People v. Wright ( 2022 )

Filed 3/9/22 (unmodified opn. attached)
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM LEE WRIGHT, JR.,
Defendant and Appellant.
S107900
Los Angeles County Superior Court
KA048285-01
ORDER MODIFYING OPINION AND
DENYING PETITION FOR REHEARING
THE COURT:
The majority opinion in this case, filed on December 16,
2021, and appearing at 12 Cal.5th 419, is modified as follows:
1. On page 436, in the first sentence of the first full
paragraph, the phrase “abused its discretion” is replaced with
“erred,” so that the sentence begins:
We first analyze whether the trial court erred . . . .
2. On page 439, in the first sentence of the first full
paragraph, the phrase “abuse its discretion” is replaced with
“err,” so that the sentence begins:
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PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
Under the totality of circumstances described in
Lynch, the trial court did not err . . . .
This modification does not affect the judgment.
The petition for rehearing is denied.
2
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM LEE WRIGHT, JR.,
Defendant and Appellant.
S107900
Los Angeles County Superior Court
KA048285-01
December 16, 2021 (unmodified opinion)
Chief Justice Cantil-Sakauye authored the opinion of the Court,
in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and
Lui* concurred.
*
Administrative Presiding Justice of the Court of Appeal,
Second Appellate District, Division Two, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
PEOPLE v. WRIGHT
S107900
Opinion of the Court by Cantil-Sakauye, C. J.
A jury convicted defendant, William Lee Wright, Jr., of the
first degree murder of Philip Curtis, and found true the special
circumstance allegations that he committed the murder during
the commission of a robbery and a burglary. (Pen. Code, §§ 187,
subd. (a) [murder], 190.2, subd. (a)(17)(i) [robbery murder],
190.2, subd. (a)(17) [burglary murder].)1 The jury also convicted
defendant of the attempted murders of Julius Martin, Douglas
Priest, Mario Ralph, and Willie Alexander (§ 664; § 187,
subd. (a)) and of robbery against Martin (§ 211). The jury found
true several sentence enhancements connected to the additional
charges. The jury returned a death verdict, and the trial court
sentenced defendant to death in 2002. This appeal is automatic.
(§ 1239, subd. (b).) We affirm the judgment in its entirety.
I. FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution Case
a. Long Beach Incident
On February 17, 2000, at approximately 2:00 a.m.,
defendant visited the Long Beach apartment of Douglas Priest
1
All further undesignated statutory references are to the
Penal Code.
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Opinion of the Court by Cantil-Sakauye, C. J.
and Julius Martin, and he knocked on the door.2 Priest had
fallen asleep facedown on the living room floor after consuming
approximately six beers and one or two shots of tequila. He
awoke from the knock but did not move. Martin answered the
door and let defendant inside. Defendant indicated he was there
to buy marijuana, which Priest and Martin sold from the
apartment along with cocaine. Martin told defendant that they
had none. Defendant asked when they would have drugs
available, to which Martin replied, “Probably tomorrow.”
Defendant stood up to leave and Martin followed him to
the door. Defendant turned around, pulled a knife from his right
side and a gun from his left side and said, “This is a jack move.”
Meanwhile, Priest could hear Martin and defendant talking but
he did not move. Although he could not identify all of what was
said, the conversation made him uncomfortable. Defendant said
to Martin, “You think I’m bullshitting?” Defendant then
stabbed Priest in the back. Defendant said to Martin, “Give it
up,” and Martin produced $70 in cash from his pocket.
Defendant asked, “Is that it?” Martin replied, “Yeah.”
Defendant ordered Martin to lie facedown on the ground and not
look up. Martin complied. Defendant shot Martin twice in the
back of the head. Martin lost consciousness.
After Priest heard the gunshots, he heard defendant open
the door to leave and looked over his shoulder to see who had
been in the apartment. He the saw the man’s profile and
recognized defendant based on his profile as well as his voice.
2
Julius Martin was unavailable to testify at trial. The
prosecution read into the record his preliminary hearing
testimony.
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He knew defendant as “Mad,” a person who lived in a nearby
building and frequently came to the apartment. Priest testified
that he had no doubt that defendant was the man who stabbed
him, noting that defendant had a distinctive voice and he had
known defendant for a few months prior to the incident.
Once defendant left the apartment, Priest stood up, locked
the door, and called 911. He checked on Martin, who was
bleeding profusely out of the top of his head. Martin regained
consciousness and responded to Priest calling his name. The
police and paramedics arrived, and both men were taken to the
hospital.
After he was admitted to the hospital, a detective
attempted to ask Priest questions. Priest did not cooperate. He
explained he was in pain at the time and on medication. He also
believed the police were treating him like a suspect, rather than
a victim. After they checked his hands for gunpowder residue
he declined to speak with them further.
Four or five days later, Long Beach Police Detective Philip
Cloughesy interviewed Martin in the hospital. Martin related
that an individual he knew as “Mad” shot him, and that he knew
“Mad” to be a member of the Crips street gang. He told
Cloughesy that “Mad” lived around the corner from him, and he
had known “Mad” for about one year. Martin said that Priest
awoke after the individual had already left the apartment.
About one month after the incident, Priest saw a picture
of defendant on the television news. He called Martin and said
he saw “Mad” on the news being arrested by Ontario Police, put
into a police car, and taken to jail in connection with a separate
incident. Martin turned on his television news and also
recognized defendant. He called the detective investigating his
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Opinion of the Court by Cantil-Sakauye, C. J.
shooting and explained that he saw the man who shot him on
the news.
Priest subsequently identified defendant at a live lineup,
at the preliminary hearing, and at trial. Martin identified
defendant at a live lineup and at the preliminary hearing.
At the preliminary hearing, Martin acknowledged that on
the night of the incident he did not tell officers that the man who
shot him lived around the corner. He further acknowledged not
telling the officers that he gave defendant $70, nor that he sold
marijuana out of his apartment. At trial, Priest also
acknowledged not telling officers that the man who stabbed him
lived nearby, explaining that he had never been to defendant’s
residence.
b. Pomona Incident
Mario Ralph, Phillip Curtis, and Willie Alexander sold
rock cocaine from a house in Pomona. On March 21, 2000,
between 6:00 p.m. and 7:00 p.m., defendant went to the house
and bought $50 of rock cocaine. Curtis handled the transaction
while Ralph was “on point” — meaning, Ralph would pat those
who entered the house and then watch the person to make sure
“things were straight.” Ralph did not pat down defendant
because he knew him; he had seen defendant approximately
three times that week. He knew defendant to be a member of
the Duroc gang.
After purchasing the $50 of rock cocaine, defendant sought
to buy a larger quantity of drugs, but the men did not have more;
Curtis asked defendant to come back at a later time. Defendant
returned about one hour later. When defendant knocked on the
door, Ralph was resting in one of the bedrooms. Ralph heard a
lot of cussing and then heard defendant say, “Mother fuckers.
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Opinion of the Court by Cantil-Sakauye, C. J.
Duroc. Where is the dope at?” Ralph then heard three gunshots.
He ran into the front room to see Curtis and Alexander had each
been shot. Curtis was leaning over a table gasping for air and
trying to pull a gun out of his pants pocket. Alexander was
sitting on the couch with his cell phone in his hand.
Ralph saw defendant standing in the room. He reached
for the gun that Curtis had put on the table. When Ralph’s back
was turned to defendant, as his hand grabbed the gun,
defendant shot Ralph twice in the back. Ralph turned and tried
to shoot defendant. He fired two shots before running out of
bullets. Ralph briefly collapsed but managed to stand back up.
He saw defendant run around the house and pick up the couch,
asking, “Where’s the motherfucking dope?”
Scared, Ralph ran toward the door to leave the house.
Defendant ran toward the door at the same time. Ralph made
it through the front door first, but defendant ran past him and
entered a waiting car. Ralph briefly tried to run after the car.
Ralph returned to the house. He threw Curtis’s gun on to
the roof and then, once inside the house, flushed the remaining
rock cocaine down the toilet. Ralph checked on Curtis, who said
“What should I do? He shot me in the heart.” Ralph ran outside
again and asked a neighbor to call 911. At that point Ralph was
having difficulty breathing and “everything was moving
slow[ly].” Alexander walked outside and sat with Ralph on the
porch to wait for the police and paramedics to arrive. Ralph
thought he was going to die, so he sat there “trying to let it
happen.”
Sergeant Mark Warm was the first officer to arrive. Ralph
approached him screaming that he had been shot, and Warm
called an ambulance. Ralph gave Warm a description of the
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Opinion of the Court by Cantil-Sakauye, C. J.
shooter. At that time, Alexander walked toward Warm and
Ralph. Alexander appeared to be in shock and was unable to
answer any questions. Curtis was later found in the house and
subsequently pronounced dead.
When Ralph was in the hospital, his cousin brought him a
local newspaper in which Ralph saw a photograph of defendant.
Ralph called the detectives and explained that he saw a
newspaper picture of the man who shot him. Ralph
subsequently identified defendant in a photographic lineup.
Ralph also identified defendant at a live lineup, at the
preliminary hearing, and at trial.
As a result of being shot, Ralph had been hospitalized
several times, lost a kidney and 100 feet of intestines, and used
a colostomy bag. Occasionally he had difficulty eating and
drinking.
c. The Investigation
In Long Beach, officers recovered a small amount of
marijuana and a .357 caliber revolver from the apartment. They
also recovered a bullet fragment laying on Martin’s shirt, which
had been left on the floor after paramedics treated him at the
scene.
Following the Pomona incident, a crime scene investigator
recovered Curtis’s handgun, a .380 caliber semiautomatic, in a
walkway area between the Pomona house and a neighboring
house. He also recovered two spent shell casings inside the
house. The investigator located, inside a bedroom closet, a
bullet that he testified had been fired from the front of the house
and gone through several walls before landing in the closet.
The doctor who performed the autopsy on Curtis testified
that he died from a single gunshot wound to the chest. He
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Opinion of the Court by Cantil-Sakauye, C. J.
recovered a .32 caliber bullet from Curtis’s vertebra. The bullet
entered the left side of the chest, went through the heart, and
into the upper abdomen, where it lodged in a vertebra.
On March 24, 2000, Ontario Police Officer Joseph Giallo
arrested defendant in an Ontario apartment for an unrelated
incident. Defendant and his future wife, Janice Marrow-Wright,
were the only people present in the apartment. When Giallo
searched the apartment in conjunction with the arrest, he
located a dark-colored .32 caliber revolver under couch cushions.
Defendant’s ex-wife, Toni Wright, testified that on March 22,
2000, she had seen defendant in possession of a small dark-
colored handgun.
Dale Higashi, a senior criminalist with the Los Angeles
County Sheriff’s Department, studied the ballistics evidence.
He examined Curtis’s .380 caliber semiautomatic handgun,
which was found at the Pomona house, and the .32 caliber
revolver found at the Ontario apartment where defendant was
arrested. Higashi also scrutinized the .32 caliber bullet
recovered from Curtis’s body and the .32 caliber bullet recovered
from the Pomona house closet, and he concluded they had both
been fired from the dark-colored revolver found when defendant
was arrested. After examination, Higashi also concluded the
bullet fragment recovered from the Long Beach apartment was
fired by defendant’s revolver.
Higashi additionally inspected the two shell casings found
in the Pomona house and concluded they had been fired from
Curtis’s .380 semiautomatic handgun.
2. Defense Case
Long Beach Police Officer Joseph Seminara responded to
the Long Beach apartment on February 17, 2000. Seminara
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Opinion of the Court by Cantil-Sakauye, C. J.
briefly questioned Priest and Martin at the apartment. Priest
told him that he was asleep on the floor and woke up to the
sound of gunshots. Priest said he had no idea how he had been
stabbed and that the assailant had already fled the scene when
he awoke. Seminara testified that Priest was being treated by
paramedics at the time he was being questioned and appeared
to be in pain. Martin told Seminara that he did not know how
Priest had been stabbed. It was clear to Seminara that Martin
had been shot “several times” in the head and appeared to be in
pain as paramedics were treating him. Seminara and Martin
spoke for less than 30 seconds.
Alexander testified at trial for the defense. He
acknowledged being at the Pomona house on March 21, 2000,
but claimed he did not remember who else was there with him.
He denied knowing that narcotics were sold from the house.
When defense counsel asked if defendant was the man who shot
them, Alexander said, “I’m sorry, that’s not the person. I ain’t
never seen him before.” He also denied at the preliminary
hearing that defendant was the shooter.
On cross-examination, Alexander admitted being arrested
for selling rock cocaine in another drug house a few months after
the Pomona shooting. He was serving a six-year prison sentence
on that charge and did not receive any benefit in that case for
testifying in defendant’s trial. Alexander agreed with the
prosecutor’s statement that an inmate in prison “might have to
pay a price” for cooperating with law enforcement and testifying
in court. Alexander acknowledged previously identifying
defendant as the shooter in a live lineup but claimed he did not
actually know who shot him and he “just chose anybody.”
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PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
Detective Gregg Guenther spoke with Ralph multiple
times after the Pomona incident. Ralph told Guenther that the
shooter had used a small black semiautomatic pistol. He also
told the detective that he had seen the shooter approximately 10
times before the incident. He did not initially tell Guenther that
he had fired shots with Curtis’s gun. Guenther could not recall
whether gunshot residue tests were performed on the hands of
Alexander or Curtis and did not believe a residue test had been
performed on Ralph.
3. Prosecution Rebuttal
Detective Guenther testified that he interviewed
Alexander in the hospital. Alexander told him that he saw the
man who had shot him, Curtis, and Ralph in a local newspaper
and on television. Guenther showed Alexander a photo lineup
at the hospital, during which Alexander identified defendant as
the person who shot the three men. At a subsequent live lineup,
Alexander again identified defendant as the assailant. Shortly
after Alexander was sent to prison on the cocaine charges,
Guenther spoke with him to determine whether Alexander
would still testify in defendant’s case. He told the detective that
now that he was in prison, he could not testify without facing
retaliation.
Prior to the preliminary hearing, Detective Guenther and
his partner drove Alexander from prison to the city jail so that
he could testify without having to ride on statewide
transportation with other inmates. During the drive, Alexander
told Guenther that he could not testify against defendant out of
concern for his own safety. The night before the hearing, at the
city jail, Alexander again expressed concern about his own
safety if he were to testify.
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Opinion of the Court by Cantil-Sakauye, C. J.
B. Penalty Phase
1. Prosecution Case
The prosecution introduced evidence of two prior felony
convictions: second degree robbery at a restaurant in 1989 and
evading a police officer in 1999.
The prosecution also introduced several acts or threats of
violence: (1) on June 23, 1992, defendant fired shots at a rival
gang member’s residence; (2) on September 6, 1994, defendant
attacked a fellow inmate in prison and refused to comply with
officer commands; (3) on March 22, 2000, defendant shot his ex-
wife in her face; (4) on March 23–24, 2000, when officers tried to
take him into custody, defendant barricaded himself and five
hostages in the apartment, fired approximately 14 shots at
police officers, and was eventually taken into custody after tear
gas was deployed; (5) on June 28, 2001, a corrections officer
found an inmate-manufactured spear in defendant’s jail cell; (6)
on July 10, 2001, defendant threw bleach at a corrections
officer’s face and was found in possession of razor blades, fishing
line, and extra linens in his jail cell; and (7) on October 28, 2001,
defendant threatened a corrections officer and then physically
attacked him.
2. Defense Case
Janice Marrow-Wright, defendant’s wife, testified
regarding the hostage incident on March 23, 2000. She stated
that she, her mother, her three nephews, and defendant were
present at her mother’s apartment that day. She denied that
defendant ever prevented her, her mother, or the children from
leaving the house. She said she did not release the children once
hostage negotiations began because she did not trust the police.
She asserted that defendant had never been disrespectful to
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Opinion of the Court by Cantil-Sakauye, C. J.
anyone in her presence. During cross-examination, Marrow-
Wright denied telling the police that she and her mother had
been through a “traumatic experience” when speaking about the
hostage situation and denied saying that defendant had
previously abused her. She also denied telling the police that
defendant was a “gangster,” that she regretted meeting him,
and that he had dangerous friends. On cross-examination,
Marrow-Wright testified that she married defendant in August
2000, after he was already incarcerated. She explained that
there was no marriage certificate because it “was done as an
agreement” as a “common law” marriage.
Juanita Anderson testified that she was a friend of
defendant’s family and had known him for 30 years. She related
that defendant was always respectful and kind to her and would
call her weekly to check in on her.
Donell Walls testified that he had known defendant from
the time they met in elementary school. Defendant was a
generous person, a friend to him, and treated his family well.
During cross-examination, he acknowledged that defendant
may have had “psychological problems” when they were in high
school and recalled that defendant had difficulty understanding
some things while playing football.
Melinda Mix testified that she had been friends with
defendant for 15 years. She knew him to be a good person and
had never seen him be disrespectful to anyone. During cross-
examination, she explained that they had dated, and she still
considered herself to be his girlfriend. She knew he was in a
relationship with Marrow-Wright but was unaware that they
had married.
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Opinion of the Court by Cantil-Sakauye, C. J.
David Jimenez, a psychologist, evaluated defendant
through three face-to-face interviews, communication with
defendant’s parents, a review of relevant police reports, and a
study of two prior psychological evaluations. During their first
interview, defendant complained of difficulty sleeping and the
effects of the antipsychotic medication he was taking. During
their second interview, defendant was not compliant and
refused to answer Dr. Jimenez’s questions. During their third
interview, Dr. Jimenez attempted to administer two
psychological tests but did not believe defendant gave “his best
efforts” and did not include the results from the tests in his
report. He attempted to see defendant for a fourth visit, but
defendant declined to meet with him.
Defendant told Dr. Jimenez that he joined the Duroc gang
at the age of nine and that one of his “homeboys” died in his
arms when he was 15 years old. Defendant said that he had
attempted suicide when he was 12 or 13 years old, but his
parents told Dr. Jimenez that they “could not recall anything of
that nature.” Defendant also reported that he had used PCP on
more than 100 occasions, liked rock cocaine and marijuana, and
consumed alcohol daily.
Dr. Jimenez testified that on at least two occasions,
defendant attempted to fake a mental disorder or illness.
Because defendant did not fully comply with the evaluations,
partly because he was feigning mental illness, Dr. Jimenez could
not rule out a mental disorder.
II. DISCUSSION
A. Counsel’s Representation
Defendant contends the trial court committed reversible
error when it denied his request for self-representation under
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Faretta v. California (1975) 422 U.S. 806 (Faretta), made two
days prior to the scheduled trial date. He further contends the
trial court abused its discretion when it denied his motion to
substitute counsel under People v. Marsden (1970) 2 Cal.3d 118(Marsden).
1. Factual Background
The parties first appeared before the assigned trial court
in September 2001 and set a trial date of March 12, 2002. At
the next hearing on December 17, 2001, the parties confirmed
they would be ready to proceed on March 12 and had no pending
motions. On March 4, 2002, defense counsel moved to continue
the trial date. He explained that he was still receiving discovery
and had neither identified nor interviewed all potential
witnesses. At a hearing on March 12, counsel proposed to set
March 26 for motions and April 29 for trial. The prosecution
and trial court agreed.
On Monday, April 29, 2002, the parties met for a trial
readiness conference. The court set Wednesday, May 1, 2002,
as the first day of trial and then asked the parties if there was
anything to discuss. Defense counsel stated that the previous
Wednesday, defendant indicated that he was considering
moving to represent himself. When defense counsel followed up
with defendant that morning, he confirmed it was his desire to
proceed in propria persona. The trial court asked defendant why
he wanted to represent himself. Defendant replied, “I have a
right under Faretta, don’t I?” The court said yes, but that the
question was why he wanted to so proceed. Defendant replied,
“Conflict between me and my attorney.” The court cleared the
courtroom to conduct a Marsden hearing.
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The court asked defendant what conflict he had with
counsel. Defendant said, “I have a witness that has got some
information, a witness to help me in my case. And my attorney
[is] refusing to call her back, or to call her to get this information.
Plus, I don’t see where — where the defense is being put up on
my behalf.” Defense counsel explained that the witness
defendant referred to was his girlfriend. Counsel said he had
spoken to defendant’s girlfriend “numerous times” throughout
the case, but “it got to a position where I felt that she was what
I refer to as an intermeddler in the case. And I have indicated
to Mr. Wright that . . . I am not discussing anything with her
anymore.” Counsel continued, “He did indicate that she had
some information. She said that all along. Nothing helpful has
come forward. I had my investigator contact her. She made
some calls over to my investigator’s office and never gave us any
information. And as I refer to it, she is an officious intermeddler
as far as I am concerned. And I indicated to her if she [has] any
information, she can give it to my investigator. And that hasn’t
happened, and I don’t have any faith that she has any
information in regards to that.”
The court asked defendant what information his girlfriend
had. He replied, “The addresses of the peoples that was — that
supposed to had did one of these crimes, [sic] supposed to be a
witness to come forth and bring up their names. I don’t have
them.” The court asked why she had not given that information
to defense counsel. Defendant said, “She have called numerous
times to the investigator and [defense counsel]. Nobody has
returned her calls.” The court offered to have defendant’s
girlfriend come into court and give the information to defense
counsel that way. Defense counsel responded, “She could have
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given it to [defendant], your honor, and he could have given it
the investigator. That hasn’t happened either.”
The court noted that defendant had a second concern and
asked for him to elaborate. Defendant said, “There is no defense
being put up on my behalf.” Defense counsel explained that he
had discussed defense strategy with defendant numerous times
and outlined that the defense would be “basically through cross-
examination of the witnesses. And I pointed out to him what
I thought would be helpful to us in the testimony and various
witnesses, particularly Willie Alexander at the preliminary
hearing testified on our behalf. And that’s where I stand in
regards to that.” The court asked defendant if he had anything
more to add; he declined. The court brought the prosecutor back
into the courtroom and resumed proceedings in open court.
The trial court found there was insufficient conflict to
warrant changing defense counsel and denied the Marsden
motion. The court continued, “The issue about representing
yourself, you can always represent yourself. I am required, as
you know, to let you do that as long as you understand what you
are getting yourself into. And it is your belief that you can do a
better job than your attorney on this?” Defendant responded,
“Yes.” The court reminded defendant that trial was starting two
days later, regardless of whether defendant proceeded by
himself. “We have set the date. We have 200 jurors coming in.
We have cleared this court’s calendar. The witnesses have been
subpoenaed for that particular date. . . . We have set it on
Wednesday so we can have the jurors actually present and give
them the questionnaires that will be necessary in this case.
There is no good cause to put the matter over. If you wish to
represent yourself, certainly at any stage you can do that. And
but [sic] you should understand you won’t even be in the pro.
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per. [housing] module by the time we start trial. That won’t
happen until the weekend. You do understand all of this?”
Defendant confirmed that he did.
The court asked defendant if he understood that he would
be treated as an attorney, would not receive any assistance from
the court, and would be required “to do it all just like the
prosecutor is on his own to do it all.” Defendant replied, “Yes.
I just need time to prepare for my case.” The court told
defendant he did not have more time because trial was set for
Wednesday. Defendant said he would not be ready by then, to
which the court replied that if defendant was not prepared in
two days, he could not represent himself. Defendant stated that
he had the right to represent himself. The court explained, “You
have the right to go to trial, and you also have the right to
represent yourself. And they are in conflict right now. I am not
putting the case over. Why didn’t you bring this up before?”
Defendant said, “Just really transpired when I talked to my
lawyer to cross-examine one of the deputies. I feel he wasn’t
aggressive enough, and this is a death penalty case.” The court
asked defendant if he believed he could do a better job than
counsel. Defendant said yes, but he needed time to prepare his
case. The court asked defendant if he had represented himself
before. Defendant said, “No, I haven’t. But I been in the courts
long enough to know how to represent myself.”
The judge reiterated that defendant could represent
himself, but the trial date would not be continued. Defendant
again said that he could not be ready within two days. The court
asked defendant if he had previously discussed self-
representation with defense counsel. Defendant said he first
brought it up the previous Wednesday. The court reminded
defendant that the case had been ongoing for more than one
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year. Defendant replied, “You put me in a position I am going
to represent myself, but I am not going to be ready on
Wednesday.” The court said, “That is up to you. The first thing
I am going to do is allow you to fill in the pro. per. advisement
form. And I want you to think about this a little while because
obviously you didn’t know I was going to say no [continuance].
But now you know I am going to say no as far as a continuance
is concerned. We are going to trial Wednesday. You can either
do it by yourself, which I am telling you is a terrible mistake.
I am not going to equivocate with you. Or you can go to trial
with [defense counsel].” Defendant again said he would not be
ready to go by Wednesday. The trial court said, “But that is not
the issue. Those are your two choices. Either going to trial by
yourself Wednesday, or [defense counsel] represents you. I want
you to think about it while you fill in that piece of paper.”
The court took a break and reconvened fifteen minutes
later to review defendant’s self-representation advisement form.
When the court asked defendant if he had any questions about
anything on the form, defendant replied, “No.” The court noted
that defendant had not filled in the portion indicating what
crimes he would be charged with, and asked defendant what
crimes he was charged with. Defendant replied, “Murder and 4
counts of attempted murder and a robbery.” The court then
asked defendant, “And what kind of continuance are you asking
for?” Defendant said, “Some time to prepare for my case.” The
court asked again how much time he needed. Defendant said,
“I don’t know. A month, two.”
The trial court noted that defense counsel had represented
defendant at the preliminary hearing, at which time defendant
had a chance to evaluate counsel’s ability to cross-examine
witnesses. The court asked defendant why he did not raise the
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issue at that time. Defendant said he did not notice an issue
until recently. Defendant continued, “If the court [is] going to
deny me time to prepare for my case, I will proceed with
[counsel].”
The court denied defendant’s Faretta motion as untimely.
In the course of noting the areas on the form that defendant
failed to initial, the court further stated that it did not believe
defendant thoroughly understood what he was trying to do. The
court opined that defense counsel “is doing a very good job for
you. He has filed and argued numerous motions on your behalf.
He has been able to keep out some of the penalty phase evidence
that the People, after being forced to review by [defense counsel],
have decided not to bring forward. The court denied the People’s
request for one piece of penalty phase evidence. So he is doing
a good job. His job is also to evaluate the evidence before putting
it on. And I think, again, he is doing a fine job. He has
experience in this area. He knows what he is doing. The court
is going to deny the request for pro. per. status based on the fact
that it is untimely. And the defendant would clearly need time
to prepare.”
Voir dire commenced on Wednesday, May 1, 2002, as
planned.
2. Motion for Self-Representation
The United States Supreme Court has made clear that a
criminal defendant has a federal constitutional right to
represent himself if he voluntarily and intelligently so chooses.
(Faretta, supra, 422 U.S. at pp. 835–836.) A trial court must
grant a defendant’s request for self-representation if the request
is made within a reasonable time prior to the commencement of
trial, is unequivocal, and is made voluntarily, knowingly, and
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Opinion of the Court by Cantil-Sakauye, C. J.
intelligently. (People v. Lynch (2010) 50 Cal.4th 693, 721
(Lynch).) If a self-representation motion is untimely, it is
“within the sound discretion of the trial court to determine
whether such a defendant may dismiss counsel and proceed pro
se.” (People v. Windham (1977) 19 Cal.3d 121, 124 (Windham).)
We first analyze whether the trial court abused its
discretion in finding the motion untimely under Lynch. “We
have long held that a Faretta motion is timely if it is made
‘within a reasonable time prior to the commencement of trial.’ ”
(People v. Johnson (2019) 8 Cal.5th 475, 499 (Johnson).) “[T]he
‘reasonable time’ requirement ‘must not be used as a means of
limiting a defendant’s constitutional right of self-
representation,’ but rather to prevent the defendant from
‘misus[ing] the Faretta mandate as a means to unjustifiably
delay a scheduled trial or to obstruct the orderly administration
of justice.’ ” (Ibid.)
We have routinely declined to identify a specific period in
time at which a self-representation motion is untimely. “[W]e
have held on numerous occasions that Faretta motions made on
the eve of trial are untimely.” (Lynch, supra, 50 Cal.4th at
p. 722.) In People v. Frierson (1991) 53 Cal.3d 730, 742, we held
that a motion for self-representation made two days before the
set trial date was made on “the eve of trial” and thus untimely.
In People v. Clark (1992) 3 Cal.4th 41, 99, we found a Faretta
motion was untimely when it was made several days after the
case had been continued day-to-day “in the expectation that the
motions would be concluded and jury selection set to begin at
any time.” In People v. Valdez (2004) 32 Cal.4th 73, 102, we held
the Faretta motion “made moments before jury selection was set
to begin” was untimely.
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We also have held that Faretta motions “made long before
trial were timely.” (Lynch, supra, 50 Cal.4th at p. 723; see
People v. Stanley (2006) 39 Cal.4th 913, 932 [Faretta motion
made nearly two years before trial was timely]; People v. Dent
(2003) 30 Cal.4th 213, 221 [Faretta motion made four months
before trial was timely].) “Nevertheless, our refusal to identify
a single point in time at which a self-representation motion filed
before trial is untimely indicates that outside these two extreme
time periods, pertinent considerations may extend beyond a
mere counting of the days between the motion and the scheduled
trial date.” (Lynch, supra, 50 Cal.4th at p. 723, fn. omitted.)
In Lynch, we concluded that “a trial court may consider
the totality of circumstances in determining whether a
defendant’s pretrial motion for self-representation is timely.”
(Lynch, supra, 50 Cal.4th at p. 726.) We held that a trial court
may properly consider “not only the time between the motion
and the scheduled trial date, but also such factors as whether
trial counsel is ready to proceed to trial, the number of witnesses
and the reluctance or availability of crucial trial witnesses, the
complexity of the case, any ongoing pretrial proceedings, and
whether the defendant had earlier opportunities to assert his
right of self-representation.” (Ibid.)
We have declined to articulate what standard a reviewing
court should apply in determining whether a request for self-
representation is timely. (Johnson, supra, 8 Cal.5th at p. 501.)
And yet defendant’s claim here fails under both de novo review
and a more deferential standard.
Defendant acknowledges that his request was made close
in time to the scheduled trial start date. He asserts, however,
that under the totality of circumstances his request was
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Opinion of the Court by Cantil-Sakauye, C. J.
nonetheless timely. We disagree. Defendant brought this
motion two days before the scheduled trial date and conditioned
his motion on the grant of a continuance, telling the court that
if he did not have time to prepare, he would proceed with
counsel. Further, he could not identify with any degree of
precision how much time he thought he would need, opining
perhaps a month or maybe two.
Defendant argues it is significant that at the time he made
his motion, neither the prosecution nor defense counsel
indicated readiness to proceed. However, on April 11, 2002, the
parties had stated that there were no witness issues to report,
discussed evidence to be presented during trial, and confirmed
that previous issues with discovery had been resolved. On April
15, 2002, the parties discussed the juror questionnaires and
whether defendant would be shackled. At the conclusion of the
hearing, the parties confirmed there was nothing else to discuss
before the trial readiness conference on April 29. On April 29,
the trial court stated, “Today was really a clean-up day. Make
sure we are ready to go, and that there are no problems.” When
the court asked if either party had anything to discuss, defense
counsel explained, for the first time, that defendant wanted to
represent himself. Although neither party explicitly stated
readiness to proceed, neither party stated otherwise when asked
if there were any problems, and the record strongly supports a
conclusion that the parties were prepared to proceed at that
time and the court understood that each party was so prepared.
Finally, the fact that trial started two days after defendant’s
motion, as planned, further indicates that the parties were
ready to proceed on time.
Defendant argues he could not have asserted his right to
represent himself sooner because his concerns had not arisen
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Opinion of the Court by Cantil-Sakauye, C. J.
until right before he brought his motion, but the record does not
support this. Defendant informed the trial court on April 29
that he had concerns about his lawyer cross-examining one of
the deputies, and defendant now contends this was raised as
soon as practicable after he had an opportunity to discuss this
concern with counsel. The hearing at which the cross-
examination occurred took place on April 11, 2002; defendant
waited 18 days to assert his Faretta right. Counsel told the trial
court during the Marsden hearing that he had explained the
trial strategy to defendant numerous times prior, not simply at
their meeting four days prior when defendant first told counsel
he was interested in representing himself. When the court
invited defendant to comment, he did not challenge counsel’s
statement. Defendant expressed additional concerns to the trial
court regarding counsel’s alleged refusal to contact his girlfriend
for information. The record indicates that this was an ongoing
issue between defendant and counsel and not something that
arose just before defendant made his Faretta motion.
Moreover, the trial court expressed skepticism concerning
whether defendant intended to seriously represent himself or
whether he merely sought to delay trial. After defendant
complained that counsel had not returned his girlfriend’s calls,
the trial court offered to have her come to court to address
counsel. Defendant did not offer a response to the court’s
invitation. Later, the court asked defendant why he did not
make his request sooner and stated that it would not continue
the trial. Defendant interrupted the court and challenged it by
stating that the court could “either just deny me and I put it up
for appeal, or grant me my motion to — .” The court cut off
defendant and said, “It seems to me you are setting up another
issue for appeal that you are not really . . . taking to be serious.”
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Opinion of the Court by Cantil-Sakauye, C. J.
In further support of his argument that his motion was
timely under Lynch, defendant asserts the prosecution’s case
was straightforward, and there had been only minimal
discovery. Yet he fails to persuasively articulate in what way
this case, consisting of one murder and four attempted murders
arising out of two separate incidents, was straightforward. Nor
does he address how a sudden switch to self-representation
could have occurred without unduly disrupting the ongoing
process.
Defendant contends a continuance would not have
impaired the prosecution’s ability to produce its witnesses. A
continuance, however, could have impaired the prosecution’s
ability to produce Julius Martin, one of its key witnesses. The
prosecution had a right to present Martin’s live testimony as the
preferred form of evidence. (See People v. Reed (1996) 13 Cal.4th
217, 225 [“The fundamental purpose of the unavailability
requirement is to ensure that prior testimony is substituted for
live testimony, the generally preferred form of evidence, only
when necessary”].) As defendant acknowledges, Martin was
suffering ongoing health issues as a result of the shooting.
Martin was ultimately ruled unavailable to testify as a witness;
the prosecution introduced his preliminary hearing transcript
into the record. Defendant argues that because Martin was able
to testify live during the penalty phase, a continuance would
have been favorable because Martin may have recovered enough
to testify live during a later-held guilt phase trial as well. This
circumstance was unknown at the time, however, and the
prosecution could rightly have had concerns regarding how
Martin’s health would change if the trial was continued.
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Opinion of the Court by Cantil-Sakauye, C. J.
Under the totality of circumstances described in Lynch,
the trial court did not abuse its discretion in finding defendant’s
Faretta motion to be untimely.
Defendant asserts that even if his request to represent
himself was properly deemed untimely, the trial court
nonetheless abused its discretion in denying the motion. We
analyze whether the trial court abused its discretion in denying
an untimely motion under Windham, supra, 19 Cal.3d 121,
which states that once a trial court has ruled a Faretta motion
untimely, it must exercise discretion in determining whether to
grant or deny a defendant’s request for self-representation. (Id.
at p. 131.) In Windham, we explained that when a defendant
requests to represent himself in the middle of trial, the court
must inquire into the specific factors underlying the request.
(Id. at p. 128.) Additionally, “other factors to be considered by
the court in assessing such requests made after the
commencement of trial are the quality of counsel’s
representation of the defendant, the defendant’s prior proclivity
to substitute counsel, the reasons for the request, the length and
stage of the proceedings, and the disruption or delay which
might reasonably be expected to follow the granting of such a
motion.” (Ibid.)
We discern no abuse in the court’s decision to deny the
motion. The court found defense counsel was acting
competently on defendant’s behalf, noting that he had filed and
argued numerous motions and prevented the prosecution from
introducing certain penalty phase evidence. Although
defendant exhibited no prior proclivity to substitute counsel, the
court further found defendant’s reasons for his request to be
inadequate, noting that defendant did not appear to fully
understand what he was “getting [himself] into” by asking to
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Opinion of the Court by Cantil-Sakauye, C. J.
represent himself. Finally, the court found that granting
defendant’s motion would cause disruption and delay in trial
proceedings due to the accompanying request to continue.
The Attorney General argues that defendant’s motion was
equivocal in any event. Because the trial court properly denied
defendant’s motion to represent himself, we need not determine
whether his request was equivocal.
Finally, defendant challenges the constitutionality of the
timeliness requirement. We have repeatedly held that a Faretta
motion may be denied if not made within a reasonable time prior
to the commencement of trial. (See Johnson, supra, 8 Cal.5th at
p. 499 [a trial court has the discretion to deny an untimely
motion for self-representation]; Lynch, supra, 50 Cal.4th at
pp. 721–722 [“ ‘the right of self-representation is not absolute’ ”
and may be denied if the motion is deemed untimely]; People v.
Hamilton (1988) 45 Cal.3d 351, 369 [a Faretta motion must be
timely “for purposes of invoking an absolute right of self-
representation”]; Windham, supra, 19 Cal.3d at pp. 127–128 [“in
order to invoke the constitutionally mandated unconditional
right of self-representation a defendant in a criminal trial
should make an unequivocal assertion of that right within a
reasonable time prior to the commencement of trial”].) Contrary
to defendant’s argument, the timing of a Faretta motion is only
one of several factors considered before a trial court can hold a
motion untimely (Lynch, supra, 50 Cal.4th at p. 726), and we
have never held that timeliness alone is a sufficient basis on
which to deny a Faretta motion. Defendant does not present a
persuasive reason to revisit precedent on this matter.
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Opinion of the Court by Cantil-Sakauye, C. J.
3. Motion to Substitute Counsel
Defendant contends the trial court abused its discretion
when it denied his Marsden motion because the record showed
counsel was constitutionally deficient.
“ ‘ “ ‘ “ ‘When a defendant seeks to discharge his appointed
counsel and substitute another attorney, and asserts inadequate
representation, the trial court must permit the defendant to
explain the basis of his contention and to relate specific
instances of the attorney’s inadequate performance.’ ” ’ ” ’ ”
(People v. Johnson (2018) 6 Cal.5th 541, 572; People v. Vines
(2011) 51 Cal.4th 830, 878.) We review a trial court’s decision
not to discharge appointed counsel under the deferential abuse-
of-discretion standard. (People v. Jones (2003) 29 Cal.4th 1229,
1245.)
Defendant acknowledges that after he requested the trial
court relieve counsel, the court properly permitted him to
explain the basis for his motion. He asserts, however, that the
court erred in failing to act on the information it received
regarding counsel’s alleged failure to follow up with defendant’s
girlfriend about alleged exculpatory information. Counsel
confirmed that he had contacted defendant’s girlfriend on
several occasions but had not obtained information from her
concerning a potential third-party culpability defense, nor was
he investigating third-party culpability in defendant’s case.
Defendant asserts that this in itself established that counsel’s
performance was constitutionally inadequate, and hence the
trial court abused its discretion in denying his motion. He
further asserts the court did not conduct an adequate inquiry.
First, defendant fails to establish the trial court’s inquiry
was inadequate. As observed earlier, the court heard
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Opinion of the Court by Cantil-Sakauye, C. J.
defendant’s complaint regarding his attorney’s failure to obtain
information from defendant’s girlfriend and requested that
counsel respond. Defense counsel explained to the court that he
had spoken to defendant’s girlfriend several times, and she
refused to provide any information to him. He instructed her to
contact his investigator if she had any information, which she
did not do. Defense counsel stated that, based on his
interactions with defendant’s girlfriend, he did not believe she
had any helpful information for the defense team. When
defendant mentioned he was also concerned about an alleged
lack of a defense case, the court again asked counsel to respond.
Counsel stated that he had gone over defense strategy with
defendant “numerous times” and explained he would primarily
focus on the cross-examination of witnesses. The trial court
provided defendant “full opportunity to air all of his complaints,
and counsel to respond to them.” (People v. Smith (2003)
30 Cal.4th 581, 606; see People v. Abilez (2007) 41 Cal.4th 472,
488 [dismissing the defendant’s complaint that the trial court’s
inquiry was insufficient when the court gave the defendant the
chance to discuss his complaints and counsel the chance to
respond].) No more was necessary.
Second, the court did not abuse its discretion when it
denied the Marsden motion. Defendant’s complaints regarding
counsel’s investigation and trial strategy were “tactical
disagreements, which do not by themselves constitute an
‘irreconcilable conflict.’ ” (People v. Cole (2004) 33 Cal.4th 1158,
1192.) Defendant presented no evidence that counsel’s
performance was so deficient that constitutionally ineffective
representation was likely to result.
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Opinion of the Court by Cantil-Sakauye, C. J.
B. Asserted Prosecutorial Misconduct
Defendant contends the prosecutor presented
inadmissible and highly prejudicial evidence that severely
biased the jury against him and led to a conviction based not on
the evidence but on his perceived character and history. He
specifically challenges the introduction of two pieces of evidence:
(1) that defendant’s ex-wife, Toni Wright, observed defendant
point a gun at someone; and (2) a statement from an expert
witness that defendant had been in prison for a “long, long time”
prior to the trial.
1. Factual Background
During the guilt phase, the prosecutor sought to introduce
evidence that defendant shot his ex-wife, Toni Wright, in the
head. He argued that the evidence was relevant because
defendant shot her with a small, dark-colored revolver within a
day or two of the Pomona incident. Experts linked bullets from
the Long Beach and Pomona incidents to the revolver used to
shoot Ms. Wright, and because defendant raised the issue of
identity, the prosecutor argued that this incident was relevant
to identity and intent with respect to the charged offenses.
Defense counsel objected, arguing that there was no indication
Ms. Wright could identify which gun was used against her. He
continued, “And this is the District Attorney’s effort to try to
bootstrap some evidence that is tremendously prejudicial to my
client and will have little or no probative value in regards to the
charges that he is on trial for.” The court ruled that Ms. Wright
could testify that she knew defendant had a black handgun but
could not testify about the shooting. The court found that “the
prejudice far outweighs any probative value or any relevance. It
is just — it is too much, quite frankly, for the amount of relevant
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Opinion of the Court by Cantil-Sakauye, C. J.
material in there. But she can come in and say she saw him
hold a black handgun.”
When the prosecutor called Ms. Wright, he asked, “On
March the 22nd of the year 2000, did you see William Wright
with a small, dark-colored handgun?” She replied, “Yes.” He
continued, “Did you see him point that gun at somebody?” She
replied, “Yes.” After asking Ms. Wright to identify defendant in
the courtroom, the prosecutor asked, “When you saw him point
the handgun at somebody, was that in the city of Ontario?” At
that point defense counsel objected and moved for a mistrial. He
argued that the prosecutor’s question was prejudicial to
defendant and against what the parties had previously agreed
upon. The prosecutor argued that his question was not in
conflict with the court’s prior ruling. He continued, “If it is,
I didn’t ask who he pointed it at.”
The trial court agreed that the prosecutor’s line of
questioning had gone too far but found the error harmless. The
court noted that the prosecutor did not ask about how the gun
was used, and the fact that it was pointed “just indicates to the
jurors how she was able to see it.” The court denied the motion
for a mistrial. When questioning resumed, the prosecutor asked
Ms. Wright, “When you observed Mr. Wright with the gun, that
was not in any kind of drug house, was it?” She replied, “No.”
The prosecutor asked her no more questions.
The prosecutor also called David Bly, a Los Angeles
County Sheriff’s Department detective, to testify as an expert
witness on gangs. Bly explained his knowledge of the Duroc
Crips gang and asserted, based on his review of records in which
defendant admitted he was a member and based on defendant’s
tattoos, that defendant was a member of the gang. During cross-
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Opinion of the Court by Cantil-Sakauye, C. J.
examination, Bly confirmed that he had neither interviewed
defendant nor had any personal contact with him. Defense
counsel asked Bly, “Now you indicated that you have met a
number of Duroc gang members; is that correct?” After Bly
answered affirmatively, counsel asked approximately how
many. Bly replied, “Over a hundred, say a hundred to 200.”
On redirect examination, the prosecutor asked Bly, “Sir, if there
is a particular member that is not in the community for a long,
long time, you might not come in contact with him; is that
correct?” After Bly confirmed that was correct, the prosecutor
continued: “If he is living somewhere else or if he is incarcerated
perhaps or something like that, you wouldn’t know; is that
correct?”
Defense counsel objected to this question, arguing that the
prosecutor “is trying to give the insinuation that my client was
in custody and I think that’s improper to put that off to the jury.”
The prosecutor replied, “Judge, I never on direct asked this man
if he had personal contact with [defendant]. Counsel on cross,
for whatever reason, chose to ask that. Once he asked that,
I simply have a right to inquire of Mr. Bly, if someone is not in
the community, I didn’t say simply in custody, I said if someone
is not in the community, living someplace else or in custody, you
wouldn’t be coming in contact with him? That is clearly a
permissible question based on what counsel asked. I never
asked that witness anything on direct plus the witness testified
at the prelim so counsel cannot say he was in any way surprised
by what he might or might not say. And he cross-examined the
witness at the prelim. So I think, under those circumstances,
it’s clearly, that limited question is clearly permissible.” The
trial court overruled the objection, finding the question was
within the scope of cross-examination and permissible. The
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Opinion of the Court by Cantil-Sakauye, C. J.
court continued, “I don’t think that counsel is honing in and
I will not permit counsel to hone in on that issue. I think it was
broad enough. And it was a reasonable question, given the
cross-examination.”
2. Discussion
Defendant argues the prosecutor committed prejudicial
misconduct by failing to abide by the court’s prohibition against
soliciting evidence of defendant’s use of the handgun. He also
argues the prosecutor’s questions to Bly constituted an improper
attempt to “rehabilitate” a witness who had, in fact, not been
challenged in that respect on cross-examination.
“ ‘The applicable federal and state standards regarding
prosecutorial misconduct are well established. “ ‘A prosecutor’s
. . . intemperate behavior violates the federal Constitution when
it comprises a pattern of conduct “so egregious that it infects
the trial with such unfairness as to make the conviction a denial
of due process.” ’ ” [Citations.] Conduct by a prosecutor that
does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves
“ ‘ “the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.” ’ ” ’ [Citation.]” (People v.
Hill (1998) 17 Cal.4th 800, 819.)
As an initial matter, we note that defendant has forfeited
his prosecutorial misconduct allegation as to the questioning of
Ms. Wright. “ ‘To preserve for appeal a claim of prosecutorial
misconduct, the defense must make a timely objection at trial
and request an admonition; otherwise, the point is reviewable
only if an admonition would not have cured the harm caused by
the misconduct.’ ” (People v. Silva (2001) 25 Cal.4th 345, 373.)
Defense counsel did not request a curative admonition after the
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trial court agreed that the prosecutor’s questioning had gone too
far. Further, he cannot establish that an admonition would not
have cured any alleged harm.
In any event, we need not decide whether the prosecutor
committed misconduct because any possible error was harmless.
Defendant contends Ms. Wright’s testimony was prejudicial
because it implied he was “the type of person who used guns
against people,” and thus made it more likely for the jurors to
believe he was the one who committed the charged offenses. On
this record, however, there were many facts that undermined
the defense theory, regardless of the challenged line of
questioning. The jury heard evidence that defendant shot
Martin, Curtis, Ralph, and Alexander. The jury also heard
testimony that the bullets recovered from Curtis’s body, and
from the Pomona and Long Beach crime scenes, were fired from
the gun found in defendant’s possession at the time of his arrest.
Finally, we note that the prosecutor did not ask Ms. Wright how
the gun was used. In light of the other substantial and properly
adduced evidence regarding defendant’s gun usage, testimony
that Ms. Wright saw defendant pointing a gun did not render
defendant’s trial fundamentally unfair under either federal or
state standards.
When examining Detective Bly, the prosecutor’s follow-up
question suggesting incarceration as a hypothetical explanation
for a gang member’s absence was improper. The prosecutor’s
question, however, did not render defendant’s trial
fundamentally unfair. In People v. Bolden (2002) 29 Cal.4th
515, a police officer witness mentioned meeting the defendant at
a parole office. (Id. at p. 554.) The prosecutor interrupted and
clarified that he sought a physical address, not a description of
the meeting place. We affirmed the trial court’s denial of
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defendant’s motion for a mistrial, noting that it was “doubtful
that any reasonable juror would infer from the fleeting reference
to a parole office” that defendant had a prior conviction, and that
the incident was not significant in the context of the entire guilt
trial. (Id at p. 555.) In the present case, the prosecutor’s brief,
hypothetical reference to incarceration was not significant given
the overwhelming evidence presented against defendant during
the trial. (See also People v. Rolon (1967) 66 Cal.2d 690, 693
[“[a]n improper reference to a prior conviction may be grounds
for reversal in itself [citations] but is nonprejudicial ‘in the light
of a record which points convincingly to guilt’ ”].) It is not
reasonably probable that the jury would have reached a result
more favorable to defendant but for the prosecutor’s question.
C. Asserted Vouching for the Credibility of a
Witness
Defendant contends the prosecutor improperly vouched
for the credibility of a witness when he elicited testimony from
victim Mario Ralph that the prosecutor had introduced Ralph to
the prosecutor’s own daughter. Defendant further asserts the
trial court abused its discretion when it denied his subsequent
motion for a mistrial.
During direct examination, the prosecutor asked Ralph,
“You and I have talked about this case on several occasions; is
that correct?” Ralph confirmed that they had. The prosecutor
asked, “Have I ever allowed you to read the reports of any of the
interviews you had with the police?” Ralph replied, “No.” The
prosecutor continued, “Have I ever allowed you to read your
preliminary hearing, your testimony at the preliminary
hearing? After Ralph said no, the prosecutor said, “But you and
I have talked about the case?” Ralph said, “Yes, we have.”
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Defense counsel followed up on that line of questioning
during cross-examination. Counsel confirmed that Ralph had
not read any reports or the preliminary hearing transcript, and
then counsel asked Ralph approximately how many times he
had talked with the prosecutor. Ralph said they spoke every
time he went to court. Defense counsel asked if they ever
discussed Ralph’s testimony. When Ralph said no, defense
counsel asked what they did talk about. Ralph explained,
“Mainly how I was doing. And sometimes I asked him certain
things on, you know, what’s going on. And I guess like
sometimes I told him that I don’t want to be here involved with
this. I wished at the last testimony I told ya’ll, the last
courtroom, ya’ll could have taken that and let me live my life.
I don’t want to be doing this.” Defense counsel asked Ralph if
he remembered testifying at the preliminary hearing when the
prosecutor “stopped the testimony, carried you out and talked to
you and brought you back and put you back on the stand; did
that happen?” Ralph confirmed that it did.
On redirect examination, the prosecutor revisited the
subject. He asked Ralph, “Now you were asked a number of
questions about a conversation or some questions about
conversations that we have had. You have come to court a
number of times; is that correct?” Ralph answered
affirmatively, and he also confirmed that he had testified twice
before: at the preliminary hearing and also in trial the previous
day. The prosecutor asked, “Now each time the case has been
set, either in Pomona or before this judge or other judges in this
building, you have come to court and the judge would tell you
what day you would have to return; is that correct?” Ralph
replied, “Yes.” The prosecutor said, “And I would be there on
those occasions; is that correct?” Ralph replied, “Yes.” The
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Opinion of the Court by Cantil-Sakauye, C. J.
prosecutor continued, “And we would have general
conversations?” After Ralph confirmed, the prosecutor said,
“I asked you about your health?” Ralph said yes. The prosecutor
continued, “How work is going, things like that?” Ralph again
said yes. The prosecutor said, “On one occasion did I introduce
you to my daughter?” Ralph replied, “Yes, you did.”
Defense counsel asked for a sidebar and moved for a
mistrial. He argued, “I think the District Attorney’s misconduct,
turning this into a personal matter between him, his personal
relationship between him and this witness I think is totally
improper.” The court denied the motion, ruling, “The questions
on cross-examination went to the area of conversations between
the prosecutor and the witness. He is entitled to go into what
the conversations were, whether they were innocent or whether
they directed the witness to testify in a certain way.” Defense
counsel argued, “I’m having real difficulty what kind of
relevancy his introduction of this particular witness has to do
with anything other than trying to bolster this witness’
credibility by showing he would go so far as to introduce him to
his family members.” The court agreed that “in and of itself,
that would be improper, but it’s an overlap area, and I think he
is entitled to, on his effort to rehabilitate the witness, to go into
every area that they discussed. Otherwise the area, it’s open
for, you know, any type of inference by the jury. So the objection
is overruled.”
“A prosecutor is prohibited from vouching for the
credibility of witnesses or otherwise bolstering the veracity of
their testimony by referring to evidence outside the record.”
(People v. Frye (1998) 18 Cal.4th 894, 971.) Similarly,
“ ‘[i]mpermissible “vouching” may occur where the prosecutor
places the prestige of the government behind a witness through
35
PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
personal assurances of the witness’s veracity or suggests that
information not presented to the jury supports the witness’s
testimony.’ ” (People v. Seumanu (2015) 61 Cal.4th 1293, 1329.)
“However, so long as a prosecutor’s assurances regarding the
apparent honesty or reliability of prosecution witnesses are
based on the ‘facts of [the] record and the inferences reasonably
drawn therefrom, rather than any purported personal
knowledge or belief,’ [the prosecutor’s] comments cannot be
characterized as improper vouching.” (Frye, supra, at p. 971.)
“A court should grant a mistrial ‘ “only when a party’s
chances of receiving a fair trial have been irreparably
damaged.” ’ [Citation.] This generally occurs when ‘ “ ‘ “the
court is apprised of prejudice that it judges incurable by
admonition or instruction.” ’ ” ’ [Citation.] We review the trial
court’s refusal to grant a mistrial for abuse of discretion.”
(People v. Johnson, supra, 6 Cal.5th at p. 581.)
The trial court did not abuse its discretion when it denied
defendant’s motion for a mistrial. Importantly, defendant
cannot establish prejudice. The jury heard evidence that Ralph
was a drug dealer who associated with gang members and that
he attempted to destroy evidence by flushing drugs down the
toilet and hiding Curtis’s gun. The jury also heard that Ralph
failed to tell investigating officers about the drugs or that he
fired Curtis’s gun before trying to hide it.
It is not reasonably likely that the jury was unduly
influenced concerning Ralph’s credibility by the prosecutor’s
comment. (See People v. Medina (1995) 11 Cal.4th 694, 758.)
Because the elicited testimony was not prejudicial, the trial
court did not err when it denied defendant’s motion for a
mistrial based on that brief question and Ralph’s response.
36
PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
D. Asserted Erroneous Admission of Evidence
Defendant contends the admission of assertedly irrelevant
testimony about negative fingerprint evidence bolstered the
prosecution’s case and denied him a fair trial.
As the final witness in its case in chief, the prosecution
called Peter Kergil, a forensic specialist employed by the Los
Angeles County Sheriff’s Department. Kergil explained that his
expertise was fingerprint identification. After Kergil testified
that he had conducted no forensic work on the case, nor was he
aware of any facts concerning the case, defense counsel objected
to his testimony on relevancy grounds. Counsel argued, “This
witness has testified he did no work at all on this case. And
I don’t know if there has been any fingerprint evidence. There
has been nothing introduced in regard to fingerprint evidence in
this case, and I would ask that his testimony be excluded.” The
prosecutor responded that he calls a “negative fingerprint
expert” on every case he tries. He explained that jurors watch a
lot of crime shows and see fingerprints lifted off every surface
“all the time,” but Kergil would explain that usable fingerprints
are found on a firearm only rarely, in approximately eight to ten
percent of cases. The prosecutor continued, “The first thing that
will happen when they go back to jury deliberation, Judge, is the
jurors will start talking about fingerprint evidence. Even
though neither one of us mentioned the word, we did get into
[gunshot residue] the other day, and they will say, ‘If
[defendant] was in that apartment, they would have put
evidence on [that] his fingerprints were on the gun.’ That is my
experience in trying cases.”
The trial court overruled the objection, commenting: “The
People are required to prove [their case] beyond a reasonable
37
PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
doubt. And if they want to shut down any doors of concern by
the jurors, I think that is fine. Also, it seems to me, that if
anybody is going to argue fingerprints, that this gives them a
basis in fact to do that.”
Kergil initially testified that as a general matter he can
recover a fingerprint from items or surfaces approximately
30 percent of the time when he examines such evidence. He
explained that there are several reasons why someone’s
fingerprint might not be left on a surface after touching it. The
prosecutor asked, “Now, a firearm, for example, again, we watch
TV. We always see a firearm is collected in evidence, and it is
immediately taken to a lab, and somebody lifts a print off the
firearm, and that print is able to be identified to the person that
committed the crime.” The prosecutor asked Kergil how often
an expert is able to lift a fingerprint from a firearm, to which
Kergil replied approximately 8 to 10 percent.
Only relevant evidence is admissible. (Evid. Code, § 350.)
Evidence is relevant if it has a “tendency in reason to prove or
disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) “The trial
court has broad discretion to determine the relevance of
evidence [citation], and we will not disturb the court’s exercise
of that discretion unless it acted in an arbitrary, capricious or
patently absurd manner [citation].” (People v. Jones (2013)
57 Cal.4th 899, 947.)
Defendant contends the testimony about the absence of
fingerprint evidence in this case was irrelevant because it did
not address a disputed fact. He argues that the absence of
fingerprints was not an issue before the jury. Defendant also
argues the admission of irrelevant evidence violated his rights
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PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
to due process and rendered his trial fundamentally unfair. We
are not persuaded.
In United States v. Feldman (9th Cir. 1986) 788 F.2d 544,
the federal appellate court held that testimony regarding the
absence of fingerprint evidence on direct examination was
proper. (Id. at pp. 554–555.) The court noted that it was
“standard and proper litigation technique” to anticipate the
opposing party’s argument and forestall it with one’s own
presentation. (Id. at p. 555; see also United States v. Christophe
(9th Cir. 1987) 833 F.2d 1296, 1300 [trial court did not abuse its
discretion in permitting FBI agent to testify regarding the lack
of fingerprint evidence].) The fact that the defense had not yet
raised the issue of the absence of fingerprints, therefore, did not
preclude the prosecution from introducing Kergil’s testimony.
Further, defendant fails to show prejudice from admission
of the evidence. Despite defendant’s claim to the contrary, the
testimony did not encourage the jury to speculate that there was
fingerprint evidence connecting defendant to the crime scene
that the jury did not hear. The trial court did not abuse its
discretion in admitting testimony about the absence of
fingerprint evidence in this case. Because the trial court did not
abuse its discretion, admission of the evidence did not violate
defendant’s right to due process, nor did it render his trial
fundamentally unfair. (See People v. Partida (2005) 37 Cal.4th
428, 439 [erroneous admission of evidence “results in a due
process violation only if it makes the trial fundamentally
unfair”].)
E. Asserted Instructional Errors
Defendant raises several allegations of instructional error.
We find no merit in his contentions.
39
PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
1. Circumstantial Evidence
Defendant asserts the trial court erred when instructing
the jury regarding circumstantial evidence.
In the course of discussing jury instructions with counsel,
the trial court raised questions about the issue of circumstantial
evidence. The court noted that it had formerly instructed juries
by using both CALJIC No. 2.01, “Sufficiency of Circumstantial
Evidence — Generally,” and CALJIC No. 2.02, “Sufficiency of
Circumstantial Evidence to Prove Specific Intent or Mental
State.” The court observed that recent case law clarified it was
error to instruct with both, and that a court should give one or
the other. The court explained that it had tentatively included
CALJIC No. 2.01 in the instruction packet because “there was
quite a bit of circumstantial evidence. Specifically the gun, the
recovery of the gun and the bullets that were found at various
locations and in the decedent’s body, according to the expert,
matching the gun that it was fired from. That and also
assuming that they accept Mr. Priest’s testimony, essentially he
said he saw, he heard the defendant. And from that,
circumstantially, he decided that it was defendant, although he
glimpsed something from the back of the sides. All that I think
is circumstantial evidence, but I’m open to argument.”
Defense counsel agreed with the trial court, expressing a
preference for using CALJIC No. 2.01. The prosecutor explained
that he did not believe the case rested substantially on
circumstantial evidence. He argued that the matter was
“basically an eyewitness identification case,” and asserted that
CALJIC No. 2.01 would conflict with CALJIC No. 2.91
concerning eyewitness identification. He agreed that the
firearm evidence was an important part of the prosecution’s case
40
PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
but noted that “if we rely just on the firearm evidence alone
without the identification, the court probably wouldn’t let it go
to the jury.” The trial court said it was “on the fence” and was
trying to determine whether the circumstantial evidence was
incidental to, or corroborative of, the direct evidence.
After considering the matter, the trial court explained,
“I do believe that the circumstantial evidence is tangential or
corroborative. The main thrust of all of this is really whether
they can believe the witnesses, eyewitness testimony. And I do
agree with the argument. I hadn’t thought of it before that it
seems somewhat inconsistent with the eyewitness identification
instruction.” The court stated that on reflection it would
instruct the jury not with CALJIC No. 2.01, but with CALJIC
No. 2.02.3
3
The trial court instructed the jury with a modified version
of CALJIC No. 2.02, as follows (the modified portion is
italicized): “The specific intent or mental state with which an
act is done may be shown by the circumstances surrounding the
commission of the act. However, a finding of guilt as to any
crime or special circumstance or special allegation may not be
based on circumstantial evidence unless the proved
circumstances are not only (1) consistent with the theory that
the defendant had the required specific intent or mental state
but (2) cannot be reconciled with any other rational conclusion.
Also, if the evidence as to any specific intent or mental state
permits two reasonable interpretations, one of which points to
the existence of the specific intent or mental state and the other
to its absence, you must adopt that interpretation which points
to its absence. If, on the other hand, one interpretation of the
evidence as to the specific intent or mental state appears to you
to be reasonable and the other interpretation to be
unreasonable, you must accept the reasonable interpretation
and reject the unreasonable.” The unmodified version read:
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PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
Defendant asserts CALJIC No. 2.01 was appropriate and
necessary because the evidence concerning counts 1 (attempted
murder of Martin), 3 (attempted murder of Priest), 5 (attempted
murder of Alexander), and 6 (murder of Curtis) was primarily
circumstantial.
“CALJIC No. 2.02 was designed to be used in place of
CALJIC No. 2.01 when the defendant’s specific intent or mental
state is the only element of the offense that rests substantially
or entirely on circumstantial evidence.” (People v. Honig (1996)
48 Cal.App.4th 289, 341.) “It should not be given where the
evidence is either direct or, if circumstantial, is not equally
consistent with a conclusion of innocence.” (Ibid.)
“An instruction on the principles contained in CALJIC
No. 2.01 ‘must be given sua sponte when the prosecution
substantially relies on circumstantial evidence to prove guilt.”
(People v. Rogers (2006) 39 Cal.4th 826, 885 (Rogers).) The
instruction should not be given “simply because the
incriminating evidence is indirect . . . but is appropriate only
when ‘guilt must be inferred from a pattern of incriminating
circumstances.’ ” (People v. Heishman (1988) 45 Cal.3d 147,
167.) A trial court need not give the instruction “when
circumstantial evidence is merely incidental to and
corroborative of direct evidence, due to the ‘danger of misleading
and confusing the jury where the inculpatory evidence consists
wholly or largely of direct evidence of the crime.’ ” (People v.
McKinnon (2011) 52 Cal.4th 610, 676 (McKinnon).)
“However, you may not find the defendant guilty of the crime
charged [in Count[s] . . . and], [or] [the crime[s] of . . . which [is
a] [are] lesser crime[s]],] [or] [find the allegation to be true,]
unless . . . .”
42
PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
As the prosecution argued, its case rested primarily on the
eyewitness testimony from Martin, Priest, and Ralph. Priest
identified defendant as the person he heard speaking just before
hearing gunshots fired from defendant’s location and
subsequently finding Martin shot. After he heard the gunshots,
Priest looked over and recognized defendant’s profile as
defendant walked out of the apartment. Martin testified that
defendant was the person who pulled out a gun, ordered him to
lie on the floor, and then shot him. He further identified
defendant as the man who stabbed Priest in the back. Ralph
identified defendant as the individual who shot Alexander and
Curtis. He had heard defendant’s voice prior to hearing
gunshots coming from defendant’s location, and after the
shooting, he saw defendant holding a gun.
Although he testified for the defense and disavowed his
previous identifications, Alexander admitted on cross-
examination that he had identified defendant as the shooter
during a live lineup. At the hospital, he told a detective that he
saw the man who shot him, Curtis, and Ralph, and he had seen
a photo of that person in a newspaper and on television.
Alexander identified defendant as the shooter in a photo lineup.
In addition to testimony by the eyewitnesses, the
prosecution presented circumstantial evidence in the form of
ballistics evidence. A criminalist with the Sheriff’s department
testified that the bullets recovered at both scenes and from
Curtis’s body were fired from the gun found in defendant’s
possession.
In Rogers, the defendant presented an argument similar
to defendant’s here. The trial court instructed the jury with
CALJIC No. 2.02, rather than CALJIC No. 2.01, and we
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PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
concluded the trial court erred in doing so. (Rogers, supra,39 Cal.4th at p. 885.) The prosecution’s case regarding the
identity of the assailant rested on two pieces of circumstantial
evidence: the defendant’s possession of the murder weapon and
his admission that he killed another victim under similar
circumstances. (Ibid.) There was no direct evidence linking the
defendant to the murder and no eyewitnesses saw the defendant
with the victim. We concluded the error was harmless, however,
because the evidence supporting the jury’s guilt determination
was strong. (Id. at p. 886.) Unlike Rogers, which lacked direct
evidence, several eyewitnesses in the present case placed
defendant at both the Long Beach scene and the Pomona scene.
The jury also heard ballistics evidence linking defendant to the
murder which bolstered the direct evidence presented.
Although none of the eyewitnesses testified that they saw
defendant pull the trigger of the gun that shot Alexander,
Martin, and Curtis, Alexander did tell a detective that he saw
the man who shot them and identified defendant as that person.
At trial, Martin and Priest identified defendant as the sole
perpetrator, placed him at the scene with a handgun, and
described a robbery during which the three victims were shot.
In McKinnon, the prosecution’s case rested on testimony
from a witness that the defendant confessed to shooting the
victim in the head. (McKinnon, supra, 52 Cal.4th at p. 676.)
The circumstantial evidence presented related to defendant’s
possession of the murder weapon one week after the crime. We
upheld the trial court’s decision not to instruct with CALJIC No.
2.01, noting that while the incriminating effect of the
circumstantial evidence “was indeed substantial, it
complemented, and was merely corroborative of, defendant’s
admissions.” (Id. at p. 676.) As discussed, here, defendant’s
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PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
guilt was established primarily by direct witness testimony.
Any circumstantial evidence was corroborative of the
eyewitness testimony. Because the prosecution presented to the
jury ample direct evidence of defendant’s identity, the trial court
did not err when it instructed the jury with CALJIC No. 2.02.
2. Witness Identification
Defendant contends the trial court erroneously instructed
the jury regarding the reliability of eyewitness identification,
violating his right to due process.
The trial court instructed the jury with CALJIC No. 2.92
regarding factors to consider in proving identity by eyewitness
testimony. By this, the jury was directed to “consider the
believability of the eyewitness as well as other factors which
bear upon the accuracy of the witness’ identification,” including
“[t]he extent to which the witness is either certain or uncertain
of the identification.” Defendant asserts that a witness’s
certainty of his identification is irrelevant and does not indicate
eyewitness reliability, and it was error for the jury to consider
that as a factor.
We recently addressed a jury instruction regarding an
eyewitness’s level of certainty in People v. Lemcke (2021)
11 Cal.5th 644 (Lemcke). In Lemcke, the defendant and his
girlfriend attacked a woman at a motel. (Id. at p. 648.) The
victim identified the defendant in a photographic lineup later
that day, and again approximately three months later. (Id. at
pp. 648–649.) The defense called an expert witness who
testified at length regarding the reliability of eyewitness
identifications. (Id. at 650–652.) The trial court instructed the
jury with CALCRIM No. 315, providing 15 factors the jury
should consider when evaluating the credibility and accuracy of
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PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
eyewitness identification evidence. (Id. at 652.) On appeal, the
defendant argued that the certainty instruction violated his due
process rights to a fair trial.
Although Lemcke concerned a challenge to CALCRIM
No. 315, we noted that CALJIC No. 2.92 is similarly worded and
found no material distinction between the two instructions.
(Lemcke, supra, 11 Cal.5th at p. 656, fn. 6.) We acknowledged
research that has found eyewitness confidence to be an
unreliable indicator of accuracy and referred to the Judicial
Council and its Advisory Committee on Criminal Jury
Instructions an evaluation of “whether or how the instruction
might be modified to avoid juror confusion regarding the
correlation between certainty and accuracy.” (Id. at p. 647.) We
held, however, that the instruction did not violate the
defendant’s due process rights. (Id. at 661.) We observed that
the defense expert witness had testified that certainty is
generally not predictive of accuracy, and defense counsel had
cross-examined the victim and the investigating officers
regarding her identifications and the procedures used. (Id. at
p. 660.)
Although the defense below did not present an eyewitness
identification expert as had occurred in Lemcke, defendant’s
primary trial strategy was to discredit Ralph, Priest, and
Martin, and to imply that the eyewitnesses were testifying
falsely. At no point did defendant argue that the witnesses
mistook his identity. This was in contrast to Lemcke, where the
defense strategy focused on questioning the victim’s
identification of the defendant. (Lemcke, supra, 11 Cal.5th at
pp. 652–653.) The instant case involved the identification of
defendant by multiple witnesses, and, unlike in Lemcke, at least
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PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
two of the witnesses had known defendant in some capacity
prior to the attack.
Further, here the trial court’s instructions as a whole
properly instructed the jury how to evaluate the evidence
presented. The court also instructed the jury with CALJIC No.
2.20 concerning the believability of a witness and CALJIC No.
2.21.2 concerning a witness who is willfully false. When
considered “ ‘in the context of the instructions as a whole and
the trial record’ ” (People v. Foster (2010) 50 Cal.4th 1301, 1335,
italics omitted), the trial court’s use of CALJIC No. 2.92 did not
violate defendant’s due process rights.
3. Felony Murder
Defendant contends the court erroneously instructed the
jury on felony murder and first degree murder in light of the fact
that the information charged him with only second degree
murder under section 187.
The amended information charged defendant in count 6
with murder as follows: “On or about March 21, 2000, in the
County of Los Angeles, the crime of murder, in violation of Penal
Code section 187(a), a Felony, was committed by William Lee
Wright, Jr., who did unlawfully and with malice aforethought,
murder Phillip Curtis, a human being.” Count 6 further alleged
that defendant committed the murder while engaged in the
commission of the crimes of robbery and burglary within the
meaning of section 190.2, subdivision (a)(17).
The trial court instructed the jury on felony murder with
CALJIC No. 8.21 as follows: “The unlawful killing of a human
being, whether intentional, unintentional or accidental, which
occurs during the commission or attempted commission of the
crime of robbery or burglary is murder of the first degree when
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PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
the perpetrator had the specific intent to commit that crime.
The specific intent to commit robbery or burglary and the
commission or attempted commission of such crime must be
proved beyond a reasonable doubt.”
The trial court properly instructed the jury on first degree
murder. We have previously held that “in instructing a jury on
first degree murder when the information charged malice
murder under section 187, a trial court does not violate a
defendant’s federal constitutional rights to due process, notice,
proof beyond a reasonable doubt, or a unanimous verdict.”
(People v. Carey (2007) 41 Cal.4th 109, 132.) The information
charged defendant with a robbery and burglary special
circumstance, sufficiently putting defendant on notice that the
prosecution was proceeding on a felony-murder theory. (See
ibid.)
Defendant further argues that because the information
charged only second degree murder, the trial court lacked
jurisdiction to try him for first degree murder. We have
repeatedly rejected this jurisdictional argument. (People v.
Lopez (2018) 5 Cal.5th 339, 360 (Lopez); People v. Hughes (2002)
27 Cal.4th 287, 369; People v. Silva (2001) 25 Cal.4th 345, 367;
People v. Carpenter (1997) 15 Cal.4th 312, 394–395.) Defendant
offers no persuasive reason for us to revisit these holdings.
4. Proof Beyond a Reasonable Doubt
Defendant contends several guilt phase instructions
undermined the requirement of proof beyond a reasonable
doubt.
As observed earlier, the trial court instructed the jury by
using a modified version of CALJIC No. 2.02 that discussed the
relationship between the reasonable doubt requirement and
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PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
circumstantial evidence. (See ante, fn. 9.) As relevant here, the
instruction provided that if “one interpretation of the evidence
as to the specific intent or mental state appears to you to be
reasonable and the other interpretation to be unreasonable, you
must accept the reasonable interpretation and reject the
unreasonable.” Defendant contends the instruction “informed
the jurors that if appellant reasonably appeared to be guilty,
they could find him guilty — even if they entertained a
reasonable doubt as to guilt.” We have previously rejected
defendant’s contention, holding that such a direction “is entirely
consistent with the rule of proof beyond a reasonable doubt,
because an unreasonable inference pointing to innocence is, by
definition, not grounds for a reasonable doubt. The
circumstantial evidence instructions are thus correct.” (People
v. Brasure (2008) 42 Cal.4th 1037, 1058.) We need not revisit
this conclusion now.
Defendant next claims that four additional instructions
individually and collectively conflicted with the reasonable
doubt standard: CALJIC Nos. 2.21.1 (Discrepancies in
Testimony); 2.21.2 (Witness Willfully False); 2.22 (Weighing
Conflicting Testimony); and 2.27 (Sufficiency of Testimony of
One Witness). He asserts these instructions “urged the jury to
decide material issues by determining which side had presented
relatively stronger evidence,” thus replacing the reasonable
doubt standard with the preponderance of the evidence
standard. As defendant concedes, we have previously rejected
his contention. (See People v. Whalen (2013) 56 Cal.4th 1, 70;
People v. Tate (2010) 49 Cal.4th 635, 697–698.) Defendant
provides no persuasive reason to revisit our prior holdings.
49
PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
F. Challenges to the Death Penalty Law
Defendant presents several challenges to California’s
death penalty law that our prior decisions have considered and
rejected. He provides no basis necessitating us to reexamine the
following conclusions:
“California’s death penalty law ‘adequately narrows the
class of murderers subject to the death penalty’ and does not
violate the Eighth Amendment. [Citation.] Section 190.2, which
sets forth the circumstances in which the penalty of death may
be imposed, is not impermissibly broad in violation of the Eighth
Amendment.” (People v. Williams (2013) 58 Cal.4th 197, 294.)
The death penalty statute “is not invalid for failing to
require (1) written findings or unanimity as to aggravating
factors, (2) proof of all aggravating factors beyond a reasonable
doubt, (3) findings that aggravation outweighs mitigation
beyond a reasonable doubt, or (4) findings that death is the
appropriate penalty beyond a reasonable doubt.” (People v.
Snow (2003) 30 Cal.4th 43, 126, fn. omitted (Snow).) These
conclusions are not altered by the United States Supreme
Court’s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466,
or Ring v. Arizona (2002) 536 U.S. 584. (People v. Simon (2016)
1 Cal.5th 98, 149.) The high court’s decision in Hurst v. Florida
(2016) 577 U.S. 92, which invalidated Florida’s capital
sentencing scheme, does not invalidate California’s law because
our sentencing scheme is “ ‘materially different from that in
Florida.’ ” (People v. Becerrada (2016) 2 Cal.5th 1009, 1038; see
also People v. Rangel (2016) 62 Cal.4th 1192, 1235, fn. 16.)
“Allowing the jury to consider the circumstances of the
crime (§ 190.3, factor (a)) does not lead to the imposition of the
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PEOPLE v. WRIGHT
Opinion of the Court by Cantil-Sakauye, C. J.
death penalty in an arbitrary or capricious manner.” (People v.
Kennedy (2005) 36 Cal.4th 595, 641.)
“CALJIC No. 8.88’s use of the words ‘so substantial,’ its
use of the word ‘warrants’ instead of ‘appropriate,’ its failure to
instruct the jury that a sentence of life is mandatory if
mitigation outweighs aggravation, and its failure to instruct the
jury on a ‘presumption of life’ does not render the instruction
invalid.” (People v. Rountree (2013) 56 Cal.4th 823, 862–863.)
The death penalty statutory scheme is not invalid for
failing to require written findings. (Lopez, supra, 5 Cal.5th at
p. 370.)
A trial court “need not and should not instruct the jury as
to any burden of proof or persuasion at the penalty phase.”
(People v. Blair (2005) 36 Cal.4th 686, 753.)
“The trial court has no obligation to delete from CALJIC
No. 8.85 inapplicable mitigating factors, nor must it identify
which factors are aggravating and which are mitigating.”
(People v. Cook (2006) 39 Cal.4th 566, 618.)
“The adjectives ‘extreme’ and ‘substantial’ in statutory
mitigating factors (d) and (g) of section 190.3 do not prevent the
jury from considering mitigating evidence.” (People v. Leonard
(2007) 40 Cal.4th 1370, 1429 (Leonard).)
“The trial court is not required to instruct the jury that
statutory factors (d), (e), (f), (g), (h), and (j) in section 190.3 are
relevant only as mitigating factors, not as aggravating factors.”
(Leonard, at p. 1430.)
“Comparative intercase proportionality review by the trial
or appellate courts is not constitutionally required.” (Snow,
supra, 30 Cal.4th at p. 126.)
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Opinion of the Court by Cantil-Sakauye, C. J.
“The capital sentencing scheme does not violate equal
protection by denying to capital defendants procedural
safeguards that are available to noncapital defendants.” (People
v. Thomas (2012) 53 Cal.4th 771, 836 (Thomas).)
California’s death penalty does not violate international
law or international norms of decency. (Thomas, supra,53 Cal.4th at p. 837.)
G. Cumulative Error
Defendant contends reversal is warranted because of the
cumulatively prejudicial effect of the guilt and penalty phase
errors. We have found one error and assumed one more, both in
connection with defendant’s claim of prosecutorial misconduct.
Even aggregated, these errors are harmless under any standard.
III. CONCLUSION
The judgment is affirmed.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
LUI, J. *
*
Administrative Presiding Justice of the Court of Appeal,
Second Appellate District, Division Two, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
52
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Wright
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
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Opinion No. S107900
Date Filed: December 16, 2021
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Court: Superior
County: Los Angeles
Judge: Norman P. Tarle
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Counsel:
Michael J. Hersek and Mary K. McComb, State Public Defenders,
under appointments by the Supreme Court, Kathleen M. Scheidel and
Alison Bernstein, Assistant State Public Defenders, and Alyssa
Mellott, Deputy State Public Defender, for Defendant and Appellant.
Kamala D. Harris, Xavier Becerra and Rob Bonta, Attorneys General,
Dane R. Gillette and Lance E. Winters, Chief Assistant Attorneys
General, James William Bilderback II, Assistant Attorney General,
Jaime L. Fuster and Kim Aarons, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Alyssa Mellott
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607
(510) 267-3300
Kim Aarons
Deputy Attorney General
300 S. Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6092