People v. Wilson

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
BYRON WILSON,
Defendant and Appellant.
S087533
Los Angeles County Superior Court
BA164899
April 12, 2021
Justice Cuéllar authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Kruger, Groban, and Krause* concurred.
________________________
*
Associate Justice of the Court of Appeal, Third Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
PEOPLE v. WILSON
S087533
Opinion of the Court by Cuéllar, J.
This automatic appeal follows from defendants Byron
Wilson’s and Aswad Pops’s1 2000 convictions and death
sentences for the murders of four men during the robbery of a
Compton car wash. Wilson was found guilty of four counts of
murder in violation of Penal Code2 section 187, subdivision (a),
four counts of second degree robbery in violation of section 211,
and second degree commercial burglary in violation of section
459. The jury found true that Wilson was armed with, and
personally and intentionally discharged, a firearm causing great
bodily injury with regard to three of the murders in violation of
sections 12022, subdivision (a)(1) and 12022.53, subdivisions
(b)–(d). The jury also found true the robbery-murder, burglary-
murder, and multiple-murder special circumstances in violation
of section 190.2, subdivisions (a)(3) and (a)(17). The jury found
Wilson had suffered a prior serious or violent felony conviction
1
Aswad Pops was pronounced dead at San Quentin State
Prison on August 29, 2019. (California Department of
Corrections and Rehabilitation, News Releases
[as of Apr. 9, 2021]. All
Internet citations in this opinion will be archived by year, docket
number, and case name at .) The appeal was permanently abated as to Pops
on February 11, 2020.
2
All further unspecified statutory references are to the
Penal Code.
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under section 667, subdivisions (a)(1) and (b) through (i). After
a penalty trial, the jury returned a verdict of death.
Wilson contends that several errors occurred during the
guilt and penalty phases of his trial. Because we see no merit
to any of his claims, we affirm the judgment.
I. FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution Case
a. Wheels ’N Stuff
On January 25, 1998, Super Bowl Sunday, Byron Wilson
and Aswad Pops parked outside of the Wheels ’N Stuff car wash
on Sportsman Drive in Compton. Christopher Williams and
Charles “Spanky” Hurd operated the car wash, which had been
open for several months.
Williams, Hurd, and other employees dealt marijuana
from the car wash, a fact about which Wilson was aware.
Williams testified that he and his coworkers “tend[ed] to smoke
a lot of weed,” and the car wash customers “would want us to
sell [them] some of the weed we were smoking and from time to
time we would.” A soda vending machine was located inside the
car wash, and sometimes marijuana was stored inside of it. The
patrons and workers of the car wash, by and large, knew one
another. Williams saw both patrons and workers of the car
wash with large amounts of cash in their pockets. Williams
testified that the car wash had no official employees, and
Williams did not keep financial records. Williams explained
that anyone who washed cars did so on a volunteer basis, and
Williams made no money from car washing as Wheels ’N Stuff
did not charge for washes, although donations were permitted.
The business sporadically paid its workers, but they generally
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Opinion of the Court by Cuéllar, J.
earned money in tips.3 The $1,500 rent for the Wheels ’N Stuff
location was paid from marijuana proceeds.
b. Williams
Williams arrived at the car wash the morning of January
25, 1998, intending to invite his friends to his home for a Super
Bowl party, and to obtain marijuana to smoke. When he got out
of his truck, he noticed a car parked directly beside the car wash
with two people sitting low in the car’s front seats. Williams
went into the car wash, where he saw Michael Hoard working
behind the counter, from whom he obtained a small bag of
marijuana. He also saw two acquaintances, Shawn Potter and
E.T., arriving as he was leaving.
As Williams was leaving he noticed the two people, both
Black men, were still sitting in a car — “probably an eighty
something Honda” — parked beside the car wash. Because he
routinely sold marijuana from the car wash, he assumed the two
men were interested in buying some and asked them what they
needed. The passenger — who Williams later identified as Pops
— replied they were interested in “sounds,” which the driver —
later identified as Wilson — confirmed; Williams directed them
to a nearby store that sold car stereos.
Williams then left the Wheels ’N Stuff parking lot. Later
that day he received a call at his home from a friend who told
him, “[H]ey man, as soon as you left the people you talked to
went straight in there and killed everybody.” Williams returned
to the car wash, which had already been cordoned off with police
3
The Wheels ’N Stuff owners permitted workers to retain
tips for car washes, but asked that tips for larger services be
shared with them.
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Opinion of the Court by Cuéllar, J.
tape. From there, he was taken to the Compton Police
Department and interviewed. He described the men he had seen
sitting in the Honda earlier, explaining that the driver had a
lighter complexion than the passenger, and appeared to be a
little older. He believed both men had short hair, although he
described the driver as having worn a cap.
c. Bowie
Randy Bowie, who washed cars at the Wheels ’N Stuff
from time to time, walked to work the day of the shooting,
arriving just as Williams was leaving. Bowie stopped to use the
payphone right outside of the car wash, which was where he first
saw the car parked next to the car wash. The driver was about
six feet from where Bowie stood. Bowie identified the driver at
trial as Wilson. While on the payphone, the passenger of the car
— who Bowie identified at trial as Pops — raised what Bowie
believed was a TEC-9 semiautomatic handgun, pointed it at
him, and told him not to warn anyone. Pops then got out of the
car, grabbed Bowie’s collar, thrust the gun beneath Bowie’s arm,
and used him as a shield. The driver got out of the car while
brandishing a gun, which Bowie believed was a nine-millimeter
or Glock and held it to Bowie’s back. The two men then marched
Bowie into the car wash.
While Bowie was held at gunpoint by the payphone, Hurd
drove up to the car wash. At the same time, Jessie Dunn arrived
in his own car, an El Camino with chrome IROC rims. The
custom 3-bar chrome IROC rims originally belonged to Hurd,
who had them specially retrofitted for his El Camino. Because
the rims were manufactured for use with a Camaro, Hurd had
new holes drilled into them and added distinctive hardware.
Dunn bought the El Camino from Hurd. Following the sale,
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Opinion of the Court by Cuéllar, J.
Dunn’s girlfriend, Kimberly Thomas, noticed an oxidation spot
on one of the rims, and Dunn planned to have the rim re-dipped
in chrome to fix the imperfection.
Hurd and Dunn both entered the car wash building after
Pops and Wilson marched Bowie inside. Once in the building,
Pops and Wilson ordered everyone to get on the ground and not
move. The men inside the building after Bowie and his
assailants entered included Hurd and Dunn (who had walked in
after Bowie), Potter and E.T. (who entered as Williams was
leaving), and Hoard (who had been inside all along). Bowie was
afraid that if he alerted Hurd and Dunn to Pops and Wilson’s
presence, he would be shot.
Pops and Wilson asked those inside the car wash where
the money and “shit” were kept. They searched inside of the
building, walking to the opposite side of the building away from
where Bowie lay on the ground. Hurd was the only other person
Bowie could see. Bowie heard a commotion, after which a room
divider slid between him and the area where Wilson and Pops
were searching. Seizing the opportunity, Bowie got up and ran
from the building; as he ran, he heard a number of gunshots.
Bowie hid for some time not knowing whether he was
being pursued, and ultimately ran into a storage facility where
he asked an employee to call the police. He said his shop had
been robbed and his friends may have been shot. Bowie, shaken
by the events, asked an employee of the storage facility to drive
him to his brother’s house. The employee agreed, and as they
drove they passed the car wash, where Bowie saw police
arriving.
While heading toward his brother’s house, Bowie saw his
brother’s car turn into a parking lot, and Bowie asked the driver
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Opinion of the Court by Cuéllar, J.
to go there instead. Bowie, shaking so badly he could hardly
stand, got into his brother’s car. Now a passenger in his
brother’s car, Bowie again drove past the Wheels ’N Stuff where
he saw the car wash taped off and a large crowd gathered. Bowie
was still very frightened, and he did not want to stop or speak
with police. He did not report that he witnessed the crime until
the next day.
Bowie was interviewed by Detective Cat Chavers of the
Compton Police Department. He told Detective Chavers about
what he had witnessed and gave descriptions of the Honda’s
driver and passenger. He described the passenger as darker
skinned than the driver, with braided hair curled up at the ends.
He believed the passenger was between 25 and 30 years old and
described him as wearing dark clothing and having a TEC-9 gun
with a long clip. Bowie described the driver as lighter skinned
and smaller than the passenger. Bowie “guess[ed]” the driver’s
age to be between 25 and 30; in fact, Wilson was 20 years old at
the time of the shooting. Bowie told Detective Chavers he
thought Wilson had a uniquely shaped mouth, and was able to
identify Wilson on February 23, 1998, from a photographic
lineup based on what he described to be “the smirky grin on his
face.”4
d. Brown
Anthony Brown’s testimony from the preliminary hearing
was read to the jury as Brown was unavailable for trial.
Anthony Brown was a Wheels ’N Stuff employee since its
4
Bowie testified that he told Detective Chavers that Wilson
had a “funny shaped mouth,” but admitted on cross-examination
that he did not recall whether he described Wilson’s mouth
when giving his first statement, or only later.
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opening in 1997. The morning of January 25, 1998, Brown
arrived at the car wash in the late morning. Brown planned to
attend a Super Bowl ’98 party with his friends and coworkers
that day and planned to sell T-shirts and wash cars to make
money before going to the party. As he was arriving to the car
wash, Brown saw a man driving Jessie Dunn’s El Camino
abruptly out of the parking lot, moving forward and backward,
skidding the tires, and ultimately knocking over a gate on his
way off of the property. The El Camino sported IROC rims.
Brown did not know the man driving the El Camino but testified
that Wilson resembled the driver. Brown was ultimately unable
to positively identify the driver of the El Camino as Wilson.
As he saw the El Camino driving out of the parking lot,
Brown was also grabbing the T-shirts he’d planned to sell from
his own car. When he did so, he saw Pops walk out of the car
wash office through the front doors. Brown gestured to Pops as
if to remark upon the absurdity of the driver who had just
knocked over the car wash gate. Pops walked to the Honda that
had been parked by the payphone, got in, pointed a TEC-9 at
Brown, and fumbled with the weapon like he was trying to clear
a jam. Brown tried to evade the weapon pointed at him by
crawling through his own car and exiting from the passenger
door. Pops then drove out of the Wheels ’N Stuff parking lot in
the Honda, traveling in the same direction the El Camino had
gone.
Brown went toward the car wash office and yelled into the
building but did not enter. A man wearing a yellow shirt, who
Brown identified as E.T., got up and ran toward him. E.T. told
Brown that the men “shot everybody.” The four remaining men
in the car wash, all of whom had been shot and killed, included
Hoard, Hurd, Potter, and Dunn. From his vantage point at the
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
door, Brown could see Hurd’s body on the floor, and E.T. told
Brown that Hurd had been shot. E.T. went on, “I don’t know
why they didn’t kill me.” E.T. looked for his car keys inside the
building, but was unable to find them and asked Brown for a
ride because he did “not want to be around this kind [of] mess
when the police c[a]me.”
While E.T. was inside the building searching for his keys,
Potter’s mother, Georgetta Hoard,5 along with a friend, stopped
by the car wash. Brown told Georgetta she should not go into
the building, and that E.T. told him it was “a terrible sight”
inside. Brown and E.T. then left in Brown’s car.
Brown called his brother from the car to tell him what had
happened, and Brown’s brother advised Brown and E.T. to
return to the car wash. They did, and both men spoke with the
police already on the scene. Police officers then took Brown and
E.T. to the station to be interviewed, where Brown described
Pops’s height, age, and hairstyle. Officers observed that motor
oil and dirt stains covered E.T.’s yellow shirt.
e. Investigation
Compton police officer Bettye Jones was one of the first
responders to the Wheels ’N Stuff scene, where she saw two
women standing outside — Georgetta and her friend — and
observed that one was crying hysterically. Jones looked through
the front doors into the car wash, and saw a body lying on the
floor. Unsure if suspects remained in the building, she placed
Georgetta and her companion in a patrol car and entered the car
wash with Officer Larry Urrutia. Initially, Jones and Urrutia
5
Georgetta Hoard will be referred to by first name to avoid
confusion with victim Michael Hoard.
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
saw three men — Hurd, Potter, and Hoard, lying in the building,
“obviously dead.” They inspected the building further and found
one additional victim — Dunn — behind a car near the back of
the building. After the officers secured the building, paramedics
came in, checked the pulse of the men on the floor, and
determined that all of them were deceased.
Jones noted there were blood puddles and a bloody
footprint on the floor and was careful to ensure that officers and
paramedics did not step in the blood. A shelf had fallen inside
the car wash, and the contents were strewn on the floor. Jones
also observed that, in the car wash parking lot, broken headlight
fragments were on the ground near the gate. The gate appeared
scratched and had paint transfer damage, suggesting it had
been hit by a car.
Deputy Jeff Walley, a ballistics expert, collected evidence
at the scene. He recovered nine-millimeter and .40 caliber
bullets, bullet fragments, casings, and one live round.
Specifically, he found nine .40 caliber Smith and Wesson
cartridge casings, along with 10 expended .40 caliber bullets or
bullet fragments. Walley determined, based on unique gun
barrel and firing pin manufacturing processes, that a Glock
semiautomatic pistol fired the .40 caliber bullets found at the
scene.
Walley also recovered five nine-millimeter expended
casings and one live nine-millimeter round. He determined
these rounds could have been fired from one of several weapons,
but the only weapon with both a barrel extension and
appearance different than other types of pistols, including the
Glock used to fire the .40 caliber bullets, was an Intratec TEC-
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
9.6 A nine-millimeter casing found at the scene was dented,
suggesting the weapon jammed, a malfunction in which the
ammunition does not work as expected and no bullet is fired.
Intratec firearms are not known to be high quality weapons and
are known to jam on occasion. No ballistics evidence other than
from a nine-millimeter and .40 caliber was found at the scene;
Walley concluded only two weapons were used at the scene: a
Glock that fired .40 caliber bullets, and likely an Intratec TEC-
9 with a barrel extension that fired the nine-millimeter bullets.
The Office of the Medical Examiner performed autopsies
on the four victims two days after the shootings. Deputy medical
examiner Christopher Rogers testified that each of the four
victims were shot in their heads. Hurd suffered one fatal
gunshot wound to the back of his head, fired from a distance of
at least two feet. Potter suffered three gunshot wounds to the
back of his head, all of which were fatal. Potter was shot from a
distance of at least two feet. Hoard suffered three gunshot
wounds to the back of his head, all of which were fatal. These
wounds were inflicted from a distance of at least two feet. Hoard
also suffered two nonfatal wounds to his hands from bullet
fragments. Dunn was shot five times, twice in his head, once
under his arm, once in his shoulder, and once to his forearm.
The shots he suffered to his head were both fatal. The shot to
the area beneath his arm was fatal, as the bullet traveled
through a vein next to his heart. The shot he suffered to his
shoulder was likely fatal. The shot to his forearm was
potentially fatal. The shots to Dunn’s head were fired from a
range of less than two feet. The shots to Dunn’s shoulder,
6
Bowie believed the weapon pointed at him was a TEC-9
with a long clip, and Brown saw a TEC-9 pointed at him.
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
forearm, and arm were each fired from a distance of at least two
feet.
f. After the shooting
On the evening of the shooting one of Pops’s relatives
hosted a barbeque. Larry Barnes — a friend of Pops and Wilson
— attended the barbeque, along with Wilson. While there,
Pops’s brother, Aziz Harris, asked Barnes for assistance burning
a stolen car. Barnes, Harris, and Pops’s girlfriend drove in a
Honda to an alley where they burned Dunn’s stolen El Camino.
A nine-millimeter Lorcin pistol was in the filter, in an area
located beneath the car’s carburetor lid. The tires were in poor
condition and the El Camino had no radio.
On February 12, 1998, Detective Richard Conant of the
Long Beach Police Department stopped Pops, who was driving
a Camaro with chrome rims. Detective Conant conducted the
stop because he believed the rims matched the description of
those stolen from a car owned by one of the victims of the car
wash murders. Pops’s Camaro was painted a light color. Three
weeks before the stop, Barnes had joined Pops, Wilson, and
others at a local bowling alley, where Barnes noted that Pops’s
Camaro had been fitted with rims that matched the car’s light
paint color. The Camaro had different rims at the time of the
February 12, 1998 stop.
Wilson, Harris, and Barnes were passengers in Pops’s car
when it was stopped. Wilson became verbally combative with
detectives during the stop, angry that officers were conducting
safety pat downs. Officers arrested Barnes based upon an
outstanding warrant, but did not arrest Pops, Wilson, or Harris
at that time.
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On February 22, 1998, Bowie saw Pops at a gas station in
Long Beach. Pops was driving a Camaro with IROC rims, and
Bowie believed the rims were the same as those that had been
on Dunn’s car. As Pops left the gas station, Bowie paged
Detective Reynolds, and when they spoke Bowie urgently and
fearfully and described what he had seen.
i. The lineups
On February 11, 1998, Detective Reynolds showed
Williams a mug book consisting of 20 photographs spread across
five pages, none of which depicted Pops or Wilson, and Williams
was unable to identify anyone. Reynolds showed the same mug
book to Brown, who was also unable to identify anyone. On
February 12, Reynolds showed Williams a single sheet
containing six images — a “six-pack” — with none of the images
depicting Pops or Wilson. Williams was unable to identify
anyone, but he noted that the individual depicted in the number
one position “almost” looked like one of the men who
participated in the shooting. Reynolds showed that same six-
pack to Brown, who similarly noted that the person in the
number one position looked closest to the driver.
Eight days later, Bowie participated in a photo lineup.
Reynolds showed Bowie a mug book consisting of 20
photographs spread across five pages, as well as a single six-
pack, none of which depicted Pops or Wilson. Bowie was unable
to identify any of the individuals pictured as those involved with
the murders. Reynolds next showed two photographs to Bowie,
who, upon seeing them, became angry and began crying.
Pointing to one of the photographs, which depicted Pops, Bowie
said, “That’s the motherfucker right there.” Reynolds did not
show any photographs of Wilson to Bowie during this lineup.
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On February 23, 1998, Reynolds prepared a second six-
pack, this time containing a photograph of Wilson. Bowie looked
at the images and identified the person in the number two
position — Wilson — as the Honda’s driver. Bowie stated, “I
know for sure that’s him, I know the shape of his mouth.” That
same day, Reynolds showed Williams two different six-packs,
one of which contained a photo of Pops and the other a photo of
Wilson. Williams was unable to identify anyone.
On February 24, Brown participated in a photo lineup,
viewing a six-pack containing an image of Wilson. Brown was
unable to identify Wilson, although he told Detective Reynolds
that the person in the number two position — Wilson — looked
like he had the same complexion as the man he saw driving
Dunn’s El Camino. Brown was also unable to identify Pops from
the six-pack containing his photo, and although Brown indicated
that the photo of Pops was similar in appearance to one of the
assailants, he said that the man he saw had a darker complexion
than the individual depicted.
Several months later, on June 9, 1998, a live lineup was
conducted at the Los Angeles County Jail. Reynolds testified
that Bowie, Brown, and Williams attended the witness lineup,
and that they did not communicate with one another during the
process. All three witnesses identified Pops. Bowie and
Williams identified Wilson as the driver. Brown could not
positively identify Wilson although he believed Wilson was the
person closest in appearance to the man he saw driving Dunn’s
El Camino. Brown wrote on his identification card that he “only
viewed [the suspect] from behind and [got] a quick view of [his]
face but [Wilson] fits best . . . .”
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ii. The searches and arrests
On March 5, 1998, Reynolds obtained warrants to search
and arrest Pops and Wilson. Wilson was arrested in his home,
where he was found lying on his couch with a shotgun. Officers
carried out the search warrants simultaneously, and during
their search of Wilson’s home — where they found and arrested
Harris7 — they discovered a live round of nine-millimeter
ammunition, a man’s wallet, a loaded .12 gauge shotgun, a
three-ring binder, and a blue pad of paper.
Officers found the bullet beneath a couch cushion in
Wilson’s home, where they also located Wilson’s wallet.8 The
wallet held, among other contents, a business card from a gun
store, which listed prices for .26 and .30 caliber Glock firearms,
but not a .40 caliber Glock, the type used in the Wheels ’N Stuff
shooting. Walley, the ballistics expert, identified the bullet as
one ejected from the same nine-millimeter weapon that was
used in the shooting. He testified the bullet could have been
dropped in the home before or after the shooting.
The binder found in Wilson’s home contained a single
newspaper clipping about the car wash murders. Officers found
no other newspapers or clippings in Wilson’s home. The blue
pad of paper found on Wilson’s table contained pages depicting
various drawings and a list of names. According to Barnes’s
testimony, one of the drawings was of Pops’s car with the
addition of IROC rims, and it was labeled “the Monster Beefy.”
There was also a drawing of street signs labeled “55th” and
7
Warrants for Harris’s and Barnes’s arrests were issued at
the same time as the warrants for Pops and Wilson.
8
The wallet was identified as Wilson’s because it contained
a video rental card and calling card in Wilson’s name.
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“Lime,” which was an intersection near Pops’s and Wilson’s
homes. Another drawing was a caricature of Pops labeled with
his moniker, “Nut,” and with the word “Loco.” Another drawing
showed a tattooed arm firing a semiautomatic weapon; the
tattoo said “Y.M.O.,” which stands for “Young Mafia
Organization,” a group to which Wilson, Pops, Harris, and
Barnes belonged. Pops was tattooed on his left and right
forearms with the letters, “Y.M.O.” The pad of paper also held
a page listing the various monikers of the individuals who spent
time with Pops and Wilson.9
During the search of Pops’s home — where Pops was
arrested — a Camaro fitted with IROC rims was seized and
taken to a tow yard. The IROC rims on the car were the same
as those that had been fitted on Dunn’s El Camino. Anthony
Boochee, who originally fit the rims on the El Camino, testified
that the IROC rims had been modified to fit that car by drilling
larger holes to accommodate the necessary screws and Cragar
lugs. Boochee testified that the rims had been modified a second
time to fit a smaller wheel, but still utilized the Cragar lugs
originally placed on Dunn’s El Camino. Kimberly Thomas,
Dunn’s girlfriend, testified she recognized the rims as having
originally been placed on Dunn’s El Camino because there was
an oxidation spot she recognized on one of them.
2. Defense Case and Rebuttal Evidence
Although Williams initially told the prosecution he was
“positive” “from a glance” and had “no doubt” regarding his
9
Pops’s moniker was listed as “Nut.” Wilson’s moniker was
listed as “Bird.” Harris’s moniker was listed as “Scrap.”
Barnes’s moniker was listed as “Smerf,” which he had tattooed
across his stomach.
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preliminary hearing identification of Pops and Wilson, he later
admitted he “really did not get a good look at” one of the men.
Williams explained that he has “a habit of not staring at people
I don’t know so, yeah, I looked over towards them and mind my
own business, then I would maybe look again.”
Williams had a conversation with the driver of the vehicle,
who he described as having a lighter complexion than the
passenger. At one point, Williams conceded during questioning
that he became “confused about who was in the passenger seat
and the driver’s seat. It’s the only thing — a small thing to be
confused about; otherwise, those are the two people in the car.
[¶] Now, right now, they almost look similar so for me to know
which one was driving and which one was in the passenger seat
is hard for me but I do know those are the two people in the car,
yes.” Williams also acknowledged that he lied several times
while giving testimony during the preliminary hearing,
although this dishonesty related to what he knew about the sale
of marijuana from the car wash. Selling marijuana from Wheels
’N Stuff violated the terms of his probation.10
Bowie’s testimony suffered from credibility concerns.
Bowie had numerous prior felony convictions, including battery
against the mother of his child, robbery, and burglary. Bowie
denied on direct examination that he had suffered an armed
robbery conviction, although he acknowledged on cross-
examination that he suffered a robbery conviction as a juvenile
in which a firearm was involved. Bowie maintained that Wheels
’N Stuff was a legitimate car wash business of which he was an
10
Williams was on probation at the time of the shooting,
having suffered felony convictions for possession of marijuana
with intent to sell and possession of stolen property.
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employee, and he was paid up to $300 per week, “assuming that
[he] made that much,” to wash cars. Williams denied paying
Bowie regularly for his work, testifying he sporadically paid
Bowie in small amounts if he was asked, and Bowie paid no
income tax. Bowie claimed never to have seen marijuana being
sold from the Wheels ’N Stuff. His claim was undermined by
Williams’s testimony that the building’s rent was paid from
marijuana sale proceeds, and by the crime scene photographs,
which showed marijuana and related drug paraphernalia visible
in open locations. Bowie also claimed he had never testified at
a trial; this statement was impeached by a minute order from
his own trial showing he testified, but he maintained he had not
recalled doing so as his trial had occurred fifteen years prior to
Wilson’s trial.
When Bowie identified Wilson, he told Chavers he recalled
what the driver looked like because of “the smirky grin on his
face.” Police graphic artist John Shannon testified Bowie’s
description of the driver was not sufficiently specific to permit
him to create a sketch. He testified that Bowie did not say
anything about Wilson’s mouth shape or a smirk, only
describing that the driver had a receding hairline, tight eyes, or
“something like that.” Shannon explained that when a suspect
possessed some unusual feature, witnesses were usually able to
describe that detail to him. Williams and Brown believed the
driver wore a cap with writing on it, while Bowie described the
driver’s hairline. Wilson argued he did not have a receding
hairline in 1998, nor did his eyes appear “tight.”
Brown had testified that he saw the El Camino and the
Honda leaving Wheels ’N Stuff the morning of the shooting. He
began his employment with the car wash weeks after his release
from county jail, where he was incarcerated after suffering
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
felony convictions for conspiracy and telephone fraud in 1993.
Brown was unable to identify Wilson as the driver during the
February 24, 1998 photographic lineup, and Wilson argues he
erroneously identified another man as someone who resembled
the driver.
Wilson presented evidence that he was not involved with
burning the El Camino. Joseph Black, a defense expert
employed by one of the manufacturers of IROC rims, testified
that the rims on Dunn’s El Camino appeared consistent with a
1984 rim style, and were not the same style as the rims sold with
the 1988 Camaro. He testified that he did not believe IROC rims
required modification to be fit on an El Camino.
With regard to the binder found in Wilson’s home, no
evidence suggested that Wilson made any of the drawings or
that he composed the list of Y.M.O. members. No drawings of
Wilson appeared in the binder.
None of the fingerprints collected from the car wash could
be traced to Pops or Wilson.
Deputy Public Defender Jeanmarie Klingenbeck, a close
friend of Deputy Public Defender Cheryl Jones (Pops’s attorney)
attended the live lineup in June 1998. She sat a few rows behind
the three witnesses — Bowie, Williams, and Brown — who each
sat about six feet away from one another in a row of school desks
with empty desks between them. Klingenbeck noticed the
witnesses motioning toward each other, “like kids would do
when they were copying off papers.” Klingenbeck took notes
once she noticed what she perceived as “unusual activity,” but
she did not inform the officers at the lineup about her
observations. Klingenbeck told Jones, her friend and fellow
public defender, about what she saw, and she provided a
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Opinion of the Court by Cuéllar, J.
statement to Jones a few months before trial. Klingenbeck
testified at trial as to her observations.
Deputy Sheriff William Gilbert of the Los Angeles County
Sheriff’s Department supervised the June 9, 1998 live lineup,
and he testified regarding the procedures and safeguards in
place. Gilbert described how witnesses are generally seated at
a lineup, explaining that because there are seven seats in a row,
three witnesses would be seated with two chairs between each
person. Witnesses are reminded “that there is no talking,
communicating or looking around in any way, shape or form,
[and they are instructed] to look straight ahead.” Gilbert
testified that he monitored the lineup from a window in front of
the stage, where he could see the lineup participants and the
witnesses in the gallery. If any witness communication had
been observed, the lineup would have been cancelled. The
witnesses are illuminated by the light behind a two-way mirror,
and the area where witnesses are seated is too dim to read a
newspaper.
Attorneys attending the lineup are seated between six and
eight rows behind the witnesses, and they are required to
identify themselves, and to state why they’re attending the
lineup, before it begins. Klingenbeck intimated she was an
attorney related to the case, and Gilbert testified that if she had
indicated that she was merely accompanying attorney Jones she
would have been asked to wait outside. The paperwork Gilbert
completed in conjunction with the lineup notes no objections or
incidents related to improper witness communication.
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
B. Penalty Phase
1. Prosecution Case
Hurd’s sister, Charmaine Hurd, testified about the toll his
death took on his family, including his five children.
Wilson’s prior robbery conviction was admitted via
stipulation. Wilson pleaded guilty to a robbery in which he
drove the getaway car while his accomplice robbed a 53-year-old
woman of cash from her Aid to Families with Dependent
Children (“AFDC”) check by threatening to kill her companion.
Wilson was 18 years old at the time of that offense and was
ordered to serve 120 days in county jail.
2. Defense Case
Marcellette James, an old family friend, began writing to
Wilson following his incarceration. As a child, James found
Wilson to be happy, smart, and perceptive. She believed he was
fairly well supported by his family, particularly his dad, during
the years of his childhood during which the two were
acquainted. During the first year of Wilson’s incarceration,
James sent him dozens of letters, cards, and Christian
pamphlets. The two spoke frequently on the telephone. James
and Wilson fell in love through their correspondence and
continued writing letters even after Wilson’s telephone
privileges were revoked. James testified that Wilson’s being
charged with murdering four people did not change her feelings
for him. James and Wilson did not speak about the murders,
but James believed Wilson to be innocent and considered him a
“very mature man.” James testified she “matured spiritually”
because of her relationship with Wilson and were he to receive
the death penalty “it could be killing a part of” her.
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Opinion of the Court by Cuéllar, J.
Wilson also presented evidence of his childhood and
upbringing. Byron Paul Wilson, Sr., Wilson’s father, testified
the family lived in Long Beach when Wilson was born, and
Byron worked in housekeeping at Fairview State Hospital at
that time. Byron was educated at a local community college and
trade college, after which he gained employment at Univox
doing technical troubleshooting work from 1983–1987. Byron
used alcohol and cocaine during this period. Wilson’s mother,
Tonya Wilson, worked as a secretary in a school district around
this time, from 1982–1990. Byron testified that during the
period he was employed by Univox, Tonya also casually drank
alcohol and used drugs, mainly marijuana.
Byron and Tonya’s marriage was initially “okay,” despite
periods of infidelity. They moved to Avenal for Byron’s work in
1987, and to Novato in 1989 when he became employed by San
Quentin State Prison. Their drug use consistently increased as
the years passed. Following another move for Byron’s job when
Wilson was about 11, he began socializing with Byron’s and
Tonya’s friends, all of whom used drugs together. Tonya
described their family as dysfunctional. When Tonya was under
the influence of drugs “she became a changed person,”
sometimes physically attacking Wilson and Byron.
Tonya oversaw Wilson’s education and spoke with his
teachers when necessary. She testified that in elementary
school Wilson was a “class clown,” and he was placed in special
education classes. Wilson kept to himself with friends and
peers, and when he tried to have friends over to his home Wilson
would become so withdrawn Tonya asked the child’s parent to
come and retrieve their child.
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Opinion of the Court by Cuéllar, J.
The family moved to Los Angeles, and although Wilson
preferred living in small towns he eventually adjusted and grew
to like it. Byron’s drug abuse worsened, and he resigned from
his job due to his drug use and a back injury. He and Tonya
separated, and the two divorced in 1997. Tonya’s mother died
in 1997, and following that loss and a drug relapse, she was
arrested and convicted of a felony. Byron and Tonya both lost
contact with Wilson while they lived in Los Angeles.
Tonya testified about an incident in Wilson’s childhood
when he called 911 after she collapsed due to an ectopic
pregnancy. Byron testified that Wilson — then aged seven or
eight — helped care for his mother when she was ill with cancer
and when she was injured in a car accident after having taken
PCP.
Despite their lack of contact, Byron testified that he did
not want Wilson to be executed because Wilson was his only
child. Tonya testified that she loved Wilson and did not want
him to receive the death penalty.
Wilson’s elementary school special education teacher,
Barry Carlson, testified that Wilson suffered from attention
deficit disorder as a child. Wilson was capable of learning well
when given individual attention and appeared happy in grade
school — particularly when his teacher worked with him. He
was easily distracted when left alone, and more hyperactive
than other children with the same diagnosis.
Dr. Efrain Beliz, a clinical psychologist providing expert
testimony for Wilson, opined that it was likely he suffered from
attention deficit hyperactive disorder (ADHD) in elementary
and high school. Over the course of two days, Dr. Beliz
interviewed Wilson for 13 hours. Dr. Beliz explained that
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
ADHD sufferers are impulsive and disruptive, and that children
with ADHD face an increased risk of developing substance
abuse issues. Because those suffering from ADHD possess poor
social skills, Dr. Beliz opined they are vulnerable to social
manipulation and gang involvement.
II. GUILT PHASE
A. Identification of Wilson Was Proper
Wilson argues the trial court erred by denying a motion to
suppress Bowie’s and Brown’s identifications of him.11 He
alleges the identification procedures were unduly suggestive
and the resulting identifications unreliable, rendering their
admissions violative of his rights under the Due Process Clause
to the United States Constitution. For the reasons that follow,
we conclude his claim lacks merit.
1. Background
a. Bowie’s Identification
While Bowie was using the payphone outside the Wheels
’N Stuff on January 25, 1998, he saw two men parked outside
the car wash. The passenger, Pops, pointed a semiautomatic
handgun at Bowie, then got out of the car and held the gun
against Bowie’s body. Bowie also saw the driver, whom he later
identified as Wilson, get out of the car and hold a gun against
Bowie’s back. Pops and Wilson marched Bowie into the car
wash, and the events of the shooting transpired.
11
Bowie’s and Brown’s identifications, made in 1998,
predate the enactment of section 859.7, which now mandates
that law enforcement agencies adopt regulations for the
administration of identification processes.
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
Bowie went to the police station the day after the
shootings, and although he was unable to describe his assailants
clearly enough for a sketch artist to produce a composite
drawing, he told Chavers that the driver had a “funny shaped
mouth.” Bowie also said that he would be able to identify his
assailants if he saw them again. Bowie participated in a
photographic lineup on February 19, 1998 — less than one
month after the shooting — but was shown no photos of Wilson
and did not identify any of the photos he was shown as being of
Wilson.12 On February 23, 1998, Bowie returned to the police
station to view a different photo lineup that did include a photo
of Wilson and of five other men. Bowie identified Wilson as the
Honda’s driver, saying, “I know for sure that’s him, I know the
shape of his mouth.”
At a subsequent live lineup on June 9, 1998, and at the
preliminary hearing, Bowie had no difficulty identifying Wilson,
highlighting the distinctive shape of Wilson’s mouth. Bowie
testified at the preliminary hearing that he had described
Wilson’s smirk to police officers when he first spoke with them
the day after the shooting. Later, he was unable to recall
whether he had told Chavers that Wilson had a unique mouth
shape when he first gave a statement to her or only sometime
later.
12
Bowie was able to identify Pops. Although Bowie was
shown several photo arrays — four pages with five images each,
one six-pack, and two individual photographs, in that order —
he did not recall the order in which officers showed the photos
to him. The photo of Pops was shown to Bowie last; it was one
of the two photographs shown. We need not decide whether this
procedure was suggestive to address Wilson’s claim of error.
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
b. Brown’s Identification
Brown arrived at the car wash right after the shooting as
Wilson and Pops were fleeing the scene. He saw a person he
described as a light-skinned Black man driving Dunn’s El
Camino out of the parking lot. Pops got into his car to leave the
scene, fleeing when the gun he fired at Brown jammed.
Brown participated in a photo lineup on February 11,
1998, but none of the photos he was shown depicted Wilson, and
he was not able to identify anyone. The next day he was shown
a different six-pack, which also did not contain an image of
Wilson, but he pointed to a picture, noting the person looked
closest to the El Camino driver. On February 24, 1998, he
participated in a third photo lineup — this time including a
photo of Wilson — and although he did not identify Wilson, he
noted Wilson had the same complexion as the man he saw
driving the El Camino. At the live lineup on June 9, 1998,
Brown was unable to identify Wilson with certainty, writing on
his identification card that he “only viewed [the suspect] from
behind and [got] a quick view of [his] face but [Wilson] fits
best . . . .” Brown did not positively identify Wilson at the
preliminary hearing, but testified that “[t]he light complected
guy” — Wilson — “would probably best fit the description but I
only seen [sic] him from the rear view and glanced at the front
view.”
Wilson sought to exclude evidence of Bowie’s and Brown’s
pretrial identifications of him under Evidence Code section 402,
arguing the procedures used by the police were unduly
suggestive and the identifications tainted. The trial court heard
the motion to exclude on March 19, 1999; Bowie appeared at the
hearing, but Brown did not. The trial court ruled the procedures
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
employed in connection with Bowie’s identification were not
suggestive and it permitted the introduction of Bowie’s
identification. The trial court deferred ruling on the
suggestiveness of Brown’s identification pending his appearance
at the Evidence Code section 402 hearing. Brown’s appearance
was never secured, and he did not testify at trial; the trial court
instead declared him unavailable and counsel read his
preliminary hearing testimony to the jury.
2. Discussion
Wilson claims his right to due process was violated by the
introduction of Brown’s and Bowie’s identifications. A violation
occurs “ ‘only if the identification procedure is “so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.” ’ ” (People v. Sanchez (2019) 7
Cal.5th 14, 35.) If we determine the procedure was suggestive,
no due process violation arises if “ ‘ “the identification itself was
nevertheless reliable under the totality of the
circumstances.” ’ ” (People v. Clark (2016) 63 Cal.4th 522, 556
(Clark), quoting People v. Kennedy (2005) 36 Cal.4th 595, 608
(Kennedy).) In assessing the totality of the circumstances, we
consider “ ‘such factors as the opportunity of the witness to view
the suspect at the time of the offense, the witness’s degree of
attention at the time of the offense, the accuracy of his or her
prior description of the suspect, the level of certainty
demonstrated at the time of the identification, and the lapse of
time between the offense and the identification.’ [Citations.]
‘Against these factors is to be weighed the corrupting effect of
the suggestive identification itself.’ [Citation.]” (Sanchez, at pp.
35–36.)
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Opinion of the Court by Cuéllar, J.
A defendant’s claim that an identification procedure was
unduly suggestive is a “mixed question of law and fact.” (Clark,
supra, 63 Cal.4th at p. 557; see also Kennedy, supra, 36 Cal.4th
at p. 609.) This standard of review applies because “the facts
are established, the law is undisputed, and the issue” we must
resolve “is whether the law as applied to the established facts is
violated.” (Kennedy, supra, at p. 608.) We review the so-called
“historical facts,” those factual determinations that
underpinned the trial court’s conclusion that the identification
procedure was or was not suggestive, “under a deferential
standard.” (Clark, supra, at p. 557.) This standard
acknowledges that the trial court may have made “credibility
determinations,” that “contribute[d] to deciding the facts of
what had already happened, [but] were not dispositive of the
inquiry because the trial court did not have a ‘first-person
vantage’ ” to whatever “facts occurred outside of court.”
(Kennedy, supra, at p. 609.)
What Wilson argues is that Bowie’s identification of his
photograph was unduly suggestive because the six-pack array
shown to Bowie made Wilson appear distinct from the other five
individuals depicted. As a result, Wilson claims, the lineup was
suggestive because his image stood out to Bowie. In particular,
Wilson contends Bowie found the shape of his mouth
remarkable, and he argues no other person had a similar mouth
shape. Wilson argues there should have been “fillers” in the
photo array; that is, he claims the array should have included
photographs of other individuals who shared the characteristic
mouth shape Bowie found unique. Because Bowie believed
Wilson to be the only individual in the array with the uniquely
shaped mouth, he argues, the procedure was impermissibly
suggestive.
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
Wilson did not object on this basis before the trial court,
but claims he has not forfeited the argument because he joined
Pops’s motion to exclude and the motion “cited the correct
objection.”13 Even if the argument is not forfeited (People v.
13
The forfeiture issue in this case is somewhat tangled.
Wilson joined Pops’s motion for an Evidence Code section 402
hearing. In that motion, Pops argued that the way Bowie was
shown his photograph was unduly suggestive because law
enforcement officials presented several photographic arrays to
Bowie, and then showed him just two pictures, one of which was
of Pops. Wilson joined Pops’s motion, and the prosecution’s
response to Pops’s motion included an argument about the
propriety of Bowie’s photographic identification of Wilson. At
the hearing, immediately before Wilson examined Bowie, the
prosecution informed the court it assumed Wilson was joining
Pops’s motion. The trial court agreed, noting that the
prosecution argued Bowie’s identification of Wilson was proper
in its opposition. Wilson then briefly questioned Bowie about
that identification. Pops made further argument to the court to
exclude Bowie’s identification, and Wilson “submitted.”
Wilson claims the issue is not forfeited because the “ ‘court
understood the issue presented.’ ” (People v. Clark (2011) 52
Cal.4th 856, 966.) In People v. Cunningham (2001) 25 Cal.4th
926, 989, we held a suggestiveness claim was forfeited because
defendant failed to object, but the first time suggestiveness was
raised was in connection with a motion for judgment of
acquittal. In finding the suggestiveness claim forfeited in
Cunningham, we cited Evidence Code section 353, which
permits a court’s reversal based on erroneously admitted
evidence only if the defendant moved to exclude the evidence or
objected to its admission, and the reviewing court found the
evidence should have been excluded on the grounds stated in the
objection, or admission constituted a miscarriage of justice. The
only ground for exclusion of Bowie’s identification raised in
Pops’s motion was based on the suggestiveness of Bowie being
shown two photos, one of which depicted Pops, after he was
shown several multiple-photo arrays. Arguably, no motion to
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
Cunningham, supra, 25 Cal.4th at p. 989), we conclude it lacks
merit. In evaluating the suggestiveness of a photo array, we
consider “whether anything caused defendant to ‘stand out’ from
the others in a way that would suggest the witness should select
him.” (People v. Carpenter (1997) 15 Cal.4th 312, 367.)
Standing out requires more than the defendant potentially
being a different race than others pictured or having a photo
background slightly different than other images in the array.
(Clark, supra, 63 Cal.4th at pp. 556–558.) We have noted that
identifying “apparent racial or ethnic identity is something that
is harder to quantify and agree on.” (Id. at p. 557.) In Clark,
the defendant was a light-skinned Black man with a
distinctively large mustache, and the other images in the six-
pack showed men of a similar complexion but a potentially
different race, all with similar facial hair. (Ibid.) We concluded
in that case that nothing in the identification procedure made
the witness select the defendant’s photograph from among the
others, even accounting for the background tone and the
potentially distinct races of those pictured. (Id. at p. 557.) We
acknowledged law enforcement faced a challenge in finding
images similar to the defendant’s and met it as best they could.
Like the six-pack shown to the witness in Clark, the
images shown to Bowie all depicted men with similar
complexions. (Clark, supra, 63 Cal.4th at p. 557.) Wilson’s
exclude Bowie’s identification based on the suggestiveness of
Wilson’s mouth shape was made, although the issue was
addressed at the Evidence Code section 402 hearing. Whether
Wilson forfeited this issue is a close question, but even if his
suggestiveness claim is forfeited, nothing prohibits us from
considering the merits of the issue, and we elect to do so here.
(See ibid.; People v. Medina (1995) 11 Cal.4th 694, 753.)
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
concern is not primarily with the race of the men depicted, but
with their facial expression; Wilson claims he was the only
person smirking, and Bowie testified he knew Wilson by his
smirky grin. Our review of the images does not reveal anything
unique about the mouth shape in Wilson’s photo, nor does the
shape of his mouth appear distinctive compared to the other
photographs. Even if it had, the identification was not unduly
suggestive because nothing made defendant “ ‘stand out’ ” from
the other men depicted. (People v. Carpenter, supra, 15 Cal.4th
at p. 367.) As in Carpenter, Wilson “was neither the oldest nor
the youngest of the [six-pack] participants, neither the tallest
nor the shortest, neither the heaviest nor the lightest.” (Ibid.)
All of the men in defendant’s six-pack were distinct in
some respect from one another, with varying hairstyles and
clothing, and each of the image backgrounds was somewhat
different. But “nothing in the lineup suggested that the witness
should select defendant.” (People v. Gonzalez (2006) 38 Cal.4th
932, 943.) In Gonzalez, the defendant claimed his identification
from a photo array in which he was the only person with a
“ ‘droopy’ ” eye, and whose photo had a discolored background,
was improper. (Ibid.) Witnesses had not previously described
the defendant as having a distinctive eye, nor did we find
anything particularly unique about the defendant’s eye in the
image. (Ibid.) We held the identification was not unduly
suggestive. Likewise, here, although Bowie testified he was able
to recognize Wilson by his smirk, there was nothing unique
about Wilson’s mouth readily visible in the image. (Ibid.) To
the extent Wilson’s mouth shape was distinct from the other
individuals depicted, we have acknowledged all humans appear
somewhat different from one another. (People v. Lucas (2014)
60 Cal.4th 153, 237; see also People v. Carpenter, supra, 15
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Opinion of the Court by Cuéllar, J.
Cal.4th at p. 367 [“Because human beings do not look exactly
alike, differences are inevitable”].) Because nothing made
Wilson’s image stand out, we conclude the identification was not
impermissibly suggestive. (Gonzalez, at p. 943; Carpenter, at p.
367.)
Wilson also argues Brown’s identification was unreliable.
To evaluate this argument, “we consider (1) whether the
identification procedure was unduly suggestive and
unnecessary, and, if so, (2) whether the identification itself was
nevertheless reliable under the totality of the circumstances.”
(People v. Cunningham, supra, 25 Cal.4th at p. 989.) Because
we did not find the identification procedure unduly suggestive,
we turn next to whether the identification itself was reliable
under a totality of the circumstances. We conclude that it was.
Brown did not positively identify Wilson during the photo
lineup that contained his image, but said the image of Wilson
most closely resembled the skin tone of the man who drove away
in Dunn’s El Camino. Brown acknowledged at that time he did
not get a good look at the driver. Brown had selected an image
at a prior photo lineup, but the person selected was not Wilson.
Following his tepid identification of a person who resembled the
driver, Wilson, in a photographic lineup, Brown briefly saw
Wilson and Pops when he appeared for a continuance hearing in
May. A month later, Brown participated in a live lineup. He
did not positively identify Wilson, but indicated he most closely
resembled the person Brown saw driving the El Camino,
acknowledging he did not get a good look at the driver and saw
him from the back. At the preliminary hearing, Brown again
noted that — of the two defendants — Wilson most closely
resembled the El Camino driver, although he was unable to view
that person from the front.
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Opinion of the Court by Cuéllar, J.
Wilson argues that Brown’s photo identification was
unreliable because, after failing to select an image of Wilson
during two photo lineups, his participation in a subsequent
photo lineup implied to Brown that he failed to identify the
proper suspect initially. We have previously concluded a
witness viewing multiple photo lineups and making an
identification each time was not the product of unduly
suggestive procedure and conclude that is true here. (See, e.g.,
People v. Johnson (1992) 3 Cal.4th 1183, 1213–1218.) Brown
viewed several photographic lineups, did not positively identify
Wilson in any of them — although he twice noted images
resembled the person he saw, one of which depicted Wilson —
and was given no indication that he failed select the correct
image. We conclude the procedure used in the photographic
lineup was not unduly suggestive and unnecessary.
Wilson also contends that the passage of time between the
crime and his participation in the live lineup rendered it
unreliable. The Attorney General assumes for the sake of
argument, as do we, that Brown’s brief sighting of Wilson at the
continuance hearing rendered the subsequent live lineup
“suggestive to some degree.” Even where an identification
procedure is suggestive, we will find no due process violation if
it was reliable under a totality of the circumstances, as Brown’s
hesitant identification of Wilson was. (Clark, supra, 63 Cal.4th
at p. 556.) The circumstances we evaluate include how well and
attentively the witness viewed the suspect, the accuracy of any
prior description, how much time passed between the offense
and identification, and the witness’s degree of certainty — all
weighed against the “corrupting effect” of the identification.
(People v. Sanchez, supra, 7 Cal.5th at p. 36.)
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Opinion of the Court by Cuéllar, J.
Wilson argues that the passage of several months between
the crime and the live lineup rendered the identification
unreliable. Brown’s identifications at the live lineup and
preliminary hearing were uncertain; in both instances he
indicated that, of the choices available, Wilson most closely
resembled the man he saw because his complexion was closest.
Brown acknowledged he was unable to carefully observe the El
Camino’s driver, and he provided no contemporaneous
description of that person. Brown’s failure to definitively
identify Wilson at the live lineup, even after seeing Wilson in
person and in a photograph, indicates the procedure was not
unduly suggestive. The reliability of Brown’s identification was
not undermined. (See People v. Alexander (2010) 49 Cal.4th 873,
902 [witness’s failure to make in-court identification of the
defendant suggests that showing the witness photographs of the
defendant the night before trial was not unduly suggestive].)
The passage of time between crime and identification, like
the other circumstances, must be weighed against the damaging
nature of the identification. (Clark, supra, 63 Cal.4th at p. 556;
People v. Sanchez, supra, 7 Cal.5th at pp. 35–36.) Here, the
“corrupting effect” of the identification was minimal. (Sanchez,
at p. 36.) Identifying Wilson as the driver was not reliant on
Brown’s testimony. His identifications were consistently
uncertain. If useful to any degree they bolstered the more
definitive identifications provided by Bowie, and of Williams —
who also positively identified Wilson as the driver during the
live lineup. Moreover, Brown’s identifications — at the live
lineup months after the crime, but also at the photographic
lineup just weeks after it — were consistently uncertain and
equivocal. Considering the totality of circumstances, we
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Opinion of the Court by Cuéllar, J.
conclude Brown’s uncertain identification was reliable, and no
violation of Wilson’s right to due process occurred.
B. Wilson’s Confrontation Right Was Not Violated
by the Trial Court’s Admission of Brown’s
Testimony
Wilson argues his Sixth Amendment confrontation right
was violated by the admission of Brown’s preliminary hearing
testimony. Wilson acknowledges he was able to cross-examine
Brown’s testimonial statements at the preliminary hearing, but
argues Brown was not “unavailable” to testify at his trial as that
term was understood by the framers of the federal Constitution.
Wilson further argues admission of Brown’s preliminary
hearing testimony constituted error because the prosecution
failed to exercise diligence in attempting to secure his testimony
at trial. We conclude that Brown was “unavailable,” the
prosecution exercised diligence in attempting to secure his
testimony, and introduction of Brown’s preliminary hearing
testimony did not violate Wilson’s confrontation right.
1. Background
Brown was initially a cooperative witness. He returned to
the scene of the shooting, spoke with police on several occasions,
and participated in a live lineup. He was subpoenaed to, and
did, testify at the preliminary hearing on June 24, 1998. Nearly
a year later, in March 1999, the prosecution alerted the court to
a potential problem with securing Brown’s testimony at trial.
Brown had received a phone call from Tracy Batts, a man
incarcerated on charges unrelated to this case, who warned
Brown against testifying at trial. The prosecution subsequently
learned that Batts orchestrated a witness killing in his own
case. The prosecution understood Brown took the threat
seriously. Brown told prosecutors he would testify if he was
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Opinion of the Court by Cuéllar, J.
“dragged into court,” but the prosecution believed it would be
able to secure his testimony with sufficient time to work with
him.
The prosecution requested that Brown attend a hearing in
March 1999 but did not believe his attendance could be secured
so quickly. That proved prescient, and despite the prosecution’s
efforts to secure his appearance, Brown did not attend the
hearing. The prosecution then subpoenaed Brown to appear for
a hearing in May 1999. Brown signed the subpoena but did not
appear, although he indicated he would meet with Detective
Frederick Reynolds — a law enforcement contact with whom he
had been in touch throughout the investigation — shortly
thereafter. Brown did not attend that meeting.
Trial began on May 26, 1999, and on June 7, 1999, the
prosecution sought — and the court ordered — a body
attachment for Brown with bail set at $50,000. The prosecution
noted that if it could not secure Brown’s presence at trial it
would seek to introduce his preliminary hearing testimony. The
prosecution made efforts — detailed below — to secure Brown’s
testimony, and although Brown agreed to come to court he again
failed to appear.
On June 17, 1999, the court held a hearing to address
whether the prosecution had exercised due diligence in seeking
Brown’s appearance at trial. Detective Reynolds testified about
his efforts to secure Brown’s testimony, which included serving
Brown with a subpoena at his workplace, Melvin Hoard’s
autobody shop, on May 20, 1999. Detective Reynolds returned
to Melvin’s autobody shop the next day, and Brown was not
there. Melvin did not know where he was. Over the next few
weeks, Detective Reynolds attempted to contact Brown at his
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Opinion of the Court by Cuéllar, J.
last known address multiple times. He also sought to contact
Brown at the home of his ex-girlfriend, Nicole Washington.
Detective Reynolds spoke with Washington in June 1999, and
she claimed Brown had not been to her home for months, that
Brown would not tell Washington his address, noting he was
afraid to appear in court.
During this period of time, Brown and Detective Reynolds
spoke frequently by telephone, and despite Brown making plans
to meet Detective Reynolds on several occasions, he consistently
failed to keep their appointments. Detective Reynolds searched
for arrest records for Brown and confirmed he had not been
arrested. Neither Detective Reynolds nor the prosecution team
checked local hospital records, voter registration, or the post
office. While Detective Reynolds investigated Brown’s last
known address, employer, and frequent hangouts, he and the
prosecution team did not try to find Brown via public assistance
rosters.
Defense counsel urged the trial court to conclude the
prosecution had not exercised due diligence in seeking Brown’s
appearance at trial. The trial court ruled otherwise, concluding
that Brown made “active efforts to avoid” Detective Reynolds.
The court ruled that had the prosecution team been able to make
contact with Brown on or after May 20, 1999, efforts to secure a
bond or to arrest Brown would have occurred at that time. The
trial court declared Brown unavailable and permitted his
preliminary hearing testimony to be read to the jury.
Brown was not the only reluctant witness in this case. The
prosecution believed that Barnes, a juvenile probationer, would
be hesitant to testify and sought a bond to secure his
appearance, arguing to the court it was likely Barnes would
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make himself scarce during the pendency of the trial. The court
ordered the bond, Barnes failed to post it, and he was remanded
to custody. Barnes did not testify at the preliminary hearing.
The prosecution also sought to secure the appearance of a third
reluctant witness who was subpoenaed and failed to appear at
the preliminary hearing. As with Brown, the prosecution
engaged in a multitude of efforts to secure the witness’s
appearance, speaking to the witness’s family, associates, and
generally saturating the area over a “considerable” period of
time. The prosecutor ultimately released the witness without
bond, having decided not to use the witness’s testimony at trial.
2. Discussion
The Confrontation Clauses of the state and federal
Constitutions guarantee defendants the right to confront the
witnesses against them. (U.S. Const., 6th Amend.; Cal. Const.,
art. 1, § 15.) “The right of confrontation ‘seeks “to ensure that
the defendant is able to conduct a ‘personal examination and
cross-examination of the witness.’ ” ’ ” (People v. Herrera (2010)
49 Cal.4th 613, 620–621.) Via the confrontation right, a
defendant is able to compel prosecution witnesses to appear
before the jury so their credibility may be assessed. (Id. at p.
621.)
Although the constitutional right of confrontation is
important, it is not absolute. (People v. Herrera, supra, 49
Cal.4th at p. 621.) If a witness is unavailable but had previously
testified against the defendant and was subject to cross-
examination at that time, that prior testimony may be admitted.
(Ibid., citing Barber v. Page (1968) 390 U.S. 719, 722; People v.
Cromer (2001) 24 Cal.4th 889, 897.) Evidence Code section 1291
codifies this exception to the Confrontation Clauses, stating,
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“Evidence of former testimony is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and: [¶]
. . . [¶] (2) The party against whom the former testimony is
offered was a party to the action or proceeding in which the
testimony was given and had the right and opportunity to cross-
examine the declarant with an interest and motive similar to
that which he has at the hearing.” (Evid. Code, § 1291, subds.
(a), (a)(2).) We have held this exception permits an unavailable
witness’s preliminary hearing testimony to be admitted at trial.
(Herrera, supra, at p. 621; People v. Seijas (2005) 36 Cal.4th 291,
303.)
Wilson argues the trial court erred by admitting Brown’s
preliminary hearing testimony because he was not unavailable
to testify at trial as that term was understood when the federal
Confrontation Clause was drafted, and even under a modern
interpretation of unavailability the prosecution did not exercise
diligence in attempting to secure Brown’s presence at trial.
Wilson argues that because Brown was not “dead, in extremis,
[] detained by the defendant,” or outside the trial court’s
jurisdiction, Brown’s preliminary hearing testimony should not
have been introduced. Wilson urges us to adopt the originalist
interpretation of “unavailability” because the high court’s
decision in Crawford v. Washington (2004) 541 U.S. 36, 68
(Crawford) commands conformity with the common law at the
time of this nation’s founding.
In Crawford, the court underscored that “reliability of
evidence” is a goal embodied in the Confrontation Clause.
(Crawford, supra, 541 U.S. at p. 61.) One way reliability is
tested is “in the crucible of cross-examination.” (Ibid.) In
acknowledging that “[r]eliability is an amorphous, if not entirely
subjective, concept” (id. at p. 63), the court held that “[w]here
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Opinion of the Court by Cuéllar, J.
testimonial evidence is at issue” — as it is here — “the Sixth
Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination”
(id. at p. 68). Crawford did not define unavailability, but in a
pre-Crawford decision, the court explained the “basic litmus of
Sixth Amendment unavailability” as follows: “ ‘[A] witness is
not “unavailable” for purposes of the . . . exception to the
confrontation requirement unless the prosecutorial authorities
have made a good-faith effort to obtain his presence at trial.’ ”
(Ohio v. Roberts (1980) 448 U.S. 56, 74.)14 California law is in
accord. Evidence Code section 240 includes in its definition of
unavailability a witness who is “[a]bsent from the hearing and
the proponent of his or her statement has exercised reasonable
diligence but has been unable to procure his or her attendance
by the court’s process.” (Evid. Code, § 240, subd. (a)(5).)
We recently explained that prior testimony of an
unavailable witness may be admitted if, at that prior hearing,
“the defendant had the opportunity to cross-examine the
witness . . . .” (People v. Sánchez (2016) 63 Cal.4th 411, 440
(Sánchez).) The prosecution must demonstrate that “the
witness is unavailable and, additionally, that it made a ‘good-
faith effort’ [citation] or, equivalently, exercised reasonable or
due diligence to obtain the witness’s presence at trial.” (Ibid.)
14
This aspect of the analysis in Ohio v. Roberts survived
Crawford. (See, e.g., People v. Herrera, supra, 49 Cal.4th at p.
622 [implicitly acknowledging, in a post-Crawford decision, that
although Ohio v. Roberts was disapproved on other grounds by
Crawford, its analysis concerning “[t]he ultimate question [of]
whether [a] witness is unavailable despite good-faith efforts
undertaken prior to trial to locate and present that witness”
remained viable].)
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While due diligence lacks a precise definition, we have explained
that it “ ‘ “connotes persevering application, untiring efforts in
good earnest, [and] efforts of a substantial character.” ’ ” (Ibid.)
We evaluate whether the prosecution timely searched for the
unavailable witness, whether the prosecution “competently
explored” leads on the witness’s location, and the overall import
of the unavailable witness’s testimony. (Ibid.) We review de
novo the trial court’s unavailability determination, although we
defer to the trial court’s determination of historical facts
supported by substantial evidence. (Ibid.)
Wilson argues the trial court erred by finding Brown
unavailable because the prosecution did not exercise good faith
or reasonable diligence in attempting to secure his trial
testimony. We’re not persuaded. The prosecution initially had
no reason to suspect Brown would be a reluctant or unavailable
witness — he willingly participated in identification and
preliminary hearing proceedings in June 1998. It was not until
March 1999 that the prosecution understood Brown was
apprehensive, and not until May 1999 that serious concerns
began to arise about his participation in proceedings. On May
20, 1999, Brown was subpoenaed to appear at trial, but failed to
do so. Detective Reynolds tried to contact Brown at Melvin
Hoard’s body shop, where Brown worked, but failed in his
efforts. Brown and Detective Reynolds spoke several times by
telephone in May and June 1999, and although Brown promised
he would meet with Detective Reynolds those meetings did not
occur. During these calls, Brown consistently refused to reveal
his address or permanent phone number. Detective Reynolds
visited Brown’s last known address three times, but a neighbor
told Detective Reynolds that Brown had not been seen there for
about two months, and Brown’s ex-girlfriend confirmed he had
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Opinion of the Court by Cuéllar, J.
moved away to an unknown location after the shootings due to
fear of testifying. Brown’s ex-girlfriend had received collect calls
from people looking for Brown.
Detective Reynolds visited Melvin Hoard’s shop a few
more times in June 1999 — once after Brown told him the two
could meet there — but Brown was never there. Detective
Reynolds visited another location where Brown was said to
frequent, but he did not see Brown there. In mid-June 1999,
after Brown failed to make it to a scheduled meeting with
Detective Reynolds at the police station, Detective Reynolds
confirmed Brown was not in custody. These many efforts
undertaken by Detective Reynolds on behalf of the prosecution
are the very definition of “ ‘ “persevering application, untiring
efforts in good earnest, [and] efforts of a substantial
character.” ’ ” (Sánchez, supra, 63 Cal.4th at p. 440.)
Wilson contends the prosecution could, and should, have
done more to find Brown, and suggests several avenues of
inquiry about his whereabouts that were not pursued. He
argues, for example, that the prosecution could have checked
with Brown’s relatives, assigned multiple investigators to the
task of locating Brown, or sought records from the Department
of Motor Vehicles. Notwithstanding these possibilities, the
prosecution can be said to have “competently explored”
numerous leads, in a manner consistent with its responsibility
under the Confrontation Clause. (Sánchez, supra, 63 Cal.4th at
p. 440.) Wilson argues that the prosecution should have done
more to secure Brown’s testimony. He cites the prosecution’s
efforts in People v. Bunyard (2009) 45 Cal.4th 836 (Bunyard) as
an example of what should have been done here, including:
repeatedly seeking the witness out at his last known address,
asking for information on his whereabouts from acquaintances
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Opinion of the Court by Cuéllar, J.
and relatives, and returning to locations the witness was known
to frequent. (Id. at p. 855.) We held those efforts demonstrated
diligence, and conclude here that the prosecution engaged in
equivalently diligent efforts. (Ibid.)
What the prosecution did here contrasts with cases where
courts have found deficiencies — cases where review did not
reveal “adequate diligence, [and where] the efforts of the
prosecutor or defense counsel have been perfunctory or
obviously negligent.” (Bunyard, supra, 45 Cal.4th at p. 855.) In
contrast, “diligence has been found when the prosecution’s
efforts are timely, reasonably extensive and carried out over a
reasonable period.” (Id. at p. 856.) Detective Reynolds’s efforts
to secure Brown’s testimony once it became clear he would no
longer cooperate spanned a month and included pursuit of
multiple avenues of inquiry. The efforts were far from
perfunctory or negligent. Simply because Wilson suggests
Detective Reynolds could have taken different steps does not
mean those he did take lacked diligence.
Wilson correctly notes we consider the import of Brown’s
testimony in evaluating the reasonableness of the prosecution’s
efforts. (Sánchez, supra, 63 Cal.4th at p. 440.) While Brown’s
testimony was helpful to the prosecution’s case, it was not
critical. Brown witnessed his coworker Dunn’s El Camino being
hastily driven out of the Wheels ’N Stuff parking lot the morning
of the shooting, but he was not able to positively identify Wilson
as the driver of that car. Brown noted that Wilson looked like
the driver but acknowledged his uncertainty. In contrast, Bowie
unequivocally identified Wilson as one of the two assailants.
Wilson argues we must also consider the fact that this is a
capital case in our evaluation of the prosecution’s diligence. We
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Opinion of the Court by Cuéllar, J.
have not previously held the nature of the charged offense is a
factor in assessing diligence, but nevertheless conclude the
prosecution’s efforts to secure Brown’s testimony were diligent
despite the nature of the charged offenses. (See Cook v. McCune
(10th Cir. 2003) 323 F.3d 825, 835 [“[T]he more serious the crime
for which the defendant is being tried, the greater the effort the
government should put forth to produce the witness at trial”];
McCandless v. Vaughn (10th Cir. 1999) 172 F.3d 255, 266
[same].)
Federal authority also suggests that “a good measure of
reasonableness is to require the State to make the same sort of
effort to locate and secure the witness for trial that it would have
made if it did not have the prior testimony available.” (Cook v.
McCune, supra, 323 F.3d at p. 836.) In McCandless v. Vaughn,
supra, 172 F.3d at page 269, the court concluded a Confrontation
Clause violation arose when unduly minimal efforts were used
to secure the presence of a witness at trial who had provided
prior testimony when compared against what efforts would have
been undertaken to secure attendance by a witness who had not.
Here, the efforts to secure Brown’s testimony are not directly
comparable to the efforts undertaken with the two other
reluctant witnesses. But they were sufficient. The prosecution
believed Barnes would be reluctant at the outset of proceedings
and promptly sought a bond; Barnes was placed in custody after
failing to post the bond, and he did not testify at the preliminary
hearing. A third witness failed to appear at the preliminary
hearing after being subpoenaed, and the prosecution visited the
area where the witness was known to spend time, talking to the
witness’s friends and family members on multiple occasions.
Ultimately, the prosecution elected to proceed without that
witness’s testimony. Compared against this third witness, the
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PEOPLE v. WILSON
Opinion of the Court by Cuéllar, J.
prosecution expended greater efforts to locate Brown — talking
to friends and family, visiting his last known addresses and
workplace on multiple occasions, and searching arrest records
— and Brown had provided prior testimony. It is harder to
compare the prosecution’s efforts to secure Brown’s testimony
against the effort undertaken with Barnes, because the latter
was reluctant from the outset and a bond was immediately
issued. This difference reflects Brown’s initial willingness to
work with the prosecution, not that he provided prior testimony.
In any event, we conclude the prosecution was reasonably
diligent in its efforts to secure Brown’s testimony.
C. Second Degree Murder Instructional Error
Allegation
Wilson contends the trial court erred by failing to instruct
the jury, sua sponte, on the lesser included offense of
unpremeditated second degree murder. Because there was
insufficient evidence to support that instruction, we conclude no
error occurred.
1. Background
On the morning of the shooting, Wilson and Pops waited
in a car outside Wheels ’N Stuff. Williams approached the car
and asked them what they needed. They told Williams they
were looking for some “sounds,” but after being told they should
go look elsewhere they remained in the car for some time. Bowie
arrived at the car wash, and as he stopped to talk on a payphone
before going inside Wilson and Pops forced him into the car wash
at gunpoint, and ordered everyone inside to lay on the ground.
Wilson was heard asking for money and “shit,” presumably
meaning drugs, and both he and Pops rummaged through the
car wash before shooting and killing four of the men inside.
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Opinion of the Court by Cuéllar, J.
Wilson fled the scene in Dunn’s El Camino and Pops left in the
Honda in which the two men had arrived. When police arrived
at the car wash they found the victims’ pockets had been
searched, and saw that empty boxes were scattered across the
floor. Williams testified that from the pictures taken at the
scene, there appeared to be far less marijuana in the shop
following the shooting than there had been that morning.
The information charged Wilson with four counts of
murder “with malice aforethought” in violation of section 187,
subdivision (a). He was also charged with, and the jury found
true, multiple-murder, burglary-murder, and robbery-murder
special circumstances. Despite the charging language, the
prosecutor only pursued a felony-murder theory at trial, and the
jury was only instructed on that theory.
2. Discussion
Wilson claims the trial court erred by failing to instruct
the jury on nonpremeditated second degree murder. We review
such claims of error de novo. (People v. Souza (2012) 54 Cal.4th
90, 113; People v. Licas (2007) 41 Cal.4th 362, 366.) “ ‘ “ ‘[I]t is
settled that in criminal cases, even in the absence of a request,
the trial court must instruct on the general principles of law
relevant to the issues raised by the evidence.’ [Citation.] That
obligation has been held to include giving instructions on lesser
included offenses when the evidence raises a question as to
whether all of the elements of the charged offense were present
[citation], but not when there is no evidence that the offense was
less than that charged. [Citations.]” ’ ” (People v. Valdez (2004)
32 Cal.4th 73, 115.)
To determine if a lesser offense is included in a greater
offense, we consider whether the pleading charging the
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defendant described the offense in such a manner that the
offender, if guilty, must necessarily have also committed the
lesser crime. (People v. Smith (2013) 57 Cal.4th 232, 240.)
There must be, at a minimum, substantial evidence
demonstrating the lesser offense was committed. (People v.
Westerfield (2019) 6 Cal.5th 632, 718 (Westerfield).) In general,
“a trial court errs if it fails to instruct, sua sponte, on all theories
of a lesser included offense which finds substantial support in
the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 162.)
Substantial support requires introduction of “ ‘ “ ‘ “evidence
sufficient to ‘deserve consideration by the jury,’ that is, evidence
that a reasonable jury could find persuasive.” ’ ” ’ [Citation.]”
(Westerfield, at p. 718, quoting People v. Valdez, supra, 32
Cal.4th at p. 116.)
Here, although Wilson was charged with four counts of
murder “with malice aforethought,” the prosecutor exclusively
pursued a felony-murder theory, and the jury was only
instructed on that theory. “[W]e have previously declined to
address the question of whether second degree murder is a
lesser included offense of first degree felony murder.”
(Westerfield, supra, 6 Cal.5th at p. 717.) Wilson argues that,
because he was charged with first degree premeditated murder,
second degree nonpremeditated murder — i.e., “ ‘ “the unlawful
killing of a human being with malice, but without the additional
elements . . . that would support a conviction of first degree
murder” ’ ” — is necessarily a lesser included offense. (People v.
Banks (2014) 59 Cal.4th 1113, 1160 (Banks).) In Banks, the
defendant was charged with “willfully killing [the victim] with
malice aforethought.” What we concluded is that “second degree
murder was plainly a lesser included offense of felony murder as
charged . . . .” (Ibid.)
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As in Banks, second degree murder was “plainly” a lesser
included offense of the murder “as charged.” (Banks, supra, 59
Cal.4th at p. 1160.) Nevertheless, we conclude the trial court’s
decision to forgo a nonpremeditated second-degree murder
instruction was proper. “ ‘ “[T]here is no evidence that the
offense was less than that charged. [Citations.]” ’ ” (People v.
Valdez, supra, 32 Cal.4th 73, 115.) Wilson posits a version of
events in which he and Pops went to the car wash to buy
marijuana and an unexpected confrontation inside the building
occurred, culminating in the shooting and deaths of four
individuals. That version is unsupported.
What the evidence demonstrated is that each of the
murders occurred during a burglary or robbery; indeed Wilson
was convicted of both offenses. There was scant evidence from
which a reasonable jury could have concluded Wilson committed
second degree murder, but not first degree murder. Wilson and
Pops were armed. They waited in their car for between 15 and
20 minutes, with Williams first spotting them when he arrived
at the car wash, spending 15 minutes inside, then approaching
them to ask what they needed. After Williams spoke with Pops
and Wilson, he put water in his radiator and left the car wash;
they were still in their car at this point, suggesting they were
outside of the car wash for at least 15 to 20 minutes. During
their conversation with Williams, they declined his overture to
sell them marijuana. They then led Bowie into the car wash at
gunpoint demanding to know “where . . . the money and where
. . . the shit” were kept. Finally, once inside, Wilson and Pops
forced those in the car wash to lie on the ground while Wilson
and Pops searched through the building before shooting the four
victims. In light of these facts, including the methodical,
execution-style killings of the four victims, Wilson’s theory does
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Opinion of the Court by Cuéllar, J.
not “support a second degree murder instruction, but merely
points to evidence that there may have been a struggle,” a fact
not in dispute here. (People v. Valdez, supra, 32 Cal.4th at p.
116.) Indeed, Bowie testified there was “a lot of ruckus,”
“struggling or something,” and “a bunch of commotion.”
Williams testified that there appeared to be far less marijuana
in the shop following the shootings than what was present when
he had been there earlier that morning. Boxes were found
strewn about the car wash following the shooting, and Pops and
Wilson had searched the victims’ pockets. Wilson’s theory that
the struggle resulted from a drug purchase gone wrong is purely
speculative, which we have held “ ‘is an insufficient basis upon
which to require the giving of an instruction on a lesser
offense.’ ” (Westerfield, supra, 6 Cal.5th at p. 718.)
Both first and second degree murder require proof of an
unlawful killing committed with malice aforethought, but only
the former requires evidence of willfulness, premeditation, and
deliberation.15 (People v. Chiu (2014) 59 Cal.4th 155, 325.)
Wilson and Pops brought weapons to the car wash, watched and
waited, and eventually entered, stole marijuana and cash, and
shot four people. Such evidence demonstrates deliberation and
premeditation. (People v. Koontz (2002) 27 Cal.4th 1041, 1081–
1082.) On these facts, no reasonable jury could have concluded
that Wilson acted without willfulness, premeditation, and
deliberation. To the extent some evidence may exist to dispel a
finding of premeditation and deliberation — and there is none
15
“ ‘ “Deliberation” refers to careful weighing of
considerations in forming a course of action; “premeditation”
means thought over in advance.’ ” (People v. Brooks (2017) 3
Cal.5th 1, 58.)
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Opinion of the Court by Cuéllar, J.
here — we note the “ ‘substantial evidence requirement is not
satisfied by “ ‘any evidence . . . no matter how weak,’ ” but rather
by evidence from which a reasonable jury could conclude “that
the lesser offense, but not the greater, was committed.” ’ ”
(Banks, supra, 59 Cal.4th at pp. 1160–1161, italics added.) On
this evidence the jury could only conclude that first degree
murder was committed, whether under a premeditation or
felony murder theory. Because no reasonable jury would have
been able to conclude that Wilson committed only the lesser
offense of nonpremeditated second degree murder, the trial
court did not err by failing to instruct the jury on that offense.
(Westerfield, supra, 6 Cal.5th at p. 717.)
Wilson claims the trial court’s failure to provide a second
degree murder instruction runs afoul of the United States
Supreme Court’s decision in Beck v. Alabama (1980) 447 U.S.
625, 638 (Beck). A trial court satisfies Beck when the jury is
provided a noncapital third option beyond the “ ‘all-or-nothing
choice between capital murder and innocence.’ ” (Schad v.
Arizona (1991) 501 U.S. 624, 647.) Where substantial evidence
does not support an instruction on the lesser offense, Beck is not
implicated. (People v. Smith (2018) 4 Cal.5th 1134, 1167.) We
have previously concluded no error under Beck flows from a trial
court’s failure to provide a sua sponte second degree murder
instruction where substantial evidence would not support such
an instruction and we affirm that holding here. (Westerfield,
supra, 6 Cal.5th at pp. 717–718.)
D. Theft as Lesser Included Offense of Dunn
Robbery
Wilson argues the trial court erred by failing to instruct
the jury, sua sponte, on the lesser included offense of theft.
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Although the issue is close, we conclude no instruction on theft
was warranted.
Wilson was found guilty of robbing Dunn of his El Camino
car. He claims the intent to steal could have been formed after
force was used in this case, warranting an instruction on the
lesser included theft offense. (See People v. Powell (2018) 6
Cal.5th 136, 165; People v. Breverman, supra, 19 Cal.4th at p.
162.) As Wilson notes, theft is a lesser included offense of
robbery if the intent to steal is formed “after force was used.”
(People v. Turner (1990) 50 Cal.3d 668, 688.) The Attorney
General may be understood to argue that no instruction is
warranted if the intent to steal preceded the use of force. But
this is not the correct standard. The obligation to instruct on a
lesser included offense arises whenever the evidence “ ‘ “raises a
question as to whether all the elements of the [greater] offense
were present.” ’ ” (People v. Valdez, supra, 32 Cal.4th at p. 115.)
“This substantial evidence requirement is not satisfied by ‘ “any
evidence . . . no matter how weak,” ’ but rather by evidence from
which a jury composed of reasonable persons could conclude
‘that the lesser offense, but not the greater, was committed.’ ”
(People v. Avila (2009) 46 Cal.4th 680, 705, emphasis added.)
Here, the obligation to instruct on theft would have arisen if a
reasonable jury could have concluded that Wilson committed
theft, but not robbery when he took the El Camino, i.e., if there
were evidence from which a reasonable jury could conclude that
Wilson formed the intent to steal the El Camino after force was
used.
Wilson claims Brown saw someone driving the El Camino
only after the car wash assault had concluded. From this
evidence, he argues it is reasonable to surmise the intent to steal
the El Camino was formulated only after the assault, as he
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Opinion of the Court by Cuéllar, J.
wished to use the car as a getaway vehicle. He argues this
inference is particularly reasonable in light of the large number
of shots fired and the presence of witnesses. Wilson argues he
could have anticipated a significant police response, and Bowie’s
testimony that he heard sirens and saw police at the car wash
quickly following the shooting confirms that Wilson’s concern
was well founded. Wilson further argues that the decision to
burn the car immediately following its use also suggests no
intent could have been formed prior to the violent act because
there was no intent to sell it or its component parts.
Wilson’s claim lacks merit. Here, little if any evidence
suggests Wilson “formed the intent to steal only after shooting”
the victims. (People v. Powell, supra, 6 Cal.5th at p. 165; see
also People v. Valdez, supra, 32 Cal.4th at p. 115 [“ ‘ “giving
instructions on lesser included offenses [is warranted] when the
evidence raises a question as to whether all of the elements of
the charged offense were present [citation], but not when there
is no evidence that the offense was less than that charged.
[Citations.]” ’ ”].) Overwhelming evidence supports the
conclusion that Wilson and his accomplice formed the intent to
steal the El Camino prior to entering the car wash. Wilson
waited in his car, armed, for some time before entering the
building. The El Camino pulled into the Wheels ’N Stuff parking
lot, at which point Wilson and Pops forced Bowie into the
building at gunpoint. Once inside, they ensured Bowie’s silence
until Dunn had entered the building, then demanded the
building’s occupants — including Dunn — lay on the ground. At
this point they asked where the money and “shit” were kept,
shot the victims, took money and marijuana, and — although it
is not clear whether or how the keys to the El Camino were
obtained — Wilson then stole the El Camino. After the robbery,
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Pops retained the El Camino’s rims, and installed them on his
Camaro.
Wilson argues there was no evidence that Pops knew
about the El Camino or its rims prior to the incident at the car
wash, and merely stole the car as a convenient getaway vehicle.
While it’s conceivable that Wilson and Pops decided to flee the
scene in different cars and the El Camino’s theft was merely
opportunistic, at least two points undermine this theory.
First, even if Wilson and Pops did not know about the El
Camino and its specialized rims before they drove to Wheels ’N
Stuff, a jury could easily conclude the intent to steal the car —
once they were aware of it — was formed prior to the murders.
A jury could so infer from how Pops used the rims after the
shooting. The El Camino’s rims would not have fit most tires,
having been manufactured for use with a Camaro, and requiring
special modification to be placed on an El Camino, as Dunn had
done. The evidence suggested Pops was interested in obtaining
the rims, as he immediately added them to his car, the only
other make of car on which the rims would have fit. Moreover,
Pops’s Camaro already had custom rims that matched the car’s
exterior paint color, suggesting he valued the IROC rims above
those already on his car. A drawing of Pops’s Camaro sporting
the prized IROC rims was found in Wilson’s home after the
crime. This evidence suggests the car was taken not simply as
a convenient getaway, but because Pops and Wilson valued it.
Second, Wilson’s theory that the El Camino was stolen
only after the shootings for use as a getaway car also seems
unlikely because Pops and Wilson arrived at the car wash in
their own car, obviating the need for a getaway vehicle. Further,
we note the El Camino was not the only vehicle at the car wash;
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Pops and Wilson rummaged through a car parked inside the car
wash building but did not take that car — for reasons the record
does not reflect. E.T., one of the men inside the car wash who
was not shot, was unable to find his car keys after the violence
concluded and left the scene with Brown. Even if he possessed
keys or access to multiple vehicles parked at the car wash, Pops
did not take leave the scene using one of those cars. Instead, he
drove away in the same vehicle he brought to the car wash.
Surely Wilson could have done likewise. Accordingly, we
conclude the trial court properly did not provide an instruction
on the lesser included offense of theft. (People v. Friend (2009)
47 Cal.4th 1, 52 [“There was no substantial evidence that
defendant formed an intent to steal only after he . . . fatally
[injured] the victim, and thus no factual predicate for
instructing the jury on theft as a lesser included offense”].)
E. Guilt Phase Instructional Error Claims
Wilson contends the related jury instructions, CALJIC
Nos. 2.01 and 8.83, undermined the requirement of proof beyond
reasonable doubt because they “informed the jurors that if
Wilson reasonably appeared to be guilty, they could find him
guilty — even if they entertained a reasonable doubt as to guilt.”
We have previously rejected similar challenges to these
instructions, and Wilson presents no persuasive reason to do
otherwise here. (People v. Frederickson (2020) 8 Cal.5th 963,
1019.)
Wilson also posits that four other instructions the jury
received, CALJIC Nos. 2.21.2, 2.22, 2.27, and 2.51, “magnified
the harm” caused by instructing the jury with CALJIC Nos. 2.01
and 8.83 because “the instructions implicitly replaced the
‘reasonable doubt’ standard with the ‘preponderance of evidence’
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test, and violated the constitutional prohibition against
convicting a capital defendant on any lesser standard of proof.”
As Wilson acknowledges, we have previously rejected this
argument, and he advances no persuasive reason to reconsider
our prior rejection of substantially similar challenges to these
instructions. Accordingly, we again conclude that CALJIC Nos.
2.21.2, 2.22, 2.27, and 2.51 do not undermine or dilute the
reasonable doubt standard. (People v. Beck and Cruz (2019) 8
Cal.5th 548, 653–654.)
F. Sufficiency of Evidence of Hurd Robbery
Wilson contends the trial court erred by failing to enter
judgment of acquittal of the Hurd robbery because insufficient
evidence supported his conviction for that offense. Following
our independent review of the evidence, we agree with the trial
court’s ruling.
1. Background
Williams and Hurd, lifelong friends, co-owned the Wheels
’N Stuff car wash. They had both suffered prior convictions of
marijuana possession for sale. While washing cars was part of
the business conducted at Wheels ’N Stuff, a major part of the
business activities included selling marijuana. The building’s
rent was paid from marijuana sale proceeds. Williams testified
that marijuana was present at the business on a daily basis.
The individuals who frequented the shop, both customers and
employees, tended to carry large amounts of money — upwards
of $10,000. When Wilson entered the Wheels ’N Stuff on the day
of the shooting, he demanded to know the location of money and
“shit,” by which he presumably meant drugs.
Following presentation of the foregoing evidence during
the prosecution’s case-in-chief, Wilson unsuccessfully moved for
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acquittal of the Hurd robbery charge under section 1118.1,
arguing the prosecution failed to present sufficient evidence to
support a conviction.
2. Discussion
When a trial court rules on a motion for a judgment of
acquittal under section 1118.1, the standard the trial court must
apply is the same as what the appellate court applies when
reviewing the sufficiency of the evidence supporting conviction.
A section 1118.1 motion is used to cull the “ ‘ “few instances in
which the prosecution fails to make even a prima facie case.” ’ ”
(People v. Dalton (2019) 7 Cal.5th 166, 249.) A court resolves a
section 1118.1 motion by determining whether the prosecution
presented sufficient evidence, measured from the moment the
section 1118.1 motion is made, to permit the jury to resolve the
issue. (Ibid.) We review the trial court’s determination de novo.
(Ibid.)
Here is how robbery — the charged offense — is defined:
“the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his
will, accomplished by means of force or fear.” (§ 211.) Robbery
requires the “specific intent to permanently deprive” the victim
of his or her property. (People v. Young (2005) 34 Cal.4th 1149,
1176.)
Wilson contends insufficient evidence supported the Hurd
robbery charge because, while true that Hurd was a co-owner of
the car wash business, there was no evidence that he was
involved in the marijuana business. Wilson argues, in essence,
that the marijuana enterprise was Williams’s business alone.
This interpretation is not supported by the evidence. Williams
testified that he and Hurd were lifelong friends who owned the
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Wheels ’N Stuff together and paid rent on the building from
proceeds of marijuana sales. Both had been arrested for
possession of marijuana for sale. It was well known that car
wash employees — including Hurd — sold marijuana and
tended to carry large amounts of cash. Wilson likely knew this,
as he and Pops sought the location of money and “shit”
immediately upon entering.
Wilson argues that this evidence was insufficient to
support a robbery charge because Hurd was not part of the
marijuana business, no money or drugs were stolen from him
directly, and he suffered no deprivation sufficient to constitute
robbery. He also claims his motion for acquittal should have
been granted because Hurd lacked constructive possession of
the property — that is, the money and drugs — alleged to have
been taken from Wheels ’N Stuff. We are unpersuaded.
The element of possession under the robbery statute can
be established in multiple ways. Possession or direct physical
control over an object will suffice but neither is essential.
(People v. Scott (2009) 45 Cal.4th 743, 749–750.) Constructive
possession by an employee is also sufficient to establish the
element. (Ibid.) In Scott, we explained that because anyone
committing robbery in a business establishment would perceive
an employee as capable of resisting, “all on-duty employees have
constructive possession of their employer’s property during a
robbery.” (Id. at p. 755.) A wrongdoer’s decision to threaten or
use force against an employee “is not likely to turn on fine
distinctions regarding a particular employee’s actual or implied
authority.” (Ibid.)
Whether the evidence supported Hurd’s constructive or
actual possession, it was sufficient for a jury to have concluded
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Wilson intended to permanently deprive Hurd of money,
marijuana, or both. (§ 211; People v. Dalton, supra, 7 Cal.5th at
p. 249.) The trial court concluded as much, stating the jury
“could find a robbery of the people connected to the business
based on the narcotics.” Our independent review leads us to the
same conclusion. (Dalton, at p. 249.) That a different trier of
fact could have concluded otherwise does not mean the verdict
is not supported by the evidence. (People v. Farnam (2002) 28
Cal.4th 107, 143.) We are not free to reform the verdict simply
because another theory is plausible. (People v. Jackson (2016) 1
Cal.5th 269, 345 [“ ‘If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be
reconciled with a contrary finding’ ”].)
A reasonable jury could have inferred from the evidence
presented — and this jury did — that Wilson intended to
permanently deprive Hurd of his money, belongings, and
marijuana. Because it appears the evidence was sufficient to
substantiate a robbery conviction, we conclude the trial court
committed no error in denying Wilson’s motion for acquittal
under section 1118.1.
G. Prejudicial Hearsay Admission Allegation
Wilson argues the trial court erred in admitting the pages
of the writing tablet containing drawings and a list of names.
He claims the documents were improperly authenticated and
constituted hearsay, and their admission violated his
confrontation rights. For the reasons that follow, we conclude
Wilson’s claims lack merit.
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1. Background
Following execution of a search warrant at Wilson’s home,
officers seized — among other items — a writing tablet
containing several drawings and a list of names. The
prosecution sought to introduce some of the documents,
including: (1) a depiction of a firearm being fired; (2) a drawing
of a man holding a firearm with the words “Nut LOCO” at the
top of the page; (3) a caricature-style drawing of a muscled male
standing at a street corner with street signs reading “55th” and
“Lime,” the corner near Wilson’s home, the moniker “Nut” at the
top of the page, and a drawing of a car with what appeared to be
IROC rims labeled “THE MONSTER BEEFY”; (4) a drawing of
a figure’s chest, right forearm tattooed with the letters “Y.M.O.,”
and hand holding a firearm being fired; and (5) a list of 22
nicknames, including Pops, Wilson, and people who spent time
with them.
At a pretrial hearing held under Evidence Code section
402, the prosecutor presented evidence that the home from
which the tablet was seized was Wilson’s residence. He argued
that the drawings and list were admissible as circumstantial
evidence demonstrating that the drawings were prepared close
in time to the shootings, that they were found on Wilson’s
kitchen table in plain view, and that they demonstrated a
relationship between Pops and Wilson. Wilson argued the
drawings and list constituted inadmissible hearsay, that they
were incapable of authentication because they were found in a
common area of his residence, and that there was no evidence
he personally created the documents. The trial court tentatively
ruled the evidence was admissible as “relevant circumstantial
evidence on motive — the connection between the defendants
and circumstantial evidence of the possession of the guns by the
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defendants . . . .” The court affirmed its tentative ruling on June
7, 1999, clarifying the drawings and list would be admitted for
the limited purposes of connecting Pops to Wilson’s residence
where the items were seized, and to confirm the association
between Pops and Wilson.
2. Discussion
Wilson argues the trial court erred by admitting the
drawings and list of names because they constituted improperly
authenticated writings under Evidence Code sections 250 and
1401, and because they constituted inadmissible hearsay with
no applicable exception justifying their admission. We conclude
Wilson’s arguments lack merit.
Evidence Code section 250 defines a “ ‘writing’ ” to include
“every . . . means of recording upon any tangible thing, any form
of communication or representation, including letters, words,
pictures, . . . or combinations thereof, and any record thereby
created, regardless of the manner in which the record has been
stored.” “Authentication of a writing is required before it may
be received in evidence.” (Evid. Code, § 1401, subd. (a).)
“Authentication . . . means . . . the introduction of evidence
sufficient to sustain a finding that it is the writing that the
proponent of the evidence claims it is . . . .” (Evid. Code, § 1400.)
Wilson argues that the list and drawings were writings
within the meaning of Evidence Code section 250 but were
inadmissible because they were not properly authenticated. He
argues there was no direct evidence the documents were
authored by him, and neither the location in which they were
found nor their accessibility was sufficient to prove ownership.
We review a trial court’s determination that a document
constitutes a writing and that it is properly authenticated under
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the abuse of discretion standard. (People v. Lucas (1995) 12
Cal.4th 415, 466; see People v. Guerra (2006) 37 Cal.4th 1067,
1113 [“The abuse of discretion standard of review applies to any
ruling by a trial court on the admissibility of evidence”].) Under
this standard, a trial court’s ruling will not be disturbed, and
reversal of the judgment is not required, unless the trial court
exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of
justice. (People v. Guerra, supra, at p. 1113, citing People v.
Rodriguez (1999) 20 Cal.4th 1, 9–10.)
A writing can be authenticated by circumstantial evidence
and by its contents. (People v. Skiles (2011) 51 Cal.4th 1178,
1187.) Wilson argues proof of authentication was flawed
because no evidence demonstrated that he brought the tablet
into the residence or that it belonged to him, and nothing
suggested that he authored the writings.
As Wilson concedes, however, authentication of a writing
can occur via numerous methods, including presentation of
circumstantial evidence, and by introducing evidence showing
where documents were found or by whom they were authored.
Here, the trial court concluded that the list of names and
drawings were properly authenticated by location, content, and
circumstantial evidence. The writing tablet was found in
Wilson’s residence. The prosecution had two witnesses testify
as to the contents of the drawings and the list. Tanesha Martin
testified that she believed Pops was the man depicted in the
drawing entitled “Nut LOCO” who was holding a gun. Martin
testified that the drawing entitled “Nut and the Monster Beefy”
looked a bit like Pops and his Camaro. Barnes also identified
Pops as the male figure in the drawing entitled “Nut and the
Monster Beefy.” Barnes additionally identified the car in the
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drawing as Pops’s Camaro with the IROC rims. Barnes
identified the letters “Y.M.O.” on the drawing of the forearm
shooting a gun to mean “Young Mafia Organization,” a group to
which Barnes, Pops, Wilson, and Harris belonged. The parties
stipulated that Pops had the letters “Y M O” tattooed on both of
his forearms. As to the list of monikers, Barnes testified that
the nickname “Nut” on the list was Pops, the nickname “Scrap”
was Pops’s brother Harris, the nickname “Bird” was Wilson, and
the nickname “Smerf” was Barnes’s own nickname.
The trial court did not abuse its discretion by concluding
the writings were adequately authenticated. The purpose for
which any writing is admitted “will determine what must be
shown for authentication.” (People v. Goldsmith (2014) 59
Cal.4th 258, 267.) A trier of fact must be able to determine that
a writing is what it appears to be. (Ibid.) “ ‘As long as the
evidence would support a finding of authenticity, the writing is
admissible.’ ” (Ibid.) Here, the location of the documents
supported authentication: law enforcement officials found them
in Wilson’s residence. The content of the documents also
supported authentication: they referenced Wilson, Pops, and
other witnesses. Finally, Pops and Wilson were connected by
circumstantial evidence. In addition to the documents’ contents,
Martin’s and Barnes’s testimony confirmed that the drawings
depicted Pops, and the list referred to Pops, Wilson, Barnes, and
Harris. (Evid. Code, §§ 1400, 1410, 1421.) Accordingly, we
conclude the trial court did not err in finding the documents
were properly authenticated.
Wilson next argues that the list of monikers and drawings
constituted inadmissible hearsay because they were admitted
for, and the prosecution sought to rely on, the truth of their
implied incriminatory propositions. Our review “focuses on
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whether the documents supported the nonhearsay purposes
identified by the court and whether those purposes were
relevant to an actual issue in dispute.” (People v. Bunyard
(1988) 45 Cal.3d 1189, 1204, quoting People v. Armendariz
(1984) 37 Cal.3d 573, 585.)
When an out-of-court statement is offered for any relevant
purpose other than to prove the truth of the matter stated, the
statement is not hearsay. (People v. Armstrong (2019) 6 Cal.5th
735, 786.) Evidence is generally relevant if it “ ‘tends “logically,
naturally, and by reasonable inference” to establish material
facts such as identity, intent, or motive.’ ” (People v. Riccardi
(2012) 54 Cal.4th 758, 815, quoting People v. Garceau (1993) 6
Cal.4th 140, 177.) Because otherwise relevant evidence not
offered for its truth falls outside the hearsay rule entirely, the
party offering that evidence is not required to demonstrate an
exception to the hearsay rule to justify its admission. (People v.
Dalton, supra, 7 Cal.5th at p. 232.)
Here, the court initially identified the nonhearsay
purposes for admitting the writings as connecting Pops to
Wilson’s residence, associating Pops with Wilson, and
associating both Pops and Wilson with Barnes and Harris to
corroborate Barnes’s testimony regarding his relationships with
Pops, Wilson, and Harris. The court later confirmed the
drawings and list were admissible for the limited purposes of
connecting Pops to Wilson’s home and to confirm their
association. These nonhearsay purposes were relevant to
establish identity — that is, that the alleged shooters, Pops and
Wilson, had a relationship to each other. The existence of this
relationship aided in demonstrating that the two men could
have committed the crime together. What’s more, the
documents were relevant to establish a connection between Pops
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and Wilson’s residence because a nine-millimeter cartridge
expended from the same firearm used in the murders was found
at Wilson’s residence. Barnes’s testimony identifying Pops and
his car in the drawings, as well as his testimony about the
monikers of all four men, further corroborated these various
connections and relationships. Thus, the trial court did not err
by concluding the evidence supported the nonhearsay purposes
for which it was admitted and those purposes were relevant to
issues in dispute.16 (People v. Bunyard, supra, 45 Cal.3d at p.
1204.)
Wilson argues that our decision in People v. Lewis (2008)
43 Cal.4th 415 (Lewis) renders the evidence inadmissible. In
Lewis, we held that caricature drawings found in the
defendant’s residence depicting a sawed-off shotgun were
hearsay because they were offered for the truth of the assertion
that the defendant committed robberies with a sawed-off
shotgun. (Id. at p. 498.) We concluded that because no exception
to the hearsay rule justified their introduction, the court erred
by admitting them. (Ibid.) The erroneous admissions,
16
Because the evidence was admitted for nonhearsay
purposes, defendant’s argument that its admission constituted
a violation of his confrontation rights is unavailing. “Whether a
challenged statement is hearsay is always the threshold
question.” (People v. Turner (2020) 10 Cal.5th 820, fn. 19.)
“[T]he confrontation clause is concerned solely with hearsay
statements that are testimonial, in that they are out-of-court
analogs, in purpose and form, of the testimony given by
witnesses at trial.” (People v. Cage (2007) 40 Cal.4th 965, 984.)
The evidence was neither hearsay nor testimonial; accordingly,
no violation of defendant’s confrontation rights could have
occurred.
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however, did not prejudice the defendant because the drawings
added “next to nothing to the evidence of defendant’s guilt of the
crimes . . . .” (Id. at p. 499.) Lewis does not inform our analysis
here because the list of names and the drawings found in
Wilson’s home, unlike the drawing found in Lewis, were not
offered for their truth. Had these names been offered to
demonstrate that Pops possessed the weapon he was depicted
holding, our analysis might be different. But that is simply not
the case; the list and drawings were instead offered for the
nonhearsay purpose of identity, that is, establishing a
relationship between Pops and Wilson, and connecting Pops to
Wilson’s residence.
In any event, were we to have found error in the trial
court’s admission of the list and drawings, it would have been
harmless under any standard. (Chapman v. California (1967)
386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
Substantial evidence of Wilson’s guilt and the connection
between Wilson and Pops was introduced, including the nine-
millimeter round found in Wilson’s home that matched the
expended casings found at the scene, evidence that Pops placed
onto his car the IROC rims from the El Camino Wilson stole,
Barnes’s testimony that he was friendly with Pops and Wilson,
and his testimony that he assisted with burning the El Camino
following the murders. Like the drawing in Lewis, the writings
introduced here added “next to nothing to the evidence of
[Wilson’s] guilt of the crimes.” (Lewis, supra, 43 Cal.4th at p.
499.) Any error in their admission would have been harmless.
III. JURY MISCONDUCT
Wilson asserts the trial court erred by denying his motion
for new trial based on alleged juror misconduct. He claims that
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Juror No. 9 committed misconduct by failing to disclose her prior
jury service, and the court’s denial of his new trial motion based
on that misconduct was error. Wilson further alleges the trial
court abused its discretion by failing to adequately investigate
claims of juror misconduct he raised in his new trial motion,
despite holding an evidentiary hearing to address those claims,
by not calling more jurors to testify, not sufficiently questioning
those who did, and not permitting defense counsel to examine
the jurors. For the reasons that follow, we conclude these claims
lack merit.
A. Juror No. 9’s Recollection of Prior Death
Penalty Jury Experience
1. Background
Juror No. 9, a 35-year-old law firm docket clerk, stated in
her jury questionnaire that she had served as a juror in a civil
matter in 1992. She failed, inadvertently, to note her earlier
experience as an alternate on a murder trial. Question 40A
asked prospective jurors to identify whether they had “been a
juror in the past,” and, if so, to list the year the trial occurred,
whether it was civil or criminal, the nature of the charge, and
whether a verdict had been reached. Juror No. 9 listed a 1992
personal injury trial on which she had served as a juror but
listed no other cases.
During voir dire, Juror No. 9 was questioned exclusively
about her views on, and ability to impose, the death penalty.
She indicated she could impose the death penalty if appropriate
and would evaluate the evidence — even if emotional — before
deciding upon the appropriate penalty. The prospective juror in
the number 12 position, who was examined shortly before Juror
No. 9, responded to questions about her prior service as an
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alternate juror on a death penalty case. Later that afternoon,
following a break and additional questioning, Pops and Wilson
utilized a joint peremptory strike to excuse the prospective juror
in the number 12 position, which occurred in front of Juror No.
9. Juror No. 9 was empaneled and served on Wilson’s jury.
Following the death verdict, defense counsel conducted
interviews with jurors. In her interview, Juror No. 9 told
counsel she wanted to put the experience of serving as a juror
on Wilson’s case behind her “because it seemed to be lingering
on and on, and she had been through this experience before,”
having served on a death penalty case many years earlier. This
conversation marked the first time she alerted anyone involved
with this case to the fact that she newly recalled her prior jury
service. In a phone call with defense counsel a few days later,
Juror No. 9 clarified she was as an alternate juror on a murder
trial, and that it may have been a juvenile, not capital, case.
Juror No. 9 said it was difficult to remember the details of the
case because it had occurred some 15 years prior to Wilson’s
trial.
Defense counsel sought a court order of Juror No. 9’s jury
service records. The records indicated that between 1985 and
1999, Juror No. 9 had served on two trials, a 1993 matter and
Wilson’s trial — consistent with her questionnaire responses.
No records were maintained regarding jury service predating
1985; the murder trial on which Juror No. 9 served as an
alternate took place in 1984.
Wilson moved for a new trial, arguing Juror No. 9
committed misconduct by intentionally concealing her prior
service on a murder case. On March 24, 2000, the court
conducted an evidentiary hearing regarding the alleged juror
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misconduct.17 Juror No. 9 testified that she had told defense
counsel, during their post-trial interview, that she had served
on a prior death penalty case as an alternate juror. She did not
list her prior service in her juror questionnaire because she “had
just forgotten about it.” She said the questionnaire was
“lengthy” and she “was trying to get through it,” noting she
simply did not recall her prior service when filling it out. She
also did not mention her prior service during voir dire, although
she was not asked about it, despite another prospective juror
discussing their prior service as an alternate on a capital trial,
who was subsequently peremptorily excused. Juror No. 9
testified that she had remembered her prior service
“months . . . or weeks into” Wilson’s trial, and certainly after the
jury began hearing evidence. When the court asked her why she
did not report her prior service once she remembered it, she
explained she “just really honestly didn’t think about it.”
Wilson’s attorney argued at the evidentiary hearing that
Juror No. 9’s failure to disclose her prior service at any point
during the trial constituted “a concealment of a very material
fact.” When the court pressed counsel on whether he was
asserting Juror No. 9 had lied when she gave testimony before
the court, Wilson’s counsel clarified that he did not believe Juror
No. 9 was being untruthful, and his use of the word
“concealment” was a “term of art.” The court found Juror No. 9
“very credible” and did not believe she “intentionally concealed
anything.” The questionnaire’s phrasing regarding prior
17
Wilson’s counsel unsuccessfully sought the court’s
permission to examine jurors, including Juror No. 9, at the
hearings related to the alleged misconduct. The trial court ruled
it would be the exclusive questioning body, but requested
“counsel . . . make any suggestions for the scope of the inquiry.”
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service, the court noted, was not altogether clear as to whether
service as an alternate should have been included. 18
The court continued the matter to conduct further
research and heard argument again on April 7, 2000. Following
that second hearing, the court denied the new trial motion,
reiterating its finding that Juror No. 9 was “credible.” The court
explained that Juror No. 9’s prior service was 15 or 16 years
before Wilson’s trial, it was unclear whether that service was on
a juvenile matter or a death penalty matter, and in any event
the fact she was an alternate made her service “a lot easier to
forget” because she was not involved in rendering a verdict.
Although Juror No. 9 recalled at some point during the trial that
she had this prior experience, the court concluded nothing in the
questionnaire or the jury’s instructions would have alerted her
that she was obliged to bring it up. Finally, the court concluded
that Juror No. 9’s inadvertent omission did not constitute actual
bias under In re Hamilton (1999) 20 Cal.4th 273.19
2. Discussion
Wilson argues Juror No. 9 committed misconduct by
intentionally concealing her prior service on a murder trial’s
18
Specifically, the questionnaire stated: “If you have been a
juror in the past, please provide the following information,” and
listed categories including year of the case, whether it was civil
or criminal, the charges (if criminal), the type of case (if civil),
and whether a verdict was reached.
19
In In re Hamilton, we explained “that an honest mistake
on voir dire cannot disturb a judgment in the absence of proof
that the juror’s wrong or incomplete answer hid the juror’s
actual bias. Moreover, the juror’s good faith when answering
voir dire questions is the most significant indicator that there
was no bias.” (In re Hamilton, supra, 20 Cal.4th at p. 300.)
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jury once she remembered it during his trial. “The law
concerning juror concealment is settled. . . . ‘[An] accused . . . has
a constitutional right to a trial by impartial jurors. [Citations.]
“ ‘ “The right to unbiased and unprejudiced jurors is an
inseparable and inalienable part of the right to trial by jury
guaranteed by the Constitution.” ’ ” ’ ” (In re Manriquez (2018)
5 Cal.5th 785, 797 (Manriquez).) If a juror actively conceals
factual information or falsifies voir dire responses, the process
of selecting jurors is undermined. (Ibid.) Wilson argues Juror
No. 9’s failure to list her prior jury service in the questionnaire,
disclose it during voir dire, or — in particular — bring it to the
court’s attention once she remembered it — constituted
intentional concealment.
While intentionally concealing juror information may be
sufficient to demonstrate bias warranting disqualification, a
juror’s “ ‘inadvertent or unintentional failure[] to disclose’ ”
information is treated differently. (People v. San Nicolas (2004)
34 Cal.4th 614, 644 (San Nicolas).) In the case of unintentional
failure to disclose, the trial court evaluates whether a juror is so
biased that they cannot perform the duties required of them.
(Ibid.) We accord deference to any credibility determination
made by the trial court in its evaluation of concealment. (Id. at
p. 646.)
Wilson suggests that because Juror No. 9 executed her
questionnaire under penalty of perjury — which attaches
serious consequences to lies and omissions, and because the
questionnaire asked about her prior jury service, her failure to
disclose that prior service at any point in the trial constituted
concealment demonstrating bias. The trial court found Juror
No. 9 credible when she testified that she did not remember her
prior jury service when completing her questionnaire or
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responding during voir dire. It also found credible that she was
not aware she should alert the court when she recalled her prior
service mid-trial. Wilson argues these credibility findings
should be discounted because the conclusion was made with
respect to whether she recalled her prior service at the time she
completed the questionnaire, not as to whether she was credible
about why she failed to disclose it later. The record does not
support this assertion.
A trial court has the discretion to determine whether a
juror’s “ ‘failure to disclose is intentional or unintentional’ ” and
whether the juror is biased. (San Nicolas, supra, 34 Cal.4th at
p. 644.) Unless the record clearly demonstrates a juror’s bias,
the trial judge is best situated to evaluate a juror’s intentions
through the voir dire process. (Ibid.) The court expressly asked
why Juror No. 9 did not report her prior service to the court once
she remembered it, and she responded that she simply did not
think to do so. The court found this testimony “very credible,”
and noted she was never instructed to bring to the court’s
attention something she remembered after completing her
questionnaire or responding to voir dire. We accord this
credibility finding deference, as well. (Ibid.)
Wilson argues that because Juror No. 9 failed to disclose
her prior jury service, her inherently biased presence on the jury
constituted a structural defect warranting reversal. He further
contends that even if her failure to disclose her prior jury service
only raised a presumption of prejudice, that presumption was
not rebutted. Neither of these arguments is meritorious. While
we have acknowledged that, “in a rare case, a court ultimately
may determine that a juror’s innocent concealment masked a
substantial likelihood of actual bias,” Juror No. 9’s failure to
disclose her prior service does not demonstrate such bias.
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(Manriquez, supra, 5 Cal.5th at p. 798.) In Manriquez, a juror
failed to disclose in her questionnaire the fact that she suffered
physical and sexual abuse as a child, despite the questionnaire
inquiring about whether prospective jurors had been the victims
of crimes. (Manriquez, supra, 5 Cal.5th at pp. 793–794.) After
the trial, the juror voluntarily responded to a questionnaire, and
in it she disclosed her childhood abuse to explain why she found
the petitioner’s mitigating evidence of abuse unpersuasive.
(Ibid.) She later attested that she did not conceal her abuse in
filling out her jury questionnaire, but did not believe it was
responsive to questions because she thought the questionnaire
pertained exclusively to her experiences as an adult. (Id. at pp.
794–795.)
Following our order to show cause, the juror testified at a
reference hearing that she had not thought the abuse or violence
she suffered as a child was responsive to the questionnaire’s
inquiries about suffering violence or past criminal activity
because she was a child when it occurred and such abuse was
relatively normalized during the era in which she was raised.
(Manriquez, supra, 5 Cal.5th at pp. 796, 801.) We concluded
substantial evidence supported the referee’s findings that the
juror’s nondisclosure was not intentional and did not indicate
bias (id. at pp. 809–810), and independently concluded that
although it constituted misconduct to fail to complete the
questionnaire accurately, the juror was not actually biased (id.
at p. 819).
In San Nicolas, a juror failed to disclose in his
questionnaire and during voir dire that he had suffered prior
arrests, had been falsely arrested, and had been the victim of a
violent crime as a child. (San Nicolas, supra, 34 Cal.4th at pp.
644–646.) The defendant moved for new trial on the grounds of
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juror misconduct, an evidentiary hearing followed, and the trial
court concluded the juror’s failures to disclose the prior arrests
and false arrest were “inadvertent or unintentional, and there
was no resulting bias.” (Id. at p. 645.) This conclusion was
supported by substantial evidence, as was the court’s conclusion
that the juror’s failure to disclose his status as victim of a violent
crime was not deliberate and he was not biased. (Id. at pp. 645,
648.)
We likewise conclude here that Juror No. 9’s failure to
disclose her prior jury service on a murder trial, even if capital,
did not demonstrate bias, and no misconduct occurred. Juror
No. 3 had prior experience as a juror on a murder trial and Juror
No. 2 had previously served on a jury in a drive-by shooting case
with three victims. Wilson contends all jurors who had prior
capital experience were excused from service via peremptory
challenge. Whether Juror No. 9’s undisclosed prior service was
on a capital trial or a murder trial is beside the point; when
assessing whether it is substantially likely a juror was actually
biased, our inquiry is “ ‘not whether the juror would have been
stricken by one of the parties, but whether the juror’s
concealment (or nondisclosure) evidences bias.’ ” (Manriquez,
supra, 5 Cal.5th at p. 798.) Juror No. 9’s inadvertent
nondisclosure of her prior jury service did not evidence bias, and
the trial court’s denial of Wilson’s new trial motion was not
error.
B. Trial Court’s Alleged Failure to Investigate
Juror Misconduct
In addition to the misconduct alleged regarding Juror No.
9’s prior service, Wilson claims the trial court failed to conduct
an adequate inquiry of alleged misconduct involving Juror Nos.
1, 6, 7, 10, 11, and 12, and remand is warranted to determine
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the extent of the possible misconduct. We conclude the court’s
inquiry was adequate, and that the court did not abuse its
discretion by denying the motion for new trial based on alleged
misconduct.
1. Background
Following the death verdict, Pops’s attorney, Jones,
contacted jurors. One of the jurors complained, and the court
ordered counsel to stop contacting jurors. Before the no contact
order was issued, defense counsel’s conversations with some
jurors revealed a juror had discussed a publicized murder case
during deliberations, which counsel contended constituted
misconduct. Defense counsel asked the court to lift the no-
contact order, and the People opposed their motion but urged
the court to question jurors under oath to bring swift resolution
to the misconduct allegation. The court did not lift the order,
but it called Juror Nos. 6 and 7 to provide sworn testimony
regarding attorney Jones’s assertion.
Juror No. 7 testified that the penalty vote for Wilson had
been split nine to three, with nine jurors voting for death and
three for life. The court dismissed the jurors for a weekend, and
upon returning they took an informal vote, revealing unanimity
in favor of death. Those who had voted for life shared why their
votes had shifted, and Juror No. 7 testified that Juror No. 6 told
the others she had seen a news story over the weekend about a
shooting in Atlanta that made her “take a closer look at the case
that she was on,” and “honestly in her mind” Wilson “deserved
the death penalty.” She had indicated when she voted for life
the week before that her vote had been wavering.
Juror No. 7 testified that he thought the jurors followed
the instructions at all times, and that the discussion regarding
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the Atlanta crime occurred only after the poll indicating the
verdict was unanimous had occurred. Juror No. 7 recalled that
Juror No. 12 had also voted for life the week before, believing it
to be a harsh enough form of punishment, but Juror No. 7 also
thought Juror No. 12 would vote with the majority. Juror No. 7
testified that all of the jurors, including Juror No. 12, exercised
independent judgment in voting, rather than blindly following
the majority; Juror No. 12 actively deliberated and analyzed the
issues.
Juror No. 6 also testified. She confirmed a unanimous poll
was taken after jurors returned from the weekend, and that
some of the jurors who formerly voted for life discussed why
their votes had changed. She remembered addressing her
changed vote, but she did not recall exactly what she said, and
did not remember mentioning the Atlanta crime that day. She
testified that she had read an Internet article and watched a
news program about the Atlanta shootings, and remembered
that the jurors had a discussion about that crime generally, but
she did not know precisely when that conversation occurred.
When asked whether she was emotionally affected by the
Atlanta shootings, Juror No. 6 testified that she was an
emotional person and tended to dwell on things like the Atlanta
shooting “every time something like that happens,” but that the
emotional impact of that crime had dissipated for her before
jurors completed the poll and reached the ensuing penalty
verdict.
After it heard testimony from Juror Nos. 6 and 7 and
argument from the parties, the court sought testimony from
Juror No. 12, as well. Juror No. 12 confirmed that before the
jurors departed for the weekend the vote had been nine to three,
and he was one of the three jurors who had voted for life. He
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believed the poll taken when jurors returned after the weekend
was still nine to three, and he said he would vote with the
majority if 11 jurors voted for death. Juror No. 12 eventually
changed his vote, but did so not simply to go along with the
majority; he testified that the heinous nature of the crime and
his own “scrupulous[]” evaluation of witness testimony
ultimately changed his mind. He did not recall which other
jurors initially voted for life, except that they were both female.
He did not recall a discussion regarding the Atlanta crimes and
testified that it was not a factor affecting his deliberative
process.
After Juror No. 12 testified, defense counsel persisted in
requesting the court grant the parties permission to contact
jurors. The court ultimately agreed to send a letter to jurors
asking if they would consent to contact, and following receipt of
consent from several jurors, the court continued the new trial
motion to provide defense counsel an opportunity to contact
those jurors who had responded.20
Pops’s attorney, Jones, contacted Juror No. 1, who told her
that Juror Nos. 6 and 12 had initially voted for life but their
votes changed in the poll immediately following the jurors’
return from the weekend. Juror No. 1 told Jones that there was
a conversation amongst jurors following the poll during which
jurors discussed the Atlanta crimes. Juror No. 6 purportedly
said she believed she needed to put her sympathy for Wilson’s
family aside after hearing news about the Atlanta crimes; Juror
No. 10 purportedly said his country of origin taught that “[i]f you
20
It was at this juncture that defense counsel spoke with
Juror No. 9 and learned of her prior jury service, as previously
addressed.
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kill someone, then you are killed”; Juror Nos. 10 and/or 11
purportedly asked the jurors why Pops and Wilson should sit in
prison while they — the citizens — paid for it; and, Juror No. 12
said he was “comfortable” with voting for life or for death. Jones
reported that Juror No. 1 initially agreed to sign a declaration
attesting to these impressions, but after relations between Jones
and Juror No. 1 soured, Juror No. 1 ultimately indicated she did
not want to be contacted again, and she did not sign a
declaration. Jones submitted a declaration attesting to her
conversation with Juror No. 1 regarding the juror’s conversation
with fellow jurors. The trial court declined to obtain Juror No.
1’s testimony, because “this juror . . . is, obviously, very
reluctant.” The trial court also declined to call Juror Nos. 10 or
11 to testify because there was no evidence their alleged
statements “were anything other than transitory comments in
passing, provoking no discussion by other jurors.”
Pops’s motion for new trial, joined by Wilson, argued that
Juror No. 12 committed misconduct by siding with the majority
instead of weighing the evidence. In the alternative, they
argued Juror No. 12 relied on evidence outside of the case,
namely Juror No. 6’s statements concerning the Atlanta crime
— which constituted misconduct because it violated his oath as
a juror. They argued Juror No. 6 likewise committed
misconduct by relying on information about the Atlanta crime
to reach a verdict. Defense counsel objected to the court’s refusal
to allow them to question the jurors, claiming the court’s
questioning was leading and permitted the jurors to deny
misconduct.
The court concluded Juror No. 6 had not deliberated over
the weekend before her vote changed, and noted jurors
necessarily thought about the case during their non-deliberative
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time. Wilson claims — incorrectly — that the court did not
expressly rule on his motion for new trial, but at a hearing on
April 7, 2000 — during which Juror No. 9’s alleged misconduct
was addressed — the court stated it was “prepared to deny all
the motions.” On that same day, the trial court denied the
outstanding motions for new trial, including those related to
Juror Nos. 6, 9, and 12.
2. Discussion
Wilson contends the trial court failed to adequately
investigate his allegations of juror misconduct by not exercising
its discretion to permit the parties to call and question jurors at
the hearings on his motions for new trial. We conclude this
claim lacks merit. A trial court has broad discretion to resolve
a motion for new trial. (People v. Manibusan (2013) 58 Cal.4th
40, 52 (Manibusan).) While “a new trial may be warranted if a
jury engages in misconduct that prevents impartial
consideration of the case,” the trial court is obliged only “to
‘ “ ‘make whatever inquiry is reasonably necessary’ ” to resolve
the matter.’ ” (People v. Mora and Rangel (2018) 5 Cal.5th 442,
517 (Mora and Rangel).) When the allegations of misconduct
are based on the hearsay assertions of counsel — as with Jones’s
declaration pertaining to Juror No. 1’s alleged statements — we
have held that evidence “ ‘insufficient to establish an abuse of
discretion in either denying the motion or declining to conduct
an evidentiary hearing.’ ” (Ibid.)
The trial court fulfilled its obligation in this case by
conducting several hearings to determine whether misconduct
occurred. After hearing testimony from Juror Nos. 6, 7, and 12,
the trial court found no misconduct. It was under no obligation
to obtain testimony from every juror, and no error resulted from
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its decision not to obtain testimony from Juror Nos. 1, 10, or 11.
As to Juror No. 1, the only basis to conduct a further inquiry was
Jones’s statement regarding their phone conversation. This
evidence was hearsay; accordingly, no error followed from the
trial court’s decision not to hold an evidentiary hearing or by
denying the new trial motion. (Mora and Rangel, supra, 5
Cal.5th at p. 517.) We might likewise conclude no abuse of
discretion resulted from the trial court’s conclusion that Juror
No. 6 did not commit misconduct (see ibid.), although that is not
Wilson’s assertion.
Instead, Wilson claims the court erred by not adequately
investigating the alleged misconduct. This assertion is both
unfounded — the court conducted multiple evidentiary hearings
— and unavailing; the basis for the alleged misconduct related
to Juror No. 6 was a hearsay statement made by defense
counsel. We have made clear that “[a] court must hold an
evidentiary hearing on alleged jury misconduct only when the
defendant shows ‘a strong possibility that prejudicial
misconduct has occurred. Even upon such a showing, an
evidentiary hearing will generally be unnecessary unless the
parties’ evidence presents a material conflict that can only be
resolved at such a hearing.’ ” (Manibusan, supra, 58 Cal.4th at
p. 55.) No such conflict existed here. To the extent Wilson
presented evidence intimating jurors were influenced by
matters outside the record, the court’s evidentiary hearing
resolved that concern. “As we have explained, deliberating
jurors ‘may be particularly reluctant to express themselves
freely in the jury room if their mental processes are subject to
immediate judicial scrutiny.’ ” (Id. at p. 53.) Once the trial
“court is satisfied that the juror in question ‘is participating in
deliberations and has not expressed an intention to disregard
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the court’s instructions or otherwise committed misconduct,’ ”
the court is not obliged to conduct further inquiry. (Ibid.) After
conducting multiple hearings, the trial court was satisfied that
the deliberations were not tainted by misconduct, and its denial
of Wilson’s new trial motion did not constitute an abuse of
discretion. (Ibid.)
In an effort to avoid this conclusion, Wilson’s argument is
not that the denial of the new trial motion or failure to hold a
hearing constituted an abuse of discretion, but rather that the
court erred by failing to permit him to interview jurors. Wilson
asserts that “[t]he testimony of the jurors was a poor substitute
for the interviews the attorneys were asking to do” because the
court’s hearings did not “clear up the facts” to his satisfaction.
This argument lacks merit. Trial courts are under no obligation
to conduct evidentiary hearings at all when the allegations of
misconduct are based on hearsay, as was the case here, and are
certainly not required to permit the parties — rather than the
court — to examine witnesses. (Mora and Rangel, supra, 5
Cal.5th at p. 517.)
To the extent Wilson is claiming error arose from the
court’s refusal to grant him access to jurors outside of the
courtroom, the argument is even less persuasive; such
interviews would have, at best, resulted in unsworn hearsay
statements alleging misconduct occurred. Even if those
statements had been obtained, the court would have committed
no error in declining to do the very act that occurred here —
conduct an evidentiary hearing. (See Mora and Rangel, supra,
5 Cal.5th at p. 517.) The court did conduct a hearing, and
determined no misconduct occurred. This decision was “ ‘within
the sound discretion of the trial court,’ ” and the trial “ ‘court
d[id] not abuse its discretion simply because it fail[ed] to
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investigate any and all new information . . .’ ” or allegations
raised by Wilson. (Manibusan, supra, 58 Cal.4th at p. 52.)
IV. PENALTY PHASE
A. Constitutionality of California’s Death Penalty
Statutory Scheme
Wilson raises several objections to the constitutionality of
California’s death penalty scheme. We decline to reconsider our
existing precedent and reject these objections, on the merits, as
follows:
The special circumstances qualifying a defendant for the
death penalty, as set out in section 190.2, are not
unconstitutionally overbroad, nor are they so numerous that the
constitutionally required narrowing function cannot be
performed. (People v. Bell (2019) 7 Cal.5th 70, 130; People v.
Williams (2010) 49 Cal.4th 405, 469.)
There is no basis in our precedent to conclude that a trier
of fact imposes the death penalty in an arbitrary or capricious
manner when the trier of fact considers the circumstances of the
crime under section 190.3, factor (a). (People v. Fayed (2020) 9
Cal.5th 147, 213.)
We have previously held that the death penalty is not
unconstitutional “ ‘ “for failing to require proof beyond a
reasonable doubt that aggravating factors exist, outweigh the
mitigating factors, and render death the appropriate
punishment.” [Citation.]’ ” (People v. Henriquez (2017) 4
Cal.5th 1, 45.) We also have consistently held the death penalty
does not constitute an increased sentence. (People v. Scott
(2015) 61 Cal.4th 363, 407.) And we have determined that these
conclusions are unaltered by Apprendi v. New Jersey (2000) 530
U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, Blakely v.
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Washington (2004) 542 U.S. 296, or Cunningham v. California
(2007) 549 U.S. 270. (People v. Scott, supra, 61 Cal.4th at p.
407.)
Defendant does not give us any reason to revisit these
issues or to find that California’s capital punishment scheme
violates the Eighth Amendment’s prohibition against cruel and
unusual punishment, or the Fourteenth Amendment’s
guarantee of due process does not require the jury find
unanimously and beyond a reasonable doubt that aggravating
factors outweigh mitigating factors. (People v. Jones (2017) 3
Cal.5th 583, 618–619.) Nor does defendant give us any reason
to depart from our precedent holding that the death penalty
statutory scheme is not rendered infirm under the federal
Constitution by failing to demand written findings or unanimity
as to the existence of particular aggravating factors. (People v.
Lopez (2018) 5 Cal.5th 339, 370; People v. Silveria and Travis
(2020) 10 Cal.5th 195, 326.)
There is no requirement that the jury be instructed
concerning burden of proof at the penalty phase, nor must it be
instructed on a “ ‘ “ ‘presumption of life’ ” ’ ” to satisfy a
defendant’s constitutional rights to due process, equal
protection, a reliable determination of sentence, or freedom from
cruel and unusual punishment. (People v. Fayed, supra, 9
Cal.5th at p. 213.)
Nor does the use of unadjudicated offenses under section
190.3, factor (b) constitute a violation of due process principles.
(People v. Fayed, supra, 9 Cal.5th at p. 214.) Section 190.3’s use
of the word “ ‘extreme’ . . . in the list of mitigating factors . . .
does not act as a barrier to the jury’s consideration of mitigating
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evidence in violation of the federal Constitution.” (People v.
Mitchell (2019) 7 Cal.5th 561, 588.)
The phrase “ ‘ “ ‘so substantial’ ” ’ ” — when used to
compare mitigating and aggravating factors — does not render
CALJIC No. 8.88 unconstitutional. (People v. Landry (2016) 2
Cal.5th 52, 123.) Nor is the instruction “ ‘ “unconstitutional for
failing to inform the jury that: . . . death must be the appropriate
penalty, not just a warranted penalty.” ’ ” (People v. Mitchell,
supra, 7 Cal.5th at p. 589.) Error does not “flow[] from a failure
to instruct the jury that if mitigating factors outweigh
aggravating factors, life is the appropriate sentence.” (Mora and
Rangel, supra, 5 Cal.5th at p. 519.)
The trial court was not obliged to provide a jury
instruction indicating it was a defendant’s burden to
demonstrate factors in mitigation were present, nor did the
court need to instruct the jury it was required to unanimously
find any mitigating factor was present. (People v. Jones, supra,
3 Cal.5th at p. 620.)
“The trial court has no obligation to delete from CALJIC
No. 8.85 inapplicable mitigating factors.” (People v. Mitchell,
supra, 7 Cal.5th at p. 589.) There is likewise no requirement
“that the court designate which factors are aggravating or
mitigating or instruct the jury that certain factors are relevant
only in mitigation.” (People v. Winbush (2017) 2 Cal.5th 402,
490.)
The federal Constitution does not require intercase
proportionality review, assessing the relative culpability of a
defendant’s case compared to other murders. (People v. Bell,
supra, 7 Cal.5th at p. 131.) “ ‘The capital sentencing scheme
does not violate equal protection by denying to capital
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defendants procedural safeguards that are available to
noncapital defendants.’ ” (People v. Frederickson, supra, 8
Cal.5th at p. 1027.) Defendant does not present a persuasive
argument that international law prohibits application of the
death penalty in this case, or in the United States. This country
reserved the right to impose the death penalty when it signed
the International Covenant on Civil and Political Rights.
(People v. Capers (2019) 7 Cal.5th 989, 1017.)
B. Cumulative Error
Wilson contends the combined guilt and penalty phase
errors require reversal of his conviction and death sentence,
even if the errors are not prejudicial when considered
individually. We have found no error, so no prejudice can
accumulate.
V. DISPOSITION
We affirm the judgment.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
KRAUSE, J.*
________________________
*
Associate Justice of the Court of Appeal, Third Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
83
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Wilson
__________________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________________
Opinion No. S087533
Date Filed: April 12, 2021
__________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Curtis B. Rappe
__________________________________________________________________
Counsel:
Michael J. Hersek and Mary K. McComb, State Public Defenders,
under appointments by the Supreme Court, Joseph E. Chabot, Ryan R.
Davis and Elias Batchelder, Deputy State Public Defenders, for
Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters and
James William Bilderback II, Assistant Attorneys General, Jaime L.
Fuster and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff
and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Ryan R. Davis
Deputy State Public Defender
770 L St., Suite 1000
Sacramento, CA 95814-3362
(916) 322-2676
Douglas L. Wilson
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6184