People v. Cornett (1948) 33 Cal.2d 33. Charged convicted of first degree murder of ex-stepfather-in-law and sentenced to death. Reversed. Trial court gave the following instruction: "There must be an intent to kill, but there need be, however, no appreciable space of time between the forming of the intent to kill and the overt act-- they may be as instantaneous as successive thoughts of the mind. A man may do a thing willfully, deliberately and intentionally from a moment's reflection as well as after pondering over the subject for a month or a year. He can premeditate, that is, think before doing the act, the moment he conceives the purpose, as well as if the act was the result of long preconcern or preparation." Held: that is wholly erroneous. To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decide to and commit the unlawful act causing death.

People v. Butler (1967) 65 Cal.2d 569. Defendant convicted of first degree murder based on felony murder rule. Reversed. Defendant testified he only intended to take what was owed when the killing occurred. Over objections, prosecutor argued "If you think a man owes you money ... and you go over and with a gun and try to get the money with a gun, its robbery" and "If you go into a man's home and merely because he's supposed to owe you some money, and take money from him at gunpoint, you have robbed him." Held: the taking of property is not theft in the absence of an intent to steal, and a specific intent to steal is an essential element of robbery. It has long been the been the rule in this state and generally throughout the country that a bona fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent. Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it. The trial court's approval of the prosecutor's argument that no such defense exists removed completely from the consideration of the jury a material issue raised by credible, substantial evidence.

People v. Wilson (1969) 1 Cal.3d 431. Convicted of first degree murder of wife and second degree murder of another. Conviction was based on felony (burglary) murder rule. Defendant had broken in with a firearm to scare his wife who had left him. Held: the felony murder rule is applicable only when the breaking and entry has an independent legal significance from an assault or intentional murder of the occupant. Follows People v. Ireland (19 ) 70 Cal.2d 522.

People v. Green (1980) 27 Cal.3d 60-62. If killing of victim is for purpose independent of a felony, the felony murder rule might be inapplicable.

People v. Thompson (1980) 27 Cal.3d 303, 315; Pedophile convicted of murder in the commission of sodomy of a child under the age of 14 with special circumstances, death verdict on retrial of sentencing portion after original jury hung 9-3 for death. As to jury issue of whether death qualification voir dire should be conducted in public rather than in open court, the court held that in the absence of a request from the media and objection from the defendant, Hovey should be followed. On objection to release of juror on claims of hardship without voir dire, the court held that while not approved, the procedure was rational in view of the length of time for both voir dire and the trial, and there were no objections. Defendant initiated a conversation with the jailers because of the condition of his girl friend which eventually, after a readvisement of Miranda Rights, led to a confession. The court held that defendant initiated the conversation pursuant to Oregon v. Bradshaw (1983) 462 U.S. 1039, and because defendant had been readvised, the confession was not suppressible. Objections to equivocal requests for counsel were rejected on the basis that they were not requests, but explanations as to why defendant was ignoring the advice of counsel to speak. The failure to admonish the jurors during the penalty phases was deemed harmless because the jurors had been admonished earlier, there was no showing of how many jurors kept notes, and there was no showing of prejudice. The judge failed to give the jury a lessor included offense of attempted lewd conduct, explained his mistake to the jurors, and left. While improper, it was harmless because it related only to the distinctions between lewd conduct and attempted lewd conduct and thus had no bearing on the outcome of the homicide verdict. Counsel stipulated to allowing the court reporter to read portions of the transcript to the jurors out of the presence of the court and counsel. Defendant objected only insofar as there was no instructions to the jury not to deliberate in front of the reporter. The court held there was no record. As to a dictionary, that was taken, and the jurors had indicated to the bailiff they had not used it. Defendant also objected to the procedure with the reporter because he had not personally joined the waiver. The court rejected that argument on the basis of People v. Robertson (1989) 48 Cal.3d 18. Claimed Carlos error was rejected based on Anderson. Defendant claims that "committed during" and "committed during flight from" are covered by two different provisions, therefore the jury should have been instructed they must agree as to one or the other, they were not, and therefore there was error. Relying on Guzman, that because the "1977 death penalty law's special circumstances of murder "during" the commission of the felony continues while defendant maintains control over the victim (cites), the charges in the present case included the scenario in which defendant committed the felonies, then maintained control over the victim until the time of the actual killing. Consequently, the court did not err ..." After the first penalty phase jury was unable to reach a verdict, defendant moved the court to enter judgment for LWOP. The Court declined. As a matter of statutory construction, this was no error because the judge has no discretion when the first panel fails to reach a verdict; only if a second panel fails to reach a verdict does the court have discretion. At the first penalty phase, defendant's 1967 molestation conviction was not allowed into evidence because there was no timely notice under 190.3. On retrial, there was an amended notice. The court allowed the 1967 in on retrial. This was held not to be error. On the original trial, the prosecution must give notice before the guilt phase. On retrial of the penalty phase, a new trial commences, hence a new notice may be given. Carmichael held that defendant has a right to voir dire the second panel as to their knowledge of the first vote. From this he claimed the court sua sponte was required to determine whether defendant wanted the jury informed. This was rejected. There was a stipulation that there were four blacks on the venire. One was excused for cause, and the other three peremptorily challenged by the prosecution. Defendant claimed impermissible use of peremptory challenges. A motion was made after the jury was sworn for mistrial. The motion was denied. The court affirmed on the basis that the motion was not timely. Regarding his 1978 oral copulation, the victim was called to testify as to forcible use of tequila, beer, and marijuana. Defendant contended that the jury was permitted to consider uncharged non-violent and violent crimes for which he had not been convicted, exacerbated by the court's failure to instruct they could not consider those matters unless proved beyond a reasonable doubt. The court held defendant was wrong because the court instructed: "You may, if you find them to have been proved beyond a reasonable doubt, consider evidence which has been presented of, one, the defendant's alleged 1967 conviction for violating the Penal Code section 288; two, the defendant's alleged 1978 conviction of violating Penal Code sections 288, oral copulation, and P.C., § 286, sodomy with respect to [David B.]; three, the alleged criminal activity involving the kidnapping and the assault with a deadly weapon upon [David B.]. You may not consider as evidence in aggravation any other evidence of alleged criminal activity or violent conduct except these above enumerated items." It reasoned that the prosecution was free to prove prior violent criminal activity through testimonial evidence, regardless of a conviction, and that the people need not accept a stipulation. Defendant, while waiting trial, had made friends with another pre-trial detainee who eventually went to state prison. He stated that defendant provided valuable advice on how to live in prison but was afraid to testify because of what might happen. Defendant's investigator was allowed to testify, but letters between the two were excluded on hearsay grounds. The letters were not marked for identification, and no offer of proof was made as to the content, and no record made as to challenges by the prosecution. Hence no error in view of the Investigator's testimony regarding them. The People attempted to admit three photographs over Defendant's objection, but the court only permitted two. The court found that there must have been a weighing process otherwise the one photograph could not be excluded. The court found the photos were relevant to intent, and to the manner in which the victim was killed. Defendant claimed that the factors (d)and (h) were such as to exclude his condition as a pedophilia. The court rejected that on the basis that the court also gave factors (i) and (k) which permitted them to consider anything at all. "Shall" impose argument rejected. Jury instructed not to merely count, but weigh the alternatives, and the prosecution was restrained. No error found in failure to delete inapplicable factors, and no failure found in not giving unanimity instruction on uncharged offenses. The court declines, and find no requirement for, inter-case proportionality review. Assuming arguendo a pedophilia is a mental disease, there was no record that condition impels one to commit murder thus making the death penalty cruel and unusual punishment. Society is not required to suffer from his repeat offenses. He had other alternatives, such as commitment, to avoid the problem. Even assuming in the face of a strong case of intent, intent to kill is not required, citing Tyson and Anderson.

People v. Jackson (1980) 28 Cal.3d 264, 293-296. No ineffective assistance of counsel shown where no evidence is presented as to what mitigating evidence was available.

People v. Harris (1981) 28 Cal.3d 935, 962. It is proper to exclude evidence on how the gas chamber works in California to impress on the jury the heavy responsibility of its duty.

People v. Murteshaw (1981) 29 Cal.3d 733. Reversed the death penalty on the basis of erroneous admission of expert opinion evidence that (1) expert predictions that persons will commit future acts of violence are unreliable, and frequently erroneous; (2) forecasts of future violence have little relevance to any of the factor which the jury must consider in determining whether to impose the death penalty; (3) such forecasts, despite their unreliability and doubtful relevance, may be extremely prejudicial to the defendant. 29 Cal.3d, at 767-74.

People v. Williams (1981) 30 Cal.3d 470. A trial court has the power to strike special circumstances in homicide cases.

People v. Ramos (1982) 30 Cal.3d 553, 590 [Attempted felony murder is not inconsistent with the principles of the felony murder rule; Briggs instruction incompatible with the guaranteed of fundamental fairness established in the due process clause of the U.S. Const. or Calif. Const.] reversed sub nom California v. Ramos (1983) 463 U.S. 992 [Briggs not violative of federal constitution], affirmed People v. Ramos (1984) 37 Cal.3d 136 [Briggs violates Cal.Const. Art. I, §§ 7, 15 both because it is seriously and prejudicially misleading and because it invites the jury to be influenced by speculative and improper considerations.]

People v. Stone (1982) 31 Cal.3d 503. The trial court is constitutionally obligated to afford the jury an opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked only on an uncharged lessor offense.

People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 806. "Heinous, atrocious, or cruel" special circumstances provision unconstitutionally vague.

People v. Cook (1982) 32 Cal.3d 400. Convicted of felony murder in the commission of a robbery. Defendant contended error in that the evidence was sufficient to show only that he was attempting to collect an antecedent debt, and therefore the most the facts justified was a voluntary homicide. The court rejected the argument on the basis the defendant took more than was owed. Citing People v. Flannel (1979) 25 Cal.3d 668, 680-681; People v. Sedeno (1974) 10 Cal.3d 703, 716; People v. Widersham (1982) 32 Cal.3d 301.

People v. Robertson (1982) 33 Cal.3d 21. When the defendant's intent is not to steal but to kill and the robbery is merely incidental to the murder ... because its sole object is to facilitate or conceal the primary crime" it is not murder during the commission of a robbery within the meaning of the statute for special circumstances, but just the opposition, robbery during the c of a murder.

People v. Easely (1983) 34 Cal.3d 858, 875. Held that CALJIC 8.84.1 might be construed by the jury as limiting consideration to the gravity of the crime without consideration of circumstances or other aspects of the defendant, in violation of Lockett.

In re Joseph G., In re (1983) 34 Cal.3d 429. Convicted of murder Two. Defendant contended he should only have been convicted of aiding and abetting a suicide. Defendant, driver, and Victim drove a car off a cliff after much public discussion and abundant witnesses to the conversations. Driver survived and Victim died. The Court of appeal affirmed. The Supreme Court reversed finding that the Defendant had subjected himself to the same risk, for the same reasons, as the victim, and that it was fortuitous that he had survived. Hence voluntary manslaughter or aiding and abetting a suicide was more appropriate.

People v. Carlos (1983) 35 Cal.3d 131. statute was saved by construing a felony murder to require an "intent" to kill.

People v. Harris (1984) 35 Cal.3d 87. It is impermissible to double charge "multiple murders".

People v. Beeman (1984) 35 Cal.3d 547, 561 [One may intentionally aid a killer without necessarily harboring the intent to kill.]

People v. Garcia (1984) 36 Cal.3d 539, 547-549. Intent to kill in felony murder required.

People v. Whitt (1984) 36 Cal.3d 724. Use of jail house informant alright. Based on Massiah and Henry, in this particular case, the listener was passive and was specifically instructed not to elicit information.

People v. Ramos (1984) 37 Cal.3d 136. Attempted felony murder is not inconsistent with the principles of the felony murder rule; Briggs instruction incompatible with the guaranteed of fundamental fairness established in the due process clause of Cal.Const. Art. I, §§ 7, 15 both because it is seriously and prejudicially misleading and because it invites the jury to be influenced by speculative and improper considerations.

People v. Boyd (1985) 38 Cal.3d 762. No errors re jail house informant after review of Massiah, Henry and Kuhlman. The jury can consider in aggravation only those factors listed by statute, whereas the defendant may show in mitigation any factor unlimited by statutory restrictions, but once defendant has brought in background and character evidence, the prosecution may in rebuttal tender relevant and specific evidence into evidence.

People v. Montiel (1985) 39 Cal.3d 910 [PREMEDITATION AND DELIBERATION. Personal use of knife. Special circumstances: intended personal gain; especially heinous, and cruel; robbery. Guilt affirmed and penalty reversed. Erred in instructions on what constitutes personal gain, i.e. financial gain other than the robbery, there was Ramos Error, and error in stating the jury could not have sympathy for the defendant.

People v. Brown (Brown I) (1985) 40 Cal.3d 512, 541, rev. sub nom California v. Brown (1987) 479 U.S. 538 on issue of sympathy. The court upheld the conviction notwithstanding the admission of evidence of electrophoresis in violation of Kelly/Frye. At the guilt phase, the court reversed because it held that CALJIC 1.00 jury "must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling. The U.S. Court held that the jury was precluded from considering anything not adduced as evidence and that the "mere" saved the instruction being that a jury was told it must consider evidence in mitigation. [PRACTICE HINT: Ask for clarifying instruction such as "While you may not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling that is not a part of the evidence which was presented to you, you may, indeed it is your duty, to consider factors in aggravation and mitigation, and where evidence produced in court satisfies you, you may give it the appropriate sentiment or sympathy which it deserved in light of the record before you. CAVEAT: The cure may be worse than the bit.] In a challenge to P.C., § 190.3(k), wherein the "if the jury finds that the aggravating circumstances outweigh the mitigating circumstances it shall impose a sentence of death." It was argued that this impermissibly fetters the decision of the jurors. The court reasoned no; it stated that a juror must weigh all of the factors, both aggravation and mitigation, and after weighing all of the considerations, given the jurors own value system, if the juror felt the death penalty was appropriate, then vote for the death penalty. [NOTE: In inviting the jury to assign its own value system, it would appear an open invitation to unfettered discretion as to what value to place on human life; vis vague and arbitrary and therefore unconstitutional. Cites Roberts v. Louisiana (1976) 428 U.S. 325; People v. Haskett (1982) 30 Cal.3d 841; Hunter v. Florida (1974) 416 U.S. 943.

People v. Croy (1985) 41 Cal.3d 1, 13-14. Aider and Abettor intent?

People v. Phillips (1985) 41 Cal.3d 72. Subdivision (b) of section expressly permits proof of any violent "criminal activity" regardless of whether it led to prosecution and conviction, except as to offenses of which defendant was acquitted.

People v. Leach (1985) 41 Cal.3d 92, 110. Defendant was convicted of PREMEDITATION AND DELIBERATION, Robbery One, Personal use of a deadly weapon, and special circumstances of intentional murder and torture, and that the murder was committed in, or as an accomplice to, the commission of a robbery. Guilt was affirmed, but the penalty of death reversed. citing People v. Carlos (1983) 35 Cal.3d 131 and People v. Garcia (1984) 36 Cal.3d 539, 547-549, the court held failing to instruct on the necessity for intent to kill in the felony-murder special circumstances is ordinarily reversible per se because it completely eliminates the issue of intent from the jury's consideration, with only four exceptions: (1) were defendant was acquitted of the relevant charge; (2) defendant concedes the issue of intent; (3) the jury necessarily found the requisite intent to kill as a result of other properly given instructions (Sedeno exception); and (4) where the parties recognized that intent to kill was in issue, presented all evidence at their command on the issue, and the record not only establishes the necessary intent as a matter of law, but shows the contrary evidence not worthy of consideration (Thornton-Cantrell; exception). The court found the Sedeno; exception in the jury's finding that "the murder was intentional and involved the infliction of torture. citing People v. Lanphear (1984) 36 Cal.3d 163, 165-169 and People v. Easely (1983) 34 Cal.3d 858, 875-880, the court reversed the death penalty because the prosecution argued that "the jury must not be influenced by pity for the Defendant or by passion, prejudice against him. You must not be swayed by mere sentiment, conjecture, sympathy, passion, or prejudice ... feeling." The court found that this effectively denied the jury the ability to consider sympathy and compassion in light of the following mitigating circumstances: Barely 18 years of age; no prior felony convictions; no serious trouble in school; one of 5 children of invalid parents; and, father died when he was 15.

People v. Walker (1985) 41 Cal.3d 116. Two robbery cases consolidated on appeal, defendant was convicted for shooting three People (one, a 15 year old boy, died) during the robbery of a liquor store and a lady in the second robbery who survived. Judgment of guilt and special circumstances were affirmed, but the penalty phase reversed. It found, citing People v. Carlos (1983) 35 Cal.3d 131 and People v. Garcia (1984) 36 Cal.3d 539, 547-549, the statute was saved by construing a felony murder to require an "intent" to kill. See also, Beck v. Alabama (1980) 447 U.S. 625. Reversed death penalty because (i) citing People v. Keenan (1981) 126 Cal.App.3d 576;, the People failed to comply with the statutory requirement of giving notice of evidence in aggravation which it intended to produce at trial; (ii) the court failed to clarify CALJIC 8.84.1 in conformity with People v. Davenport, supra regarding factors about the defendant; and (iii) any substantial error occurring during the penalty phase of the trial must be deemed to have been prejudicial citing People v. Robertson (1982) 33 Cal.3d 21.

People v. Balderas (1985) 41 Cal.3d 144. Non-violent conduct to be admissible must have resulted in conviction whereas violent conduct does not require a conviction.

People v. Davenport (1985) 41 Cal.3d 247. PREMEDITATION AND DELIBERATION, intentional, with torture. Upheld constitutionality of torture-murder special circumstances as not inconsistent with the definition of premeditation and deliberation so as to confuse the jury. Reversed as to instructional errors based upon People v. Brown (Brown I) (1985) 40 Cal.3d 512; People v. Easely (1983) 34 Cal.3d 858; People v. Robertson (1982) 33 Cal.3d 21; Lockett v. Ohio (1978) 438 U.S. 586. Victim accepted a ride with appellant when no one else would take her home from a bar at around midnight. Her body was found the next day. Motorbike tracks found at the scene matched Defendant's bike. 3 eyewitnesses placed a similar bike at the death scene. The court held the torture-murder special circumstances is saved by an "intent" requirement in the statute. In the penalty phase evidence of two instances of prior criminal activity by appellant which involved the use of force and violence was introduced as circumstances in aggravation calling for death. The prosecution's argument hinged on the prior and instant case. He also argued that the Governor had the power to modify the judgment of death, even though informed the Briggs Instruction would not be given. Defendant moved for a new trial on the grounds of prosecutorial misconduct. A dismayed court refused to grant the motion. CALJIC 8.84.1 and 8.84.2 as modified w/o Briggs was given. The court reversed because of a failure of the court to inform the jury of the standard of proof required before it could consider evidence, and failed to make clear to the jury the weighing of aggravating and mitigating circumstances is not a mechanical or numerical process, but rather entails the jury's responsibility for determining the appropriate punishment based upon ALL relevant evidence citing People v. Brown. Citing People v. Robertson (1982) 33 Cal.3d 21 it held that the other crimes must be proved beyond a reasonable doubt, and a failure to give the instruction was reversible error. Citing People v. Easely (1983) 34 Cal.3d 858, 878 it held that CALJIC 8.84.1 might be construed by the jury as limiting consideration to the gravity of the crime without consideration of circumstances or other aspects of the defendant, in violation of Lockett.

People v. Deere (1986) 41 Cal.3d 353, 365-67. Defendant, despondent over the break-up with his girl friend, shot and killed two of her family members. He waived trial by jury, with counsel's consent and found guilty. At the penalty phase, he again waived a jury trial and refused to tender mitigating evidence, and counsel stated for the record he did not feel that he could go against the wishes of his client. The court reversed finding that counsel had violated his oath of office and that defendant had been denied effective assistance of counsel. Said the court, had mitigating evidence been presented, the court could well have imposed a lesser sentence. It also reasoned that the Courts will not become the instrument of suicide. See also, In re Kubler, In re (1975) 53 Cal.App.3d 799; People v. Hendricks (Hendricks I) (1987) 43 Cal.3d 584 [Reversed death penalty because jury recalled for sanity hearing; no duty to voir dire defendant; defendant agreed to present no defense {Query: Why bother with a jury trial? Did he really understand the tactics?}].

People v. Rivera (1986) 41 Cal.3d 388. Reversed based on error in admission of evidence in violation of People v. Thompson (1980) 27 Cal.3d 303, 314; People v. Haston (1968) 69 C.2d 233, 246. 3 Co-defendants were convicted as adults. One implicated defendant who was then a minor. He admitted the burglary but denied doing the stabbing. His version matched the stories of the 3 co-defendants. His confession and prior were admitted over his objection. The People tendered the evidence under Evid. C., § 1101(b) claiming that both crimes: occurred on a Friday night; at approximately 11:30 p.m.; involved a convenience store; were in Rialto; on a street corner; had 3 perpetrators; a getaway car was used; immediately prior to the crime, 2 or 3 people were standing outside the store; defendant used an alibi. Dissimilar was the alibi involved a brother on the prior and a sister on current. The Supreme Court found these dissimilarities: (1) prior was armed robbery, a crime against a person, whereas current was planned as burglary, a crime against property; (2) the prior concerned taking of money whereas current was the taking of beer; (3) the co-perpetrators in each case were different; (4) the prior involved a gun whereas the current involved a stabbing. It noted that the two did not have a distinctive characteristic to amount to a "signature", vis something unusual, or distinct. It found prejudicial error in the admission under People v. Watson (19 ) 46 C.2d 818, 836-837. In orbiter dicta, the court stated that when a minor is taken into custody, the request for a parent is deemed the equivalent of a request for an attorney and interrogation must cease, citing People v. Burton (1971) 6 Cal.3d 375, and that such error was per se prejudicial.

People v. Hamilton (Hamilton I) (1985) 41 Cal.3d 408 [Death penalty reversed for failure to find an intent to kill in felony murder case], reversed sub nom California v. Hamilton (198 ) 479 U.S. 538 in light of Rose v. Clark (1986) 478 U.S. 570; (106 S.Ct. 3101),, on remand People v. Hamilton (Hamilton II) (1988) 44 Cal.3d 351.

People v. Bergener (1986) 41 Cal.3d 505. Death penalty must be reversed where counsel acceded to defendant's death wish, and there was Brown error.

People v. Rodriguez (Luis) (1986) 42 Cal.3d 730 [Rejects constitutional challenge predicated on lack of reasonable doubt standard; Jury not required to find beyond a reasonable doubt that aggravating circumstances outweigh mitigating circumstances; at p. 737, there is no basis for reversal on double charge of multiple homicide where jury is not prejudicially misled as to number of homicides; remanded for automatic modification hearing because judge failed to exercise independent discretion as to whether or not death was appropriate].

People v. Rodriguez (Juan) (1986) 42 Cal.3d 1005 Agrees that defendant was denied right to individual interpreter, but finds the denial harmless under any standard and affirms.

People v. Allen (1986) 42 Cal.3d 1222, 1273, only one multiple murder special circumstance can be charged in a multiple murder case. Thus, if there are three counts of murder, the prosecution cannot charge a special circumstance as to each count, but only one for all three.

People v. Hendricks (Hendricks I) (1987) 43 Cal.3d 584 [Reversed death penalty because jury recalled for sanity hearing].

People v. Ghent (1987) 43 Cal.3d 739, 776 (1977 Law). Defendant was read Miranda Rights and asked to speak to psychiatrist which he initially agreed to do. Then he decided he want to talk to a lawyer. The court agreed there was Miranda error in allowing the Officer and Psychiatrist testify, but that the error was harmless in view of the fact the defendant made no inculpatory remarks to be used against him, other than he had, in the abstract, on that date, the capacity to form premeditation and deliberation. Reading out of obviously inapplicable factors in statutory instruction CALJIC 8.84.1 rejected. The court is required to review the record in each to case to determine whether the jury instructions, as a whole, read in conjunction with the jury arguments, adequately informed the jury of its responsibility to consider all of the mitigating evidence in the case. Adopts Witt Standard.

People v. Anderson (1987) 43 Cal.3d 1104 [`Intent' instruction not required for actual killer; only aider and abettor; no matter how many homicides are charged, only one multiple murder special circumstance is permissible]

People v. Gates (1987) 43 Cal.3d 1168, 1203 [`Claim or right' defense does not exist where property acquired by illegal means; Easely error ok, notwithstanding amendment of (k) to include Easely factors; rejected `reasonable doubt' standard for weighing factors in aggravation and mitigation; other crimes requires `reasonable doubt'] With respect to priors, it is not fact of conviction, but rather the conduct which gave rise to the conviction which is relevant.

People v. Miranda (1987) 44 Cal.3d 57 [Pre-trial notice of evidence in aggravation need not be in writing, although it is preferable; unadjudicated criminal activity is admissible; other crimes must be proved beyond reasonable doubt, but harmless error standard applies; there is no requirement that the jury must unanimously agree on which factors justify the death penalty; distinguished Murteshaw on the basis that no expert witness testimony was used to establish dangerousness, only arguments based upon admissible evidence; subdivision (b) contemplates prior criminal activity, not the current activity; where there is a subdivision (a)/(b) overlap, evidence can be used for one or the other but not both. Reading out of obviously inapplicable factors in statutory instruction CALJIC 8.84.1 rejected.

People v. Snow (1987) 44 Cal.3d 216 [Wheeler error prejudicial per se; limited remand rejected where remand would be six years after trial, distinguishing Batson; Adoptive admission by silence sustained {no 5th Amendment rights discussed}].

People v. Howard (1988) 44 Cal.3d 375. Defendant asked to speak with Det. Nelson. On a tape, Nelson obtained an admission from defendant that the conversations was defendant's idea, then read defendant his Miranda rights anyway. There were several episodes in which defendant denied involvement. Defendant's son and girl friend were interviewed on tape. These tapes were played back to the defendant. Then Nelson said "What do I tell you Gary, when I have been dealing with you for a week a I think your, I am dealing with a guy who's a man, he letting (sic) this chick and son take a fall." "I know you wouldn't want somebody else, especially someone you loved -- ride (sic) a beef for you." This was held not to be coercive. [Perhaps the court overlooks the distinction of a voluntary confession and a coerced one. While it is true the conversation was voluntary in that defendant did waive his Miranda Rights to speak freely, it does not necessarily mean that he consented to coercive tactics, and it would appear that the officers abused the defendant in that regard, even if he did consent to speak to them. No prejudice results from use of certain evidence in aggravation at the end of guilt phase when the prosecution first becomes aware of the evidence. Defendant given time to prepare.

People v. Kimble (1988) 44 Cal.3d 480. A nighttime search may be authorized for good cause. Where the affidavit were completed at 6 p.m., and taken to the magistrate at 7 p.m., a magistrate could find that exceptional circumstances required an expedition of the investigation, to include a search at night. The court properly instructed the jury, and the jury was not misled, in response to their question as to whether or not they could use their "personal choice." The court should not instruct the jury as to the consequences if it cannot reach a unanimous verdict.

People v. Hale (1988) 44 Cal.3d 531 [Death penalty reversed for failure to hold competency hearing; substantial evidence of incompetency; P.C., § 1368 is jurisdictional].

People v. Ruiz (1988) 44 Cal.3d 589. There was no error in denying a motion to sever a weak case, no body, from the other two cases, even given the rules of cross admissibility. There was sufficient similarity, sudden disappearances, between the charges to allow cross-admissibility on the issue of identity of the assailant. Victim's out-of-court statements under Evid. C., § 1250(b) is admissible only when the victim's conduct in conformity with that fear is in dispute. In this case the admission of the victim's statements of fear under People v. Merkouris (1962) 52 C.2d 672, was error because not relevant, but it was harmless error.

People v. Hendricks (Hendricks II) 44 Cal.3d 635. Defendant charged with three homicides, already convicted of two others on appeal, gets on the stand and testifies to a 6th Homicide. Who let this guy take the stand!! What happened to the sanity issues of Hendricks I, or was Hendricks I window dressing for impartiality because it anticipated Hendricks II?

People v. Melton (1988) 44 Cal.3d 713. Sharpe admonition of adverse witness waived when defense counsel requested jury be informed of admonition; admonition was not sharpe; in fact proper; the court may express its views on the evidence, so long as it does not express an opinion on the ultimate issue of guilt; defendant had a right to, and the court ordered a non-intrusive, test of a witness suspected of being under the influence, and that is all defendant was entitled to; notebook entries of the decedent victim were properly admitted into evidence; admission of photographs of victim were properly admitted over an objection on the basis of Evid. C., § 352; there was no impermissible invasion of the attorney work product doctrine when the defense investigator testified; the use of the investigator to express a lay opinion concerning the veracity of another was error, but the error was harmless; under any theory, the failure to instruct sua sponte on the lessor included theft charge was harmless; a sua sponte instruction that "intent to kill" is required only for the aider and abettor, not the actual killer; it was not prejudicial to deny defense the opportunity to voir dire concerning the television series "Executioner's Song" portraying the execution of Gary Gilmore; absent CYA records which might mitigate the death penalty did not require dismissal of the death penalty or other sanctions; a little humor helps in a long trial, however the jokes here were not in good taste, but defendant did not object, and in any event rather mild; a stipulation of priors does not prevent the prosecution from bringing out the details of the priors; the court is not required sua sponte to instruct on defendant's right to remain silent; instructions on subdivision (k) and the duty of the jury to consider mitigating factors were adequately given; the jury must have understood its role - it learned that aggravating factors were limited by statute, but mitigating factors were not - could assign whatever weight they wished - a single mitigating factor could justify life rather than death if it outweighed all factors in aggravation - relative weight rather than relative numbers was crucial - mere counting was improper; double counting of factors should be avoided; the inclusion of "necessarily" in defendant's proffered "the absence of a statutory mitigating factor does not constitute an aggravating factor" was harmless error.

People v. Williams (Keith) (1988) 44 Cal.3d 883. Convicted of three counts of 1st degree murder. Special circumstances alleged and proved: Multiple murder; during commission of kidnapping; Robbery. Alleged, but found not true was during commission of rape. Death sentence was returned. Defendant challenged the right to do a P.C., § 995 motion as to the multiple murders, and the competency of counsel for not doing so. Rejected because while at the time of the preliminary hearing and time a P.C., § 995 motion should have been done, there were no prior convictions for murder, those cases were being processed, and the only question was whether or not there was probable cause to believe there would be such facts at time of trial. Defendant challenged the failure to separately charge the special circumstances as required by the penal code. The court rejected this on the basis that the manner in which the special circumstances was alleged was sufficient to put defendant on notice of what to defend, and defendant could show no prejudice. The court found the redundant allegation of multiple murder special circumstances error, but harmless on the basis of stare decisis. The court rejected a challenge to whether or not the homicides were "in the course of" target crimes, i.e. of independant legal significance. Observing on the basis of stare decisis that "where the intent is to kill and the related offense is merely incidental, it is not "during the commission of"", found that there was overwhelming evidence for the jury to find that the crimes were of independant legal significance. Finally, the court agreed that the reasonable doubt standard applies to special circumstances, but found that it did not apply in this case because defendant tendered the other crimes as evidence of diminished capacity. On the habeas corpus, the court adhered to the federal standard announced by Strickland that unless "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result" there is no ineffective assistance of counsel claim requiring setting aside the verdict.

People v. Wade (1988) 44 Cal.3d 975. Defendant killed step daughter after prolonged excessive punishment. Defendant turned himself in, admitting he was the responsible. Evidence of multiple personality. Ineffective assistance rejected based on counsel's admitting crime and nature of crime in view of his argument to find defendant not guilty by reason of insanity. The admission of uncharged prior offenses depends upon: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence. In this case, the priors were relevant as to whether or not defendant was insane, and intent.

People v. Lucero (1988) 44 Cal.3d 1006, citing Lockett v. Ohio (1978) 438 U.S. 586, 605 and Skipper v. South Carolina (1986) 476 U.S. 1, it is constitutional error to reject mitigating evidence tending to show (1) whether or not defendant can adjust to prison life and (2) post traumatic stress syndrome unrelated to defense of the crime, but solely as mitigating evidence.

People v. Williams, In re Williams (Stanley) (1988) 44 Cal.3d 1123. Four homicides with special circumstances, robbery, multiple murder. No Miranda or Henry violation because cell mate was merely conduit rather than police agent in the constitutional sense. In any event, those cases were designed to protect against custodial interrogation, not against undercover investigation. Based on People v. Allen (1986) 42 Cal.3d 1222, 1273, only one, and not four, multiple murder special circumstances should have been charged. But error was harmless. Boyd, Robertson, and Miranda errors were harmless citing People v. Kimble. No Easely error because Prosecutor, referring to (k) gave carte blanche to the jury to consider anything at all about the defendant, and defense counsel followed up. No Easely error because the prosecutor never argued they could only count, but argued only one factor could mitigate all of the factors in aggravation, and finally did not undercut the jury's responsibility for the moral decision as to the appropriate sentence. No error in failure to present mitigating evidence per Deer and Bergener because distinguished on the ground that in Deer defendant asked for death penalty, and no mitigating factors were present, and in Bergener counsel read to the jury defendant's wish to be executed. In this case, there was an eloquent argument against the death penalty based on what there was. It is not error to exclude information as to how errors are carried out in California, citing Harris. Challenge to death penalty rejected on basis of Rodriguez.

People v. Bunyard (1988) 45 Cal.3d 118. Convicted of first degree Murder of mother and fetus, with special circumstances of multiple murders, and sentenced to death. Penalty reversed. Fetal murder can be used to justify multiple murder circumstances. Following People v. Ramos (1984) 37 Cal.3d 136, the court held that the Briggs Initiative was incompatible with the guarantee of fundamental fairness both because it is seriously and prejudicially misleading and because it invites the jury to be influenced by speculative and improper consideration.

People v. Milner (1988) 45 Cal.3d 227. Death penalty reversed on the basis of People v. Brown (Brown I) (1985) 40 Cal.3d 512 and Caldwell v. Mississippi (1985) 472 U.S. 320. Defendant was 19 at time of offense. Exclusion of video tapes of hypnosis as basis of expert opinion excluded as merely cumulative in light of testimony. Prior conduct admitted without objection, and when the court discussed the matter out of the presence of the jury, counsel still failed to do anything!!!!!!!!! No Carlos/Anderson error. The court observed that time and again that the jurors were told they did not have to "shoulder the burden of personal responsibility," told them the law protects them from deciding what is just and right, and even encouraged them to hide behind the law. The prosecutors arguments, it reasoned, was incompatible the Eighth Amendment's heightened need for reliability in the determination that death is appropriate.

People v. Lucky (1988) 45 Cal.3d 259. Use of other crimes alright; argument on ability to protect society was alright; admission of juvenile crimes alright' unanimity on factors in aggravation is not required; "double charging of multiple homicide is impermissible, but in this case the jury was not misled; age is strictly speaking a neutral factor and thus no requirement to instruct it is a factor in mitigation; consolidation resulted in dual representation and a second counsel rejected for failure to show prejudice;

People v. Poggi (1988) 45 Cal.3d 306. Defendant was a recently released MSDO. He was convicted of rape-murder. Plead not guilty and not guilty by reason of insanity, but withdrew sanity plea in light of expert testimony. Victim on single prior was called to testify. Court rejected violation of 5th Amendment in allowing experts to testify at trial; argument "vindicate the grass roots anger" alright in the absence of a request for a curative admonition, because mere objection is insufficient; allowed death penalty in face of cruel and unusual challenge in the face of defendant's acknowledged mental illness.

People v. Hamilton (Hamilton II) (1988) 45 Cal.3d 351 [Court is not required to instruct on intent where the evidence is that defendant is either the actual killer, or was not present at all, and the issue of aider and abetter is not raised; there is no Brown error where both the Prosecution and Defense argue it was the jurors decision as to whether to inflict the death penalty, and the judge instructed "In weighing the aggravating and mitigating factors, you are not to merely count numbers on either side. You are instructed rather to weigh and consider the factors on each side as a whole;" and "In order to impose the death sentence, you must be convinced beyond a reasonable doubt that the totality of the circumstances outweigh(s) the totality of the mitigating circumstances."; No Easely errors because court instructed: "The mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose a death sentence upon Hamilton. You should not limit your consideration of mitigating circumstances to these specific factors. You may also consider any other circumstances presented for not imposing the death sentence."]; Ramos error not prejudicial in view of the fact court directed jury not to consider the Briggs Instruction in arriving at its choice of sentence]; court will not assume from a silent record that court did not understand its power to strike special circumstances.]

People v. Silva (1988) 45 Cal.3d 604. Two murders with six special circumstances: financial gain; multiple murder; murder of witness to prevent testimony; heinous, atrocious, and cruel; felony murder (robbery & kidnap); torture. Allegations of gun use. On a P.C., § 995 motion, the following special circumstances were struck: witness; torture; felony murder (robbery). Defendant was found guilty of one, but not both murders, and found multiple murder untrue. Death was imposed. The court rejected error based on adoptive admission testimony. Rejected Miranda error where defendant waived rights on tape, then during the course of the questioning said "I really don't want to talk about that." See, Confessions, Equivocation. Set aside the financial gain special circumstances on the basis of People v. Bigelow (1984) 37 Cal.3d 731, 751, because financial gain must be an essential prerequisite to the murder. It struck down the "heinous, atrocious, and cruel" special circumstances based on People v. Superior Court (Engert) (1982) 31 Cal.3d 797. It struck down the witness murder special circumstances based on a single course of events rejecting the contention that one victim was the witness of the crime against the other victim. Sustained the felony murder circumstance rejecting the argument that the robbery was over and completed at the time of the murder. The court rejected the argument that the death penalty had to be reversed based on the guilt phase special circumstances which were invalidated. Admission of evidence concerning threats made against guards were harmless error based on People v. Boyd (1985) 38 Cal.3d 762.

People v. Babbit/In re Babbit (1988) 45 Cal.3d 660. Convicted of PREMEDITATION AND DELIBERATION, robbery, and attempted rape of LS, and burglary of her apartment, robbery and attempted rape of MW. Also found murder occurred in the course of burglary, defendant sane, and imposed death sentence. Affirmed. Diminished capacity was based on one eyewitness, family members, and experts on the following theories: As a result of a childhood brain damage and Viet Nam service related injury, defendant's ability to think and function under stress was impaired; (ii) as a result of Viet Nam service, defendant manifested symptoms of post-traumatic stress disorder (PSPT); and (3) defendant possibly suffered from psychomotor epilepsy, which would render him unconscious of acts committed during a seizure. Rebuttal expert testified that experts are no better equipped to infer what a defendant's mental state was at the time of an alleged offense. Claimed error: exclusion for cause of certain jurors opposed to capital punishment; exclusion of certain evidence regarding defendant's mental state; instruction on "presumption of consciousness;" prosecutorial misconduct; ineffective assistance of counsel. Jury challenge summarily rejected on basis of stare decisis. DIMCAP evidence rejected was: (1) Movies shown on channel 40 at time of murder; (2) Defendant's Marine company's Viet Nam combat records; (3) Hospital record's of defendant's head injury; and (4) defendant's negative response to stimuli that reminded him of Viet Nam. As to (1) the court found no evidence that the TV set was on, or that defendant was viewing it before the crime, hence its probative value was speculative. (Evid. C., § 210.) As to (2) the records were not properly authenticated in that the cover letter only authenticated the cover letter and not the records under Evid. C., § 1420, and that Evid. C., § 1421 did not apply because it was not shown that the contents was known only to the author of the letter. Any error was not prejudicial because defense only read one page, and the prosecution conceded the point of wartime injury, and there was plenty of other evidence on point. As to (3), the objection was relevancy, where the court observed there was conflicting evidence as to whether or not the records showed brain damage, and where, hence the records were not relevant!! The court also observed that the fact of a head injury was not disputed, hence any error was not prejudicial. The jury was instructed on CALJIC 4.30, presumption of consciousness. On appeal, defendant raised Sandstrom v. Montana (1979) 442 U.S. 510. The court rejected the contention based on Patterson v. New York (1977) 432 U.S. 197, that the state does not have to negative the state of mind beyond a reasonable doubt because unconsciousness is a defense which defendant must prove by a preponderance of the evidence. As to (4), the trial court sustained an objection based on self-serving hearsay, and Evid. C., § 352. Evid. C., § 1250(a), state-of-mind exception was not advanced in the trial court, and therefore rejected on appeal. The evidence consisted to aversion to anything Vietnamese, and the court found there was no relevant link between anything Vietnamese, and the victims who were not Vietnamese. Disparaging the expertise of defense experts by the prosecutor was limited to evidence presented by the prosecution experts. Hence no misconduct. Defendant objected to prosecution arguments implying that a not guilty by reason of insanity plea would relieve defendant from punishment and result in being set free. The court observed that the prosecutions remarks were limited to evidence in the record based on ".. their moral pronouncements disguised as medical opinion in the hopes of persuading jurors to let people off the hook, so to speak, ...." The court observed that although the comment was improper, it was not prejudicial as in People v. Criscione (1981) 125 Cal.App.3d 275, 292-293, where the prosecution expressly stated to the jury "... immediately set free ... Of course we don't lock them up. We just call them insane." As to the IAC issues, on failing to object to prosecution remarks "social cancer" and "find him crazy and send him home," the court observed there was nothing in the record to shed light on the tactical decision as to whether or not to object, and in any event, in light of its decisions on the merits, there was no prejudice. On the writ, the court found that as on the merits in the appeal the failure to object was non-prejudicial, therefore on the writ it was not prejudicial. The prosecution's remarks about illicit sexual relations with a women not his wife, and fathering two children without benefit of marriage were not objected to at trial, hence no error. Defendant objected to subdivision (h) requirement of "extreme" mental or emotional distress, the confusion engendered by subdivision (d) concerning legal sanity. The court rejected the former on the basis of People v. Ghent, 43 Cal.3d, at 776, on the basis that the jury was instructed, and entitled to consider mental or emotional distress of less than "extreme" under the catchall provision of subdivision (j). All of the evidentiary issues raised before were raised at the penalty phase, and once again rejected. On motion to reduce, the court held that defendant's Viet Nam service in no way extenuates his crime.

People v. Robbins (1988) 45 Cal.3d 867. Conviction of murder and kidnapping. Special circumstances that murder was committed during kidnapping and lewd and lascivious conduct on a minor. Defense presented evidence of 17 years of parental neglect, abuse and institutional mistreatment. He had been sexually molested by step fathers.

People v. Guzman/In re Guzman (1988) 45 Cal.3d 915. Defendant was convicted of murder, burglary, robbery, kidnapping, and rape, and felony murder circumstances as to the last four offenses, and two prior rapes for which a separate sentence was served. A change of venue motion by defense counsel over defendant's objection was granted on the basis of prejudice. The defendant asserted the right to a jury of vicinage, and that it was one which he was required to personally waive, and therefore no waiver by the motion. The court held that vicinage was not a personal right, but one of both the community and the defendant, and therefore personal waiver was not required when it was shown that a change of venue was required for a fair trial. The District attorney testified as to why he granted full immunity the chief witness against the defendant. Defense objected that this constituted the functional equivalent of an expert opinion on the credibility of a witness, and the prosecution's closing argument aggravated the error and amounted to vouching in the classical sense of the term. The court assumed error, it held that the error was not prejudicial in light of the fact the prosecutions case was very strong, and the fact that a discussion with the witness and the defendant was on tape. Defendant testified, over counsel's objection, and was forced to testify in the narrative. This was held not to be error on the basis of Nix v. Whiteside (1986) 475 U.S. 157. Penalty Phase Issues; Witherspoon/Witt, rejected; People v. Easily Factor (k), rejected, People v. Brown Error, rejected; Sentence reliability, rejected. At trial, defendant asked for the death sentence, over protests by the court and defense counsel. On appeal, he asserts that the court pursuant to P.C., § 1368 should have had him examined as to competency. The court rejected this finding that defendant's reasons, in the face of another 30 or 40 years of imprisonment with no hope of being released was a reasonable one.

People v. Ainsworth (1988) 45 Cal.3d 984. Convicted of 1st degree murder, with findings of special circumstances of robbery and kidnapping, was armed with and used a firearm, and prior convictions for enhancement purposes. Penalty Phase Issues: Defendant move for a new panel for the penalty phase. The court asked for a showing of good cause. None was made so the motion denied. Counsel then asked to voir dire the jury to discover good cause. Denied. The court relied on stare decisis without elaboration, citing People v. Duncan (1959) 51 Cal.2d 523, 529-530; People v. Wein (1958) 50 Cal.2d 383, 408. Before trial, the prosecution gave notice of 5 other crimes: (1) 1968 conviction of armed robbery; (2) 1972 conviction of armed robbery; (3) 1978 assault on police officer; (4) 1978 armed robbery; (5) 1979 assault and robbery. Defense attempted to limit the other crimes to the two convictions which was denied. A continuance was requested as to the other three to make a defense. Denied. A compromise was reached wherein only the convictions, and no facts or evidence, would be tendered, and on that basis the continuance was denied. On appeal, defendant urged he needed the continuance to go behind the convictions. The court acknowledged that there may have been some mitigation in one of the robberies, but the overall effect was that defendant became progressively worse, hence no prejudice. Defendant charged it was error not to instruct that evidence of prior violent criminal acts could be considered in aggravation only if proved beyond a reasonable doubt. The court found the error harmless because of a stipulation by the parties "there is no burden of proof on either side."

People v. Rich (1988) 45 Cal.3d 1036. Defendant was found guilty of three counts of murder, special circumstances of "felony murder lewd and lascivious act on a child under 14" and "multiple murder" was found true. Defendant presented evidence of a troubled childhood, including a number of suicide attempts prior to age 17. He married his pregnant girl friend at age 19, then they broke up. He had another girl friend with whom he broke up with. Both testified that they had normal sexual relations with him. 6 experts testified as to defendant's mental capacity with mixed testimony, and two of who thought that while they could not form an opinion as to one of the homicides, thought he was insane as to the other homicides. 4 prosecution experts testified.

People v. Williams (Michale) (1988) 45 Cal.3d 1308. Defendant was convicted of first degree murder, and it was found true that the murder was committed while engaged in a robbery, and that defendant was armed and used a firearm. The sentence of death was imposed. Alibi defense. Evidence against defendant was oral admissions prior to arrest, and jail house admissions. Family history indicated that defendant had been abused, and abused sexually. A P.C., § 1538.5 motion was made to suppress evidence as the result of a warrantless entry into a motel room which produced the murder weapon. The officers entered on the bare assertion of an unknown tipster, without any knowledge that a crime had in fact been committed. The court held that defendant's burden was only to show the warrantless entry, and thereafter the burden shifted to the prosecution to justify the entry. The entry could not be justified on "exigent circumstances." They entered to corroborate the tipster's information. Thus the entry was illegal. After the officers left the room, they stopped the vehicle. This stop, the court held was independent of the illegal entry of the room, because they had sufficient information from the tipster prior to the illegal entry to stop the vehicle to investigate. The court held that the illegal entry did not require the suppression of co-defendant's testimony during the illegal entry because, sub silentio, of the inevitable discovery rule as a consequence of the legal search and seizure of the automobile. A plea bargain could not be compelled where not unequivocally accepted within a reasonable time, citing Cooper v. United States (4th Cir., 1979) 894 F.2d 12; Ex Parte Yarber, Ex Parte (Ala., 1983) 437 So.2d 1330; Mabry v. Johnson (1984) 467 U.S. 504. The court held that the giving of CALJIC 2.11.5 and 2.27 were error because the crucial witness was a co-conspirator whose testimony had to be corroborated and distrusted. The error was harmless the court held that instead of looking to the signal error, it was required to look to the entire case, and as so viewed, the error was harmless. The court failed to instruct sua sponte on viewing oral admissions with distrust. This was held to be harmless based on the record as a whole. .Witherspoon/Witt errors rejected. There was no "Pre-trial Notice" error. No juror misconduct where juror is taking tranquilizers then discusses the case with her mother between guilt and penalty phase and agree that there is no religious impediment based on "an eye for an eye." There was error in allowing an expert to testify as to future dangerousness, but it was harmless because invited by defense on direct. The court erred on conspiracy, but it was harmless. The court continues to reject the reasonable doubt standard for factors in aggravation. There was no People v. Brown Error. Defendant's sympathy instruction rejected as misleading. There was People v. Easely/factor k Error, but it was harmless. Defense instruction that death was greater punishment than LWOP was rejected. NO error in failing to give the Briggs Instruction No error in rejecting Defendant's instruction that age 19 is a factor in mitigation. There is no error in mentioning factors in aggravation for which no evidence is presented. The error in refusing to give CALJIC 17.40; was harmless. The error in refusing to instruct the jurors that they could only consider statutory factors in aggravation was harmless. While it may have been error under Booth v. Maryland (1987) 482 U.S. 496 to refer to the victim's parent's feelings, it was harmless. The prosecutor's misconduct in urging the truth of the matter asserted in forming an expert opinion was harmless. The judge's misconduct in reading a letter from the victim's parents prior to ruling on the mandatory modification motion was harmless. The error of reading the probation report before ruling on the mandatory modification was harmless.

People v. Marks (1988) 45 Cal.3d 1335. Convicted of 1st Degree Murder, financial gain special circumstances found true, and death imposed. Entire matter reversed because court expressed doubt as to defendant's competency. At trial of competency hearing, counsel indicated he was satisfied that client was competent. Held: Competency hearing is jurisdictional once the court has expressed doubt about defendant's competency, and trial counsel cannot waive the trial. Ratio: It is contradictory to argue that a defendant may be incompetent, and yet knowingly and or intelligently "waive" his right to have the court determine his capacity to stand trial. For guidance on re-trial: The court refused an instruction as to the degree of the crime if defendant found guilty, and in fact the jury did not specify the degree of guilt; that was error. Questionable instructions to the jury threatened the murder and conspiracy convictions; most of the overt acts were after, even significantly after, the murder, and it is doubtful that such acts could be in furtherance of the conspiracy. A co-conspirator cannot be charged for acts occurring before joining the conspiracy. The court erred when it did not sua sponte instruct that defendant had to have been found to have joined the conspiracy before the murder. CALJIC 2.62 is inappropriate if, when defendant testifies, matters brought out by the prosecution are substantially covered by defendant.

People v. Morris/In re Morris (1988) 46 Cal.3d 1. Convicted of 1st degree murder, with a finding of true the special circumstance of willful, deliberate, and premeditated and was committed during the commission or attempted commission of a robbery, robbery, and armed and used a firearm. Reversed on insufficient evidence of robbery, and the penalty set aside because of insufficient evidence of robbery special circumstances. The information charging robbery was filed subsequent to the 3 year statute of limitations, and therefore time barred. The statute of limitations applicable to the underlying felony is immaterial to the charge and conviction of felony murder, citing People v. Terry (1969) 70 Cal.2d 410, 422-423. The rule is also applicable to special circumstances under P.C., § 190.4. There are two necessary prerequisites to the jury's special circumstances finding: (1) substantial evidence of the robbery; and (2) substantial evidence that the murder was committed during the commission or attempted commission of the robbery. The undisputed evidence showed that at the time of the homicide entirely nude except for shoes and socks. The record contains no evidence that any personal property was in the victim's possession at the time of the murder, or that nay personal property of the victim was ever recovered subsequent to the murder with the possible exception of [a] credit card. There were no witnesses, except one who only saw the shooting. Thus it was entirely speculative that the credit card was taken by force or fear as there were any number of variations on how the defendant acquired the card short of robbery. Further proceedings are barred by the double jeopardy clause.

People v. Hamilton (Billie Ray) (1988) 46 Cal.3d 123. Convicted of three counts of 1st degree murder, and in two, assault with deadly weapon. Special circumstances found true: felony murder-robbery; multiple murder. The court originally sustained the guilt phase, but reversed the penalty phase and special circumstances because of a failure to instruct on "intent" in felony murder. On rehearing, the special circumstances must be upheld because Carlos has been overruled insofar as the intent element is concerned for the actual killer. Defendant was abandoned by his parents at age 7.

People v. McLain (1988) 46 Cal.3d 97. Conviction of 1st degree murder, conspiracy to commit murder and rape of victim one, and that murder had been committed during the course of the rape, and attempted murder and rape of victim two. Victim two had been a victim previously and had testified against defendant. Defendant was found to have suffered a prior conviction for murder, and 11 felonies, 10 of which involved violence, and 8 of which were sex crimes. The court assumes the trial court erred in not severing, but that the error, in light of the motives and evidence, was harmless. Death qualification rejected. No error in failing to give an accomplice as a matter of law instruction where witnesses testimony while improbable was not impossible. Rejected argument that court should have sua sponte instructed that an informer's testimony should be viewed with suspicion, citing People v. Hovey (1988) 44 Cal.3d 543, 565-66. Rejected the contention that prior murder conviction special circumstance had to involve a murder antedating the present offense, and because it did not it had to be set aside. The court rejected the argument on the basis of People v. Hendricks (Hendricks I) (1987) 43 Cal.3d 584, 595-96. Defense sought to show defendant's good behavior in prison through a prison psychologist familiar with the records. In view of a foundational issue, defense withdrew the matter, and hence there could be no error. The court's refusal to allow testimony on whether or not defendant would pose a danger was error under Skipper. Skipper error is subject to review under the beyond reasonable doubt standard of Chapman v. California. Because the court found that the aggravating evidence was overwhelming and the mitigating evidence minimal, the error was harmless beyond a reasonable doubt. Evidence of remarks attributable to defendant did not fit any factor in aggravation and therefore was error, but the error was harmless. Double jeopardy argument rejected on the basis that the double jeopardy clause only prohibits multiple prosecutions for the same offense.

People v. Boyde (1988) 46 Cal.3d 212. Convicted of robbery, kidnapping for robbery, and first degree murder of V1, and robbery and kidnapping for robbery with knives of V2. Special circumstances found true were: murder during commission of robbery, murder during commission of kidnapping, personal use of firearm. Defendant was arrested for crime involving V2 and Mirandized. He agreed to talk and eventually confessed. He then offered that "Big Mike" did the crime as to V1 and offered to drive officers to Big Mike's house, but they could never find it. He finally implicated Ellison. Ellison was arrested and admitted doing the shooting, then recanted and said that Boyde did the shooting. Motions to sever defendants' trials, and to sever the two crimes were made and rejected. Such motions are within the discretion of the trial court, and there has never been a reversal based on denial of the motion. Cites People v. Turner (1984) 37 Cal.3d 302; United States v. Brady (9th Cir., 1978) 579 F.2d 1121. Evidence of "secret deal" based on Ellison's waiver of jury trial and testimony on the one hand and prosecutors indication not to seek death penalty as to Ellison, all requiring disclosure, rejected. Evidence of CYA activities, and other conduct was improperly admitted in violation of People v. Boyd (1985) 38 Cal.3d 762, or because notice was not properly given, but the error was harmless in light of a string of four robberies, a brick throwing incident, and a conspiracy to escape. Easely and People v. Brown errors rejected as harmless, and not to be applied retroactively. Violation of Davenport, argument by DA that absence of mitigating factors is aggravation, is not to be applied retroactively. [See dissenting opinion on the Brown Error.]

People v. Kurtzman (1988) 46 Cal.3d 322. A jury may not return a verdict on the lessor offense unless it has agreed beyond a reasonable doubt that the defendant is guilty of the greater crime charged, but it should not be interpreted to prohibit a jury from considering or discussing the lesser offenses before returning a verdict on the greater offense.

People v. Brown (Brown II) (1988) 46 Cal.3d 432. For facts, see People v. Brown (Brown I) (1985) 40 Cal.3d 512. The death penalty had been reversed because of instruction based on "mere sentiment." The U.S. Supreme Court reversed and remanded. On remand, the court remanded to the trial court for the mandatory post-trial modification motion. The judge in entering judgment did not refer to the mandatory motion, and did not make any findings. Admission of prior felony under subdivision (b), as opposed to (c) is alright citing People v. Gates (1987) 43 Cal.3d 1168, 1203. There are three standards of review, the federal whether the court can declare "beyond a reasonable doubt it did not affect the outcome;" the state Watson, whether it is "reasonably probable" a result more favorable to the would have been reached but for the error; and, whether there is "a reasonable possibility" such an error affected the verdict. It is the last standard which will be applied in assessing the effect of state-law error at the penalty phase. Measured by that standard, it was not prejudicial error in failing to instruct the jury that it must find other violent criminal acts proved beyond a reasonable doubt.

People v. Karis (1988) 46 Cal.3d 612. Convicted of 1st degree murder of victim one with special circumstances of kidnapping and flight from rape, attempted murder of victim two, kidnapping of victim three and four, and rape of victim four, and found to have committed the target offenses while personally armed, and to have intentionally caused great bodily injury. Affirmed and petition for writ of habeas corpus for IAC denied. Neither ex-felons nor resident aliens are competent to sit as jurors. resident aliens are adequately protected by naturalized citizens. Statement regarding a hypothetical, reflecting an intent to kill a particular category of victims in specific circumstances, fall within the state-of-mind exception to the hearsay rule. Defendant's offer to stipulate to priors was properly rejected because the priors did not involve a factual element of the charged offense (People v. Hall (1980) 29 Cal.3d 143), but rather was relevant to a normative function of the jury as to whether or not death was the appropriate standard. There was no ineffective assistance of counsel in stipulating to an unavailable witness' preliminary testimony, not relevant to the prosecution, where part of the testimony provided an alibi.

People v. Bonin (Bonin I) (1988) 46 Cal.3d 659. Convicted of 1 degree murder and robbery of 4 victims, and was found to have been convicted of more than one homicide in the same proceedings, a special circumstance. Affirmed. Defendant had been sodomized by a number of men while young. He served in Viet Nam and was decorated for saving a life. Denied change of venue citing Maine v. Superior Court (1968) 68 Cal.2d 375, 378 standard "whether on the peculiar facts of the individual case ...there is a reasonable likelihood that the jurors who will be, or have been, chosen for the defendant's trial have formed such fixed opinions as a result of pretrial publicity that they cannot make the determinations required of them with impartiality." The trial court observed there was no evidence as to who watched the television coverage or read the newspapers accounts, and what effect, if any, it had on the viewer or reader. In the absence of such evidence the motion had to be denied. At trial 204 prospective jurors were subjected to voir dire of which 174 were subjected to pretrial publicity. 39 were excused for bias. Before using up his26 challenges, defendant moved for 8 to 10 additional peremptory challenges, which was denied without prejudice. After defendant exhausted his challenges, he did not renew the motion. 12 jurors and 4 alternates were selected. 10 of the jurors and all of the alternates had been exposed to pretrial publicity. Change of venue was renewed based on the composition of the jury. The court denied the motion articulating the Main standard based on its review of the jury selection process. The court articulated its review standard as follows: review of a trial court's resolution of factual questions under the deferential substantial-evidence standard; resolution of legal questions under the non-deferential de novo standard; resolution of mixed questions of law and fact (application of law to the facts), under the de novo standard. The ultimate question of the reasonable likelihood of a fair and impartial trial is plainly such a mixed question.

People v. Easely (Easely II) (1988) 46 Cal.3d 712. Convicted of double Premeditation and Deliberation, and found true special circumstances of: intentional and for personal financial gain; more than one murder. Retrial of penalty phase reversed for conflict of interest by counsel. Counsel represented defendant in penalty phase and a victim in a civil suit with this conflict: in murder case convince the jury defendant did not commit arson; in the civil case convince the jury defendant did commit arson. There was no waiver because while other factors were discussed, the dual representation, and its implications, was not.

People v. Coleman (1988) 46 Cal.3d 749. Convicted of 1st degree murder, rape, and sodomy, with special findings of murder committed during, or attempt of, rape, and during, or attempt of, sodomy, and the use of a deadly weapon. Evidence of prior rapes and sexual assaults, and assaults on fellow inmates, prison staff and medical personnel while in prison were admitted. Defense called a psychiatrist, his mother, and a member of the clergy. Defendant's father was an alcoholic who had beat defendant and defendant's mother, and was eventually convicted of murder. The erroneous denial of a challenge is not the same as the wrongful exclusion of a prospective jury. In the former, defendant is forced to use a peremptory challenge, in the latter he is deprived of the jury to which he is entitled. Defendant indicated he was satisfied with the jury with 2 challenges remaining. The court held that there is grounds for reversal only if defendant exhausts his peremptory challenges and an incompetent witness juror is forced on him. Robertson error rejected because other crimes were convictions, or the evidence compelling with no evidence to rebut it. Rejected factor (k) anti sympathy instruction, even in the face of strong argument to ignore sympathy based on defense counsel's argument and evidence presented.

People v. Crandell (1988) 46 Cal.3d 833. Convicted of two counts of 1st degree murder, with special circumstance of multiple murders. Denial of advisory counsel was abuse of discretion, but not prejudicial as to guilt phase. As to penalty phase, the evidence in aggravation did not clearly outweigh evidence in mitigation, such that the prosecution misleading arguments and the ambiguity of the instructions required a reversal.

People v. Bean (1988) 46 Cal.3d 919. Convicted of two counts of 1st degree murder, two counts of robbery, 1st and 2nd degree burglary, assault with deadly weapon, and personal use of deadly weapon in commission of murder, great bodily injury, and murders committed during commission of robbery and burglary, and more than one murder. Prosecutorial misconduct in arguing "future dangerousness" rejected. People v. Murteshaw (1981) 29 Cal.3d 733 only prohibits an expert opinion. The prosecution may argue past conduct as circumstantial evidence of future dangerousness. Similarly, the court rejected an argument that the prosecutor acted improperly in arguing age as a factor in aggravation.

People v. Jennings (1988) 46 Cal.3d 963. Convicted of 1st degree murder, forcible rape, 1st degree burglary, and robbery, while using a knife, with special circumstances that defendant intentionally committed murder during commission, or attempted commission, of rape, residential burglary, and robbery. Defendant claimed on appeal violation of 5th Amendment right under Miranda and improper jury instructions during penalty phase. Rejected Miranda violation after reviewing video tape on the basis that "... Your scaring the living shit out of me. I am not going to talk ...." was not an invocation of Miranda Rights, but that the statements "... reflect only momentary frustration and animosity toward Cromwell." Carols error rejected based on Anderson. Use of other crimes, even stale ones, and conduct upheld.

People v. Griffin (1988) 46 Cal.3d 1011. Convicted of murder with special circumstances of rape, sodomy, and lewd act upon child, with a knife, and of rape, sodomy, and lewd act upon child. Guilt and special circumstances affirmed, but PENALTY REVERSED because of Ramos Error. There is no due process violation when evidence is consumed during testing. Citing In re Michael L., In re (1985) 39 Cal.3d 81, 86. Under the federal standard, the duty to preserve is limited to evidence that might be expected to play a significant role in the suspect's defense, the evidence must possess an exculpatory value that was apparent before destruction, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Citing California v. Trombetta (1984) 104 S.Ct. 2528. Errors during in the penalty phase are not reviewed under Watson Standard, but the more exacting standard of whether there is a reasonable possibility that the error affected the verdict. Citing People v. Brown 40 Cal.3d 512. Ramos error, without a curative instruction to disregard it, has been consistently reversed as belonging to the limited class of cases in which prejudice is presumed.

People v. Caro (1988) 46 Cal.3d 1035. Forcing defendant to choose between his 5th Amendment right to remain silent as to uncharged offenses, and testifying as to facts in mitigation on the charged offense is permissible. While a finding of uncharged offenses requires a unanimous verdict for special circumstances, each individual juror may use the uncharged offense as a factor in aggravation so long as that juror is satisfied beyond a reasonable doubt that the uncharged offense exists. Dismissal of a prior offense pursuant to a plea bargain does not preclude its use as a prior. (Citing People v. Melton (1988) 44 Cal.3d 713, 755-756.) Factors in aggravation occurring after notice of evidence to be used in aggravation has been given may be used during the penalty phase in the absence of an objection.

People v. Malone (1988) §§ Cal.3d §§§. Conviction of kidnapping for robbery, robbery, 1st degree murder, firearm use, and special circumstances of: murder during robbery, during a kidnapping, prior murder. Assumed, without deciding, error in admitting prior murder in the face of a stipulation, the court found it harmless beyond a reasonable doubt in light of overwhelming evidence of guilt. Rejected guilt phase issue that court was required to sua sponte instruct the jury to view with distrust the testimony of a fellow inmate. Under People v. Woodward (1979) 23 Cal.3d 251, pre-prop 8, the nature of certain impeachment evidence of rape, etc. was not relevant to truthfulness, but counsel failed to object, and therefore not reviewable on direct appeal. Failure to object was not prejudicial. Evidence of prison gang activity and racism arguably was improper, but not objected to. Challenge to use of "professional jail house snitches" rejected. Excusing co-defendant from testifying in the face of 5th Amendment privilege was not error. Two special circumstances in one case, rape and sodomy, were dismissed for insufficient evidence. Nonetheless, the prosecutor argued rape and sodomy. Challenges of prosecutorial error were rejected because no objection was made. Challenges based on Booth v. Maryland (1987) 482 U.S. 496 rejected because remarks were brief and mild. Challenge based on Easely error rejected. Challenge based on Brown error rejected. Challenge to CALJIC 1.00 "disregard consequences" rejected although it ought not be given. Challenge of "overlapping" special circumstances based on Harris rejected in light of Melton. There was no multiple use of underlying crimes. The consideration of a conviction of murder occurring after the present murder as a prior was error, but harmless. Beeman error harmless beyond a reasonable doubt notwithstanding misleading instruction for aiders and abettors, vis "shared intent". Challenges to accomplice testimony instructions and P.C., § 1111 rejected.

People v. Johnson (1988) 47 Cal.3d 1194. 1st degree murder of V1 and rape of V2 with special circumstances found to be true. Reversed rape under compulsion of People v. Shirley and death penalty under compulsion of People v. Ramos. V1 was killed by a blow to the head by a barbell in his home. Time of death was placed as June 24th in the evening. D was allegedly seen leaving the premises shortly before the body was found. His handgun was missing. The ammunition from the handgun was unique in that none were made after 1973, and the remaining ammunition found appeared to have been manufactured in the '50s. A fingerprint was found on the screen removed from a window to gain entry. Two days later, a "black man with a scraggly beard" attacked a female in a church with a handgun by forcing her to a bathroom and forcing her to engage in sex. V2 could not identify defendant from a photographic line up in the hospital shortly after the attack. An attempt was made to do a composite, and for this purpose, V2 was hypnotized to refresh her memory. The day after the hypnosis, D was identified, even though clean shaven. Gun evidence at the scene of the rape were consistent with the weapon and ammunition absent from the home of V1. D's wife, a registered nurse provided an alibi for the homicide: defendant took her to work at 6:30 a.m. on the 24th, met her for lunch between 11 and 12, picked her up at 3:00 p.m., and was with her until 6:30 a.m. the next morning when he again took her to work. For the rape: defendant took his wife to work at 6:30 a.m.; called her at 7 a.m. and 10 a.m., met her for lunch between 11 and 12, and picked her up from work at 3:00 p.m. The wife accounted for V1's television in the home by a sale from an acquaintance to D. V3 testified that she had been raped on July 29 by a black man with a scraggly beard with recent scratch marks, she has identified the attacker and the attacker is in custody, but that D is not that person. Cooper was arrested on July 29 for possession of a handgun without grips; he claimed he bought the gun from a "black man with Fu Manchu mustache and gruff hair on his chin," but defendant was not that man. An expert on the McDonald defense was called. A glove found at the murder scene did not fit defendant. On a severance motion, the court found that murder and rape were both assaultive crimes against a person, and therefore of the same class, therefore prejudice must be shown in the joinder; the people argued motive and identification; the trial court found the crimes linked by the evidence; the court found no error; while there was no cross-admissibility as to identity or commonalty, but there was a link in the gun, gun clips, and the distinctive ammunition, to furnish a link to the fingerprints found at the murder scene, and the television set of V1 found in D's home. A parole search with the parole officer present was sustained. The court found that the prosecution could ask wife about her assisting defendant on a prior escape, even though a misdemeanor, as probative of bias and trustworthiness, and in any event defendant waived the objection when counsel went into it himself in deeper detail than the prosecution. The Court ruled that V1's identification testimony was erroneous under Shirley. If found the testimony prejudicial because it was the sole direct testimony linking defendant to the rape. A thumb print at the rape scene was highly controversial as to legibility. As to the murder, there was sufficient other direct evidence linking defendant to the crime, including a legible thumb print, and V1's television set which was observed in D's possession at work. Notwithstanding expert testimony on what Governors in the past have done, and counsel's arguments, the Court held that the Briggs instruction was prejudicial and reversed the death penalty. While not holding that Briggs is reversal per se, it comes pretty close to it.

People v. Wright (1988) 48 Cal.3d 168.

People v. Garrison (1989) 47 Cal.3d 746. 1st degree murder of two victims, husband and wife, at two different times and locations with special circumstances alleged all found true, except that the jury rejected the special circumstances that defendant personally used a gun. Death penalty reversed due to Briggs Instructions, and court refused to reconsider Ramos. An anonymous tip linked D to crime. Further information led police to D and R to New York. D was extradited and R resisted. R entered a plea bargain where he admitted to being an accessory, and testified against D placing all the blame on D. Joe Brown claims to have overheard a conversation with D and another person, not R, wherein D was planning the crime. John Findlay shared a cell with D and claimed many late night conversations with D wherein D admitted the actual killing. There was other testimony linking D to R, the car used to go to New York, that it was heavenly loaded, and the possession of firearms. Defendant produced alibi witnesses in the form of a female friend of D that D was at her home while R was away when the crimes were committed; that it was R who did the stealing. R's former girl friend and her mother, both relatives of R and who knew him most of his life, testified they would not believe his testimony; that when questioned about the killings, R would not respond, but D denied everything; that it was R who brought in the jewelry. Cobb testified it was R who asked him to case the V's home, and that R had indicated he would use force if necessary. Pecora shared a New York cell with R, and testified that R admitted involvement in the killings, but never admitted being the killer. The Court found that R's plea agreement was not tainted by impermissible terms relating to the content of the testimony. The trial court's ruling that left it up to the jury as to whether or not R was an accomplice whose testimony was to be viewed with distrust, or which required corroboration under P.C., § 1111 was correct in view of R's testimony. Assuming R an accomplice, the Court found that there was sufficient corroboration to submit to the jury in the form of possession of stolen property within 24 hours of the crimes, and possession of some of the property at time of arrest, and the two extra judicial statements to other witnesses. The court limited cross-examination regarding Brown, why he was in jail, and what his attorney communicated to him. Brown did testify that a continuance was granted in his case and he hoped, but did not know whether he could expect, leniency. Counsel made no effort to call investigating officers in Brown's case, did not request a stipulation from the prosecution, and did not ask Brown about any promises of leniency. Because the jury rejected personal use of gun, the court reasoned the jury must have felt that D was guilty, if at all because of accomplice liability and therefore reviewed for Beeman Error. The court found no error based on extra judicial statement testimony that showed D to have discussed the burglary and killing in advance of the crime itself. The trial court also instructed that both the burglary and the murder could be the predicate offense for felony murder. While acknowledging that "intent to kill" as a predicate for felony murder contravenes People v. Ireland, it found that the error was harmless in view of the special circumstance finding of robbery, which would also be sufficient for the application of the felony murder rule. The court declined to apply People v. Geiger retroactively. It rejected a contention that CALJIC 2.11.5 curtailed defendant's right to cross-examine R's testimony regarding his plea bargain because it could not be read in isolation, but with the rest of the instructions. The court rejected the equitable estoppel doctrine of People v. Taylor because of the jury's failure to find he personally used the gun on the basis that the jury probably was satisfied beyond a reasonable doubt one of them did the killing, but could not find beyond a reasonable doubt that it was either D or R who pulled the trigger, whereas in Taylor, the getaway D's liability was entirely vicarious to the principal who was acquitted. The rereading of Pecora's testimony outside the presence of defendant and counsel was held harmless because defendant waived his right so he could be in jail rather than a cell in the courthouse, and as to counsel because counsel would not be reached and under the circumstances, the portion reread was very favorable testimony for D, such that there was no prejudice. Counsel's alcoholic dependency, not withstanding subsequent death from that disease, was rejected because no prejudice or ineffective assistance had been demonstrated. The court noted that Carlos error only affects an accomplice, and because D could have been an accomplice rather than the actual killer, the failure to instruct on "intent" was error, however, it was harmless because of the Sedeno exception based on the special circumstance finding "that the witness was intentionally killed for the purpose of preventing ... testimony ....." The court found that there is no sua sponte duty to give a clarifying instruction on the application of the felony murder rule such that the jury would have to find its application based solely on the robbery/burglary and not on the killing of a witness and defendant failed to request such a clarification, therefore it was not required. Defendant claimed error regarding the "witness-killing" special circumstances, and the court agreed that it was not applicable because neither victim was a witness to the other crime. The court found that the duplicate use of multiple murder as to each of the two murders was error and struck it, finding that the preferred method is to allege the multiple murder allegation separately after all of the target offenses are alleged. Dual use of burglary/robbery as both an offense and as a special circumstance was rejected. A challenge to the use of both the robbery and the burglary as special circumstances where there is a single course of conduct was rejected. The court reversed on Ramos error for giving an unqualified Briggs instruction.

People v. Bonin (Bonin II) (1989) 47 Cal.3d 808. The "freeway killer" of southern California found guilty of 15 counts of murder. D had numerous priors of orally copulating boys, and each of the victims appeared to have been sexually abused. He had previously be treated at Atascadero. Two eyewitnesses, sexual partners of D, testified. They were charged, and entered plea bargaining. Chief complaint was conflict of financial interest of attorneys regarding book rights. The court found error based on Wood v. Georgia (1981) 450 U.S. 261, but that it was harmless because there was inadequate voir dire of defendant, and the court failed to compel revelation of whether or not book rights were involved. It found an inference there was such an agreement because defendant was indigent, the case was high profile, the attorney's response was equivocal, however, it the court found that was not sufficient to raise a duty to inquire. As to the conflict with the witness-prior client, the court found a conflict, but under the circumstances, there was no error because it could not be shown that the witness was not thoroughly cross-examined. The court assumed an actual conflict, and found that defendant failed to demonstrate any adverse performance due to the conflict. It rejected IAC on 30 days preparation on the basis that prior counsel spent 14 months on the case, offered help, and in fact provided help in the case, and the case itself did not reveal any defects. Defendant claimed error in not barring testimony of his two sex partners at trial. Prior to trial, it was stipulated that the Prosecution and defense enter into negotiations for a disposition other than death, and that no statements of defendant during the discussions could be used against him. During the discussion, D mentioned the names of his sex-partners. Thereafter, the Prosecution broke off negotiations, and caused the Sex partners to be arrested, who thereafter entered into plea bargain which led to their testimony. The court opined there was no breach of the agreement because D's statements were not used against him, directly or indirectly. As to a claim that it was error not to hold a 402 hearing on an experiment regarding whether or not a "t" shirt could leave marks as a witness claimed, on a neck, the Court ruled it was error not to conduct such hearing, there was lacking sufficient similarity between an arm and a neck, there was no showing that the circumstances and force used where the same, and the criminalist admitted he was not expert because he had never heard of a similar experiment, and had never before himself conducted such an experiment, and therefore the ruling was error, but it was harmless error. Parents of victims testified as to identify and the fact the victims were alive. They were not permitted to give an impact statement. The court found error not to exclude their testimony when defense offered to stipulate to identity and condition, and to the admissibility of photographs, but held the error to be harmless. No Carlos error because D actual killer. It was error to instruct on 10 multiple murders special circumstance, 9 were stricken, but the error was deemed harmless. As to the penalty phase, it was conceded that parents had testified at trial and that was before the jury during the penalty phase, but because there was no impact report, it was harmless error. Defendant claimed that he had the choice of testifying as to punishment in is LA case and foregoing testimony in the Orange County Case or vice versa because the People introduced evidence of the crimes charged in the Orange County Case. It followed McGautha v. California (1971) 402 U.S. 183, 208-220, defendant can be compelled to choose which, if any, the penalty of guilt phase, he will testify, while preserving 5th Amendment right as to the other.) It distinguished Ramona R. v. Superior Court (1985) 37 Cal.3d 802; on the basis the minor must be deemed to be subject to a compulsive sanction against exercise of 5th Amendment. The court did not err in instructing on sentencing factors not in issue. Defendant correctly claimed that factor (b) must be limited to crimes other than those charged, but the court rejected that the instruction which failed to limit the factor was error. Claimed error on factor (i) was rejected; age may be used both for factor in aggravation and mitigation. Rejected Easely error on factor (k) because both defense counsel and the prosecutor told the jury to consider it. Claimed error on sympathy instruction did not exist; if defendant wanted an amplification, he should have requested it. Brown error occurred, the instruction regarding a possible mechanistic choice, but it was found to be harmless. Reasonable doubt standard rejected for penalty of death.

People v. Farmer (1989) 47 Cal.3d 888. Defendant was convicted of 1st degree murder. The principal eyewitness testimony was the victim who called police, answered questions on the phone while an ambulance was on the way, and answered questions of an officer at the scene. Subsequently, the victim died. In summary, V described the suspect as white, age 35, he could not remember the name, but it was in a phone book, and that the suspect knew his room mate and had engaged in drug dealings with the suspect. A "phone book" was found in the apartment with names of 3 people, one of whom was D, who matched the description. V's room mate, and D's girl friend provided filler information. Admission of the out of court statements were held not error. While observing that the court does not ordinarily find responses to extended questioning, as in this case, it nevertheless upheld the spontaneous declaration on the grounds that the victim had been shot three times, once in the mouth, twice in the stomach, he was in obviously distraught and in intense pain, such that he would not be in a position to fabricate answers, the questions themselves were neutral, he would probably have been concerned with his survival (he did call for help), and the answers were not self-serving. The court rejected a contention that the statement did not "narrate, describe, or explain" shooting. The court found that the statement help describe event by identifying the perpetrator, and helped explain that the event may be drug related. Because of this ruling the court declined to rule as to whether or not there was a dying declaration. The court found no violation of D's confrontation rights because V was unavailable, and in view of the fact the statement fit the excited utterance test, there was an indicia of reliability required for trustworthiness because V was gravely wounded and in pain, and therefore improbable that he that he either had the capacity or motivation to relate anything but the truth. As to a challenge to the admission of a tape recording under section 352, the court held that the court erred in not engaging in the weighing process, so therefore the court had to determine whether or not there was prejudice, i.e. whether the court would have reached a different result if it had weighed the relevant considerations and stated it on the record, and concluded that it would not have because it provided the jury with the means to determine that V was still lucid when he made his statements, which the court found critical, and but for this critical issue the court might well have found that the People's suggestion that it allowed the jury the opportunity to hear the last words of V was not relevant, the description cumulative, and the groans highly prejudicial. Against a claim of abuse of discretion in refusing a lay opinion as by Officer Strigotte, as to whether D or another looked more like the description, the Court observed that the physical description was so general "countless men" would have met the test; more probative was the phone book, names, and relationship with V's room mate. Defendant claimed error in not allowing counsel to cross-examine witness Victoria about a remark allegedly made by Hicks, in her and Victoria's presence that he had killed D. P called for a 402 hearing, and counsel objected that he had linking evidence and an offer of proof. In the 402 hearing, Hicks denied the remarks, and counsel failed to make an offer of proof of impeachment at trial, but instead made it on appeal. The court found no offer of proof at trial, and the offer on appeal too late. Defendant wanted to call Hicks who would testify that Huffman admitted the killing, P indicated he would use a prior tape recorded statement of Huffman for rehabilitation, which the court ruled it would allow, whereupon defendant abandoned that line of questioning. The court found no error, stating that defendant was free to put on the evidence, but that such evidence was subject to impeachment. A claimed Hitch error was rejected on the basis that the police took some photographs of the most probative footprints, and that they could not be expected to photograph everything in sight. Defendant claimed that error in allowing the expert testimony of footprint evidence under section 352. The court failed to make the weighing required, and the court agreed it was error but not prejudicial because the evidence was relevant and did not "prejudge" defendant. Defendant claimed the footprint evidence failed to meet the Kelly-Frye Test, but the court rejected that on the grounds that Kelly-Frye only applied to new scientific principals, not the professionalism of collecting evidence, and in any event defendant mischaracterized the evidence. Special jury instructions relating to the foot prints and V's statement as circumstantial evidence were rejected on the grounds that while proper for argument, where not the basis for an instruction because not neutral. The defendant claimed that the juxtaposition of instructions on 1st degree burglary where the target is murder, and felony murder wherein the murder itself could not be the basis of felony murder, but the burglary could, would have confused the jury. The court observed that perhaps, but in view of the express finding of fact that there was premeditation and deliberation, it was harmless. IAC was claimed where defense counsel interviewed Huffman and admitted the killing, but counsel failed to withdraw as counsel to testify at the guilt stage, but delayed to the penalty phase. The court stated that there was nothing in the record to explain counsel's tactical choice hence no IAC. The court ruled on the New Trial Motion based on new evidence, Counsel's discussion with Huffman, and IAC was rejected because it was not newly discovered; it was known by counsel from the outset. The IAC was also rejected for the reasons first stated. The court rejected claimed error in cross-examining Reed about post immunity criminal activity. The court reasoned such evidence was not relevant as to credibility, only the immunity issue was relevant because of the potential to reward good testimony, and in any event there was no showing that the DA had not acted honorably. Suggesting that Devitt § 11.06 might be more appropriate, the court rejected claimed error that CALJIC 2.11.5 hindered his ability to show that Huffman did it not him. The court observed the jury was only directed not to speculate why Huffman was not prosecuted; it did not preclude them from finding that he committed the offense. Defendant claimed error in the special findings because not in the nature of a general verdict and therefore unauthorized per section 1152. The court rejected the contention finding that special circumstances were not a verdict but a finding authorized by section 190.4. Defendant also claimed error because the specials findings were proposed toward the end of the guilt phase, and therefore defendant lacked opportunity to challenge them. The court found that the claim lacked merit and was trivial. The court rejected a claim of error based on the trial court's rejection of Huffman's criminal past. The court found that section 1101 controlled and therefore specific instances of misconduct had to be barred. The right to read to the jury excerpts from the DA's argument in the Huffman case was rejected because the facts were not in evidence in the case, and the jury would be required to take the argument out of context, and thus be misled. Having lunch with another judge and getting the other judge's opinion on an abstract principal of law is not bad because no "expert" is involved. Death qualified jury rejected. Insufficiency of evidence rejected. The court found that the prosecutor misled the jury as to its sentencing responsibility under Caldwell v. Mississippi and People v. Milner. The DA essentially argued that the jury could show mercy, but only after considering all the factors in aggravation and all of the factors in mitigation, and if there were no factors in mitigation, then no mercy; the voter decided who should die and who should not die, it not your job; just weigh the factors in aggravation and mitigation. He went on a length on this theme, hence the court reversed the death penalty.

People v. Lang (1989) 49 C.3d 991. Defendant was convicted of homicide of V during the commission of a robbery and with use of a firearm. Defendant had been hitch hiking when picked up by V who was going hunting. V was found on a deer trail with 5 shots. D testified V made a homosexual advance and used a rifle and he shot in self defense. A homosexual testified that D was propositioned before without any adverse reactions. D had sold or gave away V's property and was found at SFO with a gun. Use of priors was alright. So was use of homosexual to impeach D's version. At the penalty phase, Trial Counsel acceded to D's request not to call his grandmother because it would be burdensome for her. On a Deere challenge the court noted that while tactical decisions as to which witnesses to call were for the attorney, it was not IAC to accede to the request of defendant where other mitigating evidence was introduced. The court continues to distinguish Deere on the basis that in Deere no evidence was presented. E.g., People v. Bloom (1989) 48 C.3d 1194 (Some mitigating evidence presented.) The court continues to hold that failure to present mitigating evidence, in and of itself, is sufficient to make a judgment reliable. The court also make applicable to the failure to present mitigating evidence the doctrine of invited error. The court rejected Brown error based on a reading of P.C., § 190.3, mechanical weighing process by observing that the prosecutor's remarks gave the jury discretion as to what weight to give to each factor in mitigation and each factor in aggravation. Use of dictionary definitions of "aggravation" and "mitigation" with concurrence of counsel, was error but not prejudicial. The court found that defendant's personal waiver for a stipulation of priors for factor (c) was not required because "not the legal equivalent of a guilty plea." There was no challenge to the use of the priors on double jeopardy grounds. Defendant objected to the prosecutors remark "is it the same sort of things you considered during the guilt phase ... even the defendant demeanor while on the stand" on the grounds it was impermissible argument that absence of remorse and a guilty plea were factors in aggravation. The court observed that in the absence of an objection or cure, it was unclear what was meant, it could have meant no more than an absence of a factor in mitigation, and no reasonable juror would have treated the remark to mean an absence of a factor in mitigation is a factor in aggravation. The prosecutor also argued "if you want to have a voice in the community, this is your opportunity" which defendant contended improperly appealed to passion and deflected them from the facts of the case. The court construed the remark to be no more than to "express the conscience of the community on the ultimate question of life or death" approved in Witherspoon.

People v. Hayes (1990) §§ Cal.3d §§§ Conviction of 1st degree murder and the rape, robbery and forced oral copulation of victim's spouse, personal use of firearm, and commission enhancements of robbery, rape, and burglary. Surviving victim gave a description as the scene, then later at the station. In an attempt to get a better description, she was hypnotized. Based on her hypnotic testimony, she identified defendant. Circumstantial evidence included a witness, Todd, who knew defendant and his whereabouts immediately before the crime and was able to identify a similar gun; DNA typing of blood and saliva were of defendant's class; a taxi driver identified the co-defendant as suspect in a prior taxi case [relevancy?]; a jail house snitch; Todd and the Snitch were impeached at trial. The court found error and discussed prejudice under the State Watson Standard. Because her eyewitness testimony was the only direct evidence linking defendant to the crime, prejudice was shown and reversal required. On remand, the witness cannot be barred from testifying as to those matters remembered before being hypnotized.

People v. Thompson (1990) 45 Cal.3d 86

People v. Kaurish (1990) 45 Cal.3d 648, 706. Defendant has the right to present 'lingering doubt' evidence and argument at penalty phase.

People v. Marshall (1990) __ Cal.3d ___. Convicted, and sentenced to death, for first degree homicide with special circumstances of robbery and burglary of a residence, and the use of a firearm of the commission thereof. Defendant, with two others, were part of a paramilitary group to go overseas as mercenaries. They broke into the victim's residence to steal weapons for their "mission" and "executed" the victim while laying face down. The court rejected as prejudicial the preemptory challenge of jurors who, while death qualified, expressed any doubt about the death penalty. (Citing People v. Turner (1984) 37 Cal.3d 302, 315.) The court found a violation of Booth v. Maryland, but found the violation harmless under the Chapman standard because the comment by the prosecutor was brief and unemphatic. The defendant objected to the comments of the prosecutor regarding what the victim must have felt in terms of terror as being speculative. The court rejected this on the basis it was fair comment on the evidence presented, and because it related to the crime, relevant.; The defendant requested, and was given, a detailed penalty phase instruction, but claims that the instruction did not go far enough in that it omitted "potential for rehabilitation" and "you may not consider ... deterr[ance] ... or ... cost ... of execution ..." The court held the error was invited under Wickersham, and that while the court was obligated to instruct sua sponte on statutory factors, it was not so required in all cases on all factors. The court rejected Brown error on the basis that the trial court used language suggested by Brown. Defendant claimed that the "reasonable doubt" standard applied to the following issues: (i) they could consider a circumstance in aggravation only if they were satisfied of its existence beyond a reasonable doubt; (ii) they could fix the death penalty at death only if they found that the aggravating circumstances outweighed the mitigating beyond a reasonable doubt; and (3) they could so fix the death penalty only if they determined that death was appropriate beyond a reasonable doubt. The court lumped these issues together and rejected the arguments, without elaboration under People v. Rodriguez. It also rejected equal protection grounds. The jury requested a definition of aggravating circumstances and mitigating circumstances. The prosecution and defense attorney worked out an additional instruction which termed aggravating circumstances as "bad evidence" and mitigating circumstances as "good evidence." Defendant claimed error that the instruction was non-responsive and misleading. The court disapproved of the elementary definitions given, but found they were not misleading in light of other instructions given.

Curl v. Superior Court (People) (12/10/90) __ Cal.3d ___. Defendant on trial for capital murder, with allegation of special circumstance of prior homicide. Defendant moved to strike on basis that at time he entered plea of guilty to prior murder he was under the influence. Trial court denied the motion. Held: In a capital case, a defendant may collaterally attack the validity of a prior-murder conviction special circumstance by a pretrial motion to strike the special circumstance allegation, and the defendant is entitled to an evidentiary hearing on such a motion, conducted pursuant to the procedures set forth in People v. Coffey (1967) 67 Cal.2d 204 and People v. Sumstine (1984) 36 Cal.3d 909. In such proceedings, the defendant has the burden of proving the prior-murder special circumstance's constitutional invalidity by a preponderance of the evidence.

People v. Fierro (1992) 1 Cal.4th 173, 231. Evidence of circumstances of prior homicide conviction at penalty phase does not constitute double jeopardy.

People v. Zapien (1993) __ Cal.4th ___. Evidence of prosecutor's misconduct during the pre-trial stage of the case is not relevant and is not appropriate for 'lingering doubt' evidence under Kourish.

People v. Neely/In Re Neely (1993) ___ Cal.4th ___. First Degree murder, two special circumstances found true: robbery/burglary and prior homicide. Granted writ for IAC and reversed for failure to investigate Delancie Claim that co-defendant had an agreement to elicit information regarding defendant. The tape recording of the effort was admitted into evidence. Counsel's failure to object was based on what one officer told him, rather than an investigation of available evidence which would have turned up the agreement.

People v. Alvare (1996) __ Cal.4^th ____. (Guilty Phase claims as to Suppression of evidence, in limine motions to bar evidence, severance of counts, severance of trials, jury composition, use of photographs, scope of cross-examination of witnesses, use of interpreter, defendant's qualification as a witness and mental competence to stand trail, prosecutorial misconduct, cross-examination of codefendant, instruction on pity and prejudice, accomplice testimony, instruction on concurrence of Act and Specific Intent, instruction on Causation, instruction on Implied Malice Aforethought, and sufficiency of evidence all rejected.) Penalty Phase claims of sufficiency of evidence for death eligibility rejected. Of 10 claims as to the infliction of the death penalty, two issues stand out for discussion here. 1. Defendant made application for funds to send a Spanish speaking attorney and a Spanish speaking investigator to Cuba to find mitigating evidence. The court approved such funds, provided that the funds not be actually used until after trial settlement conference, if needed. Defense tried to find and make arrangements for the travel to Cuba, but because of a lack of diplomatic ties with the United States, arrangement for such travel was not readily forthcoming. Eventually, all that defendants could do was find a subterfuge by which to gain entry to Cuba, through Mexico, with a travel tour group, with the intention of breaking off from the tour to do the investigation. The trial court, on learning of the subterfuge, rescinded its order, effectively cutting off funding, citing problem with international relations, and entering a country illegally. The Supreme Court upheld the trial court's analysis. There was also a discussion of disclosure of defense tactics by the interpreter. Evidently the whole escapade would have been over, without the court's knowledge, but for an interpreter who informed the court of what was going on. Whether, and to what extent, the U.S. Supreme Court would deal with this issue is problematical. It does raise the need to insure that interpreters are properly qualified, and understand their duty to maintain confidences of the client. 2. IAC relating to expert testimony and factual basis. Defense called an expert to discuss childhood problems, reciting the facts she relied upon. The expert was unable to go to Cuba to verify some of the facts, most of which came from Defendant. The prosecutor objected to the facts coming in for the truth of the matters asserted, to which Defense agreed, and the jury admonished. After cross-examination, the prosecution withdrew the objections, with a request the admonishment be withdrawn. Defense refused to agree!!! The Supreme Court found an even trade off, with nothing lost to the defense on the one hand, and having prevented the district attorney attacking credibility of the expert on the other. Other issues raised: prosecutorial misconduct, instruction not to consider guilt phase, instruction on bias and prejudice, instruction on circumstances of crime, application for modification of verdict of death, three strikes law.

(People v. Prettyman (1996) __ Cal4th ____ The jury convicted both defendant Bray and her confederate, codefendant Prettyman, of first degree murder, but acquitted them of conspiracy to commit murder. The trial court sentenced Bray to a term of 25 years to life in prison. She appealed. Defendant Bray and codefendant Prettyman held themselves out as husband and wife. They, as well as victim Van Camp, were among the homeless living in the Pacific Beach area of San Diego. Van Camp was beaten to death with a steel pipe on the morning of July 20, 1992, while asleep in the courtyard of the Pacific Beach Presbyterian Church. The prosecution contended that Prettyman beat Van Camp to death with the pipe, and that Bray, described by the prosecutor as an "argumentative drunk," encouraged Prettyman to kill Van Camp in order to obtain Bray's wallet, which Bray had given to Van Camp for safekeeping the previous evening. Both defendant Bray and codefendant Prettyman attempted to show that someone other than Prettyman had killed Van Camp. The trial court did not give the 1992 revision of CALJIC No. 3.02, which would have specified the possible criminal acts that Bray might have "originally contemplated," nor did the trial court give an instruction describing the elements of any such crimes. The court reversed finding that the trial court has to sua sponte give an instruction where the prosecution relies on the "natural and probable consequences" doctrine to define for the jury the target offense. In it ratio decidendi, the Court observed, "In an aiding and abetting case involving application of the "natural and probable consequences" doctrine, identification of the target crime will facilitate the jury's task of determining whether the charged crime allegedly committed by the aider and abettor's confederate was indeed a natural and probable consequence of any uncharged target crime that, the prosecution contends, the defendant knowingly and intentionally aided and abetted. The facts of this case illustrate this point. If, for example, the jury had concluded that defendant Bray had encouraged codefendant Prettyman to commit an assault on Van Camp but that Bray had no reason to believe that Prettyman would use a deadly weapon such as a steel pipe to commit the assault, then the jury could not properly find that the murder of Van Camp was a natural and probable consequence of the assault encouraged by Bray. (People v. Butts, supra, 236 Cal.App.2d, at p. 836.) If, on the other hand, the jury had concluded that Bray encouraged Prettyman to assault Van Camp with the steel pipe, or by means of force likely to produce great bodily injury, then it could appropriately find that Prettyman's murder of Van Camp was a natural and probable consequence of that assault. Therefore, instructions identifying and describing the crime of assault with a deadly weapon or by means of force likely to produce great bodily injury (section 245) as the appropriate target crime would have assisted the jury in determining whether Bray was guilty of Van Camp's murder under the "natural and probable consequences" doctrine." (See strong dissent from Brown, lJ.)