People v. Beck

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES DAVID BECK and GERALD DEAN CRUZ,
Defendants and Appellants.
S029843
Alameda County Superior Court
110467-A and 110467-B
December 2, 2019
Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar,
Kruger, and Groban concurred.
PEOPLE v. BECK and CRUZ
S029843
Opinion of the Court by Liu, J.
Defendants James David Beck and Gerald Dean Cruz
were convicted of the first degree murders of Dennis Ian
Colwell, Emmie Darlene Paris, Franklin Delano Raper, and
Richard Talmadge Ritchey, and of conspiracy to commit
murder. (Pen. Code, §§ 182, subd. (a)(1), 187, subd. (a), former
§ 189 (all further undesignated statutory references are to the
Penal Code).) The jury also found true, as to both Beck and
Cruz, a multiple-murder special-circumstance allegation and
allegations of personal use of a deadly weapon (baseball bats,
knives, and a baton). (§ 190.2, subd. (a)(3), former § 12022,
subd. (b).) After separate penalty phases before the same jury,
the jury returned death verdicts — first for Cruz and then for
Beck — and the trial court entered judgments of death. This
appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a);
§ 1239, subd. (b).)
We vacate as unauthorized the multiple-murder special-
circumstance true findings as to Count V (conspiracy to commit
murder) for Beck and Cruz, as well as the death sentences
imposed for that count. (See post, pt. II.C.5.) As so modified,
we affirm the judgments, including the judgments of death
based on the murders.
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I. FACTS
A. Guilt Phase
Shortly after midnight on the night of May 20, 1990 and
early morning hours of May 21, 1990, Beck, Cruz, Jason
LaMarsh, Ronald Willey, Richard Vieira, and Michelle “Missy”
Evans, entered a house located at 5223 Elm Street in Salida
and killed Colwell, Paris, Raper, and Ritchey. A fifth resident,
Donna Alvarez, escaped the house during the attack and
subsequently identified LaMarsh as one of the perpetrators.
The original complaint charged all six perpetrators, but
the cases of Vieira and Evans were severed. Following a
change of venue from Stanislaus County to Alameda County,
Beck and Cruz were tried with LaMarsh and Willey, but the
jury was unable to reach a verdict on the charges against the
latter two men.
Evans entered a plea agreement under which, as
relevant here, she would plead guilty to being an accessory and
the district attorney would recommend a sentence of one year
(less six months for time served, and further reduced by
conduct and work credits) in exchange for her truthful
testimony at trial against Beck, Cruz, LaMarsh, and Willey.
The crime of accessory carried a maximum term of three years
of imprisonment and a fine not exceeding $5,000.
1. Prosecutor’s evidence
a. Events before May 20
In late 1989, Cruz, his girlfriend Jennifer S., and his two
small children moved into a studio apartment in a residential
area of Salida known as the “Camp.” Around the same time,
Beck and Vieira moved into a large trailer in front of the
studio. At some point, LaMarsh began to date Evans and
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frequently stayed in a smaller trailer located behind Beck and
Vieira. Cruz, Beck, and Vieira often wore camouflage clothing.
In January 1990, Raper, who was about 50 years old,
moved his trailer into the Camp. Raper had several friends
who frequently visited, including Debbie “Little Debbie”
Smelser and James “Fat Cat” Smith. Raper had an
acrimonious relationship with Beck, Cruz, and LaMarsh. Cruz
told an acquaintance before the May 20, 1990 murders that he
would “like to get his hands on” Raper.
At least six weeks before the murders, Beck, Cruz, and
LaMarsh hooked Raper’s trailer to Beck’s van and moved it to
nearby 5223 Elm Street. A group of men, including Beck,
Cruz, Vieira, and LaMarsh, then pushed Raper’s car off the
property. The car was then set on fire.
Tanya Miller, Michelle Evans’s younger half-sister, had
previously lived with Evans at 5223 Elm Street. In April 1990,
while Miller was still living at 5223 Elm Street, she received a
30-day eviction notice. She left her furniture in the house and
moved in with Evans at their grandmother’s house. She
received a three-day notice shortly before the murders, became
anxious to move her furniture, and asked Evans to help her
move.
On Friday, May 18, 1990, about 9:00 p.m., Evans, Cruz,
Beck, LaMarsh, Willey, and Vieira went to 5223 Elm Street to
move out furniture. Cruz brought a 12-pack of beer and shared
it with everyone there, including victims Colwell, Ritchey,
Raper, and Paris. Raper and LaMarsh spoke for about
10 minutes and then briefly engaged in a fistfight. Beck and
Willey then started wrestling with Vieira. No furniture was
moved. After 45 minutes to an hour, Evans and the others
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returned to the Camp. Later that night, Colwell visited the
Camp and was beaten by Beck, Cruz, LaMarsh, Willey, and
Vieira before being permitted to leave.
b. Events on May 20 and May 21, 1990
Around noon on May 20, Smith visited Raper at
5223 Elm Street. Victims Ritchey and Colwell were also there.
Sometime between 1:00 p.m. and 3:00 p.m., Smith observed
LaMarsh visit the neighbor next door to Raper.
Sometime on the evening of May 20, Vieira visited Cruz’s
next-door neighbor, Dee Ann Messinger; Vieira was dressed in
camouflage clothes, a dark ski cap that resembled a cap found
at the murder scene, and black boots. He was carrying a silver
or gray bat that resembled the color and length of a bat found
at the murder scene and asked to borrow spray paint.
Around 6:00 p.m. on May 20, Evans visited the Camp.
Cruz asked Evans to draw a floor plan of the house at
5223 Elm Street. As she did so, Cruz sharpened a Ka-Bar
knife, a fixed blade about 10 inches long with serrations on one
side. Cruz also told Evans to call her half-sister Miller and
“tell her not to go home tonight.”
Late at night on May 20, Patricia Badgett was visiting
her boyfriend Willey when he received a telephone call from a
person who sounded like Cruz. Willey lived in Ceres and had
shoulder-length hair. Willey asked Cruz, “Can we move a
different day?” and explained he did not feel well. Willey left a
few minutes later.
Later that evening, Evans, Cruz, Beck, LaMarsh, Willey
(whose hair was in a ponytail), and Vieira gathered in
LaMarsh’s trailer and were given assignments of what to do at
5223 Elm Street. Everyone but Evans and LaMarsh was
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wearing camouflage clothing. Cruz pointed to Evans’s floor
plan, gave each person a specific entrance and time to enter,
and said they should “go and do them all and leave no
witnesses.” Evans understood “do them all” to mean kill them
but did not believe Cruz was serious. Evans was to “count the
people and get them in the living room,” and then open the
back bedroom window for Beck and Vieira. Cruz said if
“anyone didn’t do their job right, they would join the people in
the house.” Cruz also said that if Little Debbie was there,
“she’s his,” and that he hoped Fat Cat was there. Cruz handed
out four paintball or camouflage masks to Beck, Willey, Vieira,
and himself. Cruz said that handguns would not be used
because they were “too noisy.” There was no discussion of
moving furniture.
Around midnight, Evans, Beck, Cruz, LaMarsh, Willey,
and Vieira, who were carrying weapons, drove to 5223 Elm
Street. Evans and LaMarsh were dropped off, and the others
parked the car. Evans entered the home and then from a
window observed Beck, Cruz, Willey, and Vieira running
toward the house wearing masks. Vieira also wore a dark ski
cap. Beck and Vieira entered the house through the window
where Evans was standing. Beck and Vieira ran toward the
living room, and about 30 seconds later Evans heard Paris
screaming, “Oh, God, oh, God,” and “I didn’t do it, I didn’t do
it,” and pleading for her life. Evans left the house and went to
the car. On the way, she saw Willey sitting on the back of a
person lying facedown in the street; Willey and Cruz, who had
a baton, did something to this individual.
Donna Alvarez, who was homeless and had been offered
a place to stay at 5223 Elm Street on May 20 by victim
Ritchey, fell asleep in a back bedroom around 8:00 p.m.
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Alvarez was awakened around midnight by a woman she now
knew as Evans, who said Evans’s sister needed the bedroom
and Alvarez had to get up. Alvarez went into the living room
and asked Raper if there was anywhere else she could sleep.
He said she could sleep wherever she liked, so Alvarez, joined
by Ritchey, went into the other bedroom. A man, whom
Alvarez later identified as LaMarsh, was holding a silver gun
and said, “Everyone into the living room.” Alvarez ran and hid
under clothes in the garage. She heard people “wrestling” and
a woman scream. She managed to push up the garage door
and escape, and sought help from a neighbor who called the
police.
Around midnight, Earl Creekmore, who lived near
5223 Elm Street, heard someone running next to his house and
then a loud bang on his air conditioner. Creekmore went
outside to investigate. He saw two men “beating up on one
guy” on his knees in the street; the victim was screaming, “Oh,
God, help me.” The victim also said, “No, stop, please don’t.”
The assailants were kicking the victim in the ribs and
punching him in the back of the head. One assailant, whom
Creekmore identified at trial as Willey, had a ponytail that
reached the middle of his back. The other, whom Creekmore
identified at trial as Cruz, was heavyset and wore a red
baseball cap.
Creekmore asked the men what was going on, but they
did not respond. Cruz went into the house at 5223 Elm Street
and then immediately returned to the street. By this time, the
beating victim had fallen over and was lying motionless on his
back in the street. Cruz straddled the victim, picked him up by
his shirt, and “made a cutting motion on his throat.” The
victim made a gurgling sound. Creekmore started to leave,
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looked back, and saw Willey swinging what appeared to be a
two-by-four over his head. Creekmore returned home, and his
roommate called 911.
Also around midnight, Kathy Moyers arrived at a friend’s
home, located across the street from 5223 Elm Street. She saw
three people “scuffling” on the shoulder of the street. One
person appeared drunk because he was falling down. When
she exited her car, she heard the man on the ground saying,
“Please don’t, no, please,” and “please, no, help me, stop.” He
was on his knees, and the other two were standing over him.
The other two persons were reaching for the fallen man to pick
him up. One of the assailants had broad shoulders, weighed
about 260 pounds, and was about five feet eight inches tall. He
had on a ski cap and resembled Cruz in size and shape. The
other assailant was smaller, about five feet five inches tall, 145
to 160 pounds, with a light-colored ponytail, and resembled
Willey in size and shape. Moyers called the police. She then
saw the body lying in the street and the assailants entering the
house at 5223 Elm Street.
About four minutes later, Moyers observed four persons
leave the house, including the two assailants and two men
similar in build to Beck and LaMarsh. They were all dressed
alike in heavy, dark clothing, and they wore ski caps similar to
one found at the crime scene. They looked at the body in the
street and walked toward the tracks.
Around 12:45 a.m. on May 21, William Duval, the rental
manager for 5223 Elm Street who lived nearby the home, was
awakened when something hit his bedroom window. He saw a
woman crawling on her hands and knees across his lawn. He
went outside and a few minutes later observed four men
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leaving 5223 Elm Street in single file, going east “double-time”
or “trotting.” They all appeared to be dressed the same. The
two men at the front of the line were six feet to six feet two
inches, and weighed about 165 pounds. Beck’s and Willey’s
physical builds were consistent with these men. The third
man was five feet ten inches to six feet tall and heavyset,
weighing about 350 pounds. Cruz’s physical appearance was
consistent with this man. The last man was much shorter and
had a darker complexion than the other men. LaMarsh’s
general physical build was consistent with the last man.
LaMarsh and Vieira had the same complexion, but Vieira was
a bit shorter. The men held their hands at “port arms
position,” or one hand on the chest, and the other toward the
shoulder; Duval could not tell if they were carrying anything.
When Beck, Cruz, LaMarsh, Willey, and Vieira returned
to the car where Evans was waiting, Beck was covered in blood
and carrying a bloody knife, Cruz had blood on his hands, and
LaMarsh’s bat was bloody. The group drove to Willey’s home
in Ceres. On the way, LaMarsh said he did not think Raper
was dead, and Beck replied, “He’s dead. I saw his face crumble
as I was walking out the door.” Beck also said it was a “waste
that they only got three dudes and a chick.” Willey said,
“Someone watched us do” or kill “the guy in the front yard,”
and Cruz became angry because they did not kill the person
watching. Vieira said he had thrown away the Ka-Bar knife,
his bat, and the baton. LaMarsh wanted to throw his bat out
the window, but Cruz said he should keep it. Cruz was
disappointed Little Debbie and Fat Cat had not been there
because he would have liked to kill them.
When the group arrived at Willey’s house, everyone but
Evans and LaMarsh laundered their clothes. Vieira said he
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left his hat at the crime scene, and Vieira and Willey said they
had left their masks. Cruz directed Vieira to clean the blood
off Cruz’s shoes and from the car. The remaining masks and
weapons were put under Willey’s house. Willey later moved
the weapons from this location.
Evans subsequently asked LaMarsh what he saw inside
the house, and he appeared frightened and said, “Missy, it was
the worst thing you ever want to see.” LaMarsh described
Raper raising his arm and LaMarsh then hitting Raper with
the bat and breaking his arm. LaMarsh also said he had
knocked down with the bat three individuals who were
attempting to flee the home.
About 1:00 am on May 21, 1990, Stanislaus County
Deputy Sheriff Charley Corle received a call regarding an
assault in the area of Elm and Mason in Salida. He arrived
about four minutes later, saw an ambulance next to a body
lying in the street, and was directed by Alvarez to 5223 Elm
Street. A blood-stained camouflage mask was found between
Ritchey’s legs, and a dark knit cap and a second camouflage
mask were found on the front lawn of 5223 Elm Street. Shoe
prints in the gutter area in front of the house were the same
size and type as shoes belonging to Evans.
Found nearby in a field and in the same general area
were a metal baton, a bloody aluminum bat, and a Ka-Bar
knife. About 15 feet from the knife was a knife sheath.
c. Additional evidence linking Beck and Cruz to
the murders
Shortly after the murders, Beck told an acquaintance,
Phillip Wallace, that “we” or “I” “slit some throats.” Wallace
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was shocked and said something like, “You’re not serious.”
Beck smirked.
Sylvia Zavala worked at Crescent Supply Company, an
Army surplus store in Modesto that Beck and Cruz had
previously visited. On February 27, 1990, Zavala showed Cruz
camouflage masks that were similar to one found at the
murder scene. A store receipt for the purchase on that date of
four masks and camouflage clothing was found in Cruz’s home.
Sometime after February 27 and before March 13, Cruz
purchased 16-by-16-foot camouflage netting. On March 13,
1990, Cruz purchased a Ka-Bar knife similar to one found at
the murder scene; a receipt for the purchase on that date of
two knives was found in Cruz’s home.
Steve Miller worked at Gun Country, a retail gun shop in
Modesto. Cruz and the prosecutor stipulated that several
weeks before the murders, Cruz purchased the police baton
found at the murder scene. Cruz was accompanied by Beck.
The parties also stipulated that Exhibit No. 87, a .380-caliber
weapon that resembled the gun Alvarez saw LaMarsh holding
on the night of the murders, was purchased on July 25, 1989
and registered to Beck.
Dr. William Ernoehazy, a pathologist, performed
autopsies on Raper, Colwell, Paris, and Ritchey. Raper had
suffered extensive and fatal head injuries by a blunt force
instrument, most likely a baseball bat but possibly a baton.
The outline of his head and his facial features were distorted,
and bone fragments had been driven deep into his brain. He
had also been stabbed in the neck, with his right carotid artery
and larynx cut, and his left arm was broken.
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Colwell had suffered a skull fracture, cut and stab
wounds to his face, multiple stab wounds to his skull, stabbing
and slicing wounds to his neck that cut his jugular vein,
carotid artery, and larynx, a slicing wound to his liver, stab
wounds to his chest, and defensive wounds to his left hand.
The cause of death was stab wounds to the neck and abdomen.
Paris had suffered multiple contusions and lacerations of
her scalp from a blunt force instrument, stab wounds to her
neck and chest, and defensive hand wounds. The cause of
death was a severed throat, a wound that cut her carotid
vessels, jugular vein, and larynx, and extended down to her
spine.
Ritchey had suffered stab wounds to his neck, back,
abdomen, and liver, and multiple defensive wounds on his
hands. There were slicing wounds of his heart and pulmonary
artery that caused extensive hemorrhaging in his chest cavity.
His jugular vein, windpipe, and carotid artery were cut; these
wounds extended down to the cervical vertebrae. Either the
stab wound to his chest or his severed neck would have caused
death.
Department of Justice Crime Laboratory Criminalist
Marianne Vick testified that blood on the baton was consistent
with Colwell’s blood, blood on the bat and the Ka-Bar knife was
consistent with Paris’s blood, and blood on one of the
camouflage masks was consistent with Ritchey’s blood.
2. Defense evidence
Cruz, Beck, LaMarsh, and Willey each testified in their
own defense.
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a. Cruz
1. Cruz’s testimony
Cruz denied killing anyone on the night of May 20, 1990,
or conspiring to kill anyone on May 20 or in the preceding
days. On cross-examination, Cruz testified that in January
1990, Raper’s trailer appeared at the Camp about 50 feet from
Cruz’s home. Fat Cat, Little Debbie, and Colwell frequently
visited Raper. Raper was verbally abusive and uncooperative,
and Cruz was disturbed by the frequent fights and visible drug
use.
Raper had been arrested for tearing down Cruz’s fence.
Raper threatened Cruz by giving him an “evil eye” and saying,
“Better not press charges.”
Cruz, Beck, and others moved Raper’s trailer out of the
Camp after a child was seen playing with a discarded syringe.
After Raper left, his car was moved out of the Camp and
burned, but Cruz denied involvement.
Sometime after Raper’s car was burned, Raper — while
on the other side of a fence from Cruz — pulled a knife on Cruz
in front of Jennifer and Cruz’s children and told Cruz “he was
going to kill” him. Cruz could not recall whether he had
reported this incident to the police. Raper returned to the
Camp several times after making the threat. On one occasion,
he stood at the end of the driveway and yelled obscenities
“towards” Cruz and said he would kill Cruz “pretty soon,”
“[m]aybe today,” “[m]aybe tomorrow.” Raper then crossed the
street, stood completely still, and watched Cruz for a long time.
Cruz did not recall reporting this incident to the police.
About a month before May 20, 1990, Cruz began to hear
that the Camp might encounter problems with Raper’s biker
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friends. In response, Cruz, Beck, and Vieira performed armed
patrols of the Camp perimeter. Cruz reported this information
at some point to the Sheriff.
Before the murders, Cruz had been to 5223 Elm Street
once. A week or some days before the murders, he went to the
home with Beck, Evans, Willey, LaMarsh, and Vieira to help
move a refrigerator and furniture; the group brought a 12-pack
of beer as a goodwill gesture. At different points during the
visit, Raper, Colwell, Ritchey, and Paris were there, as well as
Little Debbie and a woman named Diane Kiernan. Cruz
denied Colwell was beaten later that night.
On the evening on May 20, Evans told Cruz she needed
to retrieve some clothes, including a bridal gown that was an
heirloom, from 5223 Elm Street, and wanted Cruz and others
to accompany her for protection. Evans did not draw a
diagram of the house. Also that evening, Evans told Cruz that
Raper had threatened to kill Cruz and her, and said that
“Raper was sharpening knives.” Evans used “crank” (i.e.,
methamphetamine) and greatly disliked Raper and Paris.
Around midnight, Cruz, Beck, LaMarsh, Willey, Vieira,
and Evans, some of whom were armed, drove to 5223 Elm
Street. Cruz saw no one with a gun, black watch cap, or mask.
Cruz dropped off Evans and LaMarsh near 5223 Elm
Street and then parked where his car would not be noticed by
Raper’s friends. Beck, Willey, and Vieira got out of the car and
suddenly started running toward the victims’ house. Cruz
heard someone say something like “what’s up” and “he’s gone
crazy.” He assumed at the time of his testimony this had been
Earl Creekmore. Cruz exited the vehicle and started walking
with a cane toward the house. He saw Willey and a person he
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later learned was Ritchey fighting in the middle of the street.
They were “rolling around, socking each other.” Cruz told
Willey, “Let’s go,” but Willey and Ritchey continued fighting.
Cruz entered the house and saw Raper sitting in a chair
“look[ing] like what’s on the film”; he did not move and did not
look to be in “good shape.” Cruz’s attention was diverted by
Beck pulling Colwell off Vieira and throwing him. Cruz told
Beck that somebody was “out there by Ron,” and Beck ran out
the front door. Vieira and Colwell continued fighting. Cruz
yelled, “Let’s go now,” and Evans “pop[ped] up” from behind
the counter. Vieira pulled out his Ka-Bar knife, and Cruz
turned away. Cruz asserted he was not physically capable of
fighting another individual on the night of the murders and
denied stabbing any of the victims, hitting Raper on the head,
or directing Vieira to cut Paris’s throat.
Cruz left the house, and later the entire group returned
to the car and drove off; Willey asked to be taken home. There
was no conversation. At Willey’s house, Cruz saw blood on
Evans’s face, and her hair was matted. Cruz denied he
“order[ed] anyone about” and specifically denied ordering
Vieira to clean blood off Cruz’s shoes or to clean the blood out
of the car on the night of the murders.
Cruz called Jennifer and told her to get out of town and
to meet him at an Oakdale hotel. Cruz, Beck, and Vieira left
Willey’s house and joined Jennifer at the Oakdale Motel. Cruz
did not call the police to report what had happened because he
would then “be involved.”
Cruz met with Stanislaus County Sheriff’s Detective
Gary Deckard on May 21, 1990 and denied being at 5223 Elm
Street on the night of the murders. Cruz asserted he did not
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believe in the use of deadly force except in self-defense. He did
not like violence and did not want to see anybody get hurt.
2. Physical evidence
Detective Deckard testified he had seized Cruz’s cane
from him, visually inspected it, and saw no evidence of the
presence of blood.
Apparently in an effort to demonstrate that Cruz did not
match witness descriptions of the perpetrator, Stanislaus
County Sheriff’s Detective Darrel Freitas testified that at the
time of his arrest, Cruz weighed 350 pounds.
Stanislaus County Deputy Sheriff Michael Dulaney
testified he arrived at 5223 Elm Street at about 2:30 a.m. on
the morning of May 21, 1990. He did not bag the hands of
Raper, Paris, or Colwell because the coroner said that it was
unnecessary to do so. He did not collect into evidence a knife
with food particles found in the kitchen because it appeared
unrelated to the murders. Deputy Dulaney also attended the
autopsies of the four victims and did not observe the
pathologist taking fingernail scrapings.
3. Prior witness statements
Detective Freitas testified that when he spoke to Kathy
Moyers on May 21, 1990, she told him that all of the
individuals she observed were large and wearing dark clothing.
Moyers was with another person and appeared hesitant to
speak with Detective Freitas. Earl Creekmore said that he
saw two individuals, and one was larger than the other. One
had a long ponytail, was about six feet one inch tall, and
weighed about 170 pounds, and was beating someone on the
ground. The other was about six feet three inches tall,
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weighed about 250 pounds, had short hair, and was wearing a
baseball cap.
4. Evans impeachment
Detective Deckard testified he had interviewed Evans
four times. On October 12, 1990, after Evans reached a plea
agreement with the district attorney’s office, she made a
complete statement to Detective Deckard. After testifying at
the preliminary hearing, Evans called Detective Deckard to
say that she now recalled she had been carrying a small
survival knife on the night of the murders. Evans appeared
concerned this information might affect her plea bargain.
Michelle Mercer, who was 18 years old, testified that she
had known Evans for 10 to 15 years, and that Evans was “not
well liked in the community” and had a reputation for violence
and dishonesty. About a week before the murders, Mercer had
observed Evans and Paris partially undressed and kissing. In
June 1991, Evans told Mercer she had been involved in killing
Paris and described in detail to Mercer “how they sliced
[Paris’s] throat and she loved every minute of what Raper got.”
Evans said she had “watched Franklin die, and . . . it was kind
of neat.” Evans was concerned that Mercer was going to
assault Evans’s little sister and threatened Mercer, saying that
she “still had friends out there that could take care of [her]
too.”
James Richardson testified that Evans had been a friend
since childhood. In May 1990, Evans told Richardson that she
had watched the murders the night before and had laughed as
she did so. She also said she had planned the murders.
Richardson said Evans had a reputation for being untruthful
and “exaggerated a lot.”
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Stanislaus County Sheriff’s Detective Mark Ottoboni
interviewed Evans on May 22, 1990, and she appeared to be
under the influence of Valium or alcohol. Evans said on the
night of the murders she had seen Paris hiding under the
kitchen table. Someone approached Paris who was of small
stature, was of Mexican descent, and was wearing camouflage
clothing and a mask. Evans also said that Colwell was beaten
up outside and that Beck was not at 5223 Elm Street during
the murders. Evans made several conflicting statements
during this interview. At some point Detective Ottoboni
caused Evans and Beck to be placed in a room together and
surreptitiously observed they had a whispered discussion
about the murders.
5. Raper
Cruz introduced certain testimony regarding alleged
illegal activity by Raper, apparently to demonstrate that Raper
could be violent. On April 16, 1990, at about 9:45 a.m.,
Stanislaus County Deputy Sheriff Bryan Grimm met with
Cruz at 4510 Finney Road and took an initial report of a
disturbance. Deputy Grimm returned later that day in
response to a call, and Cruz showed him a damaged fence.
Cruz made a citizen’s arrest of Raper, and Deputy Grimm
accepted the arrest and took Raper to jail. Deputy Grimm was
required to accept a citizen arrest regardless of its validity.
Raper told Deputy Grimm he had the money to post bail, and
he could then “be back on the street to harass” Cruz. Raper
was not hostile or violent in any way to Deputy Grimm.
In about February 1990, Robert Bowers, who had rented
Cruz the studio apartment at the Camp, hired Cruz to manage
the Camp. Cruz did not collect rent and was not authorized to
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evict Raper. Raper did not have a lease agreement with
Bowers. Bowers received complaints about an unauthorized
trailer at the Camp, but did not know the occupant, and took
no steps to remove it. On cross-examination, he testified he
did not know Beck, Vieira, and LaMarsh were living there, and
their trailers would have also been illegal.
Greg Boynton had an automotive repair store in Salida.
At some point Raper moved his trailer onto a vacant lot next to
Boynton’s business. Raper was about 50 years old, about five
feet seven inches tall, and weighed about 100 pounds. Raper
and Boynton had an altercation in which Raper spoke
disrespectfully about Boynton’s father, and Boynton pushed
Raper down. Several days later, on October 13, 1989, Raper
and another man, perhaps named Fat Cat, arrived in a vehicle
and confronted Boynton, saying Fat Cat was going to kill
Boynton. Raper and Fat Cat then spun donuts in the vacant
lot until their car stalled, and they were beaten by Boynton
and his father James Boynton. James Boynton then had
Raper’s trailer moved. Thereafter he saw Raper frequently in
Salida. Raper said that “he was going to get” James Boynton
and would “holler or cuss” at him, making insulting gestures.
On August 18, 1989, about 4:00 a.m., Stanislaus County
Sergeant Jane Irwin encountered Raper sitting in his car in
Salida. She observed a knife handle and, when backup
arrived, she removed Raper from the car and searched it.
Raper was belligerent, refused to put his hands up, and told
officers to “[g]o ahead and shoot me.” He was carrying an ice
pick, and a razor and knives were found in his car. He did not
resist arrest.
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b. Beck
Beck testified he was close friends with Cruz and Vieira
and had lived with Rosemary M. in Oakdale. On May 20,
1990, Beck was 34 years old and weighed about 260 pounds.
That evening at the Camp, Evans told Beck and Cruz
that she had gone to 5223 Elm Street earlier to retrieve certain
items. Raper refused to let her take the items and said he and
his friends were going to go to the Camp and kill Evans and
those with whom she associated there. “A little later” Beck
drove to Ceres and picked up Willey to “help us protect
ourselves.” They returned to the Camp about 11:30 p.m. and
found Cruz, Evans, LaMarsh, and Vieira there. Evans said it
was urgent she retrieve a wedding gown and other clothes from
5223 Elm Street and asked that someone accompany her so
that Raper would not again interfere. There was no discussion
of “leaving no witnesses,” and no weapons were distributed.
No map of 5223 Elm Street was drawn, nor did Evans orally
describe the house layout.
The entire group went “in case something happened, so
they wouldn’t be caught so then they couldn’t get out.”
Although Beck was concerned for his life, he was not armed
when he and the others went to the Elm Street house.
Evans and LaMarsh were dropped off at the Elm Street
house and left the car carrying bats. After the car was parked
in a different location, Beck, Vieira, and Willey got out and
began walking toward the house. They heard a girl scream,
and the three men ran toward the house. When Willey, who
was ahead of Beck, reached the yard, he was confronted by a
man and they began to fight. Beck followed Vieira into the
house and observed LaMarsh holding a baseball bat and
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standing in front of Raper. Raper was sitting down and Beck
watched his body “slump[] down.” Beck was “shock[ed],” stood
there briefly, and then moved toward noises in the house. He
saw Vieira and Colwell struggling. Vieira’s back was on the
floor, and Colwell was on top of Vieira. Beck hit Colwell
“pretty good” a “few times” on his back and then threw him
several feet into the cupboards. Beck observed Evans on top of
victim Paris, punching her.
Cruz said someone was “out there by” Willey, so Beck ran
outside. He observed Willey “standing over there by a guy
laying down there on the ground,” and “some guy walking off.”
Beck told Willey, “Let’s go,” and Willey started running to the
car. Cruz exited the house, and he and Beck walked back to
the car. Evans and Vieira ran past them. No one walked in
single file. Beck and Cruz were the last members of the group
to return to the car. They drove to Willey’s house. Beck denied
saying, “[O]nly three guys and a chick, what a waste,” having a
bloody arm, or waving around a knife. He saw no weapons,
other than the bats, and no blood on anyone. Beck had never
seen Cruz run, and he did not run the night of the murders.
Beck did not know anyone had died on Sunday night until late
Monday morning or early afternoon.
Beck denied killing anyone, cutting anyone’s throat, or
doing anything wrong on the night of May 20. Beck was
present, but denied fighting with victim Colwell when Colwell
visited the Camp two nights before the murders. He denied
telling Phillip Wallace he had cut someone’s throat. He
identified a mask found at the crime scene as the type of mask
he had seen in Cruz’s home.
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Beck was arrested the night after the murders. He was
untruthful in his statement to police because he did not want
to “get [his] friends in trouble.”
c. LaMarsh
LaMarsh testified that he met Beck, Cruz, and Vieira
about two months before the murders. Soon after, while at the
Camp, LaMarsh heard someone yelling and saw Beck standing
at attention with Vieira standing at attention behind him, and
Cruz next to Beck. Cruz yelled at Vieira that he was “going to
have to learn more responsibility.” Cruz then said, “Okay,
Dave,” and Beck “socked” Vieira. Vieira “doubled over and fell
on the ground,” and Beck said, “Get up.” Vieira stood up and
was crying.
Cruz, Beck, and Vieira appeared to be a survivalist
group. During LaMarsh’s first conversation with Cruz, Cruz
showed him about 30 weapons. Cruz, Beck, Vieira, and Willey
invited LaMarsh to their group by having LaMarsh cut himself
and leave a bloody print on a piece of paper. About the time
Cruz had Raper arrested for pulling up a fence signpost, Cruz
told LaMarsh, “[I]t would be a lot easier if they had just went
in the trailer and did him” or killed Raper “than going through
all this hassle.”
On the night of May 20, LaMarsh returned to his trailer
about 11:30 p.m. Cruz, Evans, and Vieira visited, and Evans
said they were going to 5223 Elm Street so that Evans could
retrieve some of her clothes and items that belonged to her
half-sister Miller. Evans asked LaMarsh to accompany her
into the house. LaMarsh brought a bat in case “there was any
problems,” along with a gun Cruz had lent him two weeks
earlier. LaMarsh did not agree to beat anyone up. He was told
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“nothing about murder” or that “they were going to kill
anybody.”
Once at 5223 Elm Street, LaMarsh encountered Raper
and broke his arm in self-defense. Cruz then hit Raper several
times on the head with his baton. LaMarsh saw Beck stab
Colwell in the stomach. LaMarsh fled out a window because
“all hell had broken loose and these guys were in there doing
serious shit.”
After the murders, in the car on the way to Willey’s
house, Cruz asked Evans how many people were in the house,
and she said there were five. Cruz asked Beck, “Well, how
many did we get?” Beck said, “Four,” and Cruz said, “Fuck,”
and was angry that one person had escaped. Cruz then asked
Beck, “[W]ho all did we get?” Beck replied, “Dennis [Colwell],
some dude, a chick, and Frank [Raper].” Cruz said, “[T]hey’re
all dead, aren’t they?” Beck replied, “Yeah.” LaMarsh said,
“Well, Frank [Raper] ain’t dead.” Beck laughed and said:
“He’s dead. I seen his face crumble on the way out the door.”
At Willey’s house, Cruz ordered Vieira to clean the blood
off Cruz’s shoes and to clean the car; Vieira did so. Beck had
fresh scratches on his stomach. Cruz told Beck, “We’re going to
have to get an alibi.”
Rosemary testified she had known Beck and Cruz for
about seven years and Vieira for about five years, and she had
lived with them for about two years. Rosemary and Beck had
been romantically involved. Beck and Cruz told Vieira what to
do, and Vieira would do it “on command” and be “very
obedient,” including standing at attention for long periods of
time. Cruz was the leader, even when Beck, Cruz, and
Rosemary lived in Beck’s home, and Beck and Rosemary
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obeyed him. Beck and Jennifer were allowed to object, but
Rosemary had never seen Beck refuse to do something Cruz
wanted him to do. Beck and Cruz would not “physically hurt
anybody” but would “tell them that’s the way it was going to
be.” Rosemary, Beck, Vieira, and a man named Steven Perkins
were the ones in the household who were employed, but Beck
and Cruz received all of their earnings. Beck, Cruz, and Vieira
were nice to LaMarsh to get him to join their group, and
Rosemary had observed them attempt to similarly recruit
other members.
On the evening of May 20, 1990, Cruz called Rosemary
and asked that she and her boyfriend, Phillip Wallace, come
over, and that Rosemary stay with Jennifer. He said, “[T]he
guys were going to go even a score, get in a fight” at a house
“on the other side of the park there” in Salida. Cruz said he
wanted to settle a score with Fat Cat.
The following evening, Beck visited Rosemary. Beck was
wearing brand new sneakers. When asked by the prosecutor
whether Beck had mentioned doing anything to the people who
were killed, Rosemary testified that Beck said, “[T]hey had to
do them.” Beck also said Vieira had been ordered to clean the
blood off “everybody’s shoes at Ron Wi[l]ley’s house.” He
smiled and said he had purchased new shoes because his were
covered in blood and he could not get them clean.
d. Willey
Willey testified he had known Beck and Cruz since 1985.
In 1986 he attended a one-year trade school in Phoenix, and
when he returned to California in 1987, his relationship with
Beck and Cruz had changed. Beck and Cruz were “best
friends,” Cruz “was the one that was running the show,” and
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Beck “always did whatever [Cruz] said.” Cruz told Vieira how
to act, when he could go to bed, and what he could do when he
was awake. Beck, to a lesser extent, also gave orders to Vieira.
If Vieira did not act as expected, Beck would slap him on the
back of his head or punch him in the stomach. Sometimes
Cruz told Beck to inflict pain on Vieira.
In the beginning of May 1990, Cruz called Willey and
invited him over to the Camp. Willey had not had any contact
with Cruz for about eight months and did not know where he
lived. At some point after Willey arrived, a group including
Willey, LaMarsh (whom Willey met that night), Beck, and
Cruz, gathered in a small trailer. Cruz had LaMarsh sign a
piece of paper, cut his hand and place a bloody fingerprint on
the paper, and said that he was joining their group. Willey
had engaged in a similar ritual in 1985.
On May 20, about 11:15 p.m., Cruz called Willey and
asked him to help move furniture from 5223 Elm Street. After
they arrived at the home, Willey had a fistfight with Ritchey
outside. Beck suddenly knocked Willey off Ritchey, fell on
Ritchey, and slit Ritchey’s throat. Later at Willey’s house,
Evans and LaMarsh appeared nervous and frightened. Willey
did not kill anyone and did not know anyone was going to be
killed that night.
3. Rebuttal
Stanislaus County Sheriff’s Lieutenant Myron Larson
testified he searched Cruz’s home on May 21, 1990 after the
murders but did not find a Ka-Bar knife or camouflage masks.
Detective Deckard similarly testified that he had examined all
the evidence found in Cruz’s home, and there were no masks.
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4. Cruz surrebuttal
Pete Rarick testified he had previously been married to
Rosemary. Rosemary had lied to Rarick, and he did not trust
her.
B. Penalty Phase
Many of the testifying individuals shared the same
surname, so for clarity, we use first names to identify certain
witnesses.
1. Prosecutor’s case against Cruz
Jennifer, Cruz’s former girlfriend and the mother of his
three children, testified. Jennifer met and moved in with Cruz
in 1987 when she was about 16 years old and he was 25 years
old. Jennifer had known Vieira and Steven Perkins, another
person who had lived with Jennifer and Cruz, for about the
same amount of time she had known Cruz. On about
25 occasions between 1987 and 1990, Cruz made Vieira stand
in the middle of the room and punched him in the stomach as
hard as he could. Cruz told Vieira to “stand still and take it.”
Cruz performed a similar ritual about 50 times against
Perkins, at least once causing injuries that sent Perkins to the
hospital.
Cruz also on several occasions and without warning used
a Scorpion stun gun on Vieira; Vieira would scream and jump.
Cruz twice used the stun gun on Jennifer. Cruz once placed a
loaded long-barreled rifle in Rosemary’s mouth and threatened
to kill her. On that same occasion Cruz also placed the rifle in
Jennifer’s mouth and asked, “Are you going to get your shit
together or are you going to die?”
On January 6, 1990, when Jennifer was about two
months pregnant, Cruz pushed her to the ground. He then
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kicked her in the stomach and between her legs, causing
bleeding. Jennifer fled barefoot and without a jacket to a
woman’s shelter for four days. Cruz asked Jennifer to return
and was kind to her, so she moved back in with him.
During their relationship, Cruz struck Jennifer about
100 times with a cane or other object. Whenever Cruz thought
Jennifer had “got[ten] out of line” or the couple fought, Cruz
would threaten to kill her. Cruz also told Jennifer the “only
way out of this relationship is when one of us dies.”
Cruz hit their infant daughter A. on her legs or bottom
with a fly swatter or a ruler. When A. was less than six
months old, Cruz punished A. by placing her in a dark room
and allowing Jennifer to feed, hold, or change her only every
six hours. When Jennifer objected to this treatment, Cruz beat
her. When A. was less than a year old, Cruz would suspend
her in a halter in the middle of a device he called the “rack,”
and attach to her legs Mason jars filled with water. He would
then make her cry so that her legs would go up and down.
Cruz also gave their daughter “clappings” in which he would
slap the back or side of her head with his open hand leaving
bruises on the inside of her ears. When A. was learning to
walk, Cruz found it humorous to ask A. if she wanted a
clapping, and watch her respond by falling to the ground and
hiding her head between her hands.
On cross-examination, Jennifer testified that at some
point after Raper had been moved out of the Camp, he had
returned and threatened to kill Cruz. On the night of May 20,
Evans told Cruz something similar to that “Raper was coming
over that night with some people to wipe everybody out.”
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The parties stipulated that an agreement had been made
between Jennifer and the district attorney’s office that if
Jennifer testified truthfully in various proceedings, including
the Cruz penalty phase, two felony cases pending against her
would be dismissed.
2. Cruz defense case
a. Family and friends
Cruz and several of his relatives testified on his behalf,
and their recollections of his childhood and identification of
who was in which familial role were at times inconsistent.
Cruz presented evidence that he had been confused while
growing up as to who his biological parents were and that he
had experienced several situations in which he was
disappointed by the response of medical or law enforcement
personnel.
Cruz was born in Modesto in March 1962. Hortencia
Cruz, Cruz’s mother, testified that his father was Ausencio
Cruz. Because Ausencio had gone to Mexico and had not
returned, Hortencia put the name of a friend — Lawrence
Jimmy Cox — on Cruz’s birth certificate. At that time, the
family lived on a ranch in Oakdale owned by Drummond
Augustus Sproul and performed chores for him, apparently in
exchange for housing.
When Cruz was a young boy, he was told by Jesus
Hernandez, Hortencia’s former husband, that Ausencio was
not his father and that his father was a “drunk.” Cruz then
confirmed with Hortencia that she was his mother, and said,
“Well, as long as I know who my mother is, I don’t care who my
father is.”
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Hortencia worked hard to provide for her children, and
Cruz never went without food or clothing. Hortencia and
Ausencio raised Cruz to tell the truth and to know right from
wrong. He rarely misbehaved or was physically disciplined.
He enjoyed playing with the many sheepdogs on the ranch and
running through the fields. He and Ausencio played together
and would “come home happy and laughing.” Cruz enjoyed
reading throughout his childhood.
Ausencio Cruz testified that he married Hortencia in
1961. Cruz was Ausencio’s only child. He learned he had a son
when Cruz was two years old. When Ausencio returned from
Mexico, Cruz had a different last name, so Ausencio was
advised to adopt him. He was not advised to get an amended
birth certificate.
Ausencio and Cruz were very close, and Ausencio
watched him play Little League Baseball, took him to Oakland
Athletics’ baseball games and to the movies, and taught him
how to drive. Ausencio did not believe Cruz had “anything to
do with all of that,” apparently referring to the capital crimes,
and if he did, Ausencio would “love him more.” If Cruz
received the death penalty, Ausencio would “feel like dying.”
Esperanza Hope Castillo Cruz (Hope), Cruz’s half-sister,
also testified that Hortencia was Cruz’s biological mother and
Ausencio was his biological father. When Cruz was born, Hope
was about 21 years old and a partner in a restaurant. The
family ran the restaurant for five or six months from 1961 to
1962 and during the day kept baby Cruz in a bun drawer.
After they left the restaurant, the family worked picking fruit
in Fresno from 1962 to 1964 and slept on a mattress placed
next to their car.
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Ausencio returned from Mexico and was surprised to
learn he had a two-year-old son (Cruz). When Cruz was about
three years old, the family settled in Oakdale on Sproul’s
ranch. They worked on the ranch and it was a “beautiful time”
for the family. Sproul loved Cruz and spent significant time
with him. In 1970, the family purchased a large trailer to live
in on the ranch and, in 1976, purchased a house in Oakdale.
When Cruz was about six months old, Hope dropped him
and he hit his head on a concrete porch. He cried, had a bump,
and was uncomfortable that day. They could not afford to take
him to a doctor. Hope did not observe any lasting effects other
than that Cruz was not interested in taking a bottle for an
unspecified period of time. When Cruz was about four years
old, he went through a windshield when the car in which he
was riding stopped suddenly. He was stunned and weak after
the accident. The family thought he was “okay” and did not
consider the injury serious.
Hope had seen Jennifer frequently slap A. and once
throw her outside. Hope had never seen Cruz mistreat A.
Hope did not believe Cruz had done “these terrible acts,”
but even if he had, she would still love him.
Marlene Hernandez, Cruz’s half-sister, testified she was
14 years old when Cruz was born. Hope had been gone for a
period of time before she came home with baby Cruz, and said
someone had given her Cruz to care for. Marlene recalled
battles between her mother and Hope as to who would care for
Cruz, and the two women were “screaming at him all the
time.” Marlene saw Cruz disciplined with a switch, rope, iron
cord, and a hanger.
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Marlene left her mother’s home when she was about
14 years old to live with her father in Los Angeles County, but
occasionally visited her mother. When Cruz was about
14 years old, he visited Marlene. He was well-mannered and
did not seem disturbed in any way. Marlene told him that his
mother was Hope, and his father was a man named Jim Cox.
At some point Hortencia’s pet canary was eaten by a cat,
and Hortencia slit open a cat’s stomach to see if the bird was
inside. When Cruz was about 17 years old, Hortencia was
angry that a neighbor’s dog had wandered into her yard, and
she cut off its back legs with an axe.
Marlene loved Cruz but believed the death penalty would
be fair.
Hope testified that Ausencio did not know that Hope and
her siblings were Hortencia’s children; they were referred to as
her nieces and nephews so that Ausencio would not learn
Hortencia had previously been married. Similarly, Armando
Hernandez, who was Cruz’s half-brother and who was about
24 years older than Cruz, testified that Hortencia told
Armando not to call her “Mom” because Ausencio did not know
she had been previously married. Ausencio thought that
Armando was a “friend.” Marlene similarly testified that in
1979 or 1981, Hortencia told her not to call her “[M]om” or
“mother” when Ausencio was around because he believed
Hortencia was Marlene’s aunt and that Marlene’s mother had
died. Marlene was never permitted to discuss her father.
Sharon Dennis, Cruz’s fourth grade teacher, knew him as
Gerald Cox and described him as “pretty bright” and a “good
reader,” but an unambitious student who preferred to engage
in activities other than schoolwork. It frustrated Dennis that
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Cruz did not apply himself. He was not a troublemaker, and
she did not recall him as unkempt or dirty. In testimony from
an evidentiary hearing that was read into the record, Dennis
described being told by a school faculty member that Cruz
lived with his mother and sister but did not know that his
mother was actually his grandmother and his sister was his
mother. The information was not “idle gossip” but given in
confidence to Dennis to assist her in evaluating any problems
with Cruz in class or any emotional problems. She did not
believe this information was common knowledge, and she
never heard it discussed by other teachers or children.
Cruz testified that he first learned that his last name
might be Cox when he was in the first grade and his teacher
referred to him by that name. Until then he had thought his
last name was Cruz. Cruz was teased in school about not
having a father and about his hair and clothes. In the third or
fourth grade, he returned to the classroom during recess and
overhead his teacher and another person “saying . . . it was a
question . . . who [his] mom was.” Cruz immediately left.
Ausencio told Cruz that Hortencia had had a sister who died
and that all the other children in the home were Hortencia’s
nieces and nephews.
Cruz rarely completed a full elementary school year
because his family traveled and he neglected assignments to be
performed while he was away from school. He had no friends
in elementary school until the fourth grade.
Cruz believed he had been treated unfairly in elementary
school. On one occasion, his teacher left his class unsupervised
for an extended period of time and then spanked him in front
of the class because he went to the restroom while she was
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gone. On another occasion, he was disciplined for throwing
sawdust at children who had beaten and bullied him, but the
other children received no discipline. On cross-examination,
Cruz agreed with the prosecutor that it was common for
children to be teased at school but that in his view he was
teased excessively. At some point Cruz was hit in the head
with a rubber mallet by an acquaintance, and shortly after this
incident, he took up karate. Cruz dropped out of high school in
the tenth grade.
Cruz’s mother was strict and his parents disciplined him
by hitting him with objects such as a stick, umbrella, coat
hanger, or iron cord. Cruz was of the view that his mother
raised him properly and that he was not abused. His parents
did not socialize, and Cruz was not allowed to date or to have
girls over to the house.
Sproul was a father figure and best friend to Cruz, and
the two spent a significant amount of time together. Sproul
expressed disdain for “stool pigeons” or persons who contacted
the police when they observed a crime or socially unacceptable
behavior, or who participated in an activity but then blamed
someone else.
Cruz asked Beck to make the rack for his daughter A. to
help her stand and to strengthen her legs. He did not use large
Mason jars but baby food jars. Cruz wanted A. to be strong
physically, emotionally, and mentally. He hit her with a fly
swatter to assist her efforts to crawl. He denied he ever
“clapped” her or slapped her. Jennifer resented the attention
Cruz gave A.
Cruz denied ever hitting Vieira and said he hit Perkins
only when the two “sparred.” The stun gun was a first aid
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treatment for snake bites. He had used the gun on Jennifer
but “[n]ot the way she says,” and claimed the gun made a
“wicked sound, . . . but it doesn’t do anything.”
Cruz felt “bad” that Paris was killed because she had
been “exploited” and apparently “wasn’t there because she
wanted to be.” Cruz also felt bad that Raper was killed, was
sure that Raper’s relatives loved him, and felt bad that “his
relatives are suffering.” Cruz also felt bad because of what he
and his parents were going through.
Several witnesses testified to Cruz’s negative experiences
with Sproul and with medical and law enforcement personnel.
Hope and Hortencia testified that Sproul had said Cruz would
inherit some of Sproul’s land when he died. After Sproul’s
death, his will could not be located.
Hope and Hortencia also testified that when Cruz was
about eight, the family went back into the restaurant business
in Hughson. Cruz and other family members worked in the
restaurant, and it was a happy period for the family. They
took business from a pool hall next door, and one night the pool
hall owners bombed the restaurant. Police responded an hour
and a half later. Cruz’s family fled the restaurant, leaving
behind all their possessions. It was a traumatic experience for
Cruz “because he was so young.”
Hope once observed a man siphoning gas from her car
and followed him home. At some point Cruz, who was about
17 years old, joined her. The police came but said they could
not do anything about it and suggested she make a citizen’s
arrest. She did so, and the police handcuffed the man and
another man hiding in the back of a car. The second man told
Hope and Cruz they would be sorry. Hope filed a complaint,
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but the district attorney said the case was not worth
prosecuting. The second man was released the next day and
threatened Cruz.
Cruz was close to one of his half-brothers, Fred
Hernandez, who died from an aneurysm in 1976, after being
kicked or struck in the head by his wife. The wife was not
prosecuted.
Emanuel Furtado, Jr., met Cruz in the fifth or sixth
grade. Furtado and Cruz had a mutual friend, Alan Lutz, who
was killed when the pickup truck in which he and others were
riding crashed. Furtado and Cruz understood that if the
responding ambulance had been able to locate Lutz in the
weeds he might have been saved.
Hartley Bush, a lawyer, initiated a stepparent adoption
for Ausencio Cruz in about 1972. He obtained a 1965 divorce
decree between Hortencia and Hernandez and a 1968 marriage
certificate for Hortencia and Ausencio. The adoption
proceedings were later abandoned. About this time in 1972,
Cruz was charged in a juvenile proceeding with spray painting
an automobile and given probation.
b. Expert testimony
Dr. Hugh Ridelhuber, a psychiatrist, interviewed Cruz
twice, each time for three to four hours. He also interviewed
Dennis and Cruz’s sister Hope, reviewed “voluminous records”
from counsel, spoke to the defense investigator, and performed
testing on Cruz.
Dr. Ridelhuber believed that Cruz had a reluctance to
rely on authoritarian figures to protect his family when he
perceived they were in danger. Cruz was unsure who his
parents were, and that had “a very disturbing effect on him.”
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He began a search for an identity that “compensated for his not
knowing and . . . his insecurity.” Cruz formed an “oddball”
belief about who he was “that gave him some sort of
satisfaction of feeling important.”
Cruz recounted several instances in which he had
experienced law enforcement or medical personnel not being
responsive or capable of dealing with the situation, such as
when his family’s restaurant was bombed, when someone
siphoned gas out of a car, and when Lutz was not immediately
discovered after the truck accident. Cruz told Dr. Ridelhuber
that he had called the police regarding Raper’s threats and
that Raper had been arrested and taken in, but was then
released and continued to harass Cruz. These circumstances
“really undermined his trust in authority.” Cruz also told
Dr. Ridelhuber he understood Sproul was going to leave the
ranch to him when Sproul died, and when that did not occur,
Cruz believed that a “shyster attorney” and other individuals
“had cheated them out of it” and that the court system did not
prevent this result.
In addition, Dr. Ridelhuber testified, teachers and other
school officials are “part of the authoritarian system that a
child adjusts to” and “needs to respect.” Dr. Ridelhuber
believed it was a “fairly common experience” for children to be
punished by a teacher when they are in fact the victims. For a
child who already has questions about authority, “that would
be an additional wedge in breaking . . . the sort of needed trust
that children have in authority.”
Cruz had great difficulty succeeding in society, so he had
withdrawn and collected around himself a band of people
“almost like a Neanderthal clan.” Dr. Ridelhuber believed the
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punitive behavior Cruz had inflicted “towards his own clan and
family . . . [was] consistent with the way he was treated as a
child growing up.” Cruz was not a sadist but had a false belief
that his behavior would make people stronger and that similar
treatment had made him stronger.
Cruz’s loss of his half-brother Fred and friend Lutz
caused him to have a tendency to overreact to protect
remaining friends and family. Cruz had also suffered a major
loss when the identity of his biological parents was called into
question and when his purported parents did not give him a
sense of security or a feeling of being valuable and lovable. As
a result of his experiences, Cruz would have perceived Raper’s
behavior as a “mounting kind of catastrophic threat” because
Raper did not cease his behavior when confronted, because
Cruz did not perceive “police[] as being able to protect him,”
and because of Cruz’s own sense of fear or vulnerability.
Although Cruz had some of the traits of a borderline
personality and “some characteristics of a paranoid” person, he
did “not fit clearly into a definable disorder.” During
Dr. Ridelhuber’s interview of Cruz, he was “struck by how
normal he can be.”
Dr. Ridelhuber had spoken to some of Cruz’s jailers and
understood that he was a model prisoner. Dr. Ridelhuber
opined that Cruz would adapt well to prison because he was
30 years old and had an IQ of 130 that would allow him to
manage his affairs when a clear structure was provided.
Moreover, Cruz was “not a sociopathic or antisocial character,”
had “no history of violence outside of this crime,” and had no
“history of rebelling against authority.” In Dr. Ridelhuber’s
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view, Cruz could “use the intellect that he has to . . . learn a
trade . . . in the prison system and be productive.”
The parties stipulated that “prison life is very structured
and authoritarian in nature for a person sentenced to life in
prison without the possibility of parole.”
3. Prosecutor’s case against Beck
Cynthia S., Jennifer’s younger sister, testified that she
met Beck in about 1987 when she was 16 years old. At the
time, Cruz and Jennifer were living together in Modesto. From
1987 to 1989, Cynthia worked with Beck, Vieira, and Perkins
installing vinyl and hardwood flooring. Once, when Cynthia
was working with Perkins, he accidentally cut an orange
extension cord with an electric saw and received an electric
shock. Several months later when Cynthia visited Jennifer’s
home, she observed Perkins on his hands and knees on the
floor feverously sanding a gun cabinet. An orange extension
cord was also on the floor. Beck and Cruz were seated to her
right, and Cruz asked Cynthia to flip on the light switch that
was adjacent to the door she entered. When she did so,
Perkins “started flopping around and screaming in the middle
of the living room like a fish out of water.” Cynthia shut off
the switch. Beck and Cruz were laughing, and Perkins started
moaning from the pain. Cynthia saw that the exposed wires of
the extension cord were wrapped around Perkins’s toes and
secured with duct tape, and the other end of the cord was
plugged into a wall outlet activated by the light switch. The
last time Cynthia had seen Perkins’s feet, they were “burnt
from shock, . . . still very infected, . . . like open wounds.”
Cruz appeared to be in control of the household, and
Beck and Perkins did what he requested. Cynthia frequently
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witnessed Beck punch and kick Perkins and Vieira after being
ordered to do so by Cruz; neither Perkins nor Vieira fought
back. Cruz once put a rifle in Cynthia’s mouth and threatened
to pull the trigger because he believed she had stolen one of his
guns. Beck was present but did not intercede on her behalf.
Cynthia lost contact with Beck and Cruz for a time, and
she reestablished contact about two months before the murders
when she visited their home at the Camp. Cruz appeared to
still have the same control over individuals in the household.
Steven Perkins (Steven), the father of Perkins, testified
that in about 1987, when Perkins was about 20 years old, he
left home to live with Beck and Cruz and Cruz’s family for
about 17 months. During this period, his father saw him two
or three times. When Perkins left home, he was six feet five
inches tall and weighed about 370 pounds, and was happy-go-
lucky and outgoing.
When Perkins came home at the end of September 1989,
he had lost about 125 pounds since his parents had last seen
him at Christmas. His personality had also dramatically
changed. He was withdrawn and moody and would not speak
to anyone or answer the telephone, would not go outside, and
was intensely claustrophobic. Perkins refused to discuss what
happened when he lived with Beck and Cruz.
A few days after Perkins arrived home, he was
hospitalized. There Steven learned Perkins’s feet were
severely infected, he had shackle marks above his ankles, and
he had a large bruise covering his chest. Perkins subsequently
admitted himself to a psychiatric unit because he was afraid he
would hurt his parents or others. Steven observed Perkins had
begun to have mental lapses, and at the time of Steven’s
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testimony, Perkins had trouble remembering what day of the
week or what month it was.
Perkins testified that the Becks were family friends and
that he had known David Beck, who was about 10 years older
than Perkins, since Perkins was about four years old. Perkins
had also grown up with Cruz. Perkins once told Cruz he had
observed Jennifer and her sister Cynthia engaging in oral sex.
Apparently in retaliation, Jennifer took Perkins to a house
where he was repeatedly kicked in his naked groin and
electrocuted through his legs and toes. After this attack,
Perkins tried to kill himself by having a motorcycle accident.
About a month later, shortly after moving back in with his
father, he was admitted to the hospital because he had severe
athlete’s foot and “chest problems,” and learned he had broken
his ribs, shattered his breast bone, and hurt his spleen in the
motorcycle accident. Once he was released, he tried to kill
himself again by attempting to overdose on prescription
medication. He was referred for psychiatric counseling
because he had hit his head in the accident and was having
cognitive difficulties.
Perkins was still friends with Cruz and spoke with him
on the telephone. He denied ever being hit, tortured, or
assaulted with a stun gun by Beck or seeing Beck beat Vieira.
Jennifer met Beck in 1986 about the same time she met
Cruz. In July 1987, Beck, Cruz, and Jennifer shared an
apartment. Jennifer had witnessed Beck beat Perkins about
30 times. Beck’s beatings of Perkins were sometimes on his
own and not at the direction of Cruz. Beck and Cruz used an
“orange line treatment” against Perkins and Vieira, where they
would attach an orange extension cord to the toes of one of
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these individuals and turn on the electricity. Jennifer had also
seen Beck use a Scorpion stun gun on Vieira; Vieira would
jump and yell and try to escape.
Cruz was the leader of “The Cause,” which was
“supposed to be the advancement of mankind.” In Cruz’s
journal were signatures and fingerprints of individuals, such
as Beck, who had agreed to be in The Cause. The Cause
became “sick, distorted, [and] perverted,” Cruz’s “idea of some
type of twisted control over people.” Perkins “was beaten until
he could hardly move and then he had to go to the hospital.”
Jennifer denied arranging for Perkins to be beaten and
electrocuted. Cruz told Perkins to tell anyone who asked about
his injuries that he had been in a motorcycle accident.
Jennifer was beaten by Cruz several times while Beck
was present. She did not leave Cruz because she was afraid he
would kill her. Beck was devoted to Cruz. Jennifer never saw
Cruz beat Beck or put a gun in his mouth.
Rosemary testified that she met Beck in 1982 and, eight
months to a year later, began dating him. About two years
later, they moved in together, were happy, and frequently
discussed marriage. But at some point, Beck told Rosemary he
had to give her to Cruz because “that was the thing to do.”
Cruz told her that marrying her was the only way he could
ever control her and prevent her from leaving.
Rosemary and Beck eventually lived for six to eight
months on Claret Court in Modesto with Cruz, Jennifer, their
infant daughter A., Vieira, and Perkins. At one point,
Rosemary’s hand was cut and her bloody fingerprint placed in
a book “[s]o that you would . . . belong to them.” “[A]fter you
did that, they owned you.”
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Cruz and Beck were the leaders of the group, but Cruz
was in charge. Cruz’s word was “[e]verybody’s law,” he
declared punishments, and Beck’s role was to administer
punishment to other members. Beck might be reprimanded,
but he was not punished in the same way as “everyone else.”
In Rosemary’s view, Cruz and his group were members of a
strange religious cult. They discussed Satanism and astrology.
Beck tied filled Gatorade bottles to A.’s ankles when she
was learning to crawl. If A. cried, Beck would give her ice-cold
water until she found it difficult to breathe.
While living with Beck, Rosemary was subjected to
physical violence by him. Once when she tried to leave, Beck
and Perkins drove after her, threw her into a van face first,
and took her back to the house. Beck then kicked her in the
back as she walked up the stairs.
Once, because someone lost an envelope containing
several postage stamps, Rosemary was forced to open her
mouth in the presence of Beck, Cruz, Vieira, Jennifer, and
Perkins, and someone placed a loaded rifle in her mouth. On
another occasion, Cruz told Rosemary in front of Beck that he
was going to take Rosemary’s “head off and keep it for a
trophy.” Beck seemed to agree with Cruz, but Rosemary noted,
“not all the time did we tell [Cruz] what . . . we really felt.” In
December 1988, Rosemary went to visit her parents for
Christmas and never returned to Claret Court, leaving behind
everything she owned.
4. Beck defense case
a. Beck’s family and friends
Several of Beck’s family members and friends testified.
Beck had grown up in Oakdale. His mother was strict but
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caring and was respected in the community. When Beck was
about 17 years old, his father was sent to Atascadero State
Hospital for molesting his two younger sisters. His parents
divorced, and his mother married his father’s brother. They
were still married at the time of Beck’s penalty phase trial.
Beck got along well with his stepfather.
Beck presented evidence that he had regularly attended
Bethel Assembly of God church in Oakdale. He sang in the
choir for at least three or four years, and he was faithful in
attending church and choir rehearsals. The choir recorded an
album, and Beck’s photograph was on the back of the album
cover. Beck also played the trumpet at church, participated in
youth group activities, and his brother Steven observed he
knew the Bible “from front to back.” Beck and his close friend
David John Sondeno had built a six-foot kite together for a
church outing that featured a cross and the number one to
symbolize “[t]here’s only one way, and that’s through Christ.”
Sondeno described Beck as outgoing, pleasant, and generous
with his time and money even though he came from a family of
limited resources.
G.W. Wingo testified that he had been Beck’s wrestling
coach at Oakdale Union High School for four years. He saw
Beck every day for about three months of each year. Beck was
a quiet person who did everything that was asked of him, did
not cause any problems, and “got along well with everybody.”
Wingo could not have “asked for a better person during the
wrestling program.” Wingo had not had contact with Beck
since he graduated from high school about 20 years before
Wingo’s testimony.
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In 1978, Beck married a woman named Barbara; they
had three children. He and his young family lived in Coalinga
in a three- or four-bedroom house with a swimming pool. Beck
attended oil well drilling school and worked in the oil business.
He got along well with his coworkers and supervisors, and did
not miss work. Beck later worked as a floor installer from
daylight to dark efficiently performing quality work. Beck
continued to attend church, and the preacher at times visited
Beck’s home. Beck was easygoing and not violent.
After the marriage ended, Barbara did not have custody,
and Beck and his children moved in with his mother and
stepfather so they could provide child care. Christy Shulze,
Beck’s stepsister and former cousin, testified that Beck was
gentle with his children and took care of them, and they loved
Beck “very much.” He was also good at interacting with
Shulze’s children, and they thought of him like a big brother.
She had never observed Beck to be violent or mean, or to
mistreat children. His half-sister Linda Willis testified that he
was a “[v]ery concerned and caring father” and his children
were happy. He did not physically discipline his children.
Beck was generous to others, and he once left food and
Christmas presents for one of Willis’s needy neighbors.
After Beck’s divorce from Barbara, he began to spend
time with Cruz and his friends. Beck spent little time with his
children or his family, and his sister Angela Morgan testified
he “just wanted to be with” Cruz. She agreed with defense
counsel that he was “the opposite person” and “seem[ed] like
somebody [she] didn’t know.” Although she would drive Beck
home when he lived with Cruz, she was never allowed inside
their home.
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Beck’s brother Steven agreed with the prosecutor that
after Beck started associating with Cruz, he “didn’t care about
anything or about anybody,” and “when you were talking to
him,” it would “be like talking to a wall.” At one point Beck
told Steven, “I’ll take your soul.” Beck also told Steven he was
going to kill their sister Debbie apparently over a monetary
dispute, and Beck also threatened Steven’s infant son.
Raymond Greer met Beck in church about 18 years
before his testimony and recalled that Beck had attended
prayer meetings, carried a Bible with him everywhere, and
counseled youth group members. Greer last saw Beck about
five years earlier during Beck’s divorce. Beck was not his
usual “bubbly self,” but rather was disillusioned and did not
believe God could help him.
Willis met Cruz on several occasions and described him
as controlling and manipulative. Beck would only speak when
Cruz allowed. Cruz called himself a high priest and told Willis
he had powers and could place curses on individuals. Beck
appeared to believe Cruz’s claims and began to act like Cruz.
They spoke to Willis about Satanism and the occult, and at
some point tried to get Willis to join a Satanic church. It
appeared to Willis that Beck’s entire belief system had
changed.
About two weeks before the murders, Beck, Cruz, and
several other men visited Willis. Beck and the others appeared
to be controlled by Cruz. Cruz spoke to Willis in front of the
others about taking care of or taking out a person named
Raper, who lived in a trailer park, apparently because he was
dealing drugs to children in the trailer park. Willis understood
this to mean killing Raper. Cruz said, “I can do anything and
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if I don’t like somebody, I’ll take them out.” He said that he
had powers and that “nobody could stop him or get in his way.”
Willis grew uncomfortable with the discussion and asked them
to leave. Everyone left but Beck, who tried to calm Willis by
saying that “nothing was going to happen and everything was
going to be all right.” Beck said that he believed in Cruz and
that Cruz was Beck’s friend. Willis told Beck he “better think
about what he was doing and get away from what was going
on.” She said he was headed for trouble and should
disassociate from Cruz. Beck said he was “involved, he
couldn’t get out.” Willis asked about others who would be
affected by Beck’s and Cruz’s actions. Beck said he knew what
he was doing, and the “only ones who are going to get hurt are
the ones who deserve it.”
Willis visited Beck in jail after the murders. Beck said,
“Don’t worry. I’m going to get out of this.” He said that Cruz
was “going to make sure” by using contacts on the outside and
that things were going to happen to people. Beck appeared to
feel remorse for the murders because he kept his eyes down
and would not look at Willis. When Beck’s brother Steven
visited Beck in jail after the murders, Beck laughed and said,
“If I had a chance to do it all over, I would.”
The parties stipulated that Beck had not been housed in
the general population in Alameda County and had not been a
disciplinary problem while incarcerated there. They further
stipulated that Beck had been in custody in Stanislaus County
from May 1990 to February 1992.
b. Expert witnesses
Jerry Enomoto, a former Director of the Department of
Corrections, testified that that he had reviewed Beck’s
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Stanislaus County custodial records. After being informed of
evidence concerning Beck’s lack of custody and court
disciplinary problems in Alameda County, Enomoto agreed
with counsel that Beck would be an appropriate candidate for
housing in the California Department of Corrections and
Rehabilitation system.
Randy Cerny, president of Central Valley Consultants,
Inc., a consulting firm that trained law enforcement officers in
the investigation of ritualistic activity, testified as a cult
expert. From 1979 to 1991, he was a Stanislaus County
Sheriff’s deputy and studied groups that exhibited cult-like
behavior.
Cerny defined a cult as group of individuals bound
together by a philosophy usually espoused by a central leader.
The leader usually has total control of the group and will use
various techniques to control the group members. Cults were
like gangs, except cults had an underlying religious
philosophy. Cults were also much more cohesive and the level
of control was more important than in a gang. Members had
little sense of individuality, lived at the whim of the leader,
and were subject to various types of mind control techniques
including torture. Members generally became mirror images of
their leader.
In September 1985, then Deputy Cerny learned of the
“Cruz Group” from Rosemary. Cerny had since performed
additional investigation by reading diaries, court transcripts of
cases involving the Cruz “situation,” and speaking to law
enforcement personnel. In his view, the Cruz Group was a cult
that continued at the time of Cerny’s testimony. Cruz was a
charismatic leader who demanded total allegiance from group
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members and was very skilled in emotional manipulation. The
Camp had the characteristics of a cult compound.
The diaries Cerny read described ritualistic practices at
some of the homes in which Beck and Cruz had lived. They
also described Perkins’s torture with an orange cord and by
forced acts of sodomy and bestiality. Cerny read no accounts of
Beck being tortured or mistreated; rather, Beck was the one
who administered punishment at Cruz’s direction. Cruz was
the leader, and Beck was “second in command and everybody
else fell in underneath him.” Beck was Cruz’s enforcer and
was controlled by Cruz.
James Moyers, a psychotherapist who had published an
article on the religious psychotherapy issues of former
fundamentalists, testified he had interviewed Beck to assess
how his religious background might be involved in the case.
Beck had a Pentecostal background, and members of this
fundamentalist religious group tended to rely on spiritual
leaders to determine how to live their lives. When a
Pentecostal follower finds he can no longer believe in the
church’s teachings and breaks from the church, he or she can
experience “shattered faith syndrome.” This involves
confusion, often deep depression, and a sense of emptiness.
“There also can almost be a compulsive search for something to
give one’s life meaning and to explain one’s experiences . . .
some real desperate need to fill up a spiritual vacuum.”
Moyers opined that Beck had suffered from shattered
faith syndrome. Beck had described his growing
disillusionment with and departure from the church. His
marriage to a woman he had recently met was characteristic of
someone with the syndrome. In addition, a few weeks after the
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marriage ended, Beck met Cruz and became “intensely
involved with him.” Cruz’s teachings seemed to have provided
Beck “with an explanation and meaning in his life that he
really hadn’t felt like he had had before.”
Shattered faith syndrome was common, and Moyers
agreed with defense counsel that “most of these people don’t
run out and kill four people.” Beck “had the misfortune of
being in a very vulnerable place and coming across something
in . . . Cruz that led him to the killings.” Had the timing been
different, or if he had come across someone with similar
teachings that did not lead to a violent episode, “things would
be far different.” Beck’s abandonment of his fundamentalist
background made him “particularly vulnerable to anybody who
had something that seemed to be true, that seemed to give him
some direction and meaning. . . . [I]t was unfortunate that it
happened to be [this] particular person and . . . set of
teachings.”
Dr. Lowell Cooper, a clinical psychologist, testified he
had administered psychological tests to Beck to gather
descriptive information about his functioning. These tests
included the Rorschach inkblot test, the Wechsler Adult
Intelligence Scale, the Thematic Apperception test, the Draw-
a-Person test, and the Babcock Story Recall test. Dr. Cooper
concluded based on these tests that Beck had an “empty hole in
him” that consisted of “not having any emotions, not knowing
where they are, not knowing what they should be.” Much of
his functioning was driven by trying to manage this empty
hole. Beck was also unusual in the way he thought about
“what goes on around him” and was “definitely off the mark
relative to the way most people see these test materials and
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respond to them.” Dr. Cooper believed Beck would do well or
would at least appear normal in a structured situation.
Beck was not violent, as his “feelings of aggression are as
absent as any other feeling.” He was “always on the search for
people who will fill up the emptiness, provide direction, provide
routine, provide structure.” His “loyalty is intense to the point
where he really loses the distinction between himself and the
other person” because if he loses the other person, “he will be
thrown . . . back into the emptiness.” Beck’s “social judgment”
was “the worst area of his intellectual functioning.” Dr. Cooper
agreed with defense counsel that when “Beck looks for
somebody or something, he’s looking [for] . . . something that
fulfills spiritual needs, his ideas of betterment for self and
mankind.”
On cross-examination, Dr. Cooper testified Beck did not
suffer from any mental disease, he had found no mental defect,
and there were no indications of brain damage. Beck had a
full-scale IQ of 102. Beck displayed no remorse about the
crimes. Nothing in the evaluation indicated that Beck was in a
dark hole and “functioning in some absurd manner” on the day
of the murders.
Richard Ofshe, a sociology professor at the University of
California, Berkeley, specialized in issues of influence and
control. He had interviewed Beck, read Beck’s diaries and his
penalty phase testimony, reviewed documents relating to
Vieira’s prosecution, and interviewed Vieira, his sister, and his
brother-in-law. Cruz’s group included “an ideology of belief in
magic, in the occult, that was to result in benefits to people.”
In Professor Ofshe’s view, the group was a “high control
group,” although Cruz’s techniques “were substantially more
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brutal” than most groups he had studied. The fact that Beck
did not need to be tortured in order for Beck to accept orders
from Cruz “suggests that Mr. Cruz’s control over Mr. Beck was
at least as great, if not greater,” than for the other group
members.
Beck refused to tell Professor Ofshe how the Cruz group
developed or operated. Beck said that he had taken an oath
and that if he broke his oath, “people would be hurt.” When
Professor Ofshe told Beck, “[Y]ou’re afraid someone will kill
your children or your family,” Beck became visibly upset and
started to cry. Professor Ofshe subsequently said to Beck,
“Gerald Cruz is threatening to have your children killed if you
talk.” Beck did not affirm or deny the statement. In Professor
Ofshe’s view, on the night of the murders, Beck was “under
very substantial pressure to conform to the directives” of Cruz,
and he was experiencing duress because “Cruz’s control
involved . . . a general threat of death, should he not follow . . .
Cruz’s orders and break with the group.”
Dr. Daniel Goldstine, a psychologist, interviewed Beck
for 12 to 15 hours and relied on other information, including
listening to Cruz testify in his penalty phase and reading the
diaries of Beck, Cruz, Vieira, Perkins, Jennifer, and Rosemary,
Beck’s autobiographical sketch, notes from the defense
investigator, and trial transcripts.
Beck had no significant history of aggression but “was
simply a victim of a very despicable cult led by” Cruz. Beck
had suffered significant disappointments that made him
vulnerable, such as moving frequently during his childhood,
his father’s arrest for molesting his sister[s], the breakup with
his longtime girlfriend Sheryl for whom he had purchased an
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engagement ring and whose father was more of a father to
Beck than his own father, and Barbara’s abuse of his trust and
the breakup of their marriage.
In Dr. Goldstine’s view, Cruz made Beck feel like a
lieutenant when he “was at best like a sergeant.” In the
interviews, Beck “simply defend[ed] Mr. Cruz all the time and
basically stuck with that loyalty.” “Never once did [Beck] say,
‘I was a victim myself of Mr. Cruz, I was manipulated.’ ”
Rather, Beck believed “he was a co-equal partner, that he [had]
joined in freely.” Beck denied punishing Vieira or Perkins, or
that Cruz had been cruel to the group members. When
Dr. Goldstine “would confront him with obvious evidence of
some of the monstrous acts that went on in this group, he
simply denied it” and was “clearly lying.” Dr. Goldstine
believed that Beck was still under Cruz’s control and that Beck
had lied in his guilt phase testimony.
Beck was not suffering from any mental illness and had
no brain damage. There was no history of head injuries or
fetal alcohol syndrome. Dr. Goldstine opined that Beck’s “flat
affect” and “his guardedness” were “directly attributable to
being part of this cult and what [had] happened to him.” In
Dr. Goldstine’s view, Beck had exhibited remorse.
5. Prosecutor’s Beck rebuttal
Jennifer testified that her daughter A. was born in
July 1988. Sometime later that year, Beck, Cruz, and Vieira
placed a tape recorder next to A. in her crib. As she was falling
asleep, they snuck up on her and screamed at her. A. woke up
and started to scream and cry. The tape recording of this
incident was played for the jury.
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Jennifer received numerous threatening phone calls from
Cruz while he was in jail after the murders. They stopped just
before Cruz’s penalty phase when he learned Jennifer would be
a witness. Jennifer also received threatening phone calls from
Perkins. Jennifer had been afraid of Beck because “he would
do what [Cruz] told him to do.”
II. DISCUSSION
As to many claims, Beck and Cruz “allege for the first
time that the error complained of violated their federal
constitutional rights. To the extent that in doing so defendants
have raised only a new constitutional ‘gloss’ on claims
preserved below, that new aspect of the claims is not forfeited.
However, ‘[n]o separate constitutional discussion is required,
or provided, when rejection of a claim on the merits necessarily
leads to rejection of [the] constitutional theory.’ ” (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364 (Bryant,
Smith and Wheeler).)
A. Pretrial Issues
1. Motion to suppress
Cruz contends the trial court erred in denying his motion
to suppress items seized during the May 21, 1990 search of his
studio apartment located at 4510 Finney Road, No. 7 in Salida.
(Former § 1538.5.) He contends the affidavit submitted by
Detective Deckard to obtain a search warrant failed to
establish probable cause to search his home. He further
contends that even if the affidavit did demonstrate probable
cause to search the studio, Detective Deckard improperly
withheld material information from the affidavit that would
have undercut this showing. He also contends that
information obtained before the search warrant was executed
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— that the suspect “Jason” stayed in one of trailers — vitiated
probable cause to search the studio. We conclude there was no
error.
a. Factual background
The murders occurred shortly after midnight on May 21,
1990. At 10:19 a.m. that day, Detective Deckard obtained a
warrant to search the studio apartment and any trailers. (The
original search warrant and supporting affidavit were
apparently destroyed. The parties rely on a copy of the
affidavit that was attached to the suppression motion and
made part of the settled record.)
Detective Deckard’s supporting affidavit and attached
statement of probable cause (the affidavit) stated that around
2:00 a.m. on May 21, he arrived at the quadruple murder
scene. Surviving victim Donna Alvarez described her
assailant, who was holding a handgun, as “a white male adult,
20 to 25 years of age, 6−0, medium build with brown afro type
hair.” Around 3:00 a.m., Detective Deckard spoke with
Kenneth Tumelson outside the victims’ house. Tumelson said
that a person he knew as “Jason” was “approximately 21 years
of age, ha[d] brown afro-type hair,” and frequented the victims’
residence. Jason was “staying in a group of apartments located
across the street from the Laundromat on Finney Road.”
Around 4:00 a.m., Detective Deckard spoke with Frank Raper,
Jr. (Frank), the son of victim Franklin Raper. Frank stated
that his father had experienced problems with someone named
“Jason” and had asked to borrow a gun because he “feared for
his life.” Jason had set fire to and destroyed Raper’s car about
a month earlier. Frank understood that Jason was “supposed
to be staying in a[n] apartment across from the Laundromat,”
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and Frank described the residence “as having a large amount
of camo type material draped in front of the residence” and
said it was “located in the back or the rear of those . . .
apartments.”
The affidavit further recounted that around 5:00 a.m.,
Detective Deckard and other law enforcement officers went to
4510 Finney Road, No. 7. It appeared no one was home. A
“large camo type of material [was] in front of the residence.”
Around 5:30 a.m., Detective Deckard spoke with Kevin
Brasuell, who said that someone named “Jerald” lived in No. 7,
which was the manager’s apartment. Brasuell said a “white
male with a brown afro type hair . . . frequents that residence,”
but Brasuell did not know his name. Brasuell had seen
“several people coming and going out of the manager’s
apartment.”
At the suppression motion hearing, Detective Deckard
testified that when he arrived at 4510 Finney Road on May 21,
he spoke with Brasuell, who lived in front of the studio.
Brasuell said that a person fitting the suspect’s description
frequented the studio and the small trailer, and that Gerald
and his wife lived in the studio. The studio was a freestanding
building. Deckard observed an extension cord running from
the studio to the small trailer. A SWAT team officer entered
the large trailer to see whether any perpetrators were inside.
The small trailer was not entered apparently because officers
were able to see all of the interior simply by looking through a
window. Before Detective Deckard left to obtain the warrant,
he was of the view that the two trailers were “part and parcel
of” the studio.
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Brasuell testified that on May 21, he told Detective
Deckard that Jason lived or “frequently stayed” in the small
trailer and “frequently stayed” at the studio. Detective
Deckard asked him “who all stayed back there,” which Brasuell
took to mean the studio and trailers. The studio and the two
trailers were “all one unit close together.” He told Detective
Deckard that Cruz, Jennifer, Beck, Jason, and Vieira “all lived
there together.” Brasuell testified it appeared to him that
these individuals “all had access to each and every other
thing.” Brasuell had several conversations with Detective
Deckard on May 21 and could not recall when during the day
he made each particular statement.
Detective Deckard further testified that when he
returned with a search warrant, he had information that at
least four individuals had committed the murders and that
“Jason” was in a group that frequented the studio and the
trailers. Jennifer was standing outside the studio. Detective
Deckard asked Jennifer whether LaMarsh lived in the studio
or in either trailer. Jennifer said that Jason slept in the small
trailer. Detective Deckard at this point came to the view that
there were separate living accommodations in the trailers or
that Jason “stay[ed] in the small trailer” while Beck and Vieira
“stay[ed] in the large trailer.” After Detective Deckard read
the warrant to Jennifer, officers searched the studio.
Jennifer testified that on May 21, 1990, she lived with
Cruz and her two infants in a studio apartment located at
4510 Finney Road, No. 7. There were two trailers on wheels at
that location. They did not have separate unit numbers. The
small trailer in which LaMarsh lived was about 20 feet away.
It lacked toilet facilities and obtained electricity from the
studio through an extension cord.
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The trial court granted the suppression motion, as
relevant here, as to items seized from the large trailer where
Beck and Vieira resided. It denied the motion as to Cruz’s
studio “only” on the ground of good faith (see United States v.
Leon (1984) 468 U.S. 897), implicitly finding that the search
warrant was not supported by probable cause. The court
stated: “Of the three pieces of property searched, the actual
Apartment No. 7 [the studio] has caused the Court the most
difficulty. As I previously commented, Mr. Deckard, in the
Court’s opinion, had probable cause to obtain a search warrant
for Apartment 7 and he properly did so. However, by the time
he returned with the search warrant to search Apartment 7, he
knew now or by then that it was a separate residential
accommodation and he knew that Mr. LaMarsh actually lived
in the small trailer. However, he also knew that Mr. LaMarsh
frequented Apartment No. 7 and may in fact have stayed in it
at times, and he did have a search warrant authorizing its
search. Here the court did not say that Mr. Deckard was not
acting in good faith and reasonably believing that if he had
returned to the magistrate with the additional information
that Mr. LaMarsh actually lived in the trailer right next to the
apartment and connected to that apartment with an extension
cord, that the magistrate would also have authorized a search
of the trailer in addition to the apartment rather than just
substituting the trailer for the apartment. Thus on the Leon
good faith doctrine and on that doctrine only, the search of
Apartment 7 is ruled valid and what is adequately described in
the search warrant is not suppressed.”
b. Analysis
“In reviewing a trial court’s ruling on a motion to
suppress evidence, we defer to that court’s factual findings,
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express or implied, if they are supported by substantial
evidence. [Citation.] We exercise our independent judgment in
determining whether, on the facts presented, the search or
seizure was reasonable under the Fourth Amendment . . .”
(People v. Lenart (2004) 32 Cal.4th 1107, 1119.)
Here, it appears that the trial court implicitly found as to
the studio that although the search warrant was supported by
probable cause when it was issued, Detective Deckard’s
subsequent discovery that LaMarsh actually lived in the
smaller trailer vitiated that probable cause. We reach a
different conclusion.
In determining whether a search warrant is supported by
probable cause, we consider “whether, given all the
circumstances set forth in the affidavit . . . there is a fair
probability that contraband or evidence of a crime will be
found in a particular place.” (Illinois v. Gates (1983) 462 U.S.
213, 238; People v. Camarella (1991) 54 Cal.3d 592, 601.)
“ ‘[S]ufficient probability, not certainty, is the touchstone of
reasonableness under the Fourth Amendment.’ ” (Maryland v.
Garrison (1987) 480 U.S. 79, 87.)
We agree with the trial court that the search warrant
affidavit, which referred to an individual matching the
description of one of the murder suspects living in the same
residential area as the studio and “frequent[ing]” the studio,
set forth sufficient facts to demonstrate a fair probability that
evidence of the murders would be found in the studio. (See
Illinois v. Gates, supra, 462 U.S. at p. 238; People v. Farley
(2009) 46 Cal.4th 1053, 1099−1100.) Detective Deckard’s
subsequently acquired information that LaMarsh actually
lived in the small trailer while frequenting and at times
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staying in the studio does not vitiate the fair probability that
evidence of the murders would be found in the place LaMarsh
frequented, i.e., the studio. There was also evidence that the
small trailer was dependent on the studio for electricity; it was
so small as to be able to be thoroughly visually inspected for
suspects from a window, and it was “part and parcel of” the
studio.
To the extent Cruz’s claim that the affidavit’s reference
to firearms, blood spatters and clothing tending to establish
the identity of the perpetrator, documents or videotapes of the
victim or others tending to show motive, and documents
identifying who controlled the premises failed to describe
evidence relating to the four murders and thus establish
probable cause, is preserved, we reject it. Cruz does not claim
the warrant lacked particularity in its description of the items
sought, and given that Alvarez had described her assailant as
displaying a firearm and there were four slain victims, these
items related to the circumstances surrounding the murders.
Moreover, it was “necessary to establish” who had “control over
any evidence seized.” (Bryant, Smith, and Wheeler, supra,
60 Cal.4th at p. 370.)
Cruz contends the warrant was invalid because Deckard
omitted material information from his affidavit, rendering it
deliberately or recklessly false and misleading. (Franks v.
Delaware (1978) 438 U.S. 154, 155–156, 171–172.) A “warrant
is presumed valid,” and a “defendant claiming that the
warrant or supporting affidavit is inaccurate or incomplete
bears the burden of alleging and then proving the errors or
omissions.” (People v. Amador (2000) 24 Cal.4th 387, 393.)
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“This court has applied the rule in Franks to deliberate
omissions of material facts from an affidavit for a search
warrant. . . .” (People v. Sandoval (2015) 62 Cal.4th 394, 409
(Sandoval).) At the same time, we have recognized “that a
claim that material facts were omitted from an affidavit differs
from a claim that the affidavit contains falsehoods: ‘Though
similar for many purposes, omissions and misstatements
analytically are distinct in important ways. Every falsehood
makes an affidavit inaccurate, but not all omissions do so. An
affidavit need not disclose every imaginable fact however
irrelevant’. . . . ‘[A]n affiant’s duty of disclosure extends only to
“material” or “relevant” adverse facts.’ [Citation.] ‘[F]acts are
“material” and hence must be disclosed if their omission would
make the affidavit substantially misleading. On review under
section 1538.5, facts must be deemed material for this purpose
if, because of their inherent probative force, there is a
substantial possibility they would have altered a reasonable
magistrate’s probable cause determination.’ ” (Sandoval, at
pp. 409–410.)
Cruz contends Detective Deckard should have included
information in his affidavit that the trailers were used as
residences and that Cruz, Jennifer, and their two infants lived
in the studio. We have concluded that the search warrant
affidavit set forth sufficient facts to demonstrate a fair
probability that evidence of the murders would be found in the
studio. Information that the trailers were also used as
residences would not lessen that probability. Thus, the
affidavit was not substantially misleading in this respect.
As for the number of studio occupants, although Deckard
testified that Brasuell told him that “Jerald” and his wife lived
in the studio, his affidavit stated that he spoke to Brasuell,
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who said that someone named “Jerald” lived in the studio.
Cruz fails to demonstrate how omitting mention of “Jerald’s”
wife in the affidavit constituted a “deliberate falsehood” or
“reckless disregard for the truth.” (Franks v. Delaware, supra,438 U.S. at p. 171.) Nor is it clear that Detective Deckard
knew that the couple’s two infants also lived in the studio
before the warrant was issued or how such a circumstance
“ ‘would have altered a reasonable magistrate’s probable cause
determination.’ ” (Sandoval, supra, 62 Cal.4th at p. 410.) Cruz
fails to persuasively demonstrate that these omissions from
Detective Deckard’s affidavit rendered the search warrant
invalid.
Cruz also challenges the execution of the warrant,
relying on Maryland v. Garrison, supra, 480 U.S. 79. In
Garrison, an officer obtained a warrant to search the third
floor apartment of a suspect named McWebb; the officer
reasonably believed McWebb’s apartment was the only one on
the third floor. (Id. at p. 81.) When officers arrived, they
encountered McWebb, who used his key to give the officers
access to the third floor vestibule. There, the officers
encountered the defendant, Garrison, and saw two open doors.
They entered one of the doors and observed heroin, cash, and
drug paraphernalia. At that point, the officers realized there
were two apartments on the third floor and that they had
entered Garrison’s, not McWebb’s. The officers immediately
discontinued the search of Garrison’s apartment. (Ibid.) The
high court concluded that execution of the warrant in
Garrison’s apartment was objectively reasonable based on the
information available to the officers. (Id. at pp. 88−89.)
Cruz contends that here, unlike in Garrison, Detective
Deckard wrongly executed the search warrant and searched
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the studio after learning from Jennifer that LaMarsh did not
live there, and that Cruz and Jennifer lived there with two
children. In fact, Detective Deckard’s affidavit stated that
“Jerald” lived in the studio and Jason “frequent[ed]” the studio.
Deckard’s interview of Jennifer merely confirmed those
circumstances, and the presence of two infants would not
reasonably have led Detective Deckard to believe Jason did not
frequent the studio.
In sum, we conclude Cruz’s suppression motion was
properly denied.
2. Severance
Beck and Cruz contend the trial court erred in denying
their severance motions. There was no error.
a. Factual background
Before trial, Beck moved for severance on the ground
that items seized from his trailer had been suppressed as to
him, but each of his codefendants planned to introduce the
evidence in their defense. Cruz moved for severance on the
grounds that certain evidence had been suppressed as to some
defendants but not others, that some of the defendants had
made statements that would be damaging to other defendants,
and that he was entitled to a separate penalty phase from the
other defendants. At the hearing, Cruz asserted severance was
also warranted because the defendants would present
inconsistent defenses.
As to Beck’s motion, at the severance motion hearing, the
prosecutor said he would not introduce at trial any evidence
found in Beck’s trailer or Willey’s home that was later
suppressed. The trial court stated that the purpose behind the
exclusionary rule was to prevent police misconduct and ordered
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the prosecutor not to use the evidence found in Beck’s trailer at
trial. It further stated that the other defendants were not
precluded from using this evidence, and defense counsel would
have a “full and through opportunity to cross-examine any of
the witnesses” presenting that evidence. On that basis, it
denied Beck’s severance motion.
As to Cruz’s motion, Detective Deckard testified that
none of the defendants had implicated any other defendant in
his statements to law enforcement. LaMarsh had made
incriminating statements to his friend Karen Spratling but
had not incriminated any other defendant. The prosecutor
said it appeared Spratling was not “going to be able to testify.”
The trial court denied Cruz’s severance motion. It said it
was aware of no authority holding that defendants were
entitled to separate trials simply because there were
inconsistent defenses. Although the court was concerned about
LaMarsh’s statement to Evans that Cruz had “helped him beat
Raper,” it found that this statement, in light of other
statements by LaMarsh made in Cruz’s presence, did not
warrant severance. The court incorporated that portion of its
ruling on Beck’s severance motion stating that defendants
were not precluded from using evidence suppressed as to some
but not all defendants, and that defense counsel would have a
“full and through opportunity to cross-examine any of the
witnesses” presenting that evidence. It also ruled there would
be separate and sequential penalty phases for each defendant,
with Cruz going first, then Beck, LaMarsh, and Willey.
Beck unsuccessfully filed a motion to reconsider the
denial of his severance motion and the order of the penalty
trials and a writ challenging that denial. At the end of trial,
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the court instructed the jury, “You must decide separately
whether each of the defendants is guilty or not guilty.”
b. Analysis
Section 1098 states in relevant part: “When two or more
defendants are jointly charged with any public offense,
whether felony or misdemeanor, they must be tried jointly,
unless the court order [sic] separate trials.” This provision
indicates the Legislature’s “strong preference for joint trials.”
(People v. Winbush (2017) 2 Cal.5th 402, 455 (Winbush).)
“Joint trials ‘play a vital role in the criminal justice system’ ”
because they “promote efficiency and ‘serve the interests of
justice by avoiding the scandal and inequity of inconsistent
verdicts.’ ” (Zafiro v. United States (1993) 506 U.S. 534, 537.)
“Joint proceedings are not only permissible but are often
preferable when the joined defendants’ criminal conduct arises
out of a single chain of events. Joint trial may enable a jury ‘to
arrive more reliably at its conclusions regarding the guilt or
innocence of a particular defendant. . . .’ ” (Kansas v. Carr
(2016) 577 U.S. __, __ [136 S.Ct. 633, 645]; see People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 819 (Daveggio
and Michaud).) We have found persuasive the high court’s
statement that when defendants are properly joined, severance
should be granted “only if there is a serious risk that a joint
trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.” (Zafiro v. United States, at
p. 539 [addressing severance under Fed. Rules Crim. Proc.,
rule 14]; see People v. Lewis (2008) 43 Cal.4th 415, 452
(Lewis).)
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“We review a trial court’s denial of a severance motion for
abuse of discretion based on the facts as they appeared at the
time the court ruled on the motion.” (People v. Avila (2006)
38 Cal.4th 491, 575.) As can be seen, the concerns raised by
Beck and Cruz in their severance motions were ameliorated by
the prosecutor’s representations and the trial court’s rulings.
None of the four defendants had implicated any other
defendant in his statement to police; the prosecutor was
precluded from introducing against any defendant evidence
suppressed as to some defendants; the prosecutor said
Spratling was unable to testify; and the defendants were
granted separate penalty phases.
Cruz contends that the trial court made a blanket
rejection of the argument that inconsistent defenses warranted
severance without considering the potential prejudice in this
case. But throughout the motion hearing the court actively
sought to clarify what evidence was expected to be introduced
and noted in its ruling that although it was concerned about a
statement LaMarsh had made to Evans about Cruz, that
statement alone did not warrant severance given other
statements LaMarsh had made in Cruz’s presence.
Cruz further contends that the trial court ignored
relevant information “crucial to an informed evaluation” of the
potential “undue prejudice from a joint trial.” In particular, he
contends LaMarsh offered to provide “specific information
about documents and evidence regarding prior acts of
LaMarsh’s codefendants which he intended to introduce” and
that he anticipated would elicit vigorous objection from the
codefendants, but the trial court “failed to hold the requested
in camera hearing, without comment.”
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In the colloquy to which Cruz refers, however, it appears
LaMarsh was discussing evidence he intended to introduce at
the penalty phase, not at the guilt phase. LaMarsh stated,
“[E]ven though the guilt phase is not severed, the Court
[should] seriously consider a separate penalty phase” because
of prior acts evidence LaMarsh would seek to introduce and to
which his codefendants would “object vigorously.” Because the
court then ordered separate penalty trials for each defendant,
the court had no need to hold an in camera hearing to evaluate
the evidence of any codefendant’s prior acts that LaMarsh
would seek to introduce at the penalty phase.
“[E]ven if a trial court acted within its discretion in
denying severance, ‘ “the reviewing court may nevertheless
reverse a conviction where, because of the consolidation, a
gross unfairness has occurred such as to deprive the defendant
of a fair trial or due process of law.” ’ ” (People v. Thompson
(2016) 1 Cal.5th 1043, 1079 (Thompson).) “Defendants bear
the burden of establishing that the trial was grossly unfair and
denied them due process of law, and ‘a judgment will be
reversed on this ground only if it is “reasonably probable that
the jury was influenced [by the joinder] in its verdict of
guilt.” ’ ” (Daveggio and Michaud, supra, 4 Cal.5th at p. 821.)
Beck and Cruz contend that such gross unfairness arose here
because “the four defendants presented differing defenses.”
“Mutually antagonistic defenses are not prejudicial per
se.” (Zafiro v. United States, supra, 506 U.S. at p. 538.)
Although Beck, Cruz, LaMarsh, and Willey “each may have
sought to cast blame on [each] other, it was undisputed that
[all] had been involved in some manner” in the murders.
(Daveggio and Michaud, supra, 4 Cal.5th at p. 820.) “The only
material inconsistency concerned the degree to which each
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participated in the murderous acts.” (Winbush, supra,
2 Cal.5th at p. 457.) “Moreover, when there is sufficient
independent evidence of the defendants’ guilt, the actual
presentation of conflicting defenses at trial does not reduce the
prosecution’s burden or otherwise result in gross unfairness.”
(Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 380.)
Here there was sufficient evidence of Beck’s and Cruz’s
guilt for the charged crimes that was independent of their
codefendants’ testimony. Shortly before the May 1990
murders, Cruz, accompanied by Beck, purchased the police
baton that, according to a stipulation by Cruz and the
prosecutor, was found near the crime scene. Also, on
February 27, 1990, a store clerk had shown Cruz camouflage
masks similar to one found at the crime scene. A receipt for
four masks purchased on that date was found in Cruz’s home
after the murder, but no masks were found during that search.
Beck and Cruz testified at trial that on the night of the
murders they traveled to 5223 Elm Street with Evans,
LaMarsh and Vieira, and went into the home. Evans testified
Beck and Cruz had participated in the planning and
commission of the murders, and that when they returned to
the car, Beck was covered in blood and carrying a bloody knife,
and Cruz had blood on his hands. Cruz was identified by a
witness as one of the assailants who attacked Ritchey. Shortly
after the murders, Beck told acquaintance Wallace that “we” or
“I” “slit some throats.” The jury could reasonably infer Beck
was referring to the murder of the victims in this case, the
throats of three of whom were slit and the fourth stabbed.
Rosemary testified that Beck visited her on the evening of
May 21, 1990. When the prosecutor asked whether Beck had
mentioned doing anything to the people who were killed,
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Rosemary testified that Beck said, “[T]hey had to do them,”
and that he had purchased new shoes because his were covered
in blood and he could not get them clean.
Cruz contends that severance was compelled because the
evidence of conspiracy was weak and provided only by Evans;
hence, in his view, it is reasonably probable a different verdict
would have resulted absent “the antagonistic tactics of
LaMarsh and Willey.” We conclude more fully below, in
rejecting Beck’s claim, joined by Cruz, that no substantial
evidence supports his conspiracy conviction, that even aside
from Evans’s testimony, there was substantial evidence of a
conspiracy. (See post, pt. II.B.1.a.)
Cruz further contends that evidence that he, Beck, and
Vieira were a “close-knit group and secretive” had no probative
value against him, and therefore the guilty verdicts for Cruz
and Beck and hung jury for LaMarsh and Willey must have
resulted from LaMarsh’s and Willey’s “prejudicial and
inflammatory character evidence.” But evidence that Cruz,
Beck, and Vieira were close and secretive was relevant to the
prosecutor’s theory that the three had conspired with LaMarsh
and Willey to commit murder. (People v. Rodrigues (1994)
8 Cal.4th 1060, 1135 (Rodrigues) [“ ‘The existence of a
conspiracy may be inferred from the conduct, relationship,
interests, and activities of the alleged conspirators before and
during the alleged conspiracy.’ ”].) We also reject below Cruz’s
claim that evidence of the relationship between Cruz, Beck,
and Vieira was prejudicial character evidence. (See post,
pt. II.B.2.)
Cruz asserts that LaMarsh and Willey acted as
additional prosecutors because “[t]heir testimony, and the
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evidence they presented through other witnesses, clearly
constituted far more evidence of [Cruz’s] guilt than anything
the prosecution presented or would have been able to present
at a separate trial.” Beck makes a similar argument but
identifies Cruz, LaMarsh, and Willey as additional
prosecutors.
Specifically, Cruz contends that LaMarsh’s claim that
Cruz, not LaMarsh, “committed the fatal assault on Raper,”
LaMarsh’s defense expert’s opinion that a baton rather than a
bat had caused Raper’s wounds, and Rosemary’s emotional
testimony against Cruz would not have occurred in a separate
trial, thus avoiding prejudicial character evidence against
Cruz. But evidence regarding the instrument likely used to
inflict Raper’s wound would have been admissible in a separate
trial, and the trial court sustained objections to questions by
LaMarsh asking Rosemary if she was afraid of Cruz. Nor is it
obvious how LaMarsh’s assignment of blame was unduly
prejudicial. Beck similarly contends that evidence regarding
the “cult-like” nature of the group was introduced by his
codefendants and could not have been admitted in a separate
trial, but the trial court sustained objections to testimony
about cults, white supremacy, and the occult. Nor was
LaMarsh’s single statement that Beck, Cruz, and Vieira
appeared to be a “survivalist” group so grossly prejudicial that
severance was required. Moreover, as discussed below in
rejecting Cruz’s character evidence claim, evidence that Beck
possessed firearms was not unduly prejudicial since none of the
firearms was illegal or used to shoot any victim.
Beck also contends that a Ka-Bar knife box from his
trailer that had been suppressed was introduced by LaMarsh.
During LaMarsh’s cross-examination of Beck, Beck denied
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having seen a Ka-Bar knife box on May 20, 1990. After
marking a box as an exhibit, counsel asked why the box had
been found in Beck’s trailer, and Beck’s foundation objection
was sustained. Beck was then asked whether any police officer
had asked him about “any Ka-Bar box that was found in your
trailer after May 20, 1990,” and Beck said “Yes.” Even
assuming this evidence was improperly introduced, it was not
prejudicial in light of other evidence of Beck’s guilt and did not
render the joint trial grossly unfair. (Ante, at pp. 67–68.)
Beck further contends that he was prejudiced by the
denial of his severance motion when considered with the order
of the separate penalty trials. In particular, he asserts that
the prosecutor “exploited the jury’s knowledge of the Cruz
evidence during Beck’s penalty trial by calling many of the
same witnesses to testify that Beck was present or had
knowledge of Cruz’s bad acts.”
In Kansas v. Carr, supra, 577 U.S. __ [136 S.Ct. 633], the
high court rejected a similar claim. Carr involved two
defendants who were brothers. (Id. at p. __ [136 S.Ct. at
p. 637].) The older brother claimed he was prejudiced at their
joint penalty trial “by his brother’s portrayal of him as the
corrupting older brother,” and by his brother’s cross-
examination of their sister, who equivocated about whether the
older brother had admitted to her he was the shooter. (Id. at
p. __ [136 S.Ct. at p. 644].) The younger brother claimed that
“he was prejudiced by evidence associating him with his
dangerous older brother, which caused the jury to perceive him
as an incurable sociopath,” and by the jury’s observation of his
older brother in handcuffs. (Id. at p. __ [136 S.Ct. at p. 644];
see id. at p. __, fn. 4 [136 S.Ct. at p. 644, fn. 4].)
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The high court held that joint capital sentencing
proceedings do not violate the Eighth Amendment right to an
individualized sentencing determination. (Kansas v. Carr,
supra, 577 U.S. at p. __ [136 S.Ct. at p. 644].) Although the
due process clause protects defendants against unduly
prejudicial evidence that would render a trial fundamentally
unfair, that standard was not met by the “mere admission of
evidence that might not otherwise have been admitted in a
severed proceeding.” (Id. at p. __ [136 S.Ct. at p. 645]; see id.at p. __ [136 S.Ct. at p. 644].) The high court observed that the
trial court had instructed the jury that it must give “ ‘separate
consideration to each defendant’ ” and that evidence admitted
as to one defendant should not be considered as to the other
defendant. (Id. at p. __ [136 S.Ct. at p. 645].) The high court
presumed that the jury followed these instructions, while
observing such limiting instructions “ ‘often will suffice to cure
any risk of prejudice.’ ” (Ibid.) Moreover, the high court
concluded that the penalty verdicts were not a result of the
challenged penalty evidence against one brother or the other,
but of the guilt phase evidence of “acts of almost inconceivable
cruelty and depravity.” (Id. at p. __ [136 S.Ct. at p. 646.].)
Likewise here, the court instructed the jury that it must
“[d]isregard any . . . evidence that you heard during Mr. Cruz’s
penalty phase” and “determine what the facts are from the
evidence received during the guilt phase of the trial and this
penalty phase.” We presume it followed this instruction.
Moreover, no evidence of Beck’s unadjudicated criminal acts
was introduced at Cruz’s penalty trial. Thus, as in Carr, the
Beck penalty verdict was not based on “guilt by association”
with Cruz, as Beck contends, but on penalty evidence that
Beck had tortured Perkins, physically assaulted Vieira and
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Rosemary, and physically abused Cruz’s infant daughter, and
on the guilt phase evidence that Beck had participated in
planning and committing four murders.
3. Reopening of jury selection
Beck, joined by Cruz, contends that the trial court erred
in finding there was good cause to reopen jury selection to
allow the prosecutor to exercise a peremptory challenge
against Prospective Juror M.L. We reject the claim.
Code of Civil Procedure section 226, subdivision (a)
provides: “A challenge to an individual juror may only be
made before the jury is sworn.” “Subdivision (d) of [Code of
Civil Procedure] section 231 then explains: ‘Peremptory
challenges shall be taken or passed by the sides alternately,
commencing with the plaintiff or people; and each party shall
be entitled to have the panel full before exercising any
peremptory challenge. When each side passes consecutively,
the jury shall then be sworn, unless the court, for good cause,
shall otherwise order.’ ” (People v. Cottle (2006) 39 Cal.4th 246,
255, italics omitted.) After the parties have passed on the jury
but before the jury is sworn, the trial court may reopen jury
selection and allow a peremptory challenge to be exercised if
good cause is shown. (Id. at p. 256 [“ ‘[T]he jury is sworn’ when
those 12 trial jurors have been sworn.”].)
When Prospective Juror M.L. was asked on his juror
questionnaire if his “religious views [would] in any way affect
[his] service as a juror,” and whether “[f]or religious or any
other reason, do you feel you cannot sit in judgment on the
conduct of a fellow human being,” he responded “No” to each
question but commented, “I’m not sure in certain cases.” When
asked his “general feelings regarding the death penalty,” M.L.
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answered, “Undecided.” When asked which “entry . . . best
describes your feeling about the death penalty,” he chose “[w]ill
consider” the death penalty. He was “[n]ot sure” how he would
vote if the issue of whether California should have a death
penalty law were on the ballot. When asked, “Under what
circumstances, if any, do you believe that the death penalty is
appropriate,” he answered, “On extreme cases, when the public
is or will be endangered and the criminal is beyond reform.” In
response to the question, “Could you set aside your own
personal feelings regarding what you think the law should be
regarding the death penalty, and follow the law as the Court
instructs you,” he replied, “Yes.”
On voir dire, the trial court observed Prospective
Juror M.L. had answered he was “[u]ndecided” about the death
penalty and asked if he had heard anything in court that
allowed him to further describe his feelings. M.L. replied
“Yes,” explaining: “Your explanation of the law. I would have
to follow the law.” The court asked, “Are you satisfied that you
could follow the law regarding the death penalty as I’ve
explained it to you?” M.L. answered, “Yes.” M.L. answered
“No” when asked if he had “feelings about the death penalty
which are so strong that [he] would never impose the death
penalty in any case whatsoever,” or “feelings about the death
penalty which [he] believe[d] would substantially interfere
with [his] ability to function as a juror in this case.” When
asked if he had “any thoughts about [when] the death
penalty . . . should be imposed,” he replied, “I believe it should
be applied to some cases.” The court asked, “Do you have any
preconceived ideas as to what cases it should be applied to?”
M.L. replied, “No, I don’t.” M.L. was passed for cause by all
parties.
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The following day, after both sides had passed the jury
and the trial court was preparing to have the jury sworn, the
court inquired of the prospective jurors: “Ladies and
gentlemen, do any of you feel there is any reason that you
could not be a fair and impartial juror in this case? If so,
please raise your hand. I see no one raising their hand.” The
court also inquired, “Are there any rules of law that I
explained that you could not follow? I see no affirmative
responses. Ladies and gentlemen, please stand and be sworn
as the jurors of this case.” As the clerk began to swear the
jury, she observed Prospective Juror M.L. had raised his hand.
Outside the presence of the other prospective jurors,
Prospective Juror M.L. told the court and counsel: “I am not
really certain about the death penalty, sir, whether I can
render [the] death penalty as a judgment. I would rather
choose life in prison for the convicted person. I am not sure
because of religio[us] reasons and other reasons that . . . I can
render [the] death penalty. I believe that a man [who] has
done something wrong, that he should be punished. I just am
not absolutely certain right now, due to religious reasons, that
I’m doing the right thing if I have to decide on the death
penalty.” After the court conferred with counsel about what
questions to ask, Beck and Cruz then changed their position
and unsuccessfully objected to any questioning. The court
asked M.L., “[A]s you sit here right this minute, do you know
for a fact that you could vote for the death penalty if you felt it
was appropriate?” M.L. replied he could do so in “one case,”
explaining, “[i]f the persons are repeat offenders or the [c]ourt
can prove that they will kill again.” When the court asked if
M.L. had “feelings about the death penalty which are so strong
that [he] would never impose the death penalty in any case
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whatever,” he replied, “No, sir.” The court asked whether M.L.
had “feelings about the death penalty which [he] believe[d]
would substantially interfere with [his] ability to function as a
juror in this case?” M.L. responded, “I’m not sure whether that
is substantial to your point of view or to the other people’s
point of view[,] but as I have stated . . . when I first answered
my questionnaire, I am really not sure about the death penalty
in the sentencing of a person to death. I know I can go through
Phase 1 and find the person — you know, whether he’s guilty
or not. I’m just not absolutely sure whether I’m doing the right
thing if I have to sentence a person to death.” Beck and Cruz
objected to any further questioning of M.L. The court
nonetheless continued, subsequently asking M.L., “[H]ave your
feelings about the death penalty changed in any manner since
you answered the questions yesterday?” M.L. replied, “Sir,
since you mentioned last week that this is a case regarding
[the] death penalty, I have been asking myself . . . how to judge
the case or what to do in case I get selected. To this point I’m
not one hundred percent sure whether . . . I can do it or
not . . . . [I]f I get selected as a juror, I don’t want to be the last
person to say or to be the only different person.” After further
colloquy, the court explained that M.L. was not “to concern
[him]self . . . in any manner” with the possibility of a hung
jury, noting, “That’s allowed by the law, and it certainly
happens. Do you understand that?” M.L. replied, “Yes, sir.
And I just have this feeling inside that if it comes to the death
penalty, it may end up that way, sir.” The court asked, “Do
you know whether it will end up that way?” M.L. replied, “No
sir.”
The prosecutor moved to reopen jury selection to exercise
a peremptory challenge on the grounds that Prospective
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Juror M.L.’s comments that day indicated “he would not follow
the law and would only be able to impose the capital penalty in
one limited situation.” Beck and Cruz opposed the motion, and
Beck asked the court to swear the jury. The trial court initially
denied the prosecutor’s request to reopen jury selection, but it
delayed having the jury sworn to allow the prosecutor time to
file a writ challenging the ruling. The prosecutor instead filed
a motion for reconsideration, and the court ultimately granted
the motion to reopen jury selection, ruling that although M.L.
was not subject to a challenge for cause, “[i]n the instant case
there were new facts, [M.L.’s] return to his questionnaire state
of mind. . . . The Court finds that [M.L.’s] volunteered
comments to the Court, along with his subsequent answers to
questions put to him, establish the good cause for the district
attorney to reopen to exercise peremptory challenges.” The
prosecutor subsequently exercised a peremptory challenge
against M.L.
When originally questioned on voir dire, Prospective
Juror M.L. expressed no hesitation about setting aside his
feelings about the death penalty and applying the law as he
was instructed by the court and stated he had no preconceived
idea of the cases in which the death penalty would be
appropriate. But the following day, M.L. so questioned his
ability to impose the death penalty he believed it possible he
would be the cause for a hung jury. He was now of the view
that he could only impose the death penalty in “one case,”
which would be “if the persons are repeat offenders or the
[c]ourt can prove that they will kill again.” Under these
circumstances the trial court properly found good cause and
acted well within its discretion in reopening jury selection.
(See People v. DeFrance (2008) 167 Cal.App.4th 486, 503−504
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[the trial court properly found good cause to reopen jury
selection when before the jury was sworn a juror “concluded it
would be difficult for him to serve on the jury because it would
require him to stay up all day and night for several days in a
row”].) Contrary to Beck’s assertion in his reply, nothing in
Code of Civil Procedure former section 231, subdivision (d),
required the trial court to immediately have the jury sworn
once the court initially denied the motion to reopen jury
selection. Rather, the court had authority to stay its ruling
and allow the prosecutor time to file a writ or, as the
prosecutor actually filed, a motion for reconsideration.
In sum, the trial court did not abuse its discretion in
reopening jury selection and allowing the prosecutor to
exercise a peremptory challenge.
4. Excusals for cause
a. Prospective Juror D.D.
Beck and Cruz contend that the trial court wrongfully
excused Prospective Juror D.D. for cause based on her death
penalty views. We reject the claim.
1. Factual background
Prospective Juror D.D.’s juror questionnaire was lost
after trial, but the court recounted without objection or
correction by counsel many of her written responses in its
ruling on the prosecutor’s challenge for cause.
At voir dire, the trial court explained the general factual
circumstances of the murders to the prospective jurors. It also
described the guilt and penalty phases, defined mitigating and
aggravating evidence, and explained “only if the jury decides
the aggravating factors are so substantial in comparison with
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the mitigating factors that death is warranted, can the jury
impose the death penalty.”
At voir dire, the trial court asked Prospective Juror D.D.,
“What are your feelings about the death penalty?” D.D.
responded, “I am against the death penalty.” The court asked,
“If called upon as a juror in this case or if you are selected as a
juror in this case and the jury got to the place where the
penalty was to be decided, and that if after hearing all the law
and the evidence you felt that the death penalty was the
appropriate disposition, would you be able to vote for it?” She
replied, “If I felt it was appropriate, yes. I guess the thing is
whether or not I would believe it was appropriate.” The court
asked, “Do you believe there are any circumstances, any types
of murders, where the death penalty could be appropriate?”
D.D. replied, “Yes,” explaining, “I think that somebody such as
someone like Jeffrey Dahmer, if the death penalty had been
appropriate in his case, I may be able to go with the death
penalty. Severe human crimes, mass murders of numbers, lots
of different people, and other, I guess, heinous circumstances
involved would lead me to impose the death penalty; but it
would have to be something very extreme and very severe.
Otherwise, I really am not — I do not believe that the death
penalty serves any purpose.” The court asked, “Are your
feelings about the death penalty so strong that you would
never vote for first degree murder?” D.D. replied, “No.” The
court asked, “Are your feelings about the death penalty so
strong that you would never find a special circumstance to be
true?” D.D. replied, “Possibly.” The court asked, “Are your
feelings about the death penalty so strong that you would
never impose a death penalty in any case whatsoever?” D.D.
replied, “No.”
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The trial court asked, “Do you believe your feelings about
the death penalty are so strong that they would substantially
interfere with your ability to function as a juror in this case?”
Prospective Juror D.D. replied, “Yes,” explaining, “I would be
fine during the guilt phase of the proceeding; but once we got
to the penalty phase, I’m sure that it would . . . take a lot — it
would take really a serious leap of some sort — and I’m not
sure I’d be able to make it — to impose the death penalty.”
The court asked if D.D. understood that she would have to
choose a sentence of life imprisonment if “the mitigating
factors outweighed the aggravating factors” or if the factors
“were essentially equal,” and D.D. replied that she did. The
court then asked, “Do you understand that if the aggravating
factors were so bad in comparison with the mitigating factors
that death was warranted, that you could impose the death
penalty?” She replied, “I understand.” The trial court asked,
“If . . . the only evidence presented in the penalty phase were
aggravating factors, bad things about the defendants, and they
were very bad, would you be able to vote for the death
penalty?” D.D. replied: “Well, when you say very bad, it would
have to be very bad. I mean, it’s a qualitative statement.
What is very bad? You know, what’s very bad to me is
probably different from what’s very bad to someone
else . . . [W]e may have the same feelings about what is very
bad, but I would still believe it was not right to have a part in
the death of someone else in this manner.” The court asked,
“Is your belief such that you do not believe that you have the
right to take part in a decision which would deprive a person of
his life?” D.D. replied, “Yes.” The court asked, “Do you believe
that you could ever participate in a [courtroom] decision that
would result in the taking of a person’s life?” D.D. replied,
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“Possibly, the case I mentioned before. It would have to be
something very bad.”
The prosecutor challenged Prospective Juror D.D. for
cause. Beck and Cruz objected, and Cruz also objected to
denial of their request for sequestered voir dire. Cruz
requested the court present D.D. with “a hypothetical of the
Dahmer case and see if she would consider that would be very
bad where she would look for the death penalty.” Beck
asserted that D.D. was death qualified and that although she
had “indicated that it would be very difficult for her to impose
the death penalty,” he was sure the prosecutor “doesn’t want
people who would find it easy to impose the death penalty.”
The trial court sustained the challenge for cause. In its
ruling, the court reviewed Prospective Juror D.D.’s answers on
the written juror questionnaire. The court stated: “[I]n her
questionnaire [D.D.] has stated that . . . she felt she could be
fair to both parties, she was an unbiased person.” She said
that “she does not believe in the death penalty except in
extreme Dahmer-type cases, where a death penalty should not
be entirely ruled out.” “[S]he strongly opposes the death
penalty.” When asked about “a situation where the death
penalty could be appropriate,” she responded, “multiple
murders, if no remorse or promise of rehabilitation,” and
further stated she “could follow the law, although it would not
be easy for her to sentence someone to death.” She believed
that the “death penalty should only rarely be imposed when
there is absolutely no . . . hope of rehabilitation” and that “she
would vote against the death penalty were it on a ballot.”
D.D. stated that “life without [the] possibility of parole is okay
for the most heinous crimes imaginable.” She “acknowledge[d]
that the death penalty may be appropriate for only repeat
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offenders” and stated “the death penalty is never appropriate
for first-time offenders.” When asked, “Is there anything about
your present state of mind that you feel any of the attorneys
would like to know,” she responded, “I doubt seriously that I
would impose a death penalty. My verdict would be affected if
I was asked to vote guilty with a punishment of death as
opposed to guilty with life imprisonment.” Upon considering
Prospective Juror D.D.’s written and oral responses, the court
found that her “current state of mind is such that her feelings
against the death penalty would substantially interfere with
her ability to perform as a juror in a case in which the death
penalty was a possible penalty.”
2. Discussion
“ The federal constitutional standard for dismissing a
prospective juror for cause based on his or her views of capital
punishment is ‘ “[w]hether the juror’s views would prevent or
substantially impair the performance of h[er] duties as a juror
in accordance with h[er] instructions and h[er] oath.” ’ ”
(People v. Friend (2009) 47 Cal.4th 1, 56, quoting Uttecht v.
Brown (2007) 551 U.S. 1, 7.) “ ‘ “There is no requirement that
a prospective juror’s bias against the death penalty be proven
with unmistakable clarity.” ’ ” (People v. Abilez (2007)
41 Cal.4th 472, 497.) As the high court has observed, many
prospective jurors “simply cannot be asked enough questions to
reach the point where their bias has been made ‘unmistakably
clear’; these [prospective jurors] may not know how they will
react when faced with imposing the death sentence, or may be
unable to articulate, or may wish to hide their true feelings.
Despite this lack of clarity in the printed record, however,
there will be situations where the trial judge is left with the
definite impression that a prospective juror would be unable to
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faithfully and impartially apply the law.” (Wainwright v. Witt
(1985) 469 U.S. 412, 424–426, fn. omitted.) “[W]hen there is
ambiguity in the prospective juror’s statements, ‘the trial
court, aided as it undoubtedly [is] by its assessment of [the
prospective juror’s] demeanor, [is] entitled to resolve it in favor
of the State.’ ” (Uttecht v. Brown, at p. 7.) We review the trial
court’s ruling for substantial evidence.
Prospective Juror D.D. said she was against the death
penalty and did not believe that she had the right to take part
in a decision that would deprive a person of his life. She also
believed her feelings about the death penalty would
substantially interfere with her ability to function as a juror in
this case and were so strong she “[p]ossibly” would never find a
special circumstance to be true.
Although Prospective Juror D.D. acknowledged her
feelings about the death penalty were not so strong that she
would never impose the death penalty in any case, she
described a death verdict as “really a serious leap of some sort
— and I’m not sure I’d be able to make it — to impose the
death penalty,” and she said she “doubt[ed] seriously that [she]
would impose a death penalty.” She suggested she might be
able to impose the death penalty on “someone like Jeffrey
Dahmer, if the death penalty had been appropriate in his
case. . . . Severe human crimes, mass murders of numbers, lots
of different people, and other . . . heinous circumstances
involved would lead me to impose the death penalty; but it
would have to be something very extreme and very severe.”
Beck and Cruz also assert Prospective Juror D.D. was
qualified to serve because she offered examples of when she
believed the death penalty was appropriate. “But the mere
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theoretical possibility that a prospective juror might be able to
reach a verdict of death in some case does not necessarily
render the dismissal of the juror” erroneous. (People v.
Martinez (2009) 47 Cal.4th 399, 432.) We concluded
substantial evidence supported the excusal of the prospective
juror in Martinez (id. at p. 433) who said she might be able to
impose the death penalty for “ ‘particularly heinous’ ” crimes,
to “recidivists” (id. at p. 428), and “ ‘it would have to be
something that would push me beyond the way I normally feel
about the death penalty’ ” but “ ‘that could happen’ ” (id. at
p. 429). The same reasoning supports the excusal of D.D. The
trial court, which heard D.D.’s responses, was left with the
definite impression that she was substantially impaired, and
that determination is supported by substantial evidence.
Beck asserts that the trial court’s voir dire was
inadequate because it denied counsel the opportunity to ask
Prospective Juror D.D. follow-up questions or to rehabilitate
her. Likewise, Cruz asserts that no deference is due a trial
court’s determination of a prospective juror’s state of mind
when the defense objects to excusal but is not permitted to ask
follow-up questions and that the erroneous refusal to allow
counsel to ask questions on voir dire was prejudicial.
The United States Constitution “does not dictate a
catechism for voir dire, but only that the defendant be afforded
an impartial jury.” (Morgan v. Illinois (1992) 504 U.S. 719,
729, italics omitted.) At the time of the 1992 trial, the jury
selection provisions of Proposition 115, codified in Code of Civil
Procedure former section 223, applied to this case. (Code Civ.
Proc., former § 223, added by Prop. 115, as approved by voters
Primary Elec. (June 5, 1990); Tapia v. Superior Court (1991)
53 Cal.3d 282, 299−300 [jury voir dire provisions of Prop. 115
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Opinion of the Court by Liu, J.
apply to all trials occurring after the proposition’s effective
date].) Former section 223 provided in relevant part: “In a
criminal case, the court shall conduct the examination of
prospective jurors. However, the court may permit the parties,
upon a showing of good cause, to supplement the examination
by such further inquiry as it deems proper, or shall itself
submit to the prospective jurors upon such a showing, such
additional questions by the parties as it deems proper.”
Accordingly, the trial court here properly assumed primary
responsibility for questioning prospective jurors. (People v. Box
(2000) 23 Cal.4th 1153, 1178−1179.) Moreover, as Cruz’s
counsel observed when discussing the voir dire of a different
prospective juror, “[t]he Court has permitted us to submit
questions in the course of jury selection.”
In addition, a trial court “has wide discretion in deciding
what questions should be asked on voir dire to determine
potential jurors’ biases. [Citation.] ‘It abuses that discretion if
its failure to ask questions renders the defendant’s trial
“ ‘fundamentally unfair’ ” or “ ‘ “if the questioning is not
reasonably sufficient to test the jury for bias or
partiality.” ’ ” ’ ” (People v. Harris (2013) 57 Cal.4th 804, 831
(Harris); People v. Stitely (2005) 35 Cal.4th 514, 540 (Stitely)
[“the trial court has broad discretion over the number and
nature of questions about the death penalty”].) Here, Beck and
Cruz fail to identify how the trial court’s voir dire was lacking
or what questions trial counsel could have asked Prospective
Juror D.D. that would have resolved the ambiguity in her
responses. Hence they fail to demonstrate the trial court
abused its discretion in not permitting the parties to further
question D.D.
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Beck and Cruz further contend that Prospective
Juror D.D.’s missing juror questionnaire and proposed voir dire
questions counsel submitted to the court render the record
inadequate for appellate review and require reversal of the
penalty judgment. Although we do not condone the loss of any
prospective juror questionnaires in a capital case (Cal. Rules of
Court, rule 8.610(a)(1)(R)), “[t]he record on appeal is
inadequate . . . only if the complained-of deficiency is
prejudicial to the defendant’s ability to prosecute his appeal.
[Citation.] It is the defendant’s burden to show prejudice of
this sort.” (People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8
(Alvarez); cf. People v. Townsel (2016) 63 Cal.4th 25, 69 [record
lacking either specification of “the materials the trial court
reviewed in ruling on the Pitchess motion or any particularized
description of them, is inadequate to permit meaningful
appellate review”].)
As can be seen from the discussion above, much of
Prospective Juror D.D.’s now missing juror questionnaire was
read into the record during the trial court’s ruling on the
challenge for cause. At no time did any of the four defendants
or the prosecutor object that the trial court had misstated a
question or answer in the questionnaire. “In the absence of
any indication from defense counsel at the time of the trial
court’s ruling” that the court “was misrepresenting the
contents of the questionnaire[] upon which” the court relied, we
see no reason to question the court’s recitation of that
questionnaire. (People v. Heard (2003) 31 Cal.4th 946, 971
(Heard).) Nor is it apparent how D.D.’s responses to other
questions not recounted by either the trial court or counsel
could possibly remove the ambiguity present in her voir dire
responses or alter the deference accorded to the trial court’s
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ruling. (See People v. Haley (2004) 34 Cal.4th 283, 305−306
[“Defendant fails to show prejudice because he does not explain
how the missing juror questionnaires undermine” the
circumstance that on voir dire “each of the challenged jurors
gave equivocal or conflicting statements as to whether they
could impose the death penalty”].)
As for counsels’ proposed questions to Prospective
Juror D.D., we have already observed that Beck and Cruz fail
to identify how the trial court’s voir dire was lacking or what
questions trial counsel could have asked D.D. that would have
resolved the ambiguity in her responses. Contrary to their
assertion, they could provide this information on appeal
without reference to the proposed questions actually given to
the trial court that are apparently now no longer in the record.
Hence the absence of what questions counsel previously
proposed does not deprive them of meaningful appellate
review. In sum, the record is adequate to address Beck and
Cruz’s claims that the trial court improperly excused
Prospective Juror D.D.
b. Other Prospective Jurors
Cruz further asserts that the trial court erred in
sustaining challenges for cause to Prospective Jurors B.D. and
C.F. based on their death penalty views. Beck also challenges
the excusal of these two prospective jurors as well as the
excusal of Prospective Jurors E.D., C.S., C.D., D.M., C.G., P.J.,
and E.M.
1. Prospective Juror B.D.
On Prospective Juror B.D.’s juror questionnaire, when
asked, “What are your general feelings regarding the death
penalty,” B.D. replied, “Undeci[d]ed.” When asked, “Do you
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feel that a jury should determine the punishment in a criminal
case,” he replied “No.” When asked, “Under what
circumstances, if any, do you believe that the death penalty is
appropriate,” he answered, “None.” When asked, “Under what
circumstances, if any, do you believe that the death penalty is
not appropriate,” B.D. replied “All.” In response to the
question, “Could you set aside your own personal feelings
regarding what you think the law should be regarding the
death penalty, and follow the law as the Court instructs you,”
he replied, “No,” explaining, “I can’t change my opp[osition] of
the [d]eath penalty.”
Prospective Juror B.D. also responded, “No,” when asked
if either the death penalty or life imprisonment without the
possibility of parole “should be automatic for any particular
type of crime.” He believed in the adage, “[a]n eye for an eye.”
He answered, “Not sure,” when asked how he would vote if the
issue of whether California should have a death penalty law
were on the ballot. When asked if he believed “the state should
impose the death penalty on everyone who, for whatever
reason, murders another human being,” B.D. responded “No,”
explaining, “not in self-[d]efen[s]e.”
Prospective Juror B.D. did not provide answers to
numerous other questions regarding the death penalty, such as
whether his views about the death penalty had changed
substantially in either intensity or nature in the last few years,
his feelings about the punishment of life imprisonment without
the possibility of parole, his level of support for imposition of
the death penalty, what purpose he believed the death penalty
served, what information he would like to make a penalty
decision, and whether he believed the death penalty was
imposed too often, too seldom, or randomly.
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On voir dire, the court asked Prospective Juror B.D.,
“Have your views about the death penalty changed
substantially in the last few years?” He answered, “No.” The
court asked, “What are your feelings about punishment of life
in prison without the possibility of parole?” B.D. responded, “I
agree with it.” The court asked B.D. about a question that had
asked B.D. to pick a response that most accurately described
his view on the death penalty and for which he had not
provided a written answer. B.D. replied, “Oppose,” but also
noted that in his view the death penalty served as a deterrent.
The court asked, “Do you feel the death penalty . . . is imposed
either too often, too seldom, or randomly?” B.D. replied,
“Randomly.” The court noted when B.D. was asked on the
questionnaire, “ ‘Under what circumstances, if any, do you
believe the death penalty [is] appropriate’ you put down,
‘None.’ Could you go ahead and explain what you meant by
that answer?” B.D. replied, “I don’t believe in the death
penalty. I don’t believe it’s my place to judge a man.”
The court subsequently asked, “Do you have feelings
about the death penalty which are so strong that you would
never vote for first degree murder,” or “find a special
circumstance to be true?” Prospective Juror B.D. replied, “No.”
The court asked, “Do you have feelings about the death penalty
which are so strong that you would never impose the death
penalty in any case whatsoever?” B.D. replied, “Yes.” The
court asked, “Do you have feelings about the death penalty
which you believe would substantially interfere with your
ability to function as a juror in this case?” B.D. replied, “Yes.”
The prosecutor challenged Prospective Juror B.D. for
cause, and the trial court sustained the challenge, and denied
defense counsels’ requests for sequestered voir dire and
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submission of written questions. The trial court stated:
“[B]ased on [Prospective Juror B.D.’s] answers to questions in
the questionnaire, . . . he believed the death penalty was
appropriate in no circumstances . . . [and] was not appropriate
in all cases. . . . [H]e cannot change his opinion regarding the
death penalty. His failure to answer a number of death
penalty related questions, the Court feels that those answers
indicate a very strong opinion, feeling against the death
penalty, which far outweighs his undecided answer in
[response to a question asking for his general feelings
regarding the death penalty]. His general feelings about the
death penalty — his feelings I believe are confirmed by his
answers orally in court, that he would never impose the death
penalty under any circumstances whatsoever. Accordingly, the
Court concludes that [B.D.] has feelings about the death
penalty that are so strong that . . . his ability to serve as a
juror in this case would be substantially impaired if he were to
come to the point where he had to vote on which sentence was
appropriate, death or life without the possibility of parole.”
No error appears in excusing Prospective Juror B.D. for
cause. Although on his questionnaire he stated that he
believed in the adage “[a]n eye for an eye” and that he did not
believe the death penalty should be imposed in cases of self-
defense, his voir dire responses, which the trial court observed,
were consistent with respect to his inability to consider the
death penalty. Substantial evidence supports the court’s
ruling.
2. Prospective Juror C.F.
Prospective Juror C.F.’s juror questionnaire is not
contained in the record. On voir dire, the trial court asked, “In
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answering the questionnaire, you said that your feelings about
the death penalty were very mixed. Will you tell us what those
mixed feelings are?” C.F. replied, “I would have a hard time
going for the death penalty,” explaining, “I don’t really think
it’s the ultimate answer.” The court asked, “Do you have any
religious or other reasons that you feel that you could not sit in
judgment on the conduct of a fellow human being?” C.F.
replied, “No.” The court asked, “What are your feelings about
[the] punishment of life in prison without the possibility of
parole?” C.F. replied, “I could handle that.” When asked,
“What purpose do you believe the death penalty serves,” she
replied, “I don’t think it serves any purpose.” The court
subsequently asked, “Can you tell us any circumstances where
you think the death penalty is appropriate and not
appropriate?” C.F. responded, “I don’t think it’s appropriate.”
The court again asked, “Is there any situation in which you
believe the death penalty is appropriate?” C.F. replied, “No.”
When asked, “Do you have feelings about the death penalty
which are so strong that you would never be able to vote for
first degree murder,” or “find a special circumstance to be
true,” C.F. replied, “Yes.” The court asked, “Do you have
feelings about the death penalty which are so strong that you
would never impose the death penalty in any case
whatsoever?” C.F. replied, “Yes.” The court asked, “Do you
have feelings about the death penalty which you believe would
substantially interfere with your ability to function as a juror
in this case?” C.F. replied, “Yes.”
The prosecutor challenged Prospective Juror C.F. for
cause. Both Beck and Cruz unsuccessfully sought sequestered
voir dire and the “opportunity of giving follow-up questions.”
The court sustained the challenge, stating: “The Court feels
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that the answers given here in open court clearly reflect
[C.F.’s] state of mind and belief against the death penalty. She
would never impose it. She feels it so strongly, she would
never even vote for a first degree murder conviction. Her
ability to perform her duties as a juror in this type of case
would be substantially impaired. The Court finds in the
written questionnaire, her answer to [No.] 108 she had mixed
feelings, [No.] 110 she did not feel that the death penalty
should be automatic for any particular type of crime . . . . All of
those answers clearly reflect her feeling, and the Court finds
that those feelings and beliefs are not diminished by the one
answer to [No.] 115 that she would consider the death
penalty.”
No error appears in excusing Prospective Juror C.F. for
cause. Although on her questionnaire she stated that her
views on the death penalty were “mixed” and that she would
consider the death penalty, her voir dire responses were
consistent with respect to her inability to consider the death
penalty, and substantial evidence supports the court’s ruling.
Beck and Cruz further contend that Prospective
Juror C.F.’s missing juror questionnaire and the missing
proposed questions counsel submitted to the court render the
record inadequate for appellate review, and require reversal of
the penalty judgment. But the court recited in its ruling
without objection several of Prospective Juror C.F.’s
questionnaire responses, and any ambiguity in her
questionnaire regarding her feelings on the death penalty was
clarified in her consistent answers on voir dire that she would
never impose the death penalty in any case. Thus, the absence
of the questionnaire from the record does not prevent
meaningful review of defendants’ claim C.F. was wrongfully
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excused for cause. (Alvarez, supra, 14 Cal.4th at p. 196, fn. 8.)
As for counsel’s proposed questions to C.F. that are now no
longer in the record, Beck and Cruz fail to identify how the
trial court’s voir dire was lacking or what questions could have
been asked of C.F. that would have mitigated her absolute
refusal to impose the death penalty — information that Beck
and Cruz could have provided in their briefing without
reference to the proposed questions that counsel actually gave
to the trial court. In sum, the record is adequate to address
Beck and Cruz’s claim regarding the excusal of C.F.
3. Remaining challenged prospective jurors
Beck also summarily challenges the excusal of
Prospective Jurors E.D., C.S., C.D., D.M., C.G., P.J., and E.M.
He broadly contends that “in almost every instance” for these
seven prospective jurors, the trial court based the excusal on
the prospective juror’s questionnaire, made “little or no
attempt to rehabilitate or inquire into these jurors’ opinions,”
but merely asked the standard four “Witherspoon-Witt”
questions, apparently refused to ask “additional written
questions posed by defense counsel,” and refused to allow
defense counsel to rehabilitate the prospective jurors before
they were excused. He claims this procedure is similar to the
error by the trial court in Heard, supra, 31 Cal.4th 946, and
speculates that had these prospective jurors been further
questioned, they “may well have been passed for cause.”
We conclude there was no error with respect to any of
these jurors in light of the following substantial evidence in the
record supporting the trial court’s rulings:
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(a) Prospective Juror E.D.
On the juror questionnaire, Prospective Juror E.D.
replied “Yes” when asked if her “religious views [would] in any
way affect [her] service as a juror,” explaining, “Here the death
penalty is a possibility.” When asked, “For religious or any
other reason, do you feel you cannot sit in judgment on the
conduct of a fellow human being,” she said “No,” explaining,
“Only if it didn’t involve the death penalty.” When asked, “Do
you have any beliefs about the guilt or innocence of the
defendants or the penalty, if any, they should receive if found
guilty,” E.D. replied, “Yes,” explaining, “I don’t believe in the
death penalty.” When asked her “general feelings regarding
the death penalty,” E.D. answered, “I could never in good
consci[ence] vote for the death penalty. I believe only God has
that right.” When asked, “Have your views about the death
penalty changed substantially in either intensity or nature in
the last few years,” she answered, “I have always felt I couldn’t
vote for the death penalty.” When asked which “entry . . . best
describes your feeling about the death penalty,” she chose,
“Will never under any circumstances impose [the] death
penalty.” When asked, “If called upon to decide penalty, what
information would you like to have to help you make that
decision,” she answered, “No info would help in view of my
feelings.” In response to the question, “Could you set aside
your own personal feelings regarding what you think the law
should be regarding the death penalty, and follow the law as
the Court instructs you,” she replied, “No,” explaining, “I feel
too strongly against the death penalty.” When asked, “Do you
have any reason whatsoever to think you might not be a
completely fair and impartial juror in this case,” she responded
“Yes,” explaining, “My feelings on the death penalty.”
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On voir dire, the court asked Prospective Juror E.D., “Do
you have feelings about the death penalty which are so strong
that you would never impose a death penalty in any case
whatsoever?” She answered “Yes.” When asked if her feelings
were “so strong that you would never even convict somebody of
first degree murder,” she responded, “I could convict them, but
I could never follow through on the second phase of the death
penalty.” The court asked, “Do you have feelings about the
death penalty which you believe would substantially interfere
with your ability to function as a juror in this case?” E.D.
answered, “With a Phase Two. It would affect probably the
other, although I think I could do the other probably up to that
point.” The court asked, “How about Phase Two,” and she
replied, “Phase Two I have problems with.” The court asked,
“How severe would those problems be?” She said, “I think I
would have trouble living with myself.” The court asked, “The
feeling about having trouble living with yourself, would that be
if you voted to impose the death penalty?” She replied, “I feel
that I would have to oppose it; and if everyone else was for it, I
feel that it’s the law and that is the right they should have; but
I couldn’t do it and I wouldn’t want to foul up the case by being
the only one to not vote for it, because I feel so strongly.”
The prosecutor challenged Prospective Juror E.D. for
cause. Over defense objection, the court sustained the
challenge, stating: “I will find, in view of [E.D.’s] answers
orally given here in court, as well as those set forth in her
questionnaire, that [E.D.] never under any circumstances in
any case would impose a death penalty. I think all of her
answers make that unmistakably clear. The manner in which
she has given those answers leads the Court to believe that she
is completely honest . . . . I find [E.D.] completely truthful and
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her beliefs are very deep and long lived and that she cannot
perform her function as a juror in this case in that there may
be a time when the jurors have to decide whether the death
penalty is the penalty to be imposed.” The court also observed
that “when a juror makes it absolutely and unmistak[ably]
clear that he or she . . . [would] never impose a death penalty,
there is no requirement that there be an attempt to . . .
‘rehabilitate’ . . . that juror.”
(b) Prospective Juror C.S.
On the juror questionnaire, Prospective Juror C.S.
replied “Yes” when asked if his “religious views [would] in any
way affect [his] service as a juror,” explaining, “No capital
punishment.” When asked, “For religious or any other reason,
do you feel you cannot sit in judgment on the conduct of a
fellow human being,” he said “No,” explaining, “Unless my
absolute opposition to the death penalty is involved in such
judging.” When asked, “If you were in the position of the
defendants or the prosecutor, would you be satisfied to have
your case tried with 12 jurors of your present frame of mind,”
C.S. replied, “Not if anyone is looking for the death penalty.”
When asked his “general feelings regarding the death penalty,”
C.S. answered: “Life is sacred. Life is a gift. Neither men nor
the State have a moral right to take life.” Although C.S.’s
writing is difficult to decipher, he appears to also say:
“Any[one] who does so has God’s judgment upon him. Men and
states punish by killing — only to perpetuate the cycle, which
is a sin against love.”
When asked which “entry . . . best describes your feeling
about the death penalty,” Prospective Juror C.S. chose, “Will
never under any circumstances impose [the] death penalty.”
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He explained, “There is no other alternative possible for a
religious consciousness where the ultimate issue of Life is Love
or death.” When asked, “Under what circumstances, if any, do
you believe that the death penalty is appropriate,” he
answered, “Never.” In response to the question, “Could you set
aside your own personal feelings regarding what you think the
law should be regarding the death penalty, and follow the law
as the Court instructs you,” he replied, “No,” explaining,
“Never.” When asked, “Do you have any reason whatsoever to
think you might not be a completely fair and impartial juror in
this case,” he responded “No,” adding, “[e]xcept for the death
penalty.”
On voir dire, the trial court asked Prospective Juror C.S.,
“Do you have feelings about the death penalty which are so
strong that you would never impose the death penalty in . . .
any case whatsoever?” He answered, “Yes.” The court asked,
“Do you have feelings about the death penalty which you
believe would substantially interfere with your ability to
function as a juror in this case?” After discussion regarding
whether a yes or no answer was sought, C.S. said, “If the case
puts the defendants at risk for the death penalty, then I
believe my feelings are such that they would not make me . . .
an appropriate juror.”
The prosecutor challenged Prospective Juror C.S. for
cause. Over defense objection, the court sustained the
challenge, stating: “I think his answers to the questionnaire
and in open court make it absolutely clear that [C.S.] is
completely opposed to the death penalty and would never
impose it in any case whatsoever under any situation
whatsoever.”
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(c) Prospective Juror C.D.
On the juror questionnaire, when asked his “general
feelings regarding the death penalty,” Prospective Juror C.D.
answered: “Because of the irrevers[i]bility of the penalty and
because of the chance, no matter how remote, that an innocent
person could be found guilty, I do not believe that it is an
appropriate penalty. Mistakes do happen.” When asked if he
felt “life without [the] possibility of parole should be automatic
for any particular type of crime,” he answered, “Yes,”
explaining, “[m]urder.” When asked which “entry . . . best
describes your feeling about the death penalty,” he chose, “Will
never under any circumstances impose [the] death penalty.”
When asked, “Under what circumstances, if any, do you believe
that the death penalty is appropriate,” he answered, “None.”
In response to the question, “Could you set aside your own
personal feelings regarding what you think the law should be
regarding the death penalty, and follow the law as the Court
instructs you,” he replied, “Yes,” but commented, “Could not
support death penalty.”
On voir dire, the trial court asked Prospective Juror C.D.,
“Do you have feelings about the death penalty which are so
strong that you would never find a special circumstance to be
true?” He answered, “Yes.” The court asked, “Do you have
feelings about the death penalty which are so strong that you
would never impose the death penalty in any case
whatsoever?” He answered, “Yes.” The court asked, “Do you
have feelings about the death penalty which you believe would
substantially interfere with your ability to function as a juror
in this case?” He answered, “Yes.”
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The prosecutor challenged Prospective Juror C.D. for
cause. The court sustained the challenge.
(d) Prospective Juror D.M.
No juror questionnaire for Prospective Juror D.M.
appears in the record. On voir dire, the trial court asked D.M.
if she felt the death penalty was “imposed too often, too
seldom, or randomly?” D.M answered: “I know we have people
on death row right now. I would assume that once is too often,
for me too often.” The court asked, “Do you have feelings about
the death penalty which are so strong that you would never
impose the death penalty in any case whatsoever?” She
answered, “Yes.” The court asked, “Do you have feelings about
the death penalty which you believe would substantially
interfere with your ability to function as a juror in this case?”
She answered, “Yes.”
The court described the alternative penalties and when a
jury was permitted to choose the death penalty. After it
finished this explanation, D.M. stated she was “for life
without.” The court asked, “Would you ever be able to vote for
the death penalty?” D.M. said, “I’ve never been in this
situation. . . . I believe in life imprisonment without parole.”
The court asked, “My question to you, though, is this: Under
the law of the state of California, the death penalty is an
alternative under circumstances that I’ve described to you. If
you found those circumstances, would you be able to put your
beliefs aside and vote for the death penalty?” D.M. replied, “I
don’t think so.”
The prosecutor challenged Prospective Juror D.M. for
cause. Over defense objection, the court sustained the
challenge, stating: “The Court will find that the answers of
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[D.M.], both orally and in writing, and the manner of giving
those answers leads the Court to believe that [D.M.] has a
belief against the death penalty which would substantially
impair her ability to serve as a juror in this case should she get
to the point where the death penalty was an option. I cite
specifically question No. 108, she does not believe in the death
penalty. [No.] 115, she opposes it. [No.] 116, it serves no
purpose. [No.] 118, one imposition of the death penalty is too
much. [No.] 122, she would vote against it. [No.] 127, the
death penalty is never appropriate. And [No.] 128, life without
possibility of parole would always be appropriate.”
Beck contends that Prospective Juror D.M.’s missing
juror questionnaire renders the record inadequate for appellate
review and requires reversal of the penalty judgment. But the
court recited in its ruling without objection several of D.M.’s
questionnaire responses, and at voir dire, she consistently
stated she would never impose the death penalty in any case.
Thus, the absence of the questionnaire from the record does
not prevent meaningful review of Beck’s claim D.M. was
wrongfully excused for cause.
(e) Prospective Juror C.G.
No juror questionnaire for Prospective Juror C.G.
appears in the record. At voir dire, the trial court asked
Prospective Juror C.G., “What are your feelings about the
death penalty?” She replied, “I’m against it.” The court asked,
“Do you have feelings about the death penalty which are so
strong that you would never impose the death penalty in any
case whatsoever?” She replied, “Right.” The court asked, “Do
you have feelings about the death penalty which you believe
would substantially interfere with your ability to function as a
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juror in this case?” She replied, “I guess so.” The court asked,
“Would you be able to put your beliefs against the death
penalty aside and vote to impose the death penalty after
hearing the law and the evidence if you felt that the death
penalty was the appropriate . . . disposition?” C.G. replied,
“No, I wouldn’t.”
The prosecutor challenged Prospective Juror C.G. for
cause. Over defense objection, the court sustained the
challenge, stating: “Based on [C.G.’s] answers to Question
No[s]. 108, . . . 115, 122, 127, and answers given here orally in
court, I will find that [C.G.’s] personal beliefs and feelings
about the death penalty are such that her ability to serve as a
juror in this type of case would be substantially impaired.”
The absence of C.G.’s questionnaire from the record does not
prevent meaningful review because any ambiguity in C.G.’s
juror questionnaire regarding her feelings on the death penalty
was clarified in her consistent answers on voir dire that she
would never impose the death penalty in any case.
(f) Prospective Juror P.J.
On the juror questionnaire, when asked her “general
feelings regarding the death penalty,” Prospective Juror P.J.
answered: “I am opposed to it because I don’t think [the]
government should be in the position of taking human life.”
When asked which “entry . . . best describes your feeling about
the death penalty,” she chose, “Strongly oppose.” When asked,
“Under what circumstances, if any, do you believe that the
death penalty is appropriate,” she answered, “Can’t think of
appropriate case.” When asked, “Under what circumstances, if
any, do you believe that the death penalty is not appropriate,”
she responded, “All cases.” In response to the question, “Could
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you set aside your own personal feelings regarding what you
think the law should be regarding the death penalty, and
follow the law as the Court instructs you,” she replied, “No,”
explaining, “I could not set aside my own feelings about what is
right and impose [the] death penalty.”
On voir dire, the trial court observed that Prospective
Juror P.J. had stated in her questionnaire that she might not
be able to follow the law for religious reasons, and the court
asked if she had thought about that further. She replied,
“What I was concerned about was I would not impose the death
penalty, and that’s the only reason why I marked that
question, why I answered that question that way.” The court
asked, “Do you have feelings about the death penalty which are
so strong that you would never impose the death penalty in
any case whatsoever?” She answered, “Yes.” The court asked,
“Do you have feelings about the death penalty which you
believe would substantially interfere with your ability [to]
function as a juror in this case?” She answered, “Probably.”
The court asked, “Do you understand that if selected as a juror
and the jury got to the penalty phase that one of the decisions
you would have to make would be whether under the law and
the evidence, the death penalty was the sentence which should
be imposed?” P.J. replied, “Yes.” The court asked, “If under
the law and the evidence you felt that was the appropriate
penalty, would you be able to vote to impose it?” P.J.
answered, “No.”
The prosecutor challenged Prospective Juror P.J. for
cause. Over defense objection, the court sustained the
challenge, stating: “Based on [P.J.’s] answers here in court
that she would not be able to impose the death penalty under
any circumstances, . . . and the Court finding nothing in [P.J.’s]
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oral or written answers to suggest that there’s anything to the
contrary, I’ll find that her beliefs against the death penalty
would substantially impair her ability to be a juror in this
case.”
(g) Prospective Juror E.M.
On the juror questionnaire, Prospective Juror E.M.
answered “Yes” when asked if any of her “religious views
[would] in any way affect your service as a juror” and whether
“[f]or religious or any other reason, do you feel you cannot sit in
judgment on the conduct of a fellow human being,” explaining
“I’m against killing” in response to the first question, and “I
feel that killing another human being is wrong” in response to
the second question. When asked if she had “any beliefs
about . . . the penalty, if any, [Beck and Cruz] should receive if
found guilty,” she replied, “Yes,” explaining, “I’m against the
death penalty regardless of the crime.” When asked her
“general feelings regarding the death penalty,” E.M. answered,
“I’m against the death penalty.” When asked which “entry . . .
best describes your feeling about the death penalty,” she chose,
“Will never under any circumstances impose [the] death
penalty.” When asked, “Under what circumstances, if any, do
you believe that the death penalty is appropriate,” she
answered, “None.” In response to the question, “Could you set
aside your own personal feelings regarding what you think the
law should be regarding the death penalty, and follow the law
as the Court instructs you,” she replied, “No.”
At voir dire, the trial court asked Prospective Juror E.M.,
“[A] function of the jury, in this case, if it gets to the point of
determining penalty, is to determine whether the penalty
should be death or life in prison without the possibility of
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parole. Would you be able to . . . vote for one particular
penalty or the other?” E.M. replied, “Yes.” The trial court
observed that on the jury questionnaire, E.M. had answered,
“No” to the question, “If you were in the position of the
defendants or the prosecutor, would you be satisfied to have
your case tried with 12 jurors of your present frame of mind?”
He asked E.M if that was “still [her] feeling,” and she replied,
“I think the reason that I answered that is because I’m against
the . . . death penalty and I feel I would be biased.” The court
asked, “Do you have feelings about the death penalty which are
so strong that you would never impose the death penalty in
any case whatsoever?” E.M. answered, “Yes.” The court
asked, “Do you have feelings about the death penalty which
you believe would substantially interfere with your ability to
function as a juror in this case?” She again answered, “Yes.”
The prosecutor challenged Prospective Juror E.M. for
cause. Over defense objection, the court sustained the
challenge, stating that based on E.M.’s answers on her juror
questionnaire and “the answers given here orally in court, the
Court finds that [E.M.’s] belief against the death penalty is
such that her ability to serve in this type of case would be
substantially impaired.” As to Beck’s contention that
Prospective Juror E.M.’s missing juror questionnaire renders
the record inadequate for appellate review, this court on
January 23, 2008 accepted the parties’ stipulation that E.M.’s
questionnaire had been located, and we augmented the record
to include it.
5. Jury selection procedures
Beck and Cruz challenge certain jury selection
procedures. We conclude there was no error.
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a. Sequestered voir dire
Beck and Cruz contends the trial court erred in denying a
defense motion for individual and sequestered death-
qualification voir dire for all prospective jurors. As defendants
acknowledge, we have repeatedly rejected similar claims, and
defendants cite no persuasive reason to revisit our conclusion.
(See, e.g., People v. Capistrano (2014) 59 Cal.4th 830, 862–
864.) Moreover, in denying the motion, the trial court observed
individual sequestered voir dire might be required in some
circumstances and that counsel would have “full opportunity to
submit” proposed follow-up voir dire questions.
b. Questionnaire
Cruz, joined by Beck, contends that the trial court erred
in denying his request to ask prospective jurors on the juror
questionnaire their “perception of the meaning of the term ‘life
without the possibility of parole.’ ” He contends that “the
overwhelming majority of California capital jurors erroneously
believe that a life-without-parole sentence does not foreclose
the possibility of parole.” We reject the claim. The
questionnaire asked prospective jurors “[w]hat are your
feelings about the punishment of life imprisonment without
the possibility of parole?” This inquiry was sufficient to elicit
any concern by a prospective juror that the punishment would
not in fact be imposed. Indeed, during voir dire, LaMarsh’s
counsel observed that “after reviewing these
questionnaires, . . . there are a number of people [who] are
skeptical of the meaning of life [imprisonment] without
parole.”
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c. Partisan procedures
Beck, joined by Cruz, contends that the trial court’s jury
selection procedures favored the prosecutor. We reject the
claim.
Beck contends that “although the trial court informed
both sides that it would allow counsel to submit written
questions to be asked of the jurors . . . , the court, with rare
exception, refused to ask defense counsel’s proposed questions.”
As noted, the trial occurred at a time when voir dire was
primarily performed by the trial court. (See Code Civ. Proc.,
former § 223; see ante, pt. II.A.4.a.2.) A trial court “has wide
discretion in deciding what questions should be asked on voir
dire to determine potential jurors’ biases. [Citation.] ‘It
abuses that discretion if its failure to ask questions renders the
defendant’s trial “ ‘fundamentally unfair’ ” or “ ‘ “if the
questioning is not reasonably sufficient to test the jury for bias
or partiality.” ’ ” ’ ” (Harris, supra, 57 Cal.4th at p. 831; see
Stitely, supra, 35 Cal.4th at p. 540.)
Although Beck notes at least one occasion where it
appears the trial court did not ask certain follow-up questions
suggested by the defense, he fails to demonstrate that the
prosecutor received more favorable treatment. Beck contends
that the trial court allowed the prosecutor to use voir dire in
aid of peremptory challenges to improperly exclude
Prospective Juror M.L. We have rejected Beck’s claim that the
trial court erred in finding there was good cause to reopen jury
selection to allow the prosecutor to exercise a peremptory
challenge against Prospective Juror M.L. (See ante, pt. II.A.3.)
As pertinent here, the court solicited questions for M.L. from
counsel. Beck, Cruz, and the prosecutor suggested questions.
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But once the court began its first question to M.L., Beck and
Cruz changed their minds and objected to any questions. The
court overruled the objection and asked M.L. the very
questions Beck and Cruz had proposed. Beck and Cruz then
objected to any further questioning on the grounds that M.L.
was qualified to serve and that further questioning would
prejudice the defendants. These circumstances do not
illustrate partisan jury selection procedures.
Beck further contends that the “trial court also gave the
prosecution the exclusive benefit of expanded voir dire to
rehabilitate” Prospective Juror M.N. In fact, during the voir
dire of M.N., Cruz suggested a question that the court
immediately asked. The prosecutor was subsequently
permitted to ask a hypothetical question. As the prosecutor
started to ask a second question, Beck’s counsel objected and
then successfully challenged M.N. for cause. Beck fails to
demonstrate how this scenario “demonstrat[es] a clear bias in
favor of the prosecution.”
Finally, citing as an example Prospective Juror D.D.,
whose excusal for cause we have upheld (see ante, pt. II.A.4.a.),
Beck contends that “in every instance where a prospective
juror stated that he or she was opposed to the death penalty,
the trial court not only denied the additional written questions
posed by defense counsel, but refused to allow defense [counsel]
any opportunity to question the juror or to pose hypothetical
questions or otherwise rehabilitate these jurors.” Beck does
not claim the prosecutor’s suggested questions for D.D. were
asked or assert any other persuasive basis for concluding the
jury selection procedure was unfair. To the extent Beck
summarily contends the trial court “made no attempt to
rehabilitate or inquire into” the opinions of Prospective
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Jurors B.D and C.F., we have exhaustively reviewed the record
regarding these prospective jurors and concluded that the trial
court did not err in sustaining these challenges for cause. Nor
is any partisan procedure evident. We have also exhaustively
reviewed the record regarding the remaining seven prospective
jurors Beck claims were improperly excused but for whom he
offers no specific argument, and these portions of the record
also reveal no partisan procedure. (See ante,
pt. II.A.4.b.3.a−g.)
6. Security measures
Beck, joined by Cruz, contends that courtroom security
measures violated his right to due process. We reject the
claim.
a. Factual background
Before trial, LaMarsh objected to having three bailiffs sit
behind the four defendants. The trial court stated it did not
“see any prejudice to counsel or their clients by the seating
configuration. Your clients and counsel are approximately two
feet apart, one right behind the other. The Court does not see
any undue prejudice by having three deputy sheriffs seated
against the back rail.”
On the morning jury selection began, Beck arrived
wearing a short-sleeved shirt and no jacket, making a jail
armband visible. Outside the presence of the prospective
jurors, Beck asserted that the armband was an indicia of
incarceration and asked that it be placed around his ankle or
removed. The trial court offered to explain to the prospective
jurors that Beck and his codefendants were in custody. Beck
noted that the other defendants were wearing jackets that
“might cover these armbands, and so just at first glance, it
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might appear that [he is] the only one in custody.” The court
clarified it was offering to instruct the prospective jurors that
in a “capital case the defendants have no right to bail, they’re
in custody . . . , and that the jury should not hold that against
the defendants in any manner.” Beck asked the court to so
instruct the prospective jurors, which it did.
At the end of the guilt phase, the court instructed the
jury: “The fact that there was increased courtroom security
during the trial is not to be discussed or considered by you.
Such security measures should have no bearing on your
determination of the defendant’s guilt or innocence.”
The trial court’s order settling the record states as to
security measures during trial: “There was increased security,
including additional uniformed bailiffs in the courtroom,
perhaps one per defendant, one in an adjoining room not
visible to jurors. The courtroom was referred to as a ‘high
security courtroom.’ Entrance to the courtroom was through
more than one security entrance and could be locked
preventing both entrance and exit. During jury selection, the
lights went out for a minute or two, leaving the courtroom in
total darkness. One or more defense counsel loudly told their
clients not to move. [¶] On one occasion when the lights were
turned off during the presentation of slides, bailiffs shined
flashlights on the defendants. The record speaks for itself as to
any hearings and findings on security issues and defense
objections. Judge Lacy did discuss security with the bailiffs
and perhaps the courtroom clerk and court reporter. These
discussion[s] may not have been reported. No findings about
the content of these discussions are possible.” The court also
found that “[d]efense counsel sat at the table to the right; the
[defendants] sat behind their attorneys. The bailiffs sat behind
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the [defendants]. The district attorney and his investigator sat
at the table to the left. There was no change at the penalty
trial for Cruz except that there were fewer bailiffs in the
courtroom. After the first day of Beck’s penalty trial, the
matter was moved to another courtroom.”
b. Analysis
Beck contends the trial court prejudicially erred by
“ordering heightened security measures without conducting an
evidentiary hearing and without making a proper showing on
the record of a manifest need for such measures.” Beck
appears to contend that the trial court was required to hold an
evidentiary hearing and find a “manifest need” for his visible
arm band and for several security measures mentioned in the
trial court’s order settling the record. Assuming this claim is
preserved, it is meritless.
“Central to the right to a fair trial, guaranteed by the
Sixth and Fourteenth Amendments, is the principle that ‘one
accused of a crime is entitled to have his guilt or innocence
determined solely on the basis of the evidence introduced at
trial, and not on grounds of official suspicion, indictment,
continued custody, or other circumstances not adduced as proof
at trial.’ ” (Holbrook v. Flynn (1986) 475 U.S. 560, 567.)
“[E]xtraordinary security practices carry an inordinate risk of
infringing upon a criminal defendant’s right to a fair trial” and
“must be justified by a particularized showing of manifest need
sufficient to overcome the substantial risk of prejudice they
pose.” (People v. Stevens (2009) 47 Cal.4th 625, 632 (Stevens).)
For example, requiring a defendant to wear a visible physical
restraint or prison clothing when appearing before the jury
“may erode the presumption of innocence because [it]
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suggest[s] to the jury that the defendant is a dangerous person
who must be separated from the rest of the community.” (Id.
at pp. 632−633; People v. Taylor (1982) 31 Cal.3d 488, 494
[prison clothing]; People v. Duran (1976) 16 Cal.3d 282,
290−291 [physical restraint].)
“This does not mean, however, that every practice
tending to single out the accused from everyone else in the
courtroom must be struck down.” (Holbrook v. Flynn, supra,475 U.S. at p. 567.) Rather, a “ ‘trial court has broad power to
maintain courtroom security and orderly proceedings,’ ” and
“decisions regarding security measures in the courtroom are
generally reviewed for abuse of discretion.” (Stevens, supra,47 Cal.4th at p. 632.) Only “when the court imposes a measure
that is inherently prejudicial to the defendant’s right to assist
in his defense, competently present his own testimony, or enjoy
the presumption of innocence,” must the court “find a manifest
need sufficient to justify the risk of prejudice.” (Id. at p. 643.)
We consider first Beck’s claim regarding his armband.
Beck’s appearance at the first day of jury selection without a
jacket made visible an armband that, although the record is
not clear, apparently identified him as a jail inmate. Although
a defendant has a right not to stand trial wearing clothing or
other items that identify him or her as incarcerated, any
possible prejudice from the prospective jurors’ awareness that
Beck was in custody was ameliorated by the trial court’s
concomitant instruction to the prospective jurors that capital
defendants have no right to bail and are in custody, and that
the jury should not hold that against the defendants in any
manner. Moreover, at the end of the guilt phase, the court
instructed the jury that the “fact that there was increased
courtroom security during the trial is not to be discussed or
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considered by you” and “should have no bearing on your
determination of the defendant’s guilt or innocence.” We
presume the jury understood and followed these instructions.
(People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1178
(Hajek and Vo).)
Beck also challenges the presence of deputies in the
courtroom. He asserts that “[w]ithout an evidentiary hearing
on the issues of courtroom security, including the courtroom
configuration and previously existing security measures, it is
impossible to conclude that the presence of four deputies, with
three sitting directly behind the defendants, was ‘reasonable.’ ”
In Duran, “we specifically distinguished shackling from the use
of armed guards in the courtroom. [Citation.] We explained
that unless the guards ‘are present in unreasonable numbers,
such presence need not be justified by the court or the
prosecutor’. . . . California courts have long maintained this
distinction between the presence of security officers and the
imposition of physical restraints.” (Stevens, supra, 47 Cal.4th
at p. 634, citation omitted.) Here, the court reasonably
assigned three bailiffs to sit behind the four defendants. (See
Holbrook v. Flynn, supra, 475 U.S. at p. 571 [“Four troopers
are unlikely to have been taken as a sign of anything other
than a normal official concern for the safety and order of the
proceedings,” and “any juror who for some other reason
believed defendants particularly dangerous might well have
wondered why there were only four armed troopers for the six
defendants”].) Likewise, no inherent prejudice is shown by
guards shining flashlights on the backs of the defendants when
the lights were turned off so that slides could be shown. Nor
was there inherent prejudice when defense counsel told
defendants not to move when power was lost once during the
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trial, assuming that counsel’s action could be imputed to the
court.
Beck also asserts that requiring spectators and witnesses
to pass through more than one security entrance to enter the
courtroom was inherently prejudicial, but he cites no evidence
the jury was aware of this security measure. Nor is such a
measure inherently prejudicial. (See People v. Jenkins (2000)
22 Cal.4th 900, 996 [use of a metal detector outside of a
courtroom is not inherently prejudicial].)
Beck also notes the courtroom was referred to as a “high
security courtroom,” although again he does not assert the jury
was aware of that characterization. Likewise, he notes the
circumstance that the “entrance to the courtroom could be
locked preventing both entrance and exit,” but does not state
the courtroom was ever locked when the jury was inside the
courtroom; nor does he explain how this circumstance was
prejudicial.
Beck contends that “the heightened security measures
reinforced the prosecutor’s theory at the penalty phase that
Beck was deserving of death because of his future
dangerousness.” As noted, Beck’s penalty trial took place in a
different courtroom, about which he created no record below.
Nor have we found any inherent prejudice in the security
measures employed during the guilt phase.
In sum, the trial court did not abuse its discretion as to
the challenged security measures.
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B. Guilt Phase Issues
1. Substantial evidence
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether
it contains substantial evidence — that is, evidence that is
reasonable, credible, and of solid value — from which a
reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt.’ (People v. Lindberg (2008) 45 Cal.4th 1,
27.) We determine ‘whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.’ (Jackson v. Virginia (1979)
443 U.S. 307, 319.) In so doing, a reviewing court ‘presumes in
support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.’ ” (People v.
Edwards (2013) 57 Cal.4th 658, 715.) “ ‘We review the
sufficiency of the evidence to support an enhancement using
the same standard we apply to a conviction.’ ” (People v. Wilson
(2008) 44 Cal.4th 758, 806.)
a. Conspiracy to commit murder
Beck, joined by Cruz, contends that no substantial
evidence supports his conspiracy conviction. We disagree.
“ ‘Conspiracy requires two or more persons agreeing to
commit a crime, along with the commission of an overt act, by
at least one of these parties, in furtherance of the conspiracy.’ ”
(People v. Homick (2012) 55 Cal.4th 816, 870 (Homick).)
“ ‘Evidence is sufficient to prove a conspiracy to commit a crime
“if it supports an inference that the parties positively or tacitly
came to a mutual understanding to commit a
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crime. [Citation.] The existence of a conspiracy may be
inferred from the conduct, relationship, interests, and
activities of the alleged conspirators before and during the
alleged conspiracy.” ’ ” (People v. Maciel (2013) 57 Cal.4th 482,
515−516 (Maciel); Homick, at p. 870 [the element of agreeing to
commit a crime “must often be proved circumstantially”].)
Beck first contends Evans’s testimony was “so
contradictory and inherently unreliable as to violate due
process.” He asserts that she had participated in the murders
and was motivated to “save her own life,” “threatened with
losing her child[],” had “sold drugs and committed theft,” and
had lied to the police when interviewed.
“ ‘ “Although an appellate court will not uphold a
judgment or verdict based upon evidence inherently
improbable, testimony which merely discloses unusual
circumstances does not come within that category. [Citation.]
To warrant the rejection of the statements given by a witness
who has been believed by a trial court, there must exist either
a physical impossibility that they are true, or their falsity must
be apparent without resorting to inferences or deductions.
[Citations.] Conflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment,
for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of
the facts upon which a determination depends.” ’ ” (Maciel,
supra, 57 Cal.4th at p. 519.) Here, Evans’s testimony was
properly impeached by the factors Beck cites, but nothing
about her testimony was inherently unbelievable or
implausible.
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Beck further asserts that Evans’s testimony was the
“evidentiary foundation” of a conspiracy and was not
sufficiently corroborated. The court instructed the jury, “If the
crime of murder or the crime of conspiracy to commit murder
was committed by anyone, the witness Michelle Evans was an
accomplice as a matter of law and her testimony is subject to
the rule requiring corroboration.”
The “existence of a conspiracy may be proved by
uncorroborated accomplice testimony,” but corroboration of
accomplice testimony is required “to connect the defendant to
the conspiracy.” (People v. Price (1991) 1 Cal.4th 324, 444
(Price).) Here, Evans’s testimony regarding her meeting on the
night of the murders with Beck, Cruz, LaMarsh, Willey, and
Vieira is sufficient to establish the existence of a conspiracy to
murder.
Moreover, Evans’s testimony connecting Beck and Cruz
to the conspiracy was corroborated. We have explained that
under section 1111, “an accomplice’s testimony is not
corroborated by the circumstance that the testimony is
consistent with the victim’s description of the crime or physical
evidence from the crime scene. Such consistency and
knowledge of the details of the crime simply proves the
accomplice was at the crime scene, something the accomplice
by definition admits. Rather, under section 1111, the
corroboration must connect the defendant to the crime
independently of the accomplice’s testimony.” (People v.
Romero and Self (2015) 62 Cal.4th 1, 36 (Romero and Self).)
“ ‘The entire conduct of the parties, their relationship, acts,
and conduct may be taken into consideration by the trier of
fact in determining the sufficiency of the corroboration.’
[Citations.] The evidence ‘need not independently establish
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the identity of the victim’s assailant’ [citation], nor corroborate
every fact to which the accomplice testifies [citation], and
‘ “may be circumstantial or slight and entitled to little
consideration when standing alone.” ’ ” (Id. at p. 32.)
Here, both Beck and Cruz testified in their defense cases
that they were at the scene of and therefore were connected to
the murders. Cruz was identified by a witness as one of the
assailants in the street attacking Ritchey. Shortly after the
murders, Beck told acquaintance Wallace that “we” or “I” “slit
some throats.” The jury could reasonably infer Beck was
referring to the murder of the four victims in this case, whose
throats were slit or stabbed. Shortly before the murder, Beck
and Cruz purchased the police baton the parties stipulated was
found near the crime scene, and Cruz purchased masks similar
to those found at the crime scene, including a mask found
between the legs of one victim. Evans’s testimony was also
corroborated by witnesses who testified regarding the close
relationship between Beck and Cruz. This evidence was
collectively sufficient to corroborate Evans’s testimony and to
demonstrate that Beck and Cruz were part of a conspiracy to
kill the victims.
Moreover, even aside from Evans’s testimony, there was
substantial evidence of a conspiracy to murder in the
nonaccomplice testimony. The murders occurred in a short
time period late at night. The throats of all four victims were
slit or stabbed, a similarity in the manner of killing that
indicates planning and an intent to kill. Four men all dressed
alike in dark clothing were observed leaving the crime scene
together in single file. A dark knit cap and camouflage mask
were found on the victims’ front lawn and a second camouflage
mask was found between Ritchey’s legs, evidence that
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demonstrates planning and an effort to avoid detection.
(Thompson, supra, 1 Cal.5th at p. 1111 [agreement may be
shown by the “ ‘ “conduct of the defendants in mutually
carrying out an activity which constitutes a crime” ’ ”];
Rodrigues, supra, 8 Cal.4th at p. 1135 [evidence that when the
surviving victim opened the door for an expected female guest
(the defendant’s accomplice), two male assailants immediately
rushed into the apartment and started attacking the victims
and coordinated their actions with one another, demonstrated
“that the two male assailants agreed and coordinated with
each other and with [the female accomplice] to forcibly gain
access to the apartment for the purpose of robbing or stealing
from the brothers,” and “sufficiently established” the existence
of a conspiracy].) Nothing of value was taken from the house,
indicating the motivation was revenge, not theft. (Price, supra,
1 Cal.4th at p. 444 [defendant’s connection to conspiracy
demonstrated in part because “[n]othing of significant value
was taken from the home, suggesting that revenge, and not
gain, was the motive”].) In addition, the jury could reasonably
infer that Beck, Cruz, LaMarsh, and Willey visited 5223 Elm
Street two nights before the murders to learn the layout of the
home and that LaMarsh, who, according to Smith, had visited
the house next door to the victims on the afternoon before the
murders, did so to see who was in the victims’ house and to
make sure Raper and perhaps Colwell were still staying there.
Finally, Rosemary’s testimony that Beck, Cruz, and Vieira
lived together and pooled financial resources supported the
prosecutor’s theory of conspiracy. Because the object of the
conspiracy was to kill everyone present at 5223 Elm Street and
leave no witnesses, the murders of Raper, Ritchey, Colwell,
and Paris “satisfied the element of an overt act committed in
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furtherance of the conspiracy.” (Maciel, supra, 57 Cal.4th at
p. 518; People v. Jurado (2006) 38 Cal.4th 72, 121
[“Commission of the target offense in furtherance of the
conspiracy satisfies the overt act requirement.”].)
In sum, there was substantial evidence of conspiracy.
b. Personal use of a deadly or dangerous weapon
The jury found that Beck and Cruz had each personally
used a deadly or dangerous weapon in the murders of all four
victims. (Former § 12022, subd. (b) (section 12022(b)).) The
trial court imposed one additional year for Ritchey’s murder
(Count I) as to both Beck and Cruz and stayed imposition of
the use enhancement for the remaining counts. Beck, joined
by Cruz, contends that no substantial evidence supports the
jury’s true finding of the allegations that he personally used a
deadly or dangerous weapon in the murders of Raper
(Count II) and Paris (Count IV). We reject the claim.
At the time of the murders, former section 12022(b)
provided in relevant part: “Any person who personally uses a
deadly or dangerous weapon in the commission or attempted
commission of a felony shall, upon conviction of such felony or
attempted felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of
which he or she has been convicted, be punished by an
additional term of one year . . . .” (Stats. 1989, ch. 1284, § 2,
p. 5058.) “ ‘In order to find “true” a section 12022(b) allegation,
a fact finder must conclude that, during the crime or attempted
crime, the defendant himself or herself intentionally displayed
in a menacing manner or struck someone with an instrument
capable of inflicting great bodily injury or death.’ ” (Hajek and
Vo, supra, 58 Cal.4th at p. 1197.) In determining whether
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there was substantial evidence of deadly and dangerous
weapon use, “we may properly consult cases construing the
term ‘uses’ in other enhancement statutes under ‘ “The
Dangerous Weapons’ ” Control Law.” ’ ” (Id. at p. 1198.) In
that context, “ ‘[u]se’ means, among other things, ‘to carry out a
purpose or action by means of,’ to ‘make instrumental to an
end or process,’ and to ‘apply to advantage.’ ” (People v.
Chambers (1972) 7 Cal.3d 666, 672.) “The obvious legislative
intent to deter the use” of deadly and dangerous weapons in
the commission or attempted commission of a felony “requires
that ‘uses’ be broadly construed.” (Ibid.)
Here, Beck does not dispute there was substantial
evidence that he stabbed Colwell in the stomach and slit
Ritchey’s throat. Moreover, substantial evidence supports the
jury’s finding that he and his coperpetrators had conspired to
kill everyone present at 5223 Elm Street, and Beck and Cruz
each arrived at the house armed with a deadly or dangerous
weapon. Colwell, Paris, and Raper were killed inside a small
portion of the home in a short period of time. Evans testified
that she heard Paris screaming and pleading for her life about
30 seconds after Beck and Vieira went toward the living room
from a bedroom, and two to three minutes after she saw Cruz
running toward the house. LaMarsh testified that after Cruz
struck Raper in the head several times with a baton, LaMarsh
turned around and saw Vieira trying to pull Paris, who was
crying, out from under a kitchen table. At the same time,
LaMarsh saw Beck grab Colwell and stab him in the stomach.
Our review of a crime scene videotape indicates the bodies of
Colwell and Paris appear to be just several feet apart, and
Raper’s body just several more feet away from both of them.
Given these circumstances, the jury could reasonably infer that
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Beck’s knife use on Colwell and Cruz’s baton attack on Raper
facilitated the perpetrators’ plan to murder everyone present
in the house.
In People v. Cole (1982) 31 Cal.3d 568, 570, 572, on which
Beck relies, we construed former section 12022.7, which as
relevant here imposes an enhancement for a defendant who
“ ‘personally inflicts great bodily injury on any person,’ ” to
apply “only to a person who himself inflicts the injury.”
Contrary to Beck’s assertion, however, here the prosecutor was
not required to prove that Beck personally inflicted physical
harm on Raper or Paris for the former section 12022(b)
personal use enhancement to apply. Unlike former
section 12022.7, former section 12022(b) imposes an
enhancement for a defendant who “personally uses a deadly or
dangerous weapon in the commission or attempted commission
of a felony,” not for his or her conduct in personally inflicting
injury on a victim. As explained above, “use[]” is broadly
construed to include acts other than the physical infliction of
injury. Nor is such personal use of a deadly or dangerous
weapon obviated when a coperpetrator also uses a deadly or
dangerous weapon to personally inflict physical harm on a
victim.
In sum, substantial evidence supports the jury’s true
finding of the allegations that Beck and Cruz personally used a
deadly or dangerous weapon in the murders of Raper and
Paris. We also reject Beck’s further claim that the trial court
erred in failing to instruct the jury that “vicarious liability is
not a basis for a ‘true’ finding under Penal Code
section 12022(b).” This claim is likewise predicated on the
erroneous assertion that the use enhancement applies only
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when the defendant personally inflicts physical harm on the
victim.
2. Firearms and relationship evidence
Cruz, joined by Beck, contends that the trial court erred
in admitting evidence regarding Cruz’s firearms, his
relationships with Beck and Vieira, his mistreatment of Vieira,
and his cult activity, which he collectively describes as
irrelevant and prejudicial character evidence. We conclude
there was no error.
Evidence Code section 1101, subdivision (a), provides
that generally “evidence of a person’s character or a trait of his
or her character . . . is inadmissible when offered to prove his
or her conduct on a specified occasion.” At the same time,
evidence is admissible to show “that a person committed a
crime, civil wrong, or other act when relevant to prove some
fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, . . .) other
than his or her disposition to commit such an act.” (Id.,
subd. (b).)
Cruz contends that there “was no legitimate inference
from the firearm evidence [that] could be drawn under
Evidence Code section 1101, subdivision (b).” We disagree.
Cruz conceded that some evidence regarding the firearms was
admissible. Nor did he consistently object each time the
subject of firearms was raised. Moreover, all four defendants
denied that there was a conspiracy to commit murder. In
support of this denial, Willey and LaMarsh contended that the
firearms evidence demonstrated a lack of planning, reasoning
that if there was a conspiracy to kill the victims, the
defendants would have taken advantage of the weapons
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stockpile available to them rather than relying on knives and
bats. As the Attorney General notes, “[i]t is natural to assume
that if a group planned to [kill] a house full of people . . . they
would take along the most effective weapons they had.” In
addition, evidence that Cruz and Beck had militaristic aspects
to their lifestyles, such as possessing numerous firearms,
visiting gun stores, frequently wearing camouflage clothing,
and at times patrolling their residential area at night,
supported eyewitness Duval’s testimony that he observed four
men leave the Elm Street house in a single file, dog-trotting,
and with their hands in a port arms position. Finally, the
evidence was not unduly prejudicial; there was no evidence any
of the weapons were illegal, and the trial court curtailed
extraneous inquiry, such as sustaining objections to Willey
asking Cruz if he was a “gun nut” and to LaMarsh’s counsel
asking LaMarsh if he ever saw a certain rocket in Cruz’s home.
The trial court acted within its discretion in admitting the
evidence under Evidence Code section 1101(b).
The court also properly admitted evidence of Cruz’s
relationship with Beck and Vieira and Cruz’s mistreatment of
Vieira. As noted, the “ ‘existence of a conspiracy may be
inferred from the conduct, relationship, interests, and
activities of the alleged conspirators before and during the
alleged conspiracy.’ ” (Rodrigues, supra, 8 Cal.4th at p. 1135.)
Evidence that Beck, Cruz, and Vieira had formed a tight-knit,
hierarchical group who lived together and pooled financial
resources supported the prosecutor’s theory of conspiracy.
(People v. Manson (1976) 61 Cal.App.3d 102, 126 [“The very
nature of this case and the theory of the prosecution compel
reference to circumstantial evidence of the conduct and
relationship of the parties.”].) Likewise, evidence that LaMarsh
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and Willey had each separately performed a ritual (cutting a
hand and leaving a bloody fingerprint) to join that group was
relevant to the relative culpability of each defendant and his
willingness to participate in the conspiracy.
Contrary to Cruz’s assertion, the court refused to admit
evidence regarding “anything like Nazism,” “White Aryan
supremacy, [or] the occult.” The fact that questions were asked
regarding the purpose of the group, Satanism, or Cruz’s title as
head of the household, to which objections were sustained, does
not give rise to prejudice. The court instructed the jury that
“when an objection is sustained you are to disregard either the
question that was asked or if an answer was given, also the
answer.” We presume the jury understood and followed this
instruction. (Hajek and Vo, supra, 58 Cal.4th at p. 1178.)
Finally, even if the trial court erred in admitting the
evidence of firearms or of Cruz’s controlling behavior, there is
no reasonable probability the verdict would have been
different. Cruz admitted to being at the murder scene, a
nonaccomplice witness observed Cruz cutting Ritchey’s throat,
and Cruz stipulated his bloody baton was found near the
murder scene.
3. Mistrial motion
Beck, joined by Cruz, contends the trial court erroneously
denied his mistrial motion. We disagree.
Cruz testified in his own defense. On cross-examination
by Willey, Willey’s counsel, William Miller, began to ask Cruz,
“You’ve been incarcerated on this matter since —” Cruz’s
counsel, Amster, objected. Miller observed that “the jury was
informed that all defendants are incarcerated on this matter
without bail.” The trial court agreed and allowed the question.
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Miller asked, “You’ve been incarcerated on this matter since
May 23 of 1990 . . . is that correct?” Cruz replied, “I don’t
believe so.” Miller asked, “Have you been out any time since
th[en]?” Amster objected, “[I]t’s a trick question” that
“assum[ed] facts.” Amster added that if counsel wanted to “ask
the question if [Cruz has] been in custody with the police
shortly after . . . they found [him] at the Camp, that’s fine and
we can go on with this. But the way the question’s being
posed, I object strongly and . . . I’d like a sidebar on this.”
Miller explained the question was foundational, and he was
asking “has he been in custody continuously since his arrest on
this matter.” Amster said, “Fine. That’s different,” and the
court instructed Cruz to answer the question. Amster then
objected on relevance grounds, saying, “I don’t want this to be
used as foundational aspect of opening up another door. I
think this is going into [a] collateral purpose.” Miller said, “If
Mr. Amster didn’t want his client questioned, he shouldn’t
have put him on the stand.” Amster replied, “Well, let’s knock
it off,” and unsuccessfully moved for a mistrial. The court
instructed Cruz, “[Y]ou may answer the question as to whether
or not you’ve been in custody continuously since the time of
your arrest in this matter.” A short time later, out of the
presence of the jury, Beck’s counsel, Kent Faulkner, joined by
Amster, moved for a mistrial on the ground that Miller’s
comment, “If Mr. Amster didn’t want his client questioned, he
shouldn’t have put him on the stand,” had so tainted the jury
that if Beck did not testify, the jury would assume Faulkner
did not want his “client questioned and he has something to
hide.” Amster explained that he had objected to Miller’s line of
questioning because Cruz had initially been arrested in “the
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bomb case,” and Amster was concerned Cruz’s response would
open the door to exploring this charge.
The trial court denied Beck’s mistrial motion. Neither
Beck nor Cruz moved for the jury to be contemporaneously
admonished.
“ ‘A mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction.
[Citation.] Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial
court is vested with considerable discretion in ruling on
mistrial motions. [Citation.]’ [Citation.] A motion for a
mistrial should be granted when ‘ “ ‘a [defendant’s] chances of
receiving a fair trial have been irreparably damaged.’ ” ’ ”
(People v. Collins (2010) 49 Cal.4th 175, 198.) We conclude
here that Miller’s statement was not “so incurably prejudicial
that a new trial was required.” (People v. Ledesma (2006)
39 Cal.4th 641, 683.)
Miller’s statement was brief and isolated. Moreover, at
the beginning and the end of the guilt phase, the court
instructed the jury that statements of the attorneys are not
evidence. We presume it followed this instruction. (People v.
Avila, supra, 38 Cal.4th at p. 574.) Beck claims the trial court
erred in not contemporaneously admonishing the jury to
disregard Miller’s comment and instructing the jury a
defendant had the absolute right not to testify, but Beck did
not request such an admonition. In sum, the trial court acted
within its wide discretion in denying the mistrial motion.
4. Presence of defendant
Cruz, joined by Beck, citing federal and state
constitutional and statutory provisions, contends he was
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denied his right to be present at critical stages of his trial.
(U.S. Const., 6th & 14th Amends; Cal. Const., art. I, §§ 7 & 15;
§§ 977, 1043.) We disagree.
“ ‘Under the Sixth Amendment, a defendant has the right
to be personally present at any proceeding in which his
appearance is necessary to prevent “interference with [his]
opportunity for effective cross-examination.” ’ (People v. Butler
(2009) 46 Cal.4th 847, 861 (Butler), quoting Kentucky v. Stincer
(1987) 482 U.S. 730, 744–745, fn. 17.) In addition, a defendant
has a due process right ‘to be present at any stage of the
criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the procedure.’
(Kentucky v. Stincer, at p. 745.)” (People v. Lynch (2010)
50 Cal.4th 693, 745–746 (Lynch).)
A defendant also has a state statutory right to be
present. Former section 977, subdivision (b) (section 977(b))
states in relevant part that in all felony cases, “the accused
must be present . . . during those portions of the trial when
evidence is taken before the trier of fact, and at the time of the
imposition of sentence” and in general at “all other
proceedings.” And section 1043, subdivision (a) generally
provides that a felony defendant “shall be personally present at
the trial.”
We have held that “[n]either the state nor the federal
Constitution, nor the statutory requirements of sections 977
and 1043, require the defendant’s personal appearance at
proceedings where his presence bears no reasonable,
substantial relation to his opportunity to defend the charges
against him.” (Butler, supra, 46 Cal.4th at p. 861.) In
People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703,
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711, fn. 2, 712 (Safety National), for purposes of applying the
bail forfeiture statutes, we declined to apply this limitation to
former section 977(b), reasoning that the phrase “at all other
proceedings” in that section “does not distinguish between
critical and noncritical proceedings” and “suggests the
provision’s reach is inclusive, i.e., subsuming those court
proceedings not specifically listed in section 977.” We did not
reach “the precise scope of section 977 as it relates to the
constitutional right to be present”; we simply held that “a
defendant’s presence at an ‘other proceeding[]’ under
section 977(b)(1) constitutes a ‘lawfully required’ appearance
for which his or her unexcused absence may justify the
forfeiture of bail.” (Safety National, at p. 716.)
Here, Cruz challenges his lack of presence at numerous
sidebar conferences. In Safety National, we observed there is
no indication in former section 977, subdivision (b)(1), which
addresses “all other proceedings,” that “sidebars at the bench
or conferences in chambers, i.e., those proceedings that do not
occur in open court and that are often impromptu and
unscheduled, are within the scope” of that subdivision. (Safety
National, supra, 62 Cal.4th at p. 716.)
Moreover, Cruz fails to demonstrate that his “personal
presence was necessary for an opportunity for effective cross-
examination, would have contributed to the trial’s fairness, or
bore a reasonably substantial relation to the fullness of his
opportunity to defend the charges against him.” (Lynch, supra,50 Cal.4th at p. 746.) Rather, the “proceedings at issue were
all similar to those involved in prior cases in which we rejected
a claim that a defendant’s right to presence was infringed.”
(People v. Carrasco (2014) 59 Cal.4th 924, 959 (Carrasco); see,
e.g., Lynch, supra, 50 Cal.4th at pp. 745−746 [the defendant
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need not be present at hearings regarding discussion of an
allegation that a juror smelled of alcohol and the questioning of
the juror]; People v. Perry (2006) 38 Cal.4th 302, 312 [“a
defendant may ordinarily be excluded from conferences on
questions of law, even if those questions are critical to the
outcome of the case, because the defendant’s presence would
not contribute to the fairness of the proceeding”]; People v. Riel
(2000) 22 Cal.4th 1153, 1195–1196 [the defendant’s presence at
discussions of television coverage, jury instructions, or which
exhibits to send to the jury “would neither have contributed to
the fairness of the procedure nor have affected the fullness of
his opportunity to defend against the charges”].) Indeed, one of
the challenged hearings occurred after the guilt verdicts
against Beck and Cruz had been read, and after defendants
had been remanded to custody until the penalty phase; it
involved the court addressing the jury on its inability to reach
verdicts on the charges against LaMarsh and Willey. It is
inconceivable Cruz’s presence at this hearing would have had
any bearing on the already adjudicated charges against him.
5. Reopening
Beck contends that the trial court erred in allowing
Willey to reopen his defense to allow him to enter into evidence
an autopsy photograph. We conclude there was no abuse of
discretion.
a. Factual background
During the prosecutor’s case-in-chief, the pathologist who
performed Colwell’s autopsy testified that the cause of death
was “stab wounds to the neck and to the abdomen.” On May
12, 1992, during the defense case, the court excused the jury
until 1:30 p.m. the following day. Outside the presence of the
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jury, Willey successfully moved for admission of exhibits 183
and 184, and subsequently rested. The following day, during a
hearing between the court and counsel, and before the jury
returned, Willey informed the court he had just realized he had
neglected to seek admission of exhibit 185, an autopsy
photograph. He sought leave to reopen to have the photograph
admitted, and he invited a stipulation by the parties that it
was a photograph taken at Colwell’s autopsy. The prosecutor
agreed to stipulate, but Beck and Cruz refused to do so. The
prosecutor stated in the absence of a stipulation he would ask
the pathologist, who was already scheduled to be recalled to
testify on rebuttal, whether the photograph was of “the
stomach area of Mr. Colwell as [the pathologist] saw it at the
time of the autopsy.” Beck objected on the grounds that the
photograph was improper rebuttal and unduly prejudicial.
Willey explained he had not offered the photograph
sooner “because [he] had mistakenly thought that it . . . was in
evidence since it was a photograph of a major wound.” Beck
objected that the photograph of Colwell’s wound held no
evidentiary value as to Willey because Willey asserted he was
never in the house (where Colwell had been stabbed), and
Willey’s motion for admission of the photograph was untimely.
Willey asserted the photograph was probative because when it
was compared to exhibit 115, a photograph already in evidence
of victim Ritchey, it demonstrated Colwell and Ritchey had
suffered nearly identical wounds. Willey’s defense was that
Ritchey had been stabbed in the house before he ran outside to
the street and encountered Willey.
The court granted Willey leave to reopen. When the jury
returned to the courtroom, the court explained it was
permitting Willey to reopen and call the pathologist “to go over
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one brief area,” but because the pathologist had not yet
arrived, the prosecutor would first present two rebuttal
witnesses. Later that afternoon, Willey called the pathologist,
who identified exhibit 185 as a photograph taken during
Colwell’s autopsy, and the photograph was admitted into
evidence. The jury was shown both exhibit 115, the
photograph of Ritchey’s wound, and exhibit 185. Willey again
rested, and the prosecutor resumed his rebuttal case.
b. Analysis
“A ‘motion to reopen [is] one addressed to the [trial]
court’s sound discretion.’ (People v. McNeal (2009) 46 Cal.4th
1183, 1202.) In determining whether an abuse of discretion
occurred, the reviewing court considers four factors: ‘ “(1) the
stage the proceedings had reached when the motion was made;
(2) the defendant’s diligence (or lack thereof) in presenting the
new evidence; (3) the prospect that the jury would accord the
new evidence undue emphasis; and (4) the significance of the
evidence.” ’ ” (Homick, supra, 55 Cal.4th at p. 881.)
Here, after the jury had been excused and before it
returned, Willey rested and then moved the following day to
reopen and admit a single autopsy photograph. The
pathologist was already scheduled to testify that same
afternoon in the prosecutor’s rebuttal case. Under these
circumstances, whatever lack of diligence existed on Willey’s
part in not noticing exhibit 185 had not been admitted earlier,
the stage of the proceeding at which his motion was made
caused no prejudice to Beck. Nor on this record is it
reasonably likely the jury accorded exhibit 185 undue weight.
Willey’s questioning of the pathologist and the admission of the
photograph consume merely two pages of the reporter’s
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transcript. Moreover, the probative value of exhibit 185 was
that it arguably demonstrated Colwell’s wound was nearly
identical to Ritchey’s wound. This similarity was equally
probative regardless of when it was presented to the jury.
Although Beck asserts the photograph was cumulative, he does
not explain what already admitted evidence demonstrated the
similarities in the wounds. Likewise, although Beck asserts on
appeal that the photograph had been previously excluded in
response to a motion in limine, he offers no citation to the
record or the basis on which it was purportedly excluded. In
sum, the trial court acted well within its discretion in allowing
Willey to reopen his defense for the limited purpose of seeking
admission of the photograph.
6. Rebuttal argument
Beck and Cruz contend that the trial court erred in
denying their request for rebuttal argument to the closing
arguments of their codefendants regarding the conspiracy
charge. We reject the claim.
The trial court set the order of closing argument as
follows: Cruz, Beck, LaMarsh, and Willey. At the end of trial,
and before closing arguments, Cruz expressed concern that his
codefendants would argue that Cruz, Beck, and Vieira had
formed a conspiracy to kill the victims. Cruz, joined by Beck,
requested the court allow Cruz the opportunity to present a
“short argument” about conspiracy or “anything else that
would be detrimental to my client . . . on those grounds” after
the codefendants’ closing arguments but before the prosecutor’s
rebuttal argument. Cruz did not object to “anybody having
rebuttal after me, as long as the rebuttal stays within what I
might argue at that point.” The trial court solicited comment
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from LaMarsh, Willey, and the prosecutor, all of whom
objected. They noted that Cruz could anticipate codefendants’
arguments and address them in his summation, and the
prosecutor added that allowing such rebuttal would result in
“being here all month doing rebuttal arguments.” The trial
court denied the motion.
Section 1093, subdivision (e), provides: “When the
evidence is concluded, unless the case is submitted on either
side, or on both sides, without argument, the district attorney,
or other counsel for the people, and counsel for the defendant,
may argue the case to the court and jury; the district attorney,
or other counsel for the people, opening the argument and
having the right to close.” The trial court has discretion to
depart from this order “for good reason[]” or when required by
the “state of the pleadings.” (§ 1094.)
Beck contends that counsel simply “requested the
opportunity to rebut the arguments of the other ‘prosecutors’
after counsel had an opportunity to hear the claims of the other
attorneys” and that the “request was narrowly drawn in an
unusual situation in a capital case.” Cruz contends that the
trial court “denied [the] request for rebuttal argument . . .
without any acknowledgement of its discretion to grant the
request.” The trial court clearly understood it had discretion to
grant the request when it solicited comment from the
codefendants and the prosecutor. It was not required to
explain its reasons for not deviating from section 1093, nor do
Beck and Cruz demonstrate it abused its discretion in
following the statute’s general provisions.
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7. Instructional error
a. Conspiracy
1. Intent to kill
Beck and Cruz contend the trial court erroneously failed
to instruct the jury that conspiracy to commit murder requires
express malice. The Attorney General concedes there was
instructional error. We conclude the error was harmless
beyond a reasonable doubt.
(a) Factual background
The court instructed the jury that murder is the unlawful
killing of “a human being with malice aforethought.” It
explained: “ ‘Malice’ may be either express or implied. Malice
is express when there is manifested an intention unlawfully to
kill a human being. Malice is implied when: One, the killing
resulted from an intentional act. Two, the natural
consequences of the act are dangerous to human life. And,
[t]hree, the act was deliberately performed with knowledge of
the danger to, and with conscious disregard for, human life.
When it is shown that a killing resulted from the intentional
doing of an act with express or implied malice, no other mental
state need be shown to establish [the] mental state of malice
aforethought.”
The court then instructed the jury on premeditated first
degree murder and second degree murder: “All murder which
is perpetrated by any kind of willful, deliberate, and
premeditated killing with express malice aforethought is
murder of the first degree. . . . If you find that the killing was
preceded and accompanied by a clear, deliberate intent on the
part of the defendant to kill, which was the result of
deliberation and premeditation, so that it must have been
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formed upon preexisting reflection and not under a sudden
heat of passion or other condition precluding the idea of
deliberation, it is murder of the first degree.” As to second
degree murder, the court stated: “Murder of the second degree
is the unlawful killing of a human being with malice
aforethought when there is manifested an intention unlawfully
to kill a human being but the evidence is insufficient to
establish deliberation and premeditation.” Subsequently, the
court instructed the jury that “conspiracy is an agreement
entered into between two or more persons with the specific
intent to agree to commit the public offense of murder.”
Later in the instructions, the court stated: “In each of
the crimes charged in the information, namely, murder and
conspiracy to commit murder, there must exist a certain
mental state in the mind of the perpetrator. Unless such
mental state exists, the crime to which it relates is not
committed. In the crimes of first degree murder and
conspiracy to commit first degree murder, the necessary
mental states are malice aforethought, premeditation, and
deliberation. In the crime of second degree murder and
conspiracy to commit second degree murder, the necessary
mental state is malice aforethought.”
During the prosecutor’s closing argument, he addressed
the elements of murder: “Express[] malice, which is what you
have to have for first degree murder, is a manifestation of an
intention unlawfully to kill a human being. Now, you have
that in this case.” The prosecutor then cited evidence he
asserted supported this view. After briefly describing implied
malice, the prosecutor stated: “In this case the [p]rosecution is
alleging it’s a first degree murder because it’s premeditated
and it’s deliberate, and I think that that’s obvious in this case
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when you look at the evidence that the intention to kill these
people was planned well ahead of time.”
The prosecutor then turned to the conspiracy to commit
murder count, stating that there must be “a meeting of the
minds, an agreement, specific intent to agree and specific
intent to commit the murders.” The prosecutor argued that an
agreement to commit murder was demonstrated by the
meeting in the trailer in which the “plan was made to go over
and do the people and leave no witnesses”; everyone was given
assignments based on the house diagram; by the “damning
evidence” of possession of masks to conceal their identity; and
by the testimony of Donna Alvarez, whom the prosecutor
characterized as a disinterested witness, that LaMarsh, while
pointing a gun, had ordered everyone to go to the living room
where the murders were to be committed. When discussing
the elements of the multiple-murder special-circumstance
allegation, the prosecutor noted at least one murder must be
first degree, and argued, “I would submit to you that all four of
them are first degree murders in this particular case.” He
asserted that when the jury looked at all of the evidence, it
would “conclude that each and every one of these defendants
conspired to go over there on Elm Street and kill whoever was
there.” He asked the jury to “return verdicts of guilty of first
degree murder with the special circumstance and guilty of
conspiracy to commit murder . . . as to each and every one of
these defendants.”
On Friday May 29, 1992, the jury completed and signed
all of the guilt phase verdict forms for Beck and Cruz. Also on
this day, the jury sent the court a note asking, “If we find a
defendant guilty of conspiracy to commit murder and proceed
to completing the individual murder counts, does the finding of
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first/second degree murder need or have to be the same for all
four counts?” That afternoon, after consulting with counsel,
the court responded, “No.” Later that same day, the jury
asked, “Should we turn in completed jury forms 1) when we
complete an individual defendant[,] 2) when we complete all
defendants?”
On Monday June 1, 1992, the court instructed the jury as
to when it should turn in the completed verdict forms:
“[L]adies and gentlemen, that’s up to you. You can do it either
way you wish.” The court cautioned the jury that if it returned
verdicts as to one or more defendants and then it had second
thoughts while deliberating regarding a different defendant,
the verdicts that had been returned could not be changed.
On the morning of Wednesday, June 3, the jury asked, “If
we cannot reach an agreement on a conspiracy charge and
begin to consider the individual charges of murder, should an
individual . . . who feels that a defendant is guilty of conspiracy
put that feeling aside and only consider the direct evidence
linking the defendant and a specific victim or hold their feeling
that if the defendant is guilty of conspiracy, the defendant is
guilty of the crimes against all the defendants?” The court
instructed the jury: “If the jury does not find a particular
defendant guilty of conspiracy, neither the jury, nor any
individual juror, can find a defendant guilty of a crime based
on the theory that it was an act done in the furtherance of the
alleged conspiracy. However, the failure to find a defendant
guilty of conspiracy does not preclude the juror, any individual
juror, from determining whether the defendant is guilty of any
crime on any individual victim as an aider and abettor. I refer
you back to CALJIC 3.00 and 3.01, which you have with you in
the jury room, which define[] aiding and abetting. Any juror
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who believes an individual defendant did not aid and abet a
particular crime can only consider that defendant’s guilt as to
that crime based on that defendant’s own commission of that
crime which can be based on direct or circumstantial evidence.”
During the afternoon of June 4, 1992, the jury informed
the court it had reached unanimous verdicts on all charges
against two defendants and were unable to reach unanimous
verdicts against the other two defendants. The court observed
that the verdicts against Beck and Cruz were dated May 29,
1992, and asked, “Can I assume that you arrived at these
verdicts on May the 29th and have been deliberating on the
other two defendants since then?” The foreperson replied,
“Yes.”
(b) Analysis
Contrary to the court’s instruction, there is no crime of
“conspiracy to commit second degree murder. . . .” Rather, “all
conspiracy to commit murder is necessarily conspiracy to
commit premeditated and deliberated first degree murder.”
(People v. Cortez (1998) 18 Cal.4th 1223, 1237 (Cortez).)
In contrast to the trial court’s instructions here,
CALCRIM No. 563 currently provides in relevant part, “The
defendant intended to agree and did agree with [one or more
of] (the other defendant[s] . . .) to intentionally and unlawfully
kill,” and the bench notes to this instruction state: “Do not
cross-reference the murder instructions unless they have been
modified to delete references to implied malice. Otherwise, a
reference to implied malice could confuse jurors, because
conspiracy to commit murder may not be based on a theory of
implied malice.” (Judicial Council of Cal. Crim. Jury Instns.
(2019), Bench Notes to CALCRIM No. 563, p. 312.) Both
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CALCRIM No. 563 and the corresponding CALJIC No. 6.10
would avoid any possibility of confusion if they told the jury
that when it refers to the instructions that define murder, it
should not consider any instructions regarding implied malice
because conspiracy to commit murder may not be based on a
theory of implied malice. Conspiracy to commit murder may
be based only on express malice, i.e., an intent to kill. (See
People v. Gonzalez (2012) 54 Cal.4th 643, 653 [“Express malice
is an intent to kill”].) Alternatively, because “all conspiracy to
commit murder is necessarily conspiracy to commit
premeditated and deliberated first degree murder” (Cortez,
supra, 18 Cal.4th at p. 1237), references to “conspiracy to
commit murder” and “intent to commit murder” in the
standard conspiracy instructions could be changed along the
following lines. The instructions should make clear that what
is required is a conspiracy to commit first degree murder and
an intent to commit first degree murder, respectively. That
would also avoid any confusion about the nature of the intent
required for this type of conspiracy.
The error here in instructing on conspiracy to commit
second degree murder was nonetheless harmless beyond a
reasonable doubt. Based on the remaining instructions, the
prosecutor’s argument, and the jury verdicts, we conclude that
the “jury necessarily found the defendants guilty of conspiracy
to commit murder on a proper theory, i.e., based on express
malice or intent to kill.” (People v. Swain (1996) 12 Cal.4th
593, 607 (Swain).)
It is true that there is possible ambiguity in the
instructions insofar as the court defined malice aforethought to
include both express and implied malice, and later stated that
the mental state for second degree murder was simply “malice
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aforethought.” Critically, though, when specifically instructing
the jury on second degree murder, the court — at the request
of both Cruz and the prosecutor — instructed on what we have
termed “unpremeditated murder with express malice.”
(Swain, supra, 12 Cal.4th at p. 601.) The court stated,
“Murder of the second degree is the unlawful killing of a
human being with malice aforethought when there is
manifested an intention unlawfully to kill a human being but
the evidence is insufficient to establish deliberation and
premeditation.” Thus, in specifically instructing the jury on
premeditated first degree murder and second degree murder,
the court defined both as requiring express malice or an intent
to kill. In light of that instruction, the jury had no occasion to
consider the instructions defining implied malice.
Indeed, the prosecutor had also requested an instruction
on implied malice murder, but the court denied the request,
stating: “I don’t think this is applicable.” The prosecutor
responded, “That would only be applicable if they were alleging
that they went over to beat them up.” The court said, “Right.
So this is not going to be given.” Neither Beck nor Cruz
objected. Nor do they contend here that the trial court should
have instructed on implied malice murder.
Beck and Cruz rely on Swain, where the trial court
instructed the jury on “the elements of murder, including
principles of implied malice second degree murder.” (Swain,
supra, 12 Cal.4th at p. 602, italics omitted.) The jury returned
general verdicts, which did not state “on what theory they
found the requisite element of malice necessary to convict on
the charges of conspiracy to commit murder. Under the
implied malice instructions, the jury could have found malice
without finding intent to kill.” (Id. at p. 607.) The “prosecutor
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repeatedly referred to implied malice in the closing arguments,
stating at one point that ‘ . . . this could very easily be an
implied malice case.’ ” (Ibid.) “Swain was found not guilty of
murder and its lesser offenses,” and his codefendant “was
convicted of second degree murder, which conviction itself
could have been based on a theory of implied malice.” (Ibid.)
On this record, this court concluded that the conspiracy to
commit murder convictions must be reversed. (Ibid.)
Here, by contrast, the court did not instruct on implied
malice murder when it specifically instructed on premeditated
first degree murder and second degree murder. Nor did the
prosecutor invite the jury to convict Beck or Cruz of either
murder or conspiracy to commit murder on a theory of implied
malice, but rather urged the jury to find them guilty of first
degree premeditated murder. Moreover, Beck and Cruz,
unlike the defendants in Swain, were found guilty of the first
degree premeditated murders of all four victims. Under the
court’s instructions, this entailed a finding that each of the
killings “was preceded and accompanied by a clear, deliberate
intent on the part of the defendant to kill, which was the result
of deliberation and premeditation . . . formed upon preexisting
reflection.” Although Swain did not delineate what overt facts
were found true by the jury in that case, here the jury
expressly found that Beck and Cruz had committed five overt
acts for the purpose of carrying out the conspiracy: Beck and
Cruz “obtained and armed themselves with weapons to be used
to commit the murders,” “drove and rode in a vehicle to the
area of the scene of the murders,” “put on military type face
masks in an attempt to conceal their identities,” “entered the
residence located at 5223 Elm Street,” and “killed Franklin
Raper, Richard Ritchey, Emmie Darlene Paris and Dennis
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Colwell in the furtherance of the conspiracy.” These findings of
participation in acts of preparing to murder and then in the
killing of the victims support a conclusion that the jury found
Beck and Cruz conspired to kill the victims.
Further, as Beck’s briefing acknowledges, “a conspiracy
to commit an implied malice murder is a logical impossibility
under the law.” Implied malice murder is established “in part
through hindsight” once the defendant commits “some act
dangerous to human life” that results in a killing. (Swain,
supra, 12 Cal.4th at p. 603.) Conspiracy, by contrast, is an
inchoate crime that establishes criminal liability before the
target crime is committed. (Ibid.) Conspiracy to commit
implied malice murder “would be at odds with the very nature
of the crime of conspiracy . . . precisely because commission of
the crime could never be established, or be deemed complete,
unless and until a killing actually occurred.” (Ibid.) In light of
the court’s instructions and the way the prosecution argued
this case to the jury, we find no reasonable possibility that the
jury embraced the “logical impossibility” of a conspiracy to
commit implied malice murder as opposed to convicting Beck
and Cruz of conspiracy to commit murder upon a finding of
intent to kill.
Finally, Beck asserts that “the jurors obviously were
confused about the relationship between the conspiracy
instruction and the substantive murder charges” because it
asked the two questions noted above. The second question was
asked after the jury had already reached verdicts for Beck and
Cruz and were only deliberating on the charges against
LaMarsh and Willey. The first question, “If we find a
defendant guilty of conspiracy to commit murder and proceed
to completing the individual murder counts, does the finding of
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first/second degree murder need or have to be the same for all
four counts,” to which the court simply answered, “No,” does
not suggest that the jury failed to find an intent to kill for
either the conspiracy to commit murder or the murder counts.
That question, which focused on whether the degree of murder
found (first or second) must be the same for all four counts,
contains no hint that the jury found or considered finding any
defendant guilty of conspiracy to commit murder based on
implied malice.
2. Natural and probable consequences
Cruz, joined by Beck, contends that the trial court’s
conspiracy instructions improperly allowed him to be convicted
of first degree premeditated murder as an aider and abettor
under the natural and probable consequences doctrine. (People
v. Chiu (2014) 59 Cal.4th 155, 158−159 [a natural and probable
consequences theory of liability cannot serve as a basis for a
first degree premeditated murder conviction].) The Attorney
General concedes the error. We conclude there is no
reasonable probability Beck and Cruz were prejudiced by any
error.
The trial court instructed the jury: “A member of a
conspiracy is not only guilty of the particular crime that to his
knowledge his confederates agreed to and did commit, but is
also liable for the natural and probable consequences of any
crime or act of a coconspirator to further the object of the
conspiracy, even though such crime or act was not intended as
a part of the agreed upon objective and even though he was not
present at the time of the commission of such crime or act. You
must determine whether the defendant is guilty as a member
of a conspiracy to commit the originally agreed upon crime or
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crimes and, if so, whether the crime alleged in Count I, II, III,
and IV was perpetrated by coconspirators in the furtherance of
such conspiracy and was a natural and probable consequence
of the agreed upon criminal objective of such conspiracy.”
Beck and Cruz were charged with conspiracy to murder,
not conspiracy to commit a lesser crime that resulted in
murder. There is thus no possibility they were found guilty of
murder on a natural and probable consequences theory.
Indeed, the prosecutor proceeded on a theory that Beck and
Cruz were direct perpetrators of the murders, directly aided
and abetted the murders, or were coconspirators to commit
murder. The prosecutor did not proceed on a theory that Beck
and Cruz were guilty of murder under the natural and
probable consequences doctrine; the “prosecutor never argued
that one defendant intended only to commit one particular
crime, but that the other defendant committed a different
crime, which was the natural and probable consequence of the
commission of the first, thereby making both defendants guilty
of the second offense.” (People v. Letner and Tobin (2010)
50 Cal.4th 99, 184 (Letner and Tobin).) Nor, despite
mentioning the natural and probable consequences doctrine in
the conspiracy instruction, did the trial court instruct the jury
on this theory of murder.
b. Multiple murder
Cruz, joined by Beck, contends that the trial court failed
to instruct the jury that the multiple-murder special-
circumstance allegation required intent to kill. We conclude
any ambiguity in the multiple-murder special-circumstance
instruction was harmless beyond a reasonable doubt.
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“When there is evidence from which a jury could base its
convictions for multiple counts of murder on the theory that
the defendant was guilty as an aider and abettor, and not as
the actual perpetrator, the trial court must instruct the jury
that to find true a multiple-murder special-circumstance
allegation as to that defendant, it must find that the defendant
intended to kill the murder victims. (§ 190.2, subds. (b)-(c);
People v. Hardy (1992) 2 Cal.4th 86, 192.)” (People v. Nunez
and Satele (2013) 57 Cal.4th 1, 45.) Contrary to both the
Attorney General’s and Cruz’s erroneous assertions, these
principles remain true even after the passage of
Proposition 115 in 1990. (Nunez and Satele, at p. 45.) We
conclude these principles were satisfied here.
The trial court instructed the jury: “If you find beyond a
reasonable doubt that a defendant was either the actual killer,
a co-conspirator, or an aider and abettor, but you are unable to
decide which, then you must also find beyond a reasonable
doubt that the defendant, with intent to kill, participated as a
co-conspirator with or aided and abetted an actor in the
commission of at least one murder in the first degree and in at
least one additional murder of the first or second degree in
order to find the special circumstances to be true. On the other
hand, if you find beyond a reasonable doubt that defendant
was the actual killer of at least one person in the first degree
and at least one additional person in the first or second degree,
you need not find that the defendant intended to kill a human
being in order to find the special circumstance to be true.”
Cruz contends that under the court’s instruction, “the
jury was required to find an intent to kill only if they could not
decide whether [a defendant] was the actual killer, an aider
and abettor, or a coconspirator,” and that if the “jury did
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determine that [a defendant] was guilty as an aider and
abettor, or as a coconspirator, this instruction required no
finding of intent to kill.” But we have previously described a
substantially similar instruction as merely “ambiguous.”
(Letner and Tobin, supra, 50 Cal.4th at pp. 180−181.)
Moreover, we concluded there was “no reasonable likelihood
the jury misunderstood or misapplied this instruction.” (Id. at
p. 182.) We reasoned: “Although we conclude the instruction’s
meaning concerning the intent of an aider and abettor was not
‘unmistakable,’ certainly the jury could draw from the
instruction as a whole the inference that an aider and abettor
was required to have an intent to kill. In addition, the
prosecutor presented a correct and complete statement of the
law in h[is] arguments following the trial court’s instructions.”
(Ibid.) Nor did the prosecutor “identify one defendant as
having killed [the victim], but instead argued exclusively that
the evidence demonstrated that both defendants had the intent
to kill [the victim],” and also did not argue “that the jury,
pursuant to that part of the instruction addressing an actual
killer, need not find intent to kill as to one of the two
defendants. . . . Accordingly, despite the ambiguity in the
instruction, there is no reasonable likelihood that the jury
found one defendant was the actual killer, and then based its
special circumstance findings as to the other defendant upon
an erroneous notion that an aider and abettor need not possess
the intent to kill.” (Letner and Tobin, at pp. 182−183.)
Similarly here, “the jury could draw from the instruction
as a whole the inference that an aider and abettor” or
coconspirator “was required to have an intent to kill,” and the
prosecutor did not argue that the jury need not find intent to
kill as to either Beck or Cruz. (Letner and Tobin, supra,
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50 Cal.4th at p. 182.) Moreover, we have already concluded in
connection with the erroneous conspiracy to commit murder
instruction that the jury necessarily found Beck and Cruz
acted with an intent to kill. (See ante, pt. II.B.7.a.1.) Hence
any ambiguity in the multiple-murder special-circumstance
instruction was harmless beyond a reasonable doubt.
c. Self-defense and imperfect self-defense
The trial court instructed the jury on self-defense only as
to the charge that LaMarsh had murdered Raper. Beck, joined
by Cruz, contends that the court erred in failing to instruct the
jury on self-defense as to each of them. Beck and Cruz further
contend the trial court erred in refusing to instruct the jury on
imperfect self-defense. No substantial evidence supported such
instructions.
As noted, Beck testified that between April 10, 1990,
when Raper’s trailer was removed from the Camp, and May 20,
1990, the night of the murders, Beck received no threats from
Raper. On May 20, 1990, Evans told Beck and Cruz that she
had gone to her sister’s house earlier to retrieve some items.
Raper refused to let her take the items and said he and his
friends were at some unspecified time going to go to the Camp
and kill Evans and those with whom she associated at the
Camp. Evans said it was urgent she retrieve a wedding gown
and other clothes from 5223 Elm Street, and asked that
someone accompany her so that Raper would not again
interfere. The entire group went to the Elm Street house “in
case something happened, so they wouldn’t be caught so then
they couldn’t get out.” Beck was unarmed. Evans and
LaMarsh apparently entered the home first, and after hearing
a woman scream, Beck followed Vieira into the house and
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observed LaMarsh holding a baseball bat and standing in front
of Raper. Raper was sitting down, and Beck watched his body
“slump[] down.” Beck was “shock[ed],” stood there briefly, and
then moved toward noises in the house. He saw Vieira and
Colwell struggling. Vieira’s back was on the floor, and Colwell
was on top of Vieira. Beck punched Colwell several times on
his back and then threw him several feet into the cupboards.
Beck denied killing Colwell, Ritchey, or Paris, or doing
anything wrong that night.
Cruz testified that on the evening on May 20, Evans told
Cruz she needed to retrieve some clothes, including a bridal
gown that was an heirloom, from 5223 Elm Street, and wanted
Cruz and others to accompany her for protection. Also
sometime that evening, Evans told Cruz that Raper had
threatened to kill Cruz and her, “Raper was sharpening
knives,” and Raper was going to call his biker friends “to come
and kill everyone in the camp that night.” Cruz told Evans
that Raper had also previously threatened him. Cruz denied
hitting, stabbing, or killing anyone on the night of May 20,
1990 or directing Vieira to cut Paris’s throat. He testified he
was not physically capable of fighting another person on the
night of the murders.
“Self-defense, when based on a reasonable belief that
killing is necessary to avert an imminent threat of death or
great bodily injury, is a complete justification, and such a
killing is not a crime.” (People v. Elmore (2014) 59 Cal.4th 121,
133−134.) Here there was no evidence of such imminent
threat. Indeed, neither Beck nor Cruz described being
attacked by anyone, and both denied killing anyone.
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Beck contends that although he denied any participation
in the victims’ deaths, the jury could have found he committed
such acts based on LaMarsh’s testimony that Beck stabbed
Colwell in the stomach and Willey’s testimony that Beck
knocked Willey off Ritchey, fell on Ritchey, and slit his throat.
He further asserts that such acts “might have been in self-
defense” because Raper was a “violent, dangerous individual”
who had a “history of hostilities toward and violent
confrontations with Beck and his friends.” “Thus, Beck and
the others could reasonably fear for their safety in any
confrontation with Raper and his buddies.” Such speculation
is not substantial evidence warranting a self-defense
instruction.
Beck and Cruz further contend the trial court erred in
failing to instruct the jury on imperfect self-defense. Assuming
this claim is preserved as to Beck, no substantial evidence
supported such an instruction for either defendant.
“ ‘ “Under the doctrine of imperfect self-defense, when the
trier of fact finds that a defendant killed another person
because the defendant actually, but unreasonably, believed he
was in imminent danger of death or great bodily injury, the
defendant is deemed to have acted without malice and thus
can be convicted of no crime greater than voluntary
manslaughter.” ’ ” (People v. Manriquez (2005) 37 Cal.4th 547,
581.) Imperfect self-defense “obviates malice because that
most culpable of mental states ‘cannot coexist’ with an actual
belief that the lethal act was necessary to avoid one’s own
death or serious injury at the victim’s hand.” (People v. Rios
(2000) 23 Cal.4th 450, 461.) “This doctrine is a ‘ “narrow” ’ one
and ‘will apply only when the defendant has an actual belief in
the need for self-defense and only when the defendant fears
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immediate harm that “ ‘ “must be instantly dealt with.” ’ ” ’ ”
(People v. Landry (2016) 2 Cal.5th 52, 97–98.)
There is no substantial evidence that Beck or Cruz
possessed an actual but unreasonable belief of imminent
danger of death or great bodily injury. Again, neither Beck nor
Cruz described being attacked by anyone, and both denied
killing anyone. The prosecutor’s evidence and the testimony of
LaMarsh and Willey showed that Beck and Cruz executed a
surprise attack on the victims and brutally murdered them,
and thus also provides no substantial basis for an instruction
on imperfect self-defense. (In re Christian S. (1994) 7 Cal.4th
768, 773, fn. 1 [the imperfect self-defense doctrine may not be
invoked “by a defendant who, through his own wrongful
conduct (e.g., the initiation of a physical assault or the
commission of a felony), has created circumstances under
which his adversary’s attack or pursuit is legally justified”].)
In sum, the trial court did not err in refusing to instruct
the jury on self-defense or imperfect self-defense.
d. Sudden quarrel and heat of passion
The trial court instructed the jury on voluntary
manslaughter based on heat of passion. Beck, joined by Cruz,
contends that the court improperly defined sudden quarrel and
heat of passion when instructing the jury on voluntary
manslaughter and erred in refusing to give four proposed
instructions. We disagree.
“ ‘Manslaughter, an unlawful killing without malice, is a
lesser included offense of murder.’ [Citations.] ‘Although
section 192, subdivision (a), refers to “sudden quarrel or heat of
passion,” the factor which distinguishes the “heat of passion”
form of voluntary manslaughter from murder is provocation.’ ”
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(People v. Avila (2009) 46 Cal.4th 680, 705 (Avila).) “To be
adequate, the provocation must be one that would cause an
emotion so intense that an ordinary person would simply react,
without reflection. . . . [T]he anger or other passion must be so
strong that the defendant’s reaction bypassed his thought
process to such an extent that judgment could not and did not
intervene.” (People v. Beltran (2013) 56 Cal.4th 935, 949
(Beltran).) “ ‘ “[I]f sufficient time has elapsed for the passions
of an ordinarily reasonable person to cool, the killing is
murder, not manslaughter.” ’ ” (Avila, at p. 705.) “ ‘The
provocation which incites the defendant to homicidal conduct
in the heat of passion must be caused by the victim [citation],
or be conduct reasonably believed by the defendant to have
been engaged in by the victim.’ ” (Ibid.)
Beck requested four supplemental instructions: (1) “The
right of self-defense is available to a person engaged in a
sudden quarrel. The mere fact that the parties are engaged in
a sudden quarrel, which may be a mere altercation of words,
cannot deprive one of the right to defend himself against real
or apparent danger”; (2) “The passion necessary to constitute
heat of passion need not mean rage or anger but may be any
violent, intense, overwrought or enthusiastic emotion which
causes a person to act rashly and without deliberation and
reflection”; (3) “Any type of provocation is sufficient if it is of
such character and degree as naturally would excite and
arouse such heat of passion, and verbal provocation may be
sufficient”; (4) “A defendant may act in the heat of passion at
the time of the killing as a result of a series of events which
occur over a considerable period of time. Where the
provocation extends for a long period of time, you must take
such period of time into account in determining whether there
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was a sufficient cooling period for the passion to subside. The
burden is on the prosecution to establish beyond a reasonable
doubt that the defendant did not act in the hea[t] of passion.”
Beck contends that unlike his proposed instructions, the
court’s instructions failed to “inform[] the jury that the period
of provocation might occur over ‘a considerable period of
time.’ ” As he concedes in his reply, the court instructed the
jury: “Legally adequate provocation may occur in a short, or
over a considerable, period of time. The question to be
answered is whether or not at the time of the killing the reason
of the accused was obscured or disturbed by passion to such an
extent as would cause the ordinarily reasonable person of
average disposition to act rashly and without deliberation and
reflection, and from such passion rather than from judgment.”
Beck further contends that the court failed to instruct the
jury that intense emotions other than anger and rage could
operate to “reduce the murder charge.” As noted, the focus of
the jury in evaluating whether a defendant has committed
voluntary manslaughter is properly on the asserted
provocation. (Avila, supra, 46 Cal.4th at p. 705.) “To be
adequate, the provocation must be one that would cause an
emotion so intense that an ordinary person would simply react,
without reflection. . . . [T]he anger or other passion must be so
strong that the defendant’s reaction bypassed his thought
process to such an extent that judgment could not and did not
intervene.” (Beltran, supra, 56 Cal.4th at p. 949.)
“[P]rovocation is sufficient not because it affects the quality of
one’s thought processes but because it eclipses reflection.” (Id.
at p. 950.) These concepts were adequately conveyed in the
court’s instruction.
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Finally, Beck contends that the trial court erred in
refusing his proposed instruction that verbal provocation may
be sufficient to reduce the alleged crime from murder to
manslaughter. This concept was adequately addressed by the
court’s lengthy instructions to the jury of what constitutes
adequate provocation. These instructions do not, as Beck
contends, “limit[] provocation to physical provocation by the
victim.”
e. Order of charges
Beck, joined by Cruz, contends the trial court erroneously
instructed the jury to consider the charges in a particular
order. There is no reasonable likelihood the jury understood
the instructions in this manner.
At the close of the guilt phase, the court instructed the
jury: “[Y]ou are to determine whether the defendants are
guilty or not guilty of the crime charged and any degree thereof
or of any lesser crime as specified in this instruction. In doing
so, you have discretion to choose the order in which you
evaluate each crime or consider the evidence pertaining to it.
You may find it productive to consider and reach a tentative
conclusion on all charges and lesser crimes before reaching any
final verdicts. However, the Court cannot accept a guilty
verdict on a lesser crime unless you have unanimously found
the defendant not guilty of the crime charged.”
During deliberations, the jury sent the following question
to the court: “CALJIC 17.10. Please clarify must be found
unanimously not guilty of each applicable count before
considering lesser charge.” (Sic.) The court told counsel it had
prepared a response, it had shared that proposed response
with the prosecutor and Beck’s counsel, and both had agreed
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that the proposed response could be read to the jury in their
absence. At the hearing, counsel for Cruz also agreed to the
proposed instruction.
The court then instructed the jury: “In response to your
question, ‘please clarify must be found unanimously not guilty
of each applicable count before considering lesser charge,’ let
me tell you there is a very lengthy CALJIC instruction dealing
with lesser included offenses which has not been read to you.
If you want that instruction read to you, I will read it to you
tomorrow morning. However, in the meantime, I will attempt
to respond to your specific question with the following
instruction: For example, before you can find a defendant
guilty of second degree murder as to a particular count, all
12 of you must find him not guilty of first degree murder as to
that count. Before you can find him guilty of voluntary
manslaughter as to that count, all 12 of you must find him not
guilty of both first and second degree murder as to that count.
Before you can find him guilty of one of the lesser nonhomicide
crimes, as to that count, all 12 of you must find him not guilty
of first and second degree murder and voluntary manslaughter
as to that count. Okay?” The court then sent the jury back to
continue deliberations.
Here, Beck acknowledges that his counsel agreed to the
second instruction given during deliberations but contends the
instruction was erroneous. Assuming this claim has not been
waived, we reject it.
Contrary to Beck’s assertion, the instruction is not
reasonably understood to mandate that the jury consider the
charges in a particular order. Reading the two instructions
together, the jury would have reasonably understood it could
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consider the crimes in any order but could not return a guilty
verdict on a lesser included crime unless it had unanimously
found the defendant not guilty of the crime charged.
f. Consciousness of guilt
Cruz, joined by Beck, contends that the trial court
erroneously instructed the jury on consciousness of guilt
evidenced by willfully false statements, suppression of
evidence, and flight. We reject the claim.
The court instructed the jury with the language of
CALJIC No. 2.03: “If you find that before this trial a
defendant made a willfully false and deliberately misleading
statement concerning the crimes for which he is now being
tried, you may consider such statement as a circumstance
tending to prove a consciousness of guilt on the part of such
defendant. However, such conduct is not sufficient by itself to
prove guilt, and its weight and significance, if any, are matters
for your determination.” Cruz contends the court erred in
denying his requested addition to this instruction, which
provided in part: “The defendant’s consciousness of guilt, if
any, is relevant upon the questions o[f] whether the defendant
was afraid of being apprehended and whether the defendant
thought he had committed a crime. Consciousness of guilt may
not be considered [in determining the degree of defendant’s
guilt] [or] [in determining which of the charged offenses the
defendant committed].”
The court also instructed the jury with the language of
CALJIC No. 2.06: “If you find that a defendant attempted to
suppress evidence against himself in any manner, such as by
attempting to induce a person to alibi for him or by destroying
or concealing evidence, such attempt may be considered by you
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as a circumstance tending to show a consciousness of guilt.
However, such conduct is not sufficient by itself to prove guilt,
and its weight and significance, if any, are matters for your
consideration.”
In addition, the court instructed the jury with the
language of section 1127c and CALJIC No. 2.52: “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. It is a fact which, if proved, may be considered by
you in the light of all other proved facts in deciding the
question of his guilt or innocence. The weight to which such
circumstance is entitled is a matter for the jury to determine.”
Cruz contends the trial court erred in refusing to add the
following language: “The defendant’s consciousness of guilt, if
any, is relevant upon the questions o[f] whether the defendant
was afraid of being apprehended and whether the defendant
thought [he] [she] had committed a crime. Consciousness of
guilt may not be considered [in determining the degree of
defendant’s guilt] [or in determining which of the charge[d]
offenses the defendant committed].”
Cruz contends that the challenged consciousness of guilt
instructions improperly duplicated more general
circumstantial evidence instructions, were unfairly partisan
and argumentative, and permitted the jury to draw irrational
permissive inferences about Cruz’s guilt. We have rejected
substantially similar challenges, and he offers no persuasive
reason for us to reconsider these conclusions. (See, e.g.,
Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 438
[CALJIC Nos. 2.03, 2.06, and 2.52]; Lynch, supra, 50 Cal.4th at
p. 761 [CALJIC Nos. 2.03, 2.06, and 2.52]; People v. Hartsch
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(2010) 49 Cal.4th 472, 505 [CALJIC Nos. 2.03 and 2.06]; People
v. Rundle (2008) 43 Cal.4th 76, 152–154 [CALJIC No. 2.52].)
Cruz also asserts the instructions were unfairly partisan
and argumentative because they allowed for an inference of
consciousness of guilt only as to Cruz and his codefendants
when Evans also made false statements, attempted to suppress
evidence, and fled. We disagree. The instructions merely
informed the jury that if it found Cruz had made false
statements, attempted to suppress evidence, or fled, such
activities “could indicate consciousness of guilt, while also
clarifying that such activity was not of itself sufficient to prove
a defendant’s guilt, and allowing the jury to determine the
weight and significance assigned to such behavior.” (People v.
Jackson (1996) 13 Cal.4th 1164, 1224 (Jackson).) The jury did
not need to know how to consider such evidence against Evans
because she was not on trial. Defense counsel was nonetheless
free to argue that the activities of Evans following the murders
demonstrated her consciousness of guilt. (See People v.
Dement (2011) 53 Cal.4th 1, 53 (Dement) [rejecting a
substantially similar claim].)
Cruz further contends that the trial court erred in
refusing his requested modification of CALJIC No. 2.03. We
have previously rejected claims challenging the denial of
similar proposed modifications, and Cruz offers no persuasive
reason to reconsider our conclusion. (People v. Thornton (2007)
41 Cal.4th 391, 439; Jackson, supra, 13 Cal.4th at p. 1224.)
g. Reasonable doubt
Cruz, joined by Beck, contends the trial court’s
instructions in the language of CALJIC Nos. 1.00, 1.02, 2.01,
2.02, 2.21.2, 2.22, 2.27, 2.50, 2.51, 2.52, 2.90, 8.20, 8.83, and
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8.83.1 undermined and diluted the requirement of proof
beyond a reasonable doubt. He advances no persuasive reason
to reconsider our prior rejection of substantially similar
challenges to these instructions, and we decline to do so.
(Romero and Self, supra, 62 Cal.4th at p. 43; see People v.
Delgado (2017) 2 Cal.5th 544, 572−575; People v. Grimes (2016)
1 Cal.5th 698, 723–725 [rejecting challenge to CALJIC
No. 8.83]; People v. Nelson (2016) 1 Cal.5th 513, 553–554
[rejecting challenge to CALJIC Nos. 2.01, 2.02, 2.52, 8.83 and
8.83.1]; People v. Casares (2016) 62 Cal.4th 808, 831 [CALJIC
No. 2.01 did not “create an impermissible mandatory
presumption by requiring the jury to draw an incriminatory
inference whenever such an inference appeared ‘reasonable’
unless the defense rebutted it by producing a reasonable
exculpatory interpretation”]; Bryant, Smith and Wheeler,
supra, 60 Cal.4th at p. 437 [rejecting challenge to CALJIC
Nos. 1.00, 2.01, 2.02, 2.21.2, 2.21.2, 2.22, 2.27, 2.51, 2.90, and
8.20]; People v. Carey (2007) 41 Cal.4th 109, 129 [CALJIC
Nos. 2.02, 8.83 and 8.83.1 did not inform jury it could find the
defendant guilty if he “ ‘reasonably appeared’ ” to be guilty];
People v. McCurdy (2014) 59 Cal.4th 1063, 1106 [CALJIC
No. 2.50]; Dement, supra, 53 Cal.4th at p. 54 [modified CALJIC
No. 1.02].)
h. Firearms and relationship evidence
Cruz asserts the trial court erroneously instructed the
jury on the proper use of the firearms and relationship
evidence. (See ante, pt. II.B.2.) There was no error.
The court instructed the jury in a modified form of
CALJIC No. 2.50 (5th ed. 1988): “Evidence has been
introduced for the purpose of showing that one or more of the
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defendants committed acts similar to those constituting crimes
other than that for which he is on trial. Such evidence, if
believed, was not received and may not be considered by you to
prove that the defendant is a person of bad character or that he
has a disposition to commit crimes. Such evidence is received
and may be considered by you only for the limited purpose of
determining if it tends to show: The existence of the intent
which is a necessary element of the crime charged. The
identity of the person who committed the crime, if any, for
which the defendant is accused. A motive for the commission
of the crime charged. The defendant had knowledge or
possessed the means that might have been useful or necessary
for the commission of the crime charged. The crime charged is
a part of a larger continuing plan, scheme, or conspiracy. The
existence of a conspiracy. For the limited purpose for which
you may consider such evidence, you must weigh it in the same
manner as you do all other evidence in the case. You are not
permitted to consider such evidence for any other purpose.”
The court further instructed the jury that if evidence was
admitted against one or more defendants “it could not be
considered . . . against the other defendants.”
Cruz contends that the instruction was erroneous
because it did not identify or describe what acts were “similar
to those constituting crimes.” There is no reasonable likelihood
that the jury understood the instruction to refer to Cruz’s
ownership of firearms because there was no evidence any of
these firearms were illegal. The jury would have reasonably
understood the instruction to refer to evidence of violence
before the murders, such as Cruz directing Beck to hit Vieira
and LaMarsh and Willey beating Colwell. The instruction
informed the jury of the proper use of this evidence, providing,
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“[s]uch evidence, if believed, was not received and may not be
considered by you to prove that the defendant is a person of
bad character or that he has a disposition to commit crimes.”
Again, we presume the jury understood and followed this
instruction. (Hajek and Vo, supra, 58 Cal.4th at p. 1178.) As
the United States Supreme Court has said in upholding a
similar modification of CALJIC No. 2.50 against a due process
challenge, the “use of the evidence of prior offenses permitted
by this instruction was . . . parallel to the familiar use of
evidence of prior acts for the purpose of showing intent,
identity, motive, or plan. [Citation.] Furthermore, the trial
court guarded against possible misuse of the instruction by
specifically advising the jury that the ‘ . . . evidence, if believed,
was not received, and may not be considered by you[,] to prove
that [the defendant] is a person of bad character or that he has
a disposition to commit crimes.’ ” (Estelle v. McGuire (1991)
502 U.S. 62, 75; see id. at p. 67, fn. 1.)
C. Penalty Phase Issues
1. Rebuttal evidence
Beck contends that the trial court erroneously admitted
rebuttal evidence. We disagree.
As noted, on rebuttal, Jennifer testified that in 1988,
when her daughter A. was no more than six months old, Beck,
Cruz, and Vieira placed a tape recorder next to A. in her crib.
As she was falling asleep, they snuck up on her and screamed
at her. A. woke up and started to scream and cry. The tape
recording of this incident was played for the jury.
“Rebuttal evidence is relevant and thus admissible if it
‘tend[s] to disprove a fact of consequence on which the
defendant has introduced evidence.’ [Citation.] The trial court
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is vested with broad discretion in determining the
admissibility of evidence in rebuttal.” (People v. Clark (2011)
52 Cal.4th 856, 936; see People v. Mills (2010) 48 Cal.4th 158,
195 [the trial court has “broad power to control the
presentation of proposed impeachment evidence”].) Here, as
the trial court observed, evidence that Beck had screamed at a
sleeping infant so that he could be amused by her resulting
terror and crying tended to undermine Beck’s penalty defense
evidence that he was caring to young children. The trial court
therefore did not abuse its discretion in admitting the
testimony and tape.
Nor did admission of the evidence contravene Evidence
Code section 352. “ ‘Evidence is substantially more prejudicial
than probative [citation] if, broadly stated, it poses an
intolerable “risk to the fairness of the proceedings or the
reliability of the outcome.” ’ ” (People v. Riggs (2008)
44 Cal.4th 248, 290.) No such intolerable risk was present
here. Nor, contrary to Beck’s contention, is a trial court
required to “ ‘expressly weigh prejudice against probative value
or even expressly state that it has done so, if the record as a
whole shows,’ ” as here, that “ ‘the court was aware of and
performed its balancing function under Evidence Code
section 352.’ ” (People v. Lewis (2009) 46 Cal.4th 1255, 1285.)
Beck further contends the tape was not newly discovered
evidence and should have been admitted in the prosecutor’s
case-in-chief. He does not articulate on what basis the tape,
which was not relevant to the circumstances of the crime or
Beck’s prior criminal conduct, would have been admissible in
the prosecutor’s case-in-chief. Rather, the tape only became
relevant after Beck’s penalty defense witnesses testified to his
care of and positive interactions with young children.
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2. Tape exclusion
Beck contends that the trial court erred in excluding
during the prosecutor’s rebuttal case a tape of a threatening
telephone call from Perkins to Jennifer. We disagree.
Jennifer testified on rebuttal that she had received
numerous threatening telephone calls from Cruz while he was
in jail after the murders. They stopped just before Cruz’s
death penalty phase when he learned Jennifer would be a
witness. Jennifer also received threatening telephone calls
from Perkins. A tape of one threatening call from Cruz was
played for the jury. Jennifer testified she had been afraid of
Beck because “he would do what [Cruz] told him to do.”
Beck contends that evidence of Perkins’s “threat was a
critical component of trial counsel’s argument to the penalty
phase jury that [Beck] was under the control of Cruz,” and the
“fact that Perkins was making threats on behalf of Cruz when
[Beck] was not even present would have given significant
support to that claim.” Jennifer testified that Beck did
whatever Cruz told him to, and the jury was informed that
Perkins had made threatening telephone calls to Jennifer. The
trial court acted within its discretion in excluding the tape
itself, which was remote evidence of Cruz’s control over Beck
and, as the trial court observed, might have necessitated
Perkins’s further testimony at this late stage of trial.
3. Prosecutorial Misconduct
Beck and Cruz contend that the prosecutor committed
misconduct during closing argument in their respective penalty
phases. There was no prejudicial misconduct.
“ ‘A prosecutor commits misconduct when his or her
conduct either infects the trial with such unfairness as to
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render the subsequent conviction a denial of due process, or
involves deceptive or reprehensible methods employed to
persuade the trier of fact.’ [Citation.] ‘As a general rule a
defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same
ground—the defendant made an assignment of misconduct and
requested that the jury be admonished to disregard the
impropriety.’ [Citation.] ‘When attacking the prosecutor’s
remarks to the jury, the defendant must show’ that in the
context of the whole argument and the instructions there was
‘ “a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous
manner.” ’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1219
(Rangel).)
a. Biblical references
Beck and Cruz challenge the prosecutor’s reliance on the
Bible in closing argument.
1. Factual background
At Cruz’s penalty phase, the prosecutor argued: “I want
to briefly talk about a subject that is, I want to make clear to
you, is not aggravating in any sense of the word. The only
reason I mention it is because maybe some of you that had a
little problem with the subject of religion. Again this is not
aggravating in any way. You know, when you hear the
opponents of the death penalty talking, they invariably bring
up passages from the Bible, as do the proponents. And the
opponents always say, ‘Well, the Bible says “ ‘ “Thou shalt not
kill” ’ ” and it says “ ‘ “Vengeance is mine saith the Lord.” ’ ”
But right after the passage about vengeance is . . . Paul, who is
speaking, says, ‘The ruler bears not the sword in vain for he is
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the minister of God, a revenger to execute wrath upon him that
do it evil.’ Now, when he’s talking about the ruler he’s talking
about the government there. The first five books of the Old
Testament I believe are called the Torah in the Judeo-
Christian ethic, and they start off . . . . with the book of
Genesis where it says ‘Adam, human being, whoever sheds the
blood of man by man shall his blood be shed, for in his image
did God make man.’ Now, the opponents of the death penalty
say that’s all well and good but God didn’t punish Adam for
killing Cain and — or Abel. And, in any event, the most
important concepts in that are that capital punishment for
murder is necessary in order to preserve the sanctity of human
life, and only the severest penalty of death can underscore the
severity of taking a life. There are several other passages in
the Bible that speak of death or killing, so forth. The most
interesting, I think, is Exodus, [c]hapter 21, [v]erse 12
through 14. It says, ‘Whoever strikes another man and kills
him shall be put to death. But if he did not act with intent but
they met by act of God, the slayer may flee to a place which I
will appoint for you.’ This is the Lord speaking. In other
words, if it’s an accidental type killing, it wasn’t done with
intent, there’s a sanctuary, there’s a haven. It’s kind of like life
in prison without possibility of parole. But the Lord goes on to
say, ‘If you didn’t do this intentionally, then there’s a
sanctuary’ — well, I’m sorry, that was my words. It goes on to
say, ‘If a man has the presumption to kill another by treachery,
you shall take him even from my altar to be put to death.’ The
Lord says if you kill by treachery, there’s no sanctuary. ‘Take
him from my altar and put him to death.’ Now, again that’s
not aggravation. It’s just in the event any of you have any
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concerns about where religion fits in, hopefully that will be of
some assistance to you.”
At Beck’s penalty phase, the prosecutor similarly argued:
“Very briefly, I want to touch on a subject that you’ve heard a
lot of evidence on in this phase of the trial. It’s not aggravating
in any sense. The subject of religion. Mr. Beck had a very
strong religious upbringing. It’s very obvious. Mr. Beck
preached the Bible to others, carried it with him all the time,
knew it front to back. If any of you have any problem with the
role that the death penalty plays in religion, I’d like to indicate
to you that there are a number of passages in the Bible that
deal with the subject. I’m sure that Mr. Beck is aware of it.
One especially fitting is in Exodus where it indicates that —
the Lord of the Christian religion speaking, ‘Whoever strikes
another man and kills him shall be put to death, but if he did
not act with intent, but they met by act of God, the slayer may
flee to a place which I will appoint for you.’ This is an
accidental, unintentional killing. The Lord says there’s a
sanctuary, ‘I will keep you safe.’ I suggest to you that it’s like
life without parole. But the Lord goes on to say, ‘If a man has
a presumption to kill another by treachery, you shall take him
even from [m]y altar to be put to death.’ ‘Taken from [m]y
altar.’ There is no haven, there is no sanctuary, for an
intentional, treacherous killer. That’s exactly what you have
here. Again, it’s not aggravation. It’s just in case any of you
have any problems with religion in the case. I’m going to
conclude shortly.
“I would like to read a statement that was made many,
many years ago by a Justice in a country other than ours, a
Justice in England, that in spite of the fact that they didn’t
have a death penalty, made a very fitting statement. And it
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goes: ‘Punishment is the way in which society expresses [its]
denunciation of wrongdoing; and in order to maintain respect
for law, it is essential that the punishment inflicted for grave
crime should adequately reflect the revulsion felt by the great
majority of citizens for them. It is a mistake to consider the
object of punishment as being a deterrent or reformative or
preventive and nothing else. The truth is that some crimes are
so outrageous that society insists on adequate punishment
because the wrongdoer deserves it.’ ”
Beck responded in his closing argument: “[The
prosecutor] talked about the Bible. One thing you have to
remember, there was a passage in the Bible I think is so
important in this particular context. And as I recall it very
vaguely, the circumstances, someone was going to punish
somebody else I think by killing them, and God said
‘Vengeance is mine.’ ‘Vengeance is mine,’ saith the Lord. It
doesn’t belong to you. And he was talking to people, to human
beings. He said ‘I take vengeance. I punish.’ ”
2. Analysis
Beck and Cruz did not object to the challenged argument
or seek an admonition, and no exception to the general rule
requiring an objection and request for admonition applies. The
claim is therefore forfeited. (People v. Samayoa (1997)
15 Cal.4th 795, 841 (Samayoa).)
On the merits, we have previously held that reliance on
the same British justice’s quote was not misconduct, and Beck
cites no persuasive reason to revisit our conclusion. (People v.
Vieira (2005) 35 Cal.4th 264, 298 (Vieira).) Here, as in Vieira,
the prosecutor “merely asked the jury to make the
individualized determination that this defendant deserved
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death for these crimes because they were particularly
outrageous, regardless of whether or not his execution would
deter other crimes.” (Ibid.)
As to the remaining portions of the prosecutor’s
arguments, we have previously concluded that a substantially
similar argument in Vieira’s penalty trial was misconduct.
(Vieira, supra, 35 Cal.4th at pp. 296−298.) The “ ‘ “primary
vice in referring to the Bible and other religious authority is
that such argument may ‘diminish the jury’s sense of
responsibility for its verdict and . . . imply that another, higher
law should be applied in capital cases, displacing the law in the
court’s instructions.’ ” ’ ” (People v. Powell (2018) 6 Cal.5th
136, 184 (Powell).)
But here, as in Vieira, the misconduct was harmless
beyond a reasonable doubt because “the biblical argument
quoted above was only a small part of a prosecutorial
argument that primarily focused on explaining to the jury why
it should conclude that the statutory aggravating factors
outweighed the mitigating factors.” (Vieira, supra, 35 Cal.4th
at p. 298.) In both Beck’s case and Cruz’s case, the biblical
references were only a small part of the prosecutor’s closing
argument, which spanned 28 pages of transcript in Beck’s case
and 26 pages in Cruz’s case, and the prosecutor largely focused
on “explaining to the jury why it should conclude that the
statutory aggravating factors outweighed the mitigating
factors.” (Vieira, at p. 298.) Moreover, on both occasions the
prosecutor reminded the jury that the biblical passages were
not aggravating evidence and “did not urge the jury to apply a
source of law other than the court’s instructions.” (Powell,
supra, 6 Cal.5th at p. 185.) There was no prejudice.
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In Vieira, we observed that the prosecutor’s 1991
argument had occurred before our “our statements clearly
condemning prosecutorial reliance on biblical authority in
penalty phase closing argument were made in a series of cases
filed in late 1992 and 1993.” (Vieira, supra, 35 Cal.4th at
p. 298, fn. 11, citing People v. Wash (1993) 6 Cal.4th 215,
260−261, People v. Sandoval (1992) 4 Cal.4th 155, 193-194,
People v. Wrest (1992) 3 Cal.4th 1088, 1107 [filed Nov. 1992].)
We reserved the question of “whether prosecutorial biblical
argument that postdates and deliberately contravenes the
holdings in those decisions constitutes a more serious form of
prosecutorial misconduct warranting reversal of the penalty
phase judgment.” (Vieira, supra, 35 Cal.4th at p. 298, fn. 11.)
Here, the prosecutor’s challenged comments were made in July
1992, and so this case does not present an opportunity to
consider this issue.
b. Role of jury
Beck contends that the prosecutor attempted to “shame
the jury into imposing a sentence of death.” The prosecutor
argued: “[A]ll the People ask you on this case is to consider
everything that you’ve heard and to arrive at an appropriate
decision. The severest punishment in our society is death. . . .
It’s punishment for what you did. That’s justice. Justice is
what you get for what you did. If it’s anything less than you
deserve, it’s not justice. It’s unjust enrichment. This
defendant does not deserve to be unjustly enriched by you, the
jury. He deserves just punishment for what he did. . . . We use
the criminal justice system to punish, and it protects society
from physical danger and strengthens society by administering
fitting punishments that express and nourish the vigor of our
values. We should be ashamed, and indeed alarmed, to live in
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a society that does not intelligently express through you,
members of our jury, the public’s proper sense of proportionate
punishment for the likes of people like James David Beck.”
There was no misconduct. The prosecutor simply
expressed the view that juries reflect the general public’s sense
of proportionate punishment and that, in the prosecutor’s view,
the death penalty would be a just sentence for Beck’s crimes.
There is no reasonable likelihood the jury understood the
prosecutor’s comments to mean, as Beck argues, “they
individually should be ashamed of themselves if they don’t
impose death, [and] that they would not act ‘intelligently’ if
they did not reach a death verdict.”
c. Comparisons
Beck contends the prosecutor improperly described
situations that would or would not “call” for the death penalty.
The prosecutor argued: “Now, there are only a few crimes in
our society that call for the death penalty. I’m not going to say
call for the death penalty. That subject one to the death
penalty. Because death is never a mandatory sentence. . . .
This is one of them. This is one of the most horrible crimes
that one man could commit against others. You take the very
life, the very life from four people, senselessly, in a brutal
fashion, that, ladies and gentlemen, calls, in my opinion, for
the death penalty. When I say calls, again, it’s not mandatory.
It’s a death penalty type crime. And my opinion doesn’t count,
by the way. There are murders that we can — we can
understand, not condone but understand. A person comes
home and catches his wife unfaithful, we can understand if he
pulls a gun, shoots his wife and his neighbor, his best friend.
We can say it’s not right, but we understand it. And the death
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penalty is probably not appropriate in that particular case,
depending on the individual, of course. And we can
understand it if a guy is under so much pressure at work that
he flips out, as we’ve seen time and again, flips out, kills the
boss, kills a co-worker. We don’t condone that at all. It’s not
right. . . . . [B]ut at least there’s some underlying
circumstances that help us appreciate what’s happened and
help us determine what’s the appropriate punishment. In this
particular case, the only thing that makes any sense is that
these people — Gerald Cruz, Dave Beck, Ricky Vieira, those
people, that group — were mad at Frank Raper, maybe Dennis
Colwell. So they decided to do something about it, and they
did. They went over there and in cold blood slaughtered four
people, two of whom . . . they didn’t have any animosity
towards. . . . That just transcends the imagination. Brutal,
senseless murders. And this person right here is responsible.”
There was no misconduct. The prosecutor simply argued
that premeditated murder was deserving of greater
punishment than impulsive murder and that based on the
evidence the murders here were deserving of the death
penalty.
d. Willey testimony
Beck contends that the prosecutor improperly made
inconsistent arguments about Willey’s testimony at the guilt
phase and the penalty phase. The arguments were not
inconsistent.
As noted, Willey testified that after he and the other
perpetrators arrived at the victims’ home, Willey had a
fistfight with Ritchey outside. Beck suddenly knocked Willey
off Ritchey, fell on Ritchey, and slit Ritchey’s throat. During
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his guilt phase argument, the prosecutor said: “Now we have
the person that can really tell us who it was. We have Ron
Willey. Ron Willey can tell us who cut Ritchey’s throat,
because Ron Willey was . . . out there with Mr. Ritchey. Of
course, he didn’t stab him either. But he was out there
fighting with him. And he tells you that it was Dave Beck that
came out and cut the throat. Now, why would he tell you
that? . . . We’re back to the tag team now. He’s got to back up
Mr. LaMarsh. If he puts Mr. Cruz out there cutting his throat,
then Mr. Cruz couldn’t be in there playing hardball with
Mr. Raper’s head. So Mr. Beck is taking the fall for cutting
Mr. Ritchey’s throat when, in fact, I would submit to you that
it was Gerald Cruz [who] cut Mr. Ritchey’s throat after
Mr. Willey had stabbed him a bunch of times.”
At Beck’s penalty phase, when discussing section 190.3,
factor (j), which asks the jury to consider whether the
defendant’s participation in the crime was relatively minor, the
prosecutor argued: “We know that it was not relatively minor.
[Beck] played a major part in the commission of those murders.
Regardless of which witness that you want to believe or all the
witnesses you want to believe, his part in those murders was
major. In fact the testimony of . . . Michelle Evans, . . . he
came through the back window like Rambo . . . with his big
knife charging down the hallway. The testimony of Jason
LaMarsh that this is the man right here that he saw thrust
that big knife all the way up to the hilt in the belly of Dennis
Colwell. The testimony of Ron Willey that this is the man
right here that came out and knocked him off of Richard
Ritchey and cut his throat while he lay in the street pleading
for his life. Now, I don’t know what part of those testimonies
that you believe: Any, all, or none. That’s entirely up to you.
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But there was ample evidence presented at the penalty [sic]
phase of this trial that Mr. Beck took a major part in the
commission of these crimes.”
There was no inconsistency or misconduct. At the guilt
phase, the prosecutor argued that Willey’s testimony that Beck
slit Ritchey’s throat should not be credited. At the penalty
phase, the prosecutor said he did not know which testimony
the jury had found credible in convicting Beck, but none of the
testimony on which it could have relied demonstrated Beck’s
participation in the crime was relatively minor. No misconduct
is demonstrated.
4. Instructional error
Beck and Cruz contend the trial court’s modification of
CALJIC No. 8.87 was erroneous because it did not identify the
unadjudicated criminal activity and allowed the jury to
consider evidence in aggravation under section 190.3, factor (b)
that did not meet the requirements of the statute. We reject
these claims.
The court instructed the jury at Cruz’s penalty phase in
the modified language of CALJIC No. 8.87: “Evidence has
been introduced for the purpose of showing that the defendant
has committed criminal activity which involved the express[]
or implied use of force or violence or the threat of force or
violence. Before a juror may consider any of such criminal
activity as an aggravating circumstance in this case, a juror
must first be satisfied beyond a reasonable doubt that the
defendant did, in fact, commit such criminal activity. A juror
may not consider any evidence of any other criminal activity as
an aggravating circumstance. It is not necessary for all jurors
to agree. If any juror is convinced beyond a reasonable doubt
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that such criminal activity occurred, that juror may consider
that activity as a fact[or] in aggravation. If a juror is not so
convinced, that juror must not consider that evidence for any
purpose.” The court then defined reasonable doubt.
Substantially similar instructions were given at Beck’s penalty
trial.
Cruz submitted a proposed instruction in the language of
CALJIC No. 8.87 that the trial court modified. During the
Cruz instruction hearing, the court asked the prosecutor if he
had any objection to CALJIC No. 8.87. The prosecutor replied,
“No, other than we have to specify the —” The court
interjected, “I’m going to read it as follows,” and then read the
language in which the jury was instructed noted above. The
prosecutor said, “All right,” and Cruz did not object or request
that the court identify the criminal acts that involved force or
violence.
During the prosecutor’s closing argument at Cruz’s
penalty phase, he argued without objection that the jury could
consider the following unadjudicated criminal activity under
section 190.3, factor (b): placing a rifle in the mouths of
Jennifer, Rosemary, and Vieira and threatening to kill them;
repeatedly beating Vieira and Perkins, clapping his infant
daughter on the side of the head (which left bruises on the
inside of her ears); hanging water bottles from her legs while
she was suspended in a harness and making her cry so her
lungs would be strong; and kicking Jennifer while she was
pregnant between the legs so hard she bled. During the
prosecutor’s closing argument at Beck’s penalty phase, he
asserted without objection that the unadjudicated criminal
activity under factor (b) included beating Perkins and Vieira,
and electrocuting Perkins’s toes so that they fused together.
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The prosecutor stated that the tape of A. crying that was
introduced on rebuttal was not aggravating evidence because it
was not an act of violence, but had been introduced in response
to Beck’s defense mitigating evidence to show that Beck was
“not always real good . . . with children.”
Cruz contends that the incidents relied on by the
prosecutor under section 190.3, factor (b), did “not constitute
the use or threat of use of force or violence.” He did not object
on this ground below, and the claim is therefore forfeited.
(Carrasco, supra, 59 Cal.4th at pp. 966−967.) Moreover, all the
incidents relied on involved force or violence.
Beck and Cruz contend that the trial court erred in not
identifying what behavior fell within section 190.3, factor (b),
and what crime had been committed by that behavior. Here,
the prosecutor “during closing argument explicitly identified
the evidence to be considered as other crimes under factor (b),
and the jury instructions . . . explicitly required that such
evidence be considered only if it involved” force or violence or
the threat of force or violence. (People v. Mitcham (1992)
1 Cal.4th 1027, 1075.) “Therefore, the trial court’s failure to
list the other crimes relating to factor (b) could not have
affected the verdict.” (Ibid.)
Citing dicta in People v. Robertson (1982) 33 Cal.3d 21,
55, footnote 19, Beck and Cruz contend that “this [c]ourt has
held that the jury should be instructed as to the specific crimes
being alleged by the prosecution in order to make certain that
the jury will not improperly consider other acts.” In People v.
Pensinger (1991) 52 Cal.3d 1210, 1267, we observed in
response to the defendant’s reliance on the same language in
Robertson: “We have not imposed any sua sponte duty to
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instruct in this area. [Citations.] There may even be tactical
reasons why the defendant would not wish such an
instruction.” Likewise, in People v. Taylor (2010) 48 Cal.4th
574, 656, we stated: “[W]e have held that absent a request, the
trial court has no duty to specify the names or elements of the
unadjudicated crimes when instructing the jury on factor (b)
evidence. [Citations.] The premise of this rule is that, for
tactical reasons, most defendants prefer not to risk having the
jury place undue emphasis on the prior violent crimes.”
Cruz further contends that the prejudice from evidence
at the guilt phase that he possessed assault weapons, knives,
and grenades was likely compounded at the penalty phase by
the trial court’s challenged instruction. He points to a single
fleeting reference to his possession of grenades at the guilt
phase and no evidence that any of the weapons he possessed
were illegal. Nor did the prosecutor rely on evidence Cruz
possessed assault weapons, knives, and grenades as
aggravating evidence under factor (b). Nothing supports
Cruz’s speculative claim that the evidence might have been
considered by a juror “as criminal activity involving a threat of
violence.” For similar reasons, we reject Cruz’s claim that a
juror might have considered his juvenile misconduct of spray
painting a car as aggravation under factor (b). Indeed, this
evidence was not presented by the prosecutor, but elicited by
Cruz’s defense counsel in his penalty defense case.
Beck contends that “the jury was not properly guided in
their consideration” of the tape of A. crying because the court’s
instruction did not limit the type of evidence the jury could
consider under the factor (b). The instruction stated the jury
could only consider “criminal activity which involved the
express or implied use of force or violence or the threat of force
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or violence,” and the prosecutor told the jury this did not
include the tape of A. crying. Beck fails to demonstrate how
the jury lacked guidance.
5. Death sentence for conspiracy
Beck and Cruz assert that even if their conspiracy
convictions are supported by substantial evidence, the trial
court erred in imposing a death sentence based upon this
conviction because conspiracy to “commit murder alone cannot
make a defendant death eligible.” That, as the Attorney
General concedes, is correct. (Vieira, supra, 35 Cal.4th 264,
294; People v. Hernandez (2003) 30 Cal.4th 835, 864−870;
People v. Lawley (2002) 27 Cal.4th 102, 171−172.) Therefore,
as to both Beck and Cruz, we vacate as unauthorized the
multiple-murder special-circumstance true findings as to
Count V (conspiracy to commit murder), as well as the death
sentences imposed for that count. Under our statutory power
to modify an unauthorized sentence (§ 1260), “we shall direct
the trial court to issue . . . amended abstract[s] of judgment
reflecting the appropriate sentence for conspiracy to commit
murder, which the Attorney General in this case agrees is
imprisonment for 25 years to life.” (Lawley, at pp. 171−172;
see § 182; Cortez, supra, 18 Cal.4th at p. 1226.)
Here Cruz instructed the perpetrators to “go and do them
all and leave no witnesses.” For that reason, contrary to Cruz’s
contention, we do not direct the trial court to stay these
convictions under section 654 because the object of the
conspiracy to commit murder was not limited to the actual
victims killed, but rather included anyone found at 5223 Elm
Street and any witnesses. (Cf. Lewis, supra, 43 Cal.4th at
p. 539 [“under section 654, defendant may not be punished for
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both the underlying crimes and the conspiracy, because there
was no showing that the object of the conspiracy was any
broader than commission of the underlying crimes”].)
6. New trial motion
Following the penalty verdict, Beck and Cruz filed
substantially similar new trial motions asserting there was
newly discovered evidence and Brady error. (§ 1181, subd. 8;
Brady v. Maryland (1963) 373 U.S. 83.) Beck, joined by Cruz,
contends that the trial court erred in denying his new trial
motion. We conclude there was no abuse of discretion.
a. Newly discovered evidence
Cruz attached to his new trial motion a September 23,
1992 letter from inmate Alfred “Kip” McDonnell (that Cruz
asserted was intended for Cruz) that said: “When I was on X’s
Jason LaMarsh told me that he and Michelle Evans had
tricked [Beck] and [Cruz] into going over to her sister’s house.
Where Jason and Michelle had some drugs hidden. Which
they could not get out because Raper and some people were
staying there. [¶] Jason said that he and Missy had plan[n]ed
for a fight to break out over at her sister[’]s between [Beck] and
[Cruz] and the people staying at her sister[’]s house, while
Jason and Missy got the drugs out. [¶] Jason started laughing
and said that [Beck] and [Cruz] had no idea of what was going
to happen when they showed up at her sister[’]s house. [¶] I
heard Jason telling Ron that if he ‘Ron’ went along with his
story that they would walk, because his story will be close to
Missy’s story and Missy won’t say anything bad about Ron and
Jason. That she[’]ll only dump on [Beck] and [Cruz] which
they must also do to convince the jury.”
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At the hearing on the new trial motion, Cruz’s counsel
said his investigator had contacted McDonnell and asked him
to sign an affidavit containing “the same thing as what’s in the
letter.” McDonnell refused to sign the affidavit and said that if
he “was brought to court he would take the Fifth.” The trial
court ruled that “even if the Court were to treat this
handwritten letter as a declaration and as signed by Mr. Alfred
McDonnell, the Court still feels that in view of the evidence
presented at the trial that no different result would have
occurred had Mr. McDonnell testified in accord with his letter.
His letter deals only with the testimony of co-defendants
Mr. LaMarsh and Mr. Willey. There’s substantial other
evidence which the jury is certainly entitled to rely on in
reaching their verdict of guilty for Mr. Cruz and Mr. Beck.”
“ ‘To grant a new trial on the basis of newly discovered
evidence, the evidence must make a different result probable
on retrial.’ [Citation.] ‘[T]he trial court has broad discretion in
ruling on a new trial motion . . .,’ and its ‘ruling will be
disturbed only for clear abuse of that discretion.’ ” (People v.
Verdugo (2010) 50 Cal.4th 263, 308 (Verdugo).)
Beck asserts that “Evans was the state’s key witness and
the only witness to supply evidence of a conspiracy to commit
murder. It was on the basis of her testimony that Beck and
Cruz were convicted of capital murder. Had the McDonnell
evidence been given to the jury, there is a reasonable likelihood
that the jury would have doubted Evans and would have been
more inclined to return convictions of lesser included second
degree murder, voluntary manslaughter, or assault with a
deadly weapon.” Beck contends McDonnell’s testimony would
have provided “strong independent corroborative evidence in
support of Beck’s defense.”
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Even assuming the letter purportedly from McDonnell
could be properly considered, we have concluded that there was
substantial evidence of a conspiracy to murder even aside from
Evans’s testimony. (See ante, pt. II.B.1.a.) Moreover, Beck
was connected to that conspiracy by his own statement to
Wallace that he alone or with others had slit some throats, his
statements to Rosemary that “they had to do them” and that
he had purchased new shoes because his were covered in blood
and he could not get them clean, and his presence with Cruz
when he purchased the baton later found at the crime scene.
Cruz was connected to the conspiracy by Creekmore’s
identification of him as the person who slit Ritchey’s throat,
and his purchase of the baton. In addition, the letter was
cumulative in part to trial evidence that LaMarsh and Evans
had been romantically involved and that several days after the
murders the house at 5223 Elm Street had been broken into
and a garbage disposal taken that Cruz’s counsel argued had
contained drugs. Finally, the letter lacked any probative detail
as to how LaMarsh and Evans had tricked Beck and Cruz to go
to Evans’s sister’s house, or how they orchestrated a fight that
resulted in four deaths. We conclude the trial court did not
abuse its discretion in denying Beck’s new trial motion based
on McDonnell’s letter.
b. Asserted Brady and discovery violation
On May 8, 1992, during the guilt defense case, Detective
Deckard interviewed Jennifer. Beck and Cruz learned of and
were provided tape recordings and transcripts of the interview
after the guilt phase had concluded. Jennifer did not testify at
the guilt phase.
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In their new trial motions, Beck and Cruz challenged the
failure of the prosecutor to disclose evidence of Jennifer’s
interview earlier to the defense. The trial court ruled that
Jennifer’s statements during the interview would not have
been admissible because they were made during plea
negotiations, and therefore they were also not discoverable.
The court further concluded that even if the prosecutor erred
in not disclosing the evidence, that the failure was harmless
beyond a reasonable doubt.
On appeal, Beck notes Jennifer told investigators that
when she met Cruz at a hotel on the night of the murders,
Cruz told her that they had gone to “the place where Franklin
lived,” that “there was a big fight, and it just like took on a life
of its own,” and “there was blood everywhere.” She also
recalled Cruz said that “something had gone wrong.” Jennifer
stated that Raper had “made threats towards us and stuff” and
had told Cruz, “Hey man if you don’t leave me alone I’m going
to kill you.” Beck asserts Jennifer also stated that LaMarsh
blamed Cruz for the incident and for ruining LaMarsh’s life.
Our review of the interview tape and transcript indicates
Jennifer was actually referring to Willey and said she had seen
LaMarsh in court but had not spoken to him on the telephone
or visited him.
Pursuant to Brady v. Maryland, supra, 373 U.S. 83, “ ‘the
prosecution must disclose material exculpatory evidence
whether the defendant makes a specific request (id. at p. 87), a
general request, or none at all. . . .’ [Citation.] ‘For Brady
purposes, evidence is favorable if it helps the defense or hurts
the prosecution, as by impeaching a prosecution witness.
[Citations.] Evidence is material if there is a reasonable
probability its disclosure would have altered the trial result.’ ”
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(Verdugo, supra, 50 Cal.4th at p. 279.) “A ‘reasonable
probability’ of a different result” does not mean “the defendant
would more likely than not have received a different verdict
with the evidence,” but “is . . . shown when the government’s
evidentiary suppression ‘undermines confidence in the outcome
of the trial.’ ” (Kyles v. Whitley (1995) 514 U.S. 419, 434.)
“ ‘Materiality includes consideration of the effect of the
nondisclosure on defense investigations and trial strategies.
[Citations.] Because a constitutional violation occurs only if
the suppressed evidence was material by these standards, a
finding that Brady was not satisfied is reversible without need
for further harmless-error review.’ ” (Verdugo, at p. 279.)
Section 1054.1, the reciprocal discovery statute,
“independently requires the prosecution to disclose to the
defense, . . . certain categories of evidence ‘in the possession of
the prosecuting attorney or [known by] the prosecuting
attorney . . . to be in the possession of the investigating
agencies.’ ” (People v. Zambrano (2007) 41 Cal.4th 1082, 1133.)
Evidence subject to disclosure includes any “[r]elevant written
or recorded statements of witnesses or reports of the
statements of witnesses whom the prosecutor intends to call at
the trial” (§ 1054.1, subd. (f)), and “[a]ny exculpatory evidence”
(id., subd. (e)). “Absent good cause, such evidence must be
disclosed at least 30 days before trial, or immediately if
discovered or obtained within 30 days of trial. (§ 1054.7.)”
(Zambrano, at p. 1133.)
We conclude that Jennifer’s statements were not
material, hence there was no Brady violation. (People v.
Dickey (2005) 35 Cal.4th 884, 908 [evidence was not material
under Brady when “it would have added little to the
cumulative impact of . . . other . . . evidence”].) We further
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conclude any violation of the prosecutor’s state law reciprocal
discovery obligations was harmless beyond a reasonable doubt.
Jennifer’s statement that Cruz told her they had gone to “the
place where Franklin lived,” that “there was a big fight, and it
just like took on a life of its own,” “there was blood
everywhere,” and “something had gone wrong,” was consistent
with Beck’s and Cruz’s trial testimony, and hence was not
material. Evidence that Willey blamed Cruz for the incident
and for ruining Willey’s life was cumulative to Willey’s
testimony that he did not kill anyone and did not know anyone
was going to be killed that night, and to his closing argument
that on the night of the murders he was in Ceres, a town
different from where Beck and Cruz lived, when “Cruz had
already decided something was going to happen.” Finally,
Jennifer’s statements that she had heard Raper threaten to
kill Cruz were cumulative to Cruz’s testimony that before the
murders Raper had threatened to kill him and that on the
night of the murders Evans told him Raper was going to call
his biker friends “to come and kill everyone in the camp that
night.” They were also cumulative to Beck’s testimony that
Evans told him on the night of the murders that Raper wanted
to kill Evans and those with whom she associated at the Camp.
In sum, the trial court acted within its discretion in
denying Beck’s new trial motion.
7. Constitutionality of the death penalty statute
Beck and Cruz contends California’s death penalty
statute and implementing instructions are constitutionally
invalid in numerous respects. We have repeatedly rejected
similar claims, and Beck and Cruz provide no persuasive
reason to revisit our decisions.
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“[T]he California death penalty statute is not
impermissibly broad, whether considered on its face or as
interpreted by this court.” (People v. Dykes (2009) 46 Cal.4th
731, 813.) We further “reject the claim that section 190.3,
factor (a), on its face or as interpreted and applied, permits
arbitrary and capricious imposition of a sentence of death.”
(Ibid.; see Tuilaepa v. California (1994) 512 U.S. 967, 975−976,
978.)
“The death penalty statute does not lack safeguards to
avoid arbitrary and capricious sentencing, deprive defendant of
the right to a jury trial, or constitute cruel and unusual
punishment on the ground that it does not require either
unanimity as to the truth of aggravating circumstances or
findings beyond a reasonable doubt that an aggravating
circumstance (other than Penal Code section 190.3, factor (b) or
(c) evidence) has been proved, that the aggravating factors
outweighed the mitigating factors, or that death is the
appropriate sentence.” (Rangel, supra, 62 Cal.4th at p. 1235.)
Nothing in Hurst v. Florida (2016) 577 U.S. __ [136 S.Ct. 616],
Cunningham v. California (2007) 549 U.S. 270, Blakely v.
Washington (2004) 542 U.S. 296, Ring v. Arizona (2002)
536 U.S. 584, or Apprendi v. New Jersey (2000) 530 U.S. 466,
affects our conclusions in this regard. (Rangel, at p. 1235,
fn. 16.)
“No burden of proof is constitutionally required, nor is
the trial court required to instruct the jury that there is no
burden of proof.” (Dement, supra, 53 Cal.4th at p. 55.) The
trial court is not required to instruct the jury that “if it
determines the mitigating factors outweigh the aggravating
factors, it is required to return a sentence of life imprisonment
without the possibility of parole.” (Id. at p. 56.)
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Nor is the trial court required to instruct the jury that if
the aggravating circumstances are so substantial in
comparison to the mitigating circumstances, it may still return
a sentence of life imprisonment without the possibility of
parole. Choice of penalty is a normative decision, and CALJIC
No. 8.88 properly explains to the jury that it may return a
death verdict only if the aggravating circumstances are so
substantial in comparison with the mitigating circumstances
that it warrants death, not that it must do so. (People v. Bivert
(2011) 52 Cal.4th 96, 124.) We disapprove of People v. Smith
(2005) 35 Cal.4th 334, 370 to the extent it is inconsistent with
this principle. In Smith we said, “[T]he jury is not free to
return a life verdict regardless of the evidence,” but rather “[i]f
[the] aggravating circumstances are so substantial in
comparison with mitigating circumstances as to warrant the
death penalty, then death is the appropriate penalty.”
The trial court need not instruct that there is a
presumption of life, or that a jury need not be unanimous in
finding the existence of a mitigating factor. (People v. Adams
(2014) 60 Cal.4th 541, 581; People v. Moore (2011) 51 Cal.4th
1104, 1139–1140.) Nor is the trial court required to instruct
the jury that mitigating circumstances need not be proved
beyond a reasonable doubt. (Kansas v. Carr, supra, 577 U.S. at
p. __ [136 S.Ct. at p. 642] [“our case law does not require
capital sentencing courts ‘to affirmatively inform the jury that
mitigating circumstances need not be proved beyond a
reasonable doubt’ ”]; accord, Samayoa, supra, 15 Cal.4th at
p. 862.)
The trial court was not required to delete inapplicable
factors from CALJIC No. 8.85 (People v. Watson (2008)
43 Cal.4th 652, 701), or “instruct that the jury can consider
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certain statutory factors only in mitigation.” (People v.
Valencia (2008) 43 Cal.4th 268, 311.) “ ‘ “[T]he statutory
instruction to the jury to consider ‘whether or not’ certain
mitigating factors were present did not impermissibly invite
the jury to aggravate the sentence upon the basis of
nonexistent or irrational aggravating factors.” ’ ” (People v.
Parson (2008) 44 Cal.4th 332, 369.) “Written findings by the
jury during the penalty phase are not constitutionally
required, and their absence does not deprive defendant of
meaningful appellate review.” (People v. Mendoza (2011)
52 Cal.4th 1056, 1097.) “The jury may properly consider
evidence of unadjudicated criminal activity under
section 190.3, factor (b). . . .” (People v. Lee (2011) 51 Cal.4th
620, 653.) The language “so substantial” and “warrants” in
CALJIC No. 8.88 is not impermissibly vague. (Romero and
Self, supra, 62 Cal.4th at p. 56.) “Use of the adjectives
‘extreme’ and ‘substantial’ in section 190.3, factors (d) and (g)
is constitutional.” (Dement, supra, 53 Cal.4th at p. 57.)
“The federal constitutional guarantees of due process and
equal protection, and against cruel and unusual punishment
[citations], do not require intercase proportionality review on
appeal.” (People v. Mai (2013) 57 Cal.4th 986, 1057.)
Moreover, “ ‘capital and noncapital defendants are not
similarly situated and therefore may be treated differently
without violating’ a defendant’s right to equal protection of the
laws, due process of law, or freedom from cruel and unusual
punishment.” (Carrasco, supra, 59 Cal.4th at p. 971.) “ ‘The
death penalty as applied in this state is not rendered
unconstitutional through operation of international law and
treaties.’ ” (People v. Jackson (2016) 1 Cal.5th 269, 373.)
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8. Cumulative prejudice
Beck and Cruz contend the cumulative effect of guilt and
penalty phase errors requires us to reverse the judgment. We
have found error but no prejudice in the trial court’s
instruction on conspiracy to commit murder, the prosecutor’s
reliance on biblical argument at the penalty phase, and the
imposition of the death penalty for convictions of conspiracy to
commit murder. (See ante, pts. II.B.7.a.1., II.C.3.a., II.C.5.)
Likewise, we have assumed error but found no prejudice in
testimony regarding a Ka-Bar knife box found in Beck’s trailer,
the reference to natural and probable consequences in the
conspiracy instruction, and ambiguity in the multiple-murder
instruction. (See ante, pts. II.A.2., II.B.7.a.2., II.B.7.b.) We
further conclude that these errors and assumed errors are not
prejudicial when considered cumulatively.
CONCLUSION
For the reasons above, we vacate as unauthorized the
multiple-murder special-circumstance true findings as to
Count V (conspiracy to commit murder) for Beck and Cruz, as
well as the death sentences imposed for that count. We
remand to the trial court to state on amended abstracts of
judgment sentences of imprisonment for 25 years to life on the
conspiracy count (Count V) and to strike the multiple-murder
special-circumstance true findings for that count. We affirm
the judgments, as modified, in all other respects.
LIU, J.
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We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
185
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Beck and Cruz
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S029843
Date Filed: December 2, 2019
__________________________________________________________________________________
Court: Superior
County: Alameda
Judge: Edward M. Lacey, Jr.
__________________________________________________________________________________
Counsel:
Andrew Parnes, under appointment by the Supreme Court, for Defendant and Appellant James David Beck.
William T. Lowe; Michael J. Hersek, State Public Defender, under appointments by the Supreme Court, for
Defendant and Appellant Gerald Dean Cruz.
Edmund G. Brown, Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and
Gerald A. Engler, Chief Assistant Attorneys General, Jeffrey M. Laurence, Assistant Attorney General,
Glenn R. Pruden and David M. Baskind, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Andrew Parnes
Attorney at Law
P.O. Box 5988
Ketchum, ID 83340
(208) 726-1010
William T. Lowe
Attorney at Law
P. O. Box 871
El Cerrito, CA 94530
(510) 230-4285
David M. Baskind
Deputy Attorney General
455 Golden Gate Ave., Suite 11000
San Francisco, CA 94102-7004
(415) 510-3759