People v. Bryant, Smith and Wheeler , 60 Cal. 4th 335 ( 2014 )

Filed 8/25/14
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S049596
v. )
)
STANLEY BRYANT, DONALD )
FRANKLIN SMITH and LEROY )
WHEELER, )
) Los Angeles County
Defendants and Appellants. ) Super. Ct. No. A711739
___________________________________ )
On August 28, 1988, Andre Armstrong, James Brown, Loretha Anderson, and
Chemise English were shot and killed. Armstrong and Brown had run afoul of the Bryant
Family gang and were shot at the entrance to a drug house. Ms. Anderson and her
daughter Chemise, aged 28 months, were shot in a car parked at the curb. Anderson‘s
son Carlos, aged 18 months, was also in the car. He was not shot and survived. A jury
convicted defendants Stanley Bryant, Donald Franklin Smith, and Leroy Wheeler of
various related crimes. Bryant and Wheeler were convicted of four counts of first degree
murder (Pen. Code, § 187, subd. (a))1 and one count of attempted murder (§§ 187 &
664). Smith was convicted of the first degree murder of Armstrong and Brown, second
degree murder of Anderson and Chemise, and the attempted murder of Carlos. The jury
1 Except as noted in footnote 25, post, all further undesignated statutory references
are to the Penal Code.
found the multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)) was
true as to each defendant. The jury was unable to reach verdicts on allegations against a
fourth codefendant, Jon Preston Settle. After a penalty trial, the jury returned verdicts of
death. Motions to modify were denied. (§ 190.4, subd. (e).)2 We affirm the judgments.
I. FACTUAL BACKGROUND
The presentation of guilt phase evidence lasted two and one-half months. It
included the testimony of 121 witnesses and more than 270 exhibits including hundreds
of pages of documents and a number of video and audio tapes. In the penalty phase, 41
witnesses testified over the course of seven days. We present here for background
purposes a synopsis of the significant evidence, generally viewed in the light most
favorable to the verdicts. Additional factual and procedural details necessary to resolve
defendants‘ appellate claims are provided in the pertinent discussion.
A. Guilt Phase
1. Overview
The original charges included a number of noncapital offenses with additional
defendants involved in the Bryant Family drug operation. The court severed and tried the
capital allegations first. The prosecution‘s basic theory was that Bryant directed the
shootings of Armstrong and Brown because Armstrong was a threat to Bryant‘s business.
The prosecution maintained that Smith, Wheeler, and codefendant Settle were underlings
who participated in the murders at Bryant‘s direction. After Armstrong and Brown were
killed, the prosecution asserted, Wheeler shot Ms. Anderson and Chemise and attempted
to murder Carlos to eliminate them as potential witnesses.
2 Imposing the death sentences, the court stayed the determinate sentences as to
each defendant. Settle later pleaded guilty to four counts of voluntary manslaughter and
one count of attempted murder, with the use of a firearm.
2
Smith presented no evidence at the guilt phase. Wheeler testified and admitted
some low-level activity in the drug business, but claimed he was not involved in the
murders. Bryant also admitted he was a member of the organization. He asserted his role
was less significant than the prosecution alleged, and that he had no role in the murders.
2. Prosecution Evidence
In the 1980‘s, Bryant and his older brother Jeff Bryant (Jeff) controlled a large-
scale cocaine operation in the suburbs of Los Angeles. Their organization was known as
―the Family‖ or ―the Bryant Family‖ and had over 100 employees. A number of these
testified at trial about Family operations. Seized records indicated the Family took in
well over $1 million during three months of 1988.
The Family used a number of houses to prepare and sell drugs and process the
money from sales. Typically, the houses were fortified. Windows and doors were
covered and locked, metal gates with electronic locks and blackout screens were erected
at front entrances to create ―sally ports.‖ Someone entering the house would be enclosed
between two locked gates and unable to see farther into the residence. Barricaded or
reinforced locked doors inside blocked access between rooms.
These fortifications were encountered during interdiction operations in 1984 and
1985. Ultimately, police served search warrants at several Family houses. Service of the
warrants required the use of various entry tactics. Sometimes a vehicle resembling a
military tank would break a hole in an exterior wall so officers could enter. As a result of
these investigations, Jeff pleaded guilty to charges of selling cocaine and operating a
house where narcotics were sold. Defendant Bryant pleaded guilty to conspiracy. He
admitted hiring a coconspirator to sell cocaine at a Bryant Family ―rock house‖ on
Wheeler Avenue, the same house where the murders later occurred (hereinafter
sometimes referred to as Wheeler Avenue). Apparently, these events were only a minor
setback; widespread operations continued. When Bryant was released from custody, he
3
ran the street enterprise. Although Jeff remained imprisoned, he was still considered the
overall Family leader. Houses damaged during police raids were repaired, refortified,
and returned to service.
The Family also engaged in ancillary violent activities. As relevant here, in 1982,
Bryant and Jeff hired Andre Armstrong to act as a ―hit man.‖ Armstrong subsequently
shot Reynard Goldman for failing to pay a $50 drug debt. He killed Kenneth Gentry,
who had vandalized another Bryant brother‘s van. Bryant, Jeff, and Armstrong were
charged with the Goldman assault and Gentry murder. After the Family bribed and
threatened witnesses, charges against the Bryant brothers were dropped. Armstrong,
however, was convicted at trial of felony assault and first degree murder. When his
convictions were reversed on appeal, he pleaded guilty to felony assault and voluntary
manslaughter. He was paroled in July 1988.
While Armstrong was in prison, Bryant and other Family employees sent
thousands of dollars to him and his relatives. Several months before Armstrong was
paroled, the Family helped his friend James Brown set up a cocaine operation in
Monterey. Nonetheless, Armstrong remained unhappy with the level of support he had
received. Weeks after meeting Brown in Monterey, Armstrong decided they should
return to Los Angeles. Armstrong told several people, including police officers who had
interviewed him in prison, that he intended to ―squeeze‖ the Bryants for money and part
of their business. He considered them weak, and felt they failed to honor their promise to
prevent his conviction. While in Monterey, Armstrong began an intimate relationship
with Bryant‘s ex-wife, Tannis Curry. These decisions proved ill-advised.
On Friday, August 26, 1988, Brown, Andrew Greer, Elaine Webb, and Loretha
Anderson and her two children moved to Los Angeles. Armstrong and Tannis had gone
there a few days earlier. Bryant had provided an apartment, but it was dirty. Armstrong
wanted Bryant to pay for cleaning before they moved in. On Saturday, the group went to
a pool hall to meet Bryant and complain about the accommodations. On Sunday,
4
Armstrong, Brown, and Greer went to Tannis‘s separate apartment. Armstrong paged
Bryant, then received a call. He told the others they were to meet ―Stan‖ at a Wheeler
Avenue house to pick up $500 and cleaning supplies. Armstrong told Tannis to bring a
pistol, which she placed in her purse.
Before meeting Stan, the group went to the home of Tannis‘s aunt. When they
left, Tannis remained behind. Greer was concerned about the meeting and did not attend.
Anderson decided she and her children would go along to the meeting so they could all
get something to eat afterwards.
Several people near the Wheeler Avenue house heard multiple gunshots at
approximately 5:00 p.m. Shortly thereafter, a tall, thin African-American man emerged,
went to a car parked outside, and shot into the car. He then got in the car and drove
away. One witness identified a photograph of defendant Wheeler as the driver.3 A
witness also saw what might have been a car owned by Bryant leaving the house after the
shooting. Another witness saw a large green car with a driver, front seat passenger, and
two men in the backseat leaning against each other in an unusual way.
Within minutes of the shootings, the victims‘ car was found about seven blocks
away. Inside were the lifeless bodies of Loretha Anderson and Chemise English.
Anderson had been shot several times with both a shotgun and a handgun. Chemise had
been fatally shot in the neck by a handgun at close range. Carlos was also in the car.
While not shot, he was injured by flying glass.
3 Although the witness insisted that the photograph of Wheeler was of the driver of
the victim‘s car, she repeatedly pointed to Bryant when asked if she saw the person in
court. She had testified at the preliminary hearing that she had not been able to ―get a
good i.d.‖ of the driver, and did not identify any defendant as the driver at those earlier
proceedings.
5
Four days later the bodies of Armstrong and Brown were found in roadside brush
approximately five miles from Wheeler Avenue. Armstrong had been shot twice with a
shotgun. A shot to the center of his chest was probably fired from a distance of four feet
or less. A second to his head was apparently fired with the shotgun muzzle almost
touching his skin. He was also shot with a handgun. Brown was shot twice with a
shotgun and twice in the chest with a handgun. The fatal shot was fired into his heart
with the handgun muzzle pressed against him. Evidence at Wheeler Avenue, including
blood patterns, bullet holes, and expended cartridges, indicated that Armstrong and
Brown had been shot in the front entrance sally port. Their bodies were dragged through
the house into the garage.
James Williams, a Bryant Family employee, was present at Wheeler Avenue
before and during the crimes. He started working for the Family at the beginning of
April 1988 and initially worked at Bryant‘s pool hall. His primary duty was to tell
cocaine purchasers where to go to acquire drugs. Williams was quickly promoted to
working at the Wheeler Avenue ―count house.‖ There, money from drug sales was
counted and bundled. Family employees came to the house to pick up their weekly pay.
People wishing to purchase larger quantities of cocaine would also arrange purchases at
Wheeler Avenue.
Williams, defendant Wheeler, and Lamont Gillon normally worked daily
staggered eight-hour shifts at the count house. A fourth employee, Anthony Arceneaux,
would fill in for the other three on their days off. Bryant, who was referred to as ―Chief,‖
regularly visited and gave Williams directions. Williams knew defendant Smith worked
for the Family because he picked up his weekly pay at the house. Williams did not know
Smith‘s role in the organization.
On the day of the murders Williams was working when Bryant arrived around
2:00 p.m. At some point, Bryant had Williams contact Arceneaux and tell him not to
come to work. Bryant moved money along with counting and adding machines, normally
6
kept in the house, into the garage. He also carried a heavy duffle bag from the garage
into a back bedroom. Later, Wheeler and Smith arrived and joined Bryant in the back
room. It was unusual for Wheeler and Smith to be there on a Sunday afternoon. Bryant
also remarked several times that ―Johnny‖ was late. Subsequently, codefendant Jon
Settle, whom Williams had never seen at the house before, arrived and went into the back
room also.
Sometime later, Williams heard a gunshot from the rear of the house. Bryant
emerged and asked how loud a noise the shot had made. Later, Settle came out,
chambered a shotgun round, and returned to the bedroom. Eventually, Bryant, Smith,
and Wheeler came to the front room. Bryant said they were expecting some people and
told Williams what to do when they arrived. After they entered the sally port, Williams
was to release the electronic lock on the outside door so Bryant could leave. When he
had done so, Williams was to go out through the garage to a green car parked in the
driveway and back it into the garage. He would then walk to a nearby bus stop, watching
to see if any neighbors were looking.
Eventually, Williams saw two strangers approach. After they entered the sally
port, Williams unlocked the outer gate so Bryant could leave. As Williams walked back
toward the garage, he heard gunshots and screams. While backing the green car inside,
he saw Wheeler outside with a shotgun. Wheeler approached a car parked at the curb and
Williams heard glass breaking. After parking the green car Williams saw Bryant in the
garage. Bryant told him to leave. While walking to the bus stop, he saw Wheeler driving
the car that had been parked in front of the house. Bryant drove away in his own car.
Smith and Settle left in the green car. Bryant later called Williams and told him not to go
back to the house and not to talk about what had happened.
Several days later, a Family employee told Williams he had been identified.
Williams was told to leave Los Angeles; the Family would cover his expenses. He went
to Pennsylvania and received a $500 wire transfer from a Family employee. Eventually
7
arrested in Harrisburg, he gave several statements about the shootings in exchange for
immunity.
Bryant‘s and Wheeler‘s fingerprints were found in the Wheeler Avenue house.
Bryant‘s prints were found on a portable telephone and on the page of an address book
containing an entry for the alias victim James Brown was using. Expended cartridges
from three different shotguns were found at the house. An expended .45-caliber casing
was also found in a trash can. It had been fired from a handgun later recovered in
Bryant‘s house.
The day after the shootings, Bryant and Wheeler visited Jeff at Donovan State
Prison.
Six days after the murders, Bryant bought a new car using the name of a Family
employee. He traded in his relatively new car, which matched the description of the one
Williams said Bryant had driven to Wheeler Avenue. Examination of the trade-in yielded
positive presumptive tests for the presence of blood at the driver‘s feet.
Bryant told Ladell Player, a drug dealer supplied by the Family, that the police had
been at Wheeler Avenue because ―we had some problems, but we took care of them.‖
Bryant also told Alonzo Smith that, in essence, Brown ―had to go.‖
On September 25, 1988, police officers searched the apartment of Wheeler‘s
girlfriend, and found a handgun consistent with the one used to shoot Loretha Anderson
and her daughter. They also recovered two newspaper articles related to the murders, and
$7,650 in cash hidden in the ceiling.
On September 29, 1988, police searched Bryant‘s house. They found numerous
items related to Family business, the handgun that had fired the expended cartridge found
at Wheeler Avenue, several keys to that house, and papers with telephone numbers for
James Brown and relatives of Andre Armstrong.
Extensive telephone records suggested the following. Bryant and Smith talked to
Armstrong or his relatives after he was released from prison. Before the murders Bryant
8
and Smith exchanged numerous phone calls, Bryant and Wheeler called each other
repeatedly, and each defendant made several calls to Wheeler Avenue.
In an effort to establish an apparent additional motive for Bryant to murder Andre
Armstrong, and to further tie Smith to the murders, the prosecution introduced evidence
of two attacks on one Keith Curry. When attacked, Curry, like victim Andre Armstrong,
had been involved in an intimate relationship with Bryant‘s ex-wife Tannis. He also was
friendly with defendant Smith. The prosecution asserted that Bryant was jealous of
Armstrong‘s affair. Because Smith and Armstrong were friends, Smith‘s presence at
Wheeler Avenue was designed to place Armstrong at ease before the shooting.
Curry testified that he began dating Tannis when her relationship with Bryant was
unstable. Tannis moved into an apartment where Curry typically spent three or four
nights a week. On the morning of March 16, 1986, Curry left the apartment and his car
exploded. A bomb was triggered by the car‘s movement. Curry was slightly injured.
Tannis told an acquaintance that Bryant said he put the bomb in Curry‘s car and ―would
do it again . . . until [Curry] was dead.‖
Tannis divorced Bryant and married Curry. One evening Smith and Curry were
engaged in small talk when Smith suddenly shot Curry in the neck, paralyzing him.
Smith was arrested later that night and police found a revolver and what appeared to be
rock cocaine packaged for sale in his car. He was later released on bail after several
properties connected to the Family were posted as security.
3. Wheeler’s Evidence
Wheeler testified he joined the Family in early 1988. He began selling drugs for
Eddie Barber, who ran a semiautonomous ―crew.‖ Later, at Barber‘s direction, Wheeler
started working at Wheeler Avenue. James Williams ran Wheeler Avenue, and served as
an ―enforcer.‖
9
On the day of the murders, Wheeler completed his shift at 7:00 a.m. then spent the
day with his girlfriend visiting their families in Los Angeles. At 3:00 that afternoon and
again at 10:45 that evening, he received a page. In response, Wheeler called Williams
who told him not to come to work.
Eddie Barber had previously instructed Wheeler to visit Jeff in prison the next day
to report about drug operations. Wheeler was unaware of the shootings until he heard
about them from Bryant, who was also visiting Jeff. If Wheeler had been involved in the
murders he would not have visited Jeff the next day because doing so would have
connected Jeff to the murders. If he had been involved, he would have fled, using money
he had saved from his drug dealing.
All Wheeler knew about Bryant‘s role in the Family was he arranged bail when
members were arrested. He had not met codefendant Jon Settle before court proceedings
began.
Wheeler‘s girlfriend testified that she did not specifically remember what she and
Wheeler did on the day of the shootings; they customarily visited family on Sundays.
4. Smith’s Evidence
Smith offered no evidence at the guilt phase of the trial.
5. Bryant’s Evidence
Bryant testified. While admitting his involvement in the drug business, he denied
or attempted to refute evidence connecting him to the murders. He claimed he worked
for his brother until Jeff went to prison. Bryant then turned the drug business over to
William Settle, who was running things when the murders occurred. William Settle was
the brother of codefendant Jon Settle. Bryant was never in charge. William Settle paid
Bryant for the use of his pool hall in connection with the drug business. Bryant also
worked at Wheeler Avenue counting money. He ―probably‖ had been there every day in
1988. However, he was not there the day of the murders and never subsequently
10
returned. He had never been there with Williams. Bryant‘s activities were all done at
someone else‘s direction.
Bryant did not arrange a meeting with Armstrong at Wheeler Avenue. He spent
most of the day of the murders at home. He denied that he drove a car like the one seen
leaving the house. He never spoke with Ladell Player about what had happened at the
house. He visited Jeff in prison the day after the murders to get advice about how to end
his association with William Settle.
Bryant was uninvolved with the attacks on Kenneth Gentry, Reynard Goldman,
and Keith Curry. He did not know Gentry, and did not hire Armstrong to kill him. After
they were arrested for the Gentry murder, Armstrong told Bryant he shot Gentry because
they had both been dating the same woman. Armstrong had decided to preemptively kill
Gentry before Gentry acted against him. Bryant had not threatened Reynard Goldman
about any drug debt. He denied knowing anything about the attempts to bribe witnesses
in the Gentry and Goldman shootings. He had nothing to do with the car bombing of
Keith Curry, and never told Tannis that he wanted to kill him.
Through the testimony of investigating officers, Bryant presented various
inconsistencies between James Williams‘s statements to the police and his testimony at
trial.
6. Codefendant Settle’s Evidence
Codefendant Settle testified and presented other evidence that he was an
automobile mechanic and was only peripherally connected to the Family drug business
through his brothers William and Frank. He did not participate in the murders, but did
sell Bryant a green 1970 Pontiac Bonneville on the day of the shootings. According to
Settle, defendant Wheeler drove Settle‘s brother Frank to pay for the Bonneville and to
pick up another car Settle had repaired for Bryant. Frank later told Settle that the
Bonneville had been used in the murders.
11
B. Penalty Phase
1. Evidence Against Bryant
Bryant had twice hired a contract killer. Walter Compton testified that Bryant
offered him $10,000 to kill Sofinia Newsom, a cooperating witness in the Kenneth
Gentry murder prosecution. Jeff gave Compton a handgun and getaway car. Compton
followed Newsom for several days, but ultimately decided against the murder. He
surrendered to the police because he feared going to prison or being killed by the Bryants.
On March 19, 1985, Clarence Johnson was shot several times while sitting in
Bryant‘s pickup truck outside the pool hall. Johnson survived; David Hodnett pleaded
guilty to the attempted murder. Although Hodnett testified that he shot Johnson for
personal reasons, he had previously told police that Bryant and Jeff had hired him to kill
Johnson. Hodnett was supposed to testify against the Bryants in the Johnson case. He
told the investigating officer he instead pleaded guilty during the preliminary hearing and
stopped cooperating in order to protect himself and his family from retaliation.
2. Evidence Against Smith
While in custody for this case, Smith was twice found in possession of prisoner-
made weapons. He also assaulted another inmate. Someone held the victim while Smith
punched him in the face and upper torso. After deputies separated the inmates, it was
discovered that the victim also had three puncture wounds in his back. Two metal shanks
were found in a nearby toilet.
Smith had committed a residential burglary on July 30, 1982. The 60-year-old
condominium owner came home and found a man in her bedroom. She did not
remember what happened next, but was apparently knocked unconscious, suffering a
head wound that required 20 stitches. The victim‘s daughter saw Smith leaving the
residence. He was arrested one block away in possession of the victim‘s jewelry.
12
Documentary evidence established Smith had been convicted of assaulting a
woman with intent to commit great bodily injury, attempting to murder Keith Curry, and
transporting cocaine.
3. Evidence Against Wheeler
Wheeler was adjudged a juvenile ward in 1985 after attempting a robbery. While
in custody, Wheeler assaulted another ward with a chair.
After his release he argued with one Brian Brown, ultimately pointing a handgun
at Brown‘s head for several seconds then walking away.
While awaiting trial, Wheeler was found to have a four-inch shank hidden in his
underwear. He pleaded guilty to possessing a weapon in jail. He twice attacked other jail
inmates.
One night after lockdown, Wheeler and another inmate argued over a card game.
The inmate was locked in his cell and Wheeler, a trustee for the tier, was outside.
Wheeler threw a bucket of water into the cell then told deputies he needed to clean up a
spill. When the cell door was opened he attacked the inmate with a shank. He also
swung the shank at a responding deputy, cutting his arm. He ignored repeated orders to
drop his weapon until deputies threatened to use a Taser gun to subdue him. The inmate
was seriously injured and required extended hospitalization.
4. Bryant’s Evidence in Mitigation
Bryant‘s former mother-in-law, sister, and two friends testified to his character.
He was close to his young daughter and loved by all his relatives. During his divorce
from Tannis, Bryant arranged for his daughter to see a therapist. The therapist testified
that Bryant was a caring and loving parent.
Bryant often gave money to people in the community. He paid for funeral costs
and raised funds for youth baseball teams. Many community members liked him.
13
Bryant‘s sister testified that he encouraged her son to attend school and avoid
trouble. She believed Bryant had made ―spiritual progress‖ since his arrest.
The witnesses considered Bryant a basically good person who did not deserve the
death penalty.
5. Smith’s Evidence in Mitigation
Smith‘s sister testified she and Smith did not live with their parents until they were
six and four years old, having previously lived with their grandparents. Their parents
showed the children no affection. The father was in the military and seldom present.
When at home, he frequently beat Smith; their mother did not intervene. Smith saw his
father molest his sister. The parents eventually separated and the children returned to
their grandparents. Smith‘s sister had no positive recollections of life with the parents.
Clinical psychologist Donald Hoagland testified about Smith‘s neurocognitive and
psychological assessments. Smith scored an 84 on an intelligence test, indicating
―subnormal‖ intelligence. His school records suggested attention deficit hyperactivity
disorder. Hoagland diagnosed Smith with dyslexia and various cognitive deficits. Smith
had a serious and chronic mental disorder with ―the potential to be psychotic under
adverse conditions.‖ He was chronically depressed and anxious, had a ―seriously
impaired self-image,‖ was socially and emotionally withdrawn, impulsive, and quick to
anger. Smith‘s pattern of psychopathology was common in those with particularly
adverse family backgrounds.
6. Wheeler’s Evidence in Mitigation
A number of Wheeler‘s relatives testified about his chaotic and abusive childhood.
Wheeler‘s mother was a drug-addicted runaway when she met Leroy Wheeler, Sr. She
was 17 and he 19 at Wheeler‘s birth. When Wheeler‘s brother was born about two years
later his father began living apart from the family. Wheeler‘s mother could not provide a
14
stable home and moved frequently. The father visited occasionally and the children
witnessed violent fights. When Wheeler was six years old his father left for good.
Wheeler‘s mother had frequent associations with other men, and eventually
became involved with Charlie Luster. Luster was able to provide some stability but also
physically abused Wheeler. Luster was a self-described ―hustler‖ and ―compulsive
gambler,‖ who was imprisoned part of the time during his relationship with Wheeler‘s
mother. Wheeler‘s mother died the year of the murders.
When Wheeler was 12 or 13 years old, he began staying at relatives‘ homes. At
age 15, he moved out on his own. Soon thereafter, he attempted a robbery and was sent
to the Youth Authority. A counselor testified that Wheeler caused no major problems
and was a good worker and student. He was unaffiliated with any gang.
One of Wheeler‘s aunts testified that when he stayed at her house, he got along
well with other children and attended school. Another aunt described him as smart,
industrious, and entrepreneurial. Wheeler gave his brother advice and assistance.
Wheeler‘s relatives, as well as Charlie Luster, hoped the jury would spare his life.
Clinical psychologist Adrienne Davis evaluated Wheeler. In her opinion, he was
intelligent, articulate, and capable of doing well, especially in a structured environment
with well-defined expectations. There were, however, some indications that he could be
overly energetic and have difficulty behaving constructively. She believed that
Wheeler‘s history of transient living, abandonment, neglect, and abuse led him to seek
out relationships with older men who would protect him and provide a secure
environment. This, in turn, led to his criminal activities.
II. PRETRIAL ISSUES
Before turning to defendants‘ claims, we discuss two preliminary matters. First, in
their briefs, each defendant makes a blanket statement that he joins in the claims raised
by each of the others, to the extent that the claims are not in some manner adverse to their
own interest. It is questionable whether such cursory and unfocused statements are
15
sufficient under the California Rules of Court, rules 8.630(a) and 8.200(a)(5), to permit
joinder of appellate claims in a multiple defendant capital appeal. Each defendant has
filed opening briefs of several hundred pages raising numerous claims of error from all
stages of the proceedings. In these circumstances, there are likely to be instances when a
particular claim simply does not apply to all defendants, or when not all defendants
pursued that issue during the trial proceedings to preserve the issue for appeal.
Purporting to join in a claim when no colorable argument can be made that the claim is
applicable and preserved is akin to raising a frivolous claim in the first instance. (Cf. In
re Marriage of Flaherty (1982) 31 Cal. 3d 637, 650.)
It is not the task of the opposing party or this court to sort out what claims from
the scores presented here are nonfrivolous as to the other defendants who did not identify
with particularity the specific claims they wished to join. Clearly, neither the Attorney
General nor this court is required to divine which aspects of a claim might be adverse to a
particular defendant, rendering him unwilling to join the particular claim at issue.
Appellate counsel for the party purporting to join some or all of the claims raised by
another are obligated to thoughtfully assess whether such joinder is proper as to the
specific claims and, if necessary, to provide particularized argument in support of his or
her client‘s ability to seek relief on that ground. If a party‘s briefs do not provide legal
argument and citation to authority on each point raised, ― ‗the court may treat it as
waived, and pass it without consideration. [Citations.]‘ ‖ (People v. Stanley (1995) 10
Cal. 4th 764, 793.) ―Joinder may be broadly permitted [citation], but each appellant has
the burden of demonstrating error and prejudice [citations].‖ (People v. Nero (2010) 181
Cal. App. 4th 504, 510, fn. 11.) We strongly disapprove of this seriously improper tactic.
Nonetheless, we will treat this case as if defendants complied with the Rules of
Court regarding the joinder of claims. We take this step solely to avoid further delay.
Counsel in future cases should be on clear notice that we will not be inclined to do so
going forward. We will not, of course, assume that each defendant has standing to raise
16
each and every claim raised in the briefs or that he preserved a claim for appeal by taking
appropriate and timely action below.
Second, as to many claims defendants allege for the first time that the error
complained of violated their federal constitutional rights. To the extent that in doing so
defendants have raised only a new constitutional ―gloss‖ on claims preserved below, that
new aspect of the claims is not forfeited. However, ―[n]o separate constitutional
discussion is required, or provided, when rejection of a claim on the merits necessarily
leads to rejection of [the] constitutional theory . . . .‖ (People v. Scott (2011) 52 Cal. 4th
452, 487, fn. 29 (Scott); see also People v. Boyer (2006) 38 Cal. 4th 412, 441, fn.17
(Boyer).)
A. Denial of Bryant’s Motion to Suppress Evidence
Bryant appeals the denial of his motion to suppress evidence seized during the
warrantless search of the Wheeler Avenue house and the search of his own residence
pursuant to a warrant. The trial court did not err. Bryant ultimately failed to present any
competent evidence that he had a legitimate expectation of privacy in Wheeler Avenue
when it was searched. The warrant authorizing the search of Bryant‘s home was valid.
To the extent Smith and Wheeler intended to join this claim, the claim is forfeited and
meritless as to them. They did not join in the motions below, nor have they alleged they
had any expectation of privacy in either of the places searched.
― ‗In ruling on a motion to suppress, the trial court must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether the law as
applied has been violated. We review the court‘s resolution of the factual inquiry under
the deferential substantial-evidence standard. The ruling on whether the applicable law
applies to the facts is a mixed question of law and fact that is subject to independent
review.‘ [Citation.] On appeal we consider the correctness of the trial court‘s ruling
17
itself, not the correctness of the trial court‘s reasons for reaching its decision.
[Citations.]‖ (People v. Letner and Tobin (2010) 50 Cal. 4th 99, 145 (Letner).)
―Pursuant to article I, section 28, of the California Constitution, a trial court may
exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the
federal Constitution.‖ (People v. Banks (1993) 6 Cal. 4th 926, 934.) The Fourth
Amendment to the federal Constitution prohibits unreasonable searches and seizures.
(See Banks, at p. 934.)
1. Wheeler Avenue
In order to challenge a search or seizure, a defendant must allege not only that the
police action was unreasonable, but also that the defendant‘s personal interests were
violated. ―The ‗capacity to claim the protection of the Fourth Amendment depends . . .
upon whether the person . . . has a legitimate expectation of privacy in the invaded place.‘
(Rakas v. Illinois (1978) 439 U.S. 128, 143.) A defendant has the burden to establish a
legitimate expectation of privacy in the place searched. [Citations.]‖ (People v. Rivera
(2007) 41 Cal. 4th 304, 308, fn. 1.)
In considering this question, courts look to the totality of the circumstances.
Appropriate factors include ― ‗ ― ‗whether the defendant has a [property or] possessory
interest in the thing seized or the place searched; whether he has the right to exclude
others from that place; whether he has exhibited a subjective expectation that it would
remain free from governmental invasion, whether he took normal precautions to maintain
his privacy and whether he was legitimately on the premises.‘ ‖ ‘ [Citation.]‖ (People v.
Roybal (1998) 19 Cal. 4th 481, 507.) Essentially, a legitimate expectation of privacy is
one ―society is prepared to recognize as reasonable.‖ (Minnesota v. Olson (1990) 495
U.S. 91, 97.)
Initially, Bryant points out that the prosecution presented evidence in the
preliminary hearings to establish that he was a leader of the Bryant Family drug
18
organization that operated Wheeler Avenue. Thus, he urges, the prosecution conceded he
had a legitimate expectation of privacy there. Accordingly, he contends, the trial court‘s
contrary finding was erroneous and the Attorney General is estopped from challenging
the issue on appeal. Bryant provides no authority for this novel assertion. The
circumstance that Bryant ran the organization using Wheeler Avenue as a base of
operations does not mean he had a legitimate expectation of privacy in the house when it
was searched. As the high court observed in analogous circumstances, its precedents
―clearly establish that a prosecutor may simultaneously maintain that a defendant
criminally possessed [a seized item], but was not subject to a Fourth Amendment
deprivation, without legal contradiction.‖ (United States v. Salvucci (1980) 448 U.S. 83,
90.)
At the suppression hearing, Bryant tried to establish his expectation of privacy in
Wheeler Avenue without testifying on the subject himself. He sought to call Williams as
a witness and to introduce the ―expert testimony‖ of Detective Vojtecky. He also
suggested testimony by the prosecutor. The court denied the request to compel Williams,
who was in a witness protection program, to appear. The prosecutor did suggest the
possibility of stipulating to certain facts that Williams had testified to at the preliminary
hearings. The parties, however, never actually entered into a stipulation. In fact,
Bryant‘s counsel explicitly rejected the idea of preparing a stipulation. As to the
testimony of Detective Vojtecky, the court excluded most of it, ruling the testimony was
irrelevant hearsay. It also rejected the suggestion that the prosecutor testify for
essentially the same reason. The prosecutor could offer no relevant testimony about
Bryant‘s privacy expectations. Bryant did not present any evidence, such as legal
documents, to show he personally held some property interest in Wheeler Avenue. He
chose to testify at the hearing, but limited his testimony to facts about his residence on
Judd Street. Accordingly, the court denied the motion to suppress, finding that Bryant
had established no reasonable expectation of privacy in Wheeler Avenue.
19
On appeal, Bryant does not assert that the evidence actually before the trial court
compelled a different result regarding his expectation of privacy. As noted, no evidence
on the subject was admitted. His recitation of the preliminary hearing and subsequent
trial testimony regarding Bryant‘s connections to and the search of Wheeler Avenue is
irrelevant. That evidence was not before the trial court when it ruled on the pretrial
motion. (People v. Rundle (2008) 43 Cal. 4th 76, 132 (Rundle).)
Bryant does not challenge the exclusion of Vojtecky‘s testimony, except by way
of conclusory assertions in his reply brief that the court‘s ruling was erroneous and
unconstitutional. He makes absolutely no assertion that the ruling excluding the
prosecutor‘s testimony was erroneous. He has therefore waived these issues. (Stanley,
supra, 10 Cal.4th at p. 793.) In any event, there is no support for the conclusion that
either of these witnesses could have provided admissible testimony. Clearly, neither
witness had personal knowledge of Bryant‘s expectations of privacy. Bryant suggested at
the hearing that they might testify as expert witnesses about the Bryant Family. It is true
that experts may permissibly base an opinion on hearsay or other evidence that might not
be directly admissible, but a trial court nonetheless has discretion to ― ‗ ― exclude from an
expert‘s testimony any hearsay matter whose irrelevance, unreliability, or potential for
prejudice outweighs its proper probative value.‖ ‘ ‖ (People v. Catlin (2001) 26 Cal. 4th
81, 137.) ― ‗[P]rejudice may arise if, ― ‗under the guise of reasons,‘ ‖ the expert‘s
detailed explanation ― ‗[brings] before [the trier of fact] incompetent hearsay
evidence,‖ ‘ ‖ and ― ‗disputes in this area must generally be left to the trial court‘s sound
judgment.‘ ‖ (Ibid.) Moreover, Bryant never clearly articulated how any proper opinion
testimony could have assisted his cause. There is no reason to disturb the court‘s exercise
of its judgment that these witnesses could offer no competent evidence on Bryant‘s
expectations of privacy in Wheeler Avenue.
20
Thus, the remaining focus of Bryant‘s claim is that the court erroneously declined
to compel Williams to appear. He urges the ruling violated his constitutional right to
―compulsory process‖ preventing him from carrying his burden. The argument fails.
The Sixth Amendment provides that ―[i]n all criminal prosecutions,‖ the defendant
has the right ―to have compulsory process for obtaining witnesses in his favor.‖ (U.S.
Const., 6th Amend.) This right is applicable to the states under the Fourteenth
Amendment‘s due process clause. (Washington v. Texas (1967) 388 U.S. 14, 19.) Our
state Constitution has a similar provision. (Cal. Const., art. I, § 15 [a criminal defendant
has the right ―to compel attendance of witnesses in the defendant‘s behalf‖].) We will
assume without deciding that the compulsory process right applies to a request to compel
a witness to appear at a suppression hearing. The procedural context of Bryant‘s clam is
relevant to determine whether his rights were violated.
A defendant claiming a denial of compulsory process must plausibly show that the
missing testimony ―would have been both material and favorable to his defense.‖
(United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867; see also In re Martin
(1987) 44 Cal. 3d 1, 32.) Moreover, the constitutional right to compulsory process is not
―an unfettered right to offer testimony‖ that ―automatically and invariably outweigh[s]
countervailing public interests.‖ (Taylor v. Illinois (1988) 484 U.S. 400, 410, 414.) A
defendant claiming a violation of this right must establish both that he was deprived of
the opportunity to present material and favorable evidence and that the deprivation was
arbitrary or disproportionate to any legitimate purpose. (See Holmes v. South Carolina
(2006) 547 U.S. 319, 324–325.) At bottom, ― ‗[i]n order to declare a denial of [due
process based on the denial of compulsory process] we must find that the absence of . . .
fairness fatally infected the trial; the acts complained of must be of such quality as
necessarily prevents a fair trial.‘ ‖ (Valenzuela-Bernal, p. 872.)
As Bryant acknowledges in his brief, Williams was not the only witness who
could have testified on this subject. Bryant himself could have done so. A defendant‘s
21
testimony at a suppression hearing cannot ―be admitted against him at trial on the issue of
guilt unless he makes no objection . . .‖ (Simmons v. United States (1968) 390 U.S. 377,
394), and, as explained in People v. Lightsey (2012) 54 Cal. 4th 668, 717, the due process
right to present a defense does not obligate a trial court to admit proffered evidence with
the effect of allowing the defendant to testify without subjecting himself to cross-
examination.
Bryant was, of course, free to decline to testify at the suppression hearing, but his
decision against doing so did not render the hearing fundamentally unfair. Although
― ‗ ―[t]he criminal process . . . is replete with situations requiring the ‗making of difficult
judgments‘ as to which course to follow . . . [and] . . . a defendant may have a right, even
of constitutional dimensions, to follow whichever course he chooses, the Constitution
does not by that token always forbid requiring him to choose.‖ ‘ ‖ (Letner, supra, 50
Cal.4th at p. 153, citation omitted.) Further, there was no suggestion that Williams could
have provided important information that Bryant could not have. Indeed, as the court
here mentioned and some other courts have recognized, given the subjective portion of
the expectation of privacy analysis, it is questionable whether a defendant could carry his
burden without presenting his own testimony. (See, e.g., U.S. v. Mendoza (7th Cir. 2006)
438 F.3d 792, 795 [― ‗without an affidavit or testimony from the defendant, it is almost
impossible to find a privacy interest‘ ‖].) Williams‘s testimony, therefore was an
arguably inferior substitute for Bryant‘s.
The trial court reasonably ruled that Bryant had not established a need for
Williams‘s testimony outweighing the administrative burden and potential safety concern
in removing Williams from the safe location where he was housed. In the past the Bryant
Family had taken steps to kill and influence witnesses against it. The weighing of
Bryant‘s interests against these concerns was neither arbitrary nor disproportionate. In
sum, the denial of Bryant‘s request to compel Williams‘s testimony did not prevent a
fundamentally fair hearing.
22
Bryant ultimately presented no competent evidence showing he had an expectation
of privacy in Wheeler Avenue. On this deficient record the trial court clearly did not err
in denying the suppression motion.
2. The Judd Street House
The trial court found Bryant had established a legitimate expectation of privacy in
his home on Judd Street. Bryant contends the affidavit supporting the warrant did not
establish probable cause. Moreover, any likelihood that evidence would have been found
there had grown stale by the time the warrant was served a month after the murders. The
court properly rejected these challenges.
The search warrant affiant was the initial murder scene detective. The affidavit
encompasses 35 typed pages. It incorporates by reference nine multipage exhibits. Inter
alia, the affidavit chronicles observations made at the murder scene, witness statements,
and discovery of the victims‘ bodies. The blood, human tissue, remains, and evidence of
gunshots at both Wheeler Avenue and the body recovery scenes are described in detail.
The affidavit sets out the relationship between victim Andre Armstrong and the Bryants.
It relates the drug interdiction incidents at Wheeler Avenue and the subsequent repairs
made there.
Jeff Bryant is the listed owner of Wheeler Avenue. His leadership of the Family
and its operations and multiple criminal activities is extensively recounted. The affidavit
states that while Jeff was in prison defendant ran the drug business, implementing Jeff‘s
directions. Information from multiple sources recounting people and activity at Wheeler
Avenue is provided along with background information about Bryant, the victims, and
others identified during the investigation. Largely paralleling the facts adduced at trial,
the affidavit recounts details about the shootings of Gentry and Goldman, Armstrong‘s
intention to ―squeeze‖ the Family, the trip from Monterey to Los Angeles, the dispute
23
over the dirty apartment, Armstrong‘s affair with Tannis, the operations at Wheeler
Avenue, and Bryant‘s activities there.
Particularly with regard to the staleness question, the affidavit recites that guns are
valuable and difficult to obtain, particularly by ex-convicts and parolees. Suspects often
retain guns along with ammunition, documents, and gun-related equipment after a crime
is committed. Blood is difficult to remove from clothing and other fabrics. Forensic
analysis of such items is frequently successful in linking suspects to a victim or scene.
The affiant relates his belief that these kinds of items, along with documents,
address books, photographs, and clothing could be found at the locations or in the
automobiles described. Accordingly, as the request pertained to Bryant, the application
was made for authorization to search his home, a car, and the pool hall for a variety of
items specifically listed.
―Probable cause sufficient for issuance of a warrant requires a showing that makes
it ‗ ―substantially probable that there is specific property lawfully subject to seizure
presently located in the particular place for which the warrant is sought.‖ ‘ [Citations.]
That showing must appear in the affidavit offered in support of the warrant. [Citation.]‖
(People v. Carrington (2009) 47 Cal. 4th 145, 161 (Carrington).) ―The showing required
in order to establish probable cause is less than a preponderance of the evidence or even a
prima facie case.‖ (Id. at p. 163.) The question of staleness concerns whether facts
supporting the warrant application establish it is substantially probable the evidence
sought will still be at the location at the time of the search. ―No bright-line rule defines
the point at which information is considered stale. [Citation.] Rather, ‗the question of
staleness depends on the facts of each case.‘ [Citation.] ‗If circumstances would justify a
person of ordinary prudence to conclude that an activity had continued to the present
time, then the passage of time will not render the information stale.‘ ‖ (Id. at pp. 163-
164.)
24
The affidavit clearly established probable cause to believe Bryant was involved in
the murders, and he does not argue otherwise. Contrary to his claim, there is ample
support for a finding of probable cause to search the Judd Street house. The affidavit is
extensive and detailed. It demonstrates a substantial basis to believe that firearms, blood
evidence, and other items of evidentiary value would be found at Bryant‘s home.
Moreover, based on ― ‗ ―the nature of the crimes and the items sought, a magistrate
[could] reasonably conclude that a suspect‘s residence is a logical place to look for
specific incriminating items.‖ ‘ ‖ (Carrington, supra, 47 Cal.4th at p. 163.) The trial
court properly found the affidavit provided timely and sufficient probable cause.
Bryant also contends the warrant was unconstitutionally overbroad because it
authorized the police officers to seize ―[a]ny articles or personal property tending to
establish the identity of persons who have dominion and control over the premises.‖
―Whether a warrant‘s description of property to be seized is sufficiently particular is a
question of law subject to independent review by an appellate court. [Citation.] In
considering whether a warrant is sufficiently particular, courts consider the purpose of the
warrant, the nature of the items sought, and ‗the total circumstances surrounding the
case.‘ [Citation.] A warrant that permits a search broad in scope may be appropriate
under some circumstances, and the warrant‘s language must be read in context and with
common sense.‖ (People v. Eubanks (2011) 53 Cal. 4th 110, 133-134.) We recently
rejected a similar claim in Eubanks. As in that case, the warrant here was sufficiently
particularized under the circumstances. At the time the warrant was requested, police
could not have realistically described the personal property with any greater particularity,
and it was necessary to establish Bryant‘s control over any evidence seized. (See id. at
pp. 134-135; People v. Nicolaus (1991) 54 Cal. 3d 551, 575.)
25
B. Denial of Bryant’s Motion for Pretrial Hearing Concerning Admission of
Other Crimes Evidence
The trial in this case began in late January 1995. In September 1992 Bryant had
made a great many pretrial motions, including a request for a hearing on the admissibility
of any uncharged crimes evidence to be offered under section 1101, subdivision (b), of
the Evidence Code. The trial court held no such hearing. Bryant contends the court‘s
failure to do so violated his statutory rights under Evidence Code sections 402 and 403,4
and his constitutional right to due process. The argument fails. To the extent Smith and
Wheeler intended to join this claim, it is forfeited because they did not join the motion
below, and, in any event, it is equally meritless as to them.
Bryant acknowledges the record does not disclose whether the court ever ruled on
the request, either when it was initially made, or shortly before the trial actually began.
Bryant‘s failure to secure a ruling on his motion forfeits any appellate claim of error.
Here, there is simply no ruling for this court to review. Even if Bryant could demonstrate
the motion was denied, there was no error. Bryant points to no authority establishing that
the court must conduct a pretrial hearing on the admissibility of anticipated evidence,
much less do so years before the trial starts. A trial court is not required in all cases to
conduct a ― ‗preliminary inquiry‘ ‖ regarding the sufficiency of proffered other crimes
4 Evidence Code section 402, subdivision (b), provides in relevant part that ―[t]he
court may hear and determine the question of the admissibility of evidence out of the
presence or hearing of the jury . . . .‖ (Italics added.)
Evidence Code section 403, subdivision (a)(1), provides in relevant part that when
the ―relevance of proffered evidence depends on the existence‖ of foundational facts,
―[t]he proponent of the proffered evidence has the burden of producing evidence as to the
existence of the preliminary fact, and the proffered evidence is inadmissible unless the
court finds that there is evidence sufficient to sustain a finding of the existence of the
preliminary fact.‖ (See also Evid. Code, § 405 [addressing the trial court‘s duty to
evaluate preliminary facts related to evidentiary rules of exclusion]; People v. Cottone
(2013) 57 Cal. 4th 269, 282-287 [discussing the distinction between Evid. Code §§ 403
and 405].)
26
evidence. (People v. Clair (1992) 2 Cal. 4th 629, 677-678.) During trial the court ruled
on Bryant‘s numerous objections to specific evidence. We reject the notion that asserted
errors in those rulings somehow give rise to a retroactive violation of Bryant‘s rights
based on the absence of an earlier pretrial hearing.5
C. Denial of Defendants’ Motions to Recuse the Los Angeles County District
Attorney’s Office
During pretrial proceedings before severance of the capital offenses and
defendants, the court granted a motion to recuse the entire Los Angeles County District
Attorney‘s Office (LADA). The Attorney General sought review and the Court of
Appeal reversed for abuse of discretion. Bryant contends that permitting the LADA to
prosecute him violated his statutory rights under section 1424 and his rights under the
state and federal Constitutions. We assume Smith and Wheeler have properly joined in
this claim. Defendants establish no statutory or constitutional error.
1. Background
Recusal was sought based on two separate pretrial events. First, during a pretrial
writ proceeding, the lead prosecutor asserted that Bryant Family employees had
―infiltrated‖ the district attorney‘s office. The defense had not been provided with
discovery on that subject. Second, the prosecution delayed disclosing unredacted
interview notes of a deputy district attorney. The notes expressed the deputy‘s belief that
a police investigator and the lead prosecutor had questioned a witness in a way that
affected her recollections and her testimony at a preliminary hearing. This witness
ultimately did not testify at trial.
5 We discuss, post, defendants‘ separate challenges to the court‘s rulings admitting
various items of evidence.
27
In addressing the infiltration issue, the trial court conducted a series of in camera
ex parte meetings with LADA personnel and later took testimony in open court. The
court found no infiltration by the Family and denied the motion to recuse.
As to the interview notes, the prosecution had provided redacted copies of the
notes that omitted the prosecutor‘s concerns. The fact that the notes had been redacted
was not apparent from these copies. The prosecution later requested in camera review of
the complete notes. It sought a ruling on whether the previously redacted portions
constituted privileged work product. The court declined to undertake that review and the
prosecution produced the unredacted copies. In light of this delayed disclosure,
defendants renewed their recusal motion.
The trial court heard testimony from a number of LADA supervisors and line
deputies. There was a dispute among the prosecutors whether the witness questioning
had been improper. The court ultimately granted the recusal motion, finding that there
had been ―an intentional, deliberate holding back of evidence,‖ and that essentially all the
high-level supervisors in the office had been involved. Part of the trial court‘s concern
was that during its review of the infiltration issue the court had asked the prosecutors
whether there was any other information that it should know. No one had mentioned the
notes or the internal conflict.
The Attorney General appealed. (See § 1424, subd. (a)(1).) The Court of Appeal
concluded that the failure to disclose the complete notes did not support recusal of the
entire office. We denied defendants‘ petitions for review.
The LADA removed from the case the lead prosecutor who had made the
infiltration assertion. The prosecutor who wrote the notes about the interview had
previously been removed and the witness was not called at trial.
28
2. Applicable Law
Section 1424 provides, in relevant part, that a motion to recuse a prosecutor ―may
not be granted unless the evidence shows that a conflict of interest exists that would
render it unlikely that the defendant would receive a fair trial.‖ (§ 1424, subd. (a)(1).)
The statute provides a two-part test: (1) whether there is a conflict of interest, and (2)
whether the conflict is so severe as to disqualify the district attorney from acting.
(Haraguchi v. Superior Court (2008) 43 Cal. 4th 706, 711.) Recusal under section 1424
requires ―a showing of a real, not merely apparent, potential for unfair treatment, and
further requires that that potential ‗rise to the level of a likelihood of unfairness.‘
[Citation.] Although the statute refers to a ‗fair trial,‘ we have recognized that many of
the prosecutor‘s critical discretionary choices are made before or after trial and have
hence interpreted section 1424 as requiring recusal on a showing of a conflict of interest
‗ ―so grave as to render it unlikely that defendant will receive fair treatment during all
portions of the criminal proceedings.‖ ‘ [Citation.]‖ (People v. Vasquez (2006) 39
Cal. 4th 47, 56 (Vasquez).) If a defendant seeks to recuse an entire office, the record must
demonstrate ―that the conduct of any deputy district attorney assigned to the case, or of
the office as a whole, would likely be influenced by the personal interest of the district
attorney or an employee.‖ (Id. at p. 57.)
As a constitutional matter, we acknowledged in Vasquez that ―[n]either this court
nor the United States Supreme Court has delineated the limitations due process places on
prosecutorial conflicts of interest.‖ (Vasquez, supra, 39 Cal.4th at p. 60.) Indeed, ―[a]s
. . . prosecutors [cannot] completely avoid personal influences on their decisions, to
constitutionalize the myriad distinctions and judgments involved in identifying those
personal connections that require a . . . prosecutor‘s recusal might be unwise, if not
impossible. The high court‘s approach to judicial conflicts generally leaves that line-
drawing process to state disqualification and disciplinary law, with ‗only the most
extreme of cases‘ being recognized as constitutional violations. [Citation.] [¶] To show
29
a due process violation arising from a prosecutor’s conflicting interest should be more
difficult than from a judge‘s, for the ‗rigid requirements‘ of adjudicative neutrality . . . do
not apply to prosecutors.‖ (Id. at p. 64, italics added.) In Vasquez, we concluded the
defendants had failed to establish a violation of due process when the prosecutors‘
conflicts did not arise from ―a direct, substantial interest in the outcome or conduct of the
case separate from their proper interest in seeing justice done,‖ and any prosecutorial
conflict that existed was not ― ‗so severe as to deprive [defendants] of fundamental
fairness in a manner ―shocking to the universal sense of justice.‖ ‘ ‖ (Id. at pp. 64-65.)
3. Discussion
The Attorney General initially contends that review of the recusal issue is partially
precluded by the law of the case doctrine.6 Not so. The Court of Appeal determined that
the factual basis for the order was the untimely disclosure of the complete interview
notes. Thus, it concluded there was ―no basis for recusal in the delayed discovery of the
one sentence in the [witness interview] notes which was improperly redacted.‖
Defendants‘ claim here is broader. They urge the LADA should have been recused based
on the totality of the evidence before the trial court. Because the factual basis for the
claim here is materially different from that considered by the Court of Appeal, the law of
the case doctrine is not applicable. (Boyer, supra, 38 Cal.4th at p. 443; People v. Mattson
(1990) 50 Cal. 3d 826, 850.) The Attorney General‘s contention that Smith forfeited any
6 ―The law of the case doctrine states that when, in deciding an appeal, an appellate
court ‗states in its opinion a principle or rule of law necessary to the decision, that
principle or rule becomes the law of the case and must be adhered to throughout its
subsequent progress, both in the lower court and upon subsequent appeal . . . , and this
although in its subsequent consideration this court may be clearly of the opinion that the
former decision is erroneous in that particular.‘ ‖ (Kowis v. Howard (1992) 3 Cal. 4th
888, 892-893.)
30
appellate claim by initially failing to join in the recusal motion also fails. He joined in
the motion resting on the totality of the circumstances.
Arguing for reversal, defendants focus primarily on why the past actions of the
prosecutors were improper. That is not the proper inquiry. The prosecutors whose
conduct was questioned were removed from the case. The remaining question is whether
any Los Angeles deputy district attorney could fairly prosecute. Recusal of a prosecutor
under section 1424 constitutes a statutorily authorized judicial interference with the
executive branch‘s constitutional role to enforce the law. Accordingly, the decision
whether to recuse must be carefully considered. ―[R]ecusal of an entire prosecutorial
office is a serious step, imposing a substantial burden on the People, and the Legislature
and courts may reasonably insist upon a showing that such a step is necessary to assure a
fair trial.‖ (People v. Hamilton (1989) 48 Cal. 3d 1142, 1156 (Hamilton).)
Recusal is not a mechanism to punish past prosecutorial misconduct. Instead, it is
employed if necessary to ensure that future proceedings will be fair. ―[S]ection 1424
does not exist as a free-form vehicle through which to express judicial condemnation of
distasteful, or even improper, prosecutorial actions.‖ (Hollywood v. Superior Court
(2008) 43 Cal. 4th 721, 735.) Defendants have failed to demonstrate a likelihood that
LADA could not prosecute the case fairly. Nor do they show that, in fact, the ensuing
proceedings were unfair.
For the most part defendants rely on accusations of overzealous advocacy by
prosecutors who were replaced. Defendants claim those prosecutors made
misrepresentations in court documents, tried to taint the jury pool, failed to timely
provide discovery, and tampered with a witness. No aspect of these alleged
improprieties, however, establishes a conflict of interest that was likely to affect the
hundreds of other prosecutors in the office. (See Vasquez, supra, 39 Cal.4th at p. 57,
fn. 2; People v. Gamache (2010) 48 Cal. 4th 347, 366 (Gamache).) Even if specific
prosecutors had engaged in misconduct, this behavior standing alone would not
31
necessarily evince a likelihood that other prosecutors would exceed the bounds of proper
advocacy. ―Our cases upholding recusal have generally identified a structural incentive
for the prosecutor to elevate some other interest over the interest in impartial justice,
should the two diverge.‖ (People v. Superior Court (Humberto S.) (2008) 43 Cal. 4th
737, 754.) Here, defendants point to nothing in the record establishing that the
prosecutors who ultimately tried the case engaged in any improper action due to a
conflict of interest.
Defendants also assert that the LADA‘s failure to criminally prosecute the
suspected office infiltrators was unfairly lax compared to the prosecution of defendants,
and that its handling of the witness interview and the prosecutor‘s notes similarly
amounted to an improper ―cover up.‖ That the office treated accusations of employee
improbity differently from charges of a quadruple murder including a child victim is
hardly surprising. It certainly does not establish that the LADA suffered from a conflict
of interest likely to make defendants‘ prosecution unfair. Even if the events surrounding
the witness interview and the prosecutor‘s notes could be characterized as a cover up, the
LADA did ultimately disclose the matter. Once again, defendants fail to explain how that
behavior, remedied by the office‘s own actions, establishes a likelihood of future
misconduct.
Finally, defendants assert that because various supervisors had become involved in
the recusal matters, any prosecutor would have been ―under the watchful eye of these
personally-involved powers within the office.‖ They argue that a prosecutor‘s objectivity
could have been tainted by the impact of the trial on the future of both the trial
prosecutors and involved supervisors. As we explained in Vasquez, however, ―[d]istrict
attorneys, as people, inevitably hold individual personal values and allegiances and feel
varying emotions relating to their work. As public officeholders, they may also have
political ambitions or apprehensions. But that a public prosecutor might feel unusually
strongly about a particular prosecution or, inversely, might hesitate to commit to a
32
prosecution for personal or political reasons does not inevitably indicate an actual conflict
of interest, much less a constitutional bar to prosecution.‖ (Vasquez, supra, 39 Cal.4th at
p. 63.) ―Zealous advocacy in pursuit of convictions forms an essential part of the
prosecutor‘s proper duties and does not show the prosecutor‘s participation was
improper.‖ (Id. at p. 65.) Recusal is justified only when the prosecutor has ―an interest
in the case extraneous to [his or her] official function.‖ (People ex rel. Clancy v.
Superior Court (1985) 39 Cal. 3d 740, 746.) Defendants fail to establish the existence of
such an interest.
D. Denial of Bryant’s Motion to Exclude the Investigating Officer
Before trial, Bryant sought to ―recuse‖ Detective James Vojtecky from any further
investigation in the case and to exclude him from the trial except when testifying,
notwithstanding the prosecutor‘s authority to designate him as the officer entitled to be
present at trial under Evidence Code section 777, subdivision (c).7 Bryant asserted that
Detective Vojtecky had tampered with a witness, attempted to intimidate a witness during
testimony, withheld discovery, and tried to adversely influence Bryant‘s jail housing. He
also pointed out that the Attorney General, in contesting the LADA recusal motions, had
suggested that Detective Vojtecky might instead be removed from the case. Bryant
argued that Detective Vojtecky would continue to engage in misconduct and his presence
at the prosecution‘s table might unfairly bolster the jury‘s view of his credibility. The
7 Evidence Code section 777 provides, ―(a) Subject to subdivisions (b) and (c), the
court may exclude from the courtroom any witness not at the time under examination so
that such witness cannot hear the testimony of other witnesses. [¶] (b) A party to the
action cannot be excluded under this section. [¶] (c) If a person other than a natural
person is a party to the action, an officer or employee designated by its attorney is
entitled to be present.‖
Counsel also unsuccessfully moved that Detective Vojtecky be prohibited from
being armed in the courtroom, and directed to submit to a psychiatric evaluation.
Defendants do not contest those rulings on appeal.
33
trial court denied the motion. Assuming there was legal authority to grant it, the court
found no indication the defense actually had been or would be prejudiced by the
detective‘s continued participation in the investigation or his presence at trial. Bryant
challenges that ruling. Smith and Wheeler cannot join in this claim because they did not
do so below. The trial court did not err.
Bryant first contends the Attorney General is ―judicially estopped‖ from
arguing that the trial court ruled properly, because the deputy attorney general opposing
recusal had suggested the removal of Vojtecky as an alternative. In dissuading litigants
from taking opposite positions on an issue at different points in a proceeding, the doctrine
of judicial estoppel serves to maintain fairness and judicial integrity. (Aguilar v. Lerner
(2004) 32 Cal. 4th 974, 986.) The fundamental purposes of the doctrine would not be
advanced by applying it here.
The Attorney General was seeking to prevent recusal of the entire district
attorney‘s office. The suggestion that recusing the detective would be a less drastic
option is not the same as agreeing that such a removal was legally required. Legitimate
and practical advocacy does not undermine the integrity of the judicial system. More
importantly, Bryant‘s ability to fully litigate his recusal motion has not been negatively
affected, nor have the People obtained some other unfair advantage.
As to the merits, Bryant relies on section 1424, and People v. Merritt (1993) 19
Cal. App. 4th 1573 (Merritt). His argument fails.
Section 1424, subdivision (a)(1) authorizes the filing of a motion ―to disqualify a
district attorney from performing an authorized duty‖ that ―may not be granted unless the
evidence shows that a conflict of interest exists that would render it unlikely that the
defendant would receive a fair trial.‖ As noted, the statute does not authorize the trial
court to order recusal as a punishment for past misdeeds. Yet Bryant urges that ―recusal‖
of Vojtecky would have served as an ―appropriate sanction‖ for his alleged misconduct.
34
More fundamentally, Bryant seeks to expand the scope of the statute. Section
1424 permits a court to disqualify a prosecutor from performing an authorized duty. In
Merritt, the defendant filed a motion to dismiss the charges against him based on alleged
misconduct by a district attorney investigator for withholding exculpatory material,
suggesting that a witness commit perjury, and making sexual advances toward the
witness. After the trial court denied the motion to dismiss, the defendant moved to recuse
the entire office. Despite representations regarding the steps prosecutors had taken to
exclude the investigator from any aspect of the case, the trial court granted the motion.
(Merritt, supra, 19 Cal.App.4th at pp. 1577-1578.) On appeal the recusal of the entire
office was held unjustified. The order was modified ―to apply only to preclude
participation by [the investigator] in any further investigation or decisionmaking with
respect to [the defendant‘s] case, and to any other investigators or deputy district
attorneys who may be shown to have participated in or approved the activities of [the
investigator].‖ (Id. at pp. 1581-1582.) In essence the Merritt court barred the district
attorney from permitting the particular investigator‘s continued involvement, because any
such participation would have resulted in the likelihood of an unfair trial.
In explaining the basis of the Merritt ruling, we do not necessarily endorse the
modified recusal order as valid under the statute. It is arguable the statute was not
intended to apply to nonattorney employees, who do not exercise discretionary authority
over the actual prosecution of cases. We need not decide here whether the statute grants
courts a role in overseeing the inner workings of a prosecutor‘s office beyond ensuring
that a properly impartial prosecutor handles the case. Detective Vojtecky was an
employee of the Los Angeles Police Department. His investigation of the crimes was not
pursuant to any delegation of authority from the district attorney. Bryant does not cite,
nor are we aware of, any other authority permitting a judge to direct that a particular
police officer be barred from participating in the investigation of a specific crime.
35
Bryant‘s contention that the trial court should have overridden the prosecutor‘s
decision to designate Detective Vojtecky as the investigating officer, and instead
excluded him from the trial, fails. By statute, Detective Vojtecky was entitled to be
present at the trial. (People v. Gonzalez (2006) 38 Cal. 4th 932, 950-951 (Gonzalez).)
Bryant‘s allegation of potential unfairness arising from his presence at counsel table is
too speculative to establish error. (See id. at p. 951.) The defense remained free to bring
to the court‘s attention any alleged misconduct that did materialize, and to seek
appropriate relief.
E. Denial of Defendants’ Motions for Severance
At numerous points before and during the trial, defendants moved to sever their
trials from each other and, in particular, from codefendant Settle, who represented
himself. The court, having already severed the noncapital defendants and charges,
consistently refused to grant the requests for separate murder trials. Defendants contend
the court abused its discretion and their joint trial was grossly unfair. Neither an abuse of
discretion nor an unfair trial occurred.
―Section 1098 provides in pertinent part: ‗When two or more defendants are
jointly charged with any public offense, whether felony or misdemeanor, they must be
tried jointly, unless the court order[s] separate trials.‘ Our Legislature has thus
‗expressed a preference for joint trials.‘ [Citation.]‖ (People v. Avila (2006) 38 Cal. 4th
491, 574 (Avila), italics added.) As the United States Supreme Court explained regarding
a similar federal statutory preference, ―[j]oint trials ‗play a vital role in the criminal
justice system.‘ [Citation.] They promote efficiency and ‗serve the interests of justice by
avoiding the scandal and inequity of inconsistent verdicts.‘ [Citation.]‖ (Zafiro v. United
States (1993) 506 U.S. 534, 537 (Zafiro).)
―[T]he court may, in its discretion, order separate trials ‗in the face of an
incriminating confession, prejudicial association with codefendants, likely confusion
36
resulting from evidence on multiple counts, conflicting defenses, or the possibility that at
a separate trial a codefendant would give exonerating testimony.‘ [Citations.] [¶] We
review a trial court‘s denial of a severance motion for abuse of discretion based on the
facts as they appeared at the time the court ruled on the motion. [Citation.] If the court‘s
joinder ruling was proper at the time it was made, a reviewing court may reverse a
judgment only on a showing that joinder ‗ ―resulted in ‗gross unfairness‘ amounting to a
denial of due process.‖ ‘ ‖ (Avila, supra, 38 Cal.4th at pp. 574–575.)
In the general sense, this was a classic case for a joint trial. Defendants ―were
charged with the same crimes arising from the same events.‖ (Letner, supra, 50 Cal.4th
at p. 150.) Defendants‘ arguments that certain aspects of this case overrode the
preference for a joint trial are unpersuasive.
Their arguments overlook three fundamental concepts relating to joint trials. First,
there is a difference between when a trial court may order a severance and when it must
do so. Second, a joint trial is not equivalent to simultaneous separate trials of the
defendants. Third, severance is not required simply because a joint trial may reduce the
likelihood of one or more of the defendants obtaining an acquittal.
Defendants also cite as grounds for severance various asserted errors they have
raised as independent claims for relief. As explained below those claims also lack merit.
1. Conflicting Defenses
A majority of Bryant‘s arguments revolve around his assertion that the
codefendants, particularly Settle, presented evidence that conflicted with Bryant‘s own
defense or further incriminated him. Therefore, the codefendants supposedly acted as
―second prosecutors,‖ bolstering the prosecution‘s case against him. Smith and Wheeler
raise similar contentions. Simply because the prosecution‘s case will be stronger if
defendants are tried together, or that one defense undermines another, does not render a
joint trial unfair. (People v. Carasi (2008) 44 Cal. 4th 1263, 1297-1298.) Indeed,
37
important concerns of public policy are served if a single jury is given a full and fair
overview of the defendants‘ joint conduct and the assertions they make to defend against
ensuing charges.
Avila quoted People v. Massie (1967) 66 Cal. 2d 899 (Massie), listing several
circumstances in which ―the court may, in its discretion, order separate trials.‖ (Avila,
supra, 38 Cal.4th at p. 574, italics added.) Among these is the presence of ― ‗conflicting
defenses.‘ ‖ (Ibid.) As we have made clear in subsequent decisions, however, the
possible or even actual presentation of antagonistic defenses by codefendants does not
necessarily require severance. ― ‗If the fact of conflicting or antagonistic defenses alone
required separate trials, it would negate the legislative preference for joint trials and
separate trials ―would appear to be mandatory in almost every case.‖ ‘ [Citation.]
Accordingly, we have concluded that a trial court, in denying severance, abuses its
discretion only when the conflict between the defendants alone will demonstrate to the
jury that they are guilty. If, instead, ‗there exists sufficient independent evidence against
the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and
antagonistic defenses do not compel severance.‘ [Citations.]‖ (Letner, supra, 50 Cal.4th
at p. 150; People v. Hardy (1992) 2 Cal. 4th 86, 168 (Hardy).) Nor does the federal
Constitution compel severance when codefendants present conflicting defenses. (See
Runningeagle v. Ryan (9th Cir. 2012) 686 F.3d 758, 776 [―we have explicitly concluded
that Zafiro and [United States v.] Lane [(1986) 474 U.S. 438] do not ‗establish a
constitutional standard binding on the states and requiring severance in cases where
defendants present mutually antagonistic defenses‘ ‖].) Moreover, when there is
sufficient independent evidence of the defendants‘ guilt, the actual presentation of
conflicting defenses at trial does not reduce the prosecution‘s burden or otherwise result
in gross unfairness. (Letner, supra, 50 Cal.4th at p. 153.)
38
Here, sufficient independent evidence of each defendant‘s guilt was manifest. If
credited by the jury, James Williams‘s testimony alone was sufficient for conviction.8
2. Evidence Admitted “Against” a Codefendant
Defendants, particularly Smith and Wheeler, contend severance was required
because evidence presented ―against‖ one defendant negatively affected another
defendant‘s case. This claim implicates the second and third considerations mentioned
above. A joint trial is not equivalent to simultaneous separate trials, and the possibility
that one defendant‘s chance of acquittal is reduced does not make a joint trial unfair.
Smith and Wheeler argue that, because they were jointly tried with Bryant, a
plethora of evidence about the Bryant Family drug business was admitted ―against‖
Bryant. Had they been tried separately a lesser amount of that evidence might have been
admitted. Yet, as the high court stated in similar circumstances, the primary error in such
a claim is each defendant‘s ―characterization of the issue presented here as affecting his
trial, as opposed to the actual trial in this case — the joint trial of [all of them].‖
(Buchanan v. Kentucky (1987) 483 U.S. 402, 418 (Buchanan).) In other words, the issue
is not whether a theoretical separate trial of one defendant would have been different, but
whether the joint trial that actually occurred was in some manner prejudicially unfair or
unreliable.
Naturally, anyone facing prosecution would rather be tried on a single charge,
rather than multiple counts. Likewise, an accused would rather not be associated in the
jury‘s mind with other potentially unsavory characters. Jurors are expected to follow
instructions in limiting evidence to its proper function, and the efficiency of trying
connected crimes against different defendants ―is a valid governmental interest.‖
8 As explained post, in part III.H.1., the trial court properly declined to instruct the
jury that Williams was an accomplice as a matter of law. Thus, corroboration was not
required under section 1111.
39
(Spencer v. Texas (1967) 385 U.S. 554, 562.) Moreover, a joint trial may actually
enhance fairness and reliability: ―In joint trials, the jury obtains a more complete view of
all the acts underlying the charges than would be possible in separate trials. From such a
perspective, it may be able to arrive more reliably at its conclusions regarding the guilt or
innocence of a particular defendant and to assign fairly the respective responsibilities of
each . . . .‖ (Buchanan, supra, 483 U.S. at p. 418.) The high court has also observed:
―While ‗[a]n important element of a fair trial is that a jury consider only relevant and
competent evidence bearing on the issue of guilt or innocence,‘ [citation] (emphasis
added), a fair trial does not include the right to exclude relevant and competent
evidence.‖ (Zafiro, supra, 506 U.S. at p. 540.) Further, the prosecution‘s theory
regarding Smith and Wheeler‘s involvement rested on their roles as active Family
members who took direction from Bryant. As a result, much evidence about which they
complain would have been relevant even at a separate trial. The argument that some
evidence admitted at a joint trial might not have been admitted at a separate trial misses
the mark.
Similarly unavailing are defendants‘ assertions that the joint trial made it more
difficult for them to obtain acquittals. Defendants are constitutionally entitled to a fair
trial, not one that gives them the best possible chance for an acquittal. An essential goal
of a trial is that the fact finder determine what happened through a fundamentally fair and
reliable process. As we stated in the analogous circumstance of joinder of charges, ―the
benefits of joinder are not outweighed — and severance is not required — merely
because properly joined charges might make it more difficult for a defendant to avoid
conviction compared with his or her chances were the charges to be separately tried.‖
(People v. Soper (2009) 45 Cal. 4th 759, 781 (Soper).) ―[D]efendants are not entitled to
severance merely because they may have a better chance of acquittal in separate trials.‖
(Zafiro, supra, 506 U.S. at p. 540.)
40
Similar considerations apply to the evidence regarding the attacks on Keith Curry,
the husband of Bryant‘s ex-wife. Bryant‘s comparable jealousy toward Andre Armstrong
would establish a motive for directing his minions Smith and Wheeler to kill him. If it
could be proven, as it was here, that Smith worked for Bryant and carried out his illegal
directives, evidence showing Bryant‘s state of mind was relevant to establish Smith‘s
guilt. The circumstance that Bryant‘s jealousy was partially established through his
statements as a party opponent (Evid. Code, § 1220) does not render the evidence of his
motive inadmissible as to Smith.
In a somewhat related argument, Bryant now contends he was unfairly prevented
from establishing an alternative reason why Smith might have shot Curry. He asserts that
Smith was angry because Curry took Smith‘s children to drug transactions attempting to
deflect law enforcement attention. Other than providing conclusory argument and
speculation, Bryant has not explained how he actually could have established this
alternative motive had the trials been severed. (See Massie, supra, 66 Cal.2d at p. 917;
People v. Cummings (1993) 4 Cal. 4th 1233, 1286, fn. 26.) Further, when Smith cross-
examined Curry on this subject, he denied taking the children with him to drug sales.
We also reject the conclusory allegations that the amount of evidence presented to
the jury was too extensive and complicated, and that the trial court‘s instructions did not
adequately guide the jury‘s deliberations at either the guilt or penalty phase. ―Objection,
this is too complicated,‖ has yet to be recognized as a valid statutory ground. Juries
frequently evaluate complex cases. There is no indication the jurors were unable to fairly
do so here.
3. Guilt by Association and Weak Case Joined to Strong Case
Defendants contend the joint trial was grossly unfair because of ―guilt by
association.‖ For instance, Smith argues he was prejudiced by being tried with Bryant,
the leader of the criminal organization who had ―acted with impunity and terrorized the
41
community.‖ Wheeler argues he was prejudiced by being tried with Bryant and Smith,
who, he asserts, were much more important members of a ―very bad organization made
up of bad guys doing bad things.‖ 9 In related arguments, defendants unpersuasively
point to assertedly lesser evidence of their own guilt compared to the guilt of their
codefendants to argue severance was required.
Whenever defendants are jointly tried, part of the prosecution‘s case will naturally
attempt to establish that the defendants associated with each other, at least to the extent
that they all participated in the crimes at issue. To some degree, as the high court has
recognized, ―[w]hen many conspire, they invite mass trial by their conduct.‖ (Kotteakos
v. United States (1946) 328 U.S. 750, 773.) That defendants associated more broadly
than their specific involvement in the alleged crimes may also be directly relevant to
establishing their guilt. In Letner, supra, 50 Cal.4th at page 152, we held the prosecution
could properly argue the defendants committed the crimes in concert based on their past
history of joint activity. In People v. Champion (1995) 9 Cal. 4th 879, 921, we observed
that evidence of the defendants‘ membership in a gang did not create improper guilt by
association, but instead ―formed a significant evidentiary link in the chain of proof tying
them to the crimes.‖ Moreover, it is also quite likely that different defendants
participating together in a crime will have different levels of involvement and different
personal backgrounds. These circumstances alone do not compel severance or render a
joint trial grossly unfair. Individuals who choose to commit crimes together are not
generally entitled to shield the true extent of their association by the expedient of
demanding separate trials.
9 Bryant argued at trial that his case should be severed from Wheeler‘s because
witnesses identified Wheeler as the one who killed Loretha Anderson and her young
daughter.
42
To justify severance the characteristics or culpability of one or more defendants
must be such that the jury will find the remaining defendants guilty simply because of
their association with a reprehensible person, rather than assessing each defendant‘s
individual guilt of the crimes at issue. (Letner, supra, 50 Cal.4th at p. 152.) Here, it does
not appear the jury would have found one defendant‘s characteristics or culpability so
overwhelming compared to the others that it convicted any defendant simply because of
his association, rather than because his individual guilt had been proven. While each had
different roles and different places in the Family hierarchy, there was ample evidence that
all defendants were well aware of the nature, scope, and brutality of Family operations
and willingly took part.
Similarly unconvincing are defendants‘ contentions that the evidence of another
defendant‘s guilt was especially weak compared to the evidence of his own. All the
defendants here contend the evidence against them was, in some aspect, weaker than that
incriminating the others. In this context, the strength of the case against oneself is clearly
in the eye of the beholder. (See Letner, supra, 50 Cal.4th at p. 151.) We have recognized
the potential for unfairness if one defendant may be swept up in a much more compelling
case against codefendants. Such a scenario is not present here, where the strength of the
evidence against each defendant was roughly equivalent. Each defendant was
incriminated by his ties to the Bryant Family and the Wheeler Avenue house, and each
was equally incriminated by the testimony of James Williams. Accordingly, a
comparison of the relative strength and weakness of each defendant‘s guilt does not show
an abuse of discretion or gross unfairness in the joint trial. (Ibid.)
Bryant makes the novel argument that the penalty phase was grossly unfair
because Smith‘s and Wheeler‘s mitigation evidence was more compelling. Initially, it is
obvious that the jury did not find Smith‘s and Wheeler‘s mitigation evidence very
compelling. It returned death verdicts as to them as well. In any event, it is not
surprising that different defendants presented different mitigating evidence regarding
43
their backgrounds. That circumstance alone clearly cannot establish that the jury failed to
give each defendant individualized consideration. Bryant‘s speculation that the jury
impermissibly compared defendants‘ backgrounds in reaching its verdicts is
unpersuasive. We also observe that some comparison between defendants in terms of
their relative culpability is proper. Section 190.3, factor (j), directs the jury to consider
whether a defendant‘s participation in the crimes was ―relatively minor.‖ ―Properly
understood, intracase proportionality review is ‗an examination of whether defendant‘s
death sentence is proportionate to his individual culpability, irrespective of the
punishment imposed on others.‘ ‖ (People v. Hill (1992) 3 Cal. 4th 959, 1014.)
4. Security Measures
Defendants contend that because the four capital defendants were tried together,
the court put in place various security measures that prejudiced the jury against them, and
that would not have been required had they been tried separately. This claim is based on
pure speculation that the security measures were prejudicial, and that similar measures
would not have been put in place in separate trials. Moreover, as we discuss post, in part
II.F., the court did not abuse its discretion or violate defendants‘ rights by ordering the
security measures at issue.
5. Joint Trial with Self-Represented Defendant and Misconduct by
Codefendants
Defendants contend the trial court should have granted severance based on the fact
that codefendant Settle represented himself and engaged in various asserted improprieties
that the trial court failed to prevent or remedy. In a similar vein, Smith characterizes
various actions by Bryant, Wheeler, and their attorneys as misconduct that assertedly
prejudiced him, giving jurors a negative impression of all criminal defendants and
defense attorneys. There were no specific objections at trial to many of the instances of
―misconduct‖ now complained of on appeal. Even assuming these contentions are
properly raised, defendants‘ trial was not grossly unfair.
44
As an initial matter, no authority holds that severance is required simply because
self-represented and attorney-represented codefendants have been joined for trial. To the
contrary, many courts have held there is no per se bar against joint trials in these
circumstances. (See, e.g., U.S. v. Celestin (1st Cir. 2010) 612 F.3d 14, 21; U.S. v. Veteto
(11th Cir. 1983) 701 F.2d 136, 139.) We agree. It is always possible that a codefendant
or, for that matter, another attorney might engage in inappropriate behavior. Protection
against that possibility is found not in severance, but in the court‘s duty to control the
proceedings and ensure each defendant receives a fair and reliable trial. A court, of
course, may take appropriate measures to prevent and sanction misconduct. (See, e.g.,
Veteto, at pp. 138-139 [suggesting various precautionary steps].) Severance is not
required simply as a preemptive measure based on an assumption that the court will be
unable to control the proceedings.
We also reject defendants‘ assertions the joint trial was unfair because Settle
ultimately did engage in misconduct, which the court failed to prevent or remedy. First,
the asserted lack of cooperation between Settle and the other defendants cannot alone
render the joint trial unfair. Manifestly, there is no requirement that codefendants
cooperate. Each is entitled to fairly pursue his defense as he, and his counsel, see fit.
Defendants also allege Settle improperly gave false testimony and argued facts not in
evidence.10 To some degree, this assertion repackages the claim that defendants were
prejudiced by the presentation of conflicting defenses, which we have rejected. Even if
Settle‘s actions could additionally be characterized as misconduct, we reject the notion
that the trial was unfair as a result. Nothing in the record indicates that Settle‘s actions
10 Also mentioned is Settle‘s supposedly improper conduct during a meeting with
witness Una Distad, in which he apparently did not follow the trial court‘s instructions
about what he could tell and ask the witness. Defendants do not explain what unfairness
resulted. None is apparent.
45
rendered the jury unable to fairly evaluate all the evidence regarding each defendant‘s
guilt or innocence, or that the jury did not follow the court‘s repeated instructions that the
opening statements and closing arguments were not evidence. Even if Settle presented
untrue testimony or engaged in inappropriate behavior, the trial was not unfair. The
presentation of disputed testimony occurs in almost every trial and accusations of
improper conduct are common. ―Juries are not so susceptible that they cannot measure
intelligently the weight of [evidence] that has some questionable feature.‖ (Manson v.
Brathwaite (1977) 432 U.S. 98, 116.) The same is true regarding Smith‘s assertions that
Bryant and Wheeler gave false testimony or they and their attorneys acted
disrespectfully. Nothing in the record indicates the jury was unable to intelligently weigh
the actual evidence. Simply because the jury was unable to reach verdicts as to Settle and
he subsequently pleaded guilty to lesser charges, does not in some way render the jury‘s
guilty verdicts as to defendants unfair.
Defendants challenge the trial court‘s decision to let Settle reopen his case and
testify after the other defendants concluded their own cases. They argue Settle falsely
told the court he would not testify in order to hear the other defense presentations, then
tailor his testimony to incriminate them and exonerate himself. The court, in their view,
failed to recognize its authority and discretion to control the order of the presentation of
evidence. Their own argument defeats them. ―[S]ection 1044, . . . vests the trial court
with broad discretion to control the conduct of a criminal trial.‖ (People v. Calderon
(1994) 9 Cal. 4th 69, 74-75.) Defendants did not specifically object on this ground. Even
if the lack of an objection were overlooked, defendants cannot identify any error that
resulted in cognizable prejudice to them.
Defendants had no statutory or constitutional right to have the defenses presented
in a particular order. Although there had been an agreement among the defense teams on
that subject, the trial court was not bound by their decision and had ultimate authority
over the presentation of evidence. Sections 1093 and 1094 provide the order of
46
procedure to be followed in a criminal trial unless the court deems there are good reasons
to follow a different order. Wheeler, by defense agreement, went first. He knew that
Settle might testify afterward. Although Smith and Bryant had already rested when Settle
decided to testify, they have not demonstrated they made any strategic decisions based on
the agreed-upon order of the presentations. Nor would we necessarily conclude any such
reliance on their part would have been reasonable, given the trial court‘s controlling
discretion in the matter. Furthermore, a defendant who initially decides not to testify may
legitimately change his mind before the trial concludes. It would be most unusual, if not
improper, for a court to deny a defendant who makes a timely request to testify in his
defense the opportunity to do so. There is no indication the trial court would have
prevented any defendant from reopening his case to present evidence or testimony to
respond to Settle‘s testimony. In fact, Wheeler did so in his surrebuttal case by calling
Settle‘s brother Frank as a witness.
Even if Settle‘s testimony undermined defendants‘ cases, that potential did not
result in an unfair trial. The jury could assess the credibility of his testimony in light of
its timing and all the other evidence. In addition, defendants were permitted to cross-
examine Settle, to present additional evidence in response, and to argue his unreliability.
Finally, defendants contend Settle improperly commented on their having chosen
to be represented by counsel, and on Smith‘s decision not to testify in his defense. In
both his opening statement and closing argument to the jury, Settle stated that he was
representing himself because he believed that doing so was ―the best way to get to the
truth.‖ He also mentioned that, although he had the right to refrain from presenting a
defense, he had chosen to give up his right to remain silent, so he could testify to
establish his innocence.11 Defendants argue that Settle‘s comments improperly invited
11 In his opening statement, Settle said: ―My name is Jon Settle, and I would like to
tell you why I am representing myself. I am representing myself because this is a truth-
(footnote continued on next page)
47
the jury to draw a negative inference from their having exercised their constitutional
rights to be represented by counsel and, as to Smith, the right not to testify. Not so.
Under Griffin v. California (1965) 380 U.S. 609, 615, a prosecutor‘s comment on
a defendant‘s decision not to testify violates the constitutional right to silence. This
prohibition applies to such comments made by defense attorneys as well. ―Thus, in a
joint trial of multiple codefendants, comment by an attorney representing one defendant
on the silence of a codefendant violates the codefendant‘s constitutional right to freedom
from adverse comment on his silence at trial.‖ (Hardy, supra, 2 Cal.4th at p. 157.) That
rule also binds defendants acting as their own counsel.
Defendants also contend Settle‘s statements commented not only on their silence,
but also their decision to rely on counsel to represent them. Comment on the exercise of
the Sixth Amendment right to counsel would be equally inappropriate. Guilt cannot be
inferred from the reliance on a constitutional right. Imposing a penalty for its exercise
undermines that right ―by making its assertion costly.‖ (Griffin v. California, supra, 380
U.S. at p. 614.)
(footnote continued from previous page)
seeking process, and I feel that the best way to get to the truth is through the defendant.
And I believe in the justice system, and you believe in our justice system. And as you
know, ladies and gentlemen, the defendant in a criminal case has an absolute right to
remain silent and put on no evidence whatsoever. But I will give up that right so that I
could take the stand and answer any of the questions that any of those attorneys would
like to ask regarding my life.‖
In his closing argument, Settle said: ―In my on [sic] statement I made — I‘d like
to just go over some things that I said in my opening statement. I said that I‘m here
representing myself because it is a truth-seeking process, and I feel that the best way to
get to the truth is through the defendant. I believe in the justice system, and — and that I
will get up there and answer all the questions of any of these attorneys . . . .‖
48
However, not every statement made before a jury that touches on one defendant‘s
rights to silence and representation amounts to a constitutional violation. For example, a
prosecutor is permitted to comment on the state of the evidence and the defendant‘s
failure to call a logical witness, despite the mere possibility that the statement might also
be interpreted as a reference to the defendant‘s failure to testify. (People v. Thomas
(2012) 54 Cal. 4th 908, 945.)12
In addition, in a joint trial a defendant‘s individual right to present a vigorous
defense may justify making arguments that could seem to implicate the other defendants‘
constitutional rights, even though similar comments would be improper had they been
made by a prosecutor. For instance, when a particular defendant has chosen to testify and
others have not, the testifying defendant is permitted to ―emphasize to the jury that his
credibility is strong because he took the stand and submitted to cross-examination,‖
despite the fact that such comments could be broadly viewed as also hinting at the other
defendants‘ having chosen not to testify. (Hardy, supra, 2 Cal.4th at p. 158.) A
prosecutor may not invite the jury to infer guilt from silence. However, a comment by
the defense regarding that defendant‘s own choice to testify properly urges that his or her
testimony is worthy of belief because it was freely given and subject to adversarial
testing. The jury will not necessarily interpret such a statement by one defendant as
calling into question, or even referring to, the guilt or innocence of the other defendants.
(Ibid.; see also Letner, supra, 50 Cal.4th at p. 153 [rejecting as unsupported the
12 However, the prosecutor cannot refer to the absence of evidence that only the
defendant‘s testimony could provide. (People v. Brady (2010) 50 Cal. 4th 547, 565-566.)
A defendant may also request that the jury be explicitly instructed not to consider the fact
that he has not testified. (See CALJIC No. 2.60; CALCRIM No. 355.) Such instructions
are usually given only at the defendant‘s request, because they draw the jury‘s attention
to the fact the defendant exercised the right to remain silent. (People v. Roberts (1992) 2
Cal. 4th 271, 314.)
49
defendant‘s claim the jury held against him his decision not to testify when the
codefendant had testified].)
Settle‘s comments are most reasonably understood as urging the strength of his
own defense, not as comments on the codefendants‘ different constitutional choices.
Settle did not directly comment on defendants‘ representation by counsel, or Smith‘s
decision not to testify. Nor is it likely that the jury considered Settle‘s statements
regarding his self-representation and decision to testify when assessing evidence of the
other defendants‘ guilt or innocence. The remarks here are similar to those made in
Hardy. Settle did not insinuate his codefendants were guilty because they were
represented by counsel and had not testified. Instead he urged that he had ― ‗nothing to
hide and that‘s why he got up on the witness stand and testified.‘ ‖ (Hardy, supra, 2
Cal.4th at p. 160.) It is also notable that no defendant specifically objected to Settle‘s
statements at trial or requested an instruction addressing this concern. Defendants have
not established that their joint trial was rendered unfair by Settle‘s actions.
F. Security Measures
Before trial, the court said it would order several heightened security measures.
Defendants were to be restrained by either shackles or a ―REACT belt.‖13 Extra deputies
would be stationed in the courtroom. Prospective and seated jurors would be identified
by number only. Jurors would meet at a secret location each morning and be escorted to
court by bailiffs. They would be sequestered in a special jury lounge during recesses, and
13 ―[T]he remote electronically activated control technology (REACT) belt‖ is a
―battery-operated belt ‗ ―consist[ing] of a four-inch-wide elastic band, which is worn
underneath the prisoner's clothing.‖ ‘ [Citation.] If activated by its remote transmitter,
the belt can deliver a brief 50,000-volt electric shock.‖ (People v. Lomax (2010) 49
Cal. 4th 530, 560, fn. 8. (Lomax).)
50
be escorted back to the meeting site each evening.14 Defendants, while objecting to the
use of any restraints, chose to wear the REACT belts. They also unsuccessfully objected
to the jury being kept anonymous. They did not object to the remaining security
measures. On appeal, they contend the trial court erred in taking these steps, violating
their constitutional rights. Defendants forfeited challenges to the measures other than the
use of the belts and jury anonymity by failing to object. The trial court did not abuse its
discretion here.
―In general, the ‗court has broad power to maintain courtroom security and orderly
proceedings‘ [citation], and its decisions on these matters are reviewed for abuse of
discretion. [Citation.] However, the court‘s discretion to impose physical restraints is
constrained by constitutional principles. Under California law, ‗a defendant cannot be
subjected to physical restraints of any kind in the courtroom while in the jury‘s presence,
unless there is a showing of a manifest need for such restraints.‘ [Citation.] Similarly,
the federal ‗Constitution forbids the use of visible shackles . . . unless that use is
―justified by an essential state interest‖ — such as the interest in courtroom security —
specific to the defendant on trial.‘ [Citation.] We have held that these principles also
apply to the use of an electronic ‗stun belt,‘ even if this device is not visible to the jury.
[Citation.]‖ (Lomax, supra, 49 Cal.4th at pp. 558-559.)
― ‗In deciding whether restraints are justified, the trial court may ―take into
account the factors that courts have traditionally relied on in gauging potential security
problems and the risk of escape at trial.‖ [Citation.] These factors include evidence
establishing that a defendant poses a safety risk, a flight risk, or is likely to disrupt the
proceedings or otherwise engage in nonconforming behavior.‘ [Citation.] Although the
14 There also was discussion of placing a metal detector at the entrance to the
courtroom to screen spectators. The record, however, does not reflect whether this
measure was used.
51
court need not hold a formal hearing before imposing restraints, ‗the record must show
the court based its determination on facts, not rumor and innuendo.‘ [Citation.] The
imposition of physical restraints without evidence of violence, a threat of violence, or
other nonconforming conduct is an abuse of discretion. [Citation.]‖ (Lomax, supra, 49
Cal.4th at p. 559.) The mere facts that the defendant is an unsavory character and
charged with a violent crime are not sufficient to support a finding of manifest need.
(People v. Duran (1976) 16 Cal. 3d 282, 293.)
Defendants have not identified, and we are unaware of, any decision of this court
holding that the basis for a finding of manifest need must be a showing of prior conduct
of the exact type about which the court is concerned, or that the defendant himself
personally had engaged in such conduct. A court‘s decision about the use of restraints
involves a prediction of the likelihood of violence, escape, or disruption weighed against
the potential burden on the defendant‘s right to a fair trial. Given the serious potential
consequences on both sides of the scale, the range of factors the court may consider in
assessing and weighing the risks should be broad. (See People v. Cox (1991) 53 Cal. 3d
618, 651 [a manifest need for restraints may be based on ― ‗[e]vidence of any
nonconforming conduct . . . which . . . would disrupt the judicial process if
unrestrained‘ ‖]; see also State v. Stewart (Minn. 1979) 276 N.W.2d 51, 62; State v.
Tolley (N.C. 1976) 226 S.E.2d 353, 368.)
As we have also explained, ―the stringent showing required for physical restraints
like shackles is the exception, not the rule. Security measures that are not inherently
prejudicial need not be justified by a demonstration of extraordinary need. [Citations.]
In contrast to physical restraints placed on the defendant‘s person, we have upheld most
other security practices when based on proper exercises of discretion. Thus, we
concluded the use of a metal detector or magnetometer at the entrance of the courtroom is
not inherently prejudicial. [Citations.] And we have consistently upheld the stationing of
52
security or law enforcement officers in the courtroom. [Citations.]‖ (People v. Stevens
(2009) 47 Cal. 4th 625, 633-634 (Stevens).)
―[W]e will not overturn a trial court‘s decision to restrain a defendant absent ‗a
showing of a manifest abuse of discretion.‘ ‖ (People v. Wallace (2008) 44 Cal. 4th 1032,
1050.) To establish an abuse of discretion, defendants must demonstrate that the trial
court‘s decision was so erroneous that it ―falls outside the bounds of reason.‖ A merely
debatable ruling cannot be deemed an abuse of discretion. (People v. DeSantis (1992) 2
Cal. 4th 1198, 1226; Shamblin v. Brattain (1988) 44 Cal. 3d 474, 478-479.) An abuse of
discretion will be ―established by ‗a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of
justice . . . .‘ ‖ (Carrington, supra, 47 Cal.4th at p. 195.)
The record reflects a manifest need to physically restrain these defendants. The
trial court did not abuse its discretion or violate their constitutional rights.
The court here was clearly aware of its obligation to make its own determination
on the need for restraints, and not simply defer to the wishes of the prosecutor or
courtroom security personnel. There is no indication that the idea to use restraints came
from anyone other than the judge himself. The court also clearly based its decision on
the particular facts of this case, not a generalized policy that any defendant charged with
a violent crime must be restrained. Indeed, Bryant cited the applicable law in his written
opposition to the use of restraints. Although the court did not conduct a formal hearing
with the presentation of evidence, the matter was discussed over the course of two
pretrial proceedings, and the court summarized the case-specific information upon which
it based its decision. Accordingly, this case is distinguishable from People v. Mar (2002)
28 Cal. 4th 1201 and People v. Hill (1998) 17 Cal. 4th 800, where trial courts had abused
their discretion. In addition, as in Lomax, the trial court‘s ruling predated our decision in
Mar, where we first applied the manifest need standard to the use of the REACT belt.
The trial court here cannot be deemed to have abused its discretion because it did not
53
―foresee and discuss‖ the concerns addressed in Mar concerning ―the potential
psychological consequences of wearing a stun belt and the physical effects from electric
shock in subjects with certain medical conditions.‖ (Lomax, supra, 49 Cal.4th at p. 562.)
Defendants focus on the trial court‘s assessment of their potential for violence,
disruption, or escape. During several years of court proceedings none of the defendants
had been disruptive in court, nor had any escape plots been uncovered. There was no
indication Bryant and Smith had been violent while in pretrial custody. Defendants assert
there had been no suggestion of using restraints before the trial was to begin, and note
that accusations of violence for which the defendant is on trial are not alone sufficient to
justify restraints. Even in light of those facts and general principles, the trial court‘s
rulings did not exceed the bounds of reason.
The trial court had before it a great deal of credible information from the
preliminary hearings, charging documents, trial briefs, other summaries of the intended
evidence, and in-court representations of counsel that defendants were part of a large-
scale and extremely violent drug organization, with many members remaining at large.
The organization had previously taken steps to interfere in court proceedings, attempting
to bribe, intimidate, and even kill prosecution witnesses. The stakes for defendants in
this capital trial were, obviously, quite high. There was no indication that any of the
defendants was physically infirm or otherwise unable to attempt a violent escape. Once
trial began, in the presence of the jury and spectators, the courtroom dynamics would
change from the less formal pretrial proceedings. The challenge to maintain security if a
disruption occurred would increase. The court was justifiably concerned others might
undertake disruption, violence, or an escape plot on defendants‘ behalf. The court was
aware of ―ill will‖ between the defendants and codefendant Settle, such that Settle had
been placed on ―keep away‖ status at the jail and the only time all the defendants were
together was in the courtroom. As to Wheeler specifically, the court knew he had been
formally charged and held to answer for an attempted murder of a jail inmate and an
54
assault with a deadly weapon on a guard that had occurred during his pretrial
incarceration. As to Bryant, the court was informed that he had been disciplined in the
jail for possessing improper amounts of razor blades and food items, suggesting he was
still engaged in organized illicit activities while in custody. As was the case in Lomax,
the trial court considered the REACT belt to be a minimally obtrusive and restrictive
device that would lessen the potential for violence or escape. Given the choice between
shackles and the REACT belt, defendants chose the latter. In sum, we affirm the exercise
of the court‘s discretion.
After the trial, the court acknowledged that the belts created a lump under
defendants‘ clothes and it was ―not impossible‖ that the jurors may have briefly seen
them when defendants walked to the witness stand. Given the particularized finding of
need in this case, the possibility that some jurors may have perceived defendants were
wearing some type of device does not establish a constitutional violation. (Deck v.
Missouri (2005) 544 U.S. 622, 629.)
Defendants also challenge the trial court‘s other security measures as improperly
suggesting that their guilt was a foregone conclusion. Again, no objection was lodged
beyond the use of restraints and the order for juror anonymity. In any event, ―[s]ecurity
measures that are not inherently prejudicial need not be justified by compelling evidence
of imminent threats to the security of the court.‖ (People v. Jenkins (2000) 22 Cal. 4th
900, 997 (Jenkins).) None of the additional measures should be considered inherently
prejudicial. Unlike the use of visible restraints, which a jury might interpret as a judicial
comment on the defendant‘s own character and guilt, there are plausible and entirely
likely interpretations of the other measures used in this case that would not lead the jury
to draw any inference particular to a defendant. (See Holbrook v. Flynn (1986) 475 U.S.
560, 569.) The presence of security personnel in the courtroom is ― ‗ordinary and
expected.‘ ‖ (Stevens, supra, 47 Cal.4th at p. 635.) The court told the jurors that the
anonymity order and details of their arrival and departure from court were designed to
55
protect their privacy from members of the press, and to make it easier for them to enter
and leave the courthouse. It further instructed the jury before deliberations that ―the
security measures taken in relation to this, or any, trial are not evidence and cannot be
considered or discussed by the jury in determining any issue in this case.‖
Accordingly, the additional security measures, considered individually and
cumulatively, did not create an inherently prejudicial ―aura of guilt.‖ As we explained in
Stevens: ― ‗Recognizing that jurors are quite aware that the defendant appearing before
them did not arrive there by choice or happenstance,‘ the high court stressed [in
Holbrook] that it has ‗never tried, and could never hope, to eliminate from trial
procedures every reminder that the State has chosen to marshal its resources against a
defendant to punish him for allegedly criminal conduct.‘ [Citation.] That a security
practice seems to focus attention on the defendant is not enough, without more, to render
the practice inherently prejudicial.‖ (Stevens, supra, 47 Cal.4th at p. 638.) As with the
decision to order the use of restraints, the trial court exercised its discretion based on the
circumstances of this particular case. The measures it ordered to minimize the danger of
violence or an escape attempt were not beyond the bounds of reason.
G. Admission of Recording of Police Interview with Andre Armstrong
The court admitted, over defense objection, a tape-recorded statement the
deceased Andre Armstrong gave to police detectives. Defendants contend the admission
violated their federal and state constitutional confrontation rights and was error under our
statutory hearsay rule. (Evid. Code, § 1200.) Any error was harmless beyond a
reasonable doubt.
The circumstances are these. A little more than a year after Armstrong shot and
killed Kenneth Gentry, and after he had been arrested for that crime, Gentry‘s father was
killed. On July 23, 1983, after Armstrong had been convicted of the Gentry murder and
Goldman shooting, detectives investigating the father‘s death interviewed Armstrong.
56
There is no indication the detectives considered Armstrong a suspect. They did not give
him Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436) before the interview.
Armstrong told the detectives he did not know anything about the father‘s death. He did,
however, admit his role in the Kenneth Gentry and Goldman shootings, saying he
committed those crimes at the behest of the Bryants. They were to pay him
approximately $15,000 for his efforts. Armstrong was unhappy because he had rejected
an offer to plead guilty to the shootings in exchange for a reduced sentence. Instead, he
went to trial expecting the Bryants to pay off the witnesses, but they failed to do so. He
believed the Bryants therefore ―owed‖ him, and told the detectives if he were to be
released from prison he intended to ―squeeze‖ the Bryants for money and a part of their
drug distribution business. Armstrong considered the Bryants to be ―lightweights‖
lacking the fortitude to oppose him. While recounting how he became involved with the
Bryants, Armstrong also talked about the drug dealing and related violent crimes he
previously had committed in St. Louis that supposedly included several murders.
Armstrong also said he would kill a woman if he deemed it necessary, but would not kill
a child for any reason.
The prosecution urged Armstrong‘s statement was admissible to establish three
things: (1) the Bryants had hired him to shoot Goldman and Gentry; (2) Armstrong
believed the Bryants owed him for having failed to dissuade the witnesses who testified
against him; and (3) he intended to ―squeeze‖ the Bryants when he was released from
prison. The prosecution asserted that the statement was admissible under the hearsay
exceptions for declarations against penal interest (Evid. Code, § 1230), statements of an
existing mental state (Evid. Code, § 1250, subd. (a)(1)), and statements of present intent
57
to do a future act (Evid. Code, § 1250, subd. (a)(2); People v. Alcalde (1944) 24 Cal. 2d
177).15
In guilt phase closing arguments the prosecutor explained, ―Armstrong was the
primary person they wanted to kill here for the reasons you know. . . . It isn‘t often that a
jury hears the voice from the grave of one of the victims explaining the motive and why
what happened here happened. . . . He explains exactly what happened at the Ken Gentry
murder, why he did it and who he did it for and exactly what he was going to do when he
got out, that they owed him. [¶] The Bryants owed him. They owed him for taking this
fall for them. And when he got out, which he did, got his case reversed, he gets out and
his guys from St. Louis come out and he is going to get a piece of their operation because
they owe him. [¶] That is why he was killed here.‖ The prosecutor later reiterated the
argument that Armstrong‘s statement established the ―motive and reasons that these
crimes occurred.‖
The prosecutor also argued as follows. ―You don‘t see more of an evil act than
you see here. [¶] If you want to see the difference between Andre Armstrong — I‘d be
the last person to stand here and tell you that Armstrong had a lot of good qualities. He
15 Evidence Code section 1230 provides, in relevant part, ―Evidence of a statement
by a declarant having sufficient knowledge of the subject is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and the statement, when made . . .
so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his
position would not have made the statement unless he believed it to be true.‖
Evidence Code section 1250, subdivision (a) provides, ―Subject to Section 1252,
evidence of a statement of the declarant‘s then existing state of mind, emotion, or
physical sensation (including a statement of intent, plan, motive, design, mental feeling,
pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The
evidence is offered to prove the declarant‘s state of mind, emotion, or physical sensation
at that time or at any other time when it is itself an issue in the action; or [¶] (2) The
evidence is offered to prove or explain acts or conduct of the declarant.‖ ―Evidence of a
statement is inadmissible under this [provision] if the statement was made under
circumstances such as to indicate its lack of trustworthiness.‖ (Evid. Code, § 1252.)
58
certainly didn‘t. He is a hit man for the Bryants. He is a cold blooded, ruthless killer. [¶]
But there are some standards even against that. And if you want to know the difference
between Armstrong and these guys look back at that tape. [¶] What you know about
Andre Armstrong, if nothing else, is he liked kids. . . . His response [to the detectives‘
questions whether he would kill a child for money] is ‗I might kill the woman but I‘m not
killing no kids. . . .‘ But killing children, folks. Even among hit men and killers there are
some standards. And there is nothing lower than what happened in this case. All to
protect — to put money in their pockets.‖
It is evident that Sixth Amendment jurisprudence following the Supreme Court‘s
decision in Crawford v. Washington (2005) 541 U.S. 36 (Crawford) remains in
considerable flux. (See the various opinions in Williams v. Illinois (2012) 567 U.S. ___
[132 S. Ct. 2221]; People v. Dungo (2012) 55 Cal. 4th 608, 633-649 (dis. opn. of Corrigan,
J.).) We need not venture into that thicket. We assume, but do not decide, the admission
of hearsay here ran afoul of defendants‘ right to confrontation. ― ‗ ―Confrontation clause
violations are subject to federal harmless-error analysis under Chapman v. California
(1967) 386 U.S. 18, 24 [Chapman].‖ [Citation.] We ask whether it is clear beyond a
reasonable doubt that a rational jury would have reached the same verdict absent the
error.‘ [Citation.]‖ (People v. Livingston (2012) 53 Cal. 4th 1145, 1159 (Livingston);
Neder v. United States (1999) 527 U.S. 1, 18.) Because we conclude that any error here
was harmless under Chapman, we do not separately consider defendants‘ statutory
hearsay arguments, which would be reviewed under the less demanding standard of
People v. Watson (1956) 46 Cal. 2d 818, 836.
The parties primarily dispute whether the admission of Armstrong‘s statement was
harmless because other independent evidence proved the assertions contained in the tape:
that he had acted as a ―hit man‖ for the Bryant Family; had ―taken the fall‖ for the
Goldman and Gentry shootings; believed the Family owed him; and was later killed to
eliminate his threat to Family operations. Defendants contest the admissibility of some of
59
the other evidence, including Armstrong‘s statements to other people that he had ―taken
the fall‖ for the shootings, and his expectation of compensation. They attack the
persuasive value of evidence including the Bryant Family payments to Armstrong and his
family while he was in prison, and Bryant‘s allusions to the events at Wheeler Avenue. It
is unnecessary to parse these disagreements. Based on this record a rational jury clearly
would have reached the same result even if none of the disputed evidence had been
admitted.
Ignoring for the moment James Williams‘s testimony directly incriminating
defendants, these murders were clearly not random acts of violence unrelated to the
Bryant Family. The physical evidence established that the victims were shot in the
entrance to, and while parked in front of, a house used in the Family operations.
Armstrong and Brown were ambushed by people inside the fortified Wheeler Avenue
house. The victims‘ bodies were removed from the scene. It was undisputed that
Armstrong and Brown had ties to the Family through their drug operation in Monterey,
and that they came to Los Angeles expecting continued Family assistance. The victims‘
fateful trip to Wheeler Avenue was not a random excursion; the evidence established they
went there planning to pick up money from ―Stan.‖
The primary determination for the jury in this case was not the specific reason the
Family wanted Armstrong and the others dead, but rather who had ordered the murders
and who had carried them out. Defendants did not dispute at trial that the murders were
committed at the behest of the Family. They simply contended they were not involved.
The jury was properly instructed that the motive to commit murder is distinct from the
required mental state for that crime. Motive is not an element of any of the charged
offenses and need not be proved. (People v. Hillhouse (2002) 27 Cal. 4th 469, 504;
CALJIC No. 2.51; see also CALCRIM No. 370.) Armstrong‘s statements aside, there
was resounding and uncontroverted evidence that he was connected to the Bryant Family,
and that the murders were carried out for the Family‘s benefit. Moreover, the
60
prosecution‘s alternate motive for Armstrong‘s murder, Bryant‘s jealousy of the affair
with Tannis, tied Bryant directly to the crimes. Finally, James Williams‘s compelling
testimony, the testimony of the other eyewitnesses, and the forensic evidence linking
defendants to the murders make the statement even less consequential. Any
constitutional error in the admission of Armstrong‘s statement was harmless beyond a
reasonable doubt.16
H. Denial of Motion for Sequestered Voir Dire of Prospective Jurors
Defendants contend the trial court‘s failure to conduct individual sequestered voir
dire of the prospective jurors was constitutional error as a matter of law, and an abuse of
discretion on the facts of this case.17 There was no error.
Before trial, Smith requested individual sequestered voir dire, citing pretrial
publicity and our decision in Hovey v. Superior Court (1980) 28 Cal. 3d 1. Bryant and
Wheeler joined the motion. The trial court denied the request, finding the procedures
unnecessary.
Defendants first urge that sequestered voir dire of prospective jurors is
constitutionally required in all capital cases to prevent ―an unreasonable risk of juror
partiality‖ and a resulting violation of due process. This argument is simply a
restatement of arguments made to challenge the voir dire change effected by Proposition
115. Though decided after this trial, our recent decisions have considered and rejected
16 To the extent defendants have adequately raised the issues, we similarly conclude
the jury‘s verdicts could not have been improperly affected by the prosecutor‘s
characterization of Armstrong‘s statement as a ―voice from beyond the grave,‖ and the
suggestion that the hit man had scruples because he would not kill children. The strength
of the other evidence relegates this attempt to put a good spin on Armstrong‘s unsavory
character far to the background.
17 The claim is not forfeited because, although defendants acquiesced in the trial
court‘s plans to conduct group voir dire, they did not abandon their motion for individual
questioning after the trial court denied it. (People v. Taylor (2010) 48 Cal. 4th 574, 606.)
61
the arguments offered here. (People v. Watkins (2012) 55 Cal. 4th 999, 1011 (Watkins);
People v. McKinnon (2011) 52 Cal. 4th 610, 633 (McKinnon); People v. Stitely (2005) 35
Cal. 4th 514, 537.) Defendants present no compelling counter argument.
Defendants next contend the court abused its discretion in denying the motion
under the circumstances of this case. The controlling statute, section 223 of the Code of
Civil Procedure, then provided in relevant part, as it currently does, that ―[v]oir dire of
any prospective jurors shall, where practicable, occur in the presence of the other jurors
. . . .‖ They argue that the trial court‘s assertedly summary denial of the motion shows
the court did not consider whether group questioning was practicable. They urge that
group voir dire was not practicable here because some prospective jurors could be
influenced by the questions posed to and answers given by others. Defendants are wrong
on both counts.
As to the exercise of discretion, the court gave no explicit reasons for denying the
motion. However, it is clear from its discussions about the conduct of voir dire that the
court believed no particular circumstance rendered group voir dire impracticable. When
one attorney commented that the intended procedures appeared to be complicated, the
court explained the process actually would be ―[v]ery simple. Pretend this is a regular
jury trial. That is what it is. It is, with additional questions being asked on [the] death
[penalty]. That is all it is.‖ Moreover, Smith‘s motion explicitly mentioned the court‘s
authority to order sequestered voir dire if it found that group questioning was
impracticable. As a result, the issue was squarely presented to the trial court. As a
general rule ― ‗a trial court is presumed to have been aware of and followed the
applicable law.‘ ‖ (People v. Stowell (2003) 31 Cal. 4th 1107, 1114; see also McKinnon,
supra, 52 Cal.4th at p. 634.)
As to the substance of the ruling, we have recognized that conducting group voir
dire may be impractical when it results in ― ‗ ―actual, rather than merely potential,
bias.‖ ‘ ‖ (People v. Famalaro (2011) 52 Cal. 4th 1, 34.) Here defendants fail to make
62
such a showing. Their arguments to the contrary are based on pure speculation that some
prospective jurors were affected by the questioning of others. (See Watkins, supra, 55
Cal.4th at p. 1012.) ― ‗The possibility that prospective jurors may have been answering
questions in a manner they believed the trial court wanted to hear,‘ however, ‗identifies at
most potential, rather than actual, bias and is not a basis for reversing a judgment.‘
[Citation.] Indeed, the purpose and effect of the ‗group voir dire‘ requirement of Code of
Civil Procedure section 223 would be obviated if nonsequestered questioning were
deemed ‗[im]practicable‘ because of the speculative concern that one prospective juror‘s
death penalty responses might influence the responses of others in the venire.‖
(McKinnon, supra, 52 Cal.4th at p. 634.)
Defendants‘ claim also relies on the fact that some jurors expressed views during
voir dire that differed from those expressed in their questionnaires. Such changes are not
uncommon. As we observed in similar circumstances, ― ‗[v]oir dire examination occurs
when a prospective juror quite properly has little or no information about the facts of the
case and only the most vague idea as to the applicable law.‘ ‖ (People v. Riggs (2008) 44
Cal. 4th 248, 287-288 (Riggs).) This observation is particularly apt regarding the
completion of juror questionnaires following brief introductory remarks from the court.
It is not surprising that prospective jurors‘ views would continue to be refined as they
have additional time to consider these weighty philosophical questions and discuss them
at some length with the court and counsel. The apparent evolution of views during the
course of voir dire does not by itself establish a juror‘s bias. The change may simply
indicate an enhanced understanding of the legal principles at issue and further reflection.
The trial court did not abuse its discretion by denying the motion for sequestered voir
dire.18
18 Within his challenge to the denial of the motion for sequestered voir dire, Bryant
also appears to urge that the trial court improperly asked a member of the panel whether
(footnote continued on next page)
63
I. Dismissal of Three Prospective Jurors Based on Their Views Concerning
the Death Penalty
Defendants contend the trial court erroneously excused for cause three prospective
jurors, violating their rights to an impartial jury, a fair sentencing hearing, and due
process under the state and federal Constitutions.19 The claims are unpersuasive.
―Under Wainwright v. Witt (1985) 469 U.S. 412, 424 (Witt), we consider whether
the record fairly supports the trial court‘s determination that [a prospective juror‘s] views
on the death penalty would have prevented or substantially impaired her performance as a
juror.‖ (People v. Thomas (2011) 52 Cal. 4th 336, 357.) ― ‗Generally, a trial court‘s
rulings on motions to exclude for cause are afforded deference on appeal, for ―appellate
courts recognize that a trial judge who observes and speaks with a prospective juror and
(footnote continued from previous page)
it would be appropriate to give a witness immunity from prosecution ―if there was
somebody who was so bad and so dangerous that nobody could testify against him unless
they got something in return for it?‖ He argues that the question could be interpreted as a
statement of the court‘s own belief about Bryant. As he did at trial, he asserts the entire
group of prospective jurors should have been excused for cause. The court, however, did
not suggest that Bryant was such a person. Instead it was probing whether the
prospective juror thought any circumstances would justify a grant of immunity. Those
who heard the question were not irredeemably biased. The conclusory assertions that the
court‘s question ―lightened the prosecution‘s burden of proof,‖ ―improperly bolster[ed]
the credibility of witnesses,‖ and constituted the admission of improper and prejudicial
criminal propensity ―evidence‖ that denied Bryant of a ―state-created liberty interest,‖ are
devoid of logic and legal merit.
19 Bryant challenges the excusals of Prospective Juror Nos. 52, 56, and 204, while
Smith challenges the excusals of only Prospective Juror Nos. 52 and 56. Wheeler did not
raise any challenge in his briefs. We assume each defendant joins in all three challenges
and the two other contentions Bryant raises concerning the legal standards at issue.
Prospective Juror No. 204 was called to serve as a possible alternate juror. Because
alternate jurors were eventually selected at random and seated during the trial, it does not
appear that any error in excusing her would have been harmless. (Cf. People v. Jones
(2012) 54 Cal. 4th 1, 44-45 (Jones).)
64
hears that person‘s responses (noting, among other things, the person‘s tone of voice,
apparent level of confidence, and demeanor), gleans valuable information that simply
does not appear on the record.‖ [Citation.]‘ [Citation.] [¶] A finding of bias ‗may be
upheld even in the absence of clear statements from the juror that he or she is impaired
because ―many veniremen simply cannot be asked enough questions to reach the point
where their bias has been made ‗unmistakably clear‘; these veniremen may not know
how they will react when faced with imposing the death sentence, or may be unable to
articulate, or may wish to hide their true feelings.‖ [Citation.] Thus, when there is
ambiguity in the prospective juror‘s statements, ―the trial court, aided as it undoubtedly
[is] by its assessment of [the venireman‘s] demeanor, is entitled to resolve it in favor of
the State.‖ [Citation.]‘ [Citations.]‖ (People v. Bramit (2009) 46 Cal. 4th 1221, 1235.)
― ‗ ―The trial court‘s resolution of these factual matters is binding on the appellate court if
supported by substantial evidence. [Citation.]‖ ‘ [Citations.]‖ (People v. Lancaster
(2007) 41 Cal. 4th 50, 79.)
Defendants initially contend affording deference to a trial court‘s resolution of
ambiguities and inconsistencies is contrary to the holdings of the United States Supreme
Court in Adams v. Texas (1980) 448 U.S. 38 and Gray v. Mississippi (1987) 481 U.S.
648. ―We have previously rejected this contention. [Citations.] Furthermore, the high
court has more recently reiterated its view that ‗[c]ourts reviewing claims of
Witherspoon–Witt error . . . owe deference to the trial court, which is in a superior
position to determine the demeanor and qualifications of a potential juror.‘ (Uttecht v.
Brown (2007) 551 U.S. 1, 22.)‖ (People v. Thomas (2012) 53 Cal. 4th 771, 790-791, fn. 3
(Thomas).)
1. Prospective Juror No. 52
Prospective Juror No. 52‘s (Number 52) responses to the approximately 20 death-
penalty-related questionnaire inquiries expressed ambivalence. He answered many
65
questions by writing a question mark in the space provided, including the question asking
for his ―general feelings about the death penalty,‖ and answered many others by circling
―Don‘t Know‖ (as opposed to ―Yes‖ or ―No‖). He wrote he did not know whether he
would automatically vote for either the death penalty or life without parole. He had also
indicated, however, that he ―Agree[d] Somewhat‖ with the statement that a person who
intentionally and unlawfully kills more than one person ―should automatically receive the
death penalty.‖ Number 52 also chose ―Don‘t Know‖ when asked whether he had ―any
conscientious objections to the death penalty which you believe might impair your ability
to be fair and impartial.‖
During voir dire, after three general introductory questions, the trial court asked
Number 52 if he could ―think of any reason that you would not be an appropriate juror
for this particular case,‖ and he responded, ―I‘m very opposed to the death penalty.‖ In
response to the trial court‘s question whether his opposition would ―substantially affect‖
his ability to choose between the two possible penalties, he stated he had ―been studying
that recently,‖ and he ―would be lying to you if I said that it didn‘t bother my conscious
[sic] about the death penalty.‖ Although in subsequent questions he said he could
―follow the law‖ and he could vote for the death penalty ―if [he] had to,‖ he continued to
express reservations regarding actually voting for a death verdict. Ultimately, the trial
court asked him, ―Notwithstanding the fact that you have a conscientious objection for
this, could you in fact be a fair judge of the penalty and vote for death if you felt it was
appropriate given our facts or could you not?‖ Number 52 answered, ―No. I don‘t think
so.‖ The trial court sought to confirm the answer, asking, ―You don‘t believe you could
do that?‖ He answered, ―No.‖ The trial court granted the prosecution‘s challenge for
cause, ―based on the total of his answers including the quite clear one he gave about two
minutes ago.‖
Defendants urge that Number 52‘s answers were equivocal, but he had at times
stated he could follow the law. However, the trial court could properly rely on Number
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52‘s own statement, which he confirmed, that he could not be a fair judge of the penalty
question. The prospective juror‘s statement that he thought he could follow the law and
vote for death ―if [he] had to‖ would not necessarily have established that, contrary to the
trial court‘s finding, he could perform his duties as a juror. Clearly, a juror is never
required to vote for the death penalty. (See People v. Brown (1988) 46 Cal. 3d 432, 475.)
2. Prospective Juror No. 56
In her questionnaire, Prospective Juror No. 56 (Number 56) stated she did not
―believe in the death penalty,‖ or that California should have one. Instead, she
―believe[d] in life in prison without parole.‖ Her views were based on her ―religious
conviction‖ that ―no one has the right to take a life.‖ She would not ―be able to vote for
the death penalty on another person if [she] believed, after hearing all the evidence, that
the penalty was appropriate.‖ She would ―automatically, in every case, regardless of the
evidence, vote for life in prison without the possibility of parole.‖ Her views on the death
penalty had not changed in the last 10 years.
During voir dire Number 56 stated that she did not want to serve on the jury, but
now believed that, despite her religious views, she could vote for the death penalty ―[i]f it
was required under the law.‖ Although she initially stated that she did not think she
could be a fair juror because of the child victim, when asked again whether she was
biased, she answered, ―Okay, I could be fair.‖ When pressed, she stated that although she
still did not believe in the death penalty, she could impose it in light of her ―civic duty,‖
but would not be ―overjoyed‖ in doing so. She claimed that the change from her answers
on the questionnaire were based on the trial court‘s ―little speech this morning about
weighing the good and the bad and the evidence that comes in before that.‖
The trial court rejected Number 56‘s in-court statements as simply incredible in
light of the decisiveness of the opposite views she had expressed in her questionnaire
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answers. In granting the prosecution‘s challenge for cause, the court stated it did not
―believe it is a close credibility call at all.‖
The trial court properly excused this prospective juror. In her questionnaire
Number 56 clearly stated her long-standing views opposing the death penalty and how
they would prevent her from performing the duties of a juror. She answered other
questions in an equivocal or contradictory manner, and qualified her ability to vote for
the death penalty if the law required her to do so. The trial court reasonably credited her
answers demonstrating her impairment. The fact that the prospective juror at times
claimed she believed she could perform her duties as a juror ―did not prevent the trial
court from finding, on the entire record, that [she] nevertheless held views . . . that
substantially impaired her ability to serve.‖ (People v. Griffin (2004) 33 Cal. 4th 536,
561.)
3. Prospective Juror No. 204
In her questionnaire responses, Prospective Juror No. 204 (Number 204) stated she
was ―against [the death penalty] because I wasn‘t put here so another person dies.‖ She
did not believe California should have the death penalty, because it ―seems to have little
impact on [the] person doing the crime.‖ Her other answers did indicate, however, that
she believed should could vote for death in a given case, and that she would not
automatically vote against it.
During voir dire, she reiterated that she was against the death penalty based on her
―personal philosophy.‖ At times she said she would be able to vote for death but it would
be ―very difficult‖ for her to do so. She would essentially equate rendering a death
verdict with ―pulling the trigger [of a gun] on somebody,‖ and she could not ―imagine
[herself] doing that under any circumstance.‖ Ultimately, the court asked her whether
she thought she ―could actually in this particular case come out here and look somebody
in the eye, a defendant, [and] say . . . evidence to the death sentence here, that‘s what the
68
evidence and the law came up with.‖ She answered that there was ―no doubt‖ in her
mind that she would not be able to do so. This record amply supports the grant of a for-
cause challenge.
4. Inconsistent Standards
Defendants also contend the trial court applied inconsistent criteria in ruling on
challenges. They assert the court was more willing to grant the prosecutor‘s challenges
while applying a more stringent test in evaluating defense challenges. They contrast the
excusals of Numbers 52, 56, and 204, who had expressed qualms about the death penalty,
with the decisions to retain Prospective Juror Nos. 80 and 82 (Number 80 and Number
82), who strongly favored the death penalty.20 The attempt fails.
Defendants point out that as to Numbers 80 and 82 the trial court credited their in-
court answers over the questionnaire responses, unlike with Number 56, whom the court
excused. But this circumstance cannot establish by itself that the court‘s rulings were
inconsistent or unfair. Making such credibility determinations fell squarely within the
trial court‘s province. The court properly and explicitly recognized that ―it is not a matter
of what answers are to be accepted, the questionnaire answer or the answers given
verbally. The issue is at the conclusion of the voir dire of that particular juror do grounds
for cause exist or not exist.‖ The court‘s decisions were properly based on ―the sum total
of the responses of the juror and not what was written in the questionnaire or said in open
court but the sum total of responses, demeanor, appearance, et cetera, of the juror while
answering questions, and the court tries to make a judgment as to whether a juror could
or could not . . . be fair to the defense and prosecution in a guilt and penalty phase.‖
20 The defense used peremptory challenges to excuse Numbers 80 and 82 after the
trial court denied the challenges for cause. Defendants did not exhaust their peremptory
challenges.
69
The court said it believed Number 80‘s answers did not indicate she would
―automatically proceed in a particular way.‖ Defendants also seize upon this comment as
showing the court applied a different standard than it applied in granting the
prosecution‘s challenges for cause. Other than noting the linguistic difference between
the phrases ―a juror will automatically proceed in a particular way‖ and ―a juror‘s views
on the death penalty prevent or substantially impair the performance of the juror‘s
duties,‖ defendants do not elaborate on the asserted substantive difference between the
two. Indeed, we have recognized that jurors who will automatically vote either for or
against the death penalty without properly considering the evidence must be excused.
(See, e.g., People v. Salcido (2008) 44 Cal. 4th 93, 132.) The trial court‘s view that
Number 80 would not automatically vote in a particular way does not establish that the
court applied an improper or even a different standard than with other prospective jurors.
The same is true of defendants‘ attempts to parse the trial court‘s comments regarding its
decision to excuse Number 56 — because the court did not think there was ―really a
reasonable likelihood she could choose conscientiously between the penalties based on
the evidence and so forth.‖ As we stated in similar circumstances, ―Witt has long been
the law and it is clear the court was aware of the appropriate standard to apply. In the
absence of evidence to the contrary, we presume that the court ‗knows and applies the
correct statutory and case law.‘ ‖ (People v. Thomas, supra, 52 Cal.4th at p. 361.)
J. Seating a Hearing-impaired Juror
Smith contends the trial court erred and deprived him of his constitutional rights to
due process and trial by jury by allowing a hearing-impaired juror to sit without
providing an effective listening device to assist him. He also claims the juror may have
improperly learned of the sidebar discussions between the court and counsel by reading
their lips. Assuming Bryant and Wheeler have joined in this claim, we conclude it is
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forfeited as to all of them. None of them raised these concerns at trial. Moreover, the
record does not support defendants‘ claim.
After the jury was sworn, Juror No. 435 asked the court whether the court and
witnesses would use a microphone. 21 The court asked whether he had ―any hearing
difficulty,‖ and the juror responded, ―Slightly. I have a little trouble understanding.‖ The
court said microphones would be used and that an audio headset could be provided. The
court then told all the jurors, ―if you do not hear something during the trial, if you don‘t
hear a question or answer that somebody has said, don‘t sit and try to figure it out. Raise
your hand just like you did now, and we will have it read back or repeat it. It is better to
nip it in the bud than trying to figure it out at the end of the case.‖ Without any objection
from defendants, the proceedings continued.
The headset arrived during the second witness‘s testimony. The court explained
how to use it, and mentioned that if someone stepped between the transmitter and the
headset there would be ― a little bit of static,‖ and a brief absence of audio. The court
later told Juror No. 435 to remove the headset during any sidebar discussion.
Two subsequent and minor problems with the headset were promptly fixed. Juror
No. 435 also mentioned he had picked up some of the witness testimony by reading lips.
Later, the juror mentioned that the headset‘s battery had been recharged. The headset had
been making ―funny noises‖ when the battery was low.
Defendants now contend that Juror No. 435 might not have heard proceedings
when he did not have the headset or it was malfunctioning, or that he might have learned
information from the side bar conferences by reading lips. Had they raised these issues
21 The reporter‘s transcript initially misidentified the juror at issue as Juror No. 412.
It was later confirmed on the record that he was actually Juror No. 435. Juror No. 435
was an alternate, but later replaced a seated juror and participated in both the guilt and
penalty phase deliberations.
71
during the trial, the court could have made a more complete record and remedied any
problems. It was reasonable for the court to expect the juror would follow the
instructions and tell the court if he could not hear something. He did so on occasion. The
juror was also admonished not to try and deduce what was said at sidebar. Finally, there
is no indication that he was actually in a position to see anyone‘s lips during these
conferences. Defendants‘ claims are purely speculative.
III. GUILT PHASE ISSUES
A. Admission of “Other Crimes” Evidence
Bryant and Smith contend the trial court erred in admitting evidence of various
crimes committed by them and other Family members. They generally assert that the
evidence was inadmissible character evidence, 22 irrelevant,23 and/or unduly prejudicial.24
We assume that Wheeler has joined in the claims, although, as noted below, not all
claims were preserved as to each defendant. We review the trial court‘s evidentiary
rulings for abuse of discretion. (People v. Gonzales (2012) 54 Cal. 4th 1234, 1256
(Gonzales); Scott, supra, 52 Cal.4th at p. 491.) There was none.25
The general framework for the admission of evidence as it relates to defendants‘
challenges is as follows. Only relevant evidence is admissible. (Evid. Code, § 350.)
Relevant evidence is broadly defined as that having a ―tendency in reason to prove or
disprove any disputed fact that is of consequence‖ to resolving the case. (Evid. Code,
§ 210.) Inferences drawn from the evidence must be logical and reasonable, not merely
22 Evidence Code section 1101, subdivision (a).
23 Evidence Code sections 210 and 350.
24 Evidence Code section 352.
25 Hereinafter in parts III A, B, and C, we refer to Evidence Code section 1101,
subdivision (a), as section 1101(a), Evidence Code section 1101, subdivision (b), as
section 1101(b), and Evidence Code section 352 as section 352.
72
speculative. (People v. Morrison (2004) 34 Cal. 4th 698, 711; People v. Babbitt (1988)
45 Cal. 3d 660, 681.) All relevant evidence is admissible, unless a specific statutory or
constitutional provision bars its admission. (Evid. Code, § 351; Cal. Const., art. I, § 24.)
If evidence is relevant and admissible for one purpose, but inadmissible if considered for
another purpose, the trial court must admit it but, upon request, limit its proper scope and
so instruct the jury. (Evid. Code, § 355.)
Section 1101(a) prohibits the admission of character evidence if offered to prove
conduct in conformity with that character trait, sometimes described as a propensity to act
in a certain way.26 (See also Cal. Law Revision Com. com., 29B pt. 3B West‘s Ann.
Evid. Code (2009 ed.) foll. § 1101, p. 221.) Defendants appear to argue that evidence of
uncharged acts by, or connected to, a defendant is presumptively inadmissible under
section 1101(a). As a result, they urge the evidence must be found to fall within an
―exception‖ to that provision in order to be admitted at trial. That interpretation has been
rejected. Section 1101(a) ―expressly prohibits the use of an uncharged offense if the only
theory of relevance is that the accused has a propensity (or disposition) to commit the
crime charged and that this propensity is circumstantial proof that the accused behaved
accordingly on the occasion of the charged offense.‖ (People v. Thompson (1980) 27
Cal. 3d 303, 316, italics added.) Section 1101(b) provides that ―[n]othing in this section‖
prohibits the admission of uncharged acts to prove a fact ―other than [a person‘s]
disposition to commit such an act.‖27 Section 1101(b) is not an exception to section
26 Section 1101(a) provides: ―Except as provided in this section and in Sections
1102, 1103, 1108, and 1109, evidence of a person‘s character or a trait of his or her
character (whether in the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct) is inadmissible when offered to prove his or her
conduct on a specified occasion.‖
27 Section 1101(b) provides in full, ―Nothing in this section prohibits the admission
of evidence that a person committed a crime, civil wrong, or other act when relevant to
(footnote continued on next page)
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1101(a). Section 1101(a) prohibits the use of character to prove conduct. Section
1101(b) provides for the admission of uncharged acts when relevant to prove some other
disputed fact. The true exceptions to section 1101(a) are set out in Evidence Code
sections 1102, 1103, 1108, and 1109, and are not implicated here.
If an uncharged act is relevant to prove some fact other than propensity, the
evidence is admissible, subject to a limiting instruction upon request. Here, the court
instructed the jury several times, including in its final charge in the guilt phase, that
evidence of other criminal acts had not been admitted and could not be considered to
establish any defendant‘s character, disposition, or propensity. At no time during the
guilt phase did the court instruct the jury that any evidence could be considered as
character evidence. Section 1101(a) was not violated.
Even if uncharged acts evidence is otherwise admissible, an accused may still urge
that section 352 should bar it from consideration.28 In the face of a timely objection
(Evid. Code, § 353, subd. (a)), relevant evidence may still be excluded if its probative
value is substantially outweighed by the probability that its admission will require undue
time consumption, will confuse or mislead the jury, or poses a substantial risk of undue
prejudice.
(footnote continued from previous page)
prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or whether a defendant in a prosecution for an
unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith
believe that the victim consented) other than his or her disposition to commit such an
act.‖
28 Section 352 provides: ―The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.‖
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Defendants claim they did not dispute that the murders were committed by
someone who acted with premeditation and intent to kill. Thus, they argue, evidence
relating to those elements was irrelevant or unduly prejudicial. We rejected this
argument in Scott, supra, 52 Cal. 4th 452, and do so here. Defendants pleaded not guilty,
placing in issue all the elements of murder. The court explicitly recognized this fact in
response to an initial suggestion that premeditation would not be an issue in the trial. The
court did not err. (Id. at pp. 470-471.)
With these principles in mind, we now turn to defendants‘ specific challenges.
1. Rhonda Miller Bribe
Rhonda Miller testified that she recanted her statement that Andre Armstrong
killed Kenneth Gentry because she was offered a bribe by the girlfriends of Jeff and
Stanley Bryant. Defendants contended that the testimony was irrelevant without other
evidence connecting the bribery attempt to the Bryants, and, further, that her testimony
would be ―more prejudicial than probative.‖ The court found her testimony relevant.
The jury could reasonably infer that, contrary to defendants‘ positions, Armstrong did not
act on his own but instead killed Gentry on behalf of the Bryant Family. It also held that
sufficient evidence connected the bribe to the Family. The court did not explicitly weigh
the risk of undue prejudice against the probative value, but we may conclude it implicitly
did so in overruling defendants‘ objections. (People v. Padilla (1995) 11 Cal. 4th 891,
924.)
Defendants appear to concede that Miller‘s testimony was relevant to undermine
the assertion that Armstrong killed Gentry on his own initiative. Indeed, the testimony
was relevant for that purpose and properly admissible.29 The jury could logically and
29 The court also found Miller‘s testimony relevant to ―further buttress the
credibility‖ of Armstrong‘s statements made to detectives, the admission of which we
presumed erroneous. (See ante, pt. II.G.) Miller‘s testimony was relevant on its own to
(footnote continued on next page)
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reasonably infer that someone in charge of the Bryant Family ordered the bribery, and
that these efforts showed the Family was involved in the Gentry murder.
Defendants‘ argument that the evidence was unduly prejudicial also fails. This
jury heard evidence, inter alia, that all three defendants murdered several people,
including a young child. Evidence of bribery and witness dissuasion was not likely to
evoke improper bias or an emotional response on the part of the jurors. (See People v.
Kipp (2001) 26 Cal. 4th 1100, 1121.) As we recently explained in Scott, supra, 52 Cal.4th
at pages 490 to 491: ― ‗ ― ‗Prejudice‘ as contemplated by [Evidence Code] section 352 is
not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is
not prejudicial, as that term is used in a section 352 context, merely because it
undermines the opponent‘s position or shores up that of the proponent. The ability to do
so is what makes evidence relevant. The code speaks in terms of undue prejudice.
Unless the dangers of undue prejudice, confusion, or time consumption ‗ ―substantially
outweigh‖ ‘ the probative value of relevant evidence, a section 352 objection should fail.
[Citation.] ‗ ―The ‗prejudice‘ referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues. In applying section 352,
‗prejudicial‘ is not synonymous with ‗damaging.‘ ‖ [Citation.]‘ [Citation.] [¶] The
prejudice that section 352 ‗ ―is designed to avoid is not the prejudice or damage to a
defense that naturally flows from relevant, highly probative evidence.‖ [Citations.]
―Rather, the statute uses the word in its etymological sense of ‗prejudging‘ a person or
cause on the basis of extraneous factors. [Citation.]‖ [Citation.]‘ [Citation.]‖
(footnote continued from previous page)
establish the connection between Armstrong and the Bryant Family. We need not discuss
the court‘s alternate theory.
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2. Francine Smith Assault
Bryant challenges admission of Francine Smith‘s testimony that she was beaten
after trying to cheat a Bryant Family employee selling her drugs. Bryant later told her
she was lucky he knew her so well, otherwise she would have been killed. In his opening
brief, Bryant characterizes the testimony as improper character evidence. (§ 1101(a).)
The Attorney General correctly points out, however, that Bryant did not raise this
objection at trial, nor did he request a limiting instruction. The contention is forfeited. In
his reply brief, Bryant recasts his claim as based on section 352. That argument, too, is
forfeited by the failure to raise it in the opening brief. (People v. Tully (2012) 54 Cal. 4th
952, 1075 (Tully) [―It is axiomatic that arguments made for the first time in a reply brief
will not be entertained because of the unfairness to the other party.‖].) The challenges to
this evidence are forfeited as to Smith and Wheeler because they did not object to the
testimony at trial. In any event, the trial court did not abuse its discretion under either
provision.
The court found the testimony showed Bryant‘s level of involvement in the Family
operations, and the Family‘s willingness to use violence to protect its interests, a similar
motive for the murders of Armstrong and his associates. The jury could also infer that if
Armstrong had tried to take advantage of the Bryant Family, but was less well known to
its leaders, he would have been subjected to harsher retaliation than a mere beating.
Because the testimony was relevant to prove facts other than Bryant‘s propensity, its
admission was not an abuse of discretion under section 1101(a).
Nor did the trial court abuse its discretion under section 352. In Bryant‘s opening
statement he contested the very existence of the Bryant Family organization, let alone his
own role in it. Evidence establishing the nature of the Family, its operations, and
Bryant‘s role was important evidence tying him and the Family to the murders. Again, in
light of the accusations and extensive evidence regarding the charges, testimony by Ms.
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Smith that she was beaten in a drug dispute does not raise a substantial likelihood of
undue prejudice.
3. Drug Business Operations
Bryant contends the court erroneously admitted evidence about the Family drug
operations, including the police actions that led to Bryant‘s prior drug conspiracy
conviction.30 Bryant uses several pages of his brief to set out the evidence at issue, then
asserts in a general manner that the evidence was irrelevant, prejudicial, and improper
character evidence. Assuming Bryant has presented his appellate claims in a manner that
sufficiently identifies the specific factual and legal bases supporting them, they are
forfeited. He did not object to this evidence at trial on the grounds he now raises. This is
equally true as to Smith and Wheeler, to the extent they intended to join Bryant‘s
appellate claims.
In arguing that the claims are not forfeited, Bryant points to a brief remark Smith‘s
counsel made (in which Bryant‘s and Wheeler‘s counsel joined), before the prosecution
began presenting the evidence. Counsel said there might come a point in the trial at
which the otherwise relevant evidence should be limited under section 352 based on the
undue consumption of time. 31 To the extent this statement could be deemed an objection
30 We address Bryant‘s challenges to the admission of the testimony and statements
of specific individuals, including William Johnson, Lawrence Walton, and Ladell Player,
post, in part III.B.
31 Counsel stated, ―On the drug stuff[,] there is a point at which we believe there is a
relevancy on 352 problems [sic] in terms of the consumption of time. [¶] I believe [the
officers] are going to talk about incidents in ‘84 or ‘85, certain rock houses and so on and
so forth that may have some relevance. [¶] I don‘t know how long [the prosecutor] will
go into that but it is going away from the motive to kill Armstrong into maybe matters
relating to a drug conspiracy or something of that nature which has been severed out. [¶]
I understand that it may have some relevance, but I want the court to be cognizant. [¶]
Maybe we can go through it.‖
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at all, it obviously was not specific enough to have alerted the trial court to the asserted
errors Bryant now claims. Defendants‘ failure to object with specificity prevented the
prosecution and the court from addressing the relevance, probative value, and risk of
undue prejudice or time consumption. Accordingly, we decline, except as discussed
below, to entertain Bryant‘s appellate claims on this subject.
In the factual recitation in his brief, Bryant mentions the introduction of his drug
conspiracy conviction. Bryant argued at trial that his conviction would only be relevant
for impeachment should he elect to testify. The trial court disagreed. It admitted the
evidence to show the existence and scope of the organization and Bryant‘s role in it. It
also found the evidence related to the credibility of a Bryant Family employee who
testified about Bryant‘s role in the organization. On appeal, Bryant does not explain how
the admission was error. To the extent he suggests that all the drug business evidence
was irrelevant because it did not establish the motive for the murders, or because Bryant
later admitted he was part of the business, the arguments are forfeited because they were
not raised at trial. Moreover, they are meritless. The evidence was legitimate
circumstantial evidence that Bryant knew Armstrong planned to ―squeeze‖ the Family,
posing a threat that motivated the murders. Bryant‘s limited admission to lesser Family
involvement did not retroactively render irrelevant the prosecution‘s evidence.
4. Keith Curry Attacks
Bryant and Smith challenge admission of the attacks on Keith Curry while he was
romantically involved with Bryant‘s ex-wife. The trial court heard Curry‘s testimony in
limine, considered extensive arguments, and provided a comprehensive ruling. It
admitted the testimony about two attacks, but excluded proffered evidence of a third in
which Curry was shot by an unknown assailant. The trial court explained its ruling as
follows: ―The evidence is highly relevant in the court‘s opinion, as I indicated today. It
does tend to show that Mr. Smith, not as a person of bad character, although the other
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evidence may suggest that, but the manner in which the evidence can be utilized by the
jury is to show that there is a relationship between Mr. Smith and Mr. Bryant of the type
that would allow Mr. Smith — cause Mr. Smith at Mr. Bryant‘s behest to commit violent
acts either out of loyalty for Mr. Bryant or because that‘s his job in this organization.
The jury will have to determine those issues. But there is sufficient evidence to allow the
jury to do so. The evidence is quite probative.‖ The court acknowledged that in
weighing the potential prejudicial effect, ―the conduct is similar; homicidal, violent, and
the jury will have that in mind,‖ but ―on balance, the court feels that with a limiting
instruction . . . explaining to the jury the use to which they may put this evidence that the
potential for prejudice . . . is outweighed by the clear and concrete relevance.‖ The court
noted that before the evidence would be admitted the prosecution would have to establish
that Bryant was aware of and angered by the affair.
Before Curry testified the court instructed, ―the evidence that you will hear has to
do with some — an act of violence alleged to have been committed by one of the
defendants in this case. [¶] That evidence may not be considered by you as tending to
show that any defendant in this case has a propensity to commit violent acts or a
propensity to commit crimes of the type alleged in this case or of any type for that matter.
[¶] However, the evidence may be considered by you on the following limited issues:
. . . on the issue of the existence of any intent which is a necessary element of the crime
charged, the identity of the person who committed any crime with which the defendant is
accused, any motive for the commission of the charged offenses[,] and as it may tend to
prove the relationship between Mr. Bryant and Mr. Smith in this case. [¶] You are not to
consider this evidence for any other purpose. [¶] The court is not suggesting that the
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evidence is probative on any of the points that I listed, but only [that] you may consider it
on those particular issues and no other.‖32
Defendants first label the evidence irrelevant because the prosecution failed to
show Bryant was so angered by the affair that he would want to kill Curry. That
argument fails. A witness testified Tannis said Bryant admitted he had put the bomb in
Curry‘s car, and would continue to try to kill Curry until he succeeded.33 Bryant argues
the testimony was privileged as a marital communication under Evidence Code section
980. As we discuss post, in part III.B.6, the trial court properly rejected that assertion.
Smith similarly contends the trial court should have instructed the jury not to
consider the Curry bombing evidence ―against‖ him. Smith was not entitled to such an
instruction. The jury could infer that a jealous Bryant wanted to kill Armstrong and that
the others participated in the shootings on Bryant‘s orders. The parties at times have
referred to Bryant‘s jealousy as an alternative motive separate from a desire to protect
Family operations. These motives are not necessarily unconnected. The jury could
reasonably infer that Bryant acted on both.
Defendants also contend the trial court erroneously instructed that the Curry
attacks could be used to establish the identities of the Wheeler Avenue murderers. As
mentioned above, the court somewhat vaguely told the jury the evidence could be
32 The instruction also told the jury to consider the Curry evidence ―only as to‖
Bryant and Smith, and not as to Settle and Wheeler. As we explained ante, in part II.E.2.,
however, evidence of Bryant‘s motive to kill Armstrong was relevant as to all defendants
in the sense the jury could reasonably infer that their motives derived from Bryant‘s.
Wheeler‘s counsel objected to the admission of the Curry evidence. We assume Wheeler
may join in Bryant‘s and Smith‘s appellate claims, despite the trial court‘s instruction.
33 When questioned by the prosecution, Tannis denied having heard Bryant make the
statements at issue or speaking to anyone about them. The witness‘s testimony that she
heard Tannis talking about Bryant‘s statements was admissible as a prior inconsistent
statement under Evidence Code section 1235.
81
considered ―on the issue of . . . the identity of the person who committed any crime with
which the defendant is accused.‖
Assuming arguendo that the court‘s instruction was wrong, or at least potentially
confusing, any error was harmless. The Curry evidence itself was properly admitted to
support inferences other than identity. The section 352 determination was properly made.
There is little chance the jury would have drawn an impermissible ―identity‖ inference
that the crimes were so similar and distinctive that the same person committed them.
(See Scott, supra, 52 Cal.4th at p. 472.) No instruction from the court or argument from
the parties relied on the evidence for that purpose. To the extent we assume the evidence
was insufficient to support an inference of identity under section 1101(b), we can
presume that any rational juror would have followed the trial court‘s instruction and
found that the facts of the crimes simply did not support the particular inference that the
same persons committed all of them. (People v. Nunez and Satele (2013) 57 Cal. 4th 1,
49 (Nunez).)
5. Smith’s Flight After the Curry Shooting
The court admitted evidence that after shooting Curry, Smith tried to evade
apprehension, leading police on a high-speed chase and throwing items from his car.
Cocaine and a handgun ultimately were found in his possession. Smith now argues the
evidence of the cocaine and the chase were irrelevant or unduly prejudicial. The
arguments fails.
Smith‘s counsel acknowledged that the drug possession was relevant to prove his
connection to the Bryant Family. He urged however that proof of connection to the
Family had a ―prohibited 1101(a) purpose . . . that someone who is a member of the . . .
‗Family,‘ . . . might have a greater propensity to have committed these particular
homicides.‖ The prosecution never made such an argument and Smith requested no
limiting instruction. Smith later moved to strike the drug possession testimony because
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the witnesses had not testified that the drugs were in a unique cookie shape common to
the Bryant Family rock cocaine. Therefore, his arrest became like ―any other drug bust.‖
On appeal, Smith renews his contention that the cocaine evidence was irrelevant
because the prosecution failed to establish the distinctive shape. The evidence was
relevant. While there was no testimony about the cocaine‘s shape, a witness did testify
that the drugs were packaged in a manner similar to that used by the Family. To the
extent Smith continues to rely on section 1101(a) as a basis for exclusion, the cocaine
clearly was not admitted to establish conduct in conformity with a character trait. Smith
made no section 352 objection below. Any appellate claim on that ground is forfeited.
Smith also contends the evidence of the car chase should have been excluded.
Again, the challenge is forfeited for failure to object. Furthermore, the evidence was
clearly relevant. Smith‘s efforts to evade the police and his apparent attempt to discard
items during the chase had a tendency in reason to show that he knowingly possessed the
drugs later found in the car, helping to show his connection to the Bryant Family.
B. Challenges to the Admission of Witness Testimony and Out-of-Court
Statements
Bryant and Smith contend the trial court improperly admitted various hearsay
statements. We assume Wheeler has joined in these claims. Many challenges are
forfeited for failure to object below. (Evid. Code, § 353, subd. (a), People v. Partida
(2005) 37 Cal. 4th 428, 433-434.)34 Defendants occasionally contend the admission of
34 Defendants often contend that the trial court‘s asserted evidentiary errors deprived
them of due process under the federal Constitution. As noted, when no specific federal
constitutional challenge to the evidence was raised below, such appellate claims are
preserved only to the extent that the federal aspect is a gloss on the claim of error actually
raised. (Scott, supra, 52 Cal.4th at p. 487, fn. 29.) Nonetheless, contrary to defendants‘
apparent argument, every state law error does not automatically result in a violation of
the federal Constitution under Hicks v. Oklahoma (1980) 447 U.S. 343, 346. (People v.
Cudjo (1993) 6 Cal. 4th 585, 611 [―for the most part . . . the mere erroneous exercise of
discretion under such ‗normal‘ rules [of evidence] does not implicate the federal
(footnote continued on next page)
83
hearsay violated their federal right to confrontation under the Sixth Amendment, along
with Crawford, supra, 541 U.S. 36, and its progeny. As the high court has made clear,
however, the focus of the confrontation clause is on the admission of testimonial hearsay
as that term is understood. The admission of nontestimonial hearsay does not implicate
the federal safeguard. (Michigan v. Bryant (2011) 562 U.S. ___, ___ [131 S. Ct. 1143,
1155].) Further, the Crawford rule does not apply when the declarant testifies and is thus
subject to cross-examination. (People v. Redd (2010) 48 Cal. 4th 691, 731.)
Defendants also raise a general confrontation clause challenge to the practice they
refer to as ―Greening‖ a witness under California v. Green (1970) 399 U.S. 149. Green,
in conjunction with Evidence Code section 1235, permits the introduction of a witness‘s
prior statements when he or she testifies inconsistently with or denies having made
them. 35 We recently rejected an identical challenge and do not reconsider that decision.
(People v. Dement (2011) 53 Cal. 4th 1, 23-24; see also People v. Clark (2011) 52 Cal. 4th
856, 927 (Clark).)
We now turn to defendants‘ specific challenges.
(footnote continued from previous page)
Constitution‖]; Engle v. Isaac (1982) 456 U.S. 107, 121, fn. 21 [―We have long
recognized that a ‗mere error of state law‘ is not a denial of due process. [Citation.] If
the contrary were true, then ‗every erroneous decision by a state court on state law would
come [to this Court] as a federal constitutional question.‘ ‖].)
35 Evidence Code section 1235 provides: ―Evidence of a statement made by a
witness is not made inadmissible by the hearsay rule if the statement is inconsistent with
his testimony at the hearing and is offered in compliance with Section 770.‖ Evidence
Code section 770 requires that before an inconsistent statement is admitted, the witness
must be given ―an opportunity to explain or deny the statement,‖ or must be subject to
being recalled as a witness.
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1. Winifred Fisher
Defendants challenge admission of Winifred Fisher‘s hearsay statements. Any
error was harmless.
The detective investigating Kenneth Gentry‘s murder interviewed Winifred Fisher.
The prosecutor asked the detective to ―describe for the members of the jury what it was
that Mr. Fisher related to you in conjunction with Mr. Gentry‘s death.‖ Smith‘s attorney
objected on the grounds of hearsay and lack of foundation. In response, the prosecutor
elicited that Fisher had died. The court asked Smith‘s attorney, ―Does that massage [sic]
your doubts or do you wish more?‖ Counsel replied, ―No,‖ and the court instructed the
prosecutor to continue. The detective related Fisher‘s statement that he, Gentry, and
Michael Flowers bought substandard ―dope‖ from a person named Bryant. When they
challenged the quality of the drugs, ―Bryant‖ refused a refund. In retaliation, the three
vandalized a van belonging to Roscoe Bryant. The Bryant who sold the drugs learned
they had done so and was angered.
Bryant and Wheeler never made or joined in any objection. Smith withdrew his
hearsay and foundation objections to the testimony. Nonetheless, rather than become
enmeshed in the forfeiture issue, in a case tried before Crawford was decided, we treat
the confrontation claim as preserved. (See People v. Pearson (2013) 56 Cal. 4th 393,
461-462.)
Any assumed error was harmless. Defendants offer no argument on that point. As
Livingston, supra, 53 Cal.4th at page 1159, points out, the harmless beyond a reasonable
doubt standard of Chapman, supra, 386 U.S. 18, applies to confrontation clause
violations. Although Fisher was absent, Michael Flowers did testify and was cross-
examined. His out-of-court statements inconsistent with that testimony were properly
85
admitted. Flower‘s statements conveyed the same information on this collateral issue.
Fisher‘s statements to the detective were merely duplicative.36
2. Benny Ward
Benny Ward told police, essentially, that 45 minutes before Gentry‘s murder,
Gentry said he had just seen Stanley Bryant driving by. Gentry said if he had been armed
he would have confronted Bryant. Called as a prosecution witness, Ward denied being
with Gentry and did not recall hearing Gentry say he saw Bryant. Over defendants‘
objections, the detectives testified as to what Ward had told them.
Defendants contend that Ward‘s statements were improperly admitted as prior
inconsistent statements (Evid. Code, § 1235) and Gentry‘s statements to Ward were
double hearsay improperly admitted as spontaneous statements (Evid. Code, § 1240).37
The arguments fail.
Defendants first argue that Ward‘s testimony was not inconsistent with his prior
statements, because he only testified that he did not remember the conversation with
Gentry. The trial court, however, reasonably found that Ward‘s claimed failure of
recollection was actually a deliberate evasion tantamount to a denial. This ruling is
supported by the fact that Ward had been able to recall Gentry‘s statements during a
police interview conducted 10 years after the murder, but claimed memory loss when he
36 For this reason, to the extent defendants raise claims of ineffective assistance of
counsel regarding the failure to preserve the confrontation clause issue, any alleged
deficient performance was not prejudicial.
37 Evidence Code section 1240 provides: ―Evidence of a statement is not made
inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or
explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made
spontaneously while the declarant was under the stress of excitement caused by such
perception.‖
86
testified two and a half years later. (See People v. Collins (2010) 49 Cal. 4th 175, 215
(Collins); People v. Ervin (2000) 22 Cal. 4th 48, 84-85.)38
Defendants next contend Gentry‘s statement to Ward was not a spontaneous
statement. (Evid. Code, § 1240.) There is no dispute that Gentry‘s statements
spontaneously narrated an event he was perceiving. Defendants argue, however, that the
event itself was not sufficiently startling or emotion-provoking to induce the excitement
required as foundation for the hearsay exception.
― ‗[I]f the declarations are made under the immediate influence of the occurrence
to which they relate, they are deemed sufficiently trustworthy to be presented to the jury.
[Citation.] [¶] The basis for this circumstantial probability of trustworthiness is ―that in
the stress of nervous excitement the reflective faculties may be stilled and the utterance
may become the unreflecting and sincere expression of one‘s actual impressions and
belief.‖ ‘ [Citation.]‖ (People v. Poggi (1988) 45 Cal. 3d 306, 318.) ― ‗To render [such
statements] admissible it is required that (1) there must be some occurrence startling
enough to produce this nervous excitement and render the utterance spontaneous and
unreflecting; (2) the utterance must have been before there has been time to contrive and
misrepresent, i.e., while the nervous excitement may be supposed still to dominate and
the reflective powers to be yet in abeyance; and (3) the utterance must relate to the
circumstance of the occurrence preceding it.‘ [Citations.]‖ (Ibid.) ―The crucial element
in determining whether an out-of-court statement is admissible as a spontaneous
declaration is the mental state of the speaker.‖ (People v. Gutierrez (2009) 45 Cal. 4th
789, 811.)
38 The court also instructed the jury on this point as follows. ―If you disbelieve a
witness‘ testimony that he or she no longer remembers a certain event, such testimony is
inconsistent with a prior statement or statements by him or her describing that event.‖
(See CALJIC No. 2.13.)
87
There was evidence that Gentry, Fisher, and Flowers had bought drugs from a man
named Bryant. A dispute arose over the drugs‘ quality. Dissatisfied with the resolution,
the three vandalized a van belonging to another member of the Bryant Family.
Substantial evidence supported the reasonable inferences that the Bryant Family was a
violent drug gang whose members would take a jaundiced view of vandalizing their
property and that one should not engage in further interaction with them unless armed.
Thus, the trial court could reasonably find that Gentry, having engaged in some ill-
advised vandalism, was startled by seeing one of the Bryants driving by. His reference to
the need for weaponry was consistent with this interpretation. The events, taken in
context, produced a nervous reaction sufficient to satisfy the spontaneous statement
exception. The court‘s conclusion was well within the realm of reason.
3. Sofinia Newsome
Defendants contend the court improperly allowed Sofinia Newsome to testify that
Kenneth Gentry told her about the fractious drug deal and vandalism. They argue
Gentry‘s statement did not qualify as a declaration against his interest under Evidence
Code section 1230. This challenge is forfeited; the sole objection made at trial, by Bryant
only, was that the statement was ―not a declaration against penal interest as to anybody
except Ken Gentry.‖ Thus, counsel acknowledged that the statement was, in fact,
contrary to Gentry‘s interest in avoiding criminal liability.
4. William Johnson
Defendants challenge the admission of statements by William Johnson as
inadmissible hearsay and unduly prejudicial. Their claims lack merit.
Johnson was arrested during a police raid on a Bryant Family drug house. At trial
he claimed to be a freelance drug dealer, and generally denied knowing about the
Family‘s operations. He also denied he was afraid to testify. The prosecutor then asked
Johnson about inconsistent statements he had made during a police interview. In those
88
statements he recounted details of the Family‘s operations and his role. He spoke of his
fear to cooperate with authorities. Wheeler objected that Johnson‘s statements that
witnesses might be killed were unduly prejudicial and should be excluded under section
352. The court overruled the objection, observing that the statements related to
Johnson‘s demeanor and credibility.
On cross-examination, Bryant questioned Johnson about an interview statement he
made seeming to suggest police had arrested and then released the ―real‖ Wheeler
Avenue murderer. 39 On redirect, Johnson testified that the statement concerned a
different murder.
The prosecution subsequently sought to introduce an edited recording of Johnson‘s
police interview. Johnson was asked, ―The quadruple homicides — the wrong people are
in custody?‖ He replied, ―It‘s not the wrong people in custody, but there‘s more people
out there . . . that‘s putting more pressure down.‖
Defendants first objected that the entire statement was ―vague‖ and ―rambling‖
and therefore substantially more prejudicial than probative. The court overruled the
objection.
Smith and Wheeler also objected that Johnson‘s statement about the ―right people‖
being in custody for the Wheeler Avenue murders was based on speculation or hearsay,
and unduly prejudicial. Bryant objected on a different ground — that the ―right people‖
statement was not inconsistent with the statement asked about in cross-examination
because they each concerned different subjects. The court overruled the objections, but
39 Counsel asked Johnson if he told the police ―they had arrested the right people but
let them go after a few months.‖ Counsel later revisited the subject and asked if Johnson
remembered saying, specifically, ―I‘m talking about when the murder first hit, ya all
picked his ass up and had him locked up for about four or five months and let him go.‖
Johnson initially denied having made such statements.
89
offered to instruct the jury that it could not consider the ―right people‖ statement for its
truth, but only as it reflected on Johnson‘s state of mind and credibility. Defendants
chose not to request such an instruction so that the matter would not be highlighted to the
jury. The court told the jury that to the extent it found Johnson‘s testimony inconsistent
with his statement to police, it could consider the prior statement as both credibility
evidence and for the truth of the matters stated. (CALJIC No. 2.13.) No defendant
objected to the instruction.
The trial court properly overruled defendants‘ section 352 objections. Evidence of
Johnson‘s fear of retaliation and the basis of that fear was relevant to his credibility,
which was aggressively challenged on cross-examination. (People v. Mendoza (2011) 52
Cal. 4th 1056, 1084; People v. Harris (2008) 43 Cal. 4th 1269, 1288 (Harris); Gonzalez,
supra, 38 Cal.4th at p. 946.) His statements about the Family organization were
probative of the circumstances of and motivations for the Wheeler Avenue murders.
Nothing in Johnson‘s statements was unduly prejudicial as that term is properly
understood. (Scott, supra, 52 Cal.4th at p. 491.) Defendants forfeited the claim that the
reasons for Johnson‘s fear should not have been admitted for the truth. They did not
object to the instruction.
The court also properly admitted the ―right people‖ statement. It was relevant to
the jury‘s evaluation of the statement Bryant introduced regarding the police having
released some murderer. Defendants waived the claim that the court erred by admitting
this statement for its truth because they agreed to forgo a limiting instruction.
5. Lawrence Walton and Ladell Player
Defendants raise conclusory claims that the trial court improperly admitted
testimony and out-of-court statements by Lawrence Walton and Ladell Player. They
admit that some statements were relevant and probative. They assert that other largely
unspecified aspects of the statements were ―irrelevant and/or cumulative to the issues in
90
the present case and highly prejudicial.‖ To the extent they do not specify the evidence
they contest, they fail to properly present the issue. Defendants do mention testimony
and statements concerning the witnesses‘ reluctance to testify and concern that
defendants would learn that they had spoken with the authorities. As with defendants‘
challenge to William Johnson‘s statements, such issues were relevant to the jury‘s
assessment of credibility.
In his reply brief, Bryant asserts that the court erroneously refused to accept a
stipulation from defendants that they ―were selling drugs,‖ which assertedly would have
made the testimony and evidence regarding the Bryant Family operations cumulative and
unduly prejudicial. That contention is forfeited because it was not raised in the opening
brief. Further, it is meritless. Wheeler‘s counsel asserted that the testimony would be
cumulative because the court had already admitted a great deal of evidence about the
drug business. Counsel stated, ―there is not one count that we are currently dealing with
that deals with the drug organization or selling drugs. If that is the case, we will stipulate
that they were selling drugs. The issue is the murder case.‖ The trial court, however,
pointed out that the other defendants had disputed the nature of the Bryant Family
organization. There was no further discussion of a stipulation. Bryant‘s claim is
unfounded.
6. Tannis Curry
Bryant contends the trial court erred in permitting testimony that he told Tannis he
had put the bomb in Keith Curry‘s car and would continue to try and kill him.
Gwendolyn Derby testified that she overheard Tannis repeating Bryant‘s statements to a
hairdresser. He argues his statements were protected by the confidential marital
91
communications privilege. (Evid. Code, § 980.)40 The trial court properly found the
statements were not ―made in confidence‖ as required by the statute.
As an initial matter, Bryant was statutorily authorized to assert the confidential
marital communications privilege even though a third party testified about the contents
that Tannis disclosed to someone else.41 Evidence Code section 980 provides that one
spouse may prevent both the other spouse and another person from testifying about the
communication. Evidence Code section 912, subdivision (b), provides that a waiver of
the privilege by one spouse does not prevent the other from claiming the privilege. (See
North v. Superior Court (1972) 8 Cal. 3d 301, 310.)
On appeal, Bryant attempts to recast the trial court‘s ruling as based on erroneous
legal conclusions that (1) the privilege was inapplicable because Bryant and Tannis were
not living together when the statement was made, or (2) that exceptions to the privilege
applied because Bryant‘s statements ―criminally victimized‖ Tannis, 42 or were made in
furtherance of a crime.43 The attempts fail. The court‘s comments reveal that it did not
base its rulings on the exceptions. Nor did the court fail to recognize the privilege
outlives the marriage. Instead, the court properly found Bryant‘s statement was not
―made in confidence,‖ as the statute requires. The court repeatedly stated this view in
40 Evidence Code section 980 provides: ―Subject to Section 912 [concerning waiver
of a privilege] and except as otherwise provided in this article, a spouse (or his guardian
or conservator when he has a guardian or conservator), whether or not a party, has a
privilege during the marital relationship and afterwards to refuse to disclose, and to
prevent another from disclosing, a communication if he claims the privilege and the
communication was made in confidence between him and the other spouse while they
were husband and wife.‖
41 Tannis denied both that Bryant made the statement and that she repeated it to
others.
42 Evidence Code section 985.
43 Evidence Code section 981.
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various ways: (1) ―So it sort of stretches the imagination that a statement, if one was
made to Tannis Curry indicating [Bryant‘s] continued desire to kill Keith Curry, was
something that he hoped for her to keep a secret or expected would remain confidential‖;
(2) ―assuming that [there was] a valid marriage, the court will rule that there was no . . .
reasonable expectation by either party that this would be a privileged [communication]‖;
(3) ―I don‘t think that one could reasonably expect to keep that information private, a
direct threat evidencing a plan by Mr. Bryant to kill somebody. [¶] I am all for marital
bliss. But one would not be able to expect any spouse in any marriage to keep that secret,
a plan to kill somebody. That would . . . enable her boyfriend to then be killed‖; (4) ―It is
not a confession but a confession coupled with a statement of present intention to do
harm to that person or in fact kill him. [¶] That is not the kind of statement that anybody
would expect to remain private. If they did, especially when given to the estranged wife,
that would not be a reasonable inference to draw — that you would expect that she would
not warn this guy at least.‖ The other circumstances mentioned were factors the court
considered in assessing whether the statement was made in confidence, not, as Bryant
argues, independent, and legally erroneous, reasons to reject assertion of the privilege.
As to the merits of the ruling, there was no error. ―To make a communication ‗in
confidence,‘ one must intend nondisclosure [citations], and have a reasonable expectation
of privacy [citation].‖ (People v. Mickey (1991) 54 Cal. 3d 612, 654.) ―As a general
matter, the claimant of the confidential marital communication privilege has the burden
to prove, by a preponderance of the evidence, the facts necessary to sustain the claim.
[Citation.] He is aided by a presumption that a marital communication was made in
confidence. (Evid. Code, § 917.) The opponent has the burden to prove otherwise
[citation] by a preponderance of the evidence [citation].‖ (Id. at p. 655.) Here, the
presumption was adequately rebutted. Bryant presented no evidence that he actually
intended nondisclosure. Given that the statement was a threat to murder the current lover
of his estranged wife, any expectation of confidentiality would have been unreasonable.
93
Moreover, the circumstances give rise to a reasonable inference that Bryant affirmatively
intended Tannis to convey the threat to Curry to extinguish the relationship. (See People
v. Gomez (1982) 134 Cal. App. 3d 874, 879 [concluding in similar circumstances that the
defendant ―had no desire that the threats be kept secret[;] [t]he purpose of the threats to
[the spouse] was to terrorize her into curtailing her relationship with [the victim]‖].)
7. Francine Smith and Mona Scott
Defendants briefly contend error when Francine Smith and Mona Scott were
allowed to relate statements by victim Armstrong that he was ―owed‖ for having ―taken
the fall‖ for someone. They now attack the statements as hearsay. Defendants
acknowledge they did not object to the testimony on this (or any) ground at trial, but
argue an objection would have been futile in light of the court‘s decision to admit the tape
of Armstrong‘s police interview. ―The overruling of an objection to one item of evidence
does not necessarily mean an objection to different evidence would have been futile,‖
even when the items at issue concern the same subject. (Livingston, supra, 53 Cal.4th at
p. 1160.) In any event, as we explained regarding defendants‘ challenge to Armstrong‘s
interview statements, any error in admission was harmless even under the beyond a
reasonable doubt standard.
8. Karen Flowers
Karen Flowers testified that she had been romantically involved with Armstrong.
The prosecution wanted to show she called him using a telephone number belonging to
defendant Smith. The prosecution‘s theory was that Smith was friendly with Armstrong,
and part of Smith‘s role in the Wheeler Avenue murders was to lull the victims into a
false sense of security. Flowers testified that she could not remember the telephone
number she used but she had previously given the number to the police. After the court
overruled Smith‘s objection, the parties stipulated that Flowers had given the police that
particular number.
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Smith now contends the court wrongly overruled his objection that the number in
the report was ―double hearsay.‖ Bryant and Wheeler did not object or join in Smith‘s
objection. Thus, they have forfeited the claim. As to one level of hearsay, Smith
conceded that the report notation was admissible under the past recollection recorded
exception. (Evid. Code, § 1237.)44 The foundational requirements of the exception
were not more fully developed because Smith conceded the point.
Smith additionally contends, as he did at trial, that Flowers‘s statement was double
hearsay because Armstrong, or someone else, had told her this was his telephone number.
Smith has mischaracterized Flowers‘s testimony. When asked if she had ―a phone
number for [Armstrong] where you could contact [him],‖ she answered, ―yes,‖ but she
could not recall the number. The question and testimony concerned Flowers‘s personal
knowledge of the telephone number she had used to contact Armstrong. Flowers was not
asked and did not testify about a telephone number that someone gave her to contact
Armstrong. The ruling was proper.
9. James Williams
Smith contends the trial court erred by admitting part of a recording in which
James Williams told police Smith and Settle drove the bodies away from the murder
44 Evidence Code section 1237 provides: ―(a) Evidence of a statement previously
made by a witness is not made inadmissible by the hearsay rule if the statement would
have been admissible if made by him while testifying, the statement concerns a matter as
to which the witness has insufficient present recollection to enable him to testify fully and
accurately, and the statement is contained in a writing which: [¶] (1) Was made at a time
when the fact recorded in the writing actually occurred or was fresh in the witness'
memory; [¶] (2) Was made (i) by the witness himself or under his direction or (ii) by
some other person for the purpose of recording the witness' statement at the time it was
made; [¶] (3) Is offered after the witness testifies that the statement he made was a true
statement of such fact; and [¶] (4) Is offered after the writing is authenticated as an
accurate record of the statement. [¶] (b) The writing may be read into evidence, but the
writing itself may not be received in evidence unless offered by an adverse party.‖
95
scene. Bryant and Wheeler did not object at trial. In fact, they sought to introduce the
entire tape with only one unrelated redaction. The claim is forfeited. At trial Smith
objected only that the statements reflected inadmissible speculation. The trial court
overruled Smith‘s objection finding Williams had sufficient personal knowledge on the
point. Nothing in the record showed that this statement was based on information
gleaned from someone else. The court‘s ruling that other statements in the recording
could be admitted for the nonhearsay purpose of showing Williams‘s credibility did not
change the court‘s ruling on the statement at issue here. Accordingly, the hearsay claim
is both forfeited and meritless.
10. Documentary Evidence
Defendants contend the trial court improperly admitted various documents
including Western Union receipts detailing money transfers to people connected to Andre
Armstrong and assorted records seized from the Bryant Family drug houses. No
defendant objected to this evidence at trial. The claims are forfeited.
C. Admission of Photographs of the Victims
Defendants contend the court violated their constitutional rights by admitting
various photographs taken where the bodies were found and during the autopsies. The
evidence was admissible. ― ‗ ―The admission of photographs of a victim lies within the
broad discretion of the trial court when a claim is made that they are unduly gruesome or
inflammatory. [Citations.] The court‘s exercise of that discretion will not be disturbed
on appeal unless the probative value of the photographs clearly is outweighed by their
prejudicial effect. [Citations.]‖ [Citation.]‘ [Citations.] . . . Autopsy photographs are
routinely admitted to establish the nature and placement of the victim‘s wounds and to
clarify the testimony of prosecution witnesses regarding the crime scene and the autopsy,
even if other evidence may serve the same purposes. [Citation.]‖ (People v. Howard
(2010) 51 Cal. 4th 15, 33.) The court properly ruled the challenged items were relevant.
96
As to undue prejudice, we have reviewed the photographs at issue. As is usually the case
in a murder, they are unpleasant. The trial court did not exceed the bounds of reason in
finding that the probative value of the photographs was not substantially outweighed by
the risk of undue prejudice.45 Moreover, the court rejected some photographs proffered
by the prosecution, and admonished the jurors, in essence, to avoid letting any emotional
reaction affect their consideration of the evidence.46
D. Admission of Opinion Evidence Regarding Drug Business Operations
Detective James Dumelle testified about the police raids and arrests during the
1984-1985 investigation of the Bryant Family. During Bryant‘s cross-examination,
Dumelle testified that in his opinion, at the time of the Wheeler Avenue murders, Jeff
Bryant was in charge even though he was in prison. During redirect examination, the
prosecutor asked the detective, ―based on your understanding of the people running the
organization, what‘s your opinion as to who [Jeff Bryant] would leave in charge of‖ the
―people on the outside of the prison?‖ Bryant objected to the question on the grounds of
lack of foundation and improper opinion. The trial court overruled the objection, and
Dumelle answered that defendant Bryant would be in charge. On appeal, Bryant renews
his contention that the detective‘s answer was improper, because it constituted
45 Defendants challenged the admission of X-ray images taken during the autopsy of
Chemise only on relevance grounds, not as unduly prejudicial. Their section 352
challenge to these items is forfeited. (People v. Valdez (2012) 55 Cal. 4th 82, 138-139
(Valdez).)
46 The court instructed the jury as follows: ―You are going to be allowed during the
testimony of [the pathologist] to view some photographs that he is going to describe for
you, photographs of the four decedents in this case. The photographs are not given to
you with the idea of inflaming you or trying to affect you emotionally, but because the
court feels there is some relevance to the photographs that is not outweighed by any
potential damaging effect by your seeing the photographs. I want you to keep in mind
that they are simply evidence like every other piece of evidence in this case.‖
97
unsupported opinion testimony. Smith and Wheeler forfeited the claim for failure to
object. The evidence was also admissible. Bryant relied on Dumelle as an expert on the
structure of the organization by eliciting the opinion that Jeff was in charge despite his
imprisonment. The trial court properly admitted his opinion about an additional aspect of
organization structure and operations. (See Evid. Code, § 720, subd. (a) [―A person is
qualified to testify as an expert if he has special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the subject to which his testimony
relates.‖]; People v. Fuiava (2012) 53 Cal. 4th 622, 672 (Fuiava).) Moreover, Bryant was
free to challenge the persuasive value of Dumelle‘s opinion on recross-examination.
E. Questioning of Bryant by the Trial Court
Defendants contend that during the prosecutor‘s cross-examination of Bryant, the
court posed a series of hostile questions demonstrating a failure to remain impartial, and
violating their rights to due process. No defendant objected at trial; the claim is forfeited.
(People v. Harris (2005) 37 Cal. 4th 310, 350.) The failure to object is particularly
significant here because the claim may rest on an error in the reporter‘s transcript in
attributing the questions to the court, rather than the prosecutor.47
47 In response to the first question supposedly asked by the court — whether Bryant
was ―selectively answering questions you choose to answer because you figure they‘re
safe questions to answer‖ — Bryant answered, ―I‘m answering the questions to the best
of my ability when you ask me and the other attorneys,‖ implying that it was an attorney,
i.e., the prosecutor, asking this question and those that followed, not the trial judge.
During a remand from this court to allow the trial court to make other specified
record augmentations and corrections, the trial court found that the reporter‘s transcript
was, indeed, erroneous in the attribution of the questions at issue. Bryant contends the
trial court‘s finding was outside the scope of its authority granted by the remand order.
We need not resolve the propriety of the trial court‘s finding here because defendants‘
appellate claim is forfeited.
98
F. The Trial Court’s Comments on Costs of Trial
Defendants contend the trial court improperly mentioned to the jury the expense of
the trial. They point to a few instances over the course of several months in which the
court referred to trial costs. They assert that these references may have prejudicially
coerced the jury when it deliberated. Assuming the challenges are not forfeited (see
§ 1259),48 they lack merit.
The first references came early in the trial. The court told the jurors about
arrangements made to protect their privacy, such as having them escorted to court and
keeping them together in a jury room during the day. The court explained, ―we simply
cannot afford to have trials blow up because the jury cannot follow the court‘s
instructions. . . . It costs a lot of money to run this courtroom. I won‘t bore you with the
details, only to say it is astronomical. That means we must have everybody on the same
wavelength, not speaking about the case, not doing anything for no good reason that
would result in a mistrial.‖ After several days of testimony, the court asked jurors
whether the arrangements were causing any problems. The court stated that ―the
arrangements that we have to get you to court in the morning and to keep you in the
building during the day and to provide lunches and so forth, those are being done for your
benefit and at considerable expense. [¶] I won‘t bore you with the details about those
bills I sign every single day and you would be very surprised. So I will not get into that
with you.‖ Later in the discussion, the court reminded the jury that it was not ―do[ing]
this lightly at all. We certainly do not need to get into any more expense than we have to,
but it is appropriate for the reasons I stated earlier.‖
48 Section 1259 provides, in relevant part, ―The appellate court may . . . review any
instruction given, refused or modified, even though no objection was made thereto in the
lower court, if the substantial rights of the defendant were affected thereby.‖
99
We addressed similar comments in People v. Andrews (1989) 49 Cal. 3d 200.
There, the trial court mentioned the cost of running the courtroom and the expense of a
retrial to stress the importance of the jurors following the admonition not to discuss or
investigate the case outside of the court proceedings. We concluded there was no
reasonable likelihood of any improper effect on the jury because ―[t]he comments merely
constituted an attempt by the trial court to stress the importance of obeying the court‘s
admonitions.‖ (Id. at p. 221.) The same considerations apply here. The comments were
made in the context of explaining the necessity for the special arrangements regarding the
jury‘s coming and goings and the importance of the court‘s instructions. Moreover, the
court explicitly admonished the jurors that the special arrangements and costs should not
bear on their deliberations.49
The other two references defendants point to were even more oblique. In light of
trial testimony that in the past the Bryant Family had hired attorneys to represent
employees who were being prosecuted, defendants requested that the trial court instruct
that the attorneys representing defendants in this case had been appointed. The court
invited defendants to formulate the language of the instruction. It is unclear whether they
did so. The court ultimately instructed that the defense attorneys had been appointed, and
repeated that instruction in a slightly expanded form the next day when a juror asked for
clarification. The court first said, ―You heard some testimony in this case about Family
49 During the first discussion, the court stated, ―Let me explain what you cannot do
with this information I have given you. First of all, you are not to allow any
arrangements that I have made for my reasons to affect your verdict in this case, whatever
that verdict is, at any phase, guilt phase, or if we have a penalty phase.‖ In the second
discussion, the court stated, ―This is being done because the court thinks it is appropriate.
That is about all I will say at this point in time. [¶] And whether you think we are going
overboard with the accommodations or being too accommodating, you are entitled to
your opinion. But I don‘t want those opinions to in any way influence the manner in
which this case is decided . . . .‖
100
attorneys, things of that nature, two or three times. I don‘t remember what witness but let
me assure you as follows: That none of the defense attorneys in this case have been
retained by the defendants in this case. These attorneys are on our approved, very elite
death penalty list and they are the ones that the court calls upon and appoints to handle
cases wherein a potential penalty is death. These people, whether there are or are not
Family attorneys, these lawyers are not among that group.‖ In response to the juror‘s
question the following day, the court explained that the defense attorneys were not
Family attorneys, but had been appointed and paid by the court. The court then stated,
―I‘ll tell you this, too. Nobody can hire a lawyer for a death penalty case. I don‘t care
who you are, it costs too much money. I‘ve not yet seen a retained counsel on a death
penalty case, so these are appointed and paid by the State of California, all the lawyers in
this case.‖ The court told the jury that the fact that defense counsel were being paid by
the state was ―not an issue that is of any interest to you right now, shouldn‘t be,‖ nor was
it ―evidence of anybody‘s indigency or lack thereof,‖ the court was only trying to inform
the jury of the status of the attorneys, and that this information should not ―detract or add
to any other evidence in the case.‖ The court then asked the attorneys if what it had told
the jurors was ―agreeable to all counsel.‖ No counsel expressed any dissatisfaction.
Again, the court‘s comments in no way suggested that the expense of the attorneys
representing defendants should play a role in the jury‘s deliberations. The indirect
references came in the context of instructing the jury on a proper subject and at
defendants‘ request. The court admonished the jury not to take from the court‘s
instructions more than a clarification that the attorneys had not been hired by the Family.
There is no possibility that the court‘s comments regarding the cost of representation for
defendants had any prejudicial effect on the jury‘s deliberations.
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G. Asserted Prosecutorial Misconduct
Defendants contend the prosecution committed misconduct during the guilt phase
in both the presentation of evidence and argument. They forfeited nearly all of their
claims by failing to object and to request admonitions. (Gonzales, supra, 54 Cal.4th at
p. 1275.) Defendants‘ blanket assertion that admonitions could not have cured the
prejudice from the asserted misconduct is unpersuasive, as is their assertion that we
should apply a ―plain error‖ standard to review otherwise forfeited claims. (Fuiava,
supra, 53 Cal.4th at p. 727; Collins, supra, 49 Cal.4th at p. 204.) Defendants‘ failure to
object prevented the prosecution from developing the record to refute these claims and
prevented the trial court from taking steps to avoid or remedy any prejudice. We
therefore decline to address them. The only two claims of misconduct preserved for
appeal involve one statement of law and one concerning the facts. Both claims are
meritless.
― ‗The standards governing review of misconduct claims are settled. ―A
prosecutor who uses deceptive or reprehensible methods to persuade the jury commits
misconduct, and such actions require reversal under the federal Constitution when they
infect the trial with such ‗ ―unfairness as to make the resulting conviction a denial of due
process.‖ ‘ [Citations.] Under state law, a prosecutor who uses such methods commits
misconduct even when those actions do not result in a fundamentally unfair trial.‖
[Citation.] . . . When a claim of misconduct is based on the prosecutor‘s comments
before the jury, ― ‗the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable fashion.‘ ‖
[Citation.]‘ [Citation.]‖ (Gonzales, supra, 54 Cal.4th at p. 1275.)
Defendants contend the prosecutor misstated the appropriate legal definition of
what constitutes an accomplice. The prosecutor argued, ―Jay Williams is not an
accomplice in this case, and the reason he is not an accomplice is he has to be subject to
prosecution for exactly the same crimes, meaning he has to be guilty of these crimes.‖
102
Following a defense objection that the prosecutor had misstated the law, the trial court
stated to the jury, ―Well, he has to be shown to be an accomplice by the evidence, I think,
within the confines of the court.‖
Defendants contend the prosecutor‘s statement was improper because ―[n]ot
everyone who is ‗subject to prosecution‘ is guilty.‖ They appear to base this contention
on the notion that the term ―guilty‖ means only a formal adjudication of guilt in a court
proceeding. The trial court‘s admonition and the prosecutor‘s subsequent argument
adequately conveyed, however, that it was up to this jury to decide for itself whether
Williams was an accomplice in that he had aided and abetted the murders. There is no
reasonable likelihood the jury interpreted the prosecutor‘s isolated comment to mean
Williams could not be an accomplice because he had not been convicted.
Wheeler contends the prosecutor engaged in misconduct by arguing against facts
he knew to be true.50 A prosecution witness had testified that Wheeler sold drugs for the
Family as far back as 1986. Wheeler denied that was so, testifying he had been confined
in county juvenile and California Youth Authority facilities from 1985 through late 1987.
He testified that he did not join the Family until February 1988, only six months before
the murders. In closing argument, Wheeler‘s counsel contrasted Wheeler‘s brief
connection to the Family with the lengthy relationships of the other defendants, and
suggested that Williams framed Wheeler because he was the ―odd man out.‖
The prosecutor addressed Wheeler‘s ―alibi‖ in argument to the jury as follows:
―Now, he admits yeah, I am a dope dealer, but they could not have met me then because I
was in custody. Well, that is a fine defense, but nonetheless, he went to juvenile camp,
and the juvenile camp had him in and out of custody.‖ Wheeler objected that the
50 Bryant and Smith did not object to this asserted misconduct or raise it as a claim
on appeal; the issue does not appear to relate to them at all.
103
prosecutor had misstated the evidence, and the trial court agreed, stating, ―There is no
evidence. Jury is admonished to disregard.‖ The prosecutor went on, ―There is no
evidence, no records to show when Wheeler was in custody and when he was not. And if
it was true he was in custody that entire time, how easy to show that. If there is any truth
at all to that, how easy to show that. Oh, just take Leroy Wheeler‘s word for it. Leroy
Wheeler, the man lied to the police with every word he said, and lied to you a number of
times. But take my word for that. Yeah right.‖ Wheeler later raised an objection that the
prosecutor had, in effect, argued that Wheeler‘s testimony was false when records the
prosecution had provided confirmed that he was in custody during the relevant period.
Wheeler also raised this issue in his motion for a new trial and provided confirming
records. The trial court overruled the objection and denied the motion for a new trial.
On appeal, Wheeler renews his claim that the prosecutor‘s statements were
improper. The Attorney General responds that the prosecutor permissibly commented on
the state of the evidence, urging that Wheeler‘s own testimony was not credible, and that
he had failed to present other available evidence to support his testimony. (See People v.
Chatman (2006) 38 Cal. 4th 344, 407; People v. Wash (1993) 6 Cal. 4th 215, 263.) We
agree with Wheeler, however, that this assertion misses the point. It is misconduct for a
prosecutor to urge a failure of proof and argue the contrary is true, when the prosecutor
knows or should know the assertion is, in fact, false. Further, ― ‗[u]nder well-established
principles of due process, the prosecution cannot present evidence it knows is false and
must correct any falsity of which it is aware in the evidence it presents . . . .‘ ‖ (People v.
Harrison (2005) 35 Cal. 4th 208, 242.)
Wheeler‘s juvenile records reflect that Wheeler was arrested in 1985, committed
to the county juvenile hall, then a California Youth Authority facility, and ultimately
paroled in November 1987. There is no indication that Wheeler was ever released from
custody, even temporarily, during that time. It was improper to suggest that a failure to
produce the records could be relied upon to show that Wheeler‘s testimony was not true
104
when the prosecutor knew or should have known the records appeared to corroborate
Wheeler.
We nonetheless conclude any misconduct was not reversible. It clearly fell within
the jury‘s province and capability to weigh the credibility of the conflicting testimony on
this tangential subject. It was undisputed that Wheeler sold drugs for the Family and
processed money at Wheeler Avenue. The jury was instructed that the parties were not
required to present all available evidence concerning an issue.51 Moreover, Wheeler‘s
credibility had already been substantially undermined. By his own admission he had lied
extensively to police officers investigating the murders. The trial was not fundamentally
unfair, nor is there a reasonable probability the outcome would have been more favorable
to Wheeler in the absence of the prosecutor‘s brief and sarcastic argument suggesting yet
another reason to disbelieve his testimony on a collateral issue.
H. Accomplice Determinations and Jury Instructions
Defendants raise several challenges relating to accomplice testimony. The trial
court did not err.
1. Accomplices as a Matter of Law
Defendants‘ primary claim that Williams was an accomplice as a matter of law
relies on section 1111. The statute provides, ―A conviction can not be had upon the
testimony of an accomplice unless it be corroborated by such other evidence as shall tend
to connect the defendant with the commission of the offense; and the corroboration is not
sufficient if it merely shows the commission of the offense or the circumstances thereof.
51 The trial court instructed the jury with CALJIC No. 2.11: ―Neither side is required
to call as witnesses all persons who may have been present at any of the events disclosed
by the evidence or who may appear to have some knowledge of these events. Neither
side is required to produce all objects or documents mentioned or suggested by the
evidence.‖
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[¶] An accomplice is hereby defined as one who is liable to prosecution for the identical
offense charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.‖ (Ibid.) ― ‗[A]n accomplice is one who aids or promotes the
perpetrator‘s crime with knowledge of the perpetrator‘s unlawful purpose and an intent to
assist in the commission of the target crime . . . .‘ [Citation.] ‗In order to be an
accomplice, the witness must be chargeable with the crime as a principal (§ 31) and not
merely as an accessory after the fact (§§ 32, 33).‘ [Citation.]‖ (People v. McKinzie
(2012) 54 Cal. 4th 1302, 1353.)
―Whether someone is an accomplice is ordinarily a question of fact for the jury;
only if there is no reasonable dispute as to the facts or the inferences to be drawn from the
facts may a trial court instruct a jury that a witness is an accomplice as a matter of law.‖
(Valdez, supra, 55 Cal.4th at pp. 145-146.) ―[A] court can decide as a matter of law
whether a witness is or is not an accomplice only when the facts regarding the witness‘s
criminal culpability are ‗clear and undisputed.‘ ‖ (People v. Williams (1997) 16 Cal. 4th
635, 679.) The trial court here instructed the jury that defendants bore the burden of
proving that Williams was an accomplice. If it found he was an accomplice, it was
required to find corroboration for his testimony, and it should view his testimony with
caution. (See CALJIC Nos. 3.11, 3.12, 3.13, 3.18, and 3.19; see also CALCRIM
No. 334.)
Defendants claim a number of facts establish that Williams assisted in the murders
as an accomplice. That is a jury question. The court’s task was not to determine whether
the jury could reasonably find Williams was an accomplice, but rather whether it could
only reasonably find that he was an accomplice.52 Williams testified that he followed
52 Similarly, defendants at times mischaracterize the trial court‘s ruling as its having
found that Williams was not an accomplice, e.g., that the court treated Williams‘s ―self-
(footnote continued on next page)
106
Bryant‘s orders. He suspected the possibility of an armed conflict at Wheeler Avenue
between the Family employees and unknown people who were to arrive there. However,
he did not actually know what was going to happen and did not intend to assist in
murdering the visitors. If the jury credited this testimony, it would have properly found
he was not an accomplice to murder because he lacked the required knowledge and
intent. ―Providing assistance without sharing the perpetrator‘s purpose and intent is
insufficient to establish that a person is an accomplice.‖ (Carrington, supra, 47 Cal.4th
at p. 191; see also People v. Sully (1991) 53 Cal. 3d 1195, 1227 [an accessory after the
fact under §§ 32 and 33 is not an accomplice].) An accomplice must ―share[] the
perpetrator’s criminal purpose‖; even providing ―assistance with knowledge of the
perpetrator‘s criminal purpose‖ is insufficient. (People v. Balderas (1985) 41 Cal. 3d 144,
194 (Balderas).) The trial court correctly declined to find Williams was an accomplice as
a matter of law. (Valdez, supra, 55 Cal.4th at pp. 146-147; People v. Stankewitz (1990)
51 Cal. 3d 72, 91.)
The trial court, contrary to defendants‘ arguments, did not apply an incorrect
standard in resolving this issue, nor did defendants raise the assertion below, forfeiting
this challenge. The court did not state or imply that Williams was not an accomplice
because he had not been convicted of the murders. It did not substitute a generic
sufficiency of the evidence standard for the ―liable to prosecution‖ standard in section
1111. The court made clear that the basis for its ruling was the disputed evidence
regarding Williams‘s status.
(footnote continued from previous page)
serving exculpatory statements as dispositive of his accomplice status.‖ To the contrary,
the court clearly, and properly, left that question to the jury, and instructed it accordingly.
107
Defendants also raise two related arguments. First, they observe that Williams
was initially charged with the same crimes as defendants, including participating in the
illegal drug distribution conspiracy. Accordingly, they urge he was ―not only ‗liable‘ to
prosecution for the murders, he was actually prosecuted.‖ The trial court properly ruled
the filing of charges did not establish as a matter of law that he was an accomplice.
Riggs, supra, 44 Cal. 4th 248, is instructive. There, the trial court properly declined to
find the witness was an accomplice as a matter of law even though she had already been
convicted and sentenced for the same murder at issue. (Id. at pp. 312-313.) Similarly,
we held in People v. Garrison (1989) 47 Cal. 3d 746, 772, ―[t]he fact that a witness has
been held to answer for the same crimes as the defendant and then granted immunity does
not necessarily establish that he or she is an accomplice.‖ Defendants‘ argument that
Williams was an accomplice because he was still ―liable to prosecution‖ for the drug
conspiracy offense, which had been severed from the murder charges, is unsupported by
the language of the statute. Under section 1111, an accomplice is ―one who is liable to
prosecution for the identical offense charged against the defendant on trial in the cause in
which the testimony of the accomplice is given.‖ (Italics added.) In determining whether
Williams was an accomplice to murder, the jury was not called on to decide whether
defendants were guilty of drug conspiracy.
Next, defendants contend Williams was an accomplice as a matter of law under
the natural and probable consequences theory of aider and abettor liability. They urge
that because Williams admittedly participated in the Bryant Family drug conspiracy, he
was liable for these murders as the natural and probable consequences of the drug
operation. This theory fails. ―A person who knowingly aids and abets criminal conduct
is guilty of not only the intended crime but also of any other crime the perpetrator
actually commits that is a natural and probable consequence of the intended crime. The
latter question is not whether the aider and abettor actually foresaw the additional crime,
but whether, judged objectively, it was reasonably foreseeable.‖ (People v. Mendoza
108
(1998) 18 Cal. 4th 1114, 1133.) There is no doubt that drug dealing and violence
commonly go hand in hand, and that the Bryant Family organization historically used
violence against those who crossed them. However, those facts standing alone do not
establish as a matter of law that one of the reasonably foreseeable results of the drug
dealing conspiracy was this particular set of murders. (See People v. Hinton (2006) 37
Cal. 4th 839, 880 [murder is not ―a natural and probable consequence of any drug deal
‗involving a large sum of money‘ ‖]; People v. Ward (2005) 36 Cal. 4th 186, 213 [murder
is not a natural and probable consequence of any drug sale]; People v. Garceau (1993) 6
Cal. 4th 140, 183 (Garceau) [the record failed to establish as a matter of law that the
murders at issue were a natural and probable consequence of an illegal drug
manufacturing conspiracy, despite prior threats by members of the organization to ―kill
‗snitches‘ ‖].)
Defendants also contend Bryant‘s ex-wife Tannis was an accomplice as a matter
of law. Again the claim lacks merit. As with Williams, the fact that Tannis was initially
charged in the case is not dispositive. Defendants further suppose that she had planned to
lure Armstrong to Wheeler Avenue ―as a guarantee that he would be safe because of her
presence.‖ There is scant and conflicting evidence on this point, including the fact that
she ultimately did not accompany the victims. Even if the jury could have found that
Tannis planned to act as a lure to the victims, there is no evidence she knew a murder was
planned or that she acted with the requisite intent.
The trial court properly declined to instruct that Williams and Tannis were
accomplices as a matter of law. Because the jurors reasonably could have found
Williams was not an accomplice, we need not, and do not, decide whether there was
sufficient corroborating evidence as to each defendant.
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2. “Equally Guilty” Instruction
Defendants contend the trial court‘s instructions to the jury were erroneous
because the definition of principals in a criminal offense — those who commit and aid
and abet the offense — provided that each principal is ―equally guilty.‖ The court
instructed the jury, pursuant to CALJIC No. 3.00 (5th ed. 1988), that ―[t]he persons
concerned in the commission or attempted commission of a crime who are regarded by
law as principals in the crime thus committed or attempted and equally guilty thereof
include [those who commit and aid and abet the crime].‖ Defendants claim the
instruction prevented the jury finding that Williams was an accomplice to the murders
because he had not been convicted of the murders. They also argue that the jury might
have determined he was guilty of a lesser degree of homicide and thus was not ―equally
guilty‖ with defendants of first degree murder. Even assuming that this point is not
forfeited by the failure to object below (§ 1259), the instructions were proper.
As given CALJIC No. 3.10 defined an accomplice as ―a person who is or was
subject to prosecution for the identical offense charged against the defendant on trial by
reason of aiding and abetting.‖ CALJIC No. 3.01 as given defined an aider and abettor as
a person who, ―with knowledge of the unlawful purpose of the perpetrator and with the
intent or purpose of committing, encouraging, or facilitating the commission of the crime,
by act or advice, aids, promotes, encourages or instigates the commission of the crime.‖
Essentially, defendants claim the CALJIC No. 3.00 instruction led the jury to infer that,
in addition to the requirements set out in the court‘s other instructions, Williams could
not be an aider or abettor, and therefore an accomplice, unless the jury found him to be
―equally guilty‖ of the murders as defendants.
―It is fundamental that jurors are presumed to be intelligent and capable of
understanding and applying the court‘s instructions.‖ (People v. Gonzales (2011) 51
Cal. 4th 894, 940.) ― ‗A defendant challenging an instruction as being subject to
erroneous interpretation by the jury must demonstrate a reasonable likelihood that the
110
jury understood the instruction in the way asserted by the defendant. [Citations.]‘
[Citation.] ‗ ―[T]he correctness of jury instructions is to be determined from the entire
charge of the court, not from a consideration of parts of an instruction or from a particular
instruction.‖ [Citations.]‘ [Citation.]‖ (People v. Solomon (2010) 49 Cal. 4th 792, 822
(Solomon).)
Since defendants‘ 1995 trial, CALJIC No. 3.00 has been revised to address the
circumstance that aiders and abettors are not always guilty of the same crime as the actual
perpetrators. (See Use Note to CALJIC No. 3.00 (Spring 2010 rev..) (Fall 2010 ed.));
People v. McCoy (2001) 25 Cal. 4th 1111, 1122.) Currently, if an aider and abettor might
be guilty of a different crime than the actual perpetrator, the court should modify the
instruction to state, ―Each principal, regardless of the extent or manner of participation is
guilty of a crime.‖ (CALJIC No. 3.00, italics added; see also CALCRIM No. 400 [―A
person is guilty of a crime whether he or she committed it personally or aided and abetted
the perpetrator. [¶] [Under some specific circumstances, if the evidence establishes
aiding and abetting of one crime, a person may also be found guilty of other crimes that
occurred during the commission of the first crime.]‖].) This revision, however, addresses
quite different circumstances from the present case.
The instruction given generally stated a correct rule of law. All principals,
including aiders and abettors, are ―equally guilty‖ in the sense that they are all criminally
liable. (§ 31.) The instruction could be misleading if the principals in a particular case
might be guilty of different crimes and the jury interprets the instruction to preclude such
a finding. However, defendants‘ challenge to the instruction is not based on that potential
problem. Instead, they posit that the jury would interpret from this instruction an
additional requirement regarding the accomplice finding: that before finding Williams
was an aider and abettor, they must find he was guilty of the same crimes as the actual
perpetrators. There is no reasonable likelihood the jury would have parsed the
instructions in this tortuous manner, particularly in light of the court‘s other instructions
111
correctly defining accomplices, and the absence of any argument by the parties
suggesting this interpretation.
3. “Slight Evidence” Instruction
The trial court instructed, without objection, that the evidence of corroboration ―is
sufficient if it tends to connect the defendant with the crime even though it is slight and
entitled, when standing alone, to little consideration.‖ Defendants now contend the
instruction violated their constitutional right to due process by nullifying the
prosecution‘s burden to prove their guilt beyond a reasonable doubt. Assuming the claim
is not forfeited, the instruction correctly stated the law of corroboration. (People v.
Tewksbury (1976) 15 Cal. 3d 953, 969.) Section 1111 reflects a legislative determination
of how accomplice testimony must be treated. It does not create a new element of any
criminal offense, nor does it involve ―an issue bearing on the substantive guilt or
innocence of the defendant.‖ (People v. Frye (1998) 18 Cal. 4th 894, 968 (Frye).)
Defendants‘ reliance on the decisions of the federal courts of appeals concerning proof of
a defendant‘s participation in a conspiracy is inapt. Contrary to defendants‘ arguments,
the instruction did not convey to the jury that it ―could convict if there was slight
corroboration.‖ Instead, the instruction properly explained the corroboration requirement
as it related to the jury‘s consideration of accomplice testimony. The challenged
instruction in no way lowered the prosecution‘s burden of proof.
4. Instruction Regarding Lack of Prosecution
The trial court told the jury, ―There has been evidence in this case indicating that a
person other than a defendant was or may have been involved in the crime for which that
defendant is on trial. [¶] There may be many reasons why that person is not here on trial.
Therefore, do not discuss or give any consideration as to why the other person is not
being prosecuted in this trial or whether he or she has been or will be prosecuted. Your
duty is to decide whether the People have proved the guilt of the defendants on trial. The
112
second paragraph of this instruction does not apply to the testimony or prior statements of
James Williams.‖ (See CALJIC No. 2.11.5; see also CALCRIM No. 373.) Defendants
contend Tannis should have been included in the final sentence.
We assume this claim was not forfeited by defendants‘ failure to raise it at trial.
We also assume, arguendo, that there was some evidence supporting an inference that
Tannis might have been an accomplice in the murders. Nonetheless, any error was
manifestly harmless. Other than making general assertions of prejudice, defendants do
not explain how including Tannis in the instruction could have helped them. In fact, her
in-court testimony was favorable to defendants. She denied that Bryant told her he had
put the bomb in Keith Curry‘s car and would continue to try and kill him. Her
contradictory out-of-court statement was made at a beauty parlor long before the Wheeler
Avenue murders. Furthermore, it was not made to anyone with a possible interest in
inducing her to lie at trial. The jurors were properly instructed on witness credibility with
CALJIC No. 2.20, which told them they could consider ―the terms of any arrangement or
agreement utilized to obtain the testimony of the witness, including any immunity from
prosecution.‖ Including Tannis in the instruction at issue would have made no difference
in the trial, nor did the failure to do so lessen the prosecution‘s burden of proof or render
defendants‘ trial fundamentally unfair.
I. Other Asserted Instructional Errors
Defendants mount numerous challenges to the trial court‘s guilt phase instructions.
Assuming arguendo that all claims are cognizable (§ 1259), they are without merit.
1. Other Crimes Instructions
Defendants challenge several instructions concerning evidence that defendants
committed ―other crimes‖ besides the Wheeler Avenue murders. They first contend that
the relevance of that evidence hinged on preliminary facts. Thus, under Evidence Code
section 403, the court was obligated, on request, to instruct the jury to determine whether
113
the preliminary fact exists and to disregard the proffered evidence unless the jury finds
that the preliminary fact does exist. Defendants‘ proposed instruction listed the other
crimes and told the jury it was required to find that each defendant committed or
―request[ed], instigate[d] or hir[ed]‖ someone else to commit them. This challenge fails
for two reasons. First, as the trial court pointed out, not all of the other crimes evidence
depended for its relevance on the direct participation of a defendant. For example, the
Gentry and Goldman shootings were relevant to establish Andre Armstrong‘s connection
to the Bryant Family organization and his reasons for ―squeezing‖ the Family. Second,
the trial court gave an instruction pursuant to CALJIC No. 2.50.1 (5th ed. 1988), which
explained that the other crimes ―purportedly committed by a defendant or defendants
must be proved by a preponderance of the evidence. You must not consider such
evidence for any purpose unless you are satisfied that a particular defendant committed
such other crime or crimes. [¶] The prosecution has the burden of proving these facts by
a preponderance of the evidence.‖ (See also People v. Medina (1995) 11 Cal. 4th 694,
763 (Medina).) Defendants have not demonstrated that more specific instructions about
other preliminary facts involved in particular crimes were proper or necessary.
Additional instructions on other crimes evidence are not required when the foundational
requirement is ―obvious‖ and the significance of the evidence, if any, is evident from
―simple logic.‖ (People v. Carpenter (1997) 15 Cal. 4th 312, 383 (Carpenter).)
Next, defendants challenge the giving of an instruction pursuant to CALJIC
No. 2.50 (1994 rev.) (5th ed. 1988), explaining how the jury could use the other crimes
evidence. The trial court instructed: ―Evidence has been introduced for the purpose of
showing that the defendant committed crimes other than that for which he is on trial. [¶]
Such evidence, if believed, was not received and may not be considered by you to prove
that defendant is a person of bad character or that he has a disposition to commit crimes.
[¶] Such evidence was received and may be considered by you only for the limited
purpose of determining if it tends to show: [¶] A characteristic method, plan or scheme
114
in the commission of criminal acts similar to the method, plan or scheme used in the
commission of the offense in this case which would further tend to show the existence of
the intent which is a necessary element of the crime charged or the identity of the person
who committed the crime, if any, of which the defendant is accused; [¶] The existence of
the intent which is a necessary element of the crime charged; [¶] The identity of the
person who committed the crime, if any, of which the defendant is accused; [¶] A motive
for the commission of the crime charged; [¶] The defendant had knowledge of the nature
of things found in his possession; [¶] The defendant had knowledge or possessed the
means that might have been useful or necessary for the commission of the crime charged;
[¶] That the crime charged is part of a larger, continuing plan or scheme. [¶] For the
limited purpose for which you may consider such evidence, you must weigh it in the
same manner as you do all other evidence in the case. [¶] You are not permitted to
consider such evidence for any other purpose. [¶] However, prior criminal conduct
resulting in a felony conviction may also be considered on the issue of the credibility of
the person suffering the conviction.‖
Defendants complain that the court did not specifically identify which other
crimes evidence could be considered for which purpose and against which defendant.
The instruction was, in general, a correct statement of the law. (People v. Wilson (2005)
36 Cal. 4th 309, 328.)53 Defendants‘ claim of error is essentially that, in the absence of
greater specificity, the jury might have considered some other crimes evidence for
purposes that were not justified. A jury is generally permitted to consider all relevant
evidence (Evid. Code, § 351), and to give that evidence the weight it deems appropriate
(Evid. Code, § 312, subd. (b)). Evidence Code section 1101, subdivision (a) and the
53 We previously found harmless, ante, in part III.A.4., any error in the trial court‘s
having included establishing the ―identity‖ of the murderers as a permissible purpose for
the other crimes evidence.
115
related jury instruction make clear that a jury may not consider other crimes evidence as
proof of bad character. There is no reasonable likelihood the jury would have misused
the evidence in that manner. If some of the other crimes evidence failed, logically, to
establish a particular question as to any specific defendant, the jury would simply and
properly conclude that evidence was not convincing and disregard it. (Nunez, supra, 57
Cal.4th at p. 49; see also People v. Linkenauger (1995) 32 Cal. App. 4th 1603, 1615 [in
some circumstances an instruction matching specific other crimes evidence to the issue to
be proven would be improperly ―argumentative and repetitious of instructions already
given‖].) In addition, the parties were free to argue whether specific other crimes
evidence was probative of issues relating to the charges. Defendants fail to persuade that
the court was required to augment the instruction as defendants now suggest.
Finally, defendants contend CALJIC Nos. 2.50 and 2.50.1 as given
unconstitutionally lessened the prosecution‘s burden of proof because the jury was told
the other crimes need only be proven by a preponderance of the evidence. We have
previously rejected the same contention, particularly in light of the complete charge to the
jury, which, as here, included instructions specifically explaining the prosecution‘s
burden to prove the elements of the crime beyond a reasonable doubt. (Carpenter, supra,
15 Cal.4th at pp. 382-383; Medina, supra, 11 Cal.4th at pp. 763-764.)
2. Instructions Assertedly Undermining the Burden of Proof
Defendants also contend that a number of other standard instructions undermined
the requirement of proof beyond a reasonable doubt.54 These challenges have been
rejected and are again. (Gonzales, supra, 54 Cal.4th at pp. 1278-1279; Solomon, supra,
54 They challenge CALJIC Nos. 1.00, 2.01, 2.02, 2.21.1, 2.21.2, 2.22, 2.27, 2.51,
2.90, and 8.20.
116
49 Cal.4th at p. 827; People v. Hartsch (2010) 49 Cal. 4th 472, 506 (Hartsch); Harris,
supra, 43 Cal.4th at p. 1294; People v. Howard (2008) 42 Cal. 4th 1000, 1026.)
3. Motive Instruction
Defendants raise an oft-repeated challenge to a standard jury instruction: that
CALJIC No. 2.51 improperly instructed the jury that it could find sufficient proof of their
guilt from evidence of motive alone, and shifted the burden of proof to the defense.55
This challenge has been repeatedly and properly rejected. (Watkins, supra, 55 Cal.4th at
p. 1029; Solomon, supra, 49 Cal.4th at p. 827.)
4. Consciousness of Guilt Instructions
Similarly, defendants‘ claims that the consciousness of guilt instructions were
unnecessary, improperly argumentative, and invited the jury to draw irrational inferences,
are defeated by settled precedent.56 (People v. Alexander (2010) 49 Cal. 4th 846, 921-
922 [CALJIC Nos. 2.04 and 2.05]; Hartsch, supra, 49 Cal.4th at p. 505 [CALJIC Nos.
2.03 and 2.06]; Rundle, supra, 43 Cal.4th at pp. 152-154 [CALJIC No. 2.52].)
55 The trial court instructed the jury that ―[m]otive is not an element of the crimes
charged and need not be shown. However, you may consider motive or lack of motive as
a circumstance in this case. Presence of motive may tend to establish guilt. Absence of
motive may tend to establish innocence. You will therefore give its presence or absence,
as the case may be, the weight to which you find it to be entitled.‖
56 Defendants challenge the giving of CALJIC Nos. 2.03 (Falsehoods), 2.04 (Efforts
to Fabricate Evidence), 2.05 (Efforts of Others to Fabricate Evidence), 2.06 (Efforts to
Suppress Evidence), 2.52 (Flight After Crime), and a special instruction (submitted by
Bryant) regarding defendants‘ refusals to provide handwriting samples: ―If you find that
before this trial any defendant willfully failed and refused to provide handwriting
exemplars, then as to that defendant you may consider such failure as a circumstance
tending to prove his consciousness of guilt as to the fact that his handwriting appears on
some or all of the documents admitted into evidence.‖
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5. Prior Consistent and Inconsistent Statements Instructions
Defendants challenge the giving of CALJIC No. 2.13 covering prior consistent
and inconsistent statements, arguing that the instruction ―unfairly skewed the jury‘s
credibility determination in favor of the prosecution,‖ because it referred to the truth but
not also the falsity of the facts at issue.57 This claim, too, lacks merit. (People v. Friend
(2009) 47 Cal. 4th 1, 41; Harris, supra, 43 Cal.4th at p. 1293.)
J. Refusal to Limit the Jury’s Consideration of Evidence Against Smith
Smith presented no defense. He argued that, because he planned to rely on the
presumption of innocence and the prosecution‘s burden of proof, the jury should be
limited to considering only the evidence presented up to the point he rested and not any
evidence presented by the other defendants or by the prosecution in rebuttal. The court
refused to so limit the jury‘s consideration of the evidence. The ruling was correct.
As with defendants‘ challenge to the court‘s denials of their motions for separate
trials, Smith‘s claim is based on the same fundamental misperception: that this trial
should be viewed as the simultaneous separate trials of the four defendants, rather than a
joint trial of all of them. As explained in part II.E., ante, when the charges and
defendants in a case have been properly joined for trial, the circumstance that the
evidence presented to the jury in the joint trial is different from the evidence that might
have been presented in a separate trial does not make the joint trial fundamentally unfair,
even when a particular defendant‘s chance of obtaining an acquittal might be reduced.
(Zafiro, supra, 506 U.S. at p. 540; Soper, supra, 45 Cal.4th at p. 781.)
57 The court instructed the jury, ―Evidence that on some former occasion, a witness
made a statement or statements that were inconsistent or consistent with his or her
testimony in this trial, may be considered by you not only for the purpose of testing the
credibility of the witness, but also as evidence of the truth of the facts as stated by the
witness on such former occasion.‖
118
The paramount purpose of a trial is to provide a reliable process for determining
the truth of the charges, not to provide the best possible opportunity for one party to
obtain a particular result. The reliability of that truth-seeking process and the jury‘s
ultimate verdict of guilt or acquittal cannot be enhanced by requiring that the jury ignore
relevant evidence, whenever it is presented in the trial. (Cf. Cal. Const., art. I, § 28,
subd. (f)(2) [establishing a Right to Truth-in-Evidence, which generally prohibits the
exclusion of relevant evidence from a criminal proceeding]; Evid. Code, § 351.) The
jury‘s consideration of all the evidence in a joint trial, even if one defendant strategically
elects to present none, does not relieve the prosecution of its burden to prove each
defendant‘s guilt beyond a reasonable doubt, or otherwise result in fundamental
unfairness. Indeed, if Smith‘s contention were supportable, there would be no logical
reason to draw the line at the conclusion of the prosecution‘s case-in-chief: Each
codefendant‘s cross-examination of the prosecution‘s witnesses (and the prosecutor‘s
redirect examination) also creates an opportunity to introduce evidence that might not
have been presented in a separate trial or that could benefit one defendant, but bolster the
prosecution‘s case against another. Joint trials would cease to exist, except in a
theoretical case in which each defendant promises to remain mute throughout. Moreover,
there are recognized mechanisms for ensuring that the prosecution is not unfairly assisted
by the defendants‘ efforts. These include the trial court‘s discretion to sever the trials of
codefendants (see Avila, supra, 38 Cal.4th at p. 574), and to dismiss the charges based on
insufficiency of the evidence under section 1118.1.58 Finally, as the trial court
58 Contrary to Smith‘s arguments, there is a clear difference between a court‘s
determination that the prosecution has presented insufficient evidence warranting a
judgment of acquittal under section 1118.1, and the jury‘s determination if a defendant‘s
guilt has been proven beyond a reasonable doubt. Each decision is based on the state of
the evidence when made. The existence of the remedy provided by section 1181.1 says
nothing about the fundamental fairness of permitting the jury to consider all the evidence
when it makes the ultimate finding whether the prosecution carried its burden of proof.
119
recognized, Smith would not be (and was not) precluded from later choosing to counter
evidence he perceived as harmful, or to rely on helpful evidence, despite his decision not
to present a defense on his own behalf.
K. Discharge of Juror During Deliberations and Taking Partial Verdicts as
to Bryant
Bryant contends the trial court erred by accepting verdicts on two of the charges
against him before excusing one juror and replacing him with an alternate. He raises
three related challenges: (1) the verdicts were not final; (2) the excused Juror No. 77
(Number 77) was incapable of deliberating when the verdicts were reached; and (3) the
reconstituted jury could not have truly deliberated anew on the remaining charges. To
the extent Smith and Wheeler intended to join in this claim, the first two of the grounds
Bryant asserts are inapplicable as to them because the challenged verdicts did not address
their guilt. The trial court did not err.
1. Background
The jury began guilt phase deliberations on May 11, 1995. It had deliberated for
four court days when, on the morning of Wednesday, May 17, 1995, Number 77 sent the
court a note, which read, ―Your Honor, on yesterday, I kept my appointment to see my
doctor. She advised me to take a couple days off and stay off my feet. She says I have
two things wrong: First, my blood pressure was very high, 184 over 120. And I have a
very severe case of arthritis. She says if my knees don‘t respond to the medication, I will
have to go to have knee replacement. She wants me to keep my feet elevated the whole
time.‖ Bryant‘s counsel agreed with the court‘s suggestion that the juror should be
questioned about the note, and expressed concern that the juror could be engaging in ―a
subterfuge to bail out because of animosity that may have developed, and [counsel]
would like to be assured that it‘s a genuine and legitimate medical problem.‖
The court questioned the juror in open court with the other jurors absent. Number
77 briefly recounted his chronic knee problems and high blood pressure. In response to
120
the court‘s questions, he explained that his knees would be ―hurting [him] pretty bad‖
―after a full day,‖ and the pain ―seem[ed] to be progressively getting worse.‖ His blood
pressure was also especially high. He agreed with the trial court‘s assessment that he was
asking to be ―excused starting now for the rest of the week,‖ but that there was no
―guarantee that [he would] be back‖ thereafter. He also confirmed that the only reason
for the request was his physical ailments, and not ―problems with the deliberation or what
have you that causes you to want to be excused.‖ The attorneys declined the court‘s offer
to ask any additional questions, and the juror returned to the jury room to continue
deliberations.
The prosecutor suggested it was problematic to hope the juror would return after
only a short recess, and that, if the juror were to be excused, the court ought to inquire
whether the jury had reached any verdicts ―so we can seal those before the juror is
replaced.‖ Bryant‘s counsel ―strenuously‖ objected to taking partial verdicts.59 He
argued that if the court was inclined to accept partial verdicts, the juror should not be
excused. If there would be no receipt of partial verdicts, the juror could be excused. The
other defense counsel joined in the objection. The court found good cause to excuse the
juror based on his medical problems and the uncertainty as to his ability to return. It
would ask whether the jury had reached any verdicts, and, if so, would entertain
additional argument before going forward. Bryant‘s counsel continued to object, arguing
that the inquiry would be improper, any verdicts should not be considered final in light of
the upcoming participation of an alternate, and accepting the verdicts would conflict with
the requirement that the newly constituted jury begin deliberating anew. The arguments
were rejected.
59 The defendants (other than codefendant Settle) had made a general waiver of their
right to be present for proceedings during the jury‘s deliberations.
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All jurors were brought to the courtroom. The court said it would be excusing
Number 77, and asked the foreman, ―Have there been final verdicts reached?‖ The
foreman answered that the jury had reached verdicts as to ―one or more counts, [as to]
one defendant,‖ but then added, ―as far as the degree, we haven‘t reached that yet.‖ In
apparent conflict with that qualification, however, the foreman responded to the court‘s
question whether ―these [are] tentative decisions or final verdicts filled out,‖ by saying
the verdicts ―were filled out.‖ The court informed Number 77 that he was not yet
excused, and directed the entire jury to return to the jury room.
The court then expressed its view that the jury apparently had not reached a final
guilty verdict as to any defendant, but there was a ―remote‖ possibility that, through a
misunderstanding of the court‘s instructions, the jury might have acquitted a defendant of
one or more charges. Over Bryant‘s counsel‘s continuing objections, the court decided it
would review the verdict forms to determine if there was ―anything that might inure to
the benefit of [a] defendant.‖
The jury then returned to the courtroom, and the court privately reviewed the
verdict forms. Two of the forms were completely filled out, including the degree of the
murder. The court then had the following exchange with the foreman:
―The Court: I have looked at the various forms that were given. There were a lot.
Now, two of these forms are completely filled out, all the pages filled out.
―The Foreman: That‘s correct.
―The Court: And dated today‘s date, signed by a foreperson, et cetera. Just listen
carefully to me now. Were these filled out before we had our discussion?
―The Foreman: Yes, they were.
―The Court: Completely as they are now?
―The Foreman: Yes, they are [sic]. I had forgotten about that because we were in
deliberation on the next one.
―The Court: Okay. Are these, in fact, verdicts that have been arrived at?
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―The Foreman: Yes, they are.
―The Court: Tentative, or final?
―The Foreman: They are final.
―The Court: Any doubt about that?
―The Foreman: None.
―The Court: I don‘t want to, you know, push you or sway you one way or the
other. But what I see is two forms.
―The Foreman: That‘s correct.
―The Court: If they reflect verdicts, I need to —
―The Foreman: That‘s correct.
―The Court: — discuss that with counsel.
―The Foreman: Sorry.
―The Court: That‘s okay. So when you were talking about whatever it was that
you mentioned 10 minutes or so ago, that had to do with forms that had not yet been
filled out at all?
―The Foreman: That‘s correct. When you asked the question, all I remembered
was that we were deliberating on another charge as far as the degree, and I had forgotten
about that.
―The Court: And previously, as to that charge[,] that had not been written on at
all, since all the [other] ones are blank?
―The Foreman: That‘s correct.
―The Court: All right. Folks, again, if you would just go back to the jury room
and stand by a couple minutes, okay? Stand by.‖
The trial court solicited views on how to proceed. The prosecution suggested the
court accept the verdicts, poll the jury, and then replace Number 77 and instruct the jury
to begin deliberating anew on the remaining counts. Bryant‘s counsel argued the court
should excuse Number 77, seat an alternate, and direct the jury to begin deliberations
123
anew on all counts. The other defense attorneys concurred. The trial court postponed its
decision until defendants could be brought to court and consult with counsel. The court
told the parties that the jury had found Bryant guilty of the first degree murders of
Armstrong and Brown. The court directed that readback of testimony previously
requested take place while defendants were being brought to court.
At subsequent proceedings outside the jury‘s presence, all defendants continued to
object to acceptance of the verdicts, on the grounds that having different juries rendering
verdicts would ―disrupt[] the continuity of the process.‖ The trial court acknowledged
that it apparently had the authority to allow the soon-to-be newly constituted jury to
deliberate anew on all the charges,60 but decided not to do so. The court believed there
was no requirement that the same 12 jurors render verdicts as to all defendants and
charges, and therefore the court did not want to ―waste for no good reason . . . four days
of jury deliberation, when they have arrived at verdicts on two counts and have dated and
signed those verdicts including the finding as to degree before we ever spoke to them.‖
Bryant objected that the verdicts should not be accepted because Number 77 had
been aware of his medical concerns since the previous evening, and therefore the verdicts
that morning had been reached without ―the full attention of this juror who wants to be
excused.‖ The court overruled the objection, noting that the juror actually had not asked
to be excused from serving, but only for a recess, and there was no indication the jury
―came up with a couple of verdicts to get out of here.‖
60 Smith‘s counsel had pointed to People v. Hernandez (1985) 163 Cal. App. 3d 645
as supporting that position. (See id. at p. 658 [stating that when a jury has reported it has
reached verdicts on some counts but is deadlocked on others, an ―acceptable option
available to the trial court is not to receive any verdicts on decided counts from the jury
until they have finished deliberations on all counts,‖ which would permit the jury to
reconsider the verdicts it had already reached].) Hernandez is distinguishable. There is
no indication that the jury was deadlocked at this point. We need express no view on the
reasoning of Hernandez.
124
After the jury returned, the court again questioned the foreman regarding the two
verdicts:
―The Court: I am looking at forms again. There are two, as I indicated this
morning, two verdict forms filled out as to one defendant, and my question is, once again,
are these tentative, or are these final verdicts of this jury?
―The Foreman: They were final verdicts of this jury.
―The Court: Are they still final verdicts of this jury?
―The Foreman: Yes, they are.
―The Court: And they were filled out prior to our meetings this morning, I take it,
is that what you‘re saying?
―The Foreman: That is correct.‖
The court then explained that it would be accepting the verdicts and polling the
jurors, meaning they would be ―asked in turn for the record . . . if these are, in fact, your
verdicts.‖ The clerk then read the verdicts and the jury was asked collectively if these
were the jury‘s verdicts. There was group assent. Each juror was then individually asked
whether the verdicts were ―your verdicts.‖ Each juror confirmed that they were. The
trial court thereafter directed the clerk to record the verdicts, excused Number 77, and
seated an alternate juror. Finally, the court instructed the jury with a modified version of
CALJIC No. 17.51: ―Ladies and gentlemen of the jury, one of your numbers has been
excused for legal cause and replaced with an alternate juror. You must not consider that
fact for any purpose. The People and the defendants have the right to a verdict reached
only after full participation of the 12 jurors who returned the verdicts. This right may be
assured only if you begin your deliberations again from the beginning. You must,
therefore, set aside and disregard all past deliberations and tentative conclusions and
begin deliberating anew as to the remaining charges. This means that each remaining
original juror must set aside and disregard the earlier deliberations as if they had not
taken place. You will now retire to begin anew your deliberations in accordance with all
125
the instructions previously given.‖ After the court confirmed that the jurors understood
the instruction, it directed them to resume deliberating.
One week later, another juror was replaced by an alternate due to a family medical
emergency. In response to the court‘s inquiry, the foreman reported the jury had not as
yet reached any other verdicts. The court again instructed the jury to begin anew their
deliberations on the remaining counts.
2. Discussion
The record repudiates Bryant‘s claim that the jury‘s verdicts were not final. He
emphasizes that the trial court initially asked whether the jury had reached any verdicts,
rather than the jury giving such notification. From this, he argues, it is possible that the
jurors might not have intended to render final verdicts, and they did not comprehend the
irrevocability of the verdicts once the court accepted them.
Bryant cites no authority for the proposition that the court‘s questions improperly
interfered with deliberations. The applicable statutes, sections 1147 and 1149, do not
explicitly preclude the court‘s action.61 We stated in analogous circumstances that a
court may inquire whether a deadlocked jury has reached any verdict eliminating a
charged offense. (Stone v. Superior Court (1982) 31 Cal. 3d 503, 519-520.)
61 Section 1147 provides: ―When the jury have agreed upon their verdict, they must
be conducted into court by the officer having them in charge. Their names must then be
called, and if all do not appear, the rest must be discharged without giving a verdict. In
that case the action may be again tried.‖
Section 1149 provides: ―When the jury appear they must be asked by the Court,
or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the
affirmative, they must, on being required, declare the same.‖
Neither provision delineates how, in the first instance, the court is to determine
that the jury has ―agreed upon their verdict,‖ i.e., by waiting for the jury to say so, or by
appropriate inquiry.
126
Bryant merely speculates that a juror might not have intended and appreciated the
finality of the verdicts. The record demonstrates otherwise. The verdict forms for these
two charges had been completely filled out, signed by the foreman and dated, and the
jury had moved on to other charges involving a separate set of victims. In open court
with all jurors present, the foreman unequivocally and repeatedly described these verdicts
as final. He confirmed they had been reached before the court‘s initial inquiry. After the
formal reading of the verdicts the jurors collectively and individually affirmed the
verdicts. Nothing supports the notion that these verdicts did not constitute the jury‘s
conclusive decisions as to those counts.
Bryant‘s claim that the verdicts should not have been accepted because Number
77‘s medical problems rendered him unable to participate in the deliberations equally
lacks support in the record. Contrary to Bryant‘s position, the trial court‘s finding of
good cause to excuse Number 77 was not a determination that the juror had been or at
that time was unable to perform his duties, but rather an acknowledgement that his
continued service would have been an unacceptable hardship. Section 1089 provides in
relevant part: ―If at any time, whether before or after the final submission of the case to
the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found
to be unable to perform his or her duty, or if a juror requests a discharge and good cause
appears therefor, the court may order the juror to be discharged and draw the name of an
alternate, who shall then take a place in the jury box, and be subject to the same rules and
regulations as though the alternate juror had been selected as one of the original jurors.‖
In Lomax, supra, 49 Cal.4th at page 590, we repeated the rule that excusal of a juror
during deliberations must be ― ‗manifestly supported by evidence on which the court
actually relied.‘ ‖ These standards were satisfied. As to Number 77‘s ability to
deliberate, his discussion with the court that morning clearly showed he was coherent and
able to communicate. Although he told the court his knees would become painful ―after a
full day,‖ and his blood pressure was elevated, there simply is no indication that these
127
problems precluded his meaningful participation in deliberations during the previous four
days or that morning. During polling, Number 77 confirmed the verdicts as read were his
own.
Finally, defendants point to our statements in People v. Collins (1976) 17 Cal. 3d
687, 693-694 that because a defendant‘s constitutional right to a unanimous jury verdict
―is not met unless [the 12 jurors] reach their consensus through deliberations which are
the common experience of all of them,‖ ―a proper construction of section 1089 requires
that deliberations begin anew when a substitution is made after final submission to the
jury.‖ They contend that accepting some guilty verdicts by one jury and others by a jury
reconstituted with an alternate denied them unanimous verdicts on the later verdicts.62
This is so, they assert, because the existence of the prior guilty verdicts would preclude
truly new and independent deliberations on the remaining charges. To the contrary, the
requirements of section 1089 and Collins were satisfied. The procedures followed did
not preclude new deliberations and unanimous verdicts by the reconstituted jury.
Section 1089 explicitly permits the substitution of jurors after deliberations have
begun: the substitution can be made ―any time, whether before or after the final
submission of the case to the jury.‖ Long ago in People v. Rigney (1961) 55 Cal. 2d 236,
we approved the taking of partial verdicts in the general sense. ―There is no reason why
the court should not have the jury‘s verdicts on each count returned separately.‖ (Id. at
p. 246.) We have not directly resolved whether a court may accept partial verdicts, then
excuse an original juror for good cause and permit a reconstituted jury to continue
deliberations.63
62 Defendants present no argument that the record demonstrates the two reconstituted
juries actually did not begin the deliberations anew on the remaining counts.
63 In People v. Fudge (1994) 7 Cal. 4th 1075, 1100-1101, we declined to address the
merits of this issue because the defendant in that case had forfeited the claim. In People
(footnote continued on next page)
128
Defendants note that other courts have expressed doubt regarding the ability of a
reconstituted jury to set aside the deliberations and findings underlying already-recorded
verdicts. For instance, in State v. Corsaro (N.J. 1987) 526 A.2d 1046, 1054, the court
stated its view that ―where the deliberative process has progressed for such a length of
time or to such a degree that it is strongly inferable that the jury has made actual fact-
findings or reached determinations of guilt or innocence, the new juror is likely to be
confronted with closed or closing minds. In such a situation, it is unlikely that the new
juror will have a fair opportunity to express his or her views and to persuade others.
Similarly, the new juror may not have a realistic opportunity to understand and share
completely in the deliberations that brought the other jurors to particular determinations,
and may be forced to accept findings of fact upon which he or she has not fully
deliberated.‖ Defendants also rely on the dissenting opinion in People v. Aikens (1988)
207 Cal. App. 3d 209, which articulated a perceived distinction between the circumstances
of a reconstituted jury asked to set aside prior unfinished deliberations as opposed to
completed determinations. (Id. at p. 220 (dis. opn. of Johnson, J.).) Some states, by
statute or rule, prohibit any substitution of jurors after the case has been submitted to
them. (See, e.g., Cantrell v. State (Ark. 1979) 577 S.W.2d 605, 266; Claudio v. State
(Del. 1991) 585 A.2d 1278, 1301; People v. Roberts (Ill. 2005) 824 N.E.2d 250, 258;
Crossland v. Com. (Ky. 2009) 291 S.W.3d 223, 230.)
We do not share the Corsaro court‘s pessimism regarding the capabilities of
jurors. As we have consistently stated in numerous contexts we generally presume that
(footnote continued from previous page)
v. Fields (1983) 35 Cal. 3d 329, 351, we rejected a suggested routine procedure of
substituting jurors at the conclusion of the guilt phase of capital trials, based on a concern
that the penalty phase verdict might not result from deliberations that are the ― ‗common
experience‘ ‖ of all the jurors.
129
jurors are capable of following, and do follow, the trial court‘s instructions. We have
specifically applied this presumption to an instruction for a reconstituted jury to begin its
deliberations anew. (Fuiava, supra, 53 Cal.4th at p. 716.) For decades we have
presumed that jurors follow a court‘s general instructions to consider each offense and
defendant separately, ―as if it were the only accusation before them.‖ (People v. Kemp
(1961) 55 Cal. 2d 458, 477; People v. Dabb (1948) 32 Cal. 2d 491, 499; see also CALJIC
No. 17.00 and CALCRIM No. 203, CALJIC No. 17.02 and CALCRIM No. 3515.) The
circumstances of a reconstituted jury‘s consideration of the remaining charges after the
rendering of partial verdicts are not so different that the usual presumption should not
apply.
Several jurisdictions, including the federal courts, that had historically prohibited
all substitutions of jurors after the start of deliberations, have now revised their statutes or
rules to permit this practice. (See, e.g., Fed. Rules Crim. Proc., rule 24(c)(3), as amended
Apr. 29, 1999, 28 U.S.C.; Conn. Gen. Stats. § 54-82h, subd. (c), as amended May 26,
2000; N.H. Rev. Stat. § 500-A:13, subd. V, as amended Aug. 14, 1993.) These changes
reflect a developing confidence in the ability of jurors to follow a court‘s instructions to
begin deliberations anew.
Furthermore, this record reflects the jury did, indeed, deliberate anew. After
Number 77 was excused, the jury met for more than three court days without reaching
any other verdicts. Then there was another substitution. Immediately after the second
substitution, a juror asked the court whether beginning deliberations anew required that
the jury also rehear all previous readback, stating that he did not know ―whether that
should be a consideration or not. Everything else, usually a new juror comes in we start
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from scratch.‖64 The record shows the taking of partial verdicts in this case did not
violate defendants‘ right to have the jury reach unanimous verdicts.
L. Denial of Motion to Direct the Jury to Reopen Deliberations
Defendants contend the court should have instructed the jury to reopen its
deliberations after the verdicts against them had already been recorded. We will assume
the issue is preserved as to Bryant and Wheeler despite their failure to explicitly join in
Smith‘s motion. The court did not err.
After the court had accepted and recorded verdicts as to all the counts against
defendants here, the jury continued deliberating on the charges against codefendant
Settle. The jury reported after a week of deliberations and several ballots that it was
deadlocked 11 to one and could not reach any verdicts. The trial court asked the foreman
whether there was ―anything that you personally can think of that . . . would assist the
jury in ending the deadlock as to any count or counts,‖ such as ―further clarification of
the law, [or] further [readback] of the testimony of any witness?‖ The foreman did not
believe so, because in his view it was ―a matter of conviction on the part of the juror.‖
Another juror suggested clarification of the difference between proof beyond a
reasonable doubt and beyond all possible doubt. The foreman then suggested
clarification of ―the definition of an accomplice.‖ A third juror suggested further
instruction on ―the full aspect of the corroboration of an accomplice and what that
entails.‖ The court asked the jurors to return to the jury room and write out any questions
so the court would not be explaining to the jurors ―things that you may not need.‖
64 The court explained that it was up to the jury whether to request a readback,
directing the jurors to ―go forward and begin new deliberations on those remaining
counts.‖ Before reaching any subsequent verdicts, the jury received requested readback
of several witnesses‘ testimony.
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The jury sent the court several written questions, three of which concerned aiding
and abetting and accomplices. 65 One question asked, ―If one is charged with the same
crime, but not brought to trial, is he automatically an accomplice?‖ Another asked
whether there can be ―aiding and abetting after the crime was committed?‖ The final
question asked whether, as to the corroboration requirement for accomplice testimony,
―Doesn‘t this constitute reasonable doubt if there is no corroboration of same in your
mind?‖ Smith expressed concern about the jury‘s ―apparent failure to understand the law
of accomplice and corroboration.‖ The court recessed for the evening to consider how to
respond to the questions.
The next morning outside the presence of the jury, Smith asked the court to
―resubmit counts 1 to 5 to the jury for reconsideration in light of . . . the tenor of [the]
questions [suggesting] a misunderstanding of the law by the jury.‖ The court denied the
motion. The court then answered the jury‘s questions. It explained that a person who
does not aid and abet a principal before the crime is committed is not an accomplice. A
juror asked whether the court ―would . . . be interested in suggesting what [a person who
assisted a principal only after the crime was completed] would be guilty of?‖ The court
declined to give an answer, explaining that this ―would not be of any assistance to this
jury.‖ A juror asked whether the jury ―has the final decision as to whether or not they
consider someone to be an accomplice or an accessory?‖ The court explained that none
of its instructions had referred to the term ―accessory,‖ and that was not an issue that the
jury needed to decide. The court reiterated that it was up to the jurors to determine
whether a witness was an accomplice. Another juror sought to clarify again that the
corroboration requirement ―goes beyond reasonable doubt.‖ The court reiterated that this
65 The other questions were about the jury‘s consideration of inconsistent witness
statements, its assessment of witness credibility, and the concept of reasonable doubt.
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was a distinct rule of law. Finally, a third juror asked whether the accomplice
determination required unanimity. The court explained that the jurors need not agree on
whether a witness was an accomplice, but must be unanimous in the ultimate finding of
whether the defendant‘s guilt had been proved beyond a reasonable doubt.66
Outside the presence of the jury, Smith asserted that the jurors‘ in-court questions
made it ―painfully clear‖ that the jury did not understand the law regarding accomplices,
and ―perhaps did not understand it previously‖ when it rendered the verdicts as to
defendants. He renewed his section 1161 motion to have the jury reconsider its verdicts
―based on misunderstanding of — apparent misunderstanding of that law.‖ The court
denied the motion because it ―did not see a misunderstanding.‖ In the court‘s view, the
questions indicated one juror was having difficulty determining whether there was
sufficient corroboration of Williams‘s testimony incriminating Settle. The court stated,
―that in no way exists with any verdict [in Smith‘s] case, and does not evidence a
confusion as to the law regarding accomplices whatsoever [so] as to render a verdict
against your client mildly suspect.‖
Defendants‘ reliance on section 1161 is misplaced. The statute provides: ―When
there is a verdict of conviction, in which it appears to the Court that the jury have
mistaken the law, the Court may explain the reason for that opinion and direct the jury to
reconsider their verdict, and if, after the reconsideration, they return the same verdict, it
must be entered; but when there is a verdict of acquittal, the Court cannot require the jury
to reconsider it. If the jury render a verdict which is neither general nor special, the Court
may direct them to reconsider it, and it cannot be recorded until it is rendered in some
form from which it can be clearly understood that the intent of the jury is either to render
66 As mentioned above, the jury ultimately was unable to reach verdicts as to
codefendant Settle.
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a general verdict or to find the facts specially and to leave the judgment to the Court.‖
(§ 1161.) Notably, this provision for reconsideration precedes the statutes regulating jury
polling (§ 1163) and verdict recordation (§ 1164). By its own terms, section 1161
reflects an expectation that the trial court‘s actions would occur before the verdict is
―entered‖ or ―recorded.‖ As we recently stated in People v. Carbajal (2013) 56 Cal. 4th
521, 531, the statutes create a ―mechanical, prescriptive . . . process for eliciting and
receiving a jury verdict.‖ Section 1161 simply does not speak to a situation where
verdicts have been formally entered and recorded, as in this case.
Defendants cite no case in which a court has invoked section 1161 to direct
reconsideration of recorded verdicts. The cases addressing section 1161, in fact, point to
a second related flaw in the theory that the trial court had authority to direct
reconsideration. It appears the relevant portion of section 1161 was meant to address
errors made manifest by the verdict itself. Specifically, the statute refers to a verdict of
conviction ―in which‖ there appears to have been a mistake of law on the jury‘s part.
(§ 1161.) In People v. Bonillas (1989) 48 Cal. 3d 757, at pages 769-770, we listed a
number of instances when section 1161 had been properly applied. Each involved
incomplete or inconsistent verdicts that rendered the jury‘s findings unintelligible. The
problems were evident from examining the verdicts themselves. Here, defendants assert
not that the verdicts were ambiguous because they were unfinished or conflicting, but that
later events supposedly undermined confidence that the jury properly understood the law
in rendering them. There is no authority reflecting that section 1161 was intended to
reach such circumstances. To the contrary, Evidence Code section 1150 prohibits
challenging the validity of a jury‘s verdict based on evidence ―concerning the mental
processes by which it was determined.‖
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IV. PENALTY PHASE AND SENTENCING ISSUES
A. Admission of Evidence of and Jury Instructions Regarding Unadjudicated
Offenses
Defendants raise a number of challenges to evidence that they committed violent
―unadjudicated offenses‖ as aggravating factors under section 190.3, factor (b) (factor
(b)). Most of these claims are common objections, previously rejected. The more case-
specific claims are equally without merit.
We will assume that all defendants have properly joined in the general claims
challenging factor (b) and the relevant jury instruction, and that we may consider all the
claims even to the extent they have been raised for the first time on appeal. (People v.
Hines (1997) 15 Cal. 4th 997, 1061; § 1259.)
Generally, admission of unadjudicated offenses in aggravation is neither
fundamentally unfair nor a denial of due process. (People v. Anderson (2001) 25 Cal. 4th
543, 584; Balderas, supra, 41 Cal.3d at p. 205.) There is no constitutional infirmity in
permitting the same jury to determine both the defendant‘s guilt of the charged offenses
and whether he or she also committed the unadjudicated offenses. (Harris, supra, 43
Cal.4th at p. 1315, Balderas, at pp. 204-205.) Any differences in the operation of factor
(b) compared to noncapital sentencing procedures do not violate a capital defendant‘s
constitutional right to equal protection. (Harris, at p. 1315.) Instructions referring to the
factor (b) evidence as ―criminal activity‖ and ―criminal acts . . . which involved the
express or implied use of force or violence or the threat of force or violence‖ (see
CALJIC No. 8.87) did not improperly remove from the jury any issue it was required to
resolve. (People v. Burney (2009) 47 Cal. 4th 203, 259 (Burney).) The Constitution does
not require juror unanimity regarding unadjudicated criminal conduct. (Harris, at
p. 1316.)
Smith also contends the trial court‘s instruction did not properly define the scope
of the statute. The instruction, he asserts, improperly escalated the seriousness of some
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factor (b) evidence, keeping the jury from considering whether the offenses were merely
implied, rather than express, threats of violence. We assume this contention is
reviewable as to all defendants under section 1259.
An identical claim was made in Thomas, supra, 53 Cal. 4th 771. There, we
declined to resolve the merits because any error was harmless. The unadjudicated battery
involved the actual use of force, so the jury‘s verdict could not have been affected by any
instructional error about the nature of the threats. (Id. at p. 834.) Here, however, Smith‘s
and Wheeler‘s bare possession of weapons in jail did not involve actual violence. Even
so, there is no reasonable likelihood the jury misunderstood the instruction to defendants‘
detriment.
The challenged portion of the instruction given pursuant to CALJIC No. 8.87
(1989 rev.) (5th ed. 1988) reads: ―Evidence has been introduced for the purpose of
showing that the defendant . . . had committed the following criminal acts . . . which
involved the express or implied use of force or violence or the threat of force or
violence.‖ The instruction did not precisely track the language of the statute, which
defines factor (b) evidence as ―criminal activity by the defendant which involved the use
or attempted use of force or violence or the express or implied threat to use force or
violence.‖ (§ 190.3, factor (b), italics added.)67 Defendants argue the variation creates
ambiguity, because the phrase ―express or implied‖ modifies only the phrase ―use of
force or violence,‖ rather than the phrase ―threat of force or violence,‖ which would
parallel the statute. But theirs is neither the only nor most reasonable understanding of
the instruction. The jury likely interpreted the phrase ―express or implied‖ to apply to
both the use of force or violence and the threat to use force or violence. However, even if
67 CALCRIM No. 764 omits the statutory language. The violent nature of the
offense is a legal matter for the court to decide. (See Burney, supra, 47 Cal.4th at
p. 259.)
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the instruction did not clearly define the types of possible threats, it did not explicitly tell
the jury that a threat to use force or violence necessarily was an actual threat, rather than
an implied one. Defendants were not precluded from arguing that their offenses involved
only implied threats and that the jury should give less aggravating weight to that
evidence.
Smith also challenges evidence that he possessed two prisoner-made weapons
while incarcerated and awaiting trial. He contends that, although we have previously
held an inmate‘s possession of a weapon is properly considered under factor (b), the
factual context of his possession is distinguishable from other cases. He claims that,
because the evidence did not establish he possessed the weapons ―on his person or carried
[them] in situations involving contact with other prisoners or prison staff,‖ the evidence
should have been excluded. Smith forfeited this claim by failing to raise it below. In any
event, the asserted nature of his possession of the weapons is a distinction without a
difference. As explained in People v. Lewis (2008) 43 Cal. 4th 415 at pages 529-530, the
possession of a weapon by a prisoner implies a threat to use force or violence.
Finally, Bryant claims the evidence admitted against him involved the
uncorroborated testimony of accomplices to the criminal activities. Thus, he argues as he
did at trial that any uncorroborated evidence should have been stricken under section
1111. The jurors must find adequate corroboration of accomplice testimony about
unadjudicated offenses presented in aggravation. (People v. Miranda (1987) 44 Cal. 3d
57, 100.) As we explain, however, insufficiency of corroboration is not a basis for
excluding evidence. The jury was properly instructed on the need to find corroboration
before it could consider the evidence in aggravation. No error occurred.
We need not delve into whether it was ever the case that a lack of corroboration
was a ground for excluding factor (b) evidence. The passage of Proposition 8 in 1982
abrogated a great many exclusionary rules in enacting the California Constitution‘s Right
to Truth-in-Evidence provision (Cal. Const. art. 1, § 28, subd. (f)(2) (former subd. (d))
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(hereinafter section 28(f)(2)). Section 28(f)(2) states, ―Except as provided by statute
hereafter enacted by a two-thirds vote of the membership in each house of the
Legislature, relevant evidence shall not be excluded in any criminal proceeding,
including pretrial and post conviction motions and hearings, or in any trial or hearing of a
juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this
section shall affect any existing statutory rule of evidence relating to privilege or hearsay,
or Evidence Code Sections 352, 782 or 1103. Nothing in this section shall affect any
existing statutory or constitutional right of the press.‖ As will be discussed, we have
previously held that this provision abrogated an exclusionary rule based on the corpus
delicti rule. The same analysis and conclusion applies here to the accomplice
corroboration rule.
Similar in operation to section 1111, the corpus delicti rule ― ‗generally requires
the prosecution to prove ―the body of the crime itself‖ independent of a defendant‘s
extrajudicial statements.‘ [Citation.]‖ (People v. Valencia (2008) 43 Cal. 4th 268, 296.)
―The corpus delicti ‗rule is intended to ensure that one will not be falsely convicted, by
his or her untested words alone, of a crime that never happened.‘ ‖ (Ibid.)
As we explained in People v. Alvarez (2002) 27 Cal. 4th 1161, ―The literal
language of [section 28(f)(2)] abolishes, with specified exceptions, all state law
restrictions on the admissibility of relevant evidence, necessarily including the prong of
the corpus delicti rule that bars introduction of an accused‘s out-of-court statements
absent independent proof a crime was committed. But [section 28(f)(2)] does not
address, expressly or implicitly, any substantive rule that a conviction requires some
proof, aside from the accused‘s statements, of the corpus delicti, and that the jury must be
so instructed. Such issues are beyond the scope of [section 28(f)(2)], both by its literal
words and as it reasonably must have been understood by the electors. Insofar as the
corpus delicti rule includes this latter requirement, it was not abrogated by
Proposition 8.‖ (Id. at pp. 1179-1180.) Thus, ―although the corpus delicti rule no longer
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limits the admissibility of a defendant‘s extrajudicial confessions, Proposition 8 did not
abrogate the requirements that the trial court instruct the jury on the rule, even on its own
motion, and that the proof adduced at trial in support of a conviction must include
sufficient independent corroboration of the defendant‘s confessions.‖ (Fuiava, supra, 53
Cal.4th at p. 718.)
A straightforward application of section 28(f)(2) to the accomplice corroboration
requirement yields the same result. Section 28(f)(2) does not except section 1111 from
its operation. Therefore, its language precludes exclusion of an accomplice‘s testimony
based on insufficient corroboration. As has been noted, section 1111 and the corpus
delicti rule present ―a close analogy.‖ (Hamilton, supra, 48 Cal.3d at p. 1176.) People v.
Boyd (1985) 38 Cal. 3d 762, on which Bryant relies, is not to the contrary. There we
determined the trial court should have struck the factor (b) evidence at issue because the
prosecution failed to present sufficient evidence from which a ― ‗ ―rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.‖ ‘ ‖
(Boyd, at p. 778.) Even assuming that holding comports with section 28(f)(2), which was
not addressed in the opinion, the circumstances here are distinguishable. Despite
insufficient corroboration of an accomplice‘s testimony, a rational trier of fact could still
find the essential elements of the crime proven beyond a reasonable doubt. The
accomplice corroboration requirement is not ―an issue bearing on the substantive guilt or
innocence of the defendant or otherwise constitutes an element of a criminal offense.‖
(Frye, supra, 18 Cal.4th at p. 968.) Accordingly, the trial court properly declined to
strike the testimony at issue.
Under factor (b) accomplice testimony is admissible without regard to
corroboration. The trial court must, however, instruct the jury that it cannot conclude a
defendant committed an unadjudicated offense based solely on the uncorroborated
testimony of an accomplice. (See Fuiava, supra, 53 Cal.4th at p. 718.) Bryant points out
that the trial court‘s oral instruction apparently failed to inform the jury of the
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circumstances in which accomplice testimony has not been corroborated.68 That error is
of no moment. The court gave the jury a written instruction that properly and fully stated
the law. (People v. Mills (2010) 48 Cal. 4th 158, 200-201 (Mills); Garceau, supra, 6
Cal.4th at p. 189.) Because ultimately the jury was properly instructed, we cannot
conclude any error occurred regarding the corroboration of accomplices who testified
about Bryant‘s unadjudicated offenses. Even if we were to conclude that their testimony
was not corroborated, we would presume the jury followed the trial court‘s instruction
not to consider that incident as an aggravating factor in reaching its verdict. (Nunez,
supra, 57 Cal.4th at p. 49.)
B. Asserted Prosecutorial Misconduct
Smith contends the prosecutor committed misconduct when arguing that Smith‘s
expert witness came ―up with some convoluted cockamamie theory that is a bunch of
psychobabble as to why Donald Smith committed these acts and don‘t ask him about
that.‖ Smith contends the prosecutor improperly ―disparaged‖ his mitigating evidence,
68 According to the reporter‘s transcript, the court stated, in relevant part, ―You must
then determine whether there is any remaining evidence which tends to connect the
defendant with the commission of the crime, the testimony of the accomplice is not
corroborated.‖ The written instruction provided, ―You must then determine whether
there is any remaining evidence which tends to connect the defendant with the
commission of the crime alleged. If there is not such independent evidence tending to
connect defendant with the commission of the crime, the testimony of the accomplice is
not corroborated.‖ The oral instruction apparently skipped from the first word ―crime‖ to
the second ―crime.‖ We note, however, that the sentence in the transcript is nonsensical,
perhaps indicating a transcription error, rather than a reading error. Neither the court nor
the half dozen attorneys present mentioned the omission. We also observe that the oral
instruction as a whole still informed the jury that it should remove the accomplice‘s
testimony from consideration and determine if there remains evidence connecting the
defendant to the crime, and if there is credible independent evidence, ―then the testimony
of the accomplice is corroborated.‖ Even with the omission, the jury would reasonably
have inferred that if there was not credible independent evidence, then the testimony was
not corroborated.
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thereby unconstitutionally undermining the reliability of the penalty determination. He
forfeited this claim by failing to object to the prosecutor‘s comment on this basis.
(People v. Enraca (2012) 53 Cal. 4th 735, 765 (Enraca).) At trial, Smith only objected
that the expert ―offered no opinion as counsel just stated.‖ Further, the prosecutor‘s
statement, though colorful, was a permissible comment on the expert‘s testimony.
(Gamache, supra, 48 Cal.4th at p. 390; People v. Parson (2008) 44 Cal. 4th 332, 362.) It
is legitimate advocacy to disparage the credibility and weight of opposing evidence based
on reasonable inferences.
C. Asserted Instructional Errors
Defendants raise more than two dozen challenges to the penalty phase instructions.
We assume each defendant has properly joined in all the claims. We also assume that,
for the most part (except as stated post), the claims are reviewable under section 1259,
even when defendants failed to raise the issue below. No claim is meritorious; most have
been previously rejected. In general, we have consistently held that the standard jury
instructions, CALJIC Nos. 8.85, 8.86, 8.87, and 8.88, adequately and properly instruct on
the jury‘s determination of sentence. Proposed supplemental instructions purporting to
clarify or pinpoint various concepts are often held duplicative and/or argumentative.
(Jones, supra, 54 Cal.4th at p. 74; People v. Barnett (1998) 17 Cal. 4th 1044, 1176-1177.)
Defendants point out that the trial court apparently misread the instruction
defining aggravating evidence under section 190.3, factor (c) involving prior felony
convictions.69 The court‘s written instruction, however, correctly stated the law and
controls. (Mills, supra, 48 Cal.4th at pp. 200-201; Garceau, supra, 6 Cal.4th at p. 189.)
69 According to the reporter‘s transcript, the court instructed the jury that factor (c)
consisted of ―the presence or absence of criminal activity by the defendant, other than the
crimes for which the defendant has been tried in the present proceedings.‖ Factor (c)
actually permits the jury to consider ―[t]he presence or absence of any prior felony
conviction.‖ (§ 190.3, factor (c), italics added.)
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The court was not required to instruct on the concept of ―lingering doubt.‖
(Gonzales, supra, 54 Cal.4th at p. 1298.)
The court was not required to instruct that sympathy alone could support a verdict
of life without parole (People v. Virgil (2011) 51 Cal. 4th 1210, 1279 (Virgil)), or that the
jury was permitted to use sympathy, mercy, or sentiment in deciding what weight to give
a mitigating factor (People v. Souza (2012) 54 Cal. 4th 90, 140). The court properly
rejected an instruction that the jury could consider sympathy for defendants‘ families and
friends as a mitigating factor, and correctly instructed to the contrary. Sympathy for
others is not a proper mitigating factor. (Thomas, supra, 53 Cal.4th at p. 828.)
The court properly declined to tell the jury that it could consider the sentence, or
lack of punishment, of a coparticipant in the offenses as a mitigating factor. (People v.
Moore (2011) 51 Cal. 4th 1104, 1141-1142 (Moore).)
The court was not required to instruct that life without parole is presumed to be the
appropriate sentence. (Gonzales, supra, 54 Cal.4th at p. 1299.) Likewise, the jury need
not be told it must return that verdict if the mitigating factors outweigh the aggravating
factors (People v. McDowell (2012) 54 Cal. 4th 395, 444 (McDowell)), or it could return a
life verdict even if no mitigating factors had been established (People v. Moon (2005) 37
Cal. 4th 1, 43). No additional instruction regarding the ―meaning‖ of life without the
possibility of parole is required (Letner, supra, 50 Cal.4th at p. 203), nor should the jury
be told that it should presume that its verdict would be carried out (id. at p. 206).
The court‘s instruction was not erroneous because it described the jury‘s task as
determining whether the death penalty was ―warranted,‖ or used the phrase ―so
substantial‖ in explaining the process of weighing the aggravating and mitigating factors.
(McKinnon, supra, 52 Cal.4th at p. 693.)
The court was not required to instruct that the aggravating factors were limited to
those specifically mentioned in the court‘s instructions. (People v. Taylor (2001) 26
Cal. 4th 1155, 1180.)
142
The jury was properly told that before any juror votes for death that juror must
find ―the aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole.‖ The court fairly
instructed that the jury need not unanimously agree on which aggravating factors were
proved. A similar nonunanimity instruction as to the mitigating factors is not required.
(Moore, supra, 51 Cal.4th at p. 1140.) Even so, the court so instructed the jury at
defendants‘ request.
The trial court specifically described which section 190.3, factor (b) and (c)
evidence could be considered as to each defendant. In the absence of a specific request
from a party, the court was not required to do the same for section 190.3, factor (a)
evidence pertaining to the circumstances of the instant offenses. (Boyer, supra, 38
Cal.4th at p. 465.) Moreover, in light of the court‘s specific instructions regarding ―other
crime‖ aggravating evidence, there is no reasonable likelihood that the jury somehow
improperly considered evidence of ―other‖ criminal activity introduced at the guilt phase.
(See Tully, supra, 54 Cal.4th at p. 1042 [factor (a) evidence includes ―guilt phase
evidence relevant to ‗the immediate temporal and spatial circumstances of the crime,‘ as
well as such additional evidence . . . that ‗ ―surrounds materially, morally, or logically‖ ‘
the crime.‖]; Scott, supra, 52 Cal.4th at p. 496 [―in directing the jury during the penalty
phase to determine what the facts are from the evidence received during the entire trial,
[the standard instructions do] not unconstitutionally allow the consideration of
nonstatutory aggravating circumstances in the determination of penalty‖].)
The trial court was not required to instruct that: The absence of a mitigating factor
cannot be considered in aggravation (Enraca, supra, 53 Cal.4th at p. 770); mitigating
factors, including a defendant‘s ―background,‖ can be considered only in mitigation
(Gonzales, supra, 54 Cal.4th at p. 1297); mitigating factors are not limited to those
specifically mentioned in the instruction (Jones, supra, 54 Cal.4th at p. 82); or one
mitigating factor could outweigh all the aggravating factors (Gonzales, at p. 1298). The
143
court was not required to delete from the instruction assertedly inapplicable mitigating
factors. (McDowell, supra, 54 Cal.4th at p. 444.) The use of ―restrictive adjectives‖ in
the definition of some mitigating factors was not erroneous. (Enraca, at p. 769.)
―Nothing in the federal Constitution requires the penalty phase jury to make
written findings of the factors it finds in aggravation and mitigation; agree unanimously
that a particular aggravating circumstance exists; find all aggravating factors proved
beyond a reasonable doubt or by a preponderance of the evidence; find that aggravation
outweighs mitigation beyond a reasonable doubt; or conclude beyond a reasonable doubt
that death is the appropriate penalty.‖ (Enraca, supra, 53 Cal.4th at p. 769.) The trial
court is not required to instruct that mitigating factors need not be proven beyond a
reasonable doubt (Virgil, supra, 51 Cal.4th at p. 1289), that generally the defendant has
no burden of proof at the penalty phase (ibid.), or that the defendant is entitled to the
―benefit of the doubt‖ regarding the appropriate sentence (People v. Lee (2011) 51
Cal. 4th 620, 655).
D. Assertedly Improper Interference with Jury Deliberations
The jury first returned death verdicts as to Wheeler. Before it returned verdicts as
to Smith and Bryant, the jury reported itself deadlocked as to the sentence for Smith.
Smith contends the trial court‘s actions and instructions in response to the reported
deadlock improperly coerced a verdict. A related challenge is also discussed below. We
assume Bryant has joined these claims, and that the challenges are preserved for appeal.
The claims do not apply to Wheeler because the trial court‘s challenged actions occurred
after his verdicts were received and recorded.
1. Background
After returning verdicts on Wheeler the jury deliberated another day and a half
then sent a note reporting a deadlock on Smith. The clerk confirmed that the impasse
concerned Smith‘s sentence. The court agreed with the parties‘ suggestions to question
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the jury about the nature of the problem and whether there was anything the court could
do to help the deliberations. It declined to declare a mistrial at that point.
The court questioned the foreman about the impasse. He stated that the jury had
taken ―at least eight‖ votes on Smith‘s sentence, and the results had ―gone from six [to]
six through just about every number to eleven to one.‖ The jury had deliberated as to
Smith first, but turned to Wheeler when it had ―reached a point of exasperation.‖ It then
resumed deliberations regarding Smith. The jury had voted four times that morning. The
first votes were eight to two, with two undecided. The last two votes were 11 to one.
Asked if there was anything the court could do to assist, the foreman stated, ―Nothing.‖
Another juror, however, requested a ―clear definition of the sympathy factor.‖ (See
§ 190.3, factor (k).)70 The court told the jurors to return to the jury room and consider
whether it needed clarification of factor (k) or any other issue of law. The jury
subsequently reported it needed no further clarifications, but remained unable to agree on
a verdict for Smith. The court then told the jury the following. ―I want you to continue
your deliberations on the remaining matters including Mr. Smith. [¶] You may be quite
right and it may be that you do not arrive at a verdict as to Mr. Smith as you seem to feel
in your note. [¶] The court is not convinced that this is the case given the fact that there
has been a verdict rendered as to one defendant, given the fact that there has been a
change from six to six right up to eleven to one. [¶] That may be where it ends or it may
go back. That tells me there is a potential that the jury may resolve this matter regardless
of what you feel now. [¶] I may be wrong. I may be right. [¶] I will ask you to
continue your deliberations in any order that you want. [¶] Again, I am not suggesting
who you deliberate on or what count or anything like that. You will have to do that for
70 Section 190.3, factor (k) provides that the jury can consider ―[a]ny other
circumstance which extenuates the gravity of the crime even though it is not a legal
excuse for the crime.‖
145
yourselves. But the court is not going to at this point declare a mistrial as to the penalty
phase as to any defendant based on what we have talked about right here. So you will
need to continue your deliberations.‖ The court also noted that one of the jurors was due
to be excused at the end of the following day because of prearranged travel plans. It
stated it was ―not suggesting that you rush. I am suggesting that you don‘t rush. If there
are verdicts that you arrive at as to any counts or any defendant or anything, we will
accept those tomorrow afternoon even if they are not complete verdicts.‖
A juror asked whether the court could provide clarification about the weighing
process and section 190.3, factor (k), in light of the ―possibility‖ a juror might not have
fully understood the instruction. The court told the jury as a whole to discuss the issue
and reduce any question to writing so that the court would not be ―shoot[ing] from the
hip.‖ The court explained it was not requiring that the jury continue deliberating as to
Smith now because ―[t]he order in which you deliberate [on] these counts, defendants and
issues is up to you.‖ The court was not, however, declaring a mistrial at this point, so the
jury would have to continue to deliberate as to his sentence at some point. In response to
a juror‘s question about the effect of a mistrial, the court explained that the verdicts
already recorded would not be affected by a mistrial, but the court did not want the jury
―to take that as a signal by the court that work is done on this case because your work is
not done on this case until the court concludes that the work is done.‖ Outside the
presence of the jury, the court denied Smith‘s renewed request for a mistrial. It cited the
length of the trial and the jury‘s movement toward unanimity.
The jury deliberated the following day without reaching a verdict. Before the
departing juror was replaced with an alternate, the court asked about progress. The
foreman reported that deliberations had resumed as to Smith and ―there has been some
change, some dialogue has opened up.‖ At that point there had been no additional votes.
An alternate juror was seated and the jury told to begin deliberations anew. The court
extended the hours of deliberations by adding a half-hour to the beginning and end of
146
each day and reducing the lunch break by a half-hour. The new schedule was 8:30 a.m.
to 4:30 p.m. with an hour lunch break. The court explained: ―[W]e have a lot of jurors
who obviously need to get on with their business. This case will take as long as it takes
for it either to be resolved or for the court to feel that it cannot be resolved. . . . But
within those parameters, we need to make use of our time wisely. [The longer hours are]
not to punish you, but so we can get as much time in as we can on this case while we
have you folks here during the day. . . . I know it is tough, but we‘re going to do it that
way, and I believe that it may assist in one way or another getting this thing concluded.
At some point in this case, your service will end . . . either with verdicts or with the court
declaring there will not be verdicts as to various matters. However that works its way
out, it works its way out; but that end will come sooner, whichever way it is, if we stick
to these hours.‖ The next day produced no verdict. After a weekend recess, the jury
returned death verdicts for Bryant and Smith.
2. Discussion
Defendants‘ claim of jury coercion is misplaced. People v. Gainer (1977) 19
Cal. 3d 835 (Gainer), explained that ―coercive‖ actions are those involving ―a judicial
attempt to inject illegitimate considerations into the jury debates and . . . appeal to
dissenting jurors to abandon their own independent judgment of the case against the
accused,‖ by placing ―excessive pressure on the dissenting jurors to acquiesce in a
verdict.‖ (Id. at pp. 849-850.) In assessing the effect of the trial court‘s actions, the
question is ―whether the instructions tend[ed] to impose such pressure on jurors to reach a
verdict that we are uncertain of the accuracy and integrity of the jury‘s stated conclusion.
This determination of whether the instructions ‗operate[d] to displace the independent
judgment of the jury in favor of considerations of compromise and expediency‘ [citation]
is perhaps best characterized as requiring a generalized assessment of the potential effect
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of a given instruction on the fact finding process, rather than as an attempted inquiry into
the actual volitional quality of a particular jury verdict.‖ (Id. at p. 850.)
In Gainer, the court gave a lengthy instruction encouraging a unanimous verdict.
It advised the jurors to ― ‗consider that the case must at some time be decided, that you
are selected in the same manner and from the same source from which any future jury
must be selected, and there is no reason to suppose the case will ever be submitted to
twelve men or women more intelligent, more impartial or more competent to decide it, or
that more or clearer evidence will be produced on the one side or the other.‘ ‖ (Gainer,
supra, 19 Cal.3d at p. 841.) Further, the instruction told the minority jurors to evaluate
the reasonableness of their position in light of the fact that the majority had not been
convinced by it.71
71 The instruction, in full, was as follows: ― ‗Ladies and Gentlemen of the Jury:
― ‗In a large proportion of cases and perhaps strictly speaking, in all cases,
absolute certainty cannot be attained or expected. Although the verdict to which a juror
agrees must, of course, be his own verdict, the result of his own convictions and not a
mere acquiescence in the conclusion of his or her fellows, yet in order to bring twelve
minds to a unanimous result, you must examine the questions submitted to you with
candor and with a proper regard and deference to the opinions of each other. You should
consider that the case must at some time be decided, that you are selected in the same
manner and from the same source from which any future jury must be selected, and there
is no reason to suppose the case will ever be submitted to twelve men or women more
intelligent, more impartial or more competent to decide it, or that more or clearer
evidence will be produced on the one side or the other. And, with this view, it is your
duty to decide the case, if you can conscientiously do so.
― ‗In order to make a decision more practicable, the law imposes the burden of
proof on one party or the other in all cases. In the present case, the burden of proof is on
the People of the State of California to establish every part of it beyond a reasonable
doubt. And, if in any part of it you are left in doubt, the defendant is entitled to the
benefit of the doubt and must be acquitted. But in conferring together, you ought to pay
proper respect to each other‘s opinions and listen with a disposition to be convinced to
each other‘s arguments.
(footnote continued on next page)
148
Here the court did not violate the Gainer principles. It merely told the jurors to
deliberate further. It was careful to present a balanced approach and explicitly left open
the possibility that agreement might not be reached. It told jurors not to rush the process.
In essence, it did not accept the jury‘s position that it truly was deadlocked at that time. It
did not give a ―dynamite charge‖ designed to end a stalemate by suggesting that the
jurors reevaluate their positions, or that the case had to be decided. (See Gainer, supra,
19 Cal.3d at pp. 843-844, 851-852.) The court‘s statements conveyed that it was not
prepared to declare the jury permanently deadlocked at that point. Defendants point out
that the court knew of the numerical division, mentioned the jury‘s apparent progress
toward unanimity, and did not specifically instruct the jurors not to give up their position
(footnote continued from previous page)
― ‗And, on the other hand, if much the larger of your panel are for a conviction, a
dissenting juror should consider whether a doubt in his or her own mind is a reasonable
one, which makes no impression upon the minds of so many men or women equally
honest, equally intelligent with himself or herself, and [who] have heard the same
evidence with the same attention and with an equal desire to arrive at the truth and under
the sanction of the same oath.
― ‗And, on the other hand, if a majority are for acquittal, the minority ought
seriously to ask themselves whether they may not reasonably and ought not to doubt the
correctness of a judgment, which is not concurred in by most of those with whom they
are associated, and distrust the weight or sufficiency of that evidence which fails to carry
conviction to the minds of their fellows.
― ‗That is given to you as a suggestion of the theory and rationale behind jurors
coming to a decision one way or the other.
― ‗So, Ladies and Gentlemen of the Jury, I'm going to ask you — after lunch — to
retire and continue with your deliberations and see if it is at all possible to resolve the
matter.
― ‗I understand that, of course, on occasions it is impossible to do so, but — based
upon the instruction I have just given to you — I would appreciate that after lunch — if
you would go back and resume your deliberations and see if you can arrive at a verdict
and that the deadlock can be broken.‘ ‖ (Gainer, supra, 19 Cal.3d at pp. 840-842.)
149
simply for the sake of reaching a verdict. In context these factors do not demonstrate that
the court displaced the independent judgment of any juror. (See Virgil, supra, 51 Cal.4th
at pp. 1282-1283.)
We are not persuaded by the court‘s view in Jiminez v. Myers (9th Cir. 1993) 40
F.3d 976, 980, upon which defendants rely, that similar circumstances ―amounted to
giving the jury a de facto Allen charge [Allen v. United States (1896) 164 U.S. 492],‖
improperly coercing a verdict. (Jiminez, at pp. 980-981.) A trial court faced with a
reportedly deadlocked jury is permitted to declare a mistrial if, ―at the expiration of such
time as the court may deem proper, it satisfactorily appears that there is no reasonable
probability that the jury can agree.‖ (§ 1140, italics added.) A court must be permitted to
undertake some inquiry about the state of deliberations to determine if, despite the report
of a stalemate, there is a reasonable probability of future agreement. We have
consistently rejected the federal rule that inquiries into the numerical division of the
jurors are inherently coercive. (People v. Homick (2012) 55 Cal. 4th 816, 901 (Homick);
see Brasfield v. United States (1926) 272 U.S. 448, 450.) The trial court‘s mention of the
jury‘s progress explained the court‘s direction to continue deliberations. It did not
encourage any juror to reevaluate a position or push for any verdict.
Subsequent events further undermine defendants‘ challenge. The next day, the
jury reported that deliberations on Smith‘s sentence had resumed, and that ―some change,
some dialogue has opened up.‖ The jury continued to consider verdicts as to Smith and
Bryant for the balance of the day. The logical reading of this record is that the court‘s
actions had the proper effect of facilitating the jury‘s continued deliberations, rather than
improperly coercing a verdict. Moreover, during that process a seated juror was replaced
by an alternate, and the jury was instructed to begin its deliberations anew. Defendants
fail to logically argue how any assertedly coercive effect from earlier actions could have
persisted once the newly constituted jury started fresh deliberations. (See Homick, supra,
55 Cal.4th at p. 901.)
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Defendants also argue their constitutional rights to a unanimous jury were violated
when the reconstituted jury began deliberations after the previous jury had rendered death
verdicts as to Wheeler. The claim fails for the same reasons we rejected ante, in part
III.K.
E. Denial of Application to Modify the Jury’s Verdicts as to Smith
Smith contends the trial court improperly denied his automatic motion to modify
the jury‘s death verdict. (§ 190.4.) He asserts that the trial court considered facts
unsupported by the evidence and cursorily dismissed legitimate factors in mitigation.72
He forfeited these claims by failing to raise them below. (Hartsch, supra, 49 Cal.4th at
p. 514.) They are also meritless.
Section 190.4, subdivision (e) provides in relevant part: ―In every case in which
the trier of fact has returned a verdict or finding imposing the death penalty, the
defendant shall be deemed to have made an application for modification of such verdict
or finding pursuant to Subdivision 7 of Section [1181]. In ruling on the application, the
judge shall review the evidence, consider, take into account, and be guided by the
aggravating and mitigating circumstances referred to in Section 190.3, and shall make a
determination as to whether the jury‘s findings and verdicts that the aggravating
circumstances outweigh the mitigating circumstances are contrary to law or the evidence
presented.‖ The trial court here explicitly acknowledged its duty to review the evidence
and to weigh for itself the mitigating and aggravating factors to determine if a sentence of
death was justified.
Smith takes issue with the trial court‘s view that the evidence established he was a
―long-standing and respected member‖ of the Bryant Family organization. Smith now
urges his ―role in the Bryant organization seems to be rather limited.‖ First, he did not
72 This claim is inapplicable as to Bryant and Wheeler.
151
make that argument at the post-verdict hearing. Second, his characterization was
disputed and substantial evidence points to the contrary. Finally, the court‘s ruling was
based in large measure on its view that the murders at issue were ―horrible,‖ ―heinous,‖
and ―abhorrent,‖ and Smith‘s participation in them was not ―out of character‖ in light of
his other criminal conduct. Any misunderstanding about Smith‘s status in the Family
― ‗had no impact on the court‘s decision to deny the motion.‘ ‖ (People v. Cooper (1991)
53 Cal. 3d 771, 848.)
Smith also contends the trial court improperly disregarded his mitigating evidence.
To the contrary, the record demonstrates the court considered the evidence, which it
specifically recounted. It simply found it unpersuasive. (See People v. Thomas, supra,
54 Cal.4th at p. 948.) The court explained: ―[t]he manner of these crimes, heinous nature
of these crimes, and the other crimes committed by [Smith] outweigh hugely — not just
substantially, but hugely — any attempt that [he] has made to explain or mitigate his
actions or to even [garner] sympathy in the fact finder or the court. [¶] And the jury was
correct, I believe, absolutely in their verdict, legally, morally and in any other way, and I
adopt it without hesitation.‖
V. OTHER ISSUES
A. Defense Absences from Various Proceedings
Bryant contends the court erroneously conducted a number of ex parte meetings
with members of the district attorney‘s office regarding the first defense recusal motion.
(See ante, pt. II.C.) He also challenges two in camera meetings with jurors concerning
security measures (see ante, pt. III.F.), and the permission granted Bryant to waive his
personal presence at various proceedings. We assume Smith and Wheeler have joined
these claims. There was no reversible error.
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1. District Attorney Meetings
The first defense motion to recuse the LADA arose from a statement the lead
prosecutor filed that trial evidence would show the Bryant Family had ―people inside‖ the
office, as well as other public agencies. Defendants argued the LADA‘s failure to
provide discovery on the subject and, apparently, to prosecute the infiltrators showed
there was a conflict of interest that would prevent defendants from receiving a fair trial.
The LADA argued that the statement had been misinterpreted, no discoverable
information had been withheld, and no conflict of interest existed. To facilitate the
court‘s resolution of the motion, the LADA agreed to disclose to the court the basis for
the prosecutor‘s statement. It asserted that this information concerned completed and
ongoing internal investigations and was confidential under the ―official information‖
privilege, section 1040 of the Evidence Code.73 The trial court observed that it would
need to conduct in camera hearings to determine whether the privilege applied. It
promised to provide the defense with any material it deemed discoverable. No defendant
objected.
The court then conducted a series of ex parte in camera meetings with LADA
attorneys and investigators. The court also directed the LADA to conduct further
investigation and report back. In the midst of these hearings, Bryant asserted in a written
filing that the privilege did not apply because the LADA had publicly disclosed the
allegations of infiltration, and, in any event, the defendants‘ need for the information
outweighed any confidentiality interest. The court ultimately ruled: (1) there was no
evidence of infiltration or of undisclosed exculpatory material; (2) the information
73 In relevant part, this provision establishes a public entity‘s privilege to withhold
confidential information when ―[d]isclosure of the information is against the public
interest because there is a necessity for preserving the confidentiality of the information
that outweighs the necessity for disclosure in the interest of justice[.]‖ (Evid. Code,
§ 1040, subd. (b)(2).)
153
provided to the court in the ex parte meetings was privileged; and (3) no conflict of
interest required recusal of the LADA. Defendants now claim the trial court erred by
conducting the ex parte meetings. The court did not err.
A criminal defendant has the right under the state and federal Constitutions to be
personally present and represented by counsel at all critical stages of the trial. For
purposes of the right to be present, a critical stage is ―one in which a defendant‘s
‗ ―absence might frustrate the fairness of the proceedings‖ [citation], or ―whenever his
presence has a relation, reasonably substantial, to the fullness of his opportunity to defend
against the charge.‖ ‘ ‖ (Rundle, supra, 43 Cal.4th at p. 133.) As to the right to counsel,
a critical stage is one ―in which the substantial rights of a defendant are at stake‖ (People
v. Crayton (2002) 28 Cal. 4th 346, 362), and ―the presence of his counsel is necessary to
preserve the defendant‘s basic right to a fair trial‖ (United States v. Wade (1967) 388 U.S.
218, 227).
Defendants did not specifically object to the court‘s decision to conduct in camera
proceedings. After the meetings began, they argued that the court should not apply the
official information privilege. They later pointed out that their absence from the
meetings made it difficult for them to address the merits of the issue. They did not
directly challenge the court‘s decision to hold the ex parte meetings as a denial of their
constitutional rights to presence and counsel. The appellate claim is forfeited.
Even if not forfeited, the claim fails. In general, a court ―has inherent discretion to
conduct in camera hearings to determine objections to disclosure based on asserted
privileges.‖ (Izazaga v. Superior Court (1991) 54 Cal. 3d 356, 383, fn. 21.) We have
acknowledged that, as to an assertion of the official information privilege, a trial court
may properly conduct in camera proceedings to ―weigh the People‘s claim of privilege
against defendant‘s asserted need for the information.‖ (Jenkins, supra, 22 Cal.4th at
p. 955.) As in People v. Roberts, supra, 2 Cal.4th at page 302, defendants fail ―to
154
persuade that [they have] a constitutional right to be present at an in camera hearing at
which the prosecution will reveal sensitive and possibly privileged information.‖
2. Juror Meetings
As previously mentioned, the court ruled that the potential threat of juror harm
called for various security measures. These included juror anonymity, escort to and from
a confidential location and sequestration in a special jury room during recesses. Early in
the trial proceedings, over defense objection, the court conducted two in camera meetings
with the jurors from which all parties were excluded. The court discussed the
arrangements and asked if they were causing the jurors any problems. The parties were
provided transcripts of the meetings after the trial concluded.
Defendants assert on appeal that they ―plainly . . . had a right to be present at
proceedings where the court spoke with the jurors who would decide appellant‘s fate.‖
To the contrary, ―a trial court properly may engage in ex parte communications [with
jurors] for ‗ ―. . . administrative purposes . . . that do not deal with substantive
matters.‖ ‘ ‖ (Clark, supra, 52 Cal.4th at p. 987.) The discussions at issue concerned the
administrative matter of the jury‘s travels as well as other arrangements like the provision
of lunch. Moreover, the court was reasonably concerned that the discussions remain
confidential so security would not be compromised. As revealed by the transcripts, there
was no discussion of any substantive matter related to the charges. In fact, the court cut
off a juror who began to comment on the parties‘ use of exhibits. The court then had the
juror express that concern in open court. The parties were provided a record of the
proceedings after the trial, when the need for confidentiality had ended. Defendants‘
assertion that the ―cold record‖ does not ―reflect whether the court was successful in
being neutral in tone and manner,‖ is not persuasive. That rationale would prohibit all ex
parte communications between the court and the jury, contrary to law. Defendants have
not established that the meetings were critical stages of the trial in the sense that the
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absences could have frustrated the fairness of the trial or denied a full opportunity for
defense.
3. Other Absences
In addition to the hearings discussed above, defendants were absent from a
number of other proceedings. Defendants personally or through counsel orally waived
their right to be present at most of these.74 Defendants claim that as a general matter, the
federal Constitution mandates that a capital defendant be personally present at all trial
proceedings, even if the defendant purports to waive that right. They also point out that
state law prohibits a capital defendant from voluntarily waiving his presence during the
taking of trial evidence, and requires written waivers of the right to be present. (See
§§ 977, 1043; People v. Weaver (2001) 26 Cal.4th 876,967-968.) Defendants assert that
any violation of the statutes comprises the ―arbitrary deprivation‖ of a right secured by
state law under Hicks v. Oklahoma, supra, 447 U.S. at page 346, and thus constitutes
federal constitutional error as well. They urge the Attorney General has not carried the
burden of demonstrating the asserted federal constitutional error was harmless beyond a
reasonable doubt, and that, applying state law, there is a reasonable probability of a more
favorable result had the error not occurred.
The claim of federal constitutional error based on the mere fact of defendants‘
absences is without merit. Defendants make no effort to demonstrate that any of the
proceedings were critical stages of the trial under the applicable standard, that their
presence was necessary to ensure the full opportunity to defend themselves at a fair trial.
74 Bryant specifically mentions his absence without waivers from a discovery
hearing and at the reassignment of the case after the first trial judge had been recused. He
also challenges his absences following oral waivers from another discovery proceeding, a
hearing on the admissibility of codefendant Settle‘s post-arrest statements, and during
guilt phase deliberations after the jury had reached verdicts on the charges against him.
156
Further, the record does not support such a conclusion. As to waiver, contrary to
defendants‘ arguments, the federal Constitution does not prohibit a capital defendant
from waiving his right to be present at a critical trial stage. (Rundle, supra, 43 Cal.4th at
p. 135.) Any statutory error in the trial court‘s accepting oral, rather than written,
waivers is not elevated to federal constitutional error by invoking Hicks. (Rundle, at
p. 136.) In sum, defendants have not established any error that would be subject to the
Chapman standard. To the extent their absences at proceedings based on oral waivers
violated the statutes, defendants have presented no support for the conclusion there is
either a reasonable probability at the guilt phase or reasonable possibility at the penalty
phase that the outcome would have been more favorable had defendants been required to
make written waivers or forced to attend the proceedings despite their wishes to be
absent.75 (See Rundle, at pp. 135-136.)
B. Assertedly Inadequate Appellate Record
Bryant contends various asserted omissions from the appellate record violated his
constitutional and statutory rights. These include descriptions of witnesses‘ physical
gestures, unreported discussions, charts and visual aids used by counsel, and some sealed
records. We assume Smith and Wheeler have joined this claim. As defendants
acknowledge, we have consistently held that ―state law entitles a defendant only to an
appellate record ‗adequate to permit [him or her] to argue‘ the points raised in the appeal.
[Citation.] Federal constitutional requirements are similar. The due process and equal
protection clauses of the Fourteenth Amendment require the state to furnish an indigent
defendant with a record sufficient to permit adequate and effective appellate review.
[Citations.] Similarly, the Eighth Amendment requires reversal only where the record is
75 We have assumed that Bryant‘s absence when Smith made his motion to reopen
the jury‘s deliberations on the guilt phase verdicts does not preclude him from joining the
appellate claim of error (see ante, pt. III.L.).
157
so deficient as to create a substantial risk the death penalty is being imposed in an
arbitrary and capricious manner. [Citation.] The defendant has the burden of showing
the record is inadequate to permit meaningful appellate review. [Citation.]‖ (People v.
Rogers (2006) 39 Cal. 4th 826, 857-858.) Defendants present no compelling reason to
revisit the requirement that they establish a material omission from the record, nor do
they attempt to demonstrate that any of the claimed omissions actually prevent
meaningful review. ―Human affairs being what they are, . . . perfect records are not
always achieved. Appellants must do more than merely complain about omissions; they
must demonstrate that the record is insufficient for meaningful appellate review.‖
(Harris, supra, 43 Cal.4th at p. 1283.)
C. General Challenges to California’s Death Penalty Law
Defendants raise a number of challenges to California‘s death penalty statute that
we have consistently rejected. 76 They present no compelling arguments against those
settled precedents.
The death penalty statute does not unconstitutionally fail to adequately narrow the
class of murderers eligible for the death penalty. (Enraca, supra, 53 Cal.4th at p. 769.)
None of the following renders the death penalty statute unconstitutional:
(1) permitting jury consideration of the circumstances of the crime under section
190.3, factor (a) (Enraca, supra, 53 Cal.4th at p. 769);
(2) permitting jury consideration of a defendant‘s unadjudicated violent criminal
activity under section 190.3, factor (b) (People v. Blacksher (2011) 52 Cal. 4th 769, 848);
(3) the absence of intercase proportionality review (Enraca, supra, 53 Cal.4th at
p. 769);
76 Defendants have raised a number of related challenges to the penalty phase jury
instructions that we addressed ante, in parts IV.A and C.
158
(4) the absence of various ―safeguards‖ in the penalty determination, such as
written findings, jury unanimity, and a burden of proof regarding the sentence (Enraca,
supra, 53 Cal.4th at p. 769);
(5) the existence of prosecutorial discretion in charging and pursuing the death
penalty (Scott, supra, 52 Cal.4th at p. 495); or
(6) the provision of different procedural rights to capital defendants (Enraca,
supra, 53 Cal.4th at p. 770).
The imposition of the death penalty in accordance with state and federal
constitutional and statutory law does not violate international law or the Eighth
Amendment to the federal Constitution. (Enraca, supra, 53 Cal.4th at p. 770.)
D. Cumulative Prejudice and Reversal of Any Count
Defendants contend the combined guilt and penalty phase errors require reversal
of their convictions and death sentences even if the errors are not prejudicial when
considered individually. As discussed ante, we have concluded that those errors we have
found or assumed for the sake of argument are harmless. Even when considered
cumulatively, such errors did not deny defendants a fair trial. Because we have not
concluded that any count or special circumstance must be reversed, defendants‘ claim
that any such reversal warrants the reversal of the entire judgments against them fails.
159
VI. DISPOSITION
We affirm the judgments.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BRUINIERS, J. *
_____________________________
* Associate Justice of the Court of Appeal, First Appellate District, Division Five,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
160
CONCURRING OPINION BY LIU, J.
I join today‘s opinion except for its conclusion that the trial court acted
within its discretion in ordering defendants to wear either shackles or a stun belt.
Our case law makes clear that before a trial court may order such restraints, ―[t]he
record must demonstrate that the trial court independently determined on the basis
of an on-the-record showing of defendant‘s nonconforming conduct that ‗there
existed a manifest need to place defendant in restraints.‘ [Citation.]‖ (People v.
Mar (2002) 28 Cal. 4th 1201, 1218 (Mar); People v. Duran (1976) 16 Cal. 3d 282,
290–291.) The ―manifest need‖ standard ―is relatively narrow. [Citation.]
‗Manifest need‘ arises only upon a showing of unruliness, an announced intention
to escape, or ‗[e]vidence of any nonconforming conduct or planned
nonconforming conduct which disrupts or would disrupt the judicial process if
unrestrained . . . . [Citation.] Moreover, ‗[t]he showing of nonconforming
behavior . . . must appear as a matter of record . . . .‘ ‖ (People v. Cox (1991) 53
Cal. 3d 618, 651 (Cox); see Mar, at p. 1220 [the record must ―demonstrate that the
trial court actually determined that defendant posed the type of serious security
threat at trial that would justify the imposition of restraints under the ‗manifest
need‘ standard‖].)
In its analysis of the stun belt issue (maj. opn., ante, at pp. 50–55), today‘s
opinion does not cite any independent determination by the trial court that an on-
the-record showing of manifest need justified the imposition of restraints on each
defendant. And the reason is simple: there is none in this record.
As the court notes, ―[d]uring several years of court proceedings none of the
defendants had been disruptive in court, nor had any escape plots been uncovered.
There was no indication Bryant and Smith had been violent while in pretrial
custody.‖ (Maj. opn., ante, at p. 54.) Nevertheless, the court says, ―[a]s to Bryant,
the [trial] court was informed that he had been disciplined in the jail for possessing
improper amounts of razor blades and food items, suggesting he was still engaged
in organized illicit activities while in custody.‖ (Id. at p. 55.) But the trial court
made no finding that Bryant posed a threat in the courtroom, and the trial court
nowhere relied on Bryant‘s possession of improper items in jail as a basis for its
decision to order restraints. (See Mar, supra, 28 Cal.4th at p. 1220 [the
circumstances justifying the restraint must be ―adequately established on the
record and actually relied upon by the trial court‖].)
As to Wheeler, today‘s opinion says ―the court knew he had been formally
charged and held to answer for an attempted murder of a jail inmate and an assault
with a deadly weapon on a guard that had occurred during his pretrial
incarceration.‖ (Maj. opn., ante, at pp. 54–55.) However, when the trial court
mentioned this, Wheeler‘s counsel interjected that there was ―no evidence‖ before
the court that Wheeler had done ―anything while in custody,‖ only ―an allegation.‖
After determining there were two pending cases against Wheeler that were
―trailing‖ this case, the trial court said: ―I would assume since they are in superior
court some finding has been made by somebody that the allegations are not woven
out of cloth. But I will concur that there is no conviction. But they resulted in the
filing of two felony matters.‖ The trial court‘s statement that ―some finding has
been made by somebody‖ hardly qualifies as an independent, substantiated finding
of manifest need. The fact that Wheeler faced felony charges from the two
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incidents is insufficient, for we have said that ―when the imposition of restraints is
to be based upon conduct of the defendant that occurred outside the presence of
the court, sufficient evidence of that conduct must be presented on the record so
that the court may make its own determination of the nature and seriousness of the
conduct and whether there is a manifest need for such restraints; the court may not
simply rely upon the judgment of law enforcement or court security officers or the
unsubstantiated comments of others.‖ (Mar, supra, 28 Cal.4th at p. 1221, italics
added; see People v. Hill (1998) 17 Cal. 4th 800, 841 [―A trial court abuses its
discretion if it abdicates this decisionmaking authority to security personnel or law
enforcement.‖].)
Today‘s opinion further says: ―Although the court did not conduct a formal
hearing with the presentation of evidence, the matter was discussed over the
course of two pretrial proceedings, and the court summarized the case-specific
information upon which it based its decision.‖ (Maj. opn., ante, at p. 53.)
Presumably this is a reference to the trial court‘s statement that ―the four
defendants, and others that are not before the court, involved themselves for years
and years and years in ongoing criminal activity of every description including
homicides, drug dealing, et cetera.‖ The record makes clear, however, that the
trial court did not indicate that defendants and others had in fact been involved in
such conduct. It prefaced the quoted statement with the following: ―The
allegation is, and again it is an allegation, I don‘t know if it will be proven or not,
but the People will try to prove that . . . .‖ When the court later held another
hearing regarding restraints and juror anonymity, it noted: ―There will be
evidence in the case, from what I am told at least by all counsel, to suggest that
over a number of years the defendants in this case involved themselves in a fairly
widespread and fairly powerful criminal organization involved in a wide range of
criminal activity including narcotic dealing, crimes of violence.‖ These remarks
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indicate that, to the extent the trial court based its ruling on defendants‘ long-term
involvement in criminal activity, it was relying not on its own independent review
of the evidence but on allegations and representations as to the evidence that
would be introduced. But again, a trial court ―may not simply rely upon the
judgment of law enforcement or court security officers or the unsubstantiated
comments of others‖ in ordering restraints. (Mar, supra, 28 Cal.4th at p. 1221.)
The crux of this court‘s analysis is its assertion that ―[t]he trial court had
before it a great deal of credible information from the preliminary hearings,
charging documents, trial briefs, other summaries of the intended evidence, and in-
court representations of counsel that defendants were part of a large-scale and
extremely violent drug organization with many members remaining at large.‖
(Maj. opn., ante, at p. 54.) But this litany provides no basis for upholding the trial
court‘s ruling under our well-established standards. First, none of this material —
―preliminary hearings,‖ ―charging documents,‖ ―trial briefs,‖ ―intended evidence,‖
―in-court representations‖ (ibid.) — comprised an ―on-the-record showing‖ (Mar,
supra, 28 Cal.4th at p. 1218) or ― ‗[e]vidence‘ ‖ (Cox, supra, 53 Cal.3d at p. 651)
of the threat posed by any defendant. Second, most of this material suggested
what ―the Family‖ might do to disrupt the trial, not what any of the three
defendants might do. Third, as noted, the record does not ―demonstrate that the
trial court independently determined on the basis of an on-the-record showing of
[each] defendant‘s nonconforming conduct that ‗there existed a manifest need to
place [each] defendant in restraints.‘ ‖ (Mar, at p. 1218, italics added.) And
fourth, the record does not show that the preliminary hearings or other information
in the cited materials was ―actually relied upon by the trial court.‖ (Id. at p. 1220.)
In sum, a straightforward application of our settled law to this record yields the
conclusion that the trial court erred in ordering restraints as to each defendant.
4
However, our recent decision in People v. Jackson (2014) 58 Cal. 4th 724,
742–748, dictates that the erroneous use of stun belts on these defendants must be
deemed harmless. Jackson held that a stun belt error is harmless beyond a
reasonable doubt when the record reveals no ―evidence‖ or ―indication‖ that the
stun belt adversely affected the defendant. (Id. at p. 748.) In this case, some
jurors might have seen a lump under defendants‘ clothes and inferred that they
were wearing a security device. But defendants point to nothing in the record
showing that the stun belts adversely affected their demeanor or ability to assist
counsel, or otherwise impaired their participation in the trial. Although I believe
our penalty-phase holding in Jackson contravenes the clear mandate in Chapman
v. California (1967) 386 U.S. 18, 24, that it is the state‘s burden to demonstrate
lack of prejudice, not the defendant‘s burden to demonstrate prejudice (see
Jackson, at pp. 777–778 (conc. & dis. opn. of Liu, J.)), Jackson is controlling here
and does not authorize reversal of the guilt or penalty verdicts on the basis of the
stun belt error. Accordingly, I concur in today‘s judgment.
LIU, J.
5
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Bryant, Smith and Wheeler
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S049596
Date Filed: August 25, 2014
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Charles E. Horan
__________________________________________________________________________________
Counsel:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Kathleen M. Scheidel,
Assistant State Public Defender, for Defendant and Appellant Stanley Bryant.
David H. Goodwin, under appointment by the Supreme Court, for Defendant and Appellant Donald Franklin Smith.
Conrad Petermann, under appointment by the Supreme Court, for Defendant and Appellant Leroy Wheeler.
Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney General,
Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Victoria B. Wilson, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Kathleen M. Scheidel
Assistant State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607-4139
(510) 267-3300
David H. Goodwin
P.O. Box 93579
Los Angeles, CA 90093-0579
(323) 666-9960
Conrad Petermann
Law Office of Conrad Petermann
323 East Matilija Street, Suite 110, PMB 142
Ojai, CA 93023
(805) 646-9022
Victoria B. Wilson
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2357
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