in behind them and shined a
spotlight on the truck. Defendant testified that he panicked and tried
to convince Moore to drive away, but Moore had already stopped the
vehicle.
As defendant attempted to hide the shotgun, Moore exited the
truck to speak with the deputy. Moore returned to the vehicle to
retrieve her driver’s license and Deputy Trejo approached the
passenger side of the truck. When the deputy asked defendant to exit
the truck, defendant got out pointing the shotgun at the deputy. He
ordered Deputy Trejo to put his hands up. The deputy began to walk
backward toward his patrol car. Defendant told the deputy to freeze,
chambered a round in the shotgun, and directed the deputy to kneel.
Defendant then disarmed Deputy Trejo by ordering him to unbuckle
his gun belt and remove it. He testified that he intended to disarm
the deputy, not to steal the gun belt or items on the belt.
Deputy Trejo followed defendant’s direction to lie down on the
ground. Defendant began to walk backward toward the pickup truck,
still pointing the shotgun in the deputy’s direction. According to
defendant, he tripped and fell, which caused the shotgun to hit his leg
and discharge before it hit the ground. When defendant stood up, he
saw that Deputy Trejo had been shot in the face and was dead.
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Opinion of the Court by Cantil-Sakauye, C. J.
Defendant testified that he did not aim the shotgun at the deputy nor
intend to shoot him. Defendant returned to the pickup truck and
drove off with Moore.
Criminologist Peter Barnett testified for the defense. Based on
his analysis of the physical and forensic evidence collected in the
investigation of Deputy Trejo’s death, Barnett concluded that the
deputy was lying down when he was shot. Barnett explained that the
absence of evidence of falling blood and the position of the deputy’s
body suggested that he just collapsed from some slightly higher
position and fell straight down.
Five inmates incarcerated at PBSP and housed in the Security
Housing Unit (SHU) testified about prison conditions. Inmates in the
SHU were kept isolated for 23 hours a day, given an hour and a half
for yard exercise, and fed meals in their cells. It was common for
inmates to experience paranoia and have enemies in prison; prison
guards reinforced these perceptions by telling inmates that they had
enemies. As a result, inmates were fearful about being released and
running into another former inmate.
Dr. Stuart Grassian testified regarding the psychiatric effects of
long-term solitary confinement or housing in the SHU. He found that
inmates housed in the SHU tended to be extremely anxious,
antisocial, and hypervigilant, develop panic attacks, and experience
hallucinations. Based on his interview with defendant, Dr. Grassian
concluded that defendant’s thinking was narrow, rigid, and obsessive
by the time he was released from PBSP, and that he was helpless in
the outside environment. Defendant was upset and distressed when
he spoke with Dr. Grassian about the shooting of Deputy Trejo.
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Opinion of the Court by Cantil-Sakauye, C. J.
B. Penalty Phase Evidence
1. Prosecution evidence
The prosecution’s case in aggravation included evidence
regarding defendant’s violent criminal history, both in and out of
custody, and victim impact testimony.
Diane K. testified that on October 4, 1978, defendant entered
her apartment while she slept and raped her. As Diane K. struggled
with defendant, he hit her in the face and chest and attempted to
strangle her.
The prosecution also presented evidence that defendant and an
accomplice committed a series of armed robberies of bars and
restaurants in the San Diego area over the course of two weeks in
December 1981.
Additionally, the prosecution presented evidence of several
instances of defendant’s prior violent conduct while incarcerated. In
May 1983, defendant stabbed another inmate, who suffered puncture
wounds on his shoulder. When investigating the incident, a
correctional officer discovered that a portion of the bars on defendant’s
cell was missing. In February 1984, defendant was involved in a
physical altercation with another inmate during which the inmate
sustained stab wounds to his torso. In April 1984, defendant rushed
toward a correctional officer with an inmate-manufactured spear. The
following month, defendant stabbed another correctional officer with
an inmate-manufactured weapon. Three hacksaw blades wrapped in
plastic were subsequently discovered inside defendant’s rectum. In
August 1990, defendant and another inmate physically assaulted a
third inmate at the SHU yard at Corcoran State Prison. In October
1996, defendant threw a milk carton containing urine on three
correctional officers while he was in custody at the Sonoma County
jail.
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
Over defense objection, the prosecution presented victim impact
evidence through the testimony of five members of Deputy Trejo’s
family and two members of the Cooper/King family. Deputy Trejo’s
children described the close relationship they had with their father
and how his death impacted their lives. Deputy Trejo’s wife, Barbara,
described the grief and loss she felt after her husband died. Kevin
Cooper described the physical and emotional toll that the hostage
incident had taken on him. And Karen King described the impact that
the hostage incident had on her relationship with her family and her
interactions with new people.
2. Defense evidence
In mitigation, the defense focused on the effects of defendant’s
childhood and background on his behavior and the psychological
effects of having been incarcerated for nearly 13 years in the SHU or
in solitary confinement.
Several members of defendant’s family testified. Robert Scully,
defendant’s father, testified that he divorced defendant’s mother when
defendant was two or three years old and he did not have much
contact with defendant until recently. Robert Scully admitted to
struggling with alcoholism and acknowledged that his own father was
also an alcoholic.
Lola Bobby, defendant’s sister, testified that their family home
was very stressful and disruptive due to the abusive relationship
between their mother and stepfather, who were both alcoholics. The
children frequently saw their mother and stepfather engaging in
violent fights. Defendant left home when he was 11 or 12 years old.
Defendant’s mother, Sally Pike, and his other sisters, Marilyn Beall
and Patricia Scully, also briefly testified to show their support for
defendant.
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Opinion of the Court by Cantil-Sakauye, C. J.
Defendant’s juvenile probation officer described defendant’s
home life as “emotionally impoverished,” explaining that defendant’s
mother was overwhelmed by her abusive marriages and unable to deal
with defendant and his three sisters. Defendant had no positive male
role model or father figure in his life, nor any support at school or in
the community.
Two PBSP inmates testified concerning conditions in the
prison’s SHU. They described their life there as filled with monotony,
isolation, and fear.
Dr. Craig Haney, a professor of psychology at the University of
California, Santa Cruz, testified about the causes of violence in
institutional settings and the psychological effects of living in
maximum security prisons. He described defendant’s incarceration
history in various penal institutions and opined that an individual
such as defendant, who was continuously incarcerated in a SHU
facility or in solitary confinement for more than a decade, would
endure continuous and forced isolation and either become mentally ill
or “institutionalized” — that is, dependent on the routines, practices,
and logic of the prison environment. He explained that for inmates
who have been deeply institutionalized as a result of SHU
confinement, it is a disabling and frightening experience to be
released from prison. He opined that such inmates are often
unprepared to deal with the real world and do very poorly when they
are out of prison.
II. DISCUSSION
A. Pretrial and Guilt Phase Issues
1. Denial of motions for change of venue
Defendant contends the trial court erroneously denied his two
motions for a change of venue in violation of his rights to due process
and to a fair trial by an impartial jury under the Sixth and Fourteenth
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Opinion of the Court by Cantil-Sakauye, C. J.
Amendments to the United States Constitution. We conclude there
was no error.
a. Background
Defendant was arrested and charged in Sonoma County, where
the alleged offenses occurred. He moved for a change of venue
approximately 13 months later, in May 1996, arguing that a fair and
impartial trial could not be had in the county because of the extensive
publicity the case had received. At a hearing on the motion, experts
for the prosecution and defense testified about their respective survey
findings based on telephonic surveys they had conducted.
Dr. Edward Bronson testified for the defense regarding the
results of a venue survey he had designed to determine the extent to
which the media affected the community’s prejudgment of defendant
in Sonoma County. The results of Bronson’s survey, conducted in
January 1996, showed that 335 of 402 respondents recognized the
case, a rate of approximately 83 percent. Of those who recognized the
case, approximately 78 percent believed defendant was either
“definitely guilty” or “probably guilty,” and 59 percent viewed death
as the appropriate penalty. Bronson concluded that members of the
community were familiar with many details of the case widely covered
by the media, and that the rate of prejudgment of guilt increased with
the number of specific details recalled. Based on his review of nearly
140 news articles about the case, Bronson described the media
coverage as highly inflammatory, largely appealing to people’s
emotions, and containing inadmissible material as well as inaccurate
coverage that presumed defendant’s guilt. He recalled the media’s
description of the crime as an “execution-style slaying,” the depiction
of defendant as a PBSP parolee and a “cold-blooded killer,” and the
portrayal of Deputy Trejo’s death as a strike against the entire
community. He noted that media coverage was concentrated in the
Press Democrat, the main local newspaper.
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Dr. Ebbe Ebbesen testified for the prosecution regarding the
results of his own venue survey as well as his review of Dr. Bronson’s
survey findings. Ebbesen surveyed individuals in Sonoma County and
San Diego County, using San Diego as a comparison county with little
exposure to publicity about defendant’s case. Ebbesen’s survey results
showed a recognition rate of 68 percent in Sonoma County and
14 percent in San Diego County. But, he reported, the majority of
Sonoma residents who stated familiarity with the case actually had a
very shallow knowledge of the facts when asked to recount specific
details. When questioned specifically about defendant’s guilt in this
case, 70 percent of those surveyed in Sonoma and 47 percent in San
Diego thought defendant was definitely or probably guilty. However,
Ebbesen related, when individuals were given a definition of first
degree murder and the reasonable doubt standard in considering
defendant’s guilt, there was virtually no difference between the two
counties in the likelihood a respondent believed defendant was guilty.
In both counties, 85 to 90 percent of respondents indicated they could
set aside what they knew about the case and be impartial. There were
also no differences between the two counties regarding respondents’
views on the penalty defendant should receive if he were found guilty.
Ebbesen’s survey also showed an identical percentage of individuals
in both counties who were willing to change their opinions about guilt
when confronted with new evidence.
Dr. Ebbesen criticized Dr. Bronson’s survey for failing to
measure respondents who were unfamiliar with the case but would
still find defendant guilty based on their general attitudes toward
criminal justice. He also disagreed with Bronson’s assumptions about
the extent of people’s knowledge concerning the case and the breadth
of publicity. Ebbesen theorized that most people start with a
presumption of guilt, which may have caused the high percentage of
“definitely” or “probably” guilty responses in Sonoma County. He also
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Opinion of the Court by Cantil-Sakauye, C. J.
opined that there could be reasonable alternative explanations for
hostility against defendant that were not necessarily publicity
induced, such as the emotional nature of the crime — the murder of a
police officer.
Dr. Ronald Dillehay testified for the defense in rebuttal. After
reviewing both survey results, Dillehay concluded that Dr. Bronson’s
methodology and conclusions were valid, and Dr. Ebbesen’s survey
was too long and complex.
Following the hearing, the trial court denied defendant’s motion
without prejudice, subject to renewal after voir dire. It deemed the
surveys too speculative, and declined to consider them in its analysis.
Based on its review of the 68 newspaper articles submitted by the
defense, the court ruled that the pretrial publicity was not
inflammatory or pervasive enough to warrant a change of venue.
Jury selection began in October 1996. Approximately 800
prospective jurors were summoned. After a majority of the jury pool
was excused for hardship, 197 prospective jurors remained. Based on
their written responses to questions in the jury questionnaire
regarding pretrial publicity, 163 of the 197 prospective jurors
recognized the case, a rate of approximately 83 percent. Thirty to 40
prospective jurors were subsequently excused by stipulation. After
the remaining prospective jurors were questioned regarding their
knowledge of the case from pretrial publicity as well as their death
penalty views, the jury pool was further reduced to 88.
Defendant renewed his motion for change of venue in mid-
November 1996, a few days before the completion of jury selection —
and approximately 19 months after the charged crimes occurred. He
claimed the questionnaire responses and individual voir dire showed
that pretrial publicity continued to have an effect on the community
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Opinion of the Court by Cantil-Sakauye, C. J.
and jury venire. The court waited to rule on the motion until after the
completion of jury selection.
Once both sides declined to exercise further peremptory
challenges and accepted the panel, defendant asked the court to
revisit the motion.5 According to defense counsel, approximately
85 percent of the potential jurors who had completed the
questionnaire recognized the case. This included 14 of the 18 seated
jurors and alternates, a recognition rate of approximately 77 percent.6
The court denied defendant’s renewed motion. In so ruling, the
court explained that it had carefully reviewed the written
questionnaire responses of prospective jurors, individually questioned
them about the influence of the pretrial publicity on their opinions
and their ability to be impartial, and observed their demeanor during
voir dire. It found that the venire did not demonstrate the level of
pretrial publicity necessary to disqualify them as a group of
prospective jurors. It separately considered the written and oral
responses to pretrial publicity questions from the seated and alternate
jurors, and ruled that defendant failed to meet his burden of proving
that he could not receive a fair trial based on the responses of the
actual jurors selected.
b. Discussion
On a defendant’s motion, the court shall order a change of venue
“when it appears that there is a reasonable likelihood that a fair and
5
The defense had 14 available peremptory challenges that it did
not use.
6
Nine of the 12 seated jurors were familiar with the case based
on pretrial publicity. One of the nine jurors who had knowledge of the
case was excused by stipulation due to hardship after the jury reached
a verdict on the guilt phase, but prior to defendant’s bifurcated trial
on the alleged prior convictions.
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Opinion of the Court by Cantil-Sakauye, C. J.
impartial trial cannot be had in the county.” (§ 1033, subd. (a); see
People v. Panah (2005) 35 Cal.4th 395, 447 (Panah).) In deciding
whether to change venue, a court must consider “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.” (People v. Rountree (2013)
56 Cal.4th 823, 837 (Rountree).) “Political overtone” factors, if
present, may also be a pertinent consideration. (See People v. Harris
(2013) 57 Cal.4th 804, 822 (Harris); Maine v. Superior Court of
Mendocino County (1968) 68 Cal.2d 375, 387 (Maine).)
“On appeal, the defense bears the burden of showing both error
and prejudice. It must establish a reasonable likelihood both that a
fair trial could not be had at the time of the motion, and that the
defendant did not actually receive a fair trial.” (People v. Smith (2015)
61 Cal.4th 18, 39 (Smith); see People v. Rices (2017) 4 Cal.5th 49, 72
(Rices).) “[W]e 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.” (Rountree, supra,
56 Cal.4th at p. 837.)
i. Nature and gravity of the offense
The “nature” of an offense refers to the “ ‘peculiar facts or
aspects of a crime which make it sensational, or otherwise bring it to
the consciousness of the community.’ ” (People v. Hamilton (1989)
48 Cal.3d 1142, 1159 (Hamilton).) The “gravity” of an offense refers
to “ ‘its seriousness in the law and to the possible consequences to an
accused in the event of a guilty verdict.’ ” (Ibid.; see Martinez v.
Superior Court (1981) 29 Cal.3d 574, 582.)
Here, the gravity of the offense, capital murder, weighs in favor
of a venue change. Yet we have repeatedly held that this factor is not
dispositive (Rountree, supra, 56 Cal.4th at p. 837), and have rejected
17
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Opinion of the Court by Cantil-Sakauye, C. J.
calls to establish a presumption of a venue change in all capital cases
(People v. Sanders (1995) 11 Cal.4th 475, 506). Indeed, “ ‘every capital
case involves a serious charge. While this factor adds weight to a
motion to change venue, it does not in itself require a change.’ ”
(People v. Hart (1999) 20 Cal.4th 546, 598.)
The nature of the offenses — a single fatal gunshot fired at close
range and the subsequent taking family members hostage before
releasing them — were not particularly aggravated in comparison
with other capital murders. There were certainly gruesome details,
but nothing approaching the sensational overtones of other cases in
which we have upheld the denial of venue motions. (Smith, supra, 61
Cal.4th at p. 40; see also Rountree, supra, 56 Cal.4th at p. 838; People
v. Ramirez (2006) 39 Cal.4th 398, 407, 434–435 (Ramirez).) The fact
that the victim was a police officer likewise does not require a venue
change. (People v. Jenkins (2000) 22 Cal.4th 900, 943; Rices, supra,
4 Cal.5th at p. 72; Odle v. Superior Court (1982) 32 Cal.3d 932, 941
(Odle) [“ ‘brutal stabbing’ ” of a young woman and murder of a police
officer were “not . . . the type of multiple and bizarre killings that were
the object of media attention” that would weigh in favor of a venue
change].)
ii. Nature and extent of media coverage
We next consider the nature and extent of the media coverage,
the factor upon which defendant primarily relies. Defendant contends
the pretrial publicity was so extensive, sensational, and prejudicial
that it was reasonably likely that a fair and impartial trial could not
be had in Sonoma County.
“ ‘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 evaluation on her “own perception of the
depth and extent of news stories that might influence a juror.” ’ ”
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Opinion of the Court by Cantil-Sakauye, C. J.
(Rices, supra, 4 Cal.5th at p. 74, quoting Skilling v. United States
(2010) 561 U.S. 358, 386.) In the case below, the trial court considered
the 68 newspaper articles submitted in support of defendant’s motion
for change of venue. The court described the reporting as “extensive
and detailed within the first two weeks of the killing,” but pointed out
that “[t]hey tapered off in number and frequency as time passed” and
“there was no reporting between the various court appearances.” It
also observed that several of the articles submitted by defendant did
not at all relate to his case and some of the others merely mentioned
him or Deputy Trejo peripherally. The court found the media coverage
to be predominantly factual, intermittent, and not inflammatory or
sensationalized.
The court compared the nature and extent of the media coverage
in this case to that in Odle, supra, 32 Cal.3d 932, which also concerned
the killing of a police officer. In Odle, the defendant presented
approximately 150 newspaper articles containing potentially
inflammatory and prejudicial information, including local and
regional papers covering the funeral of the slain officer and reports on
pretrial proceedings and developments. (Id. at p. 939.) We concluded
that a change of venue was not warranted in light of the lengthy
period of time between the initial two-week period of extensive media
coverage and the change of venue motion. (Id. at p. 940.) Citing Odle,
the trial court found that the media coverage of defendant’s case did
not warrant a change of venue.
We have reviewed the 68 newspaper articles attached to
defendant’s first motion for change of venue and agree with the trial
court’s assessment of the media coverage in this case. Several articles
described defendant as a parolee, violent felon, career criminal, or
reputed member of the Aryan Brotherhood. They also characterized
the murder of Deputy Trejo as “cold-blooded” and “execution-style.”
Each, however, took care to refer to defendant as “suspected” or
19
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
“accused” of “allegedly” shooting the deputy. Most of these articles,
which were generally factual, fair, and not inflammatory, were
published within the first several months following defendant’s
arrest.
As the trial court observed, the pretrial publicity in this case
demonstrates less hostile and less pervasive media coverage than in
Odle. Defendant submitted less than half the number of articles
presented in Odle, and a majority were published within the first
several months following his arrest. Indeed, we have repeatedly
upheld the denial of change of venue motions in numerous cases
involving a similar or greater degree of media coverage. (See, e.g.,
People v. Famalaro (2011) 52 Cal.4th 1, 22 (Famalaro) [289 newspaper
articles and editorials and television coverage on all major stations];
People v. Prince (2007) 40 Cal.4th 1179, 1210–1214 (Prince) [270
newspaper articles and extensive television coverage]; People v. Sully
(1991) 53 Cal.3d 1195, 1237 [193 newspaper articles, 300 pages of
television transcripts, and eight videotapes].) In People v. McCurdy
(2014) 59 Cal.4th 1063, 1077 (McCurdy), for example, we concluded
that the nature and extent of the media coverage — approximately 60
newspaper articles published about defendant’s case, a third of which
appeared in the first few months following his arrest — did not heavily
favor a change of venue. Similarly, we upheld the trial court’s denial
of a change of venue motion in People v. Coffman and Marlow (2004)
34 Cal.4th 1, 44, 46 (Coffman and Marlow), even though the defense
presented more than 150 articles from regional newspapers and
several videos of television coverage of the case. We observed that the
media coverage “substantially predated the trial” and all of the seated
jurors who remembered hearing about the case indicated during voir
dire that pretrial publicity would not prevent them from acting fairly
and impartially. (Ibid.)
20
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
Moreover, the publicity in this case was not so inflammatory as
to preclude a fair trial. “ ‘Media coverage is not biased or
inflammatory simply because it recounts the inherently disturbing
circumstances of the case.’ [Citation.] Although ‘press coverage need
not be inflammatory to justify a change of venue . . .’ [citation],
something more than sensational facts has been present in cases in
which a change of venue was required.” (People v. Suff (2014)
58 Cal.4th 1013, 1048 (Suff); see also People v. Zambrano (2007)
41 Cal.4th 1082, 1126 [Although “local coverage disclosed the brutal
details of the crimes, and elicited their effects on the victims and their
families, the reporting was essentially factual, not sensationalized”].)
We have previously held that media descriptions of crimes as
“execution-style murders,” “ ‘brutal,’ ‘cold-blooded,’ ‘evil,’ ‘horrible,’ or
‘horrific’ ” were not by themselves necessarily prejudicial when they
appeared in generally factual and noninflammatory reporting. (Rices,
supra, 4 Cal.5th at p. 73.) Similarly here, the media description of
defendant as a “cop killer,” “violent criminal,” or “state parolee,” and
characterization of the crime as “cold-blooded” or “execution-style”
does not approach the type of incendiary reporting that would warrant
a change of venue.
Nor does the media’s description of defendant’s reputed Aryan
Brotherhood affiliation or recounting of his criminal history warrant
a venue change. There are approximately 10 articles, published over
the course of nearly 18 months, that mention defendant’s alleged
affiliation with the Aryan Brotherhood or white supremacist group.
Most were published within the first three weeks following Deputy
Trejo’s killing. The articles made only passing reference to
defendant’s Aryan Brotherhood connection, which was largely
described as “alleged” or “reputed.” In addition, in response to written
questions regarding media coverage of the case, only a handful of the
197 prospective jurors stated they recalled defendant’s alleged
21
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
affiliation with a white supremacist group. In Coffman and Marlow,
we upheld the denial of a motion for change of venue, even though
much of the reporting “characterized defendants as armed and
dangerous transients implicated in serial killings” and some
“recounted [the codefendant’s] criminal history and alleged ties to the
[w]hite supremacist Aryan Brotherhood.” (Coffman and Marlow,
supra, 34 Cal.4th at p. 44.) Similarly, in Famalaro, we concluded that
it was “reasonable to infer that the memories of any prospective
jurors” who had been exposed to a few news reports containing
inadmissible material or potentially prejudicial information “would
have been dimmed by the passage of time.” (Famalaro, supra,
52 Cal.4th at p. 22.)
Significantly, when an extended period of time passes between
most of the publicity and the trial, the prejudicial impact of initial
media coverage diminishes. (Rountree, supra, 56 Cal.4th at p. 838.)
“It is . . . difficult to envision an eventual capital case which will not
receive extensive media coverage, at least for a short period of time.
If the early publicity attendant on a capital case alone suffices to raise
a doubt as to the likelihood of a fair and impartial trial, a change of
venue would perforce be required in every such case.” (Odle, supra,
32 Cal.3d at p. 942.) Even in cases with saturated media coverage, we
have concluded that “the passage of more than a year from the time
of the extensive media coverage served to attenuate any possible
prejudice . . . .” (Ramirez, supra, 39 Cal.4th at p. 434.) In People v.
Lewis (2008) 43 Cal.4th 415, many articles used inflammatory terms,
and some revealed inadmissible facts such as the defendant’s prior
incarceration, his gang affiliations, and his codefendant’s confession,
as well as prejudicial information concerning his status as a suspect
in other offenses and his confessions to several charged murders. In
affirming the trial court’s denial of the defendant’s change of venue
motion, we observed that “[m]ost of the coverage — and nearly all of
22
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
the potentially inflammatory coverage — occurred . . . nearly a year
before jury selection occurred.” (Id. at p. 449.) Likewise, in Odle, we
held that the two-year gap between the period of extensive media
coverage and the prospective trial date resolved any doubt concerning
the likelihood that the defendant could receive a fair and impartial
trial in the county where the crimes occurred. (Odle, supra, 32 Cal.3d
at p. 943.) We explained that “[t]ime dims all memory and its passage
serves to attenuate the likelihood that early extensive publicity will
have any significant impact at the time of trial.” (Ibid.; see also
Panah, supra, 35 Cal.4th at p. 448 [any potential prejudice from media
coverage was attenuated by yearlong gap between time when most
articles had appeared and defendant’s trial].)
Here, as in Lewis and Odle, most of the press coverage was
attenuated. Defendant’s trial began more than a year and a half after
the initial pretrial publicity period had subsided. Approximately half
of the articles submitted by defendant were published within the first
month after the offense, and the vast majority of articles were
published within the initial five months of the offense. Thereafter,
coverage was sporadic. Of those that were published after the five-
month mark, which was still one year before jurors were summoned,
all but two articles contained factual updates about pretrial
proceedings. Radio and television coverage of the case occurred on
only five days in 1995 (mainly covering the days after the offense, the
police search for defendant, and Deputy Trejo’s memorial service) and
once in July 1996 (covering the change of venue motion).
Defendant urges us to follow Daniels v. Woodford (9th Cir. 2005)
428 F.3d 1181, 1212, in which the United States Court of Appeals for
the Ninth Circuit held that the nature and extent of the pretrial
publicity warranted a change of venue. Daniels involved the shooting
deaths of two police officers. (Id. at p. 1186.) But Daniels is
distinguishable from defendant’s case in at least one key respect —
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
there was extensive and nearly continuous publicity in Daniels just
before the defendant’s trial. (Id. at p. 1211.) Pervasive publicity
“saturated the county” and amounted to a “ ‘huge’ wave of public
passion” during the period immediately preceding trial. (Ibid.) Here,
by contrast, media coverage dissipated shortly after defendant’s
arrest and remained sporadic as trial approached. Thus, unlike in
Daniels, the passage of 18 months between the initial publicity and
defendant’s trial “serves to attenuate the likelihood that early
extensive publicity w[ould] have any significant impact at the time of
trial” and “resolve[s] any doubt concerning the likelihood that
[defendant] c[ould] receive a fair and impartial trial” in Sonoma
County. (Odle, supra, 32 Cal.3d at p. 943.)
Defendant maintains that the high recognition and guilt rate
presented in Dr. Bronson’s survey compelled a change of venue. But
even assuming that Bronson’s survey produced accurate results, “the
degree of exposure was not significantly higher than in other cases in
which a change of venue was not required.” (Rountree, supra,
56 Cal.4th at p. 838, citing People v. Leonard (2007) 40 Cal.4th 1370,
1396 (Leonard) [85 percent surveyed had heard of the case, and of
those, 58 percent believed the defendant was probably or definitely
guilty], Ramirez, supra, 39 Cal.4th at p. 433 [94.3 percent surveyed
had heard of the case, and of those, 51.7 thought the defendant was
responsible for the charged crimes], Coffman and Marlow, supra,
34 Cal.4th at p. 45 [71 percent surveyed had heard of the case, and of
those, more than 80 percent thought the defendant was definitely or
probably guilty]; see also Suff, supra, 58 Cal.4th at p. 1041
[73.2 percent surveyed had heard of the case, and of those, 66.9
percent thought the defendant was definitely or probably guilty];
Harris, supra, 57 Cal.4th at pp. 826–827 [72 percent surveyed had
heard of the case, and of those, 66 percent thought the defendant was
definitely or probably guilty]; Famalaro, supra, 52 Cal.4th at p. 19
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
[83 percent surveyed had heard of the case, and of those, 70 percent
thought the defendant was definitely or probably guilty].) “Moreover,
the survey did not ask whether the interviewees could set aside
anything they had heard of the case and decide guilt or innocence
based solely on the evidence presented at trial.” (Rountree, at p. 839.)
With regard to his second change of venue motion, defendant
contends the actual jury selection demonstrated that a fair trial could
not be had in Sonoma County. He claims that the jury pool’s written
and oral answers to questions concerning pretrial publicity show that
media coverage had prejudiced the pool against him. Defendant also
emphasizes that approximately 83 percent of the potential jurors, and
77 percent of the seated jurors and alternates, recognized the case
from the media.
It is true that jury selection showed that most prospective jurors
had heard of defendant’s case. However, “ ‘[w]e must distinguish
between mere familiarity with [the defendant] or his past and an
actual prejudice against him.’ ” (People v. Farley (2009) 46 Cal.4th
1053, 1086, quoting Murphy v. Florida (1975) 421 U.S. 794, 800, fn. 4;
see Skilling v. United States, supra, 561 U.S. at p. 381 [“Prominence
does not necessarily produce prejudice, and juror impartiality, we
have reiterated, does not require ignorance”].) “[T]he fact that
prospective jurors may have been exposed to pretrial publicity about
the case does not necessarily require a change of venue. [Citation.]
‘ “It is sufficient if the juror can lay aside his [or her] impression or
opinion and render a verdict based on the evidence presented in
court.” ’ ” (Panah, supra, 35 Cal.4th at p. 448; see People v. Harris
(1981) 28 Cal.3d 935, 949.)
Defendant asserts that the high percentage of seated jurors who
recognized the case demonstrates that he did not receive a fair trial in
Sonoma County. But we have upheld the denial of a change of venue
in cases with a similar or higher percentage of seated jurors who had
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
some prior knowledge of the case. (See, e.g., Harris, supra, 57 Cal.4th
at p. 830 [10 of 12 seated jurors]; Rountree, supra, 56 Cal.4th at p. 840
[eight of 12 seated jurors]; Ramirez, supra, 39 Cal.4th at p. 434 [11 of
12 seated jurors].) In Prince, we affirmed the denial of a venue change
even though “a high percentage of the prospective jurors and 12 of the
13 jurors who actually served at trial . . . had been exposed to the
publicity . . . .” (Prince, supra, 40 Cal.4th at p. 1215.) We based our
decision on the jurors’ responses to the juror questionnaire and voir
dire, which “did not disclose any prejudgment or emotional bias.”
(Ibid.) We observed that the jurors mostly “displayed only a vague
recollection of past news coverage,” and found significant the jurors’
assertions that “the publicity would not prevent them from serving as
unbiased jurors.” (Ibid., citing Panah, supra, 35 Cal.4th at p. 448
[relying upon similar claims] & Coffman and Marlow, supra,
34 Cal.4th at p. 46 [same].) Here too, the vast majority of seated
jurors had only superficial knowledge of the case from pretrial
publicity, and some had none at all.
Moreover, all of the jurors chosen to serve had confirmed that
they had no preset views concerning the case that they would be
unable to set aside based on what they had read or heard. (People v.
Peterson (2020) 10 Cal.5th 409, 442.) Although Juror No. 3360
indicated in his questionnaire that, based on media reports, he
thought “a violent criminal commit[ed] another violent crime,” he also
affirmed that he could set aside his personal opinion about defendant’s
guilt if selected to serve as a juror and explained that the information
he had regarding the case came from the media, which, he offered,
“has [been] proven wrong more times than not concerning important
facts.” During voir dire, he reiterated that although he had read a
newspaper article that made it seem like defendant had committed
the crime, he believed “the [news]paper more often than not gets
proven wrong later on” and he viewed the media with skepticism.
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
Juror No. 3360 also affirmed that he would “absolutely” keep an open
mind regarding the charges against defendant and assured the court
that he would base his decision only on the evidence, not on what he
might have learned from the media. The trial court found that
although Juror No. 3360 said he had heard a lot about the case, his
responses to questions in the jury questionnaire and during voir dire
demonstrated that he had an open mind. It is sufficient that the trial
court found that the actual jurors “ ‘had demonstrated an ability to set
aside any preconceived impressions derived from the media.’ ”
(Rountree, supra, 56 Cal.4th at p. 840; see also Prince, supra,40 Cal.4th at p. 1216 [“ ‘The category of cases where prejudice has
been presumed in the face of juror attestation to the contrary is
extremely narrow’ ”].)
In view of this record, we conclude that substantial evidence
supports the trial court’s assessment that the nature and the extent
of media coverage in defendant’s case does not weigh in favor of a
venue change. We afford the court’s judgment here particular weight
because the judge sat in the county where the publicity was said to
have had its effect, and could therefore “ ‘base her evaluation on her
“own perception of the depth and extent of news stories that might
influence a juror.” ’ ” (Rices, supra, 4 Cal.5th at p. 74.)
iii. Size of the community
“The size of the community is important because . . . a major
crime is likely to be embedded in the public consciousness more deeply
and for a longer time [in a small rural community] than in a populous
urban area.” (People v. Coleman (1989) 48 Cal.3d 112, 134 (Coleman),
italics added; see Martinez v. Superior Court, supra, 29 Cal.3d at
p. 581.) Although a lengthy passage of time between the crime and
trial “may be an efficacious antidote to publicity in medium-size and
large cities,” the delay may be less effective in a small community.
(Maine, supra, 68 Cal.2d at p. 387.) “The larger the local population,
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
the more likely it is that preconceptions about the case have not
become imbedded in the public consciousness.” (People v. Balderas
(1985) 41 Cal.3d 144, 178 (Balderas).) However, even “a large city
may . . . also become so hostile to a defendant as to make a fair trial
unlikely.” (Maine, at p. 387, fn. 13.) “In any event, population size
alone is not determinative.” (Fain v. Superior Court (1970) 2 Cal.3d
46, 52, fn. 1.)
At the time of defendant’s initial motion for change of venue, the
population of Sonoma County was 421,500 and ranked 16th of
California’s 58 counties in population size. In Coleman, decided seven
years before defendant’s trial commenced, we concluded that Sonoma
County’s size did not weigh in favor of a venue change. (Coleman,
supra, 48 Cal.3d at p. 134 [Sonoma County, population approximately
300,000 in 1980].) “Though not one of the state’s major population
centers,” we noted, “the county is substantially larger than most of the
counties from which this court has ordered venue changes.” (Ibid.)
Indeed, we have upheld the denial of motions for change of venue in
similar or smaller counties. (See, e.g., People v. Vieira (2005)
35 Cal.4th 264, 280–283 [Stanislaus County, population
approximately 370,000]; People v. Weaver (2001) 26 Cal.4th 876, 905
[Kern County, population approximately 450,000]; Balderas, supra,
41 Cal.3d at pp. 178–179 [“Cases in which venue changes were
granted or ordered on review have usually involved counties with
much smaller populations” than approximately 400,000].) In finding
that the size and nature of Sonoma County did not support of venue
in this case, the trial court also determined that “this County cannot
be categorized as rural. It has as many suburban areas as rural
communities.” Accordingly, this factor does not weigh in favor of a
venue change.
28
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
iv. Defendant’s status in the community
In evaluating defendant’s status within the community, courts
consider “whether [he or she] was viewed by the press as an outsider,
unknown in the community or associated with a group to which the
community is likely to be hostile.” (Odle, supra, 32 Cal.3d at p. 940.)
Based on our review of the articles attached to defendant’s first
change of venue motion, defendant’s claim that the press treated him
as an “outsider” is unsupported. Moreover, although defendant was
not from Sonoma County, as a white male he was not an outsider “in
any ethnic, racial, or gender sense.” (Rountree, supra, 56 Cal.4th at
p. 839; see Leonard, supra, 40 Cal.4th at p. 1397; McCurdy, supra,
59 Cal.4th at p. 1079.) And, given Sonoma County’s substantial
population, the fact that defendant was not from that county is of less
significance. In Coleman, the defendant was black, an ex-convict who
had just been released from prison, and not from Sonoma County,
where the case was tried. (Coleman, supra, 48 Cal.3d at p. 134.) We
held that “[t]he lack of county residents personally acquainted with
defendant, however, seems of little weight since the county is of such
size that most of its inhabitants would probably not expect to be
acquainted with more than a small proportion of their fellow citizens.”
(Ibid.)
Additionally, any disdain for defendant as a “career criminal,”
“recent parolee,” or alleged member of the Aryan Brotherhood was not
specific to Sonoma County. Here, “ ‘there was no evidence of unusual
local hostility to such persons, such that a change of venue would
likely produce a less biased panel.’ ” (Panah, supra, 35 Cal.4th at
p. 449, italics added; see Balderas, supra, 41 Cal.3d at p. 179 [no
evidence of “unusual local hostility” to Mexican-Americans or chronic
drug abusers, or any other associations that might arouse hostility
specific to local community]; see also Corona v. Superior Court (1972)
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
24 Cal.App.3d 872, 877.) We conclude that defendant’s status in the
community does not weigh in favor of a change of venue.
v. The victim’s status in the community
The community status of the victim generally focuses on
“whether the victim had any prominence in the community before the
crimes.” (McCurdy, supra, 59 Cal.4th at p. 1079, italics added; see
Harris, supra, 57 Cal.4th at p. 829 [prominence of the victim means
“whether the victim was known to the public before the crime”].)
Neither Deputy Trejo nor the Cooper/King family were known to the
public before the offenses occurred. We have, however, considered the
posthumous status of a slain police officer when the events and media
coverage following the crimes made the officer a celebrity after he was
killed. (Odle, supra, 32 Cal.3d at p. 942.) Numerous articles
portrayed Deputy Trejo as a dedicated public servant and “fallen
hero,” and his memorial service was well attended and televised.
Nevertheless, as we have already concluded, the media coverage
tapered off several weeks after the deputy’s killing and substantially
predated defendant’s trial. Thus, Deputy Trejo’s posthumous
prominence in the community may weigh somewhat in favor of a
venue change, but it does not compel a venue change.
vi. Presence of political overtones
As an additional factor to consider, defendant asserts that there
were “political ramifications” stemming from his case that weighed in
favor of a venue change. Defendant points to proposed legislation that
would have required the Department of Corrections to physically
transport persons released from PBSP to their parole destination,
which was reintroduced after defendant’s arrest. Following Deputy
Trejo’s death, legislators supporting this bill implied that the
Governor’s prior veto of their prison transport legislation resulted in
the deputy’s death. There is no evidence, however, to suggest that the
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
proposed legislation might have affected the proceedings. (See, e.g.,
Maine, supra, 68 Cal.2d at p. 387 [political overtone factor was
present when we “harbor[ed] a gnawing fear” that the judgeship
campaign competition between the district attorney and defense
counsel “might inadvertently intrude during the course of a
proceeding in which they are also trial adversaries”].) We agree with
the trial court that there were no political overtones present in this
case to warrant a change of venue.
vii. Summary
Even assuming the nature and gravity of the offense and the
status of the victim somewhat favored a change of venue, the totality
of the factors did not. Reviewing the legal question de novo based on
the factors above, we conclude defendant has not shown a reasonable
likelihood that a fair trial could not be had in Sonoma County at the
time of his venue change motions. (See, e.g., People v. Duong (2020)
10 Cal.5th 36, 50 [affirming denial of change of venue when only the
nature and gravity of the offense weighed in favor of a venue change];
McCurdy, supra, 59 Cal.4th at p. 1079 [“[A]lthough some of the factors
may have favored a changed venue, the totality of circumstances did
not require one”].)
2. Excusal of prospective juror based on death penalty
views
Defendant claims the trial court committed reversible error
when it granted the prosecution’s challenge for cause of Prospective
Juror No. 3727 based on her views on the death penalty. We conclude
the record fairly supports the excusal and uphold the trial court’s
ruling.
a. Background
Prospective Juror No. 3727 provided conflicting answers in her
questionnaire and during voir dire concerning whether she would be
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
able to consider the death penalty as punishment. In her jury
questionnaire, she described her view on the death penalty as
“moderately against” and expressed the view that “the death penalty
does nothing to deter murder, and may be more expensive to the
community in the long run, due to appeals and court costs.” She
indicated that there were crimes in which her “knee-jerk reaction is
to give the death penalty,” but believed it “should be used sparingly in
the most heinous cases, considering the remorse of the criminal and
considering his/her background.” She described her philosophical
view as “[m]oderately against” the death penalty. She stated that she
did not know if she would be able to set aside her personal beliefs
about the death penalty and apply the law, rules, and instructions as
given to her by the court. She elaborated: “I would certainly try —
but I am subject to emotions like anyone else, and I do rely on intuition
to guide me through much of life. When looking around this room I’m
thinking, do we really have the right to decide another person’s fate?”
She also explained that she opposed the death penalty because of its
high cost, the possibility that the jury might be wrong, and the fact
that people of color are disproportionally sentenced to death.
During sequestered Hovey voir dire (Hovey v. Superior Court
(1980) 28 Cal.3d 1, 80–81), the trial court explained to Prospective
Juror No. 3727 that she would have to weigh the factors that
supported death against those that supported a life sentence, and
asked whether she could vote for death if she was convinced that the
factors in favor of death substantially outweighed the factors in favor
of life without the possibility of parole. Prospective Juror No. 3727
answered that it would depend on the factors she had to consider and
whether she agreed with all the factors, but ultimately responded that
she could decide the case in accordance with the court’s instructions.
Yet when the court asked Prospective Juror No. 3727 whether she
could impose the death penalty if warranted after hearing all the
32
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
evidence, instructions, arguments by the attorneys and hearing the
view of the other jurors, she replied, “I would have a hard time doing
that.” She reiterated that her “knee-jerk reaction is to say, no, it
would be very hard to vote for the death penalty.” When the court
reminded her that in order to vote for death she would have to be
convinced that the factors in favor of death substantially outweighed
those in favor of life without the possibility of parole, and inquired
again whether she could vote to impose the death penalty under those
circumstances, Prospective No. Juror 3727 responded, “No, I don’t
think so.” She stated that her belief against the death penalty
stemmed from her basic philosophy of life she held for the past
10 years, and explained that the crime would have to be extremely
severe for her to vote for death, providing the example of somebody
who had “repeatedly committed crimes . . . repeatedly murdered
people or a rapist who was a repeated rapist, or something like that.”
She stated that she was “85 or 90 percent” unable to sentence anyone
to death and “would always consider life without parole as better, a
better option.” She expressed that she did not want to be responsible
for deciding death, because doing so would not be good for her mental
health. She repeated that it would be very difficult for her to impose
the death penalty, and drew a distinction between being personally
involved in the decision making, on the one hand, and others who
might make the sentencing decision. At the close of Prospective Juror
No. 3727’s voir dire, when asked by the court a third time if she could
vote in favor of death, she replied, “It would be a possibility. So I guess
that says yes. I mean, it would be a consideration. It would be a
possibility.”
The prosecution challenged Prospective Juror No. 3727 for cause
based on her asserted inability to properly consider and weigh
whether to impose the death penalty. The court ultimately concluded
that Prospective Juror No. 3727 was substantially impaired in this
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
respect, and dismissed her. After reviewing again all of her answers,
the court stated it did not believe Prospective Juror No. 3727 was
capable of fulfilling her duties as a juror. The court emphasized that
the juror never “unequivocally stated that she could consider the
death penalty as a reasonable possibility.”
b. Discussion
“Under state and federal constitutional principles, a criminal
defendant has the right to be tried by an impartial jury. (Cal. Const.,
art. I, § 16; U.S. Const., 6th & 14th Amends.) With regard to jury
selection in a capital case, decisions by this court and the United
States Supreme Court have made clear that prospective jurors’
personal opposition to the death penalty is not a sufficient basis on
which to remove them from jury service in a capital case, ‘ “so long as
they clearly state that they are willing to temporarily set aside their
own beliefs in deference to the rule of law.” ’ ” (People v. Schultz (2020)
10 Cal.5th 623, 646 (Schultz).)
Still, excusal for cause is permissible when the prospective
juror’s beliefs regarding the death penalty “would ‘prevent or
substantially impair the performance of his [or her] duties as a juror
in accordance with [the court’s] instructions and [the juror’s] oath.’ ”
(Wainwright v. Witt (1985) 469 U.S. 412, 424, quoting Adams v. Texas
(1980) 448 U.S. 38, 45 (Adams).) “While a prospective juror may not
be excused for cause based on ‘general objections’ or ‘conscientious or
religious scruples’ against the death penalty (Witherspoon[ v. Illinois
(1968)] 391 U.S. [510,] 522), excusal is proper when a prospective juror
cannot ‘consider and decide the facts impartially and conscientiously
apply the law as charged by the court’ (Adams, supra, 448 U.S. at
p. 45).” (Schultz, supra, 10 Cal.5th at p. 649.)
On review, we consider whether the record “fairly supports” the
trial court’s determination that a prospective juror’s views on the
34
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
death penalty would have prevented or substantially impaired her
performance as a juror. (People v. Thomas (2011) 52 Cal.4th 336, 357.)
“ ‘ “Generally, a trial court’s rulings on motions to exclude for cause
are afforded deference on appeal, for ‘appellate courts recognize that
a trial judge who observes and speaks with a prospective juror and
hears that person’s responses (noting, among other things, the
person’s tone of voice, apparent level of confidence, and demeanor),
gleans valuable information that simply does not appear on the
record.’ ” ’ ” (Id. at p. 358.) “ ‘When the prospective juror’s answers on
voir dire are conflicting or equivocal, the trial court’s findings as to the
prospective juror’s state of mind are binding on appellate courts if
supported by substantial evidence.’ ” (People v. Wall (2017) 3 Cal.5th
1048, 1062 (Wall); see also People v. Wilson (2008) 44 Cal.4th 758,
779.)
Prospective Juror No. 3727’s responses regarding her ability to
vote for death indicated that she was not capable of fulfilling her
duties as a juror. Although she described a death vote as a
“possibility” following clarification from the court about her discretion,
she never stated that she could actually impose the death penalty
when warranted, instead reiterating that it would be very difficult for
her to do so. In her questionnaire responses and during Hovey
questioning, she stated that she did not know if she would be able to
set aside her personal beliefs about the death penalty and apply the
law, rules, and instructions as given to her by the court, and later
conveyed that she did not think she could do so. Given Prospective
Juror No. 3727’s repeated equivocation regarding her ability to
“conscientiously apply the law as charged by the court” (Adams,
supra, 448 U.S. at p. 45), we conclude that the record fairly supports
the trial court’s excusal of the juror for cause. (See Wall, supra,
3 Cal.5th at p. 1063 [upholding excusal of a prospective juror who
repeatedly expressed uncertainty regarding her ability to impose a
35
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
death sentence]; People v. Duenas (2012) 55 Cal.4th 1, 12 (Duenas)
[“Comments that a prospective juror would have a ‘hard time’ or find
it ‘very difficult’ to vote for death reflect ‘a degree of equivocation’ that,
considered ‘with the juror’s . . . demeanor, can justify a trial court’s
conclusion . . . that the juror’s views would “ ‘prevent or substantially
impair the performance of his duties as a juror . . . .’ ” ’ ”]; People v.
Martinez (2009) 47 Cal.4th 399, 431–432 [upholding dismissal of juror
even though some of her responses reflected a willingness to follow the
law and the court’s instructions]; People v. Barnett (1998) 17 Cal.4th
1044, 1114–1115 [same].)
3. Denial of defendant’s motion to dismiss two counts
Defendant contends the trial court erred when it denied his
section 995 motion to dismiss the counts of conspiracy to commit
robbery and attempted robbery of Marian Wilson on the ground that
there was insufficient evidence to support those counts. He maintains
that, as a consequence, the prosecutor was allowed to introduce
prejudicial evidence of defendant’s prior armed robberies, which
portrayed him as a person of bad character. And, he asserts, this
predisposed the jury to reject his testimony that he accidentally shot
Deputy Trejo. We conclude the trial court properly denied the motion.
a. Background
As pertinent here, the complaint charged defendant and Moore
with conspiracy to commit robbery of Wilson, attempted robbery of
Wilson, and attempted robbery of patrons and employees of the R&S
Bar. It also alleged in the fourth special circumstance that the murder
of Deputy Trejo took place during an attempted robbery of the R&S
Bar. In connection with the attempted robbery counts, the
prosecution sought to admit evidence of defendant’s prior armed
robberies under Evidence Code section 1101, subdivision (b) as
evidence of intent and common plan or scheme.
36
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
At the preliminary hearing, the prosecution presented the
following evidence in support of the conspiracy to commit robbery and
attempted robbery of Wilson: Wilson and Sung Won Kim owned Sushi
Hana, a restaurant located in Sebastopol. On March 29, 1995, at
approximately 9:00 p.m., Wilson and Kim closed Sushi Hana to
customers but remained inside to clean and shut the restaurant.
Wilson went grocery shopping about an hour later. As she was
returning to Sushi Hana, Wilson observed a green pickup truck
parked around the corner from the restaurant with two people sitting
inside. Wilson noticed the unusual rack on the back of the truck. She
parked her vehicle across the street from Sushi Hana and went inside
to retrieve the mail and day’s receipts. When Wilson left the
restaurant and began to cross the street, she noticed that the same
green pickup truck was now parked in front of her vehicle with the
passenger door open. As Wilson got into her vehicle, she saw both
individuals exit the pickup truck and walk toward her. Wilson quickly
drove away, circled the block, and saw the pickup truck leaving.
Wilson deposited the mail and returned to Sushi Hana. Although
Wilson did not see either individual holding a weapon, the prosecution
presented evidence that defendant was in possession of a sawed-off
shotgun that evening. Wilson identified Moore as the woman in the
pickup truck.
Following the preliminary hearing, the magistrate judge found
there was insufficient evidence to hold defendant and Moore on the
charges of conspiracy to commit robbery of Wilson, the attempted
robberies of Wilson and the R&S Bar patrons, and the attempted-
robbery-murder special circumstance. The magistrate judge also
denied the prosecution’s motion to admit evidence of defendant’s prior
armed robberies, finding the prior crimes and charged offenses were
not sufficiently similar.
37
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
Subsequently, the prosecution filed an information recharging
defendant with, among other offenses, the same counts that the
magistrate judge had dismissed based on insufficient evidence.
(§ 739.) The trial court granted defendant’s motion to dismiss the
attempted robbery of R&S Bar patrons and attempted-robbery-
murder special-circumstance allegation, but denied the motion as to
conspiracy to commit robbery and attempted robbery of Wilson. It
found that the prosecution had presented sufficient evidence at the
preliminary hearing to charge defendant with conspiracy and
attempted robbery of Wilson. The court also admitted evidence
establishing four of the prior robberies under Evidence Code section
1101, subdivision (b), finding they bore sufficient similarities to the
charged offenses of conspiracy to commit robbery and attempted
robbery of Wilson.
After the close of the prosecution’s case, the trial court granted
the defense’s motion for judgment of acquittal on the attempted
robbery charge based on insufficient evidence. The jury hung on the
conspiracy charge and the court declared a mistrial on that count.
b. Discussion
“When the defendant challenges the district attorney’s election
to include charges for which defendant was not held to answer at the
preliminary hearing, ‘[t]he character of judicial review under section
739 depends on whether the magistrate has exercised his power to
render findings of fact. If he has made findings, those findings are
conclusive if supported by substantial evidence. [Citations.] If he has
not rendered findings, however, the reviewing court cannot assume
that he has resolved factual disputes or passed upon the credibility of
witnesses. A dismissal unsupported by findings therefore receives the
independent scrutiny appropriate for review of questions of law. The
cases arising under section 739 explain this distinction.’ ” (People v.
Bautista (2014) 223 Cal.App.4th 1096, 1101 (Bautista), quoting People
38
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
v. Slaughter (1984) 35 Cal.3d 629, 638; see also Pizano v. Superior
Court of Tulare County (1978) 21 Cal.3d 128, 133 (Pizano) [“[A]n
offense not named in the commitment order may not be added to the
information if the magistrate made factual findings which are fatal to
the asserted conclusion that the offense was committed. . . . When,
however, the magistrate either expressly or impliedly accepts the
evidence and simply reaches the ultimate legal conclusion that it does
not provide probable cause to believe the offense was committed, such
conclusion is open to challenge by adding the offense to the
information.”].)
Here, the preliminary hearing transcript reflects that the
magistrate judge did not make factual findings or credibility
determinations, but simply concluded that the People did not put forth
sufficient evidence to support the charges. Accordingly, we
independently determine the sufficiency of the record at the
preliminary hearing to support the charges related to Wilson.
(Pizano, supra, 21 Cal.3d at pp. 133–134; Bautista, supra,
223 Cal.App.4th at p. 1103.)
To establish probable cause sufficient to overcome a section 995
motion, “the People must make some showing as to the existence of
each element of the charged offense.” (Thompson v. Superior Court
(2001) 91 Cal.App.4th 144, 148 (Thompson).) “Evidence that will
justify a prosecution need not be sufficient to support a conviction.”
(Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 (Rideout)); People
v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226 (Jurado)
[“[A]n indictment or information should be set aside only when there
is a total absence of evidence to support a necessary element of the
offense charged”].) “We will not set aside an information ‘if there is
some rational ground for assuming the possibility that an offense has
been committed and the accused is guilty of it.’ ” (People v. San
Nicolas (2004) 34 Cal.4th 614, 654, quoting People v. Hall (1971)
39
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
3 Cal.3d 992, 996.) With this low evidentiary bar in mind, we conclude
the evidence presented to the magistrate provided probable cause to
believe the offenses against Wilson were committed.
i. Evidence of conspiracy to commit robbery of
Wilson
“Pursuant to section 182, subdivision (a)(1), a conspiracy
consists of two or more persons conspiring to commit any crime.
A conviction of conspiracy requires proof that the defendant and
another person had the specific intent to agree or conspire to commit
an offense, as well as the specific intent to commit the elements of that
offense, together with proof of the commission of an overt act ‘by one
or more of the parties to such agreement’ in furtherance of the
conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416,
fn. omitted, quoting § 184.)
“Conspiracy is an inchoate crime. [Citation.] It does not require
the commission of the substantive offense that is the subject of the
conspiracy. [Citation.] ‘As an inchoate crime, conspiracy fixes the
point of legal intervention at [the time of] the agreement to commit a
crime,’ and ‘thus reaches further back into preparatory conduct than
attempt . . . .’ ” (People v. Swain (1996) 12 Cal.4th 593, 599–600.) The
agreement to commit a crime plus the commission of an overt act —
“ ‘ “[a]n outward act done in pursuance of the crime and in
manifestation of an intent or design, looking toward the
accomplishment of the crime” ’ ” — completes the crime of conspiracy.
(People v. Johnson (2013) 57 Cal.4th 250, 259.)
The information charged defendant with conspiracy to commit
robbery, defined as “the felonious taking of personal property in the
possession of another, from his person or immediate presence, and
against his will, accomplished by means of force or fear.” (§ 211.)
40
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
Under the standard of review, we conclude the prosecution made
a sufficient showing to try defendant for conspiracy to commit robbery.
The existence of defendant and Moore’s specific intent to agree or
conspire to commit robbery and to commit robbery was adequately
established by the following evidence (and from the reasonable
inferences that could be drawn from it): (1) on March 29, 1995,
defendant and Moore continued driving around the Santa
Rosa/Sebastopol area, despite defendant’s imminent parole reporting
date in San Diego; (2) defendant and Moore parked down the street
from Sushi Hana after it had closed and, a few minutes later,
positioned themselves directly across the street from the restaurant
and in front of Wilson’s truck; (3) as Wilson walked out of Sushi Hana
and approached her vehicle, Moore and defendant exited Moore’s
truck at the same time and walked toward Wilson; (4) when Wilson
drove away, both defendant and Moore returned to the truck and
drove off; (5) a watch cap, binoculars, and several latex gloves were
found in Moore’s truck; and (6) police located additional latex gloves
and a watch cap with the top cut open in a field near the Cooper/King
residence. Similarly, the existence of overt acts committed in
furtherance of the conspiracy to commit robbery was established by
the following evidence: (1) defendant and Moore were armed with a
loaded short-barreled shotgun; (2) the pair obtained a street map of
Santa Rosa, marking several locations, which they may have intended
to rob; (3) they possessed watch caps and latex gloves, apparently to
avoid identification; and (4) they surveilled the area of the Sushi Hana
restaurant. Drawing every legitimate inference from the evidence in
favor of the information, as we must, we conclude that the prosecution
presented some evidence to support the count of conspiracy and
therefore reinstatement of this charge was proper. (See Rideout,
supra, 67 Cal.2d at p. 474 [“[I]f there is some evidence to support the
information, the [reviewing] court will not inquire into its sufficiency.
41
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
[Citations.] Every legitimate inference that may be drawn from the
evidence must be drawn in favor of the information.”].)
ii. Evidence of attempted robbery of Wilson
“Attempted robbery requires the ‘specific intent to commit
robbery and . . . a direct but ineffectual act toward the commission of
the crime.’ ” (People v. Sánchez (2016) 63 Cal.4th 411, 470.) The act
requires more than mere preparation, but it need not be the last step
toward commission of the crime. (Ibid.) In Sánchez, we held that
evidence showing five armed men arriving at a coffee shop, positioning
a car to make a quick getaway, and actually entering the coffee shop
was enough for a jury to find the necessary act beyond mere
preparation. (Ibid.) We also cited with approval People v. Dillon
(1983) 34 Cal.3d 441 and People v. Bonner (2000) 80 Cal.App.4th 759.
(Sánchez, at p. 470.) In Dillon, this court found sufficient evidence of
attempted robbery when the would-be robbers armed and disguised
themselves, approached but did not enter the targeted marijuana
field, passing “no trespassing” signs on the way, and then watched for
their opportunity. (Dillon, at p. 456.) Likewise, in Bonner, the Court
of Appeal concluded there was sufficient evidence to convict the
defendant of attempted robbery when the defendant made detailed
preparations for the robbery, went armed to the scene, placed a mask
over his face, and waited in hiding moments before the victim’s
approach, even though he was never in close proximity to the victim
and made no demand for money. (Bonner, at pp. 763, 764, fn. 3.)
Given that the evidence presented in Sánchez, Dillon, and
Bonner was held to be sufficient to support a conviction of armed
robbery, which requires the prosecution prove each element beyond a
reasonable doubt, we conclude that the evidence presented in this case
was sufficient to support a prosecution of the attempted robbery count,
which merely requires “some showing as to the existence of each
element of the charged offense.” (Thompson, supra, 91 Cal.App.4th at
42
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
p. 148; see also Rideout, supra, 67 Cal.2d at p. 474.) Defendant and
Moore armed themselves with a loaded short-barreled shotgun,
obtained a street map of Santa Rosa and apparently marked potential
locations of robbery victims on the map, and obtained watch caps and
gloves, again apparently to avoid identification. They next surveilled
Sushi Hana after closing hours, first parking down the street from the
restaurant and then moving to a location directly across the street
where they could see inside of the restaurant through its large front
window. They waited for Wilson to leave the restaurant with her
briefcase in hand before exiting Moore’s truck and walking toward
Wilson. Taken together, and drawing all legitimate inferences in
favor of the information (Rideout, at p. 474), we conclude the
prosecution established probable cause sufficient to overcome
defendant’s section 995 motion on this count. Because the attempted
robbery allegation should have been set aside only if there was “a total
absence of evidence” to support a necessary element of that offense
(Jurado, supra, 4 Cal.App.4th at p. 1226), and the prosecution here
presented at least some evidence to support each element, the trial
court properly reinstated the attempted robbery allegation.
4. Admission of evidence of other crimes
Defendant claims the trial court prejudicially erred in allowing
the introduction of his past armed robberies. He contends the
previous incidents were not sufficiently similar to the charged offenses
to prove intent or a common scheme and were used for the
impermissible purpose of showing his propensity to commit the
charged crimes and portraying him as a person of bad character.
We conclude this claim lacks merit.
a. Background
As discussed in part II.A.3., ante, based on the evidence
presented at the preliminary hearing, the magistrate judge denied the
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PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
prosecution’s motion to admit defendant’s prior crime evidence on the
grounds that the prior robberies were not sufficiently similar to the
charged attempted robbery. Yet after the prosecution recharged
defendant in the information and filed a motion to admit defendant’s
prior acts under Evidence Code section 1101, subdivision (b), the trial
court allowed the prosecution to introduce evidence of four armed
robberies of bars and restaurants committed by defendant and an
accomplice in December 1981 in San Diego County.
The evidence introduced at trial concerning defendant’s prior
crimes can be summarized as follows: On December 10, 1981,
defendant and an accomplice entered the Bull Pen Bar shortly after
the bar closed. Defendant confronted the bartender and another
individual with a sawed-off shotgun, ordered the bartender to give
him money from the register, and commanded them to lie on the floor
until the pair left. On December 16, 1981, defendant and an
accomplice robbed the Bollweevil Restaurant shortly after closing.
Defendant approached the night supervisor, pointed a gun at her
head, and ordered her to retrieve cash from the office cash box and
register. On December 23, 1981, defendant and an accomplice robbed
a Pizza Hut soon after the restaurant had closed for the evening.
Defendant, armed with a shotgun, confronted the assistant manager,
and ordered her to give him money from the safe and cash register.
The accomplice pointed a handgun at another employee. On
December 29, 1981, defendant and an accomplice robbed a different
Pizza Hut just after the restaurant closed. Defendant approached the
assistant manager and displayed a sawed-off shotgun. He ordered her
to open the safe and proceeded to take money from it. The accomplice
then ordered the assistant manager to open the cash register and give
him money from it.
Stephen Jarrett testified that he committed the string of
robberies with defendant. According to Jarrett, the duo targeted
44
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
restaurants and bars they were familiar with and knew had late
business hours and accessible cash. Jarrett attested that they looked
for businesses that were isolated and had easy access to roads. The
pair would wait for the business to close before robbing it so there
would be no customers inside and less interference.
b. Discussion
“The rules governing the admissibility of evidence under
Evidence Code section 1101[, subdivision ](b) are well settled.” (People
v. Cage (2015) 62 Cal.4th 256, 273.) “ ‘ “[O]ther crimes” evidence is
admissible under Evidence Code section 1101, subdivision (b) “when
offered as evidence of a defendant’s motive, common scheme or plan,
preparation, intent, knowledge, identity, or absence of mistake or
accident in the charged crimes.” ’ [Citation.] ‘In this inquiry, the
degree of similarity of criminal acts is often a key factor, and “there
exists a continuum concerning the degree of similarity required for
cross-admissibility, depending upon the purpose for which
introduction of the evidence is sought: ‘The least degree of
similarity . . . is required in order to prove intent . . . .’ . . . By
contrast, a higher degree of similarity is required to prove common
design or plan, and the highest degree of similarity is required to
prove identity.” ’ ” (People v. Erskine (2019) 7 Cal.5th 279, 295
(Erskine).)
Evidence is admissible to prove intent if there is “ ‘sufficient
evidence for the jury to find defendant committed both sets of acts,
and sufficient similarities to demonstrate that in each instance the
perpetrator acted with the same intent or motive.’ ” (People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 827 (Daveggio and
Michaud).) In order to establish the existence of a common design or
plan, “ ‘the common features must indicate the existence of a plan
rather than a series of similar spontaneous acts, but the plan thus
revealed need not be distinctive or unusual.’ ” (Id. at p. 828.)
45
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
We review the trial court’s ruling on the admissibility of other
crimes evidence for abuse of discretion. (People v. Cole (2004)
33 Cal.4th 1158, 1195.) We will not disturb its ruling on appeal absent
a showing that it exercised its discretion in an arbitrary manner
resulting in a manifest miscarriage of justice. (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1124–1125.)
We conclude that the four prior robberies were, at a minimum,
admissible under Evidence Code section 1101, subdivision (b) as
evidence of defendant’s intent regarding attempted robbery. The prior
robberies shared several similarities with the instant offense,
including defendant and an accomplice surveilling a restaurant or bar
located in an isolated area with easy road access, targeting
restaurants or bars late at night after they were closed to customers
but still had employees inside, brandishing or possessing a firearm,
and using a vehicle in facilitating the robberies. Although there were
some differences between the San Diego robberies and the events
outside of Sushi Hana, such as defendant and Moore approaching
Wilson outside of the restaurant and without displaying weapons, the
similarities between the prior and charged offenses “provided a
sufficient basis for the jury to conclude that defendant[] acted with the
same criminal intent or motive, rather than by ‘ “accident or
inadvertence or self-defense or good faith or other innocent mental
state.” ’ ” (Daveggio and Michaud, supra, 4 Cal.5th at p. 827.)
We also conclude that the trial court acted within its discretion
in finding the evidence more probative than prejudicial under
Evidence Code section 352. None of the prior crime evidence was
particularly inflammatory or likely to invoke an emotional bias
against defendant. (People v. Foster (2010) 50 Cal.4th 1301, 1331;
People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
46
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
5. Admission of defendant’s refusal to participate in lineup
Defendant contends the trial court erred in admitting evidence
that he refused to participate in a lineup. He asserts that any
probative value was outweighed by its prejudicial effect, and the
evidence denied him due process and a fair trial. Defendant also
claims it is reasonably probable the verdict would have been more
favorable to him absent the alleged error. We conclude that the
evidence was properly admitted.
a. Background
On April 1, 1995, two days after defendant’s arrest, Sonoma
County Sheriff’s Department Correctional Officer Meredith Helton
approached defendant in his jail cell and read a prewritten statement
asking if he would participate in a live lineup. Initially, defendant
asked to speak with an attorney before answering the question. Later
that evening, after Officer Helton informed defendant that a
representative from the public defender’s office would be present and
willing to answer any questions, defendant stated that he did not wish
to participate in a lineup.
The following day, Santa Rosa Police Sergeant Thomas
Schwedhelm asked defendant if he would participate in the lineup
process. After defendant shook his head, Sergeant Schwedhelm
informed defendant that his failure to cooperate in the process would
indicate a consciousness of guilt on his part and could be admitted in
a court of law.
On April 11, 1995, Sergeant Schwedhelm again asked defendant
and his counsel if he would be willing to participate in a lineup, to
which counsel responded, “no.” Sergeant Schwedhelm then contacted
defendant and reminded him that his refusal to cooperate in a live
lineup could be used against him in court to show consciousness of
guilt. Defendant confirmed that he did not wish to participate.
47
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
b. Analysis
As the officer advised, evidence of a defendant’s refusal to
participate in a lineup may be used against him or her at trial. (People
v. Johnson (1992) 3 Cal.4th 1183, 1222.) “A defendant’s refusal to
participate in a lineup is admissible evidence supporting an inference
of consciousness of guilt.” (People v. Watkins (2012) 55 Cal.4th 999,
1027.)
Defendant argues that because his identity was not an issue at
trial, evidence of his refusal to participate in a lineup was irrelevant
and unduly prejudicial. He is incorrect. At the time he was asked to
participate in a lineup, identity was an issue, as were all elements of
the crimes, and the prosecutor was required to prepare to prove them
beyond a reasonable doubt. The prosecutor could not and should not
rely solely on defendant’s statements being admitted into evidence.
The defense could have sought to exclude the statements and
prevailed, or the statements could be undermined. Given that there
were multiple witnesses to the shooting, and notwithstanding what
the ongoing investigation revealed at that time, the prosecutor was
entitled to develop the case.
Furthermore, “[i]nstructions on consciousness of guilt are
proper not only when identity is an issue, but also when ‘the accused
admits some or all of the charged conduct, merely disputing its
criminal implications.’ ” (People v. Thornton (2007) 41 Cal.4th 391,
438, quoting People v. Turner (1990) 50 Cal.3d 668, 694, fn. 10.) At
trial, defendant admitted shooting Deputy Trejo but maintained that
it was an accident and pleaded not guilty to all charges. Several
witnesses testified that the shooting was intentional, contradicting
the defense version that it was an accident. These witnesses’
identification of defendant was a critical part of the prosecution’s case.
Thus, “the jury had before it the issue of guilt on all charges.” (People
v. Breaux (1991) 1 Cal.4th 281, 304.) Further, under the
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circumstances, the evidence was more probative than prejudicial
under Evidence Code section 352.
6. Admission of photographs
Defendant contends the trial court abused its discretion by
permitting the introduction of 18 photographs of Deputy Trejo’s body
taken at the scene of his death and during the autopsy. He claims the
photographs were more prejudicial than probative under Evidence
Code section 352, and their admission violated his state and federal
constitutional rights. We conclude there was no error.
The prosecution initially sought to introduce 25 photographs of
Deputy Trejo’s body at the crime scene and during autopsy.
Defendant moved in limine to exclude the photos, arguing that they
were irrelevant and inflammatory. After reviewing the evidence, the
trial court admitted 18 photographs, excluding the rest as overly
gruesome or cumulative.
The photographs fell into three categories, depicting: the
deputy’s body facedown at the crime scene; the deputy’s body after he
was turned on his back at the crime scene; and images from the
autopsy. The court admitted 10 photographs of Deputy Trejo’s body
facedown at the crime scene based on the prosecution’s argument that
they were needed to show the deputy’s position in the R&S Bar
parking lot, the position of his hands relative to his body, and the
placement of blood, tissue fragments, and debris on his body. It
excluded three crime scene photographs as cumulative and overly
gruesome. The court admitted three photographs of the deputy’s body
at the crime scene after he was turned on his back as relevant to
Dr. Jindrich’s testimony about blood and brain matter on Deputy
Trejo, but asked the prosecution to crop two of the photographs to
lessen their gruesomeness. It admitted five photographs of Deputy
Trejo’s autopsy, which depicted closeup images of the deputy’s facial
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wounds, as relevant to Dr. Jindrich’s testimony regarding the position
of Deputy Trejo’s body in relation to the shot fired and the extent of
the injury as well as criminologist Waller’s testimony regarding the
distance from which Deputy Trejo was shot, but requested that one of
the photographs be cropped to lessen its gruesome effect. The court
excluded four of the autopsy photographs as overly gruesome.
“This court is often asked to rule on the propriety of the
admission of allegedly gruesome photographs. [Citations.] At base,
the applicable rule is simply one of relevance, and the trial court has
broad discretion in determining such relevance. [Citation.]
‘ “[M]urder is seldom pretty, and pictures, testimony and physical
evidence in such a case are always unpleasant” ’ [citation], and we rely
on our trial courts to ensure that relevant, otherwise admissible
evidence is not more prejudicial than probative [citation]. A trial
court’s decision to admit photographs under Evidence Code section
352 will be upheld on appeal unless the prejudicial effect of such
photographs clearly outweighs their probative value.” (People v.
Gurule (2002) 28 Cal.4th 557, 624.) “In a prosecution for murder,
photographs of the murder victim and the crime scene are always
relevant to prove how the charged crime occurred . . . .” People v.
Pollock (2004) 32 Cal.4th 1153, 1170 (Pollock).) The prosecution is not
obliged to prove its case solely from the testimony of live witnesses;
“the jury is entitled to see details of the victims’ bodies to determine if
the evidence supports the prosecution’s theory of the case.” (Gurule,
at p. 624.)
“ ‘To determine whether there was an abuse of discretion, we
address two factors: (1) whether the photographs were relevant, and
(2) whether the trial court abused its discretion in finding that the
probative value of each photograph outweighed its prejudicial effect.’ ”
(People v. Lewis (2009) 46 Cal.4th 1255, 1282.) Having examined all
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of the photographs, we find that the trial court did not abuse its
discretion.
The photographs of Deputy Trejo’s facial wounds, his body
position, the position of his hands relative to his body, and the position
of blood and brain matter supported the prosecution’s theory that
defendant intentionally shot the deputy when he was on his knees,
and were inconsistent with defendant’s claim that the shooting was
accidental and that Deputy Trejo was prone on the ground when the
gun discharged. They were relevant to corroborate and illustrate the
testimony of several witnesses who saw the crime occur, the testimony
of the investigating officers about the condition in which they found
the crime scene, and the testimony of the forensic pathologist about
the position of the deputy’s body when he was killed. Thus, each of
these photographs was probative as to significant issues.
Moreover, even though some of the photographs were gruesome,
none was unduly so. Photographs of victims in murder cases are
always disturbing. (People v. Gonzales (2012) 54 Cal.4th 1234, 1272.)
“ ‘The photographs at issue here are gruesome because the charged
offenses were gruesome, but they did no more than accurately portray
the shocking nature of the crimes.’ ” (Ibid.) Moreover, “[a]utopsy
photographs are routinely admitted to establish the nature and
placement of the victim’s wounds and to clarify the testimony of
prosecution witnesses regarding the crime scene and the autopsy,
even if other evidence may serve the same purposes.” (People v.
Howard (2010) 51 Cal.4th 15, 33.) Additionally, given the witnesses’
detailed description of the circumstances of the crime scene and the
deputy’s condition, the photographs corroborating such testimony are
not so gruesome or inflammatory as to have impermissibly swayed the
jury. (People v. Smithey (1999) 20 Cal.4th 936, 974.) Therefore, the
trial court did not abuse its discretion in admitting the photographs
in question.
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7. Claims of instructional error
a. Requested accident instruction relating to
premeditated murder
Defendant requested a pinpoint instruction on his accident
defense as it applied to the prosecution’s theory of premeditated
murder. CALJIC No. 4.45, the standard instruction concerning
accident, provides that the defense applies when “circumstances . . .
show neither criminal intent nor purpose, nor [criminal]
negligence . . . .” Defense counsel acknowledged that this standard
version of CALJIC No. 4.45 would be inappropriate in this case
because their theory was not that there was no criminal intent or
purpose, but rather that the accident negated premeditation and
deliberation for first degree murder. Counsel instead proposed a
modified version of CALJIC No. 4.45, which would have instructed the
jury as follows: “In considering the prosecution theory of first degree
premeditated murder, if there is a reasonable doubt of whether or not
the killing of Deputy Trejo was an accident, you must resolve the
doubt in favor of the defendant and bring in a verdict of no more than
second degree murder.”
The prosecution objected to the proposed modified instruction as
problematic because, it observed, defendant could still be found guilty
of first degree murder under the felony murder theory even if the jury
found the shooting was accidental. The prosecution maintained that
the proposed instruction failed to clarify that accident was not a
defense to felony murder — its alternate theory of first degree murder.
The prosecution argued that even though the proposed instruction
began with the limiting phrase regarding first degree murder, the jury
was nevertheless being instructed that it must return a verdict of no
more than second degree murder if it found the killing of Deputy Trejo
was an accident, an improper instruction in light of the alternative
felony murder theory.
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The trial court agreed that the proposed instruction would
potentially confuse the jury and was an incorrect statement of the law.
The court reasoned that if the jury adopted the felony murder theory,
then “it is not true that if there’s a reasonable doubt as to whether or
not the killing of Deputy Trejo was an accident, they must resolve the
doubt in his favor and bring in a verdict of no more than second degree
murder. That is a completely incorrect statement.” It offered defense
counsel the choice of either giving the standard CALJIC No. 4.45
instruction without modification or not giving any accident
instruction related to first degree murder. Defense counsel confirmed
that they did not want the standard instruction to be given because,
in their view, it did not apply to defendant’s case.
Pinpoint instructions “relate particular facts to a legal issue in
the case or ‘pinpoint’ the crux of a defendant’s case, such as mistaken
identification or alibi. [Citation.] They are required to be given upon
request when there is evidence supportive of the theory, but they are
not required to be given sua sponte.” (People v. Saille (1991) 54 Cal.3d
1103, 1119.) We are “mindful of the general rule that a trial court
may properly refuse an instruction offered by the defendant if it
incorrectly states the law, is argumentative, duplicative, or
potentially confusing [citation], or if it is not supported by substantial
evidence.” (People v. Moon (2005) 37 Cal.4th 1, 30 (Moon).) We review
de novo whether instructions correctly state the law. (People v.
Berryman (1993) 6 Cal.4th 1048, 1089, overruled on another ground
in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Defendant maintains the trial court erred in failing to instruct
the jury that accident should be considered a defense to premeditated
murder. But as the prosecution and trial court explained, accident is
not a defense to felony murder, and the proposed instruction risked
confusing the jury by not making this distinction clear. In that vein,
to the extent the proposed instruction purported to limit the jury to
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returning a verdict of no more than second degree murder if it found
the killing of Deputy Trejo was accidental, it also constituted an
incorrect statement of law and the trial court properly refused to give
it. (See Moon, supra, 37 Cal.4th at p. 31.)
Furthermore, the point of the requested instruction was readily
apparent to the jury from the remaining instructions. (See People v.
Bolden (2002) 29 Cal.4th 515, 558–559 (Bolden) [“An instruction that
does no more than affirm that the prosecution must prove a particular
element of a charged offense beyond a reasonable doubt merely
duplicates the standard instructions defining the charged offense and
explaining the prosecution’s burden to prove guilt beyond a
reasonable doubt. Accordingly, a trial court is required to give a
requested instruction relating to the reasonable doubt standard of
proof to a particular element of the crime charged only when the point
of the instruction would not be readily apparent to the jury from the
remaining instructions.”].) The trial court properly instructed the
jury on the dual theories of first degree murder, stating: “There are
two theories upon which a conviction of first degree murder can be
based. The first theory is the willful, premeditated, deliberate killing
of a human being with malice aforethought. The second theory is the
killing of that human being during the commission of a robbery. If
you find that the evidence proves either one or both of these theories
beyond a reasonable doubt, a verdict of guilty for first degree murder
is appropriate. [¶] It is not necessary for jurors to agree upon which
theory of first degree murder they based a guilty verdict.”
The court also defined the terms “willful, deliberate, and
premeditated,” making clear that an accidental killing would not
satisfy this theory of first degree murder. It further informed the jury
that an unintentional or accidental killing that occurs during the
commission of a robbery would satisfy the felony murder theory of first
degree murder if the perpetrator intended to commit the robbery. The
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court also informed the jury that if it was not satisfied beyond a
reasonable doubt that defendant was guilty of the crime of first degree
murder as charged in count one, it could convict him of any lesser
crime proved beyond a reasonable doubt. “Here, the jury received
accurate and complete instructions” concerning the specific intent
required for the premeditated first degree murder theory, and
“nothing in the particular circumstances of this case suggested a need
for additional clarification.” (Bolden, supra, 29 Cal.4th at p. 559.)
Accordingly, and because the proposed instruction was both
misleading and incorrect on the law, we conclude “[t]he trial court did
not error in refusing to give this requested pinpoint instruction.”
(Ibid.)
b. Requested accident instruction relating to robbery-
murder special circumstance
Defendant also requested a pinpoint instruction regarding
accident as a defense to the robbery-murder special circumstance. He
proposed adding language to the robbery-murder special-
circumstance instruction to make clear that the shooting of Deputy
Trejo must be committed “in order to advance an independent
felonious purpose,” that “[a]n act committed by accident is not
committed in order to advance an independent felonious purpose,” and
that if the jury “ha[s] a reasonable doubt whether the act resulting in
the victim’s death was committed by accident, [it] must give the
defendant the benefit of the doubt and find the special circumstance
untrue.” The trial court declined to give the pinpoint instruction,
finding that it constituted an inaccurate statement of the law.
The trial court gave CALJIC No. 8.81.17, the standard robbery-
murder special-circumstance instruction, which, as given, instructed
the jury as follows: “To find the special circumstance referred to in
these instructions as murder in the commission of robbery is true, it
must be proved (1) the murder was committed while the defendant
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was engaged in or was an accomplice in the commission of a robbery
of Frank Trejo, and (2) the murder was committed in order to carry
out or advance the commission of the crime of robbery of Frank Trejo
or to facilitate the escape therefrom or to avoid detection. In other
words, the special circumstance referred to in these instructions is not
established if the robbery was merely incidental to the commission of
the murder. However, the special circumstance referred to in these
instructions is still proven if the defendant had the separate specific
intent to commit the crime of robbery, even if he also had the specific
intent to kill. Concurrent intent to kill and to commit an independent
felony will support a felony murder special circumstance.”
Defendant maintains that a robbery-murder special
circumstance requires a finding that the killing was done to carry out
or advance a robbery, and if the jurors accepted defendant’s testimony
that the shooting was accidental, there was no logical basis to
conclude that the shooting was committed for any purpose at all. In
other words, defendant contends the robbery-murder special
circumstance does not apply to an accidental killing committed during
the perpetration of a robbery.
Even assuming the trial court should have given defendant’s
requested instruction, we conclude that any error was harmless under
the standard articulated in either Chapman v. California (1967)
386 U.S. 18, 36 (error is prejudicial unless it appears beyond a
reasonable doubt that the error did not contribute to the verdict) or
People v. Watson (1956) 46 Cal.2d 818, 836 (error is prejudicial if it is
reasonably probable the defendant would have obtained a more
favorable result absent the error).
Harmless error analysis is appropriate when, in the
circumstances, it can be said that assuming instructional error, “ ‘the
factual question posed by the omitted instruction was necessarily
resolved adversely to the defendant under other, properly given
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instructions.’ ” (See People v. Kobrin (1995) 11 Cal.4th 416, 428, fn. 8.)
Here, the jury found true that defendant intentionally killed Deputy
Trejo while he was engaged in the performance of his duties (§ 190.2,
subd. (a)(7) [“[t]he victim was a peace officer . . . who, while engaged
in the course of the performance of his or her duties, was intentionally
killed . . . .”]), and that he killed the deputy for the purpose of avoiding
arrest (§ 190.2, subd. (a)(5) [“[t]he murder was committed for the
purpose of avoiding or preventing a lawful arrest . . . .”]). These
explicit findings demonstrate that the jury necessarily rejected
defendant’s argument that he accidentally shot the deputy.
Moreover, defendant does not challenge the sufficiency of
evidence sustaining the special circumstances of the intentional
murder of a peace officer or murder for the purpose of avoiding a
lawful arrest. The record contains ample evidence supporting these
theories: Deputy Trejo was a uniformed peace officer engaged in the
performance of his duties when he was killed. Defendant knew he
was in violation of the terms of his parole and that it was not lawful
for him to possess a firearm. After shooting Deputy Trejo, defendant
and Moore quickly returned to Moore’s truck and drove toward
Highway 12. The jury also found true the special circumstances that
defendant killed Deputy Trejo while in the performance of his duties
and for the purpose of avoiding arrest, either of which made defendant
eligible for the death penalty. (§ 190.2, subd. (a)(5) & (7).) Thus, even
assuming the trial court erred in refusing to instruct the jury on
defendant’s proffered accident instruction on robbery-murder special
circumstance, we would still uphold the verdicts here. (See, e.g.,
People v. Suarez (2020) 10 Cal.5th 116, 170.)
c. Instructions on defendant’s flight and refusal to
participate in lineup
Defendant asserts that the trial court committed prejudicial
error when it instructed the jury that it could consider defendant’s
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refusal to appear in a lineup and his flight from the crime scene as
evidence of consciousness of guilt. We conclude the instructions were
proper.
The court instructed the jury with a modified version of CALJIC
No. 2.06, as follows: “If you find that a defendant attempted to
suppress evidence against himself in any manner, such as by refusing
to participate in a line-up, this attempt may be considered by you as
a circumstance tending to show a consciousness of guilt. However,
this conduct is not sufficient by itself to prove guilt, and its weight and
significance, if any, are for you to decide.”
The court also gave CALJIC No. 2.52, which states: “The flight
of a person immediately after the commission of a crime or after he is
accused of a crime is not sufficient in itself to establish his guilt, but
is a fact which, if proved, may be considered by you in the light of all
other proved facts in deciding whether a defendant is guilty or not
guilty. The weight to which this circumstance is entitled is a matter
for you to decide.”
Defendant asserts the consciousness-of-guilt instructions were
unfairly argumentative because they invited the jury to draw
inferences favorable to the prosecution from particular evidence. We
have repeatedly rejected the same challenges to consciousness-of-guilt
instructions involving suppression of evidence and flight. (People v.
Tully (2012) 54 Cal.4th 952, 1024; People v. Jurado (2006) 38 Cal.4th
72, 125–126; People v. Benavides (2005) 35 Cal.4th 69, 100; People v.
Nakahara (2003) 30 Cal.4th 705, 713 (Nakahara).) We perceive no
reason to revisit this authority.
d. Use of CALJIC former No. 8.71
Defendant claims the trial court’s use of the 1996 revised version
of CALJIC No. 8.71, combined with the court’s failure to give CALJIC
No. 17.11, skewed the jury’s deliberations toward first degree murder
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and lowered the prosecution’s burden of proof in violation of his rights
to due process and trial by jury. (U.S. Const., 5th, 6th, 14th Amends.;
Cal. Const., art. I, §§ 7, 15, 16.) We conclude that any error was
harmless beyond a reasonable doubt.
The trial court gave the 1996 revised version of CALJIC
No. 8.71, which informed the jury: “If you are convinced beyond a
reasonable doubt and unanimously agree that the crime of murder has
been committed by a defendant, but you unanimously agree that you
have a reasonable doubt whether the murder was of the first or of the
second degree, you must give defendant the benefit of that doubt and
return a verdict fixing the murder as of the second degree as well as a
verdict of not guilty of murder in the first degree.” (Italics added.)
The trial court also provided CALJIC No. 17.40, as follows: “The
People and the defendant are entitled to the individual opinion of each
juror. Each of you must consider the evidence for the purpose of
reaching a verdict if you can do so. Each of you must decide the case
for yourself, but should do so only after discussing the evidence and
instructions with the other jurors. Do not hesitate to change an
opinion if you are convinced it is wrong, however, do not decide any
question in a particular way because a majority of the jurors, or any
of them, favor that decision. Do not decide any issue in this case by
the flip of a coin, or by any other chance determination.”
The court further instructed the jury with CALJIC No. 8.75,
stating: “If you are not satisfied beyond a reasonable doubt that the
defendant is guilty of the crime of first degree murder as charged in
Count I and you unanimously so find, you may convict him of any
lesser crime provided you are satisfied beyond a reasonable doubt that
he is guilty of the lesser crime.” The court also gave CALJIC No.
17.10, which instructs the jury that if it is not satisfied beyond a
reasonable doubt that the defendant is guilty of the crime charged, it
may nevertheless convict him of any lesser crime if it is convinced
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beyond a reasonable doubt that the defendant is guilty of the lesser
crime. Additionally, the court directed the jury to read the
instructions as a whole and in light of all the others; and the jury was
generally instructed on reasonable doubt.
The trial court initially confirmed that it would also give
CALJIC No. 17.11, which provides: “If you find the defendant guilty
of the crime of murder, but have a reasonable doubt as to whether it
is of the first or second degree, you must find him guilty of that crime
in the second degree.” However, after defense counsel informed the
court that he could not find CALJIC No. 17.11 among the prepared
packet of instructions to be given, the court decided that CALJIC
No. 8.71 sufficiently covered CALJIC No. 17.11.
In People v. Moore (2011) 51 Cal.4th 386, 411–412 (Moore), we
advised that “the better practice is not to use the 1996 revised versions
of CALJIC Nos. 8.71 and 8.72 [relating to manslaughter], as the
instructions carry at least some potential for confusing jurors about
the role of their individual judgments in deciding between first and
second degree murder, and between murder and manslaughter. The
references to unanimity in these instructions were presumably added
to convey the principle that the jury as a whole may not return a
verdict for a lesser included offense unless it first reaches an acquittal
on the charged greater offense. [Citation.] But inserting this
language into CALJIC Nos. 8.71 and 8.72, which address the role of
reasonable doubt in choosing between greater and lesser homicide
offenses, was unnecessary, as CALJIC No. 8.75 fully explains that the
jury must unanimously agree to not guilty verdicts on the greater
homicide offenses before the jury as a whole may return verdicts on
the lesser.” Nevertheless, we determined that any error in giving
these instructions was harmless beyond a reasonable doubt in light of
the jury’s true findings on the burglary-murder and robbery-murder
special circumstances, reasoning that the jury must have found the
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defendant guilty of first degree murder on the same felony-murder
theory. (Id. at p. 412.)
We conclude, as we did in Moore, that any error in giving the
1996 revised version of CALJIC No. 8.71 was harmless beyond a
reasonable doubt in light of the jury’s true findings that defendant
committed the murder for the purpose of avoiding arrest and while
engaged in the commission of a robbery, and that defendant
intentionally killed a peace officer engaged in the performance of his
duties. (Moore, supra, 51 Cal.4th at p. 412.) These findings “left no
room for the lesser offense[] of second degree murder.” (People v.
Salazar (2016) 63 Cal.4th 214, 247.) “Any confusion generated by the
challenged instructions, therefore, could not have affected the jury’s
verdicts.” (Moore, at p. 412.)
e. Unanimity instruction on first degree murder theory
Defendant contends the trial court erred by failing to require
unanimous agreement as to which theory of guilt the jury accepted in
support of a first degree murder verdict. As we explained in People v.
Sattiewhite (2014) 59 Cal.4th 446, 479, premeditated murder and
felony murder are not different crimes, but are instead alternate
mechanisms of determining liability. Accordingly, “as long as each
juror is convinced beyond a reasonable doubt that defendant is guilty
of murder as that offense is defined by statute, it need not decide
unanimously by which theory he is guilty.” (People v. Santamaria
(1994) 8 Cal.4th 903, 918; see also People v. Potts (2019) 6 Cal.5th
1012, 1048.) Defendant offers no reasoned basis for us to reconsider
our previously expressed view.
f. Other first degree murder instructions
Defendant alleges the trial court erred in instructing the jury on
first degree murder because the amended information charged him
only with “malice murder” under section 187. He claims the trial court
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lacked jurisdiction to try him for the uncharged crime of first degree
murder.
We have previously held that a defendant may be convicted of
first degree murder even though the information charged only murder
with malice in violation of section 187. (See, e.g., People v. Hughes
(2002) 27 Cal.4th 287, 368–370 (Hughes).) In Hughes, we rejected the
defendant’s premise that felony murder and malice murder are
separate offenses. (Id. at p. 369.) Consistent with our precedent, we
“reject defendant’s interrelated claims that the trial court lacked
jurisdiction to try him for first degree murder and improperly
instructed on theories of first degree murder.” (People v. Morgan
(2007) 42 Cal.4th 593, 616 (Morgan).)
To the extent defendant asserts he received inadequate notice of
the prosecution’s theory of the case, we have explained that a
defendant will generally receive such notice from the testimony
presented at the preliminary hearing or at the indictment
proceedings. (Hughes, supra, 27 Cal.4th at pp. 369–370, citing, e.g.,
People v. Diaz (1992) 3 Cal.4th 495, 557.) Here, the information
alleged the special circumstance of murder in the commission of a
robbery as part of the murder charge in count one, and separately
charged defendant with robbery in count two; the preliminary hearing
testimony made clear the prosecution’s intent to establish that
defendant killed Deputy Trejo with premeditation and deliberation
and, alternatively, during the commission of a robbery; and the
evidence at trial further alerted defendant to the premeditated
murder and felony murder theories. We conclude that those
allegations and that evidence provided notice that the prosecutor
would proceed under premeditated-murder and felony-murder
theories. (Morgan, supra, 42 Cal.4th at pp. 616–617.)
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g. Reasonable doubt and related instructions
Defendant contends the trial court denied him due process by
giving several standard CALJIC instructions regarding how the jury
should consider and weigh the evidence, thereby diluting the
reasonable doubt standard. Specifically, defendant challenges the
propriety of the following CALJIC instructions: Nos. 2.01 (sufficiency
of circumstantial evidence), 2.02 (sufficiency of circumstantial
evidence to prove specific intent or mental state), 8.83 (special
circumstances — sufficiency of circumstantial evidence — generally),
8.83.1 (special circumstances — sufficiency of circumstantial evidence
to prove required mental state), 2.21.1 (discrepancies in witness
testimony), 2.21.2 (willfully false witnesses), 2.22 (weighing
conflicting testimony), 2.27 (sufficiency of testimony of one witness),
8.20 (definition of premeditation and deliberation), and 2.51 (motive).
We have previously considered and rejected similar claims
challenging these same jury instructions. (See, e.g., People v.
McKinzie (2012) 54 Cal.4th 1302, 1354–1357, abrogated on other
grounds in People v. Scott (2015) 61 Cal.4th 363; People v. Brasure
(2008) 42 Cal.4th 1037, 1058–1059 (Brasure); People v. Riggs (2008)
44 Cal.4th 248, 314; Nakahara, supra, 30 Cal.4th at pp. 713–715.) In
Brasure, we determined that, “[i]n light of the entire charge, . . . none
[of the challenged instructions] tends to suggest that [the] defendant
bears a burden of proving his innocence or that the prosecution’s
burden is less than one of proof beyond a reasonable doubt. Jurors
are not reasonably likely to draw, from bits of language in instructions
that focus on how particular types of evidence are to be assessed and
weighed, a conclusion overriding the direction, often repeated in voir
dire, instruction and argument, that they may convict only if they find
the People have proven guilt beyond a reasonable doubt.” (Brasure,
at p. 1059.) We conclude, as we have before, that “defendant’s
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multifaceted challenge to the court’s reasonable doubt and related
instructions lacks merit.” (Nakahara, at p. 715.)
B. Penalty Phase Issues
1. Admission of evidence in aggravation under section
190.3, factor (b)
Defendant contends the trial court erred in admitting certain
evidence related to prior acts of violence during the penalty phase. He
asserts that absent the allegedly inadmissible evidence, it is
reasonably probable that he would not have been sentenced to death.
At the penalty phase, the jury is permitted to consider “[t]he
presence or absence of criminal activity by the defendant which
involved the use or attempted use of force or violence or the express
or implied threat to use force or violence.” (§ 190.3, factor (b).) The
evidence admitted under this factor must establish beyond a
reasonable doubt that the conduct was prohibited by a criminal
statute and satisfied the essential elements of the crime. (Schultz,
supra, 10 Cal.5th at p. 681; People v. Phillips (1985) 41 Cal.3d 29, 72.)
a. Throwing urine on prison guards
The prosecution presented evidence that defendant threw urine
at several correctional officers at the Sonoma County jail. On October
13, 1996, five officers approached defendant’s cell to conduct a cell
search. The officers opened the cell door food port in order to handcuff
defendant. Once the port was open, defendant threw a milk carton
containing urine at the officers and yelled profanities at them. The
substance struck three officers.
Defendant contends the trial court erred in admitting this
evidence because it constituted a “technical battery” and was not a
crime of force or violence under section 190.3, factor (b). Defendant is
incorrect. We have held that “ ‘[a]ny harmful or offensive touching
constitutes an unlawful use of force or violence’ ” and is admissible
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criminal activity under section 190.3, factor (b). (People v. Pinholster
(1992) 1 Cal.4th 865, 961.) This includes throwing various items or
substances at custodial officers or other persons. (Ibid. [throwing a
cup of urine at officer]; People v. Romero and Self (2015) 62 Cal.4th 1,
48 (Romero and Self) [squirting bottle containing urine and
splattering carton of feces on individual]; People v. Banks (2014)
59 Cal.4th 1113, 1197–1198 [throwing container filled with urine and
feces at correctional officer]; People v. Hamilton (2009) 45 Cal.4th 863,
934 [spitting on officer]; People v. Lewis and Oliver (2006) 39 Cal.4th
970, 1053 (Lewis and Oliver) [throwing a milk carton and hot coffee at
officer]; People v. Burgener (2003) 29 Cal.4th 833, 868 [throwing
water, urine, scouring powder, bleach, and other substances at
correctional officers].) We also recently reaffirmed that “[f]actor (b) is
not limited in all circumstances to acts as to which the defendant has
used forcible violence or violent force.” (People v. Westerfield (2019)
6 Cal.5th 632, 720.) We conclude the jury was permitted to consider
this activity in determining defendant’s sentence.
Defendant also maintains that allowing the jury to know the
substance was urine was more prejudicial than probative and should
have been excluded. (Evid. Code, § 352, subd. (a).) Not so. The fact
that defendant, while refusing to be handcuffed for a cell search,
yelled profanities at custodial officers and threw urine on them was
probative of the violent nature of the act. In denying defendant’s
request to limit the evidence to the throwing of a liquid, the trial court
elaborated: “I can’t believe that you’re arguing to me that urine is no
more possibly caustic or dangerous or violent really than water. . . .
“[T]he jury can fairly infer from the act . . . that there’s a specific
reason why urine is used instead of water.” We conclude the court
properly exercised its discretion in determining the probative value of
the evidence outweighed its potential prejudice.
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b. Possession of hacksaw blades
The prosecution also presented evidence of defendant’s
possession of hacksaw blades while incarcerated. This was a violation
of section 4502, subdivision (a), which prohibits the possession of a
“dirk or dagger or sharp instrument” while confined in a penal
institution. On May 1, 1984, a San Quentin correctional officer
conducted a search of defendant while in custody. The officer’s metal
detector sounded an alarm when placed near defendant’s rectum.
Defendant then voluntarily removed three hacksaw blades in plastic
wrap from his rectum.
Defendant asserts the trial court erroneously admitted this
evidence because a hacksaw blade does not qualify as a “sharp
instrument” as contemplated by section 4502, subdivision (a). Relying
on a dictionary definition of the word “sharp,” defendant maintains
that a sharp instrument must have a “thin keen edge” and a hacksaw
blade has a “fine tooth saw.” In People v. Hayes (2009)
171 Cal.App.4th 549, 560, the Court of Appeal determined that a
sharp instrument under section 4502 “does not necessarily mean the
object must have a cutting blade, like a knife or razor blade,” and could
include a pointed object. We conclude, as did the Court of Appeal in
Hayes, that an instrument with pointed edges, such as a hacksaw
blade, qualifies as a “sharp instrument” under section 4502,
subdivision (a).
Defendant also argues that his possession of a hacksaw blade
does not involve an act of implied force or violence as contemplated by
factor (b). Defendant relies on out-of-state decisions to support his
claim. (See, e.g., People v. Morrisette (Ill. Ct. App. 1992) 589 N.E.2d
144, 147 [holding that a hacksaw blade is distinguishable from a
“dangerous weapon” absent an accompanying act showing that the
blade was used in a dangerous or violent manner].) We remain
unpersuaded. We have held that “possession of a potentially
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dangerous weapon in custody ‘is unlawful and involves an implied
threat of violence even where there is no evidence defendant used or
displayed it in a provocative or threatening manner.’ ” (People v.
Delgado (2017) 2 Cal.5th 544, 586.) We have found that an inmate’s
possession of razor blades is admissible under section 190.3, factor (b)
(People v. Tuilaepa (1992) 4 Cal.4th 569, 589), as is an inmate’s
possession of sharpened toothbrushes (People v. Mills (2010)
48 Cal.4th 158, 208). No stretch of imagination is needed to conclude
that defendant’s possession of three hacksaw blades, concealed in his
rectum, amounts to an “implied threat to use force or violence.”
(§ 190.3, factor (b).) Accordingly, we conclude the trial court properly
admitted such evidence under section 190.3, factor (b).
c. Admission of photographs
The prosecution introduced five photographs during testimony
regarding two incidents of prior acts of violence for which defendant
was convicted.7 Four of the photographs related to the 1978 sexual
assault of Diane K.: three showed Diane K.’s facial injuries and one
depicted defendant as he appeared around the time of the assault.
The fifth photograph illustrated the injuries sustained by Louis
Moody, a prison inmate whom appellant had assaulted in 1985.
Under Evidence Code section 352, “[t]he court in its discretion
may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” “As we
have noted repeatedly, the trial court’s discretion to exclude
7
The prosecution introduced the convictions under section 190.3,
factor (c), and subsequently argued to the jury that the evidence of the
convictions and the facts of the offense be considered under both
factors (b) and (c).
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photographs as unduly prejudicial during the penalty phase is even
more circumscribed than admission of photographs during the guilt
phase . . . .” (People v. Booker (2011) 51 Cal.4th 141, 187.) “ ‘This is
so because the prosecution has the right to establish [section 190.3
factors], and because the risk of an improper guilt finding based on
visceral reactions is no longer present.’ [Citations.] At the penalty
phase, the jury ‘is expected to subjectively weigh the evidence, and the
prosecution is entitled to place the capital offense and the offender in
a morally bad light.’ ” (People v. Bell (2019) 7 Cal.5th 70, 106.)
We have reviewed the photographs. Although the photographs
depicting Diane K.’s and Moody’s injuries are unpleasant, they
illustrated for the jury the prior acts of violence for which defendant
was convicted. (§ 190.3, factors (b) & (c).) Moreover, to avoid any
impression that Moody was dead in the photograph, the jury was
informed that Moody’s injuries were not life threatening, he was
treated and released at a later date, and that he remained housed
within state prison. Thus, the trial court acted within its discretion
in admitting the photographs of Diane K. and Moody.
Regarding the 1978 photograph of defendant, we assume
without deciding that the trial court’s admission of it was erroneous,
but that any such error would be harmless beyond a reasonable doubt
because there is no reasonable probability that its admission affected
the jury’s verdict. (See, e.g., People v. Frank (1990) 51 Cal.3d 718,
734–735.)
2. Admission of evidence in aggravation under section
190.3, factor (a)
a. Victim impact evidence from Deputy Trejo’s family
Defendant contends the trial court’s admission of victim impact
testimony from Deputy Trejo’s immediate family members and
several family photographs violated his right to a fair and reliable
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penalty hearing because the evidence was so excessive, inflammatory,
and cumulative that it served to unfairly sway the jury to vote for
death. Defendant also maintains the trial court should have given his
proposed cautionary instruction informing the jury how to consider
the victim impact evidence. We find no error.
Over defendant’s objection, the court allowed Deputy Trejo’s
wife and four adult children to testify during the penalty phase. The
family members described their relationship with Deputy Trejo and
how their lives were impacted by his death. Barbara Trejo, Deputy
Trejo’s widow, conveyed the grief and loss she felt after the death of
her husband, to whom she had been married for 40 years. Deputy
Trejo’s children described their close relationship with their father,
who was actively involved in the lives of his grandchildren, and the
sorrow they experienced as a result of their father’s death. The court
also admitted five photographs illustrating Deputy Trejo’s close
relationship with his family.
“[V]ictim impact testimony is admissible at the penalty phase
under section 190.3, factor (a), as a circumstance of the crime,
provided the evidence is not so inflammatory as to elicit from the jury
an irrational or emotional response untethered to the facts of the
case.” (Pollock, supra, 32 Cal.4th at p. 1180.) “Unless it invites a
purely irrational response from the jury, the devastating effect of a
capital crime on loved ones and the community is relevant and
admissible as a circumstance of the crime under section 190.3, factor
(a).” (Lewis and Oliver, supra, 39 Cal.4th at pp. 1056–1057.) “The
federal Constitution bars victim impact evidence only if it is ‘so unduly
prejudicial’ as to render the trial ‘fundamentally unfair.’ ” (Id. at
p. 1056, quoting Payne v. Tennessee (1991) 501 U.S. 808, 825.)
Defendant contends that allowing five family members to testify
about the impact of Deputy Trejo’s death was unfairly cumulative and
unduly inflammatory. “This court previously has rejected arguments
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‘that victim impact evidence must be confined to . . . a single
witness.’ ” (People v. McKinnon (2011) 52 Cal.4th 610, 690.) “We have
approved victim impact testimony from multiple witnesses who were
not present at the murder scene and who described circumstances and
victim characteristics unknown to the defendant” (Pollock, supra,32 Cal.4th at p. 1183), including by a greater number of friends and
family than those testifying in this case (Romero and Self, supra,
62 Cal.4th at p. 46 [testimony from six friends and family members];
People v. Kopatz (2015) 61 Cal.4th 62, 89 [testimony from seven family
members]). Moreover, the testimony elicited from Deputy Trejo’s
family members was well within the bounds of proper victim impact
testimony. (See, e.g., People v. Scott (2011) 52 Cal.4th 452, 466–467,
494–495.) Thus, the trial court properly admitted the testimony.
Defendant also asserts the trial court improperly admitted the
photographs of Deputy Trejo with his family on the grounds they were
not probative regarding the impact of the deputy’s death or necessary
to humanize him, and that they were designed to elicit a purely
emotional response from the jury. Photographs of a victim may be
relevant to the penalty determination because they “humanize[]” the
victim, “as victim impact evidence is designed to do.” (People v. Kelly
(2007) 42 Cal.4th 763, 797.) “Although emotion must not ‘reign over
reason’ at the penalty phase [citations], photographs of the victims of
the charged offenses are generally admissible.” (People v. Carpenter
(1997) 15 Cal.4th 312, 400–401.)
We have reviewed the photographs. The five images included
Deputy Trejo in his uniform kissing his grandchild, hugging family
members at a graduation, and playing with his grandchildren. We
conclude that the photographs appropriately served to humanize
Deputy Trejo and were not unduly emotional.
Additionally, defendant broadly challenges the scope of
permissible victim impact evidence under section 190.3, factor (a) as
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unconstitutionally vague and overbroad. We have previously
considered and rejected this argument (People v. Hamilton, supra,
45 Cal.4th at p. 931), and defendant provides no persuasive reason for
us to reconsider our conclusion here.
Last, defendant maintains the trial court erred when it refused
to give his proposed instruction directing the jurors not to allow victim
impact evidence to divert their attention from their proper role of
deciding whether defendant should live or die and instructing them to
face their obligation soberly and rationally. We have repeatedly
rejected claims of error regarding similar cautionary instructions.
(See, e.g., Pollock, supra, 32 Cal.4th at p. 1195 [“The proposed
instruction misstated the law in asserting that the jury, in making its
penalty decision, could not be influenced by sympathy for the victims
and their families engendered by the victim impact testimony”].)
Moreover, the standard instructions found in CALJIC Nos. 8.85 and
8.88, as given by the trial court, adequately conveyed to the jurors the
proper consideration and use of victim impact evidence. (People v.
Zamudio (2008) 43 Cal.4th 327, 369.)
b. Victim impact evidence from Frank Cooper and
Karen King
Defendant asserts the admission of Frank Cooper and Karen
King’s testimony as victim impact evidence stemming from noncapital
crimes violated his right to a fair and reliable penalty determination
because such testimony is inadmissible under section 190.3, factor (a)
or factor (b). We conclude the trial court properly admitted the
testimony under factor (b), and any error with respect to admitting
Karen’s testimony was harmless.
Frank testified that his health had deteriorated since the
hostage incident. He was unable to continue working as an auto
mechanic because he was afraid to go out, and had become vigilant in
keeping his home safe. Karen testified that she had become more
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fearful and stressed after the incident and had trouble sleeping.
Karen moved out of the family home because she was scared of the
area around the house, and her relationship with her mother and
children deteriorated as a result. She described the fear she felt
meeting white people after the hostage incident.
Section 190.3, factor (b) permits the trier of fact to consider the
presence or absence of criminal activity by the defendant involving the
use or attempted use of force or violence or the express or implied
threat to use force or violence. The impact of defendant’s crimes on
Frank and Karen were relevant and admissible under section 190.3,
factor (b) as “evidence of the emotional effect” of defendant’s other
violent criminal acts. (See People v. Martinez (2010) 47 Cal.4th 911,
961; People v. Redd (2010) 48 Cal.4th 691, 746.) We have also
concluded that the admission of such evidence does not violate the
Eighth Amendment. (Davis, supra, 46 Cal.4th at p. 617.)
Defendant maintains that the testimony from Frank and Karen
should have been excluded under Evidence Code section 352 because
it was more prejudicial than probative. We disagree. That testimony
was highly probative concerning the effect of defendant’s criminal acts
on them, and was not overly shocking or emotionally laden.
Finally, defendant argues that the trial court erroneously
permitted the prosecutor to present inflammatory race-based
testimony from Karen. She testified to being afraid to meet new
people after the hostage incident. When the prosecutor asked whether
there were any particular people that Karen was afraid to be with,
Karen responded, “Caucasians.”
We conclude that any error in admitting the testimony was
harmless because “there is no reason to believe the prosecutor
intended to elicit racial remarks or appeal to racial prejudice, or that
the testimony had such an effect.” (People v. Bramit (2009) 46 Cal.4th
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1221, 1241–1242.) Karen’s testimony about the issue was very brief,
and there is no indication that the prosecutor capitalized on her
remarks. (Id. at p. 1242.) Accordingly, we find no grounds for reversal
of the penalty verdict based on the victim impact testimony of Frank
and Karen.
3. Instructions regarding aggravating and mitigating
evidence
Defendant contends the trial court prejudicially erred by
refusing to give his proffered instructions relating to the scope of
mitigating circumstances, the limitations on aggravating
circumstances, the nature and scope of the jury’s sentencing
discretion, and the jury’s exercise of mercy in its sentencing decision.
We conclude there was no error.
a. Scope of mitigating and aggravating circumstances
At the end of the penalty phase trial, the trial court provided
CALJIC No. 8.88, which defines factors in aggravation and
mitigation. Defendant claims the court erred when it declined to give
his proposed alternative instructions containing different definitions
of the terms “mitigating factors” and “aggravating factors.”
“We repeatedly have held that the standard version of CALJIC
No. 8.88 is adequate and correct” (People v. Souza (2012) 54 Cal.4th
90, 141), and have rejected challenges based on empirical studies
suggesting that the terms “aggravating,” “mitigating,” and
“extenuating” are not sufficiently clear (see People v. Jackson (2009)
45 Cal.4th 662, 695). We find no persuasive reason to deviate from
our prior decisions in the present case.
b. Background evidence as mitigating only
Defendant asserts the trial court should have instructed the jury
that evidence of defendant’s background, character, and personal
history could be considered only as mitigating evidence. The court
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denied the proposed instruction as duplicative of CALJIC No. 8.85,
which specifies that the permissible aggravating factors are limited to
those listed in the instruction and directs the jury to consider “[a]ny
sympathetic or other aspect of the defendant’s character or record that
the defendant offers as a basis for a sentence less than death.” The
prosecutor also reminded the jury that it could consider only evidence
that fell within the scope of factors (a), (b), and (c) as listed in CALJIC
No. 8.85 as aggravating factors. Contrary to defendant’s claim, the
prosecutor did not suggest that defendant’s background, character, or
personal history could be considered as factors in aggravation. We
conclude the court properly declined to give defendant’s proposed
instruction. (Panah, supra, 35 Cal.4th at p. 486 [“A trial court is not
required to give pinpoint instructions that merely duplicate other
instructions”].)
c. Mental or emotional disturbance as mitigating
evidence
Defendant contends the trial court erred in refusing to give, in
addition to CALJIC No. 8.85, several special instructions offered by
defense counsel regarding extreme mental or emotional disturbance
as factors in mitigation. The standard version of CALJIC No. 8.85
instructs the jury to consider, among other factors, “[w]hether or not
the offense was committed while the defendant was under the
influence of extreme mental or emotional disturbance” (CALJIC
No. 8.85, factor (d)), and “[w]hether or not at the time of the offense
the capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was
impaired as a result of mental disease or defect” (CALJIC No. 8.85,
factor (h)). It also instructs the jury to consider “[a]ny other
circumstance which extenuates the gravity of the crime even though
it is not a legal excuse for the crime and any sympathetic or other
aspect of the defendant’s character or record that the defendant offers
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as a basis for a sentence less than death, whether or not related to the
offense for which he is on trial,” including “[w]hether the defendant
committed the offense while under the influence of a mental or
emotional disturbance, which disturbance need not be extreme or
amount to legal insanity or an inability to form a specific intent,” and
“[w]hether the defendant suffered any emotional or psychological
problems as an adolescent or young adult that prevented him from
acquiring necessary social skills and maturity” (CALJIC No. 8.85,
factor (k)). We conclude the trial court properly rejected defendant’s
proffered instructions as duplicative of factors (d), (h), and (k) listed
in CALJIC No. 8.85. (People v. Jones (2012) 54 Cal.4th 1, 74–75
(Jones); People v. Gonzalez (1990) 51 Cal.3d 1179, 1227 [catchall
provision of CALJIC No. 8.85, factor (k) “allows consideration of
‘nonextreme’ mental or emotional conditions”].)
d. Scope of jury’s sentencing discretion
Defendant argues that the trial court should have given
additional defense-proffered instructions concerning the scope of the
jury’s sentencing discretion and the weighing process. One of these
instructions would have told the jury that the finding of a felony-
murder special circumstance is not entitled to greater weight than the
finding of any other special circumstance. Given that “[e]ach juror is
free to assign whatever moral or sympathetic value [the juror] deems
appropriate to each and all of the various factors he [or she] is
permitted to consider” (People v. Brown (1985) 40 Cal.3d 512, 541), we
conclude the trial court was not required to instruct the jury not to
give the felony-murder special circumstance undue weight in
aggravation.
Another special instruction would have advised the jury that
death is a more severe punishment than life in prison without the
possibility of parole. “We repeatedly have held that ‘there is no legal
requirement that penalty phase jurors be instructed that death is the
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greater punishment, because the penalty trial itself and the jury
instructions given, particularly CALJIC No. 8.88, make clear that the
state views death as the most extreme penalty. [Citations.]’
[Citation.] As noted, the jury was instructed that before a judgment
of death can be returned, each juror ‘must be persuaded that the
aggravating circumstances are so substantial in comparison with the
mitigating circumstances that it warrants death instead of life
without parole.’ (CALJIC No. 8.88.) The instruction makes it clear
that ‘death is considered to be a more severe punishment than life
. . . .’ ” (Jones, supra, 54 Cal.4th at p. 81.) Moreover, we have
repeatedly held that the CALJIC penalty phase instructions “ ‘ “are
adequate to inform the jurors of their sentencing responsibilities in
compliance with federal and state constitutional standards.” ’ ”
(People v. Brown (2003) 31 Cal.4th 518, 569.)
Defendant also requested an instruction informing the jury that
parole was not a possibility in this case. The court declined, noting
that it had already informed prospective jurors at the beginning of
trial that jurors should assume the sentence they impose will be
carried out. The jury was also instructed with CALJIC No. 8.84,
which states that “the penalty for a defendant found guilty of murder
of the first degree shall be death or imprisonment in the state prison
for life without the possibility of parole . . . .” As we have frequently
held, “ ‘the phrase “life without possibility of parole” as it appears in
CALJIC No. 8.84 adequately informs the jury that a defendant
sentenced to life imprisonment without possibility of parole is
ineligible for parole.’ ” (Duenas, supra, 55 Cal.4th at p. 28.) We have
likewise rejected defense efforts to rely on empirical studies
suggesting that many death-qualified jurors do not understand that
life without the possibility of parole actually means what it says
(People v. Ervine (2009) 47 Cal.4th 745, 798 (Ervine)), and we do so
again here.
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e. Instruction on mercy
Defense counsel requested the jury be instructed that “[i]n
determining whether in light of all the relevant circumstances a
sentence of death is appropriate, you may decide to exercise mercy on
behalf of the defendant.” “[W]e have repeatedly rejected the claim
that omission of ‘mercy’ from the jury instructions constitutes error.”
(Ervine, supra, 47 Cal.4th at p. 801.) As noted earlier, the jury was
instructed pursuant to CALJIC No. 8.85, which incorporates section
190.3, factor (k), and directs the jury to consider “any other
circumstance which extenuates the gravity of the crime even though
it is not a legal excuse for the crime, and any sympathetic or other
aspect of the defendant’s character or record that the defendant offers
as a basis for a sentence less than death, whether or not related to the
offense for which he is on trial.”
We conclude no additional instruction was required. “As we
have previously explained, CALJIC No. 8.85 adequately instructs the
jury concerning the circumstances that may be considered in
mitigation, including sympathy and mercy. [Citation.] We therefore
‘must assume the jury already understood it could consider mercy and
compassion.’ ” (Ervine, supra, 47 Cal.4th at p. 801; see Jones, supra,
54 Cal.4th at pp. 74–75.) “To the extent the proposed instructions told
the jurors they were free to consider ‘mercy, sympathy and/or
sentiment’ . . . or ‘compassion or sympathy’ . . . , they were essentially
duplicative of CALJIC No. 8.85 . . . .” (Brasure, supra, 42 Cal.4th at
pp. 1069–1070.)
C. Other Issues
1. Challenges to California’s death penalty law
Defendant challenges the constitutionality of numerous
features of California’s capital sentencing scheme. We have
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repeatedly considered and rejected such challenges, and we decline to
reconsider the following conclusions:
Section 190.2, which sets forth the special circumstances that
render those convicted of murder death eligible, adequately narrows
the class of those eligible for the death penalty and is not
impermissibly broad in violation of the Eighth and Fourteenth
Amendments. (People v. Johnson (2016) 62 Cal.4th 600, 654–655
(Johnson); People v. Williams (2013) 58 Cal.4th 197, 294; People v.
Myles (2012) 53 Cal.4th 1181, 1224–1225.)
Section 190.3, factor (a), which instructs the jury to consider as
evidence in aggravation the “circumstances of the crime,” is not
impermissibly broad, nor does it result in the arbitrary and capricious
imposition of the death penalty. (People v. Livingston (2012)
53 Cal.4th 1145, 1179–1180 (Livingston); People v. Enraca (2012)
53 Cal.4th 735, 769 (Enraca); People v. Kennedy (2005) 36 Cal.4th 595,
641.)
The death penalty statute does not yield arbitrary and
capricious sentencing because jurors need not find beyond a
reasonable doubt that an aggravating factor (other than evidence
under section 190.3, factor (b) or (c)) has been proved. (Erskine, supra,
7 Cal.5th at p. 304; Livingston, supra, 53 Cal.4th at pp. 1179–1180;
Enraca, supra, 53 Cal.4th at pp. 768–769.) We have held that the high
court’s recent decisions interpreting the Sixth Amendment’s jury trial
guarantee do not alter our conclusions. (People v. Rangel (2016)
62 Cal.4th 1192, 1235 (Rangel); People v. Lee (2011) 51 Cal.4th 620,
651–652; see also McKinney v. Arizona (2020) ___ U.S. ___, ___
[140 S.Ct. 702, 708] [“Ring [v. Arizona (2002) 536 U.S. 584] and Hurst
[v. Florida (2016) 577 U.S. 92 [136 S.Ct. 616]] did not require jury
weighing of aggravating and mitigating circumstances”].)
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Similarly, we have held that the federal Constitution does not
require that the penalty phase jury make unanimous findings
“regarding the existence of particular aggravating factors” (Johnson,
supra, 62 Cal.4th at p. 655; see also Rangel, supra, 62 Cal.4th at p.
1235), or “findings beyond a reasonable doubt as to the existence of
aggravating factors other than section 190.3, factors (b) and (c)”
(People v. Leon (2020) 8 Cal.5th 831, 853).
“Permitting the jury to consider prior unadjudicated criminal
conduct as a factor in aggravation under [section 190.3,] factor (b), and
imposing no requirement that the jury unanimously find the
defendant guilty of the unadjudicated crimes does not violate a
defendant’s right to due process or his Sixth Amendment jury trial
right.” (Johnson, supra, 62 Cal.4th at p. 656, citing People v. Clark
(2011) 52 Cal.4th 856, 1007, People v. Barnwell (2007) 41 Cal.4th
1038, 1059.)
The trial court’s instruction informing the jurors that they
might be persuaded that the aggravating circumstances are “so
substantial” in comparison with the mitigating circumstances that a
death sentence is warranted is not unconstitutionally vague and
ambiguous. (People v. Frederickson (2020) 8 Cal.5th 963, 1026
(Frederickson) [“CALJIC No. 8.88 is not impermissibly broad”]; Jones,
supra, 54 Cal.4th at p. 78; People v. Schmeck (2005) 37 Cal.4th 240,
305.)
The trial court need not instruct the jury that (1) it must impose
a sentence of life without the possibility of parole if it determines that
mitigating factors outweigh aggravating factors (Frederickson, supra,
8 Cal.5th at p. 1027; Jones, supra, 54 Cal.4th at pp. 78–79); (2) its
findings regarding mitigating circumstances do not need to be
unanimous (People v. Valdez (2012) 55 Cal.4th 82, 180 (Valdez)); (3) it
should presume life imprisonment without the possibility of parole is
the appropriate sentence (id. at p. 179); or (4) statutory mitigating
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factors are relevant solely in mitigation (ibid.; Livingston, supra,
53 Cal.4th at p. 1180).
Jurors need not make written findings on the aggravating
factors found. (Valdez, supra, 55 Cal.4th at p. 180; People v. Cook
(2006) 39 Cal.4th 566, 619 (Cook).)
“Use of adjectives such as ‘extreme’ and ‘substantial’ in section
190.3, factors (d) and (g), respectively, does not create a
constitutionally impermissible barrier to the jury’s consideration of a
defendant’s mitigating evidence.” (Johnson, supra, 62 Cal.4th at
p. 656; see People v. DeHoyos (2013) 57 Cal.4th 79, 150.)
The trial court need not delete factually inapplicable sentencing
factors from its instructions. (Valdez, supra, 55 Cal.4th at p. 180;
Cook, supra, 39 Cal.4th at p. 618.)
“Comparative intercase proportionality review by the trial or
appellate courts is not constitutionally required.” (People v. Snow
(2003) 30 Cal.4th 43, 126.)
The capital sentencing scheme does not violate equal protection
by denying certain procedural protections to capital defendants that
are available to noncapital defendants. (People v. Thomas (2012)
53 Cal.4th 771, 836.)
California’s use of the death penalty does not violate
international law. (Frederickson, supra, 8 Cal.5th at p. 1027.)
2. Sentence of two enhancements on single prior conviction
The jury found true the allegation that defendant suffered five
robbery convictions under section 667, subdivision (a), and found true
the allegation that defendant had served a prior prison term for those
convictions and did not remain free from custody or a criminal
conviction for 10 years under section 667.5, subdivision (a). The trial
court sentenced defendant to a five-year enhancement for each of the
80
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
prior serious felony convictions and imposed a three-year prior prison
term enhancement for the same offenses.
Defendant claims the trial court erred in imposing the three-
year prior prison term enhancement under section 667.5, subdivision
(a) based on the same facts — the prior conviction of a felony — and
that remand for resentencing is warranted. (See People v. Jones
(1993) 5 Cal.4th 1142, 1150–1153.) The People properly concede the
error and agree the matter should be remanded for resentencing as to
the prior prison term.
3. Cumulative error
Defendant contends that the cumulative effect of the asserted
guilt and penalty phase errors requires us to reverse his convictions
and death sentence. We have assumed error, but found no prejudice,
regarding the trial court’s failure to give the defendant’s pinpoint jury
instruction on his claim of accident relating to the felony-murder
special-circumstance allegation, the admission of a photograph of
defendant at the time of Diane K.’s sexual assault, and Karen King’s
testimony regarding her fear of “Caucasians.” (See ante, pts. II.A.7.b.,
II.B.1.c., & II.B.2.b.) We have likewise found harmless error in the
trial court’s use of the 1996 revised version of CALJIC No. 8.71. (See
ante, pt. II.A.7.d.) We conclude that the cumulative effect of the three
assumed errors and one harmless error does not warrant reversal.
(People v. Silveria and Travis (2020) 10 Cal.5th 195, 327.)
81
PEOPLE v. SCULLY
Opinion of the Court by Cantil-Sakauye, C. J.
III. DISPOSITION
We remand the matter for resentencing on the prior prison term
enhancement and affirm the judgment in all other respects.
CANTIL-SAKAUYE, C. J.
We Concur:
LIU, J.
CUÉLLAR , J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
JACKSON, J.*
________________________
*
Associate Justice of the Court of Appeal, First Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
82
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Scully
__________________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________________
Opinion No. S062259
Date Filed: May 24, 2021
__________________________________________________________________
Court: Superior
County: Sonoma
Judge: Elaine M. Rushing
__________________________________________________________________
Counsel:
Michael J. Hersek, State Public Defender, under appointment by the
Supreme Court, Margot Garey and Valerie Hriciga, Deputy State
Public Defenders, for Defendant and Appellant.
Kamala Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gerald A. Engler, Assistant Attorney General,
Glenn R. Pruden and Julia Y. Je, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Valerie Hriciga
Deputy State Public Defender
1111 Broadway, Suite 1000
Oakland, CA 94607
(510) 267-3300
Julia Y. Je
Deputy Attorney General
455 Golden Gate Ave., Suite 11000
San Francisco, CA 94102
(415) 510-3804