Late on the night of November 1, 1980, after several hours of drinking in a Sacramento bar, Gerald Gallego told his pregnant wife that he was “getting that feeling” and wanted her to find him a girl. Charlene Gallego drove him to a shopping center parking lot, where he walked a young couple to the car at gunpoint. Craig Miller, twenty-two, was shot three times in the head beside a country road within the hour. Mary Beth Sowers, twenty-one, was taken to the Gallegos’ apartment, raped, and then driven north and shot in a field as daylight came. A friend of Miller’s had seen the couple leave and had written down the license plate. The Gallegos were arrested in Omaha sixteen days later, and Charlene, in return for a plea to two counts of second-degree murder and a sentence of less than seventeen years, told the police about eight more killings across California, Nevada and Oregon and agreed to testify against her husband wherever he was tried.
He was tried twice, in two states, and sentenced to death in both. California went first, in Contra Costa County in 1983, for Miller and Sowers; Nevada followed in 1984, in Pershing County, for Karen Twiggs and Stacey Redican, two seventeen-year-olds taken from another Sacramento mall in April 1980 and beaten to death with a hammer in Limerick Canyon outside Lovelock. The five opinions on this page are what the appellate courts of both states, and the federal Ninth Circuit, made of those trials. The Nevada Supreme Court affirmed in December 1985, in a per curiam opinion that runs through the small-town publicity, the Lovelock weekly’s “derisive articles” and twenty-one claimed errors. Five years to the day later the California Supreme Court affirmed the Miller and Sowers convictions in a thirty-thousand-word opinion by Chief Justice Malcolm Lucas that is the fullest account of the case any court produced, from Charlene’s testimony to the prospective jurors who were asked whether they could vote for death for Adolf Hitler.
The Ninth Circuit undid the Nevada sentence in 1997, not the conviction. The jury that condemned him had been told that a sentence of life without parole “does not exclude executive clemency,” and the court held that instruction misleading enough to require a new penalty hearing. A second Pershing County jury sentenced him to death again in September 1999, after a competency hearing at which a defense psychiatrist described a childhood of beatings, starvation and severe head injuries, and the Nevada Supreme Court upheld that sentence in May 2001. In between, in 1998, the California Supreme Court threw out his state habeas petition as filed too late, in an opinion that is more about the rules of timeliness than about him. He never reached an execution chamber in either state. Moved from Ely State Prison to the prison system’s medical center in Carson City in March 2002 as his cancer advanced, he died there on July 18, the day after his fifty-sixth birthday, with his California appeal still pending in federal court.
Only four of the ten killings Charlene described were ever tried, and the opinions keep that line. Miller and Sowers were the California case; Twiggs and Redican the Nevada case. Kippi Vaught and Rhonda Scheffler, taken from a Sacramento mall in September 1978 and found shot two days later, appear in both states’ trials as “other crimes” evidence, admitted to show a pattern, and the Ninth Circuit notes plainly that he was never charged with killing them. Linda Aguilar, killed in Oregon in June 1980, and Virginia Mochel, taken from a bar in West Sacramento the following month, come in only at the California penalty phase, through Charlene’s testimony and the officers she led to the bodies. Brenda Judd and Sandra Colley, the two Reno girls, are not in these opinions at all. Where a court repeats what Charlene said, it is repeating the account of an accomplice who negotiated her own sentence, and the California court spends several pages on exactly that problem.
The victims are named in full, as the courts named them, and so are the lawyers, judges, police officers and expert witnesses. Charlene Gallego, who pleaded guilty and was released in 1997, keeps her name; she is a convicted participant, not a bystander. Private people who gave evidence do not. Miller’s friend who took down the license plate is A.B., and the friend he told is M.W. The bar owner and manager who saw Gallego that night are E.W. and D.B. His cousin, his former sister-in-law, the rancher and the couple who saw the car on Meiss Road, and the man who heard shots near the lake are initialled, as are his daughter, who was a child, his mother-in-law, who becomes Mercedes W., the inmate who plotted an escape with him, and every prospective juror the California court discusses by name. The court’s own misspellings stay: it writes Kippie Vaught, and the Ninth Circuit’s text twice has Seheffler for Scheffler.
All five are published opinions of American courts and are in the public domain. The two Nevada opinions and the two California ones came through as clean typeset text. The Ninth Circuit opinion did not: its copy carries the marks of a poor scan, with “de-seription” for description and other broken words that we have left as they arrived, because the alternative is to guess. We closed up five words that were split across a line break where the whole word appears elsewhere in the same file. The 1998 California opinion ends with the court’s summary order, which the reporter printed as an appendix; it is here, after the concurring and dissenting opinions. Footnotes, where the capture has them, follow each opinion under their own heading.
GERALD ARMOND GALLEGO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 15932
December 20, 1985
711 P.2d 856
Robert Bork, State Public Defender, Carson City, FitzSimmons, Lambrose & Perkins, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City, and Richard A. Wagner, District Attorney, Lovelock, for Respondent.
The Honorable Deborah A. Agosti, Judge of the Second Judicial District Court, was designated by the Governor to sit in place of The Honorable Cliff Young, who recused himself. Nev. Const., art. 6, § 4.
[OPINION BY Per Curiam: type=majority]
OPINION
Per Curiam:
Two young women, Stacey Redican and Karen Twiggs, disappeared from a shopping mall in Sacramento, California, on April 24, 1980. Their brutalized bodies were discovered on July 27, 1980 in shallow graves in remote Limerick Canyon, Nevada. The hands of both girls were trussed with an uncommon variety of macrame rope. An autopsy revealed that both victims suffered violent deaths caused by multiple blows to the head with a hammer or hammer-like object.
According to the State’s primary witness, Charlene Williams (aka Charlene Gallego), defendant had her entice the two victims into a van where they were forcibly confined, sexually molested by Gallego and ultimately transported to the place of their destruction. The gravamen of Charlene’s testimony was that Gallego again transmogrified his “sex slave” fantasy into an intense, morbid reality. During the course of trial, evidence was adduced concerning similar conduct by Gallego in the earlier killing of two young women kidnapped from another shopping mall in the Sacramento area. The latter victims were felled by a number of bullets to the head, whereas Stacey and Karen had been viciously bludgeoned to death by a hammer that Gallego had purchased enroute to the fatal destination in Limerick Canyon.
The jury found Gallego guilty of two counts of murder in the first degree and two counts of kidnapping in the first degree with substantial bodily harm. Gallego was sentenced to death for Stacey and Karen’s murder and received two consecutive sentences of life without the possibility of parole for the kidnapping counts. Having determined that no prejudicial error occurred in Gallego’s trial, we affirm the convictions and sentences without exception.
ISSUES ON APPEAL
Gallego raises twenty-one issues on appeal, a number of which we need not consider. Suffice it to say that the trial as a whole produced fairness to the defendant both in the guilt and penalty phases.
I. The Guilt Phase
A.
Change of Venue
An accused is entitled to be fairly tried based upon evidence adduced at trial, and that right remains inviolate in the face of apparent guilt, the most heinous criminal charges and a less than inspiring station in life. Irvin v. Dowd, 366 U.S. 717 (1961). Gallego contends that his due process right to fundamental fairness was emasculated beyond redemption by the inflammatory nature of the pretrial news coverage and the rural setting of the trial in Pershing County. Unquestionably, the combination of inflammatory pretrial publicity and a sparse population could produce an ambiance so fraught with prejudice that a fair trial would be unattainable. However, viewed within the context of the instant case, we have concluded that the confluence of the aforementioned concerns did not deprive Gallego of a fair trial.
It is true, as appellant emphasizes, that the local weekly newspaper of general circulation, the Lovelock Review-Miner, published a number of derisive articles about Gallego. The Nevada news media throughout the State provided extensive pretrial coverage of the Gallego prosecution, including its sensational aspects. It may thus be fairly assumed that no geographical area within the State of Nevada having facilities available to accommodate defendant’s trial would have been insulated from pre-trial publicity. It is equally clear that a change of venue would have intensified the media coverage accessible to residents of the area of the new trial site. Of paramount concern, then, is whether, in spite of the coverage, Gallego was accorded his constitutional right to a fair trial by a panel of qualified, impartial jurors.
Given the realities of our age, it is unlikely that a high-profile criminal defendant will be presented with a venire of uninformed individuals from which to select a jury. Indeed, it is conceded by many jurists that such a panel would least likely provide the considered, enlightened judgment that can best serve the demands of trial. As a result, courts abide by the following standards:
To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
Murphy v. Florida, 421 U.S. 794 (1975), quoting Irvin v. Dowd, supra at 723. See also Kaplan v. State, 96 Nev. 798, 618 P.2d 354 (1980). In analyzing the constitutional adequacy of Gallego’s jury, it should be noted that not all of the circumstances contributing to the pre-trial atmosphere were adverse to Gallego. Importantly, the victims were not local girls. Moreover, it was evident that many residents of Pershing County were opposed to the trial situs because of the expense to the County. Finally, there were no publications of admissions or confessions attributable to Gallego.
Seven of the jurors were passed for cause by defendant. None of the jurors were shown to have formed the opinion that Gallego was guilty of the crimes with which he had been charged. All of the jurors selected indicated they could follow the law, and, if appropriate, return a sentence other than death if they found Gallego guilty. Gallego nevertheless contends that expressions of impartiality and commitment to decide the guilt or innocence of the defendant solely on the trial evidence were the conditioned responses to the admonitions of the trial judge. We do not agree. Although it is impossible to divine the true mind-set of any prospective juror, we are convinced from the record that the process of jury selection in the instant case yielded a jury panel committed to consitutional behavior. The trial court did not err in rejecting Gallego’s motion for a change of venue.
In reviewing the record, we are likewise convinced that defendant’s subsidiary contentions concerning the trial court’s rulings in: (1) defendant’s challenges for cause; (2) refusing to grant defendant peremptory challenges in excess of the number provided by statute; (3) refusing to exclude the press and public from the voir dire of the venire; and (4) denying defendant’s motion to sequester the jury during trial are all without merit. We likewise conclude that the trial judge did not commit error in addressing the venire concerning the duties of a juror.
B.
Testimony of Charlene Williams aka Charlene Gallego
Gallego contends that the lower court erred in permitting Charlene Williams, aka Charlene Gallego, to testify as an accomplice to Gallego’s crimes. Prior to Gallego’s trial, Charlene had entered a guilty plea to two counts of second degree murder in the deaths of Karen and Stacey and had been sentenced in connection therewith. Charlene testified at trial that she had directly participated in the kidnapping and asportation of the two victims, knowing they would be killed. Under Nevada law, NRS 175.291, the evidence against Gallego must be analyzed independent of Charlene’s testimony in order to ascertain whether sufficient evidence otherwise exists tending to connect Gallego to the commission of the crimes. Defendant argues that no evidence independent of the accomplice testimony exists to link him to the two offenses charged. We disagree.
During the course of the trial, the State produced corroborative evidence that, in cumulative effect, sufficiently connected Gallego to the two murders. An uncommon variety of macrame rope was found in the trunk of Gallego’s Triumph 1500 automobile that matched in all respects the rope that bound the two victims. The State also introduced a photograph taken of Gallego and certain friends several years before the killings at the identical site where the victims were found. The burial place for the two young women was a remote site in a vast desert area, a spot shown to be familiar to Gallego. Additionally, the State proved that the defendant was in Nevada at Lake Tahoe one day following the disappearance of the victims. Finally, evidence of the murders of Kippie Vaught and Rhonda Scheffler showed a common scheme or plan consistent with the kidnappings, sexual molestation and eventual killings in the instant case. The cumulative impact of the aforementioned corroborative evidence was sufficient to tie Gallego to the commission of the homicides without resort to Charlene’s testimony. Accordingly, the trial court did not err in its ruling on this issue.
Gallego nevertheless contends that Charlene should not have been allowed to testify in any event because of the spousal privilege. This issue is also without merit. Unlike California, where the spousal privilege belongs to and may be waived by the witness, People v. Lankford, 127 Cal.Rptr. 408 (C.App.3d 1976), the Nevada evidence code precludes a wife from testifying for or against her husband without his consent. NRS 49.295(l)(a). Therefore, if Charlene and Gallego were lawfully married, her testimony against Gallego would have violated the spousal privilege.
The validity of the marriage Gallego seeks to invoke depends upon the effect of a California nunc pro tunc order entered approximately eighteen years after a 1964 Nevada marriage that was void ab initio under the laws of this State. Gallego contends that the aforesaid order reinstates a 1966 marriage which was otherwise void under Nevada law because the “marriage” was performed in Nevada at a time when only an interlocutory decree of divorce had been obtained with respect to Gallego’s earlier California marriage. If Gallego’s theory were correct, it would render two subsequent marriages (one of which was never terminated by divorce) void and a third marriage and divorce valid, thereby making his 1978 marriage to Charlene in Reno, Nevada, valid and subsisting at the time of trial. Gallego, who sought and obtained the California nunc pro tunc order in an attempt to successfully invoke the spousal privilege, was never lawfully wedded to Charlene. NRS 125.290 specifies that all marriages solemnized within this State wherein either of the parties have a husband or wife then living are void. Since the marriage that Gallego sought to validate by means of the nunc pro tunc order was void from the beginning, there was no marriage concerning which the California order could operate to save. Charlene’s testimony did not violate the spousal privilege.
C.
Evidence of Uncharged Homicides
At trial, the State was permitted to introduce evidence of the September 11, 1978 Sacramento homicides of Kippie Vaught and Rhonda Scheffler. Purposes for which the evidence was admitted included common plan, intent, identity and motive, all exceptions to the Nevada evidence code prohibiting evidence of prior misconduct in order to show that the defendant acted in conformity therewith. In prosecuting Gallego, the State theorized, as revealed by Charlene’s testimony, that Gallego had been motivated by a sex slave fantasy that he had articulated to Charlene, to kidnap, sexually assault and ultimately murder youthful female targets.
The trial court did not err in permitting evidence of the prior killings to be introduced at trial. The homicides involving Kippie Vaught and Rhonda Scheffler were not remote in time from the killings here considered, substantial similarities were shown to exist in plan and intent, and the probative value of the evidence outweighed prejudice to the defendant. See NRS 48.035(1). The lower court so held, and we will not interfere with a discretionary ruling of the district court absent a showing that the ruling was manifestly wrong. See Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965). Finally, evidence of the Vaught and Scheffler homicides satisfied the “plain, clear and convincing” standard required for its admissibility. See Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966).
II. The Penalty Phase
A.
Executive Clemency
Gallego contends that the jury was given a misleading instruction concerning executive clemency that offends due process. Defendant argues that the instruction “invites speculation,” “diminishes the jurors’ individual and collective sense of responsibility” and, most important, misleads in not informing the jury that clemency is available to a defendant sentenced to a term of life without the possibility of parole. We do not agree. The identical instruction at issue here was given in Rogers v. State 101 Nev. 457, 705 P.2d 664 (1985), and we there determined that the instruction did not contravene constitutional standards. Constraints applicable to clemency instructions by reason of our holding in Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), are of prospective effect and thus do not apply here. The trial court did not err on this issue.
B.
Burden of Proof
Gallego argues, as did the defendant in Ybarra v. State, 100 Nev. 167, 679 P.2d 797 (1984), that a jury instruction based upon NRS 200.030(4) unconstitutionally shifts the burden to the defendant to prove that mitigating circumstances outweigh aggravating circumstances. We again conclude that this contention is without merit. Under Nevada’s sentencing apparatus, the State is first required to prove one or more aggravating circumstances beyond a reasonable doubt. Thereafter, the defendant may show that the mitigating circumstances revealed by the evidence outweigh the aggravating circumstances proved by the State. Upon such a showing, the death penalty is no longer among the sentencing options. See NRS 175.554(2) and (3). As we held in Ybarra, supra, Nevada’s statutory sentencing scheme, as it relates to the death penalty, supplies sufficient guarantees against the arbitrary and capricious imposition of the ultimate penalty to pass constitutional scrutiny. The trial court did not commit error in instructing the jury on this subject.
C.
Evidence of Uncharged Homicides
As noted previously, evidence of the prior, uncharged homicides of Kippie Vaught and Rhonda Scheffler was properly admitted during the State’s case-in-chief for the limited purposes specified in NRS 48.045. During the penalty phase of Gallego’s trial, the district court instructed the jury on the use of the evidence of these two killings as follows:
You are instructed that with regard to evidence presented during the main trial or guilt phase in this matter, certain evidence was presented concerning the murders of Kippie Vaught and Rhonda Scheffler, which evidence was admitted at that time for limited purposes as previously explained to you.
You may consider such evidence as bearing upon the defendant’s character if you find that the Plaintiff has proved that matter beyond a reasonable doubt. That evidence, however, shall not be considered aggravating circumstance.
Gallego suggests that jury consideration of non-aggravating factors of the nature and severity of these uncharged homicides, attenuates the intendment of Furman v. Georgia, 408 U.S. 238 (1972), to channel the discretion of the sentencing authority so as to avoid an arbitrary and capricious imposition of the death penalty. Additionally, it is argued that the interjection of such evidence fails to serve the necessary function of narrowing the class of persons against whom the death penalty may be invoked. We reject both contentions. The clearly defined, statutorily required, aggravating circumstances that must be found to exist beyond a reasonable doubt serve to narrow and confine the class of persons against whom the death penalty may apply. Individuals who are identified as potential recipients of the death penalty because of conduct statutorily defined as an aggravating circumstance must then be scrutinized according to their individual characteristics. This process is facilitated by consideration of mitigating circumstances and other reliable factors relevant to the life of the defendant as a whole person. Only then may a sentencing authority render an informed judgment based upon the crime and the defendant who committed it.
If the death penalty option survives the balancing of aggravating and mitigating circumstances, Nevada law permits consideration by the sentencing panel of other evidence relevant to sentence. NRS 175.552. Whether such additional evidence will be admitted is a determination reposited in the sound discretion of the trial judge.
In the instant case, it is clear that properly qualified evidence of the Vaught and Scheffler murders was highly relevant to meaningful considerations of Gallego’s death worthiness. Such evidence not only impacted questions concerning the extent to which Gallego might pose a future threat to society, it also illumined issues concerning the extent to which Gallego’s character was suited to assimilating acceptable norms of societal behavior. Contrary to defendant’s assertions, evidence of the two uncharged homicides furthered the objective of seeking death penalty evaluation under a process of enlightenment that tends to suppress arbitrariness and caprice as vehicles of decision. The United States Supreme Court, in Barclay v. Flordia, 463 U.S. 939 (1983), declared:
In returning a conviction, the jury must satisfy itself that the necessary elements of the particular crime have been proved beyond a reasonable doubt. In fixing a penalty, however, there is no similar “central issue” from which the jury’s attention may be diverted. Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, as did respondent’s jury in determining the truth of the alleged special circumstances, the jury then is free to consider a myriad of factors to determine whether or not death is the appropriate punishment.
Id. at 950, quoting California v. Ramos, 463 U.S. 992 at 1008 (1983). The trial court committed no error on this issue.
D.
Evidence of Murders Occurring After the Instant Homicides for Which Gallego Had Been Previously Convicted
Gallego objected to the admission of two murder convictions occurring in Contra Costa County Superior Court of California in 1983 as an aggravating circumstance under NRS 200.033(2). Since the two murders involved in the California judgment were committed subsequent to the murders in the instant case, Gallego contends the former killings do not qualify as an aggravating circumstance under the statute.
This issue is one of first impression in the State of Nevada. NRS 200.033(2) provides as follows:
The only circumstances by which murder of the first degree may be aggravated are:
2. The murder was committed by a person who was previously convicted of another murder or of a felony involving the use or threat of violence to the person of another.
Gallego argues that the statute simply provides that a person who is convicted of murder and thereafter commits another murder will have the second offense aggravated by the first. Thus, Gallego concludes that since the June 1983 California convictions did not precede the 1980 killings of Redican and Twiggs, the admission of the former offenses as a statutory aggravating circumstance was error. Gallego is wrong.
Aggravating circumstances, as defined by the statute, provide direction to the sentencing authority as it considers an appropriate punishment for the defendant. The statute was never intended to operate on the vagaries of conviction sequences. Instead, the focal point is the time of sentencing. The sentencing panel is entitled to consider all relevant aspects of the defendant’s criminal background prior to rendering sentence. The fact that Gallego murdered two victims after killing the two victims in the instant case is not relevant to the dictates of the statute. The clear language of the statute required only that Gallego stood convicted of the California murders at the time of the introduction of that evidence in the penalty phase of the present proceeding. It would be both absurd and counterproductive for this Court to construe the plain language of the statute so as to exclude convictions of murders or crimes of violence occurring after the primary offense but prior to the penalty phase of a defendant’s trial. This we refuse to do. The trial court did not err.
E.
Sentencing Factors
Finally, Gallego contends that his sentence of death was the product of passion, prejudice or arbitrary behavior on the part of the jury. We disagree. Our review of the record reveals that Gallego’s sentence was not imposed under the influence of passion, prejudice or any arbitrary factor. Moreover, in conformity with statutory requirements existing at the time of the instant crimes, we have reviewed Gallego’s sentence to determine whether it is excessive or disproportionate to the penalty imposed in similar cases in this State, considering both the crime and the defendant. We have concluded that it is not.
We have carefully examined the remaining contentions of error and conclude that they are without merit. Gallego was fairly tried, convicted and sentenced. The judgment of the trial court is therefore affirmed.
Springer, C. J., Mowbray, Gunderson, and Steffen, JJ., and Agosti, D. J.
Indeed, front-page articles referred to Gallego in terms of a sex slayer, convicted killer, accused sex slayer or condemned sex slayer. Telecasts received in the Lovelock area from Reno also made reference to Gallego’s “sex-slave fantasy.” Several articles in the Lovelock Review-Miner focused on the cost of the trial to Pershing County. Other comments related to trial donations made by interested parties from California, e.g., “Here’s five bucks to help you on the Gallego trial costs. Hang the bastard!” Reference was also made to California sources who decried California’s infirmity in capital cases as opposed to a perceived willingness in Nevada to “do it right.”
The degree of pre-trial publicity exposure among the jurors varied from superficial to reasonably detailed. Several of the jurors were aware of the defendant’s prior homicide convictions in California. In each instance, however, the juror evinced a non-judgmental attitude and an understanding willingness to determine Gallego’s guilt or innocence solely upon the evidence adduced at trial.
NRS 175.291 reads as follows:
1. A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof.
2. An accomplice is hereby defined as one who is liable to prosecution, for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.
NRS 48.045(2) provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
NRS 200.030(4) provides:
Every person convicted of murder of the first degree shall be punished:
(a) By death, only if one or more aggravating circumstances are found and any mitigating circumstance or circumstances which are found do not outweigh the aggravating circumstance or circumstances.
(b) Otherwise, by imprisonment in the state prison for life with or without possibility of parole. If the penalty is fixed at life imprisonment with possibility of parole, eligibility for parole begins when a minimum of 10 years has been served.
[No. S004561.
Dec. 20, 1990.]
THE PEOPLE, Plaintiff and Respondent, v. GERALD ARMOND GALLEGO, Defendant and Appellant.
Counsel
Roderick R. Bushnell, under appointment by the Supreme Court, Thomas Marc Litton and Bushnell, Caplan & Fielding for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White and Richard B. Iglehart, Chief Assistant Attorneys General, John H. Sugiyama, Assistant Attorney General, Morris Beatus, Aileen Bunney, Ronald S. Matthias, Dane R. Gillette and Christopher J. Wei, Deputy Attorneys General, for Plaintiff and Respondent.
[OPINION BY LUCAS, C. J. MOSK, J., Concurring. type=majority]
Opinion
LUCAS, C. J.
Defendant appeals from a judgment of guilt and sentence of death. A jury found him guilty of two counts each of first degree murder and kidnapping, and found he was armed with, and used, a firearm in the commission of those crimes. It also found true two special circumstances as to each killing: (i) multiple murder and (ii) murder in the commission of kidnapping.
I. Facts
After venue was moved from Sacramento County to Contra Costa County, defendant elected to represent himself at the guilt trial. The following evidence was presented.
Guilt phase
1. The prosecution case
After drinking at the Sports Room bar in Sacramento until the early morning hours of November 2, 1980, defendant told his pregnant wife, Charlene, he was “getting that feeling” and wanted her to “get [him] a girl.” Charlene drove defendant in his car to a nearby shopping center where they noticed a young couple entering a car. Defendant gestured toward them, but Charlene told him, “No, that’s a couple.” Soon defendant noticed another couple—victims Craig Miller and his date, Mary Beth Sowers—entering their car. He ordered Charlene to stop the car, got out, and brought Miller and then Sowers to the car at gunpoint. Charlene saw Miller throw his own car keys out the window, and mentioned this to defendant. On defendant’s order, Charlene got out and looked for the keys, but could not find them. The keys were found in the parking lot the next morning.
Soon thereafter A.B. (a friend of Miller) approached, recognized Miller and Sowers, and walked to defendant’s car. Miller told B. that he did not belong there, and swore at him, telling him to leave; Charlene slapped B. and told him to go. B. noted the car’s license number as it left the parking lot, and immediately recounted these events to his friend M.W., who happened on the scene as defendant’s car departed.
Defendant directed Charlene to drive north toward a lake, and then ordered her to stop the car. He took Miller’s wallet, and asked Sowers, “What are you doing with a bum like this?” He asked Charlene if she “wanted” Miller, and when she said, “No,” defendant forced Miller to remove his shoes, ordered him out of the car, and shot him three times in the head.
Defendant entered the back seat with Sowers and told Charlene to drive to his apartment. He embraced Sowers, and told her she was going to be his “M.E. tonight.” As explained below, defendant’s daughter’s name is M.E.
At his apartment, defendant took Sowers into the bathroom and then the bedroom. Charlene heard arguing, and the sounds of a headboard hitting the wall. Thereafter defendant and Sowers emerged, and defendant told Charlene to get her coat and follow him. They put Sowers in the back of the car, tied her hands behind her back with ribbon, and drove north on a route different from the one they had taken previously that evening. Again, Charlene drove and defendant gave directions. Finally, as daylight was breaking, they stopped. Defendant took Sowers into a field and shot her three times. They drove back to defendant’s apartment and on defendant’s orders Charlene cleaned the car. They then drove to a park where defendant threw his gun and some of Sowers’s jewelry into a river. Defendant told Charlene he loved her, that he did not want to “let her go,” and that he’d never let anything happen to her. The two then went out for doughnuts.
Back in the apartment, defendant told Charlene to gather up the laundry, change the linen on the bed, and put the coat he had worn the previous night in a dumpster. They then left for the house of Mercedes W. (Charlene’s mother), and on the way discarded Miller’s shoes in another dumpster.
They arrived at the W.s’ house and entered through the back door. The police had been notified by B. of the previous night’s events, and were in the living room, interviewing Charlene’s parents. Defendant put the laundry bag on the back step, told Charlene to say nothing, and left. Charlene entered the house wearing a T-shirt reading, “I’m the very best,” which she had taken from defendant’s apartment.
Charlene told the police she had been with her boyfriend (whom she called Steven Feil) at a movie the night before. While the police were interviewing her, defendant telephoned, and told Charlene to meet him at a nearby ice cream store. Charlene continued to talk with the police.
She gave conflicting accounts of which car they had driven the previous evening, and then gave the police permission to search the car that had been driven. The interior was quite clean, and the officers found nothing. When the police left, Charlene drove to meet defendant, who had decided to return to the lake area to move Miller’s body. After purchasing a blanket in which to wrap the body, they drove to the lake but could not locate the body.
The police went to defendant’s apartment but returned to the W.s’ home after finding no one. While there they were notified that Miller’s body had been found. Additional officers were dispatched to defendant’s apartment.
Defendant and Charlene returned, saw the police outside both the W.s’ home and defendant’s apartment, and decided to flee. They arranged to meet the Williamses in a bar, drove to Reno, and then traveled by bus to Salt Lake City. Defendant called Mrs. Williams and told her she could find the car in Reno and should change its tires. In Salt Lake City, Charlene dyed her hair, stole a purse to establish a new identity, and asked the Williamses to send money. Thereafter the two traveled to Denver, then Pueblo, Colorado, where they obtained false birth certificates for themselves.
On defendant’s direction, Charlene prepared a list of topics to discuss with her mother by phone. The list read in part as follows: “1) Lawyers fool, save money. 2) Try to gain release in any property (in) car, you have power of attorney. 3) Say nothing about anything to the police or the D.A. 4) Don’t pay anything you don’t have to. [This apparently referred to payments on Charlene’s ring, which they had earlier pawned in Denver.] 5) Lawyer has not done anything that has been asked of him. 6) Please send money. 7) If need be, we will arrange for you to take care of the baby for awhile.”
At some point, they spoke again by telephone to Charlene’s parents, as well as an attorney; the Williamses and the attorney apparently balked about sending more money. Eventually defendant and Charlene went to Omaha, where they used the names Steve Calloway and Charlene Rae Bell.
They discussed several stories to tell the police if caught. In one, they would say Charlene met Sowers in a restaurant lounge at the shopping center, the four then went to a certain bar, and Miller and defendant left the bar before the women did. Alternatively, they would say they dropped Miller and Sowers at the parking lot and never saw them again.
Defendant and Charlene were arrested in Omaha when they attempted to retrieve money wired to them by the Williamses.
As noted, Miller’s body had been discovered hours after the killing, on Sunday morning. He was fully clothed, but his shoes were missing. He had been shot three times in the head at point-blank range, and there was no sign of struggle. His wallet was found near the body, along with three .25-caliber Winchester Western shells.
Sowers’s body was discovered three weeks later. It was badly decomposed, but it appeared that she had been fully clothed at death, and that her hands had been tied behind her back with ribbon. She had been shot twice in the head and once in the neck. Because of decomposition, it could not be determined if she had been sexually assaulted before she died. Two .25-caliber brass casings were found near the body.
B., Miller’s friend, identified defendant in a police photographic lineup. The police conducted a warrant search of defendant’s apartment, and found some .25-caliber ammunition, but no .25-caliber weapon. The ammunition was found in a partly full Winchester Western ammunition box.
The police discovered that defendant had worked as a bartender at a local bar, and had on two occasions fired his gun—a Baretta automatic—into the ceiling, and afterward patched the holes. A detective went to the bar and recovered five slugs located in the area where defendant had fired his gun. Experts determined that the recovered slugs and those from the victims’ bodies were fired from the same weapon, and that the cartridge casings found near the two bodies came from the same weapon. The casings matched substantially the casings of the bullets found in defendant’s apartment.
Charlene’s mother, Mrs. Williams, visited defendant in jail at various times before his trial. He admitted to her that he encountered Miller and Sowers in the parking lot and that he owned the gun used in the killings. He told her his defense would be “diminished capacity,” because he had taken LSD, and that he would willingly plead to second degree murder and take a sentence of 15 years “in a minute.” He noted that his story had to be planned carefully, not “halfway,” and that it had to be “done” with “realistic thoughts in mind.” He told her, “The only thing that they could prove for fact is that it was my gun that did it and that they were in my car that night for fact, that’s all... .”
Meanwhile, Charlene approached the police through the first of her attorneys. She fabricated a story in which defendant introduced her to both victims in the parking lot and they later went to defendant’s apartment. She claimed she slapped Miller’s friend B. in the face because he stepped on her foot. She said she last saw the victims after they all shared cocaine in defendant’s living room, and defendant left with them both. According to her story, defendant returned the next morning with blood on his jacket and ordered her to throw it away.
Thereafter Charlene obtained new counsel, recanted the above story, and gave the police another statement. She pleaded guilty to two counts of first degree murder, with the understanding that she would be sentenced to sixteen years, eight months in prison, but that if the Board of Prison Terms did not agree to the sentence, she could go to trial on the original charges or plead guilty to some related charges and receive a sixteen-year, eight-month prison term. Under this agreement with the prosecutor, Charlene was required to testify truthfully, and enjoyed no immunity for perjury. She testified at trial as set out above.
2. The defense case
As noted above, defendant represented himself at the guilt phase, and testified in his own defense.
He described meeting Charlene in 1977 when she was almost 21 and he was 31, and had been married 5 times. He worked in a cardroom, where he cheated his customers. He denied ever striking Charlene, but he admitted pulling her hair once when she used a word that he felt was inappropriate. He explained that although he sometimes wanted to hit her, he generally treated her with consideration and care.
He testified that Charlene became pregnant, and that they agreed she should have an abortion. Later, in 1978, they were married in Reno, and he obtained false identification papers and began using the name “Stephen Feil,” the name of one of Charlene’s relatives.
Defendant disputed the prosecution’s theory that a Baretta was used in the murders. In an apparent attempt to discredit Charlene’s testimony by throwing doubt on whether he used a Baretta to commit the killings, he presented evidence showing that in 1977 Charlene bought an FIE (Firearms Import-Export Company) gun at a local sporting goods store, for protection from a rapist who had been haunting the neighborhood. He trained her to use the gun for her protection when he was away, and he had the gun chromed so it would be more “ladylike” for her. He also took the gun to work when he expected trouble. This, he claimed, was the gun he used to fire the shots into the ceiling of the bar. Later, he asserted, Charlene bought him another FIE—“a kind of matching set”—but he had her return it for a Baretta. He admitted keeping the Baretta at the bar, but claimed he traded it for a .22-caliber automatic when he quit working there because he was getting out of “the bar business.”
He described his frequent marital infidelities, noting that Charlene was jealous, but with good reason, because he was not a faithful husband. He stated that although he took drugs before he met Charlene, he used more drugs and alcohol afterward. He then moved to Oregon with another woman—his “mistress”—and she became pregnant. He moved back to Sacramento; Charlene, too, was pregnant. He did not know what to do, so he lived with neither of them, and rented an apartment.
Around November 1980 he “us[ed] drugs a lot.” Both Charlene and his mistress wanted to move in with him. He selected Charlene, and because they were both out of work, they went out together on Saturday, November 1, to cheat at cards. As was their custom in such enterprises, he “pack[ed] a... small gun,” so that if they were caught they could “leave peacefully.” He stated that he had used no drugs that day, and was not drunk.
They entered the Sports Room bar about 7 p.m. They went outside and smoked marijuana with two others, one of whom, E.W., was the previous owner of the bar. W. introduced defendant to the new manager, D.B., and defendant asked B. for permission to cheat in return for a cut of the take. B. declined, saying he was trying to run a legitimate cardroom. Back inside, defendant began to play pool for shots from a “pony glass,” i.e., three and one-half ounces of liquor. He became very drunk, and does not even remember with whom he played pool. The next thing he remembered “for clear” was waking up in his apartment—still feeling drunk—as Charlene cleaned blood off his face with a wet towel. He went to the bathroom, noticed cuts on his face, and proceeded to the kitchen. Charlene was distressed, and told him what had happened the previous night.
She told him they had set out to commit a robbery but it somehow turned into a kidnapping. They were both armed—defendant with the FIE, and she with a .38-caliber revolver. She said they had taken the victims away from town to leave them for a long walk back, but that when Miller attacked defendant, he jumped up and shot Miller from behind. She said she had later killed Sowers to cover up the crime and “protect [their] future.”
Defendant explained they then cleaned the car and attempted to cover the crime by discarding various items, including Sowers’s jewelry. He said he believed Charlene’s story, but felt he had to see for himself, so he had her drive him to the scene of the Sowers killing. When he saw Sowers’s body, he was angry: “it was bad enough for one of us to be a murderer, and now we were both murderers.” They drove back to his apartment and prepared to leave. Charlene went to her parents’ house, and defendant called her there. She told him the police were there on a “missing persons report,” but not to worry because they knew nothing. They went out driving again, this time to look for Miller’s body, but it became dark and they could not find it. He spoke with Charlene’s mother, told her they were leaving, and they departed for Reno to start a new life.
They called Charlene’s mother for more money. She wired them money under Charlene’s maiden name, and they were eventually arrested when Charlene’s mother cooperated with the FBI and disclosed their location.
On cross-examination defendant said he “believed” he shot Miller with his FIE, but he denied shooting Sowers. He claimed he could not remember clearly what happened that night (he asserted that in addition to the marijuana and alcohol, he remembered taking PCP and LSD on the evening in question), but he did remember intending to rob, and he thought he remembered exiting the car and confronting Miller. This, defendant asserted, was consistent with his and Charlene’s one previous robbery: in 1979, they abducted a man in parking lot, robbed him, and left him elsewhere. Defendant denied he was looking for someone to rape.
He could not explain why, if Charlene killed Sowers to cover his own killing of Miller, Sowers was killed far away from where Miller was killed. He theorized that Charlene must have “dr[iven] around... trying to figure out what ... to do.”
After they were arrested, defendant and Charlene rehearsed some alibis. One centered around a story that defendant knew Miller and was engaged in a drug deal with him, and that the four met willingly in the parking lot and returned to defendant’s apartment, and “we just went wherever.”
On cross-examination defendant was confronted with numerous transcripts and reconstructed torn notes of jailhouse conversations and messages between him and, inter alios, Mrs. Williams, in which he appeared to be fabricating various alibis. He admitted he knew that the jailhouse visits were monitored and taped. He claimed that at various points he, Charlene, Mrs. Williams, and others had fabricated numerous, sometimes conflicting, false alibis, and that, among the various stories disclosed by the jailhouse transcripts and notes, he could not remember which ones he had originated and which ones were invented by others. He did remember that he initially planned to shoulder the blame to protect Charlene and, at the same time, construct an alibi that would relieve him from as much responsibility as possible. And, he stated, he “coordinated” the development of an alibi involving a friend of his who would testify that she saw defendant leave his apartment with the two victims and return alone only twenty minutes later—insufficient time to have driven to the sites where the bodies were located.
When he discovered Charlene had begun to “create her own alibi stories,” however, he decided no longer to protect her, but to abandon all stories and tell his attorneys the truth. He admitted he had told various jailhouse visitors that, as a last resort, he would put on a diminished capacity defense, but he insisted that he in fact did suffer diminished capacity on the evening in question.
The prosecutor pressed defendant on whether his motive on November 1 and 2 was to kidnap and rape, or merely to rob. Defendant maintained that he believed the motive was robbery, and denied any intent to rape.
Defendant then called a number of witnesses. T.B., who had been married to defendant’s half-brother, said Charlene had never told her of defendant’s violent sexual fantasies. On cross-examination, however, she admitted she did not know Charlene very well. They had not spoken about personal problems concerning their respective husbands, and she had not seen Charlene in the two years before the killings.
D.B., the manager of the Sports Room bar, testified defendant was sober when he arrived on the Saturday evening in question, that defendant smoked marijuana with the former owner, W., and that defendant was “pushy” and persistent in asking him (B.) for permission to cheat at cards. B. testified he left the bar about three hours later—at 10 p.m.—and that defendant was playing pool and was loud, but was not stumbling or having difficulty walking. A defense investigator testified that B. had told him defendant was “pretty intoxicated” and boisterous.
A former patron of the bar at which defendant worked testified that the gun used to shoot one of the bullets into the ceiling was silver, and not dark. A store clerk stated his records showed Charlene Williams purchased an FIE gun on March 26, 1980, and returned two days later with a dark-haired woman to arrange to purchase a Baretta instead. His records also showed Charlene Williams purchased a box of Winchester .25-caliber automatic ammunition on August 22, 1980.
A firearms expert testified that although he could not connect the cartridge casings found near both of the bodies to the bullets found in the bodies, he could determine that the casings from both scenes were fired from the same weapon. He also testified that the cartridge casings and bullets found at the two scenes could have been fired from an FIE gun.
P.D., defendant’s cousin, testified that in 1980 Charlene showed her a chromed FIE gun. On cross-examination she admitted that defendant had only recently asked her about that occasion, that she had. not mentioned the chromed FIE to investigators previously, and that her mother— who had also assertedly seen the chromed FIE—was unable to testify because she was at work at a Sacramento hospital, and was ill.
R.D., who lived at the lake near where Miller’s body was found, testified he heard three gunshots about 7:20 a.m. on Sunday, November 2, 1980. Miller’s body was discovered about 1,800 feet from D.’s house.
An expert testified that Miller could not have been facing his assailant when he was shot. There was no evidence of a struggle at the scene, nor was there such evidence on Miller’s body. The body showed two superficial abrasions, but no significant trauma to the hands or face.
Dr. Delbert Wilcox, a forensic psychiatrist, testified that based on defendant’s use of drugs and alcohol since childhood, and on defendant’s frequent amnesia from drug and alcohol use, he believed defendant was very intoxicated on the night of the killings, and possibly under the influence of marijuana, LSD and PCP. He did not believe defendant was able to premeditate and deliberate on the night in question. He admitted on cross-examination, however, that when he first examined defendant he came to the opposite conclusion, i.e., nothing preventing defendant from premeditating and deliberating on the night in question.
Wilcox conceded that after his first interviews with defendant, he found no grounds for concluding that, at the time of the crimes, defendant lacked the capacity to premeditate, deliberate, and intend his actions. About six days later, after telling defendant of his conclusion, and after further interviews in which defendant explained that he had consumed alcohol and drugs on the night in question, Wilcox concluded otherwise. He conceded that defendant had a “strong bias in exaggerating the amount of alcohol that he consumed and the drunkenness that he actually experienced at that time.” Taking that into consideration, however, and in view of the prosecutor’s opening statement, which according to Wilcox corroborated defendant’s story that he was very drunk on the night in question, as well as evidence that defendant was seen smoking marijuana in the bar, Wilcox concluded that he could not say beyond a reasonable doubt that defendant was able to deliberate or premeditate in a mature and meaningful way on the night of the offenses.
Wilcox also conceded that a number of facts, if true, supported the conclusion that defendant was able to think rationally on the evening in question: he held both victims at bay while Charlene drove; the drive provided ample time within which to premeditate and deliberate a killing; and Miller’s shoes were removed at the scene, apparently to reduce the chance of escape. Wilcox also admitted that, given the evidence, defendant was capable of forming the intent to kill Miller, and he could not rule out the possibility that the events in question were the product of paraphilia, a disorder involving imaginary and fantasy sexual behavior.
3. The prosecution’s rebuttal evidence
In response to Dr. Wilcox’s testimony, the People presented Dr. Lee Coleman, who testified that psychiatrists have no special skills for determining a person’s state of mind at a given point in time. Instead, he asserted, a judge or jury could make such determinations just as accurately, simply by considering evidence of the actor’s behavior and speech at the time of the acts in question. He stressed the difference between psychiatry practiced for the purpose of therapy, and forensic psychiatry.
Coleman asserted that a person cannot commit an act without also having the intent to commit that act, and that a person cannot be intoxicated to such an extent that he can commit the acts necessary for a crime without also having the specific intent to commit the crime. He stated that a person so debilitated by drugs that he could not form the requisite intent would also be unable to perform the physical acts constituting the crime. He also asserted that defendant’s claim of amnesia was medically inconsistent with his ability to remember how many drinks he consumed, but nothing else, on the night in question. Finally, he stated that, even assuming a person has amnesia concerning certain events, that does not mean the person lacked the capacity to form intent at the time he participated in those events, and he found nothing in the facts supporting a conclusion that defendant lacked the ability to premeditate or deliberate. To the contrary, he stated, the facts—including Charlene’s testimony about defendant’s statements to Miller and Sowers during the car drive—supported the opposite conclusion.
In order to rebut, inter alia, defendant’s claims of diminished capacity and lack of intent to rape or kill, the prosecutor moved to introduce evidence of defendant’s involvement in two similar killings. After extensive in camera hearings the court agreed to allow the evidence, but granted defendant a three-week continuance to prepare his defense to the “other crimes” evidence. When trial reconvened, Charlene resumed the stand. The court instructed the jury that it was about to hear evidence of other crimes by defendant, but that it was to use that evidence only to help determine defendant’s intent at the time of the charged crimes, and not as evidence of defendant’s character. The following story unfolded:
Charlene first testified she last saw the FIE automatic in September 1978, when defendant threw it in the river after killing two young women on the previous evening. She explained that in mid-September 1978—two weeks before she married defendant, and two years before the commission of the crimes charged in the present case—she drove with defendant in their van to a shopping mall. On defendant’s orders, she searched for a young woman to lure into the van in order to fulfill defendant’s violent sexual fantasy. In the late afternoon defendant pointed out two girls, Kippi Vaught and Rhonda Scheffler, and ordered Charlene to get them. Charlene approached the girls, invited them to a party, and brought them back to the van.
Defendant entered the van, pulled the FIE automatic pistol from Charlene’s purse, and told the girls they were being kidnapped. He taped their ankles and hands with white adhesive tape, and drove up Highway 80 to a frontage road near the Sierra foothills town of Baxter. He took the girls and a blanket from the van, and told Charlene to return to Sacramento and make sure she was seen, to clean the van, and to return about midnight with their other car.
Charlene went back to Sacramento, visited a friend, and cleaned out the van. She returned to the Baxter area early—about 10:30 p.m.—and gave a signal by honking the horn and flashing the car lights. Defendant emerged from a clearing and said he was glad to see her because he was cold. He walked back to the clearing and returned with the two girls, put them in the backseat, and directed Charlene to drive to another area south of Sacramento, near the town of Sloughhouse. There, he ordered Charlene to stop the car and to turn up the radio. Outside the car he hit each girl with a tire iron, shot each in the head, and returned to the vehicle. He remarked that one of the bodies was “still wiggling,” so he got out and fired more shots. They returned to their apartment.
The next day, after removing cash from the girls’ purses, they threw the remaining items, as well as the FIE gun and the tire iron, in the river. Defendant told Charlene that he “did not touch” Vaught, who was the heavier of the two.
On extensive cross-examination that lasted well over three days, defendant attempted to impeach Charlene by questioning the accuracy of her initial statements about the various killings, suggesting she had something to gain by implicating him in the various crimes, and questioning why she had waited four years to disclose the Vaught/Scheffler killings. He revealed that Charlene’s initial plea bargain proposal was refused by the prosecution, and suggested that she had fabricated the “other crimes” stories with the assistance of her own attorneys in order to obtain a more favorable plea agreement. He spent considerable time establishing that Charlene “had a pretty rough idea [about where Vaught and Scheffler were killed],” but that she did not know “the exact spot.” In addition, he questioned Charlene about whether she first stated defendant used a crowbar, instead of a tire iron, to beat the two girls. This and similar questioning was apparently designed to discredit Charlene’s testimony by suggesting that her memory was imperfect.
The prosecution presented rebuttal testimony from Charlene’s attorneys to counter defendant’s theory that Charlene’s attorneys had obtained information on the Vaught/Scheffler killings and had given that information to Charlene so she could fabricate additional evidence against defendant. The prosecution then presented additional testimony to show defendant’s participation in the Vaught/Scheffler killings. That testimony presented the following picture.
Vaught and Scheffler’s bodies were found two days after they were killed. Both victims’ hands were tied behind their backs with string, and there were remains of adhesive tape on their ankles and forearms. There were lacerations on Scheffler’s scalp consistent with being struck by a blunt instrument such as a tire iron. She died from three gunshot wounds, inflicted by a gun that was fired while in contact with her head. Vaught had likewise been shot in the head at point-blank range, and had been struck with a similar blunt instrument. The pathologist found semen in Scheffler’s vagina and panties, but not in Vaught’s.
Experts testified that the bullet casings discovered at the scene and the bullets found in the bodies came from the same weapon, and the markings were “consistent with” an FIE firearm. In addition, the seminal stains were “Type A” antigen of the AOB system from a “positive” secreter. Scheffler had “Type O” antigen and her husband was a “Type O positive” secreter. Defendant is a “Type A positive” secreter; accordingly, his semen type is consistent with that found on Scheffler.
Another expert testified that fibers recovered from Scheffler’s clothing matched fibers from the carpet of defendant’s van. Finally, a plant taxonomist testified that although remnants of Bracken Fern were found on the victims’ socks, Bracken Fern does not grow in the Sloughhouse area where the victims’ bodies were found. Bracken Fern is a common ground cover in the Baxter area, however. All of this evidence strongly supported the prosecution’s theory that defendant transported the victims from Baxter to Sloughhouse, where he killed them.
4. Defense rebuttal
Defendant presented a third party defense to the Scheffler/Vaught killings. An employee of a drug store at the mall from which Charlene claimed she lured Scheffler and Vaught testified that Scheffler and Vaught were in the store about 3 p.m. on the day they disappeared. According to the employee, they accompanied a Mexican male who purchased four cans of motor oil. The employee later saw Scheffler and Vaught in the parking lot with the Mexican man, standing near a red Firebird automobile with Michigan bicentennial license plates; the three appeared to be friends.
An employee of another store testified that about 3:15 p.m., as he was leaving work to drive home, a maroon Firebird with a light interior and red, white and blue out-of-state license plates was in front of him. The occupants—two Black men—slowed down in an intersection and started a conversation with two White teenage girls, whom the witness identified as Scheffler and Vaught. At that point the witness drove away.
Four other persons, some of whom knew Scheffler and Vaught, were driving past in a truck at approximately the same time. Initially, two of these persons testified. They saw a maroon or “burgundy” Firebird with Michigan bicentennial license plates and two Black men inside. They noticed the two Black men speaking to Scheffler and Vaught, saw the car passenger open his door, and watched as the two girls prepared to enter the car. At this point one person in the truck yelled “nigger lover.” The girls turned to look at the truck, then got in, and the Firebird was driven away. Later in the trial a third occupant of the truck, J.A., testified to the above events as well. She believed these events occurred after 3:30, but certainly before 4 in the afternoon. She recalled that she had called out to the two girls by name as they got into the car, and that once inside the car, Vaught appeared fearful. It appeared to her, however, that the girls entered the car voluntarily, so Anderson did not then think to call the police.
Between 5:30 and 8 p.m. a married couple saw a red Firebird with out-of-state license plates drive slowly past their barn near the town of Galt, which is about five miles from Sloughhouse, where the bodies were found. They noticed that the driver and passenger in the front were Black males, and that two young girls were in the back of the car. Later—after 8 p.m.— another couple, J. and V.K., were driving to their home in Galt when a very slow maroon Firebird or Camaro entered the road in front of them. Mr. K. was forced to brake hard, and came within 10 to 20 feet of the car. He noticed that the car’s interior light was on and that two Black men in the front seats were acting “funny.” He eventually saw the car turn onto Meiss Road, near the Sloughhouse Restaurant. Virginia K. saw the same events. She recalled the car had out-of-state license plates, and also described one or possibly two White girls in the back of the car. She also stated that it appeared the light was on in the car in order to allow the front passenger to read a map. She admitted that two days after the event—after news of the discovery of the bodies had broken—she was interviewed by sheriff's investigators, at which time she told them she could not be sure, but she “may have seen” a third “person” in the backseat of the car. She did not mention seeing two persons in the backseat. One of the sheriff’s investigators who interviewed Mrs. K. testified that she never told him she had seen even one girl in the car, and she did not tell him that the car had turned onto Meiss Road.
About 8:30 p.m., R.S., while working on his father’s Sloughhouse ranch, saw car headlights near the Meiss Road entrance to his father’s property in the area where the bodies were eventually found. Because of the darkness he could not tell what kind of car it was. He did not bother to go to the area to investigate or ask the occupants to leave because it was not unusual to see cars on the property, and when he next looked the lights were not on, so he assumed the car had departed.
In order to rebut defendant’s suggestion that Scheffler and Vaught were kidnapped and murdered by the two Black men in the Firebird, the People presented the testimony of the assistant manager and manager of a shoe store at the shopping mall where Charlene testified she had found the girls. They recounted that Scheffler entered the store at 2:30 p.m. on September 11, asking for a cash refund for a pair of shoes. She was told she needed a receipt in order to obtain a cash refund. She returned between 4 and 5:30 p.m. with the receipt, and received the refund.
Penalty phase evidence
Near the conclusion of the guilt phase, defendant decided that if a penalty phase were necessary, he would not represent himself, but would accept appointment of counsel. He was represented at the penalty phase by Richard G. Fathy.
1. The People’s case
The People presented evidence that defendant had committed two additional murders, and various other crimes. Charlene, several police officers, and others provided the following testimony.
a. Linda Aguilar. In June 1980—five months before the Miller/Sowers killings—defendant and Charlene drove through Oregon on the coast highway. There they met Linda Aguilar, five months pregnant, hitchhiking to a nearby town. After she accepted defendant’s offer of a ride defendant pulled a gun, tied her hands behind her back, placed her on a bed in the rear of the van, and drove to a meadow where he ordered Charlene to walk away. Fifteen or twenty minutes later, when he ordered Charlene to return, she noticed that Aguilar was dressing. Defendant retied Aguilar’s hands and drove to a beach. Despite telling Charlene he would not “do anything” to Aguilar because she was pregnant, he took her from the van, knocked her unconscious, and strangled her. He buried her in the sand, using a hubcap to dig the grave.
The body was discovered two weeks later. She was dressed in clothing described by Charlene, and her ankles and wrists were bound by yellow nylon rope. She had been killed by a blow from a blunt object. Because of decomposition, it could not be determined if she had been strangled or sexually assaulted. After her arrest, Charlene directed police officers to the area where Aguilar had been killed and buried.
b. Virginia Mochel. A month later—in mid-July 1980—defendant and Charlene stopped at the Sail Inn bar after spending the day fishing in the Sacramento Delta. Defendant told Charlene he wanted to rob the bar and get “her too,” referring to the bartender, Virginia Mochel. After the bar closed they kidnapped Mochel and took her to defendant’s home. On the way she pleaded with him, saying she was concerned for her children.
Defendant ordered Charlene to go inside, and he stayed in the van with Mochel. When Charlene eventually returned they all drove to where defendant and Charlene had fished earlier in the day. Defendant went to the back of the van, ordered Charlene to turn up the radio and not watch him, and strangled Mochel. They drove back home. Mochel’s body was discovered three months later near a fishing area, her hands bound by fishing line. The body was severely decomposed, so it could not be determined if she had been sexually assaulted.
A detective investigating Mochel’s killing contacted defendant and asked him if he had been at the Sail Inn on the night of Mochel’s disappearance. Defendant admitted he had been there, but claimed he had been drunk and remembered nothing of the evening’s events. When the detective later tried to contact defendant, Charlene falsely told him defendant was a truck driver and was often out of town. After her arrest, Charlene led police officers to the exact spot where Mochel’s body had been found.
c. The escape plan. While incarcerated in jail awaiting trial, defendant conspired with another inmate, Andrew B., to escape. Sheriff’s deputies found under B.’s mattress a torn note reading, “Could be a ticket out of here. Lay dead. There is a snitch on the tier but I don’t know who. Can you get it. Put it under the heater outside your cell.” In a hidden location in front of B.’s cell deputies found a jail-made shank, and in defendant’s cell they found mattress covers in torn strips. A handwriting expert testified that in his opinion defendant wrote the note found in B.’s cell.
d. M.E. Gallego. The jury learned by stipulation that defendant had committed acts of sexual intercourse, oral copulation and sodomy on his daughter, M.E. Gallego, from the time she was 6 or 7 until she was 14. When M.E. resisted, defendant told her the sex acts were “only natural.” He also beat her, and once chipped her tooth by hitting her in the jaw. M.E. reported these incidents to the police in 1978. In addition, a stipulation to defendant’s prior criminal record—including an adjudication for lewd conduct when he was 13 and an adjudication for armed robbery when he was 16—was entered in evidence.
2. Defense evidence
An attorney from Mississippi, Frank J. Hammond, Jr., testified that he had represented defendant’s father in a murder case in the mid-1950’s. He stated that defendant’s life closely paralleled that of his father, and that the similarities between the two men were both eerie and shocking.
On direct examination Hammond read to the jury a lengthy letter written to him by defendant’s father, who was at the time in jail awaiting trial for killing a police officer. The letter described the writer’s state of mind at the time he killed the officer, and read in part as follows.
“He was afraid and he kept begging me not to kill him, but I knew I was, and that thought made me feel good inside .... I told him I wouldn’t, but I knew I was, and I could hardly wait to kill him .... I knew they would find out who killed this cop, but that didn’t matter to me because I was going to have a good time killing this cop. Still he begged me not to kill him, said he had a wife and children, but I never really heard him for I only had one thought in mind .... I made him start walking, and he knew then I meant to kill him .... I fired the first shot, and he fell to the ground moaning, I fired again but missed, so I walked over to him and put the barrel of the gun to his head and shot again. He laid still after that, and I turned around and got into his car, lit a smoke and drove off. In killing him I felt no guilt at all. What I did I was justified in doing .... When I killed this cop, it made me feel real good inside. I can’t get over how good it did make me feel, for the sensation was something that made me feel elated to the point of happiness, for I had achieved in putting to death one of my tormentors. After killing him, I wanted to kill some more... .”
Hammond explained he had attempted to prove defendant’s father was not guilty by reason of insanity, but was unsuccessful. After defendant’s father was convicted of murdering a police officer, he threatened to kill the district attorney and the judge as well. While the case was on appeal, he escaped and killed another police officer. Defendant’s father was eventually executed in 1955.
Defendant’s mother testified by telephone. She recalled defendant suffered physical and emotional abuse as a child. She testified she married defendant’s father (her third husband) at age 18, and contracted rheumatic fever and uremic poisoning during her pregnancy. Defendant’s father left before defendant was born, and defendant never met or communicated with him. His mother remarried a fourth time but that stepfather beat defendant and would not allow him to show affection toward his mother.
Defendant’s mother asserted his troubles could be traced to Charlene. She admitted, however, that she knew he had mistreated and sexually molested his daughter M.E. before meeting Charlene, and that between the ages 13 to 17 he was incarcerated much of the time—the first occasion for a sexual offense committed on a 7-year-old girl. She also testified defendant suffered head injuries from a car accident in 1968 or 1969.
Dr. Charles Golden, a clinical psychologist with a specialty in clinical neuropsychology, testified defendant was not insane and had normal intelligence, but the right frontal lobe of his brain was damaged, and this condition was aggravated by alcohol and drugs. Dr. Golden felt defendant’s brain damage most likely stemmed from the late 1960’s car accident, after which defendant was in a coma for a week, but he noted that defendant had suffered numerous prior head injuries dating back to when he was five and fell from a tree. The result of this frontal lobe brain damage, Dr. Golden stated, was that defendant did not see the world the way others did. Persons with such damage have difficulty discriminating one emotion from another; are typically manic-depressive; and, because they may feel others are conspiring against them, attempt to manipulate others.
A psychiatrist, William Reed, testified defendant suffered from a severe personality disturbance, the primary feature of which was the persistence into adulthood of infantile characteristics. He “trusted” Dr. Golden’s conclusion that defendant suffered organic brain problems. After exploring defendant’s family history, he also believed defendant had inherited various “antisocial personality traits” from other family members who had severe personality disturbances. He felt defendant’s emotional development had been retarded: although he had wished for a strong and protective father, he was angry with his own father, whom he never met; also, defendant wished for his mother’s love and attention, and he was furious with her for hurting him. He felt defendant’s victims were viewed by defendant as extensions of his mother, and his feelings toward his mother were displaced to them. He felt that defendant’s own son—Gerald Armond Gallego, Jr., might face similar problems if, like defendant, he was unable to at least receive letters and communications from his father. Finally, Reed agreed that defendant was not insane but that he was severely disturbed.
Hans Zeisel, a professor at the University of Chicago, testified that in his view (and the consensus view of other experts) the death penalty has not been shown to have a deterrent effect. He pointed out that the present case demonstrates the death penalty apparently had no effect on defendant, who had not been deterred from committing his crimes even though he knew his own father had been executed.
Finally, Dr. Craig Haney, a psychologist with a law degree who specialized in the psychology of imprisonment, described the physical security that would face defendant if he were sentenced to life in prison without the possibility of parole. He testified specifically about the intensive security conditions at San Quentin, and asserted that a person sentenced to life without possibility of parole would never be able to leave the walls of the prison.
Six months after the guilt phase trial began the jury heard closing arguments, was instructed by the court, and retired to deliberate. About two and one-half hours later it returned a verdict of death.
II. Guilt phase issues
1. The trial court’s rulings on defendant’s self-representation and related motions
Defendant makes numerous challenges relating to the trial court’s rulings on his various counsel and self-representation motions. In order to analyze these claims we must set out in some detail the procedural history.
Defendant was arraigned in Sacramento County, and he thereafter moved for a change of venue. In late March 1981, before that motion was resolved, he filed the first of many motions for a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]), asserting that his counsel, Deputy Public Defender Donald Manning, had failed to file requested motions or secure the services of an investigator. Pursuant to Marsden, supra, defendant asked the court to discharge Manning and/or to appoint a different attorney. When a hearing was held, however, defendant told the court he was satisfied with Manning, and would withdraw his Marsden motion.
Three months later defendant filed another Marsden motion, seeking substitution of Manning for his failure to file, inter alia, a suppression motion. Defendant’s concerns were resolved to his satisfaction after discussing the matters with the court. In September 1981, however, defendant again raised the counsel issue, claiming a conflict of interest had arisen between him and Manning because Manning had made promises that he had not fulfilled. At a hearing on these matters defendant requested new counsel. After a subsequent in camera hearing the court denied defendant’s motion to relieve Manning. Defendant then wrote to the court, claiming a “complete and total breakdown in communication” between himself and Manning, filed a declaration of conflict between attorney and client, and formally requested substitution of counsel. At a later hearing, however, defendant elected not to pursue his counsel motions, in favor of waiting for a ruling on a previously filed change of venue motion. Still later—in early 1982—defendant filed another declaration of a conflict with Manning. After a hearing the court denied defendant’s request for substitute counsel, stating it had heard no new evidence establishing a true conflict.
In March 1982, on Manning’s motion and pursuant to Penal Code section 1095, the court appointed Richard G. Fathy as second counsel for defendant. In June of that year defendant filed a Faretta motion (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]), seeking to discharge both counsel and proceed in propria persona. Defendant agreed the court could defer ruling on the Faretta motion until after it ruled on his pending motion for change of venue. When the court granted the change of venue, the case was transferred to Contra Costa County, where defendant immediately renewed his Faretta motion.
Judge Spellberg, who eventually presided over defendant’s trial, conducted the Faretta hearing. After hearing defendant in camera, the court posed the question whether defendant should be examined by a psychiatrist pursuant to Penal Code section 1368 (all further statutory references are to this code unless otherwise stated) to determine if he was competent to stand trial. Defendant, his counsel, and the prosecutor all opposed the court’s suggestion, and defendant asserted he would not participate in any such interview. After further discussion the court decided an examination would not be appropriate; it found defendant’s responses to be intelligent, alert and bright, and proceeded to consider the Faretta motion.
The court questioned defendant thoroughly and advised him of the consequences of representing himself. The court specifically advised defendant that “if you are dissatisfied with the counsel you have presently and may wish to substitute counsel, the court would entertain that as an alternative to your representing yourself.” Defendant asserted he did not want substitute counsel, he knew his case better than anyone else, and he wanted to represent himself.
The court gave defendant a day to reconsider his request, and then brought in Justice Channell, then a superior court judge, to help explain to defendant the pitfalls of proceeding in propria persona. After Justice Channell described his experiences with defendants who represented themselves in major cases, and after the trial court again advised defendant of the dangers of self-representation, defendant stated he had considered the matter carefully and still wanted to represent himself. The court advised defendant that he would not be able to stop the case in the middle of trial by announcing that he had changed his mind and wanted a lawyer. Defendant stated he understood, and the court, concluding defendant appeared competent to represent himself, granted his Faretta motion. The court also appointed a third attorney—Thomas Maddock—as “advisory” and “standby” counsel for the guilt phase, and stated that it would appoint Fathy to handle the penalty phase if circumstances warranted.
During voir dire defendant refused to communicate with Maddock, and repeatedly objected to the court in chambers about Haddock’s presence. After voir dire was completed defendant successfully moved to have Mad-dock dismissed.
After the trial began defendant complained to the court that he was having difficulty making appropriate objections. Approximately two months after jury selection commenced, and about one month into the prosecution’s case-in-chief, defendant—after failing to cross-examine Charlene’s mother and experiencing difficulty cross-examining Charlene—told the court in chambers, “The bottom line is I don’t know if I can continue .... I would respectfully request... that my lawyers be reassigned to my case.” He explained that he had not wanted to impeach his former mother-in-law, and that he had “emotional” problems cross-examining Charlene. The trial court responded, “I can’t reassign a lawyer at this particular point in the case. If you wish me to get advisory counsel to come in, I will get advisory counsel. But I warned you when we started this case that I was unprepared to allow the case to be stopped in the middle, [fl] I cannot conceive of any lawyers willing to come in at this point. If Mr. Manning and/or Mr. Fathy wish to come into this case at this point and take it up at this point, I will assign them. But I know they are going to be unwilling to do so. But I will certainly contact them.”
Defendant stated that if Manning or Fathy refused to return he would continue to represent himself, and that he refused to allow Maddock to assist him. The court told defendant that it could attempt to locate other attorneys willing to enter the case if Manning and Fathy declined, and defendant responded he doubted any other lawyer would be willing to do so.
The court contacted both Manning and Fathy and asked them to return to the trial after being granted a continuance. Both attorneys declined, saying that because they had not participated in jury selection or heard the prior testimony, they would not return unless the court granted a mistrial. The court explained to defendant that in light of his earlier warnings about defendant’s changing his mind in the middle of trial, the court would not grant a mistrial. The trial resumed with defendant continuing to represent himself.
At various later times defendant complained in chambers that he was having difficulty cross-examining Charlene. When the prosecution proposed to introduce, as “other crimes” evidence, testimony about the Vaught/ Scheffier killings, defendant again asked the court to appoint Manning and/or Fathy. The court again contacted Manning and Fathy, but again each refused to reenter the case unless a mistrial was granted, and again the court stated it saw no grounds for so doing. Finally, for the third time— during the prosecution’s rebuttal—defendant announced, “this trial is not how I expected trial to be,” and asked the court to order Manning to return to the case. The court reminded defendant that it had spoken numerous times with both Manning and Fathy, and that both refused to reenter the case unless a mistrial was granted, which the court refused to do. The court noted that it had attempted to find other attorneys willing to enter the case without a mistrial being granted, but was unable to locate any such counsel. The court allowed defendant to telephone Manning personally to attempt to convince him to return, but Manning held firm and refused to do so. As noted above, Fathy eventually agreed to return to the case to represent defendant at the penalty phase.
a. Waiver of counsel. Defendant asserts he did not make a knowing or intelligent waiver of counsel. (Faretta, supra, 422 U.S. 806, 835 [45 L.Ed.2d at pp. 581-582].) The record as a whole belies his claim, and demonstrates that the court cautiously and at length informed defendant of the dangers of self-representation, and that defendant freely elected his course despite all advice to the contrary because he felt he could present his case better than anyone else. (See People v. Bloom (1989) 48 Cal.3d 1194, 1225 [259 Cal.Rptr. 669, 774 P.2d 698].)
In his reply and supplemental briefs defendant cites numerous examples of his confusion over legal and other matters during the course of the six-month trial. It is hardly surprising that a lay person granted self-representation rights would find various aspects of trial confusing, and might present aspects of his case to his own detriment, but it is also irrelevant to the question whether the waiver of counsel was knowing and intelligent. (See Ferrel v. Superior Court (1978) 20 Cal.3d 888, 891 [144 Cal.Rptr. 610, 576 P.2d 93].) As defendant himself stated to the court during the Faretta hearing, “Your honor, my knowledge of the law is not one of the factors that qualifies me for Faretta .... Whether I stumble through Witherspoon or sail through like a Supreme Court Justice would not be a qualification.”
In a related argument, defendant, citing cases in which defendants elected to proceed in propria persona in the face of trial courts’ erroneous refusals to consider appointment of substitute counsel (People v. Cruz (1978) 83 Cal.App.3d 308 [147 Cal.Rptr. 740]; People v. Hill (1983) 148 Cal.App.3d 744 [196 Cal.Rptr. 382]), also suggests the court should have interpreted his Faretta motion as a Marsden (supra, 2 Cal.3d 118) motion for substitution of counsel. He concludes the court erred in failing to determine whether defendant merely sought appointment of different counsel. As explained above, however, the Sacramento Superior Court addressed and resolved defendant’s Marsden concerns. Six months later, after the matter was transferred to the Contra Costa Superior Court, Judge Spellberg expressly asked defendant whether he sought replacement counsel, and told defendant the court would be willing to entertain such a request. Defendant plainly responded he did not seek replacement counsel, and that he wanted only to represent himself because he felt he was the best advocate for his cause. We conclude, as we have in other recent cases, that the court did not err in failing to treat the Faretta claim as a Marsden motion for substitution of counsel. (See People v. Crandell (1988) 46 Cal.3d 833, 854-855 [251 Cal.Rptr. 227, 760 P.2d 423] [“A request for self-representation does not trigger a duty to conduct a Marsden inquiry... or to suggest substitution of counsel as an alternative.”]; People v. Burton (1989) 48 Cal.3d 843, 855 [258 Cal.Rptr. 184, 771 P.2d 1270].)
b. Defendant's competence to waive counsel. Defendant suggests that because the court at first considered requiring defendant to undergo a competency or psychiatric examination under section 1368, it erred in later accepting defendant’s waiver of counsel. The record discloses, however, that the court was simply being cautious in suggesting the need for an examination, and it later stated that its initial concerns about defendant were incorrect. Indeed, the court concluded defendant did not appear to be any less competent than “anyone else in this courtroom.” The record plainly establishes that defendant had the mental capacity to realize the probable risks and consequences of self-representation.
c. Failure to order a competency hearing. In a related argument, defendant suggests the court abused its discretion in failing to order a section 1368 competency hearing. First, contrary to defendant’s view, People v. Hale (1988) 44 Cal.3d 531 [244 Cal.Rptr. 114, 749 P.2d 769] and People v. Marks (1988) 45 Cal.3d 1335 [248 Cal.Rptr. 874, 756 P.2d 260] are plainly inapposite; in those cases, the trial courts ordered hearings under section 1368, but the hearings were never held. Here, as noted above, the trial court never ordered such a hearing.
The record reveals the court’s preliminary concerns about defendant’s competency to stand trial were resolved to its satisfaction after discussions with defendant and both counsel. Because there was no “substantial evidence” (such as a sworn statement of a mental health professional that defendant was incapable of understanding the purpose and nature of the proceedings) of defendant’s incompetence to stand trial, the decision to order such a hearing was left to the court’s discretion. (People v. Pennington (1967) 66 Cal.2d 508, 518 [58 Cal.Rptr. 374, 426 P.2d 942].) On this record we do not find the court abused its discretion.
d. Conduct of “standby counsel." As noted above, Attorney Mad-dock was appointed standby counsel at the start of trial, but was relieved at the conclusion of voir dire. Defendant refused to speak or communicate with Maddock, objected to Maddock’s passing a note to him, and at various points complained to the court that he did not want the jury to receive the impression that Maddock was assisting him. To this end the court granted defendant’s request that Maddock be instructed to sit far away from him, and that when it became necessary to hold discussions in chambers, Mad-dock should not enter the judge’s chambers with defendant, but rather should use a side door.
Despite these precautions defendant insists Maddock’s presence was so intrusive he was denied his right to self-representation, citing McKaskle v. Wiggens (1984) 465 U.S. 168 [79 L.Ed.2d 122, 104 S.Ct. 944]. In that case the standby counsel was considerably more visible to the jury than was Maddock, and yet the high court rejected a claim of excessive interference with self-representation rights. For example, counsel in McKaskle, at the trial court’s request, questioned one of the defendant’s witnesses in order to lay a foundation for introduction of a document, and the defendant then resumed his examination of the witness. The court found “irreproachable” this and other aspects of standby counsel’s involvement in the “basic mechanics” of jury trial. (Id., at p. 185 [79 L.Ed.2d at pp. 137-138].) In contrast, Maddock was not even introduced to the jury, defendant never consulted with him in front of the jury, and he was instructed to sit away from defendant. We conclude McKaskle provides no support for defendant’s claim of unreasonable interference.
e. The court's rulings on defendant's motions to change from self-representation to counsel representation. Defendant asserts the trial court failed to exercise discretion or judgment in the face of his midtrial requests for appointment of counsel, and that reversal is required.
In People v. Windham (1977) 19 Cal.3d 121, 128 [137 Cal.Rptr. 8, 560 P.2d 1187], we set out various factors a trial court should consider when faced with a midtrial request to change from counsel representation to self-representation. We expressed no opinion about the inquiry needed in the opposite situation, i.e., when a self-represented defendant seeks appointment of counsel midtrial. (See id. at p. 131, fn. 7.) Subsequent Court of Appeal decisions have addressed that issue. In People v. Elliott (1977) 70 Cal.App.3d 984 [139 Cal.Rptr. 205], the court held: “Some of the factors to be considered are similar to the factors involved in the exercise of discretion by the trial court in ruling on a defendant’s request to change from counsel-representation to self-representation. Relevant factors should include, among others, the following: (1) defendant’s prior history in the substitution of counsel and the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney, [fi] As in Windham, a trial judge must establish a record based upon the relevant factors involved and then exercise his discretion and rule on defendant’s request for a change from self-representation to counsel-representation.” (Elliott, supra, 70 Cal.App.3d at pp. 993-994; see also People v. Cruz, supra, 83 Cal.App.3d 308, 321.)
In People v. Smith (1980) 109 Cal.App.3d 476, 484 [167 Cal.Rptr. 303], the court accepted the Elliott-Cruz factors, but added: “While the consideration of these criteria is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial.” We agree with Smith, and conclude that viewing “the totality of the facts and circumstances" the trial court here properly exercised its discretion.
As noted above, before trial defendant made numerous motions and declarations concerning his conflict with Manning and Fathy. Subsequently, however, he wanted only them to represent him. This history militates against defendant’s midtrial request.
Defendant stated he changed his mind because he felt he could not adequately cross-examine Charlene and her mother. By that advanced stage of trial, however, he had exhibited considerable knowledge of both trial tactics and trial procedure. In this setting, the court could have legitimately discounted defendant’s protestations, and concluded his future effectiveness would not be impaired.
The request came late in the guilt phase trial, after a substantial part of the prosecution case had been presented, and after defendant had a chance to perceive that things were not proceeding as smoothly as he had envisioned. Contrary to defendant’s claim that the court blindly held to its pretrial “warning” that defendant would not be allowed to change his mind about self-representation midtrial, the record shows the trial court on three occasions attempted, at defendant’s request and on his behalf, to bring former counsel back into the trial. And, contrary to defendant’s suggestion, the record does not suggest the trial court confined its search for appropriate counsel to Manning and Fathy and no one else. In fact, the record demonstrates the court attempted, unsuccessfully, to locate other counsel willing to enter the case and accept a continuance.
The court’s refusal, on these facts, to accede to counsel’s demand of a mistrial as the price of their return, does not render the trial court’s decision an abuse of discretion. The court was apparently willing to allow a continuance, and hence a delay of the trial, but was not willing to allow a mistrial, which the court felt was unwarranted under the circumstances. Although the court might have simply ordered Manning and Fathy to return to the trial on threat of contempt (see People v. McKenzie (1983) 34 Cal.3d 616 [194 Cal.Rptr. 462, 668 P.2d 769]), we are not prepared to say in these circumstances that the court abused its discretion in failing to do so. In sum, we perceive no abuse of discretion in the trial court’s rulings.
f. Defendant's presence during discussions with previous counsel. In his supplemental brief defendant asserts the court erred by conducting in-chambers discussions by telephone with Manning and Fathy without his presence and without his express waiver of presence. He asserts, inter alia, “[t]he proceeding was exceedingly important, as it determined whether counsel would reenter the case and what their specific reasons were for not reentering the case.”
“As a general rule, the accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him, and ‘[t]he burden is upon defendant to demonstrate that his absence prejudiced his case or denied him a fair and impartial trial.’ ” (People v. Hovey (1988) 44 Cal.3d 543, 573-574 [244 Cal.Rptr. 121, 749 P.2d 776].) In Hovey we held the defendant had no right to be present at an in-chambers hearing on his trial counsel’s competence.
The People suggest defendant waived his presence by acceding to the court’s stated plans to telephone former counsel and to solicit other counsel as well, apparently without defendant’s presence. We need not decide whether defendant waived his presence, however, because it is clear that in any event defendant cannot show that the telephone discussions between the court and former counsel bore a substantial relation to his opportunity to defend against the charges. Nor can he show that his absence from such discussions would have altered his former counsel’s decisions (we note that the court had offered defendant the opportunity to telephone former counsel personally), much less that his absence prejudiced his case or denied him a fair trial.
2. “Death qualification” and “fair cross-section” requirement
Defendant asserts the court erred by denying his motion for separate guilt and penalty phase juries, and in allowing voir dire “death qualification” of the jury. We have repeatedly rejected these claims (see, e.g., People v. McLain (1988) 46 Cal.3d 97, 106 [249 Cal.Rptr. 630, 757 P.2d 569]), and for the same reason do so here.
3. Wheeler error
Defendant, citing People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748], asserts the trial court committed prejudicial error by failing to make inquiry into his claim that the prosecutor was using his peremptory challenges to remove Blacks from the jury. As the People point out, however, the issue is waived because defendant failed to raise it at trial. (Cf. People v. Carrera (1989) 49 Cal.3d 291, 331, fn. 29 [261 Cal.Rptr. 348, 777 P.2d 121].)
At the start of a December 1982 hearing on defendant’s Buford motion (People v. Buford (1982) 132 Cal.App.3d 288 [182 Cal.Rptr. 904]; see also People v. Morales (1989) 48 Cal.3d 527, 545-549 [257 Cal.Rptr. 64, 770 P.2d 244]), the prosecutor clarified the scope of the hearing: “Your honor, I assume that this hearing is addressing itself to the limited issue of the so-called Buford motion. And from the defendant’s written motion he, as I understand it, is limiting his objections to the fact that he claims there was an underrepresentation of Negroes in the panels that were sent to this department and of ex-convicts. He claimed they were systematically excluded ... .” The court asked, “Is that correct, Mr. Gallego?.. .” Defendant answered, “yes.” Now defendant points to his comment some 55 transcript pages later—at the end of the Buford hearing—to the eifect that the prosecution had disqualified all Blacks who “did hit the jury box.” He asserts the court’s failure to inquire into his comment requires reversal under Wheeler, supra, 22 Cal.3d 258.
Defendant failed even to raise a Wheeler claim, let alone establish a prima facie case of misuse of peremptory challenges. No error appears.
4. Motions for a second change of venue or to sequester the jury
a. Change of venue. As noted above, the Sacramento Superior Court granted defendant’s change of venue motion. Both defendant’s counsel and the prosecutor agreed the trial should be held in neighboring Contra Costa County, approximately 50 miles from Sacramento, but defendant wanted the trial moved to Southern California. After the case was transferred to Contra Costa County, and after his successful Faretta motion, defendant moved for a second change of venue. He asserts the trial court erroneously denied his motion.
When faced with a colorable claim that a trial court’s denial of a change of venue motion may have denied the defendant a fair trial, the reviewing court must independently examine the record to determine “whether, in light of the failure to change venue, it is reasonably likely that the defendant in fact received a fair trial.” (People v. Williams (1989) 48 Cal.3d 1112, 1125-1126 [259 Cal.Rptr. 473, 774 P.2d 146].) In making this assessment we are guided by the following factors and principles. First, we consider “the nature and gravity of the offense, the nature and extent of the news coverage, the size of the community, the status of the defendant in the community, and the popularity and prominence of the victim.” (Id., at p. 1125, and cases cited.)
Second, we have also frequently recognized that review of such matters on appeal—as opposed to pretrial review by writ—affords the reviewing court the opportunity to analyze and consider the voir dire of the jurors actually selected. “ ‘[V]oir dire may demonstrate that pretrial publicity had no prejudicial effect,’ or conversely may corroborate the allegations of potential prejudice.” (Williams, supra, 48 Cal.3d at p. 1125, and cases cited.) We proceed to determine, based on these factors and guidelines, whether it is reasonably likely defendant did not have a fair trial. (Williams, supra, at p. 1126.)
The charged offenses were obviously grave, and of a nature likely to attract much press attention. There was in fact substantial coverage, both print and electronic, but the coverage occurred mostly in late 1980—two years before the trial—and in Sacramento, about fifty miles from Contra Costa County, which was at the time the ninth-largest county in the state. Defendant, although painted as a sex molester and an ex-convict in the Sacramento community by the Sacramento press, had no particular status in the Contra Costa community. Likewise, the victims, although presented as likable all-American college students in the Sacramento press, were not prominent in the Contra Costa community.
These factors, considered as a whole, do not lead us to doubt that defendant received a fair trial. Moreover, the voir dire of the actual jurors does not establish a reasonable likelihood that defendant did not have a fair trial.
Of the 12 jurors who decided defendant’s case, 10 had not been exposed to any pretrial publicity. Of the two who had (A. and Y.), both stated their impartiality and ability to reach decisions based on courtroom evidence. A. vaguely recalled reading an article about college students in the Sacramento area who disappeared after going to a party. She remembered nothing more. She did not read any Sacramento newspapers, nor did she watch any television news. Y. remembered reading one recent article in a San Francisco newspaper about the charges involved in the case, the fact that defendant’s wife would testify against him, and defendant’s prior record. At first she said she remembered nothing specific from the article, but then stated she may have remembered something about a prior robbery. She then stated that if it was true defendant had suffered a prior robbery conviction, she would not hold it against him, because he would already have “paid his debt” to society for that offense. Both jurors were subjected to individual voir dire on the impact of pretrial publicity, but defendant challenged neither for cause. (See People v. Jurado (1981) 115 Cal.App.3d 470, 491 [171 Cal.Rptr. 509].)
Although we have noted that a juror’s declaration of impartiality is not conclusive (e.g., Williams, supra, 48 Cal.3d at p. 1129), here we have no basis to doubt the two jurors’ assertions that they would not be persuaded by the brief news accounts they had seen. We also observe, as we held in People v. Harris (1981) 28 Cal.3d 935, 949-950 [171 Cal.Rptr. 679, 623 P.2d 240], that “ ‘juror exposure to information about a... defendant’s prior convictions or to news accounts of the crime with which he is charged’ ” does not “ ‘presumptively deprive[] the defendant of due process.’ [Citation.] ‘It is not required... that jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion of the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ ”
Having reviewed the record independently, we are convinced there is no reasonable likelihood that defendant did not receive a fair trial.
b. Sequestration of the jury. Defendant asserts the court erred in denying his alternative request to sequester the jury during deliberations. He raises a similar point concerning the penalty phase, post, in part IV. 9.
Whether to sequester the jury is a matter left to the sound discretion of the trial court. (§ 1121.) The record shows that after selection of the jury, and after the court denied defendant’s second change-of-venue motion, defendant asked the court to consider sequestering the jury during deliberations. The court responded that it “might consider” sequestering the jury during deliberations, and defendant responded he “would request that of the court.” The court replied, “Let’s wait till we get to that point. We are a couple of months away from that.” Because defendant offers no showing that he raised the matter when the trial approached the time for deliberations, we could justifiably consider the point waived. In any event, on these facts, no abuse of discretion appears. The court frequently admonished the jury not to discuss or read or listen to reports about the case. Defendant contends that “although no juror reported he or she disobeyed the court’s orders, it stretches the imagination to believe the jury could have been successfully insulated from the extensive media coverage,” and hence the court abused its discretion in failing to sequester. We decline to find an abuse of discretion based on defendant’s speculation.
For similar reasons we also reject defendant’s apparently separate claim that publicity during the trial so contaminated the jury that a fair trial was not had. Defendant offers no credible support for his theory.
5. Jailhouse tape recordings
The police recorded various conversations between defendant and his visitors while defendant was in jail. Defendant asserts on various grounds that these recordings were illegally obtained and used against him at trial.
a. Statutory-right-to-privacy claim. More than a year after the recordings were made in this case, we decided De Lancie v. Superior Court (1982) 31 Cal.3d 865 [183 Cal.Rptr. 866, 647 P.2d 142]. Relying on statutory grounds, we held for the first time that the police may not monitor the conversations of pretrial detainees for the sole purpose of discovering information to use against them at trial. (Id., at pp. 867-868.) We explained, however, that the police may monitor conversations to the extent “necessary to insure the security of the prison and the protection of the public.” (Id., at p. 868.) We subsequently held in Donaldson v. Superior Court (1983) 35 Cal.3d 24 [196 Cal.Rptr. 704, 672 P.2d 110], that De Lancie was not retroactive, and did not require exclusion of evidence obtained before that decision was filed. (35 Cal.3d at p. 39.) Defendant asserts Donaldson was wrongly decided and we should apply De Lancie retroactively, and that the recordings here were not necessary to jailhouse security and should have been suppressed.
We disagree on both counts. First, defendant offers no compelling reason to depart from our retroactivity analysis in Donaldson v. Superior Court, supra, 35 Cal.3d 24. Griffith v. Kentucky (1987) 479 U.S. 314 [93 L.Ed.2d 649, 107 S.Ct. 708] notwithstanding, we have previously held that for questions of retroactivity concerning matters of state law we adhere to the test employed in Donaldson. (People v. Carrera, supra, 49 Cal.3d 291, 326-328.) In any event, and without belaboring the point, the record amply establishes that defendant was a major security risk while awaiting trial, that he made various plans to escape, and thus the recordings would have been permissible even under De Lancie, supra, 31 Cal.3d 865, to assist in jailhouse security.
b. Fifth Amendment claim. Defendant suggests the recordings violated his Fifth Amendment right to remain silent in the face of custodial interrogation. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].) As the People observe, defendant’s sole authority for this view has been reversed by the high court (see Arizona v. Mauro (1987) 481 U.S. 520, 530 [95 L.Ed.2d 458, 107 S.Ct. 1931]). Accordingly, and because it is clear that defendant’s conversations with his own visitors are not the constitutional equivalent of police interrogation, we reject the claim. (See, e.g., People v. Williams (1988) 44 Cal.3d 1127, 1140-1141 [245 Cal.Rptr. 635, 751 P.2d 901] [rejecting same claim even as to information obtained by undercover inmate agent].)
c. Sixth Amendment claim. Defendant insists the recordings were obtained in violation of his right to counsel. He cites familiar high court cases dealing with use of government informants to elicit incriminating information from a defendant in violation of his right to counsel (e.g., Kuhlmann v. Wilson (1986) 477 U.S. 432 [91 L.Ed.2d 364, 106 S.Ct. 2616]), but fails to recognize that none of his visitors was a government agent sent in to elicit information from defendant. We reject this claim as well (see, e.g., Williams, supra, 44 Cal.3d at pp. 1141-1142).
d. Improper prosecutorial discovery. Finally, defendant cites Prudhomme v. Superior Court (1970) 2 Cal.3d 320 [85 Cal.Rptr. 129, 466 P.2d 673], for the proposition that the recordings constituted improper prosecutorial discovery in violation of his Fifth Amendment right against self-incrimination. Prudhomme and its progeny, however, apply to formal discovery orders in favor of the prosecution. Here there was no such order; nor were defendant’s statements to his visitors “compelled.” We reject the claim.
6. Admissibility of the Vaught/Scheffer “other crimes” evidence
As noted above, defendant admitted killing Miller, but denied an intent to kill, asserting he experienced diminished capacity at the time. He denied killing Sowers, and denied his motive was to rape Sowers. In order to prove defendant’s intent and motive, and to disprove his diminished capacity claim, the prosecution sought to introduce evidence of the Vaught/Scheffler killings. After extensive hearings, the court ruled it would admit the “other crimes” evidence for the stated purposes (to prove intent and motive, and to disprove diminished capacity), but not to prove identity. Defendant presented rebuttal evidence tending to show that others—two Black men in a maroon Firebird—committed the Vaught/Scheffler killings. He now asserts the court erred in holding admissible the evidence concerning the Vaught/Scheffler killings.
We recently considered similar claims in People v. Robbins (1988) 45 Cal.3d 867, 879 [248 Cal.Rptr. 172, 755 P.2d 355], in which the defendant similarly admitted the act of killing his victim, but denied intent to kill or intent to engage in lewd conduct with his victim. We held, “ ‘[a]s with other types of circumstantial evidence,... admissibility [of “other crimes” evidence] depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.’ ” (Id., at p. 879, italics in original, quoting People v. Thompson (1980) 27 Cal.3d 303, 315 [165 Cal.Rptr. 289, 611 P.2d 883].)
Defendant admitted the Miller killing but denied intending to kill him because of diminished capacity; he asserted his sole intent was to rob. Under these circumstances, defendant’s intent and motivation were disputed material issues. (See People v. Kelly (1967) 66 Cal.2d 232, 242-243 [57 Cal.Rptr. 363, 424 P.2d 947].)
The evidence was also relevant to those disputed issues. As we explained in Robbins, supra, 45 Cal.3d at pages 879-880, “[T]o be relevant, an uncharged offense must tend logically, naturally and by reasonable inference to prove the issue(s) on which it is offered. [Citations.] We have long recognized ‘that if a person acts similarly in similar situations, he probably harbors the same intent in each instance’ [citations], and that such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.” (45 Cal.3d at p. 879; see id., at pp. 879-880, quoting Wigmore’s explanation of the use of “other crimes” evidence.)
The Vaught/Scheffler crimes were “substantially similar” (see Robbins, supra, 45 Cal. 3d at p. 880) to the charged offenses, and hence sufficient to raise an inference that the charged offenses were committed with the charged intent(s). First, and contrary to defendant’s suggestion, the fact that the trial court believed the crimes insufficiently similar to justify their use to prove identity, did not preclude the court from concluding they were sufficiently similar to establish intent. As we noted in Robbins, supra, “when evidence of an uncharged offense is introduced to prove intent, the prosecution need not show the same quantum of ‘similarity’ as when uncharged conduct is used to prove identity.” (Ibid.)
Second, as to both sets of crimes, the evidence showed defendant forced Charlene to drive to a mall in Sacramento to undertake a “hunt” for young women and lure the victims into his vehicle; he tied the victims’ hands behind their backs; he took them to rural locations, removed them from Charlene’s presence, and took them to a separate spot for execution. Each victim was shot in the head at point-blank range with a handgun, and each time defendant and Charlene threw the gun into the Sacramento River on the day after the killings. This evidence amply supports the trial court’s implicit conclusion that the uncharged crimes tended logically, naturally, and by reasonable inference to prove defendant’s intent and motive in the charged crimes. (See Robbins, supra, 45 Cal.3d at p. 880.)
Finally, we reject defendant’s suggestion the trial court abused its discretion in failing to exclude the “other crimes” evidence under Evidence Code section 352, or any other similar rule or policy. We specifically reject defendant’s suggestion that the evidence was inadmissible simply because there may have existed independent evidence sufficient to sustain the People’s claim that defendant had the intent to kill. (See Comment, A Proposed Analytical Method for the Determination of the Admissibility of Evidence of Other Offenses in California (1960) 7 UCLA L.Rev. 463, 482.) Defendant admitted killing Miller, but denied any intent to kill, and presented a formal diminished capacity defense. Under these circumstances we are not prepared to say the trial court erred in its implicit conclusion that the “other crimes” evidence was necessary to prove defendant’s intent; nor are we prepared to say, as defendant appears to suggest, that the “other crimes” evidence was cumulative on this point, or that the trial court abused its discretion in concluding the probative value of the evidence on this crucial point outweighed its prejudicial effect.
7. Testimony of Charlene’s attorney
As noted above, defendant asserted Charlene simply fabricated her testimony against him. To prove this point, he questioned why Charlene had waited so long to tell anyone—including her original attorney—about the crimes, and he suggested that she invented her testimony in order to escape primary responsibility for the charges. To rebut this claim the prosecution presented the testimony of Hamilton Hintz, Charlene’s second attorney. Through Hintz’s testimony the prosecution was able to show that Charlene disclosed her full knowledge of the various crimes to Hintz (and his cocounsel, Fern Laetham) because she was impressed with Hintz’s background, and trusted him. Defendant, reasserting his numerous objections to Hintz’s testimony at trial, claims the testimony was irrelevant and hearsay.
a. Relevance. Without offering any apposite citation, defendant asserts Hintz’s testimony concerning his background and qualifications was irrelevant. The court ruled otherwise, concluding it was relevant to show why Charlene trusted and ultimately elected to confide in Hintz, when she had not confided in others. We find no basis to question the court’s exercise of its “wide discretion” on this issue. (See People v. Green (1980) 27 Cal.3d 1, 19 [164 Cal.Rptr. 1, 609 P.2d 468].)
b. Hearsay. As noted above, Hintz testified that Charlene confessed to him her involvement in defendant’s various killings, and implicated defendant in each of the killings. On cross-examination of Charlene, defendant repeatedly suggested she implicated him only because she had “made a deal” with the prosecutor. To prove she implicated him before any “deal” with the prosecutor was contemplated, the People offered Hintz’s testimony about Charlene’s prior consistent statements to Hintz. (See Evid. Code, § 791, subd. (b), authorizing evidence of a declarant’s prior consistent statements if, “An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.”)
We are reluctant to question the trial court’s apparent determination that Charlene’s revelations to Hintz were made “before the bias, motive for fabrication, or other improper motive is alleged to have arisen.” But even assuming the court erred in this regard, we find no reasonable probability the verdict would have been different without Hintz’s testimony about Charlene’s prior statements. Charlene’s testimony, together with the other evidence outlined above, convincingly established defendant’s guilt of the various crimes.
8. Cross-examination of Charlene
Defendant, citing various record passages, asserts the court improperly restricted his cross-examination of Charlene. The record clearly shows that the court did not “restrict” defendant’s cross-examination, but merely cautioned defendant that if he persisted in asking certain questions, he might open the door to admission of various other crimes. For example, defendant asked Charlene why she was not relieved when she discovered the police waiting for her at her parents’ house after the Miller/Sowers killings. Charlene requested a discussion in chambers, at which time the prosecution observed that in order for Charlene to answer the question she would have to reveal that this was not the first, but the tenth murder she had participated in with defendant. Defendant said he would withdraw the question.
In each cited instance, both the court and the prosecutor advised defendant for his own protection and" benefit that his questions might open the door to other crimes. The court never prevented defendant from asking the questions at issue, it only cautioned him against exercising his right to do so. We find no support for defendant’s claim.
9. Testimony of defendant's assault on Charlene
Charlene’s mother testified that defendant married Charlene in 1978, and again in 1980, and that after the second marriage defendant assaulted Charlene at their Sacramento apartment. Defendant unsuccessfully objected to this evidence on grounds it was irrelevant, and more prejudicial than probative under Evidence Code section 352. Defendant renews those claims, and further asserts the testimony should have been excluded as improper character evidence.
a. Character evidence. Because defendant did not object on the ground of improper character evidence, the issue may not be raised now. (People v. Privitera (1979) 23 Cal.3d 697, 710 [153 Cal.Rptr. 431, 591 P.2d 919, 5 A.L.R.4th 178].) In any event the record discloses the testimony was introduced not to establish defendant’s bad character, but to help explain the relationship between defendant and Charlene.
b. Evidence Code section 352. Again, the evidence was probative to explain defendant’s relationship with Charlene, and why she would agree to help lure and kill his victims. It also explained and corroborated Charlene’s statements that she feared defendant. In light of the other properly admitted evidence in this case, the trial court did not err in concluding this testimony was not unduly prejudicial.
c. Relevance. Defendant suggests the trial court had a sua sponte duty to instruct the jury that the testimony was to be used for a limited purpose, and should have cautioned the jury against misusing the testimony. He complains failure to do so allowed the jury to “consider a single prior act as evidence of defendant’s violent character.” Defendant offers no authority for the proposition that a sua sponte duty existed in this situation, and we decline to create one. In any event, on this record we cannot believe this “single prior act” was a crucial factor in the jurors’ minds as they deliberated defendant’s guilt.
10. Testimony of M.W.
M.W. and A.B. were fraternity brothers of Craig Miller, and were with him and Mary Beth Sowers at the shopping center on the night of their abduction. As noted above, B. noticed Miller and Sowers in defendant’s car, and approached them. Miller swore at B. and told him to leave; Charlene slapped B., and defendant’s car was driven away. Immediately thereafter W. approached B. in the parking lot, and observed that B., normally not an excitable person, was “uptight” and “surprised,” and it “appeared his adrenalin was flowing.” B. told W., “You’re not going to believe what happened.” He recounted the above events, and as he finished he saw defendant’s car being driven out of the parking lot and exclaimed, “There is the car they’re in. That’s the car.”
B. was hypnotized by the police before the preliminary hearing, and his testimony was excluded at trial pursuant to People v. Shirley (1982) 31 Cal.3d 18 [181 Cal.Rptr. 243, 723 P.2d 1354]. Over defendant’s objection the court allowed W.’s testimony concerning the above statements under the spontaneous declaration exception to the hearsay rule, and also ruled the testimony would not violate defendant’s confrontation rights. Defendant reasserts his objections.
a. Spontaneous declaration. Under Evidence Code section 1240 a statement is not inadmissible under the hearsay rule if it “Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” We believe B.’s statement falls plainly within the exception. It was clearly a startling event; his friend Miller swore at him, telling him to leave, and a strange woman slapped him in the face. B. appeared surprised, excited, and puzzled. He made the statement to W. while defendant’s car was still in the parking lot, and while he saw it depart. We conclude the court did not abuse its discretion in admitting the evidence as a spontaneous declaration. (See, e.g., People v. Poggi (1988) 45 Cal.3d 306, 317-320 [246 Cal.Rptr. 886, 753 P.2d 1082].)
b. Confrontation. Defendant cites no case in which we or the high court have held admission of a spontaneous declaration violates a defendant’s confrontation rights under California or federal Constitutions. In a number of cases the high court has made clear that the focus of its concern “has been to insure that there ‘are indicia of reliability to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.’ ” (Mancusi v. Stubbs (1972) 408 U.S. 204, 213 [33 L.Ed.2d 293, 301, 92 S.Ct. 2308].) Later, in Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2d 597, 608, 100 S.Ct. 2531], the court held this reliability “can be inferred without more... where the evidence falls within a firmly rooted hearsay exception.” We agree with our Court of Appeal that “the spontaneous declaration exception meets this requirement” (In re Damon H. (1985) 165 Cal.App.3d 471, 478, fn. 8 [211 Cal.Rptr. 623]), and hence we reject defendant’s confrontation claim (see People v. Farmer (1989) 47 Cal.3d 888, 905-906 [254 Cal.Rptr. 508, 765 P.2d 940]).
In any event, even if we did not follow the Roberts/Damon H. approach, we believe the facts of the declaration in this case establish the requisite reliability. (See Dutton v. Evans (1970) 400 U.S. 74, 88-89 [27 L.Ed.2d 213, 226-227, 91 S.Ct. 210] [plur. opn.] [listing “indicia of reliability” relevant to determining reliability of declaration introduced against confrontation clause challenge]; Mancusi v. Stubbs, supra, 400 U.S. at p. 213 [33 L.Ed.2d at p. 302] [“some of these ‘indicia of reliability’ referred to in Dutton” must be present for the hearsay to be admissible over confrontation objections].) B.’s explicit description of the incident—which he recounted to W. immediately after the events, and while the car was being driven away—was based on B.’s firsthand knowledge, thus making remote the possibility it was the product of faulty recollection. The spontaneous nature of the statement is evident from the fact that it followed immediately after a bizarre and traumatic experience. Additionally, the evidence was fully corroborated by Charlene, a percipient witness.
11. Marital communication privilege
Defendant renews his claim that Charlene’s testimony should have been excluded under the privilege for confidential marital communications (Evid. Code, § 980), and that her testimony was not within “crime or fraud” exception (id., § 981), under which the privilege does not apply if the communication was made to “enable or aid” the commission or planning of a crime or fraud. We need not dwell on the latter claim, because it is clear that whatever their nature, defendant’s communications with Charlene were not marital communications. The record shows defendant was married to C.T. in Nevada in 1967, and that he never legally dissolved that marriage. Defendant’s subsequent marriages to Charlene were illegal and void (see Civ. Code, § 4401), and thus he had no right to assert the marital privilege. (See, e.g., People v. Mabry (1969) 71 Cal.2d 430, 439-440 [78 Cal.Rptr. 655, 455 P.2d 759], and cases and authorities cited.)
12. Blood type testimony
As noted above, an expert testified he tested stains on Scheffier’s clothing, and he found “type A” antigen of the AOB system in the semen recovered from Scheffler’s panties (see generally People v. Brown (1985) 40 Cal.3d 512, 529 et seq. [220 Cal.Rptr. 637, 709 P.2d 440] [explaining the technology]). Because Scheffler had “type O” blood, the expert concluded the “type A” antigen was contributed by the semen. Scheffler’s husband was a “type O” positive secreter, and defendant was a “type A” positive secreter. The testimony showed defendant could have deposited the semen found on Scheffler, and he was within 32 percent of the male population that are “type A” positive secreters. Defendant asserts for the first time that, for two reasons, the testimony should not have been allowed.
a. Admissibility of the blood tests. Citing Brown, supra, 40 Cal.3d 512, 528-535, defendant asserts the evidence should not have been admitted because such tests have not gained general acceptance in the medical community. As in People v. Coleman (1988) 46 Cal.3d 749 [251 Cal.Rptr. 83, 759 P.2d 1260], however, we reject the claim because it was not raised below (id., at pp. 776-778). In any event, as we noted in Coleman, supra, recent Court of Appeal decisions have rejected the identical claim on the merits. (Id., at p. 778, fn. 23.)
b. Statistical evidence. Citing People v. Collins (1968) 68 Cal.2d 319, 328-329 [66 Cal.Rptr. 497, 438 P.2d 33, 36 A.L.R.3d 1176], defendant also asserts the court erred in allowing the expert to testify that his review of the test results placed defendant within 32 percent of the male population. A similar claim was also raised in Coleman, supra, 46 Cal.3d at pages 776-778, and for the same reasons we reject it in this case as well.
13. Admission of photographs of victims while alive
The court, without objection from defendant, admitted photographs of the various victims while alive. Contrary to defendant’s suggestion, he is precluded from raising the issue now because he failed to object below. (People v. Allen (1986) 42 Cal.3d 1222, 1271 [232 Cal.Rptr. 849, 729 P.2d 115].) In any event, such an objection would have been meritless. The photographs were relevant evidence in that each was used as the basis of Charlene’s identification of defendant’s murder victims. We find no “clear abuse of discretion” in the trial court’s ruling. (Id., at pp. 1255-1256.)
14. The prosecution's compliance with discovery
While the case was still in Sacramento, defendant complained he had not received various discovery items from the prosecutor, i.e., videotapes of Charlene’s interviews with the police concerning California and Oregon crimes, and some separate killings in Nevada. The court ordered the prosecution to disclose the tapes by August 6, 1982. The prosecution disclosed some of the material on that date, and the rest within a week of that date.
The trial court denied defendant’s motion to dismiss on the ground the prosecution had failed to timely comply with discovery; instead, the court granted defendant a continuance. We find neither error nor prejudice. Nor are we convinced that the prosecution’s actions amounted to reversible error under Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194], or People v. Rutherford (1975) 14 Cal.3d 399 [121 Cal.Rptr. 261, 534 P.2d 1341] (prosecution’s duty to disclose evidence).
15. Sanctions for the loss of vaginal swabs
As noted above, the prosecution produced evidence that a pathologist found semen in Rhoda Scheffler’s vagina and on her panties, and that the semen samples were of a “type A” antigen of the AOB system, from a “positive” secreter such as defendant (and unlike Scheffler’s husband). This evidence, together with other testimony, tended to show that defendant raped and killed Scheffler.
After the prosecution expert testified to the above, defendant moved under People v. Hitch (1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361] to dismiss the case against him because one of the two samples—the vaginal swab—had been completely used, and was not available for testing by defendant’s expert. (See People v. Nation (1980) 26 Cal.3d 169, 177 [161 Cal.Rptr. 299, 604 P.2d 1051] [police duty to preserve semen samples].) He conceded the sample on the panties was available for testing, but maintained that only the vaginal swab would allow his experts to conduct accurately a “PGM” test to help determine the donor, or a “Peptase A” test, to determine whether the donor was Black or White.
The trial court took testimony on the issue. The prosecution’s expert testified that he had not conducted PGM or Peptase A testing on the body when it was discovered in 1978 because (i) the swab sample was a “mixed sample” of sperm and vaginal secretions, (ii) there was a putrefaction problem (because of decomposition of the body) and (iii) given these factors, and the “state of the art” and the laboratory’s “experience and abilities at the time” with such tests, he would have had no confidence in the tests, and so did not attempt them. The trial court found the prosecution expert had used the sample for purposes of conducting his tests, and the destruction of the swab was not malicious. It also found the evidence cumulative because defendant was still able to test the semen sample from Scheffler’s panties, although he could not successfully conduct a PGM or Peptase A test on that sample, because it was by then four years old and had not been frozen. The court ruled defendant would be allowed to introduce into evidence the fact that the defense was unable to independently test the vaginal samples.
Defendant asserts the court erred in failing to grant his motion to dismiss, or to impose more severe sanctions, such as instructing the jury that (i) the swab, which as noted above had not been tested for PGM, in fact revealed PGM activity that matched neither the victim nor defendant, or (ii) the donor of the semen was not the same race as defendant.
As we held in People v. Johnson (1989) 47 Cal.3d 1194, 1234 [255 Cal.Rptr. 569, 767 P.2d 1047], Hitch's articulation of the prosecution’s duty to preserve (see 12 Cal.3d at pp. 649, 652-653) was superseded by California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528], in which the high court established the following standard: “Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Id., at pp. 488-489 [81 L.Ed.2d at p. 422], fn. omitted.)
We conclude defendant’s objection was not timely, and thus he may not press it now. People v. Taylor (1977) 67 Cal.App.3d 403 [136 Cal.Rptr. 640] and People v. Mayorga (1985) 171 Cal.App.3d 929 [218 Cal.Rptr. 830], involved similar delayed objections to the prosecution’s destruction of evidence. The Taylor court stated, “once the evidence which a successful assertion of a Hitch issue would suppress, has been received without objection, it is too late” (67 Cal.App.3d at p. 409) and concluded, “defendant would have been entitled to no more than suppression of police testimony which might have been contradicted [by the lost evidence]. The testimony, however, was received entirely without objection. Thus defendant waived any Hitch claim he might have had.” (Id., at p. 410.)
Mayorga, supra, 171 Cal.App.3d 929, followed Taylor, supra, and held a defendant may not use a new trial motion to raise a Hitch claim for the first time. (171 Cal.App.3d at pp. 939-941.) Mayorga stated there are three methods by which a Hitch motion may be brought and preserved for appeal: (i)—the most preferable method—by motion before trial; (ii) by objection to the admission of evidence at trial; and (iii)—the least preferred method—by motion to strike testimony. {Id., at pp. 938-939.)
Because defendant waited until after the expert testified and the prosecution rested on rebuttal, it was obviously too late for the court to suppress the testimony. We conclude the issue is waived.
In any event, the record establishes defendant was still able to test the semen sample on the panties, and there is evidence that his own expert felt that sample would be more useful to defendant’s case than the vaginal swab sample, because decomposition of the body made the swab untrustworthy. Under these circumstances defendant cannot establish the second element of the Trombetta test, i.e., inability to obtain comparable evidence by other reasonably available means. (California v. Trombetta, supra, 464 U.S. at p. 489 [81 L.Ed.2d at p. 422].) We would thus reject the claim on its merits.
16. Impeachment with physical evidence obtained in violation of defendant’s Miranda rights
Defendant was arrested in Omaha, Nebraska, and interviewed by FBI agents. After being advised of his rights under Miranda v. Arizona, supra, 384 U.S. 436, he opted to remain silent. Subsequently, perhaps believing that various statements by defendant indicated his change of heart and willingness to talk, the FBI agents asked him about a locker key they had found after arresting him. Defendant responded the key was from a locker at a bus station, and that his suitcase was in the locker. Before trial defendant successfully moved to suppress the suitcase and its contents on the ground it was seized illegally.
As noted above, defendant attempted to impeach Charlene’s credibility— and thus challenge her veracity—by, inter alia, exposing asserted inconsistencies in her testimony. In this regard, during his own direct testimony defendant introduced a T-shirt on which was printed the phrase, “I’m the very best,” which the police confiscated from his apartment. On cross-examination defendant testified Charlene did not have that T-shirt with her when they fled to Omaha, and the T-shirt she wore when she visited her mother the morning after the Miller/Sowers killings was not in the suitcase found in Omaha.
According to defendant, the existence of this T-shirt in his apartment established an inconsistency in Charlene’s version of the events. Charlene, however, also testified on cross-examination that she had “several” of the same T-shirts, and she explained that she last saw the shirt she wore on the morning after the killings in the suitcase found in Omaha, Nebraska. Defendant continued to question her, strongly implying there was only one such T-shirt, and that Charlene must therefore be lying.
At this point the prosecution sought to introduce the second T-shirt— i.e., the one found in the suppressed suitcase—to correct the misperception created by defendant’s direct testimony as well as his cross-examination of Charlene, that Charlene had only one such T-shirt, and it was the one found in defendant’s apartment. After a hearing the court admitted this limited evidence of the otherwise suppressed contents of the suitcase.
Defendant asserts this ruling violated People v. Disbrow (1976) 16 Cal.3d 101 [127 Cal.Rptr 360, 545 P.2d 272], in which we declined to follow the high court’s ruling in Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643], and held that under the California Constitution, statements obtained in violation of Miranda are inadmissible even for purposes of impeachment. He concedes the Disbrow rule has been abrogated by California Constitution, article I, section 28, subdivision (d) (see People v. May (1988) 44 Cal.3d 309 [243 Cal.Rptr. 369, 748 P.2d 307]), but notes the crimes in this case occurred before the effective date of that constitutional amendment (see People v. Smith (1983) 34 Cal.3d 251 [193 Cal.Rptr. 692, 667 P.2d 149]), and hence Disbrow applies.
The People assert we should recognize at least one of three exceptions to the Disbrow rule based on (i) the FBI agents’ good faith belief that defendant had changed his mind and wished to speak to them without a lawyer; (ii) the fact that impeachment would be allowed under these circumstances under the federal Constitution or the law of Nebraska, where the Miranda violation occurred; or (iii) the fact that the impeachment evidence was physical rather than testimonial evidence. Although there may be merit in one or more of these approaches, we decline the People’s invitation because we believe it is clear that assuming there was Disbrow error, there is no reasonable probability it affected the verdict. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) The dispute about the T-shirt simply pales in significance when viewed in the context of Charlene’s entire testimony and the supporting independent evidence of defendant’s role in the crimes. Any error concerning admission of the T-shirt was thus harmless.
17. Asserted instructional error
a. Aiding and abetting instructions. The court instructed on aiding and abetting pursuant to former CALJIC Nos. 3.00 and 3.01, one year before we held those instructions erroneous for failing to advise the jury that to be convicted as an aider and abettor the defendant must not only “know” of the perpetrator’s criminal purpose, he must also share the perpetrator’s purpose or intent to commit, encourage, or facilitate the commission of a crime. (People v. Beeman (1984) 35 Cal.3d 547 [199 Cal.Rptr. 60, 674 P.2d 1318].)
As we held in People v. Dyer (1988) 45 Cal.3d 26, 59-65 [246 Cal.Rptr. 209, 753 P.2d 1], Beeman error is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]. (See also People v. Croy (1985) 41 Cal.3d 1 [221 Cal.Rptr. 592, 710 P.2d 392].) Applying that test, we conclude beyond a reasonable doubt that assuming the jury relied on the aiding and abetting instructions—a doubtful proposition in view of the strong evidence showing defendant was the perpetrator of the crimes—the Beeman error could not have affected the verdicts.
Although the jury was instructed in the pre-Beeman language of former CALJIC Nos. 3.00 and 3.01, it was also instructed pursuant to CALJIC No. 8.80, which requires the jury to find that the defendant, if not the actual killer, acted with intent to aid the actual killer in the commission of murder in the first degree. Accordingly, as the Court of Appeal held in People v. Gonzales (1986) 192 Cal.App.3d 799, 806-808 [238 Cal.Rptr. 554], and as we have held in similar circumstances in recent cases (e.g., People v. Warren (1988) 45 Cal.3d 471, 486-488 [247 Cal.Rptr. 172, 754 P.2d 218] [sustaining felony-murder special-circumstance findings]), the intent element omitted under former CALJIC Nos. 3.00 and 3.01 was necessarily posed and decided adversely to defendant in CALJIC No. 8.80. (See Gonzales, supra, 192 Cal.App.3d at p. 808.) In addition, the facts of this case establish defendant’s purpose or intent to commit a crime beyond a reasonable doubt. No reasonable trier of fact, having found defendant personally used a firearm in the Miller/Sowers killings, and having found he had the requisite knowledge under the former aiding and abetting instructions, could also have concluded that he did not act for the purpose of facilitating or encouraging the crime. (See People v. Leach (1985) 41 Cal.3d 92, 105-106 [221 Cal.Rptr. 826, 710 P.2d 893].)
b. CALJIC No. 2.62. At both the prosecutor’s and defendant’s request, the court instructed the jury pursuant to CALJIC No. 2.62, which concerns inferences to be drawn from the defendant’s failure to explain or deny evidence against him in his own testimony. He now asserts the court erred in giving the instruction because it was assertedly unsupported by the evidence. Although we have serious doubts about the latter proposition, we need not address it because defendant invited the instruction—and any resulting assumed “error”—and cannot raise the issue now. (People v. Wickersham (1982) 32 Cal.3d 307 [185 Cal.Rptr. 436, 650 P.2d 311].)
Defendant asserts the record contains no express articulation of his tactical basis for requesting the instruction, and hence the invited error rule does not apply. (See Wickersham, supra, 32 Cal.3d at p. 332.) But as we recently held in People v. Marshall (1990) 50 Cal.3d. 907, 932 [269 Cal.Rptr. 269, 790 P.2d 676], that requirement applies only when the court is under a sua sponte duty to instruct in a manner other than it did. Here the trial court had no sua sponte duty to instruct using CALJIC No. 2.62, and hence Wickersham, supra, as recently explained in Marshall, supra, fully supports a finding of invited error.
c. CALJIC No. 9.20. Defendant was charged with two counts of “simple” kidnapping in violation of section 207, a general intent crime. Section 209, subdivision (b), sets out the separate crime of kidnapping for robbery. Apparently on the basis of defendant’s trial testimony, in which he admitted kidnapping Miller and Sowers to rob them, and on the basis of Charlene’s testimony concerning defendant’s conduct with Sowers, the court instructed the jury pursuant to CALJIC No. 9.20, which covers kidnapping in connection with the commission of an underlying offense—in this case, rape or robbery. The court also instructed on general intent on the kidnapping charge (CALJIC No. 3.30).
Defendant, citing People v. Hill (1983) 141 Cal.App.3d 661 [190 Cal.Rptr. 628], asserts the court prejudicially erred by failing to instruct on “simple” kidnapping pursuant to CALJIC No. 9.19, and instead instructing pursuant to CALJIC No. 9.20. Hill stands for the proposition that CALJIC No. 9.20 is inappropriate when, as here, one of the underlying charges is robbery. (141 Cal.App.3d at p. 667.) Other than this, however, Hill does not assist defendant. The Hill court’s reversal was premised on a number of instructional errors not present in this case, and, contrary to defendant’s suggestion, was not based on the mere fact that the trial court instructed pursuant to CALJIC No. 9.20 on the section 207 charge. (See 141 Cal.App.3d at pp. 667-669.) On this record it is impossible to imagine how defendant was prejudiced by the court’s instruction on the “aggravated” crime; at most, it required the prosecution to meet a higher burden than it needed to. Hill, supra, establishes no basis for reversal.
d. Refusal to instruct on involuntary intoxication. The court instructed the jury on voluntary intoxication and unconsciousness, but refused to give CALJIC No. 4.23, concerning involuntary intoxication. By his own testimony, defendant voluntarily consumed alcohol and drugs in the early morning hours prior to the killings, but he asserts PCP was secretly given to him while he was taking other illegal drugs. Assuming this was true, it would not support an involuntary intoxication instruction. (People v. Velez (1985) 175 Cal.App.3d 785, 795-797 [221 Cal.Rptr. 631], and cases cited [involuntary intoxication not established when defendant knowingly ingests unlawful substance not realizing it contains another, different illegal drug].) We conclude the record contains insufficient testimony from which reasonable jurors could have concluded defendant was involuntarily intoxicated. (See People v. Flannel (1979) 25 Cal.3d 668, 684 [160 Cal.Rptr. 84, 603 P.2d 1].)
e. Refusal to instruct on justifiable homicide. The trial court instructed that unreasonable belief in the need to defend against great bodily injury would reduce defendant’s crime to manslaughter, but refused to instruct on justifiable homicide. Contrary to defendant’s view, there was no basis for such an instruction.
Defendant asserted that after kidnapping Miller and Sowers, and forcing Miller from the car at gunpoint, Miller attacked him and he shot Miller in self-defense, and that by failing to so instruct the jury, the court unconstitutionally denied him the opportunity to present his defense. We disagree. The court did not deny defendant a defense; rather, his claims simply do not amount to a defense. There is no evidence in the record supporting a reasonable belief that defendant or Charlene stood in deadly peril from Miller. Assuming Miller tried to escape by assaulting defendant and Charlene, defendant had no right to respond with deadly force, and indeed—as the aggressor—had a duty to retreat. (People v. Bolton (1979) 23 Cal.3d 208, 215 [152 Cal.Rptr. 141, 589 P.2d 396].) The trial court correctly declined to give the requested instructions.
18. Asserted misconduct
a. The terms of Charlene’s plea bargain. Before addressing the claims, some background is necessary. In late June 1982, Charlene entered into plea negotiations with prosecutors from California, Nevada and Oregon concerning 10 murders in which she implicated defendant. Eventually she entered into a plea bargain under which she agreed to testify fully, accurately and fairly in defendant’s trials.
Under the agreement Charlene was to plead guilty to the first degree murders of Miller and Sowers, and be sentenced to a fixed term of 16 years, 8 months in prison, with no time off for good behavior. The agreement contemplated that the Board of Prison Terms (BPT)—which was not a party to the contract—would schedule a hearing one year after the date of Charlene’s sentencing. The agreement contained a “backup” provision to take effect if the BPT declined to ratify the agreed sentence within that time. In that event, Charlene’s California plea would be deemed involuntary and vacated, and she would be transferred to Nevada to plead guilty to a crime there, and serve a determinate term of 16 years, 8 months, if that plea was acceptable to the Nevada authorities. If neither the BPT nor Nevada would limit Charlene’s term to 16 years, 8 months, the pleas in both states would be deemed involuntary, and vacated, and Charlene would have the right to a jury trial or she could plead to related offenses with sentences that would amount to 16 years and 8 months’ imprisonment. After the various prosecutors and Charlene, through her attorneys, agreed to the plea, Charlene pleaded guilty to two counts of first degree murder in November 1982, and was sentenced. By the terms of the agreement, the BPT was to hold its hearing and “ratify” the sentence by November 1983.
This agreement was fully explained to the jury during Charlene’s testimony, and the testimony of her attorney, Hamilton Hintz. Thereafter in February 1983, in conformity with the agreement’s backup provision, Charlene pleaded guilty to second degree murder in Nevada, and was sentenced to 16 years, 8 months in prison.
In mid-June 1983 the BPT—since reconstituted with new members— wrote to the Sacramento prosecutor informing him that at its May 1983 meeting it had decided it would not hold a parole consideration hearing for Charlene by November 1983, but instead, pursuant to statutory directives, would not consider the question until Charlene had served 15 years and 7 months of her term, i.e., June 1996. Charlene moved to dismiss her California plea. At an April 1984 hearing on the motion (made part of the record in this case on defendant’s motion), the prosecutor testified he had always expected the BPT to ratify the California plea bargain, based on his conversations with the former director of the BPT. He asserted he first learned of the board’s decision not to hold an early hearing in the June 1983 letter, and that there had been an innocent misunderstanding between him and the BPT about the BPT’s ability to hold a hearing to ratify the sentence within a year of sentencing. Over the prosecutor’s objections the court dismissed Charlene’s plea pursuant to the terms of the agreement, and dismissed the information concerning the California charges. Pursuant to the agreement’s backup provision, however, Charlene’s position remained for all practical purposes the same. She was still sentenced to a 16-year, 8-month prison term, albeit under Nevada rather than California jurisdiction.
We reject defendant’s suggestion that the prosecution failed in its duty to disclose the terms of the plea agreement at defendant’s trial. (See Brady v. Maryland, supra, 373 U.S. 83, 87 [10 L.Ed.2d at pp. 218-219].) Defendant insists, however, that the prosecution misled the jury by failing to disclose that the BPT would reject the plea agreement by refusing to hold a parole consideration hearing within a year of the sentence, in November 1983.
Defendant suggests the June 1983 letter establishes the prosecutor, contrary to his testimony, knew as early as June 1982 that the BPT would not honor the agreement’s condition concerning ratification within a year of sentencing. The letter to the trial prosecutor states: “The Board appreciates the difficult and sensitive negotiations the parties went through in reaching this agreement. Although the Sacramento District Attorney did meet with the [Board of Prison Terms] Chairman and Executive Officer on June 29, 1982, the Chairman made clear at that time that Mrs. Gallego would not be considered for parole until she had served fifteen years, seven months (June 1996) and that he would only recommend to the panel considering Mrs. Gallego for parole that she be released after serving sixteen years and eight months.” Additionally, as inferentially disclosing the prosecutor’s knowledge of the BPT’s likely action, defendant quotes a July 1982 confidential memo to the file, in which the BPT executive officer memorialized both his and the BPT chairman’s meeting with the trial prosecutor in this case. The memo notes that the present board cannot legally bind future boards to parole decisions, that “the release decision would not be made for 16 years,” and that although the present board would recommend release on the “minimum eligible parole date,” it “is clearly acknowledged, however, that an actual decision on release would be made by the Board having jurisdiction at the time, namely 16 years from the date of conviction.”
We find no reason to doubt the prosecutor’s testimony at the April 1984 hearing, that there had simply been a misunderstanding between him and the BPT. In any event, we fail to perceive how the prosecution’s alleged suppression of BPT’s refusal to ratify Charlene’s sentence prejudiced defendant. Under the terms of the agreement as explained to the jury, Charlene pleaded guilty and agreed to testify and assist the prosecution in return for a fixed sentence of 16 years, 8 months. Pursuant to the terms of the agreement, that is precisely what Charlene ended up with, and the jury was not misled about the “inducement” offered for her cooperation.
b. “Forum shopping.” Defendant asserts the prosecutor and Charlene’s attorneys sought out Sacramento Superior Court Presiding Judge Virga—who was not the trial judge assigned to the case—to preside over the taking of Charlene’s plea, and that the jury was misled by not being so apprised. Preliminarily, as the People note, defendant earlier attempted to obtain a writ of mandate to challenge Charlene’s plea on this ground, and the Court of Appeal denied relief on the basis, inter alia, that defendant lacked standing to challenge entry of Charlene’s plea. The parties argue whether this ruling is law of the case. In any event, however, we fail to perceive how defendant’s charge, if true, enhanced the credibility of Charlene’s testimony, or prejudiced defendant.
c. Misconduct during argument. During defendant’s closing argument the following occurred:
Defendant: “The district attorney wants you to believe that I did the Vaught/Scheffler murders as Charlene told you. I’d like to point out to you that I’m not charged with these crimes.
“Charlene made her deal with the district attorney sometime in June I believe... and this is March of the next year, and I am not charged, and to have someone implicate me in murder and not give me a jury trial is not fair, and I demand a jury trial.”
The Prosecutor: “You got it.”
Defendant: “I demand to be tried on each and every charge.”
The Prosecutor: “I will do that.”
Defendant: “In front of a jury, in front of a judge, [fl] All right. He might sit over there and laugh, like he has or will, but he hasn’t, and that’s a fact.”
Defendant asserts the prosecutor committed misconduct. As the People observe, however, defendant failed to object, and cannot raise the issue on appeal because on this record a timely admonition would have cured any harm. (People v. Green, supra, 27 Cal.3d 1, 34.) In any event, on this record any misconduct was plainly harmless.
d. Misconduct by courtroom staff. Defendant complained to the court that the bailiff, a sheriff’s deputy, and Charlene’s attorney would stand up as if expecting an attack each time he approached Charlene on cross-examination. The court agreed defendant should be treated “like a lawyer” until he proved he deserved to be treated otherwise, and directed everyone to remain seated during his cross-examinations in the future.
Defendant asserts the court erred in failing, sua sponte, to caution the jury to ignore the past conduct described above. Defendant cites no authority establishing such a sua sponte duty. We perceive no error.
e. Juror misconduct. After the guilt phase instructions were delivered, two jurors—Schindly and Y.—asked to communicate with the court. Schindly revealed that a month earlier he had begun to read an article that mentioned defendant’s father had been executed. He did not finish the article, but he did tell Y. about it, and together they decided to inform the court.
On examination, both jurors repeatedly, expressly, and unambiguously stated that their knowledge from the article would not affect their ability to deliberate fairly and remain impartial. The prosecutor stated he did not believe the information would prevent the jurors from being fair, and the trial court agreed the problem was “de minimis,” but nevertheless decided to permit defendant to consider over a three-day weekend whether he wished to have the two jurors replaced with alternates. On his return to court after the weekend, defendant stated, “My position, Your Honor, is that I feel that the damage is prejudicial, but I feel that—I feel their honesty in coming forth would nullify any damage, and I would ask that they stay on.” The court stated it felt the damage was not prejudicial, and that it would do nothing as long as defendant had no objection.
Contrary to defendant’s suggestion, there is no basis in the record to conclude that the court and/or prosecutor “tricked” him into waiving removal of the jurors. Defendant’s waiver at trial precludes his claim on appeal. (See People v. Wilson (1965) 235 Cal.App.2d 266, 280-281 [45 Cal.Rptr. 267].) Moreover, in view of the jurors’ testimony, we are satisfied defendant was not prejudiced in any event by the misconduct.
19. Adequacy of the information
The information (in the short form prescribed by sections 951 and 952) charged defendant with two counts of murder under section 187 and two counts of kidnapping, together with two special circumstance allegations respecting each murder count: multiple murder, and murder in the commission of a kidnapping. The trial court instructed on conspiracy, and informed the jury it could find defendant guilty of first degree murder on either a premeditated and deliberate theory, or on a felony-murder theory. Defendant asserts the information failed to put him on notice that the prosecution planned to proceed on a conspiracy or felony-murder theory.
Contrary to defendant’s view and the numerous federal cases he cites, we have long held that conspiracy need not be pleaded (People v. Belmontes (1988) 45 Cal.3d 744, 788 [248 Cal.Rptr. 126, 755 P.2d 310]). Similarly, we have long held that a pleading charging murder adequately notifies a defendant of the possibility of conviction of first degree murder on a felony-murder theory. (People v. Murtishaw (1981) 29 Cal.3d 733, 751, fn. 11 [175 Cal.Rptr. 738, 631 P.2d 446] [“a defendant, charged with murder, is on notice that the prosecution may seek to prove that charge by showing that the homicide occurred during the commission of an enumerated felony”]; In re Walker (1974) 10 Cal.3d 764, 781 [112 Cal.Rptr. 177, 518 P.2d 1129]; People v. Golston (1962) 58 Cal.2d 535, 539 [25 Cal.Rptr. 83, 375 P.2d 51]; People v. Witt (1915) 170 Cal. 104, 107-108 [148 P. 928].)
We nevertheless recognized in Murtishaw that “an information which complies with sections 951 and 952 may not in some cases give sufficient notice to conform with constitutional requirements.” (29 Cal.3d at p. 751, fn. 11.) Defendant, citing Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, asserts he was afforded constitutionally inadequate notice of the prosecution’s felony-murder theory in this case, and that Sheppard requires reversal. We disagree.
As Sheppard observes, “The Sixth Amendment guarantees a criminal defendant a fundamental right to be clearly informed of the nature and cause of the charges in order to permit adequate preparation of a defense. [Citations.] ‘A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court— are basic in our system of jurisprudence.’ ” (909 F.2d at p. 1236, fn. omitted.) Based on the state’s concession that the defendant in Sheppard was afforded constitutionally inadequate notice (ibid.), the court granted Sheppard habeas corpus relief. (Id., at pp. 1237-1238.)
Contrary to defendant’s view, this case is unlike Sheppard, and does not reveal an “ambush” by the prosecution. The Sheppard court observed, “[a]t no time during pretrial proceedings, opening statements, or the taking of testimony was the concept of felony-murder raised, directly or indirectly.” (909 F.2d at p. 1235.) In the present case, by contrast, defendant himself testified that the murders were committed while he and Charlene were engaged in a robbery. In addition, the Sheppard court noted that after each side rested both parties “submitted and argued their requested jury instructions to the court. Again, there was no mention by the prosecutor of felony murder.” (Ibid.) The result, as expressed by defense counsel in Sheppard on the morning of closing argument, was an “ambush”: “ ‘[S]uddenly, after we’ve already gone over all the instructions, we’ve gone home and prepared our arguments, the time comes to argue the case, [and the prosecutor] is submitting a felony-murder theory.” (909 F.2d at p. 1236.) In the present case, by contrast, the prosecution submitted felony-murder instructions along with the other instructions, avoiding the “ambush” situation faced by the defendant in Sheppard. We conclude defendant was not denied the notice guaranteed him under the Constitution.
20. Sufficiency of the evidence
As noted above, the prosecution proceeded on two theories of first degree murder: (i) premeditated and deliberate, and (ii) felony murder based on robbery and/or rape. Defendant asserts the evidence is insufficient to support either theory. We will sustain the convictions if, after reviewing the record in the light most favorable to the judgment, we conclude that a rational jury could have found the crimes proved beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 575-578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) In this case, the evidence is sufficient to sustain defendant’s conviction under either or both theories.
a. Premeditated and deliberated first degree murder. The record establishes defendant’s planning activity, motive, and preconceived design to kill, and thus strongly supports a finding of premeditated and deliberated first degree murder. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 [73 Cal.Rptr. 550, 447 P.2d 942].)
Defendant’s planning is clear from the record. He informed Charlene he wanted her to “get [him] a girl,” and, armed with a gun, they set out to look for victims. At gunpoint he ordered Miller and Sowers into his car, drove them to a rural area, ordered Miller to remove his shoes, and shot him three times in the head at point-blank range. Back at his apartment, after he was finished with Sowers, he took her to another rural area and executed her as well. Charlene’s testimony about these events was corroborated by expert witnesses and other circumstantial evidence. Likewise, the record discloses defendant’s motive. He kidnapped the victims to fulfill his sexual fantasy, and killed both to avoid detection. Finally, the manner of killing demonstrates a preconceived design to kill. He shot both victims execution-style at point-blank range after first taking them to secluded rural areas.
b. First degree felony murder. The record also establishes that defendant harbored the specific intent to commit both robbery and rape (§ 189), and that the homicides occurred during the commission of these crimes. (People v. Fonville (1973) 35 Cal.App.3d 693, 706 [111 Cal.Rptr. 53].)
Defendant expressly admitted his intent to rob Miller, and the evidence that he asked Miller for money—and then ordered him to relinquish his wallet—supports defendant’s admission. He also had the intent to rape. As noted above, his goal was to “get me a girl.” After killing Miller he returned with Sowers to his apartment. During the drive back he embraced her and told her, “You are going to be my M.E. tonight.” He took her into the bedroom, and for some time Charlene could hear the headboard of the bed knocking against the wall. Sowers emerged from the bedroom with her hands tied, and was driven to her execution. We find ample evidence of defendant’s intent to commit both felonies, and the evidence plainly establishes the homicides occurred “during the commission” of both crimes.
21. Introduction of uncharged offenses during the prosecution’s rebuttal
Defendant asserts the court erred in permitting the prosecution to introduce evidence of the Vaught/Scheffler killings during the prosecution’s rebuttal, rather than in its case-in-chief. He overlooks the fact that the “other crimes” evidence became highly relevant only after defendant testified in his own defense that although he “believed” he killed Miller, he lacked intent or motive to kill Miller and/or Sowers. As we explained above (pt. II. 6.), under these circumstances the “other crimes” evidence was properly admitted to prove defendant’s intent and motive. We decline to find the court’s decision to allow the evidence in rebuttal (but to grant defendant a three-week continuance to prepare) an abuse of discretion.
III. Special circumstance issues
1. Green error
Defendant asserts the kidnappings alleged as the second special circumstance were merely “incidental” to the murders, and that under People v. Green, supra, 27 Cal.3d 1, the special circumstance finding is invalid. The record, however, discloses the kidnappings were not incidental to the murders, but were committed to facilitate defendant’s separate sex-slave fantasy.
The court instructed the jury, pursuant to Green, that “the special circumstance referred to in these instructions is not established if the kidnapping was merely incidental to the commission of murder.” We thus reject defendant’s suggestion that the jury was not apprised of the Green requirement. We likewise reject his suggestion the evidence was insufficient to establish the Green requirement. The record, as set out above, contains substantial evidence showing the kidnappings were not merely incidental to the murders, and that the murders were committed to facilitate successful kidnapping and rape.
2. Intent to kill, premeditation and deliberation
Defendant asserts the special circumstance findings must be vacated because the court failed to instruct the jury on intent to kill. We rejected this claim in People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306], and in People v. Poggi, supra, 45 Cal.3d 306, 326-237, we rejected defendant’s related claim that Anderson is not retroactive. We also reject defendant’s related assertion that the court erred in failing to instruct sua sponte that the jury must find the killings to be premeditated and deliberate. There is neither statutory nor constitutional support for this asserted requirement. We conclude the special circumstance findings are valid. We also find beyond a reasonable doubt that defendant was the actual killer, and hence the finding required by Enmund v. Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140, 102 S.Ct. 3368], is satisfied.
IV. Penalty issues
1. Witherspoon/Witt
a. Granting of the People’s challenges for cause.
Defendant asserts four prospective jurors who expressed opposition to the death penalty were improperly excused for cause because they did not make it “unmistakably clear” they would refuse to impose the death penalty in all situations. (Witherspoon v. Illinois (1968) 391 U.S. 510, 522, fn. 21 [20 L.Ed.2d 776, 785, 88 S.Ct. 1770].) As we have held in numerous cases (e.g., People v. Guzman (1988) 45 Cal.3d 915, 954 [248 Cal.Rptr. 467, 755 P.2d 917]), the proper test for determining Witherspoon error is set out in Wainwright v. Witt (1985) 469 U.S. 412, 424-426 [83 L.Ed.2d 841, 105 S.Ct. 844], Under Witt the prospective juror need not demonstrate “unmistakable clarity” about his opposition, but may be excluded for cause if his views on the death penalty would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Id. at p. 424 [83 L.Ed.2d at pp. 851-852], fn. omitted.)
Defendant asserts we should not apply Witt “retroactively.” We have applied Witt retroactively in numerous recent cases (e.g., People v. Guzman, supra, 45 Cal.3d 915, 954-956), and we are satisfied that our practice is in conformity with constitutional principles. We thus analyze defendant’s claims pursuant to Witt, supra, 469 U.S. 412.
(i) Prospective Juror S. C.S. stated she “believed” in the death penalty, but her religious beliefs might prevent her from actually voting for it. On further questioning about whether she could vote to impose death, she responded: “I don’t think I can,” “I don’t think so,” and “Oh, I don’t know. I don’t think I could tell someone just take their life away, I don’t think so.” When asked if she could vote for death for Adolf Hitler, she replied, “I don’t think I could. I don’t know.”
(ii) Prospective Juror M. S.M. expressed general qualms about the death penalty, and on further questioning stated, “due to my religious belief I don’t feel that I could vote for the death penalty,” regardless of the facts of the case. He affirmed this statement twice more, telling defendant he did not believe he could vote for death even if Hitler or Attila the Hun were on trial.
(iii) Prospective Juror F. L.F. told the court she did not believe in the death penalty, and twice affirmed, “I do believe that I could not vote for the death penalty” under any circumstances. She later told the court that even if instructed that the death penalty was a proper sentence under the law, she could not follow the law and impose death: “I really believe I couldn’t. I couldn’t live with myself.”
(iv) Prospective Juror J. M.J. stated he did not believe he could “participate in anything that may involve putting a person to death.” He thereafter affirmed three times that his conscience would not permit him to vote for death under any circumstances.
As in Guzman, supra, we conclude that under these circumstances “the court could properly have concluded from their responses that [the] jurors’ views would ‘prevent,’ or at least ‘substantially impair’ performance of their duties as jurors at the penalty trial.” (45 Cal.3d at p. 956.) We find no error under Witherspoon, supra, 391 U.S. 510, or Witt, supra, 459 U.S. 412.
b. Denial of defendant's challenges for cause.
In a related argument, defendant asserts in his supplemental brief that the court erred by failing to excuse for cause three jurors who were inclined toward imposition of death. As a result, defendant asserts, he was forced to use peremptory challenges to remove those jurors. Consequently he exhausted all of his challenges, and the court refused to allow him additional peremptory challenges. (See People v. Bittaker (1989) 48 Cal.3d 1046, 1087-1088 [259 Cal.Rptr. 630, 774 P.2d 659]; People v. Coleman, supra, 46 Cal.3d 749, 770.)
Assuming for the sake of argument that the propriety of the court’s ruling on defendant’s “for cause” challenges is properly raised (see People v. Gordon (1990) 50 Cal.3d 1223, 1248 [270 Cal.Rptr. 451, 792 P.2d 251]), we find no basis for reversal because we are not convinced the court erred in failing to excuse the jurors in the first instance.
(i) Prospective Juror W. J.W. gave several equivocal answers about the death penalty. He told defendant he believed the death penalty was appropriate for first degree murder, but not for “crimes of passion”; thereafter he told the prosecutor he would not automatically vote for death, and he told the court he would “listen to the testimony” and did not consider either possible penalty to be “automatic.”
(ii) Prospective Juror C. On questioning by the court, T.C. admitted his “innermost feeling” that one convicted of first degree murder deserved the death penalty, and stated that he “thinks” he “probably” would “always vote for the death penalty.” After the court explained that the jury would be instructed to consider factors in mitigation and aggravation, however, he stated he would not vote for death if he felt the mitigating evidence outweighed that in aggravation. In response to questioning by defendant, C. again expressed his feeling that first degree murderers deserve death. In response to further questions by the prosecutor and defendant, he stated he would consider the mitigating evidence in making his decision, but that it would be difficult for him to conclude a sentence less than death was appropriate for first degree murder.
(iii) Prospective Juror B. M.B. told the prosecutor she believed the death penalty was appropriate in some cases, but not others. She told defendant she believed death was appropriate for first degree murder. She then told the prosecutor she would consider all the evidence in determining the appropriate penalty. She thereafter stated that death was the proper penalty for one convicted “beyond a reasonable doubt” by a fair jury that had weighed all the evidence presented it.
In People v. Ghent (1987) 43 Cal.3d 739, 768 [239 Cal.Rptr. 82, 739 P.2d 1250], we noted that when “equivocal or conflicting responses are elicited..., the trial court’s determination as to [the prospective juror’s] true state of mind is binding on an appellate court.” In Bittaker, supra, 48 Cal.3d at pages 1089 and 1091, we applied that rule to find proper a trial court’s denial of a defendant’s challenges for cause in the face of equivocal responses by three prospective jurors. The same rule applies, and the same result follows, here. We conclude the trial court did not err by denying defendant’s challenges for cause.
2. Admission of uncharged crimes
Defendant concedes section 190.3, factor (b), specifically allows introduction of “uncharged crimes” evidence at the penalty phase, but he asserts admission of such evidence (e.g., the murders of Mochel and Aguilar) violated his due process and self-incrimination rights. In a supplemental brief he insists that, for various reasons, admission of such evidence also violates both his Eighth Amendment right to a “reliable” sentence, and his right to equal protection.
We rejected defendant’s due process claim in People v. Balderas (1985) 41 Cal.3d 144, 204-206 [222 Cal.Rptr. 184, 711 P.2d 480]; for the same reasons, we would reject his Eighth Amendment “reliability” claims as well. The high court rejected defendant’s self-incrimination claim in McGautha v. California (1971) 402 U.S. 183, 213-217 [28 L.Ed.2d 711, 729-732, 91 S.Ct. 1454]. In People v. Ghent, supra, 43 Cal.3d 739, 773-774, we rejected defendant’s related assertion that failure to require jury unanimity on the uncharged crimes posed a constitutional problem; we thus reject this aspect of his Eighth Amendment challenge as well. For the same reasons we reject defendant’s equal protection challenge.
3. Corroboration of accomplice testimony
Pursuant to section 1111, the court instructed that Charlene’s testimony must be corroborated. Defendant insists there was insufficient evidence to corroborate Charlene’s penalty phase testimony about the murders of Mochel and Aguilar.
Corroboration is sufficient if it merely “tends in some degree to implicate the defendant.” (People v. Santo (1954) 43 Cal.2d 319, 327 [273 P.2d 249].) As noted above, defendant’s own testimony that he was present at the Sail Inn on the night of Mochel’s disappearance linked him to that killing, and Charlene led the police to the exact location where the body was found. She testified they had fished earlier in the day in the location where Mochel was killed, and that Mochel’s hands had been tied. When the body was found police discovered the hands were bound by fishing line. Similarly, physical evidence found at the scene of the Aguilar murders—i.e., clothing and yellow nylon rope described by Charlene—amply corroborated Charlene’s testimony, and demonstrated that she had knowledge of the murder that could have been possessed only by one who was present at the killing.
4. Introduction of juvenile crimes
As noted above, by stipulation the jury was instructed on defendant’s prior criminal record, including an adjudication for lewd conduct when he was 13, and an adjudication for armed robbery when he was 16. He now asserts admission of his juvenile adjudications was prejudicial error.
Defendant waived his claim by his counsel’s decision to enter the stipulation. In any event, the claim—at least as to the robbery, which is clearly a violent offense—is meritless. (People v. Lucky (1988) 45 Cal.3d 259, 294-295 [247 Cal.Rptr. 1, 753 P.2d 1052] [adjudication of attempted use of force or violence as a juvenile admissible in aggravation under § 190.3, factor (b)].) The People appear to concede that the record does not demonstrate that the lewd conduct involved attempted use of force or violence, but assert it is nevertheless admissible as a “felony conviction” under section 190.3, factor (c). Under our analysis in Lucky, supra, 45 Cal.3d at page 295, this view is unpersuasive; and yet, even if we assume penalty phase counsel acted unreasonably in this regard, the misjudgment was plainly harmless in light of the other properly introduced aggravating evidence in this case. (Strickland v. Washington (1984) 466 U.S. 668, 693-696 [80 L.Ed.2d 674, 697-699, 104 S.Ct. 2052] [reasonable probability standard].)
5. Escape attempt
Defendant asserts the court erred in allowing the jury to consider evidence of his escape attempt as an aggravating factor under section 190.3, factor (b). He observes that pursuant to People v. Boyd (1985) 38 Cal.3d 762, 775-776 [215 Cal.Rptr. 1, 700 P.2d 782], uncharged criminal activity involving use or attempted use of force or violence may be used in aggravation only if, beyond a reasonable doubt, the jury concludes the defendant’s conduct amounted to a crime.
Although the question may be close, we are not prepared to say the escape plan evidence {ante, p. 155) was insufficient to meet this test. Nevertheless, assuming arguendo the evidence was insufficient to establish such a crime, we conclude its admission was nonprejudicial. We agree with defendant that in some cases, erroneous admission of escape evidence may weigh heavily in the jury’s determination of penalty. In view of the properly admitted aggravating evidence in this case, however, we conclude there is no reasonable possibility that the asserted error affected the penalty verdict. (People v. Brown (1988) 46 Cal.3d 432, 446-448 [250 Cal.Rptr. 604, 758 P2d 1135].)
6. Photographs of remains of Aguilar and Mochel
Defendant objected under Evidence Code section 352 to three photographs at the penalty trial. The first two concerned the Mochel murder. One photo shows a roadway, and demonstrates the difficulty of seeing the victim’s remains from the roadway; the body is barely visible. The other photograph is of the same view, taken closer to the body, showing skeletal remains. The other photograph concerned Aguilar. It showed only her ankles and shoes, and her feet tied with yellow rope.
All of the photographs were relevant. The first two show that the perpetrator left the body in an area where it was unlikely to be discovered, and corroborate Charlene’s testimony about the killing. The third photograph corroborates Charlene’s testimony regarding the type of shoes the victim was wearing. None of the photographs is so gruesome that we would find its admission an abuse of discretion (Allen, supra, 42 Cal.3d at p. 1256), and in any event on this record it is difficult to imagine that had the challenged photographs been excluded the result would have been different (id., at p. 1258).
7. Lack of remorse
The prosecutor elicited from Charlene the fact that defendant expressed no remorse for killing Mochel despite the victim’s pleas for herself and her children. Defendant asserts this testimony is inadmissible under Boyd, supra, 38 Cal.3d 760, 774. We have repeatedly rejected similar claims that the prosecution may not comment, in argument, on a defendant’s lack of remorse. (See, e.g., People v. Carrera, supra, 49 Cal.3d 291, 339 [“[a] defendant’s remorse or lack thereof is a proper subject for the jury’s consideration at the penalty phase”].) For the same reasons, we reject defendant’s contention.
8. Motion to question penalty jury
Section 190.4, subdivision (c), provides that the same jury that decided guilt and special circumstances is to decide penalty “unless for good cause shown, the court discharges that jury in which case a new jury shall be drawn... .” At the start of the penalty phase defendant moved to question the jury to determine whether there was “good cause” for its discharge. He asserts the court erred in denying his motion.
We find no error. First, as we have held in numerous cases, the statutory preference for a single jury in capital cases is constitutionally unobjectionable. (People v. Fields (1983) 35 Cal.3d 329, 351-353 [197 Cal.Rptr. 803, 673 P.2d 680].) Second, although section 190.4 envisions departure from this course on a showing of “good cause,” we reject defendant’s speculation that because he may have conducted an inadequate voir dire at the guilt phase, and/or may have alienated the jury during the guilt trial, there existed grounds to question the jury a second time before the penalty trial.
A court does not abuse its discretion by failing to allow a disappointed defendant to conduct a fishing expedition to attempt to discover good cause when there is no independent basis to believe good cause exists.
9. Motion to sequester during the penalty phase
Citing distinguishable, out-of-state authority applying statutory and common law (e.g., Lowery v. State (Ind. 1982) 434 N.E.2d 868), defendant asserts that sequestration of a capital jury should be mandatory throughout the trial, or at least during deliberations, on a defendant’s request. There is no basis in our law for this proposition. As noted above, section 1121 leaves sequestration to the sound discretion of the trial court, and requires the court to admonish the jurors if it allows them to separate. This legislative rule, which under California law has long applied with equal force in capital cases (see People v. Bunyard (1988) 45 Cal.3d 1189, 1218 [249 Cal.Rptr. 71, 756 P.2d 795]) must be followed unless it violates the Constitution—a showing defendant does not and cannot make. There being no basis on which to conclude the court abused its discretion, we find no error. (Id., at pp. 1219-1220.)
10. Overlapping sentencing factors
Defendant asserts the court had a sua sponte duty to modify former CALJIC No. 8.84.1 to make it clear the jury should not “double-” or “triple-count” statutory sentencing factors (a) (circumstances of the crime), (b) (uncharged criminal activity involving force or violence), and (c) (presence or absence of prior felony conviction). (§ 190.3.)
First, we have held, contrary to defendant’s premise, that the jury may properly consider a single underlying event under both factors (b) and (c). (People v. Melton (1988) 44 Cal.3d 713, 764-765 [244 Cal.Rptr. 867, 750 P.2d 741].) We have also held that a jury should not “double count” under both factors (a) and (b), but we have also noted that in the absence of prosecutorial argument inviting the jury to do so, “any ambiguity in the language of the statute or [former] instructions will rarely... cause [] prejudice.” (Id., at p. 763.) Here there was no misleading argument, and we find no basis on which to conclude the jury was misled. As we have held, in these circumstances the court has no sua sponte duty to modify the instruction. (People v. Kimble (1988) 44 Cal.3d 480, 505 [244 Cal.Rptr. 148, 749 P.2d 803].)
11. Failure to label each sentencing factor and delete assertedly “inapplicable,, section 190.3 factors
Defendant suggests the court erred by failing to advise the jury which of the various sentencing factors was aggravating, and which mitigating. As we have repeatedly held, the court has no such duty, because it is for the jury to make such assessments. For the same reason the court has no obligation to “edit” the statutory list of factors to delete those that defendant asserts are “inapplicable.” (See People v. Robbins, supra, 45 Cal.3d 867, 890.)
12. Factor (k)
The court instructed the jury pursuant to former CALJIC No. 8.84.1, which contained the “unadorned” factor (k) of section 190.3 (instructing the jurors to consider “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime”). It rejected defendant’s suggested alternative instruction, which would have allowed the jurors to consider “any other circumstances, which in your mind reasonably mitigates the punishment [defendant] might otherwise receive, even though they are not a legal excuse for the crime.” In light of People v. Easley (1983) 34 Cal.3d 858, 878, footnote 10 [196 Cal.Rptr. 309, 671 P.2d 813], the court should have given defendant’s instruction in order to avoid potential confusion about the jury’s ability to consider defendant’s mitigating evidence. But in view of other properly given instructions, and counsel’s arguments, we are satisfied the jury was not misled about its ability to consider defendant’s mitigating evidence.
The court instructed the jury to find mitigation if there was any substantial evidence to support mitigation, and informed the jury it could “choose” life without possibility of parole even if it failed to find mitigation. It also substantially modified former CALJIC No. 8.84.2, to read: “[If] aggravating circumstances outweigh the mitigating circumstances, you may impose a sentence of death, but are not required to do so. That is, unlike during the guilt phase of this trial, you may consider humanity and mercy... .” (Italics added.) The former italicized language clearly precludes any claim that the jury was misled about its sentencing discretion under People v. Brown (1985) 40 Cal.3d 512, 536-544 [220 Cal.Rptr. 637, 709 P.2d 440]. And in our view the latter italicized language reasonably conveyed to the jury its authority to consider and act on defendant’s mitigating evidence.
This message was supported by counsel’s respective arguments. In his opening argument the prosecutor carefully explained why defendant deserved death over life in prison, and never suggested the jury should ignore defendant’s mitigating evidence. Defense counsel then recounted defendant’s mitigating evidence in detail, concentrating on his troubled childhood. In his rebuttal, the prosecutor addressed defendant’s mitigating evidence. He implicitly conceded that such evidence was relevant and should be considered, but told the jury it was unpersuasive, because regardless of difficult background, ultimately each person must account for his own life and conduct. We conclude, on this record, the jury was not misled about its ability to consider defendant’s mitigating evidence.
13. Brown error
Despite the above quoted modified instructions, defendant insists the jury may have been misled about the scope of its sentencing authority. He suggests the jury may have been led to believe that its task of “weighing” the aggravating and mitigating factors allowed it merely to count the respective factors, without having to face the normative decision of whether death was warranted in this case.
Nothing in the above quoted instructions, or counsel’s arguments thereon, supports this view. Indeed, the court specifically instructed the jury not to do exactly what defendant speculates it “might” have done. The jury was told, “[Y]ou may not decide the effect [of the aggravating and mitigating] circumstances by the simple process of counting the number of factors on each side. The particular weight of such opposing circumstances is not determined by their relative number, but rather by their relative convincing force on the ultimate question of punishment.” Consistent with this instruction, both counsel’s arguments properly and persuasively emphasized the jury’s normative “choice” of penalty; contrary to defendant’s reading of the record, the prosecutor never even suggested the jury should simply “count” the opposing factors. On this record it is not possible the jury was misled about its sentencing discretion. (See Allen, supra, 42 Cal.3d at pp. 1276-1280.)
14. Davenport error
Contrary to People v. Davenport (1985) 41 Cal.3d 247, 289 [221 Cal.Rptr. 794, 710 P.2d 861] and its progeny, the prosecutor argued that the absence of mitigation under section 190.3, factors (e) (victim participation or consent in the homicide), (f) (reasonable belief in moral justification or extenuation), (g) (extreme duress or substantial domination), and (j) (accomplice or minor participation), rendered each of those factors aggravating. As we have held in numerous cases, such argument, although improper, may not be asserted as prosecutorial misconduct because a timely admonition would have cured any harm. (See, e.g., Brown, supra, 46 Cal.3d at p. 456.) Also as in each of our prior cases, however, we conclude there is no reasonable possibility the prosecutor’s argument prejudiced the sentencing decision.
Our resolution of this issue in Brown, supra, 46 Cal.3d 423—in which the prosecutor improperly asserted that at least six of the factors for which there was no evidence of mitigation constituted factors in aggravation (id., at p. 455, fn. 10)—serves to dispose of the issue here as well: “First, as we explained] above, on this record a reasonable jury would not have been misled about the nature of its weighing process. Second, we note the jury was instructed to consider the listed factors only ‘if relevant’; thus, we believe a reasonable jury would have understood that it was allowed to give those factors whatever little weight they deserved. Given this, and in view of the overwhelming nature of the properly introduced aggravating evidence, we conclude it is not reasonably possible that the prosecutor’s unobjected-to mischaracterization of the aggravating circumstances would have influenced a reasonable jury’s sentencing decision.” {Id., at p. 456.)
15. Excessive multiple-murder special circumstances
Defendant correctly observes the jury found true two multiple-murder special circumstances, when under our cases (e.g., Allen, supra, 42 Cal.3d at p. 1273) only one should have been charged and found true. As in Allen, it follows that one such special circumstance must be set aside; but also as in Allen, and every other case in which this issue has arisen, we find the error harmless. The jury had before it one valid multiple-murder special circumstance, and two kidnapping-murder special circumstances. At argument the prosecutor did not emphasize the number of special circumstances found true. Accordingly, the jury did not consider under factor (a) (§ 190.3, factor (a)) any evidence that was not otherwise admissible and relevant {Allen, supra, 43 Cal.3d at p. 1281). In view of the proper aggravating factors, the prosecutor’s argument, and the other properly admitted aggravating evidence, there is no reasonable possibility that the presence of one extra multiple-murder special circumstance affected the verdict.
16. Refusal to instruct on disparity in sentence between defendant and Charlene
Defendant insists the court erred by refusing to instruct that the jury could consider any “disproportionate disparity” between his and Charlene’s sentences, in fixing the penalty. The court’s refusal was not error because, as we have held in Dyer, supra, 45 Cal.3d at pages 69-71, such evidence is irrelevant to the capital jury’s sentencing determination. (See People v. Johnson (1989) 47 Cal.3d 1194, 1249 [255 Cal.Rptr. 569, 767 P.2d 1047].)
17. Instructions on the Governor’s commutation power
Pursuant to our decision in People v. Ramos (1982) 30 Cal.3d 553 [180 Cal.Rptr. 266, 639 P.2d 908], the court refused to give the “Briggs” commutation instruction which, we have noted, violates our state Constitution because it fails to advise the jury that a penalty of death, as well as life without possibility of parole, may be commuted. (People v. Ramos (1984) 37 Cal.3d 136, 155-158 [207 Cal.Rptr. 800, 689 P.2d 430] [Ramos II].) Defendant asked the court to give an alternative instruction that (i) accurately reflected the Governor’s commutation power, but which (ii) also instructed the jury not to consider the possibility of commutation in its sentencing decision.
As we noted in Coleman, supra, 46 Cal.3d 749, 782, footnote 27, Ramos II, supra, 37 Cal.3d at page 159, footnote 12, suggests defendant’s proffered instruction—at least the last part of it—should have been given. Of course the court did not have the benefit of Ramos II at the time of trial, but even assuming error we find no prejudice. In the absence of evidence that the jury actually considered the Governor’s commutation power, there is no reasonable possibility the court’s failure to give the cautionary instruction prejudiced defendant.
18. Failure to instruct jury to ignore CALJIC No. 1.00 at the penalty phase
Defendant asserts the court erred in failing to inform the jury that the “no sympathy” instruction (CALJIC No. 1.00), which was delivered at the guilt phase, is inapplicable at the penalty phase. As noted above however, the court did inform the jury that “unlike during the guilt phase of this trial, you may consider humanity and mercy... .” (Italics added.) In any event, as we have previously held, the court does not err by failing to instruct the penalty phase jury to ignore the previously given guilt phase instruction. (See Brown, supra, 46 Cal.3d 432, 460.)
19. Error in giving defendant's requested instruction on deterrence
At defendant’s request the court modified former CALJIC No. 8.84.1 by adding factor (/), informing the jury it could consider in sentencing “[wjhether or not execution as contrasted with life without possibility of parole will deter future acts of murder.” He now asserts the court erred to his prejudice in giving his requested instruction.
The claim is precluded by the invited error doctrine. (Wickersham, supra, 32 Cal.3d 307, 330.) Defendant, through his counsel, made a tactical decision to present expert evidence on deterrence, and to request the instruction. In any event, contrary to defendant’s assertion, the instruction was not erroneous under Murtishaw, supra, 29 Cal.3d 733, 767-768, which precludes the People from presenting expert evidence of a defendant’s “future dangerousness.” As the People observe, Murtishaw is inapplicable. Here the defense introduced evidence that the death penalty was not a deterrent when compared to life in prison without the possibility of parole, and the instruction merely allowed the jury to consider that evidence.
20. Argument to the jury
Defendant asserts the court erred in failing to allow him, after the close of evidence and after arguments by the prosecutor and defense counsel, to address the penalty jury. As we held in Robbins, supra, 45 Cal.3d at pages 888-890, a capital defendant has no such right of allocution, and hence the court did not err. We also reject defendant’s related argument that he should have been allowed to address the jury because he was entitled to have two attorneys argue his case. (See Keenan v. Superior Court (1982) 31 Cal.3d 424, 429 [180 Cal.Rptr. 489, 640 P.2d 108].) Defendant was not granted the right to represent himself at the penalty trial. Because he had only one attorney—Mr. Fathy—Keenan, supra, is inapposite.
21. Proportionality
a. Comparative sentence review. We have previously rejected in numerous cases defendant’s suggestion that we should or must undertake comparative sentence review. (See, e.g., Guzman, supra, 45 Cal.3d at p. 966.)
b. Dillon/Lynch analysis. Defendant also claims that in light of Charlene’s sentence of 16 years, 8 months, his sentence is disproportionate under the rule of People v. Dillon (1983) 34 Cal.3d 441, 477-482 [194 Cal.Rptr. 390, 668 P.2d 697] and In re Lynch (1972) 8 Cal.3d 410, 423-429 [105 Cal.Rptr. 217, 503 P.2d 921], The record shows, however, that defendant was the primary actor and driving force in the murders. There is no merit in his suggestion that the prescribed punishment for the offenses of kidnapping/murder, etc., is more severe than that prescribed for less serious crimes, or that the penalty is disproportionate to that prescribed for the same offense in other jurisdictions. Nor, in view of the facts of this case, can defendant reasonably assert the punishment is disproportionate to his individual culpability. (Accord Allen, supra, 42 Cal.3d at p. 1286.)
22. Other constitutional challenges to the death penalty
Contrary to defendant’s assertion, there is no requirement that aggravating factors be found to outweigh those in mitigation “beyond a reasonable doubt.” (E.g., Allen, supra, 42 Cal.3d at p. 1285). Nor is the death penalty “cruel and unusual punishment” under the federal or state Constitutions. (See, e.g., Gregg v. Georgia (1976) 428 U.S. 153 [49 L.Ed.2d 859, 96 S.Ct. 2909]; People v. Frierson (1979) 25 Cal.3d 142, 184-186 [158 Cal.Rptr. 281, 599 P.2d 587].)
23. Denial of defendant's Marsden motion
On the second day of the penalty trial defendant told the court he disagreed with Mr. Fathy’s strategy—he was particularly upset that Fathy did not vigorously contest the Aguilar and Mochel murders—and he discussed waiving his presence for the remainder of the trial. He moved to dismiss counsel, but after extended discussions with the court, the next morning defendant announced, “I’m not going to desert my lawyer.” A week later, at the close of the penalty trial, he again moved to dismiss Fathy, “and ask the Court to appoint me a new attorney... .” After listening to his reasons, the court denied the motion, with the closing comment, “the motion for self-representation is denied.”
Defendant, seizing on the italicized comment, asserts the court believed defendant was really making a Faretta motion, and thus erred in rejecting his Marsden motion and in denying defendant’s asserted Faretta motion without conducting a hearing. The record refutes the claim. The court clearly understood—as defendant plainly stated three times—that defendant wanted appointment of a “new attorney,” and did not seek self-representation. The court listened to defendant’s complaints, responded in detail to his concerns about Fathy’s strategy, and explained that in its view those disagreements did not warrant a change of counsel “practically at the conclusion of [the] trial.”
No abuse of discretion appears. The court properly determined that under the circumstances the disagreement in tactics did not signal a breakdown in the attorney-client relationship sufficient to jeopardize defendant’s right to effective assistance of counsel. (See People v. Williams (1970) 2 Cal.3d 894, 904-906 [88 Cal.Rptr. 208, 471 P.2d 1008].) The court’s apparent slip-of-tongue at the conclusion of its ruling provides no basis for reversal.
24. Failure to examine and admonish the jury
During the testimony about the killing of Aguilar the court was informed by a juror that alternate Juror T.—who was pregnant—was not feeling well, and was upset about the effect of the testimony on her pregnancy. T. then approached the court" and stated she felt she could not continue, having become very upset about the testimony of the murder of Aguilar, who, as noted above, was also pregnant.
The court suggested T. be excused, and defense counsel stated he had no objection to doing so. The court then explained to the jury that T. was excused “for medical reasons.” Defendant now suggests the court should have examined sua sponte the remaining jurors to determine if they had been improperly influenced by T., and also should have admonished the jury against considering T.’s experience in determining the proper penalty. Even assuming such a sua sponte duty, in the absence of any evidence of misconduct by T. or any other member of the jury we conclude there is no reasonable possibility the jury’s deliberations were improperly affected.
25. Failure to remove a juror
During the penalty phase Juror Y. attempted to give some religious material to defendant. Thereafter she was questioned in chambers in the presence of both counsel. She explained she had become concerned with defendant’s soul, and believed it was her duty as a Christian to “give him the word of God so that, you know, he has it. I mean it can be a comfort to him.” She conceded that she had discussed this point with her husband, and on further questioning stated her religious feelings would not affect her ability to follow the instructions and fairly decide the sentence.
The prosecutor asked to excuse Y., and defendant’s counsel strenuously objected. Defendant now asserts the court erred by ruling in his favor and allowing Y. to remain. The issue is waived by counsel’s action, which was itself plainly based on his tactical assessment, reasonable under the circumstances, that Y. would be sympathetic to his case. We perceive neither error nor ineffective counsel.
26. Ineffective trial counsel
Defendant has the burden of proving counsel’s unreasonable performance and resulting prejudice. (See People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal.Rptr. 855, 659 P.2d 1144]; Strickland, supra, 466 U.S. 668, 693-696 [80 L.Ed.2d at pp. 697-699] [reasonable probability standard].)
a. Failure to agree to represent defendant at the guilt phase. As noted above, defendant refused to be represented by counsel at the guilt trial, discharged both counsel, Manning and Fathy, and refused the assistance of advisory counsel. Later he changed his mind after having difficulty cross-examining Charlene, and on defendant’s behalf the court asked Fathy to return to the trial. Fathy agreed to do so on the condition the court grant a mistrial, which the court declined to do.
Defendant was not denied effective assistance of counsel by Fathy at the guilt phase, because Fathy, after being discharged at defendant’s request, was not defendant’s counsel at that time. Having represented himself, defendant cannot assert he received ineffective guilt phase representation. (Faretta, supra, 422 U.S. 806, 835, fn. 46 [45 L.Ed.2d at p. 581].) In any event, we reject defendant’s suggestion that Fathy breached a duty to him by failing to return to the trial without conditions after defendant changed his mind. Under the circumstances, we perceive nothing unreasonable in Fathy’s conduct.
b. Failure to properly rebut the Aguilar/Mochel murders. Defendant asserts Fathy performed unreasonably by failing to challenge the prosecution’s assertion that he murdered Aguilar and Mochel, and attempted to escape. It is true that counsel might have treated the aggravating evidence as a guilt trial, and attempted to meet it with rebuttal evidence. But counsel was faced with a jury that had already convicted defendant of multiple murder, had heard extensive testimony on the Vaught/Scheffler murders, and had undoubtedly already formed the view that defendant is a cold-blooded serial killer. It would have served little purpose to contest these additional crimes.
Instead, counsel reasonably focused on Charlene’s role in the killings, defendant’s difficult childhood, possible brain trauma or genetic defects affecting defendant’s ability to control his conduct, and the possible effects of drugs and alcohol on defendant’s brain. Finally, counsel asserted society would be adequately protected if defendant were sentenced to life in prison without possibility of parole. Under the circumstances, counsel could have reasonably concluded that to contest the other crimes more forcefully would only damage his credibility and detract from his other defenses. We find no unreasonable performance.
c. Failure to make evidentiary objections. Defendant faults counsel for failing to object to photographs of victims Aguilar and Mochel taken while they were alive. As we explained above (pt. 11.13), the photographs were relevant and proper evidence; no defective performance appears.
d. Failure to seek removal of juror. Defendant faults counsel for failing to seek removal of Juror Y., after she approached defendant in an attempt to give him religious materials. As we explained above (pt. IV.25.), counsel had an obviously proper tactical reason to decline to seek the juror’s removal. Again, no defective performance appears.
e. Stipulation to juvenile adjudications. As noted above, by stipulation the jury was instructed on defendant’s prior criminal record— including an adjudication for lewd conduct when he was 13, and an adjudication for armed robbery when he was 16. Also as noted above, the latter adjudication was properly admitted at the penalty trial, and counsel could reasonably have determined that it was better to stipulate rather than allow the prosecutor to introduce further testimony about defendant’s various violent crimes. We also held above that under our analysis in Lucky, supra, 45 Cal.3d at page 295, the former adjudication may not have been admissible, absent a showing that it involved violence. Such a showing, however, would likely have not been difficult, and thus we are reluctant to find defective performance in this regard. In any event, however, any assumed misjudgment by penalty phase counsel was plainly harmless in light of the other properly introduced aggravating evidence in this case. (Strickland, supra, 466 U.S. 668, 693-696 [80 L.Ed.2d at pp. 697-699].)
V. Conclusion
The judgment of guilt and the finding of three special circumstances are affirmed. One multiple-murder special circumstance is set aside. The judgment of death is affirmed.
Broussard, J., Eagleson, J., Kennard, J., and Arabian, J., concurred.
Panelli, J., concurred in the judgment.
MOSK, J., Concurring.
I concur in the judgment. After review, I have found no error warranting reversal.
I write separately, however, to set forth my reasons for rejecting defendant’s claim that in its instructions the trial court erred by failing to label the penalty factors as “aggravating” or “mitigating.”
Under the 1978 death penalty law (Pen. Code, § 190 et seq.), the determination of punishment turns on the personal moral culpability of the capital defendant. (See id., § 190.3; see also People v. Malone (1988) 47 Cal.3d 1, 54-55 [252 Cal.Rptr. 525, 762 P.2d 1249] [impliedly recognizing the point]; People v. Davenport (1985) 41 Cal.3d 247, 289 [221 Cal.Rptr. 794, 710 P.2d 861] (plur. opn.) [same].) Culpability is assessed in accordance with specified factors of “aggravation” and “mitigation” (Pen. Code, § 190.3) as construed in the case law: (a) the circumstances of the crime; (b) prior violent criminal activity; (c) prior felony convictions; (d) extreme mental or emotional disturbance; (e) victim participation or consent; (f) reasonable belief in moral justification or extenuation; (g) extreme duress or substantial domination; (h) impairment through mental disease or defect or through intoxication; (i) age; (j) status as an accomplice and minor participant; and (k) any other extenuating fact. (Ibid.)
As used in the law, “aggravation” means that which increases the personal moral culpability of the defendant above the level of blameworthiness that inheres in the capital offense. (See People v. Malone, supra, 47 Cal.3d at pp. 54-55; People v. Davenport, supra, 41 Cal.3d at p. 289 (plur. opn.).) By contrast, “mitigation” means that which reduces the defendant’s culpability below that level. (See People v. Malone, supra, at pp. 54-55; People v. Davenport, supra, at p. 289 (plur. opn.).)
It follows that, strictly speaking, none of the penalty factors is “aggravating” or “mitigating.” Rather, it is the circumstances they define that are properly characterized as such. The point is established by the very words of the law: “aggravating” and “mitigating” are always used to modify “circumstances,” and never to modify “factors” (Pen. Code, § 190.3).
Therefore, I am of the opinion that the trial court did not err in its instructions by failing to label the penalty factors as “aggravating” or “mitigating.” It is, of course, virtually axiomatic that a court must correctly instruct on the law, and that it acts properly when it does so. Here, the court’s instructions were in conformity with the law. “Labeling” would not have been.
I recognize that the trial court did not define “aggravation” and “mitigation.” To be sure, such a definition may provide a “ ‘helpful framework’ for the jury’s consideration” of the penalty to be imposed (People v. Malone, supra, 47 Cal.3d at pp. 54-55)—and should therefore be given in the future to foster rational decisionmaking. In the general case, however, its omission is not error. (Id. at p. 55.) “ ‘Aggravation’ and ‘mitigation’ are commonly understood terms. A trial court is not required to instruct on the meaning of terms that are commonly understood.” {Ibid.) In my view, the failure of the court to define the words in question was not erroneous here.
I also recognize that the trial court did not identify which circumstances were “aggravating” and which “mitigating.” Like the definitions referred to above, identification may aid the jury and should generally be given in the future. But also like those definitions, its omission is usually not error. (See People v. Malone, supra, 47 Cal.3d at p. 55.) A jury should be able to identify the specified circumstances as “aggravating” or “mitigating” by itself. {Ibid.) This is because their nature is “self-evident.” (People v. Jackson (1980) 28 Cal.3d 264, 316 [168 Cal.Rptr. 603, 618 P.2d 149] (plur. opn.) [speaking of the similar circumstances included in the penalty factors specified in former Pen. Code, § 190.3 under the 1977 death penalty law, Stats. 1977, ch. 316, § 11, pp. 1258-1260].) To my mind, the failure of the court to identify the circumstances was not erroneous in this case.
For the reasons stated above, I conclude that the trial court did not err by failing to label the penalty factors as “aggravating” or “mitigating.”
Accordingly, having found no error warranting reversal on this point or any other, I concur in the judgment.
Appellant’s petition for a rehearing was denied February 27, 1991.
Thus, it is manifest that the circumstances of the crime itself (Pen. Code, § 190.3, factor (a)) can be either aggravating or mitigating. Their character depends on the greater or lesser blameworthiness they reveal.
The same is true of prior violent criminal activity. (Pen. Code, § 190.3, factor (b).) The presence of such activity suggests that the capital offense is the product more of the defendant’s basic character than of the accidents of his situation, whereas its absence suggests the opposite. (Cf. Model Pen. Code & Commentaries, com. 6 to § 210.6, pp. 136-138 [speaking of the “aggravating circumstance” of prior violent felony conviction and the “mitigating circumstance” of lack of prior criminal activity].)
Similarly, prior felony convictions (Pen. Code, § 190.3, factor (c)) can be either aggravating or mitigating. Like the presence or absence of prior violent criminal activity, the existence or nonexistence of previous convictions reflects on the relative contributions of character and situation. Further, the existence of such convictions reveals that the defendant had been taught, through the application of formal sanction, that criminal conduct was unacceptable—but had failed or refused to learn his lesson.
The age of the defendant (Pen. Code, § 190.3, factor (i)) can also be either aggravating or mitigating. Age functions “as a metonym for any age-related matter suggested by the evidence or by common experience or morality that might reasonably inform the choice of penalty.” (People v. Lucky (1988) 45 Cal.3d 259, 302 [247 Cal.Rptr. 1, 753 P.2d 1052].)
The existence of any of the following circumstances, however, is mitigating and mitigating only: extreme mental or emotional disturbance (Pen. Code, § 190.3, factor (d)); victim participation or consent (id., factor (e)); reasonable belief in moral justification or extenuation (id., factor (f)); extreme duress or substantial domination (id., factor (g)); impairment through mental disease or defect or through intoxication (id., factor (h)); status as an accomplice and minor participant (id., factor (j)); and any other extenuating fact (id., factor (k)). (See, e.g., People v. Marshall (1990) 50 Cal.3d 907, 944 [269 Cal.Rptr. 269, 790 P.2d 676] [dealing with factors (d), (f), (g), and (j)]; People v. Davenport, supra, 41 Cal.3d at p. 289 (plur. opn.) [dealing expressly with factors (e) and (f) and impliedly with factors (d), (g), (h), and (j)]; People v. Boyd (1985) 38 Cal.3d 762, 775-776 [215 Cal.Rptr. 1, 700 P.2d 782] [dealing with factor (k)]-)
By contrast, the nonexistence of any of the foregoing circumstances is not and cannot be aggravating. The absence of mitigation does not amount to the presence of aggravation. (See People v. Marshall, supra, 50 Cal.3d at p. 944; People v. Davenport, supra, 41 Cal.3d at p. 289 (plur. opn.).)
Gerald Armond GALLEGO, Petitioner-Appellant, v. E.K. McDANIEL, Warden, Ely State Prison; Ron Angelone, Director, Nevada Department of Prisons; Frankie Sue Del Papa, Attorney General of the State of Nevada, Respondents-Appellees.
No. 96-99006.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 10, 1996.
Decided Sept. 4, 1997.
Richard F. Cornell, Law Offices of Richard F. Cornell, Reno, NV, for petitioner-appellant.
Robert E. Wieland, Deputy Attorney General, Carson City, NV, for respondent-appel-lee.
Before: CANBY, NORRIS, and LEAVY, Circuit Judges.
[OPINION BY LEAVY, Senior Circuit Judge: type=majority]
LEAVY, Senior Circuit Judge:
Gerald Armond Gallego, a Nevada death row inmate, appeals from the district court’s denial of his petition for a writ of habeas corpus, arguing that his state conviction and sentence for murder were unconstitutional due to (1) inappropriate trial venue, (2) improper denials of trial continuance motions, (3) unfair restriction on the scope of cross-examination, (4) insufficient evidence of guilt, (5) unlawful jury instruction, (6) denial of effective assistance of trial counsel, and (7) prejudice resulting from the prosecutor’s having a pecuniary interest in the ease. For the reasons which follow, we affirm in part, reverse in part and remand for further proceedings.
FACTS AND PRIOR PROCEEDINGS
On the afternoon of September 11, 1978, two teenaged girls, Kippi Vaught and Rhonda Seheffler, disappeared from the parking lot of a Sacramento shopping mall. Their bodies were found two days later in a rural area outside of Sacramento. Although both victims had suffered blows to the head, they died of gunshot wounds. Vaught’s hands were tied behind her back. Seheffler, who had apparently been raped, died clutching a piece of cord similar to that used to bind Vaught’s hands.
On the afternoon of April 24, 1980, two teenaged girls, Karen Twiggs and Stacey Redican, disappeared from the parking lot of a Sacramento shopping mall. Their bodies were found three months later in a rural area outside of Lovelock, Nevada. Both victims had died from blows to the head. Twiggs’ arms were tied behind her back. A piece of rope similar to that used to bind Twiggs’ arms was found nearby. The bodies were too decomposed for an autopsy to determine whether either victim had been raped.
On November 2, 1980, Mary-Beth Sowers and Craig Miller disappeared from the parking lot of a Sacramento shopping mall. Miller’s body was found a few hours later in a rural area outside of Sacramento; Sowers’ body was found in a different rural area three weeks later. Both victims had died of gunshot wounds. Sowers’ body was too decomposed for an autopsy to determine whether she had been raped.
One of Miller’s friends had been in the mall parking lot on November 2d and had seen Miller and Sowers leave in a vehicle with Gallego and Gallego’s “wife,” Charlene Williams. The friend gave the police a de-seription of Gallego, Williams, their vehicle, and its license number. The police eventually tracked Gallego and Williams to Omaha, Nebraska, where the two were arrested and brought back to California to stand trial for the Sowers/Miller murders.
Williams entered into a plea agreement with authorities in California, Nevada, and Oregon. Under the terms of that agreement, Williams (1) provided information concerning her involvement with Gallego in ten “sex slave” murders the pair had committed in those three states; (2) promised to testify against Gallego in the California and Nevada prosecutions; (3) pleaded guilty to two counts of second-degree murder, for which she received a sentence of less than seventeen years’ imprisonment; and (4) was granted transactional immunity for the remaining eight murders.
In 1983, Gallego was tried, convicted, and sentenced to death in California for the Sowers/Miller murders. The following year he was brought to trial in Nevada for the Twiggs/Redican murders. During the guilt phase of Gallego’s Nevada trial, the prosecution introduced evidence of the then-uncharged Vaught/Scheffler crimes. The jury returned verdicts of guilty on two counts each of first degree kidnapping and first degree murder. During the penalty phase of Gallego’s trial, the prosecution introduced evidence of the Sowers/Miller crimes. Gallego was sentenced to die. ■
The Nevada Supreme Court affirmed Gallego’s conviction and death sentence. Gallego v. State, 101 Nev. 782, 711 P.2d 856 (1985). After all of his Nevada state court collateral attacks had failed, including petitions for post-conviction and habeas corpus relief, Gallego filed the instant petition for a writ of habeas corpus in federal district court. The district court denied relief, and Gallego has timely appealed.
ANALYSIS
Standard of Review
We review de novo a district court’s decision to grant or deny habeas corpus relief. Woratzeck v. Stewart, 97 F.3d 329, 332 (9th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1443, 137 L.Ed.2d 549 (1997). We also review de novo any underlying state court conclusions of law. Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir.1997) (en banc) (citing 28 U.S.C. § 2254(d)(1)). While we examine for clear error any factual findings made by the district court in reaching its decision, Woratzeck, 97 F.3d at 332, we must defer to state court findings of fact unless “based on an unreasonable determination of the facts in light of the evidence presented[.]” Jeffries, 114 F.3d at 1500 (citations and internal quotations omitted).
Discussion
As a preliminary matter, we must first determine which issues are properly before us on appeal. Gallego originally asserted forty issues in his federal habeas petition, but abandoned thirteen of these issues and voluntarily withdrew one more, subject to its later possible incorporation into sixteen of the remaining twenty-six issues. The district court then dismissed nine issues on the ground of procedural default, and portions of four others on the grounds of failure to exhaust, failure to state a claim, and abuse of the writ. The court finally disposed of the remaining seventeen issues on their merits in an elaborate and carefully reasoned fifty-four page opinion.
The appellees argued below, and continue to insist on appeal, that Gallego waived and/or proeedurally defaulted as to most of those seventeen issues. The appellees contend that the district court should have declined to reach their merits, because those issues either had not been exhausted in the state courts, or had “metamorphosed” in the federal courts from the form in which Galle-go had presented them to the Nevada courts.
We reject this contention. The district court carefully and thoroughly dealt with each of these arguments, and properly rejected them on their merits. While our comparison of the issues raised by Gallego in each of his state proceedings with those presented in his federal habeas petition reveals certain differences in wording and presentation, we conclude that the district court correctly determined that the remaining issues in dispute had been fairly presented to the Nevada state courts.
This does not fully answer, however, the question of which of Gallego’s original forty issues are now before us. In his opening brief, Gallego asserted only eight issues, which he reduced to seven in his reply brief. In their answering brief, the appellees rephrased Gallego’s issues and expanded them into a total of thirteen issues. After careful review of the materials provided, we conclude that all of Gallego’s issues fall into four broad categories, viz., Fair Trial, Improper Jury Instruction, Ineffective Assistance of Counsel, and Prosecutorial Misconduct, each of which will be dealt with in turn.
' I. FAIR TRIAL
A. Denial of Motion for Change of Venue
Arguing that a change of venue was necessary because pervasive “media hype” made it impossible to assemble a panel of impartial local jurors, Gallego contends that the trial court deprived him of his right to a fair trial when it denied his motion for a change of venue. We disagree.
A criminal defendant facing trial by jury is entitled to be tried by “a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 Ü.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). Accordingly, a trial judge must grant a motion for change of venue if prejudicial pretrial publicity makes it impossible to seat an impartial jury. Harris v. Pulley, 885 F.2d 1354, 1360 (9th Cir. 1988). As we recently noted,
A defendant need only demonstrate one of two different types of prejudice in support of a motion to transfer venue: presumed or actual. Prejudice is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime. Prejudice is rarely presumed because “saturation” defines conditions found only in extreme situations. To establish actual prejudice, the defendant must demonstrate that the jurors exhibited actual partiality or hostility that could not be laid aside.
United States v. Sherwood, 98 F.3d 402, 410 (9th Cir.1996) (as amended) (internal citations and quotations omitted).
1. Presumptive Prejudice
Among the items to which Gallego cites in support of his claim of presumptive prejudice is the defense’s “scientifically conducted poll” purporting to show pervasive local bias. From our review of the record, we agree with the district court’s conclusion that the trial court properly rejected the poll as being itself biased as well as unscientific.
Gallego also lists some twenty-three examples of how the print and electronic media provided only negative information about him (e.g., a local restaurant’s menu offering “Guilty Porker” pork chops and “Death Penalty” liver and onions, and the creation of a local fund to which the public could and did subscribe in order to help defray the community’s costs of prosecution).
The Nevada Supreme Court properly noted that,
Given the realities of our age, it is unlikely that a high-profile criminal defendant will be presented with a venire of uninformed individuals fi’om which to select a jury. Indeed, it is conceded by many jurists that such a panel would least likely provide the considered, enlightened judgment that can best serve the demands of trial. As a result, courts abide by the following standards:
To hold that the mere existence of any preconceived notion as to the guilt of innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
Gallego v. State, 711 P.2d at 859 (internal citations omitted).
The Nevada Supreme Court then proceeded to make the following observations with respect to the pretrial publicity surrounding Gallego’s trial:
In analyzing the constitutional adequacy of Gallego’s jury, it should be noted that not all of the circumstances contributing to the pre-trial atmosphere were adverse to Gal-lego. Importantly, the victims were not local girls. Moreover, it was evident that many residents of Pershing County were opposed to the trial situs because of the expense to the County. Finally, there were no publications of admissions or confessions attributable to Gallego.
Id.
The district court’s assessment was to the same effect:
[T]he majority of the news stories were well-balanced, factual accounts of the pretrial events in Pershing County. Direct references to Gallego’s California conviction for the murders of Sowers and Miller were accurate and factual. The news stories did not state or imply an opinion of guilt concerning the Redican/Twiggs murder [sic]. The statements made by donors to the prosecution fund clearly appeared as the opinions of individuals. There were no references to confessions or criticisms of defense strategies. A large part of the coverage involved a balanced debate about whether Gallego should have been tried in Pershing County considering the budget restraints of the county. Notably, the reported facts that were material to Galle-go’s guilt or innocence were eventually supported by admissible proof at trial.
ER vol. I, # 11 at 16-17.
We conclude from our review of the record that, while there was a considerable amount of media attention devoted to Gallego’s trial, Gallego has failed to show that the media publicity in his case was so prejudicial and inflammatory as to have constituted legal saturation. Cf. Sherwood, 98 F.3d at 410. Accordingly, we reject the contention of presumptive prejudice.
2. Actual Prejudice
With respect to his claim of actual prejudice, Gallego begins by noting that nearly all of the venire, and most of the jurors empanelled, had some prior knowledge of the case. As we recently stated, however, “a defendant is entitled to an impartial jury, [but] he is not entitled to a jury completely ignorant of the facts. It is not all publicity that causes prejudice to a defendant, but only that publicity that operates to deprive the defendant of a fair trial.” Sherwood, 98 F.3d at 410 (internal citations and quotation omitted).
Gallego devotes much of his argument concerning the allegedly biased jury panel to discussing the purported failings of certain prospective jurors. Whatever the truth of these characterizations of the prospective jurors, we are principally concerned here with those who were actually seated on the petit jury.
Seven of the jurors were passed for cause by defendant. None of the jurors were shown to have formed the opinion that Gallego was guilty of the crimes with which he had been charged. All of the jurors selected indicated they could follow the law, and, if appropriate, return a sentence other than death if they found Galle-go guilty.
Gallego v. State, 711 P.2d at 859.
On the strength of this record, we conclude that Gallego has failed to demonstrate the existence of actual prejudice, ie.t he has not shown “that the jurors exhibited actual partiality or hostility that could not be laid aside.” Sherwood, 98 F.3d at 410 (internal citation and quotation omitted).
B. Denial of Trial Continuance Motion
Gallego contends that the trial court abused its discretion by denying his motion for a continuance of trial, claiming that his counsel lacked sufficient time to prepare an adequate defense. We reject this argument.
Gallego was arraigned on January 12, 1984, and jury selection did not begin in his case until May 14, 1984, giving him four months in which to prepare a defense. There is no contention that Gallego was denied access to the prosecution’s files, and we note that the trial court granted additional funding to Gallego for any outside (e.g., investigative) help his counsel might have deemed necessary to the defense. Most importantly, Gallego has failed to show what prejudice he actually suffered as the result of the denial of a continuance. As the district court noted,
Gallego does not specifically identify any “critical” witness who, but for time limitations prior to and during trial, could have been produced. Gallego makes vague references to mental health experts and/or witnesses who could have been developed by investigating Williams’s background. Even at this late date Gallego has failed to identify any “critical witnesses” and what the witness would have testified to at trial. Prior to and during trial in Nevada, defense counsel reviewed information developed by California defense investigators, transcripts of the California penalty phase proceedings, and met frequently with Gal-lego. In addition, in these proceedings, Gallego has had the opportunity and funds to investigate and develop facts supporting his claims. Gallego has been unable to develop any facts supporting the existence of witnesses who, but for time limitations prior to trial, could have been discovered and produced at trial. The court did not deny Gallego a fair trial by denying the motion for continuance.
ER vol. I, # 11 at 31.
In the absence of a showing of actual prejudice to Gallego’s defense resulting from the trial court’s refusal to grant a continuance, it cannot be said that the district court erred by denying relief on this ground. Cf. United States v. Bauer, 84 F.3d 1549, 1562 (9th Cir.) (direct appeal of federal criminal conviction), cert. denied, - U.S. -, 117 S.Ct. 267, 136 L.Ed.2d 191 (1996).
C. Restrictions on Cross-Examination
Gallego argues that he was effectively deprived of his Sixth Amendment right to confront his accuser when the trial court denied his request that Charlene Williams be required to submit to psychological testing, and that the results of that testing be made available to Gallego at trial. Gallego’s stated purpose for the testing was to discredit Williams’ testimony on cross-examination by introducing evidence of her alleged post-arrest aggressive homosexual conduct with multiple partners while in prison. Gallego argues that such evidence would have buttressed his claim that he didn’t commit the crimes by implying that Charlene, as a highly intelligent lesbian dominatrix, might have been the one who kidnapped and murdered the victims.
The district court summarized its holding in the following language:
The trial court did not commit constitutional error by excluding evidence of Williams’s propensity toward homosexuality. She was not the defendant on trial. * * * Such evidence was in the nature of character evidence and, therefore, only admissible to rebut any evidence Williams may have offered to show she was a peaceful person or not involved in the murders. Finally, all of the proof offered on those subjects was in the form of prison disciplinary reports which suffered from problems of multiple hearsay and relevance. * * * Here, the only possible relevance of the evidence proffered by Gallego was to prove Williams’s propensity for violent homosexual behavior. Gallego fails to identify any authority that gives a defendant a constitutional or statutory right to present evidence of a witness’s character in order to prove conformity therewith.
The trial court also acted within its discretion and within constitutional parameters when it declined to order that Williams be subjected to psychological testing. Again, the results of such a test would only be relevant to show Williams’s propensity to initiate the crimes. At no time did Williams testify that she was a peaceful individual or incapable of instigating the murders. There was no constitutional error in excluding this testimony or denying the request for psychological evaluation of Williams.
ER vol. I, # 11 at 22-23 (internal citations omitted).
The trial court did not forbid Gallego from introducing on cross-examination any evidence of Williams’ character in general, or of her alleged propensity for violent homosexual behavior in particular. Rather, the court ruled that such evidence would be admissible only if Williams “opened the door” by insisting on her own truthfulness or peacefulness. This did not happen. Williams did not claim that she had not participated in the crimes’ charged, and she was subjected to a withering cross-examination that reduced her to tears on at least one occasion.. In light of these facts, we conclude that Gallego was not deprived of his constitutional right to confront his accuser.
D. Sufficiency of the Evidence
Citing Nev.Rev.Stat. § 175.291 and O’Donnell v. Sheriff, 91 Nev. 754, 542 P.2d 733 (1975), Gallego argues that Nevada law mandates that there be sufficient corroborating evidence, independent of any accomplice testimony, to connect the defendant with the commission of the offense charged. From this requirement, Gallego contends that he was denied his right to due process and equal protection because the Nevada Supreme Court decided, inconsistent with its prior decisions, that there was sufficient evidence apart from Williams’ testimony to link Galle-go to the crimes charged.
Gallego apparently never presented the second half of this argument to the Nevada state courts, despite having received an express warning from the district court to do so and having been granted leave to withdraw his initial habeas petition in order to return to the state courts and pursue his unexhausted claims. See Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (per curiam) (a federal constitutional issue purportedly arising out of a state law claim is not exhausted when the state courts were only presented with arguments under state law). In the absence of a showing of either cause and prejudice for this failure, or that a “fundamental miscarriage of justice” would result if this issue were not decided in the first instance by the district court, we decline to reach the merits of this part of his argument.
With respect to the first half of Gallego’s argument, we agree with the conclusion of the Nevada Supreme Court that the corroborating evidence was sufficient as a matter of law to link Gallego to the crimes charged.
An uncommon variety of macrame rope was found in the trunk of Gallego’s Triumph 1500 automobile that matched in all respects the rope that bound the two victims. The State also introduced a photograph taken of Gallego and certain friends several years before the killings at the identical site where the victims were found. The burial place for the two young women was a remote site in a vast desert area, a spot shown to be familiar to Galle-go. Additionally, the State proved that the defendant was in Nevada at Lake Tahoe one day following the disappearance of the victims. Finally, evidence of the murders of Kippie [sic] Vaught and Rhonda Scheffler showed a common scheme or plan consistent with the kidnapping, sexual molestation and eventual killings in the instant case.
Gallego v. State, 711 P.2d at 860.
The cumulative effect of this corroborative evidence, viewed in the light most favorable to the prosecution, was enough to tie Gallego to the Twiggs/Redican murders, and was sufficient for a rational trier of fact to have found the essential elements of the crimes charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979).
II. IMPROPER JURY INSTRUCTION
Gallego argues that he was denied his Eighth Amendment right to a fair hearing at the penalty phase of his trial because the jury was instructed that executive clemency might be available to Gallego if the jury decided to sentence him to life without the possibility of parole instead of death. Under the facts of this ease, we must agree with this contention.
The two jury instructions of which Gallego complains (Jury Instructions 5 and 6) are quoted in full below:
The punishment of death may be imposed only if one or more aggravating circumstances are found and any mitigating circumstance or circumstances which are found do not outweigh the aggravating circumstance or circumstances.
Otherwise, the punishment shall be imprisonment in the state prison for life with or without the possibility of parole.
You are instructed that the sentence of life imprisonment without the possibility of parole does not exclude executive clemency-
If the punishment is fixed at life imprisonment with the possibility of parole, eligibility for parole begins when a minimum of ten years has been served.
ER vol. II-A, #30 at 5 (Jury Instruction Number 5).
Executive clemency involves a decision by the State Board of Pardon Commissioners to commute or reduce a defendant’s sentence from life without possibility of parole to life with possibility of parole.
Executive clemency may also involve a decision by the State Board of Pardon Commissioners to shorten the time a defendant is eligible for parole.
The State Board of Pardon Commissioners consists of the Governor, the Attorney General, and the five Justices of the Supreme Court of the State of Nevada. The Board can change a sentence only by a majority vote, and only if the Governor is in the majority voting to change the sentence.
ER vol. II-A, #30 at 6 (Jury Instruction Number 6).
Gallego objected to the second of these instructions (viz., Jury Instruction 6), and asked the court to give the following instruction instead:
Regarding the possible punishments, you are instructed as follows:
1. Life imprisonment with the possibility of parole is a sentence to life imprisonment which provides that the Defendant would be eligible for parole after a period of ten years. This does not mean that he would be paroled after ten years, but only that he would be eligible after that period of time.
2. Life imprisonment without the possibility of parole means exactly what it says, that the Defendant shall not be eligible for parole.
3. If you sentence the Defendant to death, you must assume that the sentence will be carried out.
ER vol. II-A, # 31 at 3 (Defendant’s Instruction C). The trial court refused to give •Gallego’s proposed instruction “because [it is] not the law.” Id.
Gallego argues that his proposed instruction should have been given in lieu of Jury Instruction 6, not because Instruction 6 incorrectly states the law, but because it inadequately states the law as applied to the facts of his particular ease. Simply put, Gallego contends that, because he was already under sentence of death in California, the jury should have been apprised of just how remote his chances were of ever benefiting from the possibility of executive clemency in Nevada. See Nev.Rev.Stat. § 213.1099-4 (“... the board may not release on parole a prisoner whose sentence to death or to life without possibility of parole has been commuted to a lesser penalty unless it finds that the prisoner ... is not under an order to be detained to answer for a crime ... in another jurisdiction!.]”).
The parties agree that this issue is governed by California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) and by Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir.1994) (as amended). In Ramos, the Supreme Court upheld the constitutionality of the so-called “Briggs Instruction” concerning the possibility of executive clemency as a factor for a jury to take into consideration during a capital trial’s penalty phase proceedings.
The Briggs Instruction reads as follows:
You are instructed that under the State Constitution a Governor is empowered to grant a reprieve, pardon, or commutation of a sentence following conviction of a crime.
Under this power a Governor may in the future commute or modify a sentence of life imprisonment without possibility of parole to a lesser sentence that would include the possibility of parole.
Ramos, 463 U.S. at 995-96, 103 S.Ct. at 3450-51.
The Supreme Court noted that the power of commutation was constitutionally relevant because it was part of the jury’s permissible consideration of future dangerousness under Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Ramos, 463 U.S. at 1001-1002, 103 S.Ct. at 3453-3454. The Court went on to hold, however, that there was no “diminution in the reliability of the sentencing decision of the kind condemned in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).” 463 U.S. at 1004, 103 S.Ct. at 3455.
In Gardner, the jury had been given access to a presentence report that the defense had not seen. The death sentence was overturned “[b]eeause of the potential that the sentencer might have rested its decision in part on erroneous or inaccurate information that the defendant had no opportunity to explain or deny[.]” Ramos, 463 U.S. at 1004, 103 S.Ct. at 3455. The Court in Ramos went on to note that
Gardner provides no support for respondent. The Briggs Instruction gives the jury accurate information of which both the defendant and his counsel are aware, and it does not preclude the defendant from offering any evidence or argument regarding the Governor’s power to commute a life sentence.
Id. (footnote omitted).
Thus, one of the key factors emphasized by the Court in Ramos was that of accuracy:
Finally, we emphasize that informing the jury of the Governor’s power to commute a sentence of life without possibility of parole was merely an accurate statement of a potential sentencing alternative. To describe the sentence as “life imprisonment without possibility of parole” is simply inaccurate when, under state law, the Governor possesses authority to commute that sentence to a lesser sentence that includes the possibility of parole. The Briggs Instruction thus corrects a misconception and supples the jury with accurate information for its delberation in selecting an appropriate sentence.
Id. at 1009, 103 S.Ct. at 3457 (emphasis in original; footnote omitted). Accord Caldwell v. Mississippi 472 U.S. 320, 342, 105 S.Ct. 2633, 2646, 86 L.Ed.2d 231 (1985) (during the penalty phase of a capital ease, jurors may be instructed on post-sentencing review by appellate courts, so long as the information provided the jurors is accurate) (O’Connor, J., concurring in part and concurring in judgment).
The question of accuracy figured largely in Hamilton, where we construed Ramos as requiring the reversal of the district court’s denial of habeas relef based on a ehalenged penalty phase jury instruction in a capital case. We discussed the Eighth Amendment’s application to such an instruction in the following terms:
In analyzing whether a sentencing phase instruction violates the Eighth Amendment, a court must determine if there is a reasonable likelihood that the jury applied the instruction in such a way that prevented consideration of relevant mitigating evidence. A penalty phase instruction violates the Eighth Amendment if it prevents the jury from giving a reasoned moral response to the petitioner’s mitigating evidence, or creates the risk that the death penalty would be imposed despite evidence which may call for a life sentence.
Hamilton, 17 F.3d at 1160 (internal citations omitted). We proceeded to hold that a lengthy and detailed instruction consisting of thirty-seven dense lines of explanation and admonition, “cobbled together” into a “confusing pastiche” and given in addition to and in explanation of a Briggs Instruction, was misleading to the jury and therefore constituted an inaccurate statement of the law under Ramos. Id. at 1161-64.
While Instruction 6 was relatively brief and not inaccurate as a general statement of the law, it was misleading as applied to the facts of Gallego’s ease. It could have prompted the jury into making erroneous speculations about the kind of sentence Gal-lego might actually have to serve. The combination of the two instructions as given suggests that, were Gallego sentenced to life without the possibility of parole, an exercise of clemency by the Board of Pardon Commissioners in reducing the sentence to life with parole would render Gallego eligible for parole in only ten years, if not less. That is not the law. One Nevada statute would preclude Gallego’s parole before twenty years, and another would make it unlikely that he would be paroled at all. See Nev.Rev.Stat. § 213.1099-4 (reduction of sentence of life without possibility of parole renders prisoner ineligible for parole until he has served at least twenty years); Nev.Rev.Stat. § 213.1099-4 (prisoner whose sentence has been commuted from death or life imprisonment without parole may not be paroled if under detainer to answer for crime in another jurisdiction).
The Supreme Court’s most recent pronouncement on this subject, O’Dell v. Netherland, — U.S. -, 117 S.Ct. 1969, 138 L.Ed.2d 351(1997) (No. 96-6867), is not to the contrary. In that case, the Court held that the rule announced by the plurality in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (viz., that a capital defendant must be permitted to inform his sentencing jury that he is parole-ineligible if the prosecution argues that the defendant presents a future danger), was a new rule for purposes of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). O’Dell, — U.S. at-, 117 S.Ct. at 1979, 138 L.Ed.2d 351.
Here, by way of contrast, Gallego only sought to make the jury aware of the fact that, as the result of his past conduct and his California death sentence, it was not necessary to sentence him to death in Nevada in order to ensure that he could not be released after serving only a relatively brief period. See Ramos, 463 U.S. at 1004, 103 S.Ct. at 3455 (“The Briggs Instruction gives the jury accurate information of which both the defendant and his counsel are aware, and it does not preclude the defendant from offering any evidence or argument regarding the Governor’s power to commute a life sentence.’’) (emphasis added). That position is consistent with the principle announced in Ramos and explained in Hamilton.
Accordingly, we conclude that the instructions as given inadequately stated the law as applied to the facts of Gallego’s case, and find that the district court erred by ruling to the contrary.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Gallego claims that he was denied the effective assistance of counsel during the guilt phase of his trial because (1) the trial court failed to authorize a background investigation of Williams; (2) defense counsel failed to bring out all of Williams’ prior inconsistent statements; and (3) defense counsel failed to challenge the terms of Williams’ plea agreement. Gallego also claims that he was denied the effective assistance of counsel during the penalty phase of his trial because (4) defense counsel failed to obtain all of Galle-go’s medical history records.
In order to show that he was denied the effective assistance of counsel, “(1) the defendant must show that counsel’s representation fell below an objective standard of reasonableness; and (2) the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir.1996) (citation and internal quotations omitted), cert. denied, — U.S. --, 117 S.Ct. 2444, 138 L.Ed.2d 203, 1997 WL 251244 (U.S. June 9, 1997). This Gallego has not done.
1.Incomplete Background Investigation
The district court summarized its findings with respect to Gallego’s first argument concerning the failure to conduct a proper background investigation as follows:
There is no allegation in Gallego’s brief that his trial counsel either did not attempt to investigate Williams, or that he unreasonably budgeted the resources available to him. Gallego acknowledges “trial counsel was extremely diligent in utilizing the limited time and resources available to him.” Gallego has had the time and resources in the course of this proceeding to discover background material on Williams and has not brought any significant evidence to the attention of this court. There is also no allegation that any background investigation of Charlene Williams would have revealed information that might have changed the result at trial. Gallego has failed to support his contention that his counsel’s failure to develop additional background evidence on Williams was prejudicial.
Gallego’s ineffective assistance of counsel claim is equally unpersuasive as applied to his post-trial attorney. His counsel was given $5,000 for investigations relevant to the post-trial proceeding and chose not to devote the funds to an investigation of Williams. He also sought additional funds from the court, but his request was denied. Gallego has failed to identify any unreasonable conduct on behalf of his post-trial counsel.
Gallego also appears to contend that the court failed to authorize a sufficient investigation of Williams. Again, Gallego has not identified any information that has been uncovered in a subsequent investigation of Charlene Williams, which, if known at the time of the post-trial proceedings, could have changed the results.
ER vol. I, # 11 at 49-50. We agree with this assessment, and conclude that the district court did not err by ruling as it did.
2.Prior Inconsistent Statements
Gallego’s second argument, which appears to be an amalgam of several issues, suffers from two defects. First, Gallego himself freely admits that his trial counsel made a tactical decision not to keep Williams on the witness stand for two or three days in the hopes of bringing out every single inconsistent statement she’d ever made, for fear that it would only serve to emphasize the damning portions of her testimony. Second, this claim of error involves issues that were either abandoned or were properly found by the district court to have been procedurally barred from federal habeas review by an adequate and independent ground of state law. Accordingly, we find no error with the district court’s ruling on this issue, either.
3.Williams’ Plea Agreement
Gallego’s third argument is really a combination of two issues: First, that his counsel was ineffective by failing to persuade the trial court to inform the jury that Williams might get good time credits in prison and serve less than the amount of time called for in her plea agreement; and second, that his attorney was ineffective by fading to challenge Williams’ plea agreement on the ground that it was a contingent, revocable plea bargain violative of due process.
With respect to the first contention, the jury was informed about the existence of a plea bargain between Williams and the prosecution, including the crimes to which she had pleaded guilty and the approximate amount of time she would serve. While the specifics of the plea agreement were not admitted into evidence at trial (all counsel having stipulated that the agreement itself would not be admitted at trial), it cannot be said that the district court erred by concluding that the jury was not denied “sufficient information to appraise the biases and motivations” of the witness. United States v. Marietta, 73 F.3d 1508, 1513 (9th Cir.) (quoting United States v. McClintock, 748 F.2d 1278, 1290 (9th Cir.1984)), cert. denied, — U.S.-, 116 S.Ct. 2555, 135 L.Ed.2d 1073 (1996).
As for Gallego’s second argument, the mere fact that the terms of Williams’ plea bargain were contingent upon her agreement to testify against Gallego does not rise to the level of a due process violation. She was required to testify fully and truthfully, and Gallego was permitted to impeach her credibility on the ground that the plea bargain might have encouraged her to lie. See United States v. Moody, 778 F.2d 1380, 1385 (9th Cir.1985), as amended, 791 F.2d 707 (1986).
4. Gallego’s Medical History Records
Gallego’s fourth argument is that defense counsel had been ineffective at the trial’s penalty phase by failing to discover and bring to the jury’s attention all of Gallego’s medical records which showed a history of mental illness. Gallego argues that his lawyer had been rendered ineffective by not having been given sufficient time and/or adequate resources to develop this line of attack, which would have buttressed the testimony of Dr. Joan Cartwright, Gallego’s sole penalty phase witness. The district court found that Gallego had failed to present this issue to the state courts in his first post-conviction proceedings, and concluded that Gallego had not demonstrated cause and prejudice to overcome this procedural default. Gallego counters by arguing that appointed counsel in his first round - of state post-conviction proceedings was also ineffective by failing to bring this line of inquiry to the state courts.
We agree with the district court’s determination that this issue was not fairly presented to the state courts until Gallego’s second round of state post-conviction proceedings. Moreover, even if we were inclined to reject the findings of the Nevada state courts that the failure of Gallego’s appointed post-conviction counsel to timely assert this issue (i.e., in the first round of his state post-conviction proceedings) did not constitute ineffective assistance on his part, such a determination would not constitute “cause” for Gallego’s failure to timely assert the issue, Bonin v. Vasquez, 999 F.2d 425, 429-30 (9th Cir.1993) (per curiam order), nor could it be used to “bootstrap” a finding of ineffectiveness- on the part of Gallego’s trial counsel for conduct occurring during the trial’s penalty phase. Id.; see also Jeffers v. Lewis, 68 F.3d 299, 300 (9th Cir.1995) (en banc) (plurality opinion). Finally, on the strength of this record, we conclude that no “fundamental miscarriage of justice” will result by holding as we do. See id. at 300 (quoting McCleskey v. Zant, 499 U.S. 467, 494-95, 111 S.Ct. 1454, 1470-71, 113 L.Ed.2d 517 (1991)).
IV. PROSECUTORIAL MISCONDUCT
According to Gallego, the prosecutor in his Nevada ease was approached by a Sacramento journalist after the jury had convicted Gallego and sentenced him to death. A contract was entered into that eventually included the prosecutor, two of the investigators involved in the case, and Williams, all of whom agreed to collaborate on a book to be written about the events leading up to and including the trial. The prosecutor received approximately $5,000 in royalties from the book. Williams could not, and did not, receive any royalties from the book, and the investigators later repudiated the contract. Citing such cases as Marshall v. Jerrico, Inc., 446 U.S. 238,100 S.Ct. 1610, 64 L.Ed.2d 182 (1980) and Ganger v. Peyton, 379 F.2d 709 (4th Cir.1967), Gallego contends that the prosecutor’s pecuniary interest in the case constituted misconduct warranting reversal of Gallego’s conviction. We disagree.
In Marshall, the Supreme Court observed that a prosecutor’s direct pecuniary interest in the outcome of a ease that has an impact on the prosecutor’s decision whether or not to enforce a particular statute may have constitutional ramifications. 446 U.S. at 249-50, 100 S.Ct. at 1616-17. Gallego has neither alleged nor shown that any pecuniary interest which the prosecutor had arose prior to the conclusion of trial or that it prejudiced Gallego’s defense in any way. Similarly, Ganger involved a conflict of interest where the prosecutor criminally prosecuted the husband of a client in civil (i.e., divorce) proceedings. In that case there was a direct conflict between the duties of his office as a prosecutor and those owed to his client. 379 F.2d at 714. Gallego has neither alleged nor shown in this case that any similar duties ran from the prosecutor to him.
More to the point, Gallego must allege and show resultant prejudice; ie., he must demonstrate that his trial was rendered fundamentally unfair by the conduct of which he complains. See Wycoff v. Nix, 869 F.2d 1111, 1113 (8th Cir.1989); Rose v. Duckworth, 769 F.2d 402, 405 (7th Cir.1985). Gal-lego has neither alleged nor shown that he was prejudiced by such conduct.
Gallego makes several related arguments, equally meritless. Gallego contends that the three witnesses who collaborated with the prosecutor on the book contract had a motive to give false testimony or to distort their testimony and that the prosecutor had a motive to knowingly present such testimony. However, Gallego has not established that any of the three witnesses perjured themselves or that the prosecutor knowingly offered perjured testimony.
Gallego also argues that the prosecutor’s collaboration on the book during the pen-dency of Gallego’s direct appeal violated his rights to due process and to the effective assistance of counsel on appeal. He contends the book contract involved collaboration with the confessed accomplice and conflicted with the duties owed by the prosecutor to his clients, ie., the citizens of the State of Nevada. With respect to these assertions, Gallego has not shown that he was prejudiced in his right to a direct appeal or that he has standing to allege either ineffective assistance of counsel or conflict of interest on behalf of the State of Nevada and against the prosecutor.
Finally, Gallego asserts that the prosecutor’s actions compromised the trial judge’s impartiality. Gallego has not previously presented this claim to the state courts, and has shown no cause or prejudice justifying this failure. Accordingly, we will not review this claim. To the extent that Gallego alleges judicial bias, such claim has not been exhausted and is dismissed as an abuse of the writ.
In light of the above, we conclude that the district court did not err by rejecting the claims of prosecutorial misconduct.
CONCLUSION
In light of the erroneous jury instructions given during the penalty phase of Gallego’s trial, we REVERSE that portion of the district court’s decision and REMAND with instructions that the district court issue the writ unless, within a time set by the district court, the State of Nevada proceeds to resen-tence Gallego.
AFFIRMED in part, REVERSED in part, and REMANDED with instructions.
The relevant underlying facts have been adequately summarized elsewhere. See People v. Gallego, 52 Cal.3d 115, 276 Cal.Rptr. 679, 802 P.2d 169 (1990) and Gallego v. State, 101 Nev. 782, 711 P.2d 856 (1985) (per curiam).
Williams and Gallego were "married” twice in Reno. However, as Gallego was already legally married to other women at both times, his “marriages” to Williams were void ab initio.
To date, Gallego has still not been charged with the Vaught/Scheffler kidnapping and murders.
Gallego abandoned issues number 13, 15-17, 23, 26-29, 31, 32, 35 and 37, and voluntarily withdrew issue number 40. The district court dismissed issues number 22, 24, 25, 30, 33, 34, 36, 38, and 39 for procedural default, and dismissed portions of the following issues: Number 21 (failure to exhaust/failure to state a claim); numbers 2 and 3 (failure to exhaust/abuse of the writ); and number 11 (abuse of the writ). The remaining seventeen issues -disposed of by the district court were numbers 1-12, 14, and 18-21. One issue not briefed by either party to the instant appeal is the applicability vel non of the Antiterrorism and Effective Death Penalty Act ("Act”), Pub.L. No. 104-132, Title I, 110 Stat. 1214 (Apr. 24, 1996), amending 28 U.S.C. §§ 2244 and 2253-55 and further codified at 2261-66. At the time of oral argument, it was an open question whether the Act applied to appeals, such as this one, that were pending on April 24, 1996. We have since concluded that the Act does not apply to such petitions. See Jeffries, 114 F.3dat 1487, 1499.
Gallego argues that the denial of his Sixth Amendment rights applies to both the guilt and penalty phases of his trial. Our review of the record shows that Gallego has raised the penalty phase issue for the first time on appeal. We therefore limit our discussion of this issue to the guilt phase of Gallego’s trial. See Campbell v. Kincheloe, 829 F.2d 1453, 1455-56 n. 1 (9th Cir. 1987) (declining to review issues raised by death penalty petitioner for first time on appeal); Duckett v. Godinez, 67 F.3d 734, 746 (9th Cir. 1995) (same for issue presented by respondents for first time on appeal), cert. denied, - U.S. -, 116 S.Ct. 1549, 134 L.Ed.2d 651 (1996).
The Briggs Instruction "was incorporated into the California Penal Code as a result of a 1978 voter initiative popularly known as the Briggs Initiative.” Ramos, 463 U.S. at 995 n. 4, 103 S.Ct. at 3450 n. 4.
Because Ramos antedates the finality of Galle-go's case, there is no "new rule” issue for purposes of Teague.
[No. S042737.
Aug. 3, 1998.]
In re GERALD A. GALLEGO on Habeas Corpus.
Counsel
Linda E. Shostak and Rachel Krevans, under appointments by the Supreme Court, Carolyn A. Johnston, Michael R. Goldstein and Morrison & Foerster for Petitioner.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass and Dane R. Gillette, Assistant Attorneys General, Stan M. Helfman and Christopher J. Wei, Deputy Attorneys General, for Respondent.
[OPINION BY GEORGE, C. J. type=majority]
Opinion
GEORGE, C. J.
Petitioner’s judgment of conviction and sentence of death was affirmed on appeal in 1990 (People v. Gallego (1990) 52 Cal.3d 115 [276 Cal.Rptr. 679, 802 P.2d 169], cert. den. (1991) 502 U.S. 924 [112 S.Ct. 337, 116 L.Ed.2d 277] (Gallego I)). In October 1994, shortly after we granted the motion of present counsel to replace petitioner’s appellate counsel, petitioner filed this petition for a writ of habeas corpus, his first state habeas corpus petition, raising 35 claims.
We issued an order to show cause in this matter and in the companion case of In re Robbins (1998) 18 Cal.4th 770 [77 Cal.Rptr.2d 153, 959 P.2d 311] {Robbins), to address issues relating to application of the procedural bar of untimeliness. Our order to show cause herein directed the parties to address a narrow issue: whether, and under what circumstances, this court’s denial of a confidential request for habeas corpus investigation funds may be relevant to establishing the absence of substantial delay or good cause for such delay with regard to related, later-filed habeas corpus claims.
We conclude that a petitioner’s timely request for investigation funds, and our denial of that request, are, under circumstances described herein, relevant to our inquiry into “substantial delay” in two respects: First, a request for funds is relevant to a petitioner’s allegation that information offered in súpport of certain of his or her claims was obtained recently and was not known earlier. Second, our denial of a petitioner’s timely request for investigation funds will support a determination that the petitioner not only did not actually know of the information earlier but also should not reasonably have known of the information earlier. If (i) discovery of the information offered in support of a claim requires the expenditure of funds, (ii) the petitioner is indigent and cannot fund the investigation personally, and (iii) the petitioner timely files a request for funding of a specific proposed investigation, fully disclosing all asserted triggering information in support of the proposed investigation, then the petitioner’s appointed counsel has exercised reasonable diligence with respect to the proposed claim. When our court denies such a request for investigation funds—having determined that the petitioner has failed to present sufficient “triggering facts” to support the proposed investigation—we cannot properly find that the petitioner should have discovered such information without first obtaining funding from some other source or learning of the information in. some other manner. Appointed counsel for the petitioner has no obligation personally to fund a habeas corpus investigation (whether or not the investigation is supported by “triggering facts”). Thus, a denial of a request for investigation funds is, under the described circumstances, relevant to whether a petitioner “should have known” of the information earlier.
Nevertheless, although we conclude that such a request for investigation funds is relevant to the determination of the timeliness of a subsequently filed habeas corpus petition, petitioner in this case, as we shall explain, has failed to meet his burden of establishing that the claims presented in his petition were filed without substantial delay. Furthermore, we also conclude that all of the claims raised in the petition must be rejected on the merits, and that most claims also must be rejected on various procedural grounds. Accordingly, we shall, in an accompanying order, a copy of which is appended to this opinion, deny .in its entirety the petition for a writ of habeas corpus.
I
We need not recount the facts underlying petitioner’s convictions in order to address the procedural question here at issue. It suffices to note that petitioner was convicted in 1983 of murdering a young couple. The prosecution presented evidence at the guilt phase of the trial that petitioner had committed two additional murders, and presented evidence at the penalty phase of the trial that petitioner had committed yet two additional murders. (Gallego I, supra, 52 Cal.3d at pp. 140-158.)
A
The relevant procedural facts are as follows. In early October 1989— approximately 15 months before we filed our opinion on petitioner’s automatic appeal—appellate counsel for petitioner timely filed a confidential application for authorization to incur $7,000 in investigation expenses related to potential claims that might be raised in a subsequent petition for a writ of habeas corpus. (See Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, Standards governing filing of habeas corpus petitions and compensation of counsel in relation to such petitions (Policy 3), pt. 2, Compensation standards, std. 2-3.)
The confidential application requested, among other things, a sum to investigate petitioner’s competence to stand trial. In July 1990, we authorized an expenditure to investigate one possible claim unrelated to any of the claims presented in the present petition, and denied the remainder of the application, including the request for funds to investigate petitioner’s competence to stand trial. Appellate counsel for petitioner did not subsequently file a habeas corpus petition.
After the United States Supreme Court denied a petition for rehearing of its denial of certiorari (Gallego v. California (1991) 502 U.S. 1009 [112 S.Ct. 650, 116 L.Ed.2d 667]), the superior court set petitioner’s execution for early March 1992. In early February 1992, petitioner filed, in propria persona, an application for appointment of counsel and for temporary stay of execution in the United States District Court for the Northern District of California. That court granted the application and subsequently issued several stays of execution while the northern district selection board located and recommended appointment of federal habeas corpus counsel for petitioner.
The federal court appointed present counsel to represent petitioner in federal court on August 28, 1992. Petitioner secured funds for, and commenced, a habeas corpus investigation. Thereafter, pursuant to various orders, petitioner’s execution was stayed by the federal court for another 19 months—until March 25, 1994—at which time petitioner, on order of the federal court, filed a habeas corpus petition in federal court containing both exhausted and unexhausted claims.
The federal district court denied a motion by the Attorney General to dismiss the unexhausted claims, and granted petitioner 60 days in which to file in this court a petition for a writ of habeas corpus to exhaust those claims. In September 1994, we allowed state-appointed appellate counsel to withdraw and granted the motion of federally appointed counsel for appointment to represent petitioner in this court. Petitioner filed the present petition on October 14, 1994.
B
The petition is not entitled to a presumption of timeliness, because it was not filed “within 90 days after the final due date for the filing of appellant’s reply brief on the direct appeal.” (Policy 3, supra, std. 1-1.1, originally adopted eff. June 6, 1989.) Accordingly, in order to avoid the bar of untimeliness, petitioner has the burden of establishing either (i) “absence of substantial delay” (id., std. 1-1.2; see In re Clark (1993) 5 Cal.4th 750, 782-784 [21 Cal.Rptr.2d 509, 855 P.2d 729] (Clark)), (ii) “good cause for the delay” (Policy 3, supra, std. 1-2; Clark, supra, 5 Cal.4th at.pp. 783-787), or (iii) that his claims fall within an exception to the bar of untimeliness (Clark, supra, 5 Cal.4th at pp. 797-798). We address herein only one aspect of the first of these alternative showings that petitioner must make to avoid the bar. (We consider all three of these matters in the opinion in the companion case,- Robbins, supra, 18 Cal.4th 770.)
II
A
For purposes of addressing the question posed in our order to show cause (whether, and under what circumstances, this court’s prior denial of a confidential request for habeas corpus investigation expenses may be relevant to establishing the absence of substantial delay), we need examine only one of the petition’s claims. “Claim X” asserts that penalty phase counsel—who entered the trial after petitioner represented himself at the guilt phase—provided constitutionally ineffective assistance of counsel because he failed to raise the issue of petitioner’s alleged incompetence to stand trial during the penalty phase of the trial.
Claim X is premised in substantial part upon voluminous “family background” information concerning the social, medical, and criminal histories of petitioner and his relatives, and “expert assessments” by seven mental health professionals—based in large part upon that background information—that petitioner “suffered the effects of long-standing brain impairment and related psychiatric disorders which, particularly under the stress and complexity of litigation, severely impaired his ability to understand the nature of the proceedings or rationally to assist counsel in investigating, preparing and presenting a defense.” Although the petition acknowledges that petitioner’s trial counsel, when reappointed to represent petitioner at the penalty phase, had petitioner examined by mental health experts and thereafter moved for a new trial with respect to the guilt phase on the ground that petitioner’s waiver of the right to counsel at the guilt phase was constitutionally ineffective because it had not been “intelligent,” the petition contends that petitioner’s trial counsel nonetheless provided ineffective assistance with regard to this matter because counsel, in arguing the inadequacy of petitioner’s waiver of counsel, did not refer specifically to the organic brain damage allegedly disclosed by the then recent medical examination of petitioner, and did not advance the argument that petitioner was incompetent to stand trial at the penalty phase. Petitioner offers the above described “family background” and “expert assessment” information to establish what trial counsel could and should have discovered and how such information would have affected the resolution of a competency claim, had such a claim been advanced.
B
As we observe in today’s companion case, Robbins, supra, 18 Cal.4th at page 787: “Petitioner has the burden of establishing the absence of ‘substantial delay.’ Substantial delay is measured from the time the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim. If a petitioner fails to allege particulars from which we may determine when the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim, he or she has failed to carry the petitioner’s burden of establishing that the claim was filed without substantial delay. RQ A petitioner does not meet his or her burden simply by alleging in general terms that the claim or subclaim recently was discovered, or by producing a declaration from present or former counsel to that general effect. He or she must allege, with specificity, facts showing when information offered in support of the claim was obtained, and that the information neither was known, nor reasonably should have been known, at any earlier time—and he or she bears the burden of establishing, through those specific allegations (which may be supported by relevant exhibits,.. .), absence of substantial delay.” (Italics in original.)
When a petitioner or counsel representing a petitioner actually is aware of information that is sufficient to state a prima facie claim for relief on habeas corpus, that claim should be presented to a court without substantial delay. When, on the other hand, a petitioner or counsel knows or should know only of triggering facts—i.e., facts sufficient to warrant further investigation, but insufficient to state a prima facie case for relief—the potential claim should be the subject of further investigation either to confirm or to discount the potential claim. {Clark, supra, 5 Cal.4th at pp. 783-784; see also Robbins, supra, 18 Cal.4th at pp. 791-793 [scope of duty to investigate].) And when the petitioner and his or her counsel lack triggering facts concerning a particular claim, counsel has no duty to investigate that claim.
When further investigation is required, such investigation may, and often does, necessitate expenditure of funds and employment of investigators and experts. Private appointed counsel, however, is under no obligation to fund such an investigation out-of-pocket. Pursuant to policies in effect since June 6, 1989 (see post, fn. 7), the state has funded capital case habeas corpus investigation by private appointed counsel as follows: If the potential petitioner—as in this matter—was represented by counsel appointed by this court on a traditional “allowable hours and costs” basis, counsel was permitted to incur (and seek reimbursement for) reasonable investigation expenses up to $3,000 without prior court approval. (Policy 3, supra, former std. 2-2.1, now std. 2-2.3 (see post, fn. 7).) Alternatively (or in addition, if the $3,000 base amount already was expended), such counsel had the opportunity—as was done here—to file with this court a “confidential request for authorization to incur expenses to investigate potential habeas corpus issues.” (Policy 3, supra, former stds. 2-2.2 to 2-4, now stds. 2-2.4 to 2-4.)
When counsel appointed by this court to represent a petitioner on a traditional “allowable hours and costs” basis timely filed a request for funding of a specific proposed habeas corpus investigation fully disclosing all asserted triggering information in support of the proposed investigation, and this court denied the request in whole or in part, counsel neither was obliged nor expected to seek reconsideration, unless counsel could produce additional documentation or explanation to support the proposed investigation. Our denial of funding in that situation indicates our determination that the request failed to disclose triggering facts warranting additional investigation. Because counsel was (and is) not required personally to fund a habeas corpus investigation, a petitioner in this situation cannot reasonably be expected to have discovered facts that could be obtained only through additional investigation. And because a petitioner who has only information that does not rise to the level of a prima facie claim is not required or expected to file a petition embodying such a claim, it cannot be said that such a petitioner reasonably should have filed a petition raising the undeveloped claim at that earlier time. Only if and when the petitioner thereafter acquires additional information offered in support of a prima facie claim, either after obtaining investigation funding from another source or by learning of the information in some other manner, does the time for promptly filing the claim commence.
This does not mean, however, that a prospective petitioner or his counsel whose request for investigation funds has been denied and who lacks triggering information justifying investigation into any unperfected claim never should file a habeas corpus petition. If such a petitioner or counsel is, or should be, aware of some claims as to which a prima facie case may be stated, and there is no ongoing bona fide investigation into other potentially meritorious claims (see Robbins, supra, 18 Cal.4th atpp. 805-806), a petition advancing the known claims “must be presented promptly;” {Clark, supra, 5 Cal.4th at p. 784.)
It follows that, with regard to the “substantial delay” prong of our timeliness inquiry, a petitioner may establish the absence of substantial delay by showing that he or she previously was unaware of information offered in support of a given claim, and reasonably failed to discover earlier the information offered in support of that claim because he or she timely requested but was denied funding to investigate that claim. In other words, we cannot conclude that a petitioner “reasonably should have known” of information offered in support of a claim if, because the petitioner reasonably lacked triggering facts supporting an investigation of that claim and was denied funds with which to obtain information, he or she was unable to investigate the claim.
Respondent’s objection to this conclusion is unconvincing. It asserts that “[a] petitioner who withholds presentation of habeas corpus claims in the hope of obtaining investigation funding from some other source has substantially delayed presentation of the claims” (italics added), and that “a petitioner’s failure or inability to allege the minimal, basic facts necessary to obtain funds to conduct additional investigation cannot justify [or establish the absence of substantial] delay in presenting claims on state habeas corpus.” As explained above, however, a petitioner, having been denied requested funds to investigate an identified “potential” but wholly undeveloped claim that does not state a prima facie basis for relief, properly may decline to file a petition containing that as-yet unsubstantiated claim. In so doing, the petitioner does not “withhold” a claim, because, as to that undeveloped and unsubstantiated claim,, he or she has no prima facie case to present.
C
Having concluded that, as a general matter, this court’s denial of a request for funds to investigate a habeas corpus claim may be relevant to the timeliness'of a subsequently filed habeas corpus claim, we shall determine whether petitioner has established that Claim X was not substantially delayed. For the reasons set out below, we conclude that petitioner has failed to do so.
1. When was the information offered in support of Claim X obtained, and was it known, or should it reasonably have been known, by petitioner at any earlier time?
Neither in the petition, the “informal reply” (Cal. Rules of Court, rule 60), nor in the traverse (see Robbins, supra, 18 Cal.4th at p. 789) does petitioner establish when the information offered in support of Claim X was obtained, and that the information was neither known, nor reasonably should have been known, at any earlier time.
The petition asserts generally that “[djuring the federal habeas [corpus] investigation, facts were uncovered which indicated that Petitioner had meritorious habeas [corpus] claims,” and that all claims were “brought... within a reasonable time after [current counsel] became aware of the factual bases for the claims presented in the petition.” The petition also asserts in general terms that because this court denied the majority of the confidential 1989 habeas corpus funding application, and because prior (appellate) counsel could not afford to “finance a habeas [corpus] investigation for [petitioner] out of his own pockety ... no plenary investigation could be conducted” on petitioner’s behalf. Subsequently, in his traverse, petitioner asserts that he proposed in his confidential 1989 request to investigate the issue of his competence to stand trial, and that we denied funding for that purpose. (See ante, fns. 3 & 4.)
The petition further asserts that after counsel were appointed by the federal court, they were forced to “familiarize themselves with the extensive record in the case, conduct a plenary habeas corpus investigation,[] and prepare the Federal Petition. This process unearthed a great deal of factual information and many potentially meritorious claims which were unknown during the direct appeal. Petitioner presented these claims to the Federal Court and to this Court in a timely manner.”
Petitioner offers in support of these general allegations the declaration of his appellate counsel, who asserts: “Prior to the investigation pursued in conjunction with the federal habeas [corpus] petition starting in 1992,1 was not aware of any information to indicate a factual or legal basis for” various claims, including Claim X.
Viewed singly or together, these general allegations fail to establish when the information offered in support of Claim X was obtained, and that the information was neither known, nor reasonably should have been known, at any earlier time.
Petitioner’s informal reply contains allegations that, although somewhat less general, still are insufficiently specific. In that filing, petitioner asserts generally that neither he nor his prior or present counsel knew of the facts offered in support of the unexhausted claims—including Claim X and related claims—“until [present] counsel undertook the federal habeas [corpus] investigation in 1993 and early 1994.” Thereafter, petitioner’s informal reply asserts—again, in general terms—that “none of the key facts underlying the unexhausted claims [pleaded] in the Petition were known or could have been known until a matter of months before the Petition was filed [in mid-October 1994].”
Petitioner complains in his informal reply that “Respondent does not get down to details. For example, Respondent never states exactly what Petitioner or his counsel knew or should have known with respect to any claim, or when they should have known it.... As to all such details, Respondent is noticeably silent.” (Italics in original.) Of course, as explained above, the burden is on petitioner to establish the absence of substantial delay, and he, not respondent, must “get down to details.” And, as noted, he fails to do so in his petition, his informal reply, or his traverse.
2. Has petitioner established that Claim X was presented without substantial delay?
Because petitioner has not alleged with specificity facts showing when he obtained the information offered in support of Claim X, and that the information was neither known, nor reasonably should have been known, at any earlier time, he has not established the absence of substantial delay as to that claim.
D
We confined the order to show cause in this matter to the procedural issue discussed and resolved above. Accordingly, we do not address herein the merits of the claims raised in the petition, nor do we address herein the application of any procedural bar other than that of untimeliness to any claim. The petition for a writ of habeas corpus will be resolved, as is the normal procedure for such matters, by summary order (see Clark, supra, 5 Cal.4th at p. 781), a copy of which is appended to this opinion. For the guidance of the parties, however, we shall address briefly and in broad outline the timeliness of the other claims presented in the petition.
The vast majority of the claims rely exclusively upon the appellate record. These claims were known or reasonably should have been known to immediately preceding counsel, and they should have been presented to this court, if at all, in a habeas corpus petition shortly after we denied petitioner’s request for investigation funds. (See ante, at pp. 833-835.)
In addition to Claim X, discussed above, three other claims and one subclaim (related “competency” Claims I, II, and III, described ante, fn. 5, and unrelated “Claim XI, part (C),” asserting that penalty phase counsel were constitutionally ineffective for failing to contest the other-homicides aggravating evidence) are based in substantial part upon information outside the appellate record.
As to all claims and subclaims raised, petitioner fails to carry his burden of establishing when information offered in support of the claim or subclaim was obtained, and that the information was neither known, nor reasonably should have been known, at any earlier time. Accordingly, as to all claims and subclaims, petitioner fails to establish the absence of substantial delay.
Petitioner also fails to carry his burden of establishing good cause for the delay. (See Robbins, supra, 18 Cal.4th at pp. 805-811, and ante, fn. 13.) Finally, as to each claim and subclaim raised in the petition, petitioner fails to demonstrate that any of the four exceptions to the bar of untimeliness applies. (See Clark, supra, 5 Cal.4th at pp. 797-798; Robbins, supra, 18 Cal.4th at pp. 811-813.) Accordingly, all claims and subclaims raised in the petition will be denied as untimely, and on other applicable grounds.
III
The order to show cause is discharged.
Baxter, J., Werdegar, J., and Chin, J., concurred.
Justice Brown’s concurring and dissenting opinion in this case is addressed primarily to broad issues implicated by our holding in Robbins, supra, 18 Cal.4th 770. We address in Robbins (id. at p. 778, fn. 1) the points raised in the concurring and dissenting opinion in this case.
For purposes of this proceeding only, petitioner has waived confidentiality as to this application for investigative funds and related documents.
In this regard, the request by appellate counsel read in relevant part: “In his opening brief, appellant raised the issue of his competency to stand trial. Appellant and his appointed counsel have been questioned by me [appellate counsel] and it is my good faith belief that further investigation would include discussions with psychologists and psychiatrists to determine whether appellant was competent to stand trial.”
We denied funding for the proposed “competency” investigation on the ground that petitioner’s wholly conclusory proposal (see ante, fn. 3) failed to allege “[s]pecific facts that suggest there may be an issue of possible merit” (Policy 3, supra, std. 2-4.2)—in other words, because the request failed to disclose triggering facts sufficient to justify investigation of the proposed claim.
On appeal, petitioner raised the related issue of the trial court’s asserted error in failing to order a hearing pursuant to Penal Code section 1368 concerning petitioner’s competence to stand trial. We observed in our opinion on the direct appeal that although the trial court initially considered requiring defendant to undergo a competency examination pursuant to that statute, defendant thereafter requested, and was permitted, to represent himself at the guilt phase of the trial, and the trial court “later stated that its initial concerns about defendant were incorrect. Indeed, the court concluded that defendant did not appear to be any less competent than ‘anyone else in this courtroom.’ ” (Gallego I, supra, 52 Cal.3d at p. 162.) Thereafter, at the hearing on the automatic motion for new trial, the court commented that petitioner “did a rather good job” in his voir dire of the jury, and that generally, “in my opinion [petitioner] did a very fine job in his handling of this matter. fl[] There are some attorneys that I have seen in front of me who wouldn’t have done as good a job.” In addition, the record contained various other indicators of petitioner’s competence at trial: Petitioner was prepared to file several motions as soon as his request for self-representation was granted, requested the assistance of the National Jury Project for jury selection, and moved to retain counsel in his pretrial writ petitions in the Court of Appeal. We concluded, based upon the appellate record, that there was “no ‘substantial evidence’ ... of defendant’s incompetence to stand trial.” {Ibid.)
The petition also presents three related claims: “Claim I” asserts petitioner was incompetent to waive his right to counsel at the guilt phase of the trial, “Claim II” asserts petitioner was incompetent to stand trial during the guilt phase of the trial, and “Claim III” asserts petitioner was incompetent to stand trial at the penalty phase of the trial.
In making such a request, counsel for the prospective petitioner was required to set out, among other things, (i) the issues to be explored; (ii) specific facts that suggest there may be an issue of possible merit, and (iii) an itemized list of the expenses requested for each issue of the potential habeas corpus petition. (Policy 3, supra, stds. 2-4.1 to 2-4.3 (see post, fn. 7).)
Effective January 22, 1998, we amended the “Compensation standards” of Policy 3 and the related “Guidelines for Fixed Fee Appointments, on Optional Basis, to Automatic Appeals and Related Habeas Corpus Proceedings in the California Supreme Court,” Guideline 2 Incidental and Investigative Expenses (Fixed Fee Guideline 2), pursuant to newly enacted Government Code section 68656, subdivision (b). Under the revised “Compensation standards” of Policy 3 and Fixed Fee Guideline 2, counsel appointed for habeas corpus representation pursuant to a traditional “allowable hours and costs” agreement, or pursuant to a “fixed fee agreement,” will be reimbursed—without the necessity of prior approval from this court—for reasonably incurred habeas corpus investigation expenses up to a cap of $25,000 prior to issuance of an order to show cause. (See Policy 3, supra, std. 2-2.1; Fixed Fee Guideline 2 Incidental and Investigative Expenses.)
With regard to a petitioner who earlier presented a petition containing a claim supported by certain information, and who later presents a subsequent petition raising the same or an analogous claim supported by additional information, a demonstration that the petitioner reasonably failed to discover the additional information—as a result of a denial of a request for funds to investigate the claim—also may be relevant to application of the bars of successiveness (see Robbins, supra, 18 Cal.4th at p. 788, fn. 9) or repetitiveness (see In re Miller (1941) 17 Cal.2d 734, 735 [112 P.2d 10]), as well as to the bar of untimeliness.
By so observing, we do not suggest that we erred in denying funds to investigate the claim-—indeed, we did not err. (See ante, fns. 3 & 4.) We simply recognize that unavailability of funding may, in some circumstances, support a conclusion that a petitioner cannot reasonably have been expected earlier to have obtained information offered in support of a claim.
Petitioner asserts that his “plenary” investigation was required by McCleskey v. Zant (1991) 499 U.S. 467 [111 S.Ct. 1454, 113 L.Ed.2d 517], As we observe today in Robbins, supra, 18 Cal.4th at page 793, footnote 14, “The opinion in McCleskey states only that a ‘petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition.’ (Id. at p. 498 [111 S.Ct. at p. 1472], italics added.) McCleskey nowhere suggests that a ‘reasonable’ investigation is one grounded on mere speculation or hunch, without any basis in triggering fact, and no decision of which we are aware has recognized or imposed such an unfocused and broad duty.”
Appellate counsel’s declaration also asserts that related Claims I and II (alleged incompetence to waive right to counsel at the guilt phase of the trial, and alleged incompetence to stand trial during the guilt phase of the trial) are “based in part on facts of which I was not aware prior to the federal habeas [corpus] investigation.” The declaration does not assert that related Claim III (alleged incompetence to stand trial at the penalty phase of the trial) is based, in whole or in part, on information of which counsel previously was unaware.
In introducing its discussion of timeliness, the petition purports to “incorporate by reference the allegations contained in the other sections of this Petition, and the facts set forth in the Exhibits hereto.” As we explain today in Robbins, supra, 18 Cal.4th at page 799, footnote 21, “Petitioners should in the future clearly present in the petition specific allegations (with appropriate references to, and description of, any supporting exhibits that may be provided) concerning when information offered in support of each claim and subclaim was obtained, was known, and reasonably should have been known.” (Italics in original.) A petitioner does not allege, with specificity, absence of substantial delay merely by generally “incorporating by reference” all of the facts set forth in the exhibits.
As explained in Robbins, supra, 18 Cal.4th at pages 805-806, a petitioner may establish good cause for substantial delay in the filing of a claim if he or she was conducting a bona fide ongoing investigation (based upon known triggering facts) into another claim or claims and withheld the completed claim to avoid the piecemeal presentation of claims. In the present case, petitioner does not allege or establish that he or his counsel was conducting a bona fide “ongoing investigation” into any matter between July 1990, when we denied the bulk of petitioner’s confidential request for funds, and August 1992, when federal habeas corpus counsel was appointed, and does not assert that any delay in the presentation of the claims at issue here can be justified on the basis of an “ongoing investigation of another claim” rationale.
Contrary to the concurring and dissenting opinion of Justice Kennard, as we also explain in Robbins, supra, 18 Cal.4th 770, the ongoing investigation component of this basis for good cause is not “new,” and there is no unfairness in applying that requirement to petitioner. Nor does our application of the ongoing investigation requirement provide a reason or justification for reopening prior orders of this court that have barred a claim as untimely.
In sum, petitioner has not established good cause for delay on this or any other ground.
For guidance Concerning application of the exceptions to the bar of untimeliness, we note the following: Although we conclude that each of the claims concerning petitioner’s incompetence (Claims I, n, III, and X) fails to state a prima facie case for relief under state or federal law, for purposes of applying the first three exceptions to the bar of untimeliness set out in Clark, supra, 5 Cal.4th at pages 797-798, we “assume... that a federal constitutional error is stated, and we shall find the exception inapposite if, based upon our application of state law,” the exception is not met. (Robbins, supra, 18 Cal.4th at pp. 811, 812, fn. 32.) Pursuant to this approach, no exception to the bar of untimeliness applies here.
First, petitioner does not demonstrate that his alleged incompetence to waive counsel at the guilt phase of the trial or to stand trial constitutes “error of constitutional magnitude” leading to “a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner.” (Clark, supra, 5 Cal.4th at p. 797, italics added.) The evidence underlying petitioner’s conviction was overwhelming, and there is no indication that the alleged errors substantially affected the evidentiary showing. The exception is inapposite.
Second, petitioner’s alleged incompetence to waive counsel at the guilt phase of the trial or to stand trial does not suggest, much less establish, that petitioner “actually is innocent of the crime or crimes of which the petitioner was convicted” (Clark, supra, 5 Cal.4th at pp. 797-798), and it does not constitute “irrefutable evidence of innocence of the offense or the degree of offense of which the petitioner was convicted.” (Id. at p. 798, fn. 33.)
Third, based upon the facts of this case and the allegations presented in the petition, petitioner’s alleged incompetence-to waive counsel at the guilt phase or to stand trial did not result in a death penalty that was “imposed by a sentencing authority which had such a grossly misleading profile of the petitioner before it that absent the trial error or omission no reasonable judge or jury would have imposed a sentence of death.” (Clark, supra, 5 Cal.4th at p. 798.)
Finally, petitioner’s alleged incompetence to waive counsel at the guilt phase of the trial or to stand trial does not implicate the fourth Clark exception—that the petitioner was convicted or sentenced under an invalid statute. (Clark, supra, 5 Cal.4th at p. 798.)
As we explain in Robbins, supra, 18 Cal.4th 770, we shall not herein impose the bar of untimeliness as to any subclaim of the petition that asserts ineffective assistance of immediately preceding appellate or habeas corpus counsel. (See Robbins, supra, 18 Cal.4th at p. 815, fn. 35.)
[OPINION BY MOSK, J., Concurring. type=concurrence]
MOSK, J., Concurring.
I concur in the result.
I agree that we must discharge the order to show cause. I do so because I believe that petitioner has not alleged specific facts that would entitle him to relief on habeas corpus. I would rest on the merits, and would not proceed to any of the so-called “procedural bars,” including that of untimeliness. (See In re Robbins (1998) 18 Cal.4th 770, 815-817 [77 Cal.Rptr.2d 153, 959 P.2d 311] (cone. opn. of Mosk, J.).)
[OPINION BY KENNARD, J., Concurring and Dissenting. type=concurring-in-part-and-dissenting-in-part]
KENNARD, J., Concurring and Dissenting.
I concur in the discharge of the order to show cause and in the denial of the petition for a writ of habeas corpus. But, as in the companion case of In re Robbins (1998) 18 Cal.4th 770 [77 Cal.Rptr.2d 153, 959 P.2d 311] {Robbins), I do not agree with everything stated in the majority opinion, which addresses certain questions concerning the timeliness requirement for habeas corpus claims, and in particular the significance of this court’s denial of a confidential request by appointed counsel for authorization to incur expenses to investigate potential habeas corpus claims.
The majority states that if petitioner or petitioner’s counsel knows of claims that may state a prima facie case for relief, counsel should promptly submit a habeas corpus petition presenting those claims (which the majority refers to variously as “known,” “completed,” “developed,” or “perfected”) unless there is an “ongoing bona fide investigation into other potentially meritorious claims.” (Maj. opn., ante, at p. 834.) In a footnote, the majority states that if appointed counsel’s habeas, corpus investigation of potential claims reaches an impasse because this court has denied funding for further investigation, counsel must then present any known claims. (Maj. opn., ante, at p. 838, fn. 13.) Put another way, counsel may not delay presentation of known claims unless counsel is actually engaged in an ongoing investigation of potential claims, and if our denial of investigation funds means that counsel may not immediately proceed with investigation, then any known claim must be promptly presented to this court. {Ibid.) In the companion case, Robbins, the majority appears to assert that this court stated or implied the substance of this ongoing-investigation rule in In re Clark (1993) 5 Cal.4th 750 [21 Cal.Rptr.2d 509, 855 P.2d 729] {Clark). {Robbins, supra, 18 Cal.4th at pp. 806-807, fn. 28.)
I do not agree that this court’s decision in Clark, supra, 5 Cal.4th 750, afforded adequate notice of the substance of the majority’s ongoing-investigation rule. Also, as stated by the majority, the ongoing-investigation rule is overly precise and rigid. Because the rule has not been previously announced, this court should not apply it to pending habeas corpus petitions without giving petitioners and their counsel an opportunity to amend their petitions, if they can, to cure the deficiencies. I will explain each of these points in turn.
In Clark, this court stated: “If the petition is delayed because the petitioner is not able to state a prima facie case for relief on all of the bases believed to exist, the delay in seeking habeas corpus relief may be justified when the petition is ultimately filed if the petitioner can demonstrate that (1) he had good reason to believe other meritorious claims existed, and (2) the existence of facts supporting those claims could not with due diligence have been confirmed at an earlier time” {Clark, supra, 5 Cal.4th 750, 781, fn. omitted, italics added.) To the same effect, this court said: “When the factual basis for a claim is already known, the claim must be presented promptly unless facts known to counsel suggest the existence of other potentially meritorious claims which cannot be stated without additional investigation.” {Id. at p. 784, italics added.) In a footnote, this court added these observations: “The delay will not be deemed justified, however, unless the petitioner demonstrates that there was good reason to believe that further investigation would lead to facts supportive of a clearly meritorious claim. Nor will the delay be deemed justified if, notwithstanding the existence of substantial, potentially meritorious claims, the petitioner delays filing the petition in order to investigate potential claims of questionable merit.” {Id. at p. 781, fn. 17.)
Nowhere in Clark, supra, 5 Cal.4th 750, did this court specify that knowledge of the existence of potentially meritorious but unperfected claims would constitute good cause for delay in the presentation of perfected claims only if the petitioner or habeas corpus counsel was engaged in an ongoing bona fide investigation of the potentially meritorious but unperfected claims throughout the period of delay. The cited Clark text and footnote imply, at most, that substantial delay in the presentation of known claims is justified only if it is for the purpose of investigation and that a petitioner must at all stages proceed with “due diligence”; Clark does not state or imply that investigation must be ongoing throughout the period of delay.
The ongoing-investigation rule as stated by the majority is overly precise and rigid because habeas corpus petitioners and their counsel, after this court’s denial of a confidential request for investigation funds, may proceed with due diligence, for the purpose of investigating potentially meritorious claims, even though they are then unable to commence or proceed with the investigation. For example, counsel may proceed with diligence to obtain funding for the investigation from alternative sources. Funds may be obtainable from the petitioner’s relatives, from private organizations, or from the federal courts. Here, for example, petitioner proceeded to federal court where his counsel applied for and received substantial funding with which the investigation of potential claims was undertaken and completed. (Maj. opn., ante, at pp. 830-831.) A reasonable delay occasioned by a diligent search for alternative funds from individuals or from public or private entities that petitioner and counsel reasonably anticipate will provide such funds is, in my view, good cause for substantial delay in the presentation of previously known claims. To the extent the majority decides otherwise, I disagree.
Finally, to the extent that the majority has narrowed the diligence requirement articulated in Clark, supra, 5 Cal.4th 750, which required only that the delay be for the purpose of investigátion (and not that the petitioner be actually engaged in an ongoing investigation throughout the period of delay), and that the petitioners and their counsel at all times proceed with “due diligence,” the requirement may not in fairness be applied retroactively to bar habeas corpus claims as untimely. To the extent the majority decides otherwise, I disagree.
[OPINION BY BROWN, J., Concurring and Dissenting.—I type=concurring-in-part-and-dissenting-in-part]
BROWN, J., Concurring and Dissenting.—I
concur in the discharge of the order to show cause.
I express no opinion on the substantive merits of the discussion regarding “good cause” and “substantial delay.” In my view, attempting to clarify issues of procedure relating to the timely filing of habeas corpus petitions in capital cases is ill-advised and counterproductive. I therefore decline to endorse any part of the enterprise. As the federal habeas reform model illustrates, creating a Byzantine system of procedural hurdles, each riddled with exceptions and fact-intensive qualifications, only undermines their intended purpose. While I "do not countenance abuse of the writ, efforts to control it must be measured by their impact on the goals they purport to serve: integrity of judgments, finality, and comity. Thus far, none háve been advanced by the “guidance” provided in In re Harris (1993) 5 Cal.4th 813, 829 [21 Cal.Rptr.2d 373, 855 P.2d 391] (Harris) and In re Clark (1993) 5 Cal.4th 750, 768 [21 Cal.Rptr.2d 509, 855 P.2d 729] {Clark). As long as our intentions remain ambivalent and our goals at odds, we can expect no better results regardless of how many more “procedural” orders to show cause we issue and discharge.
The recurrent theme of Clark is “the importance of finality of judgments [citation], and the interest of the state in the prompt implementation of its
laws. [Citation.]” (Clark, supra, 5 Cal.4th at p. 764; see id. at pp. 766, 769, 770, 774-775, 776, 783, 786.) Procedural bars foster these goals in part by curtailing abusive and dilatory writ practice. By invoking them, we may also, indirectly at least, “seek to prevent federal courts from reviewing federal constitutional claims, especially in capital cases,” thus further enhancing the prospects for finality. (Id. at p. 802 (cone, and dis. opn. of Mosk, J.).) Nevertheless, in light of post-Clark experience, it should be obvious that the means conflict irreconcilably with the ends. As far as I can determine, to date, not one procedural bar cited by this court in a capital case has precluded federal court review on the merits or forestalled a successive petition. Concomitantly, our citations to Clark and Harris have caused years of fruitless litigation up and down the federal court system, delaying finality and impairing any sense of comity. (See fn. 7, post.) Perhaps, the time has come to acknowledge the fault is not in our stars but in our ambivalence toward institutional priorities: As set forth in Clark, the principles on which we reject habeas corpus petitions as untimely and successive simply do not translate into a state ground adequate to foreclose federal review on the merits. Moreover, because the death penalty is qualitatively different, procedural impediments are unlikely to deter counsel who belatedly discover a potentially meritorious claim.
I
Deference to state court procedural bars is based on the “well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts. [Citations.]” (Wainwright v. Sykes (1977) 433 U.S. 72, 81 [97 S.Ct. 2497, 2503, 53 L.Ed.2d 594].) However, “a state procedural ground is not ‘adequate’ unless the procedural rule is ‘strictly or regularly followed.’ [Citation.] State courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims.” (Hathorn v. Lovorn (1982) 457 U.S. 255, 262-263 [102 S.Ct. 2421, 2426, 72 L.Ed.2d 824]; Johnson v. Mississippi (1988) 486 U.S. 578, 587 [108 S.Ct. 1981, 1987, 100 L.Ed.2d 575].) “[Ó]nly a ‘firmly established and regularly followed state practice’ may be interposed by a State to prevent subsequent review by this Court of a federal constitutional claim. [Citations.]” (Ford v. Georgia (1991) 498 U.S. 411, 423-424 [111 S.Ct. 850, 857, 112 L.Ed.2d 935].) Moreover, a state may not invoke “a rule unannounced at the time of’ a purported default. (Id. at p. 424 [111 S.Ct. at p. 858].)
“As a corollary to the requirement of strict or regular compliance, a procedural rule will not bar federal review if it is one that the state can decide whether to assert as a matter of discretion. [Citation.]” (Deere v. Calderon (C.D.Cal. 1995) 890 F.Supp. 893, 896.) That is, application of the procedural rule must be based “at minimum, [on] standards having compulsory force [that] have been articulated and applied with regularity.” (Karis v. Vasquez (E.D.Cal. 1993) 828 F.Supp. 1449, 1467 (Karis).) Although “procedural rules need not be utterly mechanical,” any judicial discretion must constitute “the exercise of judgment according to standards that, at least over time, can become known and understood within reasonable operating limits.” (Morales v. Calderon (9th Cir. 1996) 85 F.3d 1387, 1392 (Morales).)
However state courts define their rules, federal courts will decide if those rules constitute adequate state grounds. “ ‘[T]he question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question.’ [Citation.]” (Johnson v. Mississippi, supra, 486 U.S. at p. 587 [108 S.Ct. at p. 1987]; see, e.g., Ford v. Georgia, supra, 498 U.S. at pp. 423-424 [111 S.Ct. at p. 857]; see also Harmon v. Ryan (9th Cir. 1992) 959 F.2d 1457, 1461 [“The doctrine of procedural default is based on comity, not jurisdiction, and the federal courts retain the power to consider the merits of procedurally defaulted claims. [Citation.]”].) Thus, federal courts will always have the last word. As one district court has observed, “Ninth Circuit law on the independence of alternative procedural holdings, like [those relying on Harris, supra, 5 Cal.4th 813], is still evolving.” (Odie v. Calderon (N.D.Cal. 1995) 884 F.Supp. 1404, 1412; see also Morales, supra, 85 F.3d at p. 1389, fn. 6.) Moreover, since procedural default is an affirmative defense on which the state predicates a motion to dismiss, “ordinarily under such circumstances the burden rests with the proponent of the defense and of the motion.” (Karis, supra, 828 F.Supp. at p. 1463, fn. 21.)
We must also recognize the institutional mind-set of the federal courts that traces its roots to the post-Civil War Judiciary Act of 1867 (Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385-386) by which Congress first extended federal habeas corpus to state prisoners. (See generally, Fay v. Noia (1963) 372 U.S. 391, 415-426 [83 S.Ct. 822, 836-842, 9 L.Ed.2d 837].) Despite initial “jurisdictional” limitations on the scope of the writ, this historical context substantially informs a perception of the federal courts as ultimate guardians of constitutional rights—an attitude that probably reached its high-water mark in Fay v. Noia, when the Supreme Court declined to foreclose merit review of a constitutional claim the petitioner had defaulted in state court. (Id. at pp. 426-435 [83 S.Ct. at pp. 842-847].) Although the rules are stricter now (see Keeney v. Tamayo-Reyes (1992) 504 U.S. 1, 4 [112 S.Ct. 1715, 1717, 118 L.Ed.2d 318]; Wainwright v. Sykes, supra, 433 U.S. at pp. 87-88 [97 S.Ct. at p. 2507]), review is not precluded if a state prisoner establishes cause for the default and resulting prejudice or, despite lack of cause, claims factual innocence. (McCleskey v. Zant (1991) 499 U.S. 467, 493-496 [111 S.Ct. 1454, 1469-1471, 113 L.Ed.2d 517].)
With respect to our timeliness bars, federal courts have consistently refused to recognize them in cases in which the default predated Clark because they were applied as a matter of discretion without regularity and uniformity. (See, e.g., Morales, supra, 85 F.3d at pp. 1389-1391; Siripongs v. Calderon (9th Cir. 1994) 35 F.3d 1308, 1317-1318; cf. Fields v. Calderon (9th Cir. 1997) 125 F.3d 757, 761-765 [for the same reason finding Dixon bar (In re Dixon (1953) 41 Cal.2d 756 [264 P.2d 513]) inadequate for cases appealed prior to Harris].) The fate of post-Clark cases remains uncertain, although the Ninth Circuit Court of Appeals’s discussion in Morales does not augur well: “Neither the Standards [Governing Filing of Habeas Corpus Petitions] themselves nor California cases construing those Standards, create an unambiguous rule on timeliness beyond the [presumption of timeliness for petitions filed within 90 days of the reply brief (std. 1-1.2)]. Further, because the California Supreme Court does not provide reasons for its denials of petitions of habeas corpus on timeliness grounds, it is equally difficult to discern what criteria the state court applies .when ruling on the timeliness of a petition filed beyond the... 90 day period.” (Morales, supra, 85 F.3d at p. 1390.) Although the standards provide that a habeas corpus petition should be filed “without substantial delay,” “[njeither the Standards nor [case authority] established what amount of delay the court would consider ‘substantial,’ nor did either set out criteria for determining ‘good cause’ to excuse such delay. They also did not prescribe whether and when untimeliness might be waived altogether, even though good cause had not been shown.” (Morales, supra, 85 F.3d at p. 1391; see Karis, supra, 828 F.Supp. at p. 1463, fn. omitted [noting this court has yet to “articulate[] parameters within which [to exercise] discretion to find an explanation or justification [for filing delay] sufficient”].) In other words, as currently articulated, our timeliness bars are too vague to constitute adequate state grounds.
Although today’s decisions are intended to respond to the deficiencies outlined in Morales, they can only have the opposite effect by creating more sources of litigation, hence more delay. If we are to take the Ninth Circuit at its word, many more forays will be necessary, although probably not sufficient, in the quest for adequate state grounds. Rather than clarity, each will breed further uncertainty and obfuscation, protracting habeas corpus proceedings at every turn. That being the case, whither finality?
II
In theory, consistent application of procedural bars imposes discipline on defense counsel and discourages abusive tactics. (See Clark, supra, 5 Cal.4th at pp. 769-774.) However, our efforts to curb lawyer excesses may come at too high a cost—at the expense of reasonably expeditious resolution of these cases. Lest this sound alarmist, the United States Supreme Court’s own futile attempts to tame habeas corpus litigation provides a painful object lesson.
Professor Barry Friedman, a longtime follower of the high court’s habeas corpus jurisprudence, has persuasively documented the failure of the court’s reform efforts, beginning with Stone v. Powell (1976) 428 U.S. 465 [96 S.Ct. 3037, 49 L.Ed.2d 1067], in achieving its stated goals—fairness, finality, federalism, and judicial economy. (Friedman, Failed Enterprise: The Supreme Court’s Habeas Reform (1995) 83 Cal.L.Rev. 485 (Friedman); see also Lay, The Writ of Habeas Corpus: A Complex Procedure for a Simple Process (1993) 77 Minn. L.Rev. 1015, 1018-1019 (Lay).) The sense of déjá vu in reading Friedmán should be enough to prompt reconsideration of our efforts to achieve similar ends.
Brecht v. Abrahamson (1993) 507 U.S. 619 [113 S.Ct. 1710, 123 L.Ed.2d 353]is particularly illustrative. In that case the court rejected the Chapman harmless error standard (Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065]) on collateral review in favor of a less rigorous test derived from Kotteakos v. United States (1946) 328 U.S. 750 [66 S.Ct. 1239, 90 L.Ed. 1557]. By giving greater deference to state court judgments, that change seems on the surface to serve the court’s stated ends. In reality, it undermines all of them. Kotteakos requires a court finding a constitutional violation to review the entire state trial record to assess whether the error “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ [Citation.]’’ (Brecht v. Abrahamson, supra, 507 U.S. at p. 631 [113 S.Ct. at p. 1718].) In her dissent, Justice O’Connor noted several deficiencies with the new rule. “[E]ven on its own terms the Court’s decision buys the federal courts a lot of trouble. From here on out, prisoners undoubtedly will litigate—and judges will be forced to decide— whether each error somehow might be wedged into the narrow potential exception the Court mentions in a footnote today.[] Moreover, since the Court only mentions the possibility of an exception, all concerned must also address whether the exception exists at all.” (507 U.S. at p. 655 [113 S.Ct. at p. 1731] (dis. opn. of O’Connor, J.).) She further concluded, “Kotteakos’ threshold is no more precise than Chapman’s; each requires an exercise of judicial judgment that cannot be captured by the naked words of verbal formulae. Kotteakos, it is true, is somewhat more lenient; it will permit more errors to pass uncorrected. But that simply reduces the number of cases in which relief will be granted. It does not decrease the burden of identifying those cases that warrant relief.” (Id. at p. 656 [113 S.Ct. at p. 1731].)
In this same vein, Friedman notes, “Brecht is an open invitation to the state to raise the question of harmfulness in all habeas proceedings in which a constitutional error is found.... [B]y giving the state greater incentive to defend constitutionally questionable convictions, finality is not clearly advanced, and judicial resources are taxed.” (Friedman, supra, 83 Cal.L.Rev. at p. 500, fns. omitted.)
Compounding the difficulties, the court subsequently explained that despite the more lenient standard of review, the beneficiary of the error still bears the burden of demonstrating harmlessness, as required under Chapman v. California, supra, 386 U.S. at page 24 [87 S.Ct. at page 828]. (O’Neal v. McAninch (1995) 513 U.S. 432, 437-444 [115 S.Ct. 992, 995-998, 130 L.Ed.2d 947].) Accordingly, habeas relief should be granted when “record review leaves the conscientious judge in grave doubt about the likely effect of an error on the jury’s verdict.” (Id. at p. 435 [115 S.Ct. at p. 994].) As Justice Scalia has suggested, this determination “does not possess” “a black- and-white character..., any more than other [harmless error] determinations possess it.” (California v. Roy, supra, 519 U.S. at p. 8 [117 S.Ct. at p. 340] (cone. opn. of Scalia, J.).) Indeed, some suggest the shades of gray are potentially infinite. (See Friedman, supra, 83 Cal.L.Rev. at p. 500; see also Brecht v. Abrahamson, supra, 507 U.S. at pp. 640-644 [113 S.Ct. at pp. 1723-1725] (cone. opn. of Stevens, J.).)
Friedman also cites Teague v. Lane (1989) 489 U.S. 288 [109 S.Ct. 1060, 103 L.Ed.2d 334] and Stone v. Powell, supra, 428 U.S. 465, as prime examples of federal habeas reform gone awry. Under Teague, a state prisoner seeking federal habeas relief may not receive retroactive benefit of a “new rule” of law. As even members of the high court acknowledge, the doctrine “has proven hard to apply” even though the court has “explained its crucial terms a number of ways.” (Graham v. Collins (1993) 506 U.S. 461, 505 [113 S.Ct. 892, 918, 122 L.Ed.2d 260] (dis. opn. of Souter, J.).) With considerably less understatement, Friedman concludes “that Teague has spawned far more confusion than it has eliminated, and that it has set courts and lawyers off spending hours and pages of arguments and briefs on an incoherent, unproductive, and ultimately unworkable task.” (Friedman, supra, 83 Cal.L.Rev. at p. 519; see Lay, supra, 77 Minn. L.Rev. at p. 1042.) The only certain result is additional delay. (See, e.g., Friedman, supra, at pp. 538-539, fn. 356 [chronicling several years of further state court proceedings following Graham v. Collins, supra, 506 U.S. 461].)
In Stone v. Powell, supra, 428 U.S. 465, the Supreme Court held that Fourth Amendment claims would not be cognizable on habeas corpus if there had been “an opportunity for full and fair litigation” in state court. (Id. at p. 482 [96 S.Ct. at p. 3046].) Despite its consistent refusal to extend the reasoning to any other type of constitutional violation (see Withrow v. Williams (1993) 507 U.S. 680 [113 S.Ct. 1745, 123 L.Ed.2d 407]; Rose v. Mitchell (1979) 443 U.S. 545 [99 S.Ct. 2993, 61 L.Ed.2d 739]; Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560]), the court has never expressly disavowed the possibility, thereby encouraging litigation as respondents seek additional procedural bars. (See Friedman, supra, 83 Cal.L.Rev. at p. 515.)
Friedman concludes “that even by the standards the Court is setting for itself, reform seems to be a failure. There is no evidence that state courts think more highly of the federal courts for all the reform decisions. A few more writs may have been denied, which may or may not be what the Court wished. From a doctrinal standpoint, however, the course of habeas law is as damaging to state interests and to finality as the rhetoric—or some of it—is respectful.” (Friedman, supra, 83 Cal.L.Rev. at p. 546; see, e.g., O’Neal v. McAninch, supra, 513 U.S. at p. 443 [115 S.Ct. at p. 998].)
He then posits, “One might reasonably wonder if this was the better course. Play a mind game for a moment. Assume that the Supreme Court slowed the flow of new rights-expanding decisions (as was inevitable) but habeas courts were left free to resolve claims on the merits, without the procedural tangle reform has mandated. Compare that to the state of affairs now. There is an awfully good argument that matters would be much better. Cases would be resolved on the merits. They would be filed, dealt with, and resolved. It is unlikely many more writs would be granted.... [H] Whether or not this alternative state of affairs would be preferable, it is time for the Supreme Court to ask itself whether the reform venture has been a success. The Court is so wrapped up in the effort that it may be difficult to obtain the, clarity of judgment necessary. But habeas has become a perennial battleground, with the war showing no sign of ending. Perhaps it is time to admit defeat.” (Friedman, supra, 83 Cal.L.Rev. at p. 546.) That, or .continue its Sisyphean labors. (Lay, supra, 77 Minn.L.Rev. at p. 1015.)
HI
Although the specific issues and judicial perspective may differ, the import of the federal experience should be clear: Procedural bars do not promote finality, but rather compromise it in direct proportion to the litigation they generate. If a petitioner is not invoking an exception, the vagueness of the rule encourages definitional quibbles. Every effort to clarify simply creates additional rounds in the process for both state and federal courts. (See Friedman, supra, 83 Cal.L.Rev. at p. 539; see also cases cited at fn. 7, post.)
Recent experience confirms we have embarked on a war of attrition over our own procedural bars, timeliness in particular. We began with the impossibly amorphous standards governing the filing of habeas petitions in capital cases: “If a petition is filed after substantial delay, the petitioner must demonstrate good cause for the delay. A petitioner may establish good cause by showing particular circumstances sufficient to justify substantial delay.” (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, std. 1-2.) In Clark, this court “did attempt to explain at great length its requirements under the Standards... .” (Morales, supra, 85 F.3d at p. 1391.) The explanation, however, was equally nebulous as well as riddled with exceptions requiring fact-specific analysis. (See Clark, supra, 5 Cal.4th at pp. 795-798.)
Thus, for example, “[a] petitioner will be expected to demonstrate due diligence in pursuing potential claims.” {Clark, supra, 5 Cal.4th at p. 775, italics added.) “[T]he court will continue to consider the merits of the claim if asserted as promptly as reasonably possible.” {Ibid., italics added.) “In limited circumstances,” the court may consider incompetence of prior habeas counsel in assessing timeliness. {Id. at p. 779, italics added.) “[Djelay in seeking habeas corpus relief may be justified when the petition is ultimately
filed if the petitioner can demonstrate that (1) he had good reason to believe other meritorious claims existed, and (2) the existence of facts supporting those claims could not with due diligence have been confirmed at an earlier time.” (Id. at p. 781, italics added, fn. omitted.) Delay also requires a showing that “ ‘ “the facts upon which [the petitioner] relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.” ’ [Citation.]” (Id. at p. 779, italics added.)
Such imprecise, circular, and tautological language does not define a “clear” rule this court can “consistently appl[y]” to create a “well-established” standard. (Morales, supra, 85 F.3d at p. 1393.) Nor does it even provide guidance. In In re Robbins (1998) 18 Cal.4th 770 [77 Cal.Rptr.2d 153, 959 P.2d 290], both parties have cited much of the same language in Clark they reasonably argue supports their respective positions in these circumstances. Today’s decisions bring us no greater clarity. Henceforth, denial of a timely request for investigative funds “are... relevant” to the timeliness inquiry. (Maj. opn., ante, at pp. 828-829.) Notwithstanding the “circumstances” describing when a denial of funding will be considered, this holding does not “set out criteria for determining ‘good cause’ ” or “provide reasons” for future findings. (Morales, supra, 85 F.3d at pp. 1390-1391.) By any measure, “relevant” is a qualitative and contextual indicator, not a definitive standard providing an objective basis for imposing or declining to impose a timeliness bar. On the contrary, it injects another discretionary element into an already fact-intensive, case-specific analysis and confirms this court has previously engaged in ad hoc decisionmaking—the antithesis of a “ ‘firmly established and regularly followed state practice.’ ” (Ford v. Georgia, supra, 498 U.S. at pp. 423-424 [111 S.Ct. at p. 857].)
In any event, this process is doomed. The primary problem is that “good cause” and “without substantial delay” defy standardization. Unlike the standards of other procedural bars, they resolutely resist the binary mode of an “unambiguous rule.” (Morales, supra, 85 F.3d at p. 1390.) Even assuming they could “be captured by the naked words of verbal formulae” (Brecht v. Abrahamson, supra, 507 U.S. at p. 656 [113 S.Ct. at p. 1731] (dis. opn. of O’Connor, J.)), the potential for variation will become a self-defeating Catch-22, with each inherently contextual and fact-dependent explanation requiring further explication. The Ninth Circuit has already implied such piecemeal definition by induction will not suffice. (Morales, supra, 85 F.3d at p. 1391.) Moreover, by its nature, “guidance” is not the equivalent of “standards that, at least over time, can become known and understood within reasonable operating limits.” (Id. at p. 1392; see Karis, supra, 828 F.Supp. at pp. 1462-1463.) Nor is mere invocation of the bar likely to suffice in the absence of a definitive standard.
With respect to finality, empirical evidence documents the negative consequences of the struggle over procedural bars. Delays abound both here and in the federal courts, intensified by protracted but ultimately futile wrangling as to their legal impact. With today’s decisions, the court takes a further step into the quagmire and squanders judicial resources without advancing the state of the law or the quality of justice. We are no closer to the ever-receding dream of adequate state grounds and farther from the goals of finality and comity. With each new attempt to clarify our rules, the court builds into the decisional equation another layer of discretion virtually foreclosing any hope of achieving “standards having compulsory force... articulated and applied with regularity.” (Karis, supra, 828 F.Supp. at p. 1467.) In my view, it is time to recognize our procedural bars do not preclude federal court merit review and probably never will. Given the many costs, we should abandon the effort for the present in favor of the one certainty for ensuring expeditious review of capital habeas petitions: full merit review without regard to procedural bars. (Cf. Clark, supra, 5 Cal.4th at pp. 802-803 (cone, and dis. opn. of Mosk, J.).)
Limiting our consideration solely to the merits would hasten resolution of these cases in at least two respects. Initially, it would reduce time consumption in this court. As our denial orders reflect, in the vast majority of capital habeas corpus cases we address all claims on the merits even when procedural bars may apply. (See Harris v. Reed (1989) 489 U.S. 255, 264, fn. 10 [109 S.Ct. 1038, 1044, 103 L.Ed.2d 308].) Since the additional time necessary to discuss possible defaults and to formulate corresponding orders advances institutional goals marginally, if at all, it can usefully be eliminated from the process. Moreover, if our denial orders contained no reference to procedural bars, respondent would have no basis for seeking dismissal of claims in federal court on those grounds. Short-circuiting that gambit would also expedite finality. (See fn. 7, ante.)
Understandably, there is concern that the omission of procedural bars from our habeas corpus denial orders will invite multiple and “last minute” petitions. To some extent, that is inevitable in capital cases. Adopting a more expeditious procedure does not deny us the flexibility to address such problems as they arise. Even if merit review is the general rule, Clark provides clear notice that the court can and will invoke procedural bars without consideration of the merits when abuse of the writ is manifest.
We should at least adopt this approach until we can determine the impact of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.L. No. 104-132 (Apr. 24, 1996) 110 Stat. 1214), which could substantially curtail and expedite federal habeas corpus review while at the same time enhancing finality and comity. Among other provisions, the act allows federal courts to disregard the failure to exhaust state remedies and deny claims on the merits (28 U.S.C. § 2254(b)(2)), limits the basis for granting relief on any claim adjudicated on the merits in state court (id., subd. (d)(1)), and precludes claims of ineffective assistance of habeas corpus counsel (id., subd. (i)). The act also imposes a one-year statute of limitations for filing a federal habeas corpus petition (28 U.S.C. § 2244(d)(1)) and places significant restrictions on the filing of successive petitions (id., subd. (b)(1)). Our state Legislature and this court have also taken steps to qualify California for the special •habeas corpus procedures in capital cases (28 U.S.C. § 2261 et seq.), which impose additional procedural limitations. (See Gov. Code, § 68650 et seq., added by Stats. 1997, ch. 869, § 3; Cal. Rules of Court, rule 76.6 [eff. Feb. 27, 1998, amended Apr. 21, 1998].)
Our own Legislature has considered amending state habeas corpus procedures as well. (See Sen. Bill No. 151 (1997-1998 Reg. Sess.).) While the federal experience shows legislative intervention is no panacea, some changes could have a positive effect on finality and comity. At the same time, however, the Legislature should be cautious to avoid the pitfalls this court struggles with, such as vague measures of timeliness and “good cause.” Whatever changes are implemented must articulate definitive standards such as a statute of limitations, limits on review of contentions that were or could have been raised on appeal, and restrictions on successive petitions. Any exceptions should be narrow and well defined. Only in such circumstances will procedural rules have the necessary foundation for adequate and independent state grounds and clear guidance for habeas corpus counsel.
Petitioner’s application for a rehearing was denied September 23, 1998. Kennard, L, was of the opinion that the application should be granted.
Appendix
S042737
IN THE SUPREME COURT OF CALIFORNIA
IN. RE GERALD A. GALLEGO ON HABEAS CORPUS
Petition for writ of habeas corpus denied.
Claims I, II, HI, and IV are denied on the merits. To the extent Claim II asserts that the trial court erred in failing to order a competency hearing, it was raised and rejected on appeal, and hence also is barred under In re Waltreus (1965) 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001] (Waltreus). In addition, each claim is barred as untimely under In re Robbins [(1998) 18 Cal.4th 770] (Robbins), and In re Clark (1993) 5 Cal.4th 750 [21 Cal.Rptr.2d 509, 855 P.2d 729] (Clark).
Claim V is denied on the merits. To the extent Claim V reasserts a claim that was raised and rejected on appeal, it is barred under Waltreus, supra. To the extent Claim V presents a claim based on the appellate record but not raised or addressed on appeal, it should have been raised on appeal and is barred under In re Dixon (1953) 41 Cal.2d 756, 759 [264 P.2d 513] (Dixon). In addition, Claim V is barred as untimely under Robbins, supra, and Clark, supra.
Claim VI is denied on the merits. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claims VII, VIII, and IX are denied on the merits. To the extent these claims reassert claims raised and rejected on appeal, they are barred under Waltreus, supra. To the extent these claims are based on the appellate record but were not raised or addressed on appeal, they are barred under Dixon, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claims X and XI are denied on the merits. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claims XII and XIII are denied on the merits. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claims XIV and XV are denied on the merits. Each is also barred under Waltreus, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim XVI is denied on the merits. Subparts A and D thereof are barred under Waltreus, supra. Subparts B and C thereof are barred as waived under People v. Green (1980) 27 Cal.3d 1, 27-34 [164 Cal.Rptr. 1, 609 P.2d 468], and under Dixon, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claims XVII and XVIII are denied on the merits. Claim XVIII also is barred under Waltreus, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim XIX is denied on the merits. Subparts A(l)-(3) and B (1) are barred under Dixon, supra, and the remaining subparts of Claim XIX are barred under Waltreus, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim XX is denied on the merits. To the extent it reasserts a claim that was raised and rejected on appeal, it is barred under Waltreus, supra. To the extent it presents a claim based upon the appellate record but not raised or addressed on appeal, it is barred under Dixon, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXI is denied on the merits. It also is barred under Waltreus, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXII is denied on the merits. To the extent it reasserts a claim that was raised and rejected on appeal, it is barred under Waltreus, supra. To the extent it presents a claim based upon the record but not raised or addressed on appeal, it is barred under Dixon, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claims XXIII and XXIV are denied on the merits. Each also is barred under Waltreus, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXV is denied on the merits. It also is barred under Dixon, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXVI is denied on the merits. It also is barred under Waltreus, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXVII is denied on the merits. It also is barred under Dixon, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claims XXVIII, XXIX, XXX, and XXXI are denied on the merits. Each also is barred under Waltreus, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXXII is denied on the merits. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXXIII is denied on the merits. It also is barred under Dixon, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXXIV is denied on the merits. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim XXXV is denied on the merits. It also is barred under Waltreus, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Insofar as any claim asserts ineffective assistance of immediately preceding appellate and habeas corpus counsel, it is denied solely on the merits. (Robbins, supra, at p. 815, fn. 35.)
Mosk, J., and Brown, J., would deny the petition solely on the merits.
In Deere v. Calderon, supra, 890 F.Supp. at page 900, the court determined “that each of the denials on grounds of untimeliness in [surveyed cases postdating Clark] was discernible, regular, and consistent.” Deere is still pending in the district court, and the Ninth Circuit has yet to pass on its determination. Another district court, however, has criticized the methodology used in Deere and reached the opposite conclusion. (Coleman v. Calderon (N.D.Cal.) 1996 WL 83882, pp. *3-*4.)
The referenced footnote states, “Our holding -does not foreclose the possibility that in an unusual case, a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceedings as to warrant the grant of habeas relief, even if it did not substantially influence the jury’s verdict. [Citation.]” (Brecht v. Abrahamson, supra, 507 U.S. at p. 638, fn. 9 [113 S.Ct. at p. 1722]; see also McCleskey v. Zant, supra, 499 U.S. at p. 494 [111 S.Ct. at p. 1470] [recognizing exception to “cause and prejudice” standard for factual innocence]; cf. Clark, supra, 5 Cal.4th at pp. 796-797 [exceptions to timeliness bars].)
The court also built into the equation another point of contention: whether the constitutional violation involved “trial error” subject to the Kotteakos standard or “ ‘structural defects in the constitution of the trial mechanism, which defy analysis by [any] “harmless-error” standards.’ [Citation.]” (Brecht v. Abrahamson, supra, 507 U.S. at p. 629 [113 S.Ct. at p. 1717]; cf. California v. Roy (1996) 519 U.S. 2 [117 S.Ct. 337, 136 L.Ed.2d 266].) The. Ninth Circuit “express[ed] no opinion on whether the attempt succeeded, so that timeliness under the Standards invoked post-Clark would constitute an adequate and independent state ground of decision... .” (Morales, supra, 85 F.3d at p. 1391; see Calderon v. U.S. Dist. Ct. for E.D. of California (9th Cir. 1996) 96 F.3d 1126, 1130.) Given the recent changes in habeas corpus investigation expense reimbursement provisions, today’s gloss on “good cause” may be of limited utility in achieving regularity and uniformity; the new provisions may well necessitate a different rule. Compare Evidence Code section 353 (failure to object waives claim of erroneous admission of evidence); People v. Ramos (1997) 15 Cal.4th 1133, 1163 [64 Cal.Rptr.2d 892, 938 P.2d 950] (trial court without jurisdiction to entertain renewed suppression motion except as statutorily provided); People v. Gallego (1990) 52 Cal.3d 115, 166 [276 Cal.Rptr. 679, 802 P.2d 169] (failure to make Wheeler (People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]) motion waives issue on appeal); People v. Coleman (1988) 46 Cal.3d 749, 770 [251 Cal.Rptr. 83, 759 P.2d 1260] (failure to exercise all peremptory challenges waives claim trial court erroneously refused to excuse juror for cause). In comparison to questions of timeliness, the bar of In re Dixon, supra, 41 Cal.2d at page 761, is a well-defined standard. The problem thus far has been in establishing the consistency of its application. (See Fields v. Calderon, supra, 125 F.3d at pp. 763-764.) On the other hand, it is clear the Ninth Circuit is fully capable of honoring a procedural default when it determines the bar is strictly and regularly followed. (See Ortiz v. Stewart (9th Cir. 1998) 149 F.3d 923, 930-932.) See, e.g., Calderon v. U.S. Dist. Ct. for E.D. of Cal. (9th Cir. 1996) 103 F.3d 72 (reference to timeliness bar caused 16-month delay including denial of certiorari petition); Calderon v. U.S. Dist. Ct. for the E.D. of California, supra, 96 F.3d 1126 (25-month delay); Morales, supra, 85 F.3d 1387 (more than 3-year delay); Siripongs v. Calderon, supra, 35 F.3d 1308 (43-month delay); Deere v. Calderon, supra, 890 F.Supp. 893 (14-month delay); Karis, supra, 828 F.Supp. 1449 (18-month delay); see also, e.g., Coleman v. Calderon, supra, 1996 WL 83882 (14-month delay, for which the court apologized to the parties in a footnote); compare Fields v. Calderon, supra, 125 F.3d 757 (38-month delay litigating Harris bars). Part of the delay results from the rule in McCleskey v. Zant, supra, 499 U.S. at pages 493-496 [111 S.Ct. at pages 1469-1471], which allows the petitioner to assert “cause and prejudice” to avoid dismissal on adequate and independent state procedural grounds. The majority notes four cases in the last two terms in which the court denied a total of twenty-three claims solely on the basis of procedural default. During that same period, we have addressed many hundreds of claims, including multiple subparts, on both the merits and procedural grounds.
GERALD ARMOND GALLEGO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35291
May 17, 2001
23 P.3d 227
[Rehearing denied July 10, 2001]
Steven G. McGuire, State Public Defender, and James P. Logan, Chief Deputy Public Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Belinda Quilici, District Attorney, John J. Kadlic, Deputy District Attorney, and Brent T. Kolvet, Special Deputy District Attorney, Pershing County, for Respondent.
[OPINION BY Shearing, J.: type=majority]
OPINION
By the Court,
Shearing, J.:
Appellant Gerald Armond Gallego murdered two teenage girls in Pershing County in 1980. He was convicted and sentenced to death. In 1997, a federal court ordered that Gallego be resentenced. He received a new penalty hearing and was again sentenced to death.
Gallego contends that a number of errors occurred at his second penalty hearing, including that the district court erred in not permitting him to represent himself and in not appointing substitute counsel. We conclude that none of Gallego’s assignments of error warrant relief.
FACTS
Two teenage girls, Stacey Redican and Karen Twiggs, disappeared from a shopping mall in Sacramento, California, in April 1980. Their bodies were found in July 1980 in shallow graves in remote Limerick Canyon, Nevada. The State’s primary witness, Charlene Williams (aka Charlene Gallego), testified that she enticed the two victims into a van where they were forcibly confined, sexually molested by Gallego, driven to Limerick Canyon, and then murdered by Gallego with a hammer. Evidence also showed that Gallego and Williams acted similarly in the earlier kidnapping and killing of two teenage girls in California, Kippi Vaught and Rhonda Scheffler. The jury found Gallego guilty of two counts each of first-degree murder and first-degree kidnapping. During the penalty phase, the State introduced evidence that Gallego had beén convicted of murdering two more people in California, Mary-Beth Sowers and Craig Miller. He was sentenced to death for the murders in this case and received two consecutive sentences of life without the possibility of parole for. the kidnappings. This court affirmed Gallego’s conviction and sentence.
In 1997, the Ninth Circuit Court of Appeals concluded that a jury instruction on the possibility of executive clemency had been misleading and ordered that Gallego be resentenced.
The district court appointed the Nevada State Public Defender to represent Gallego. Gallego moved in proper person to be permitted to represent himself in October 1998. Steven McGuire, Gallego’s lead counsel, filed a response to the motion asking the district court to determine as a threshold question whether Gallego was competent. In January 1999, the district court approved the employment by the defense of a psychiatrist and a psychologist to examine Gallego. An evidentiary hearing on' Gallego’s competency was held May 10-12, 1999. The district court found him competent.
Following this finding, McGuire filed a brief in support of Gallego’s motion for self-representation. Gallego submitted a request in proper person for discharge of McGuire and substitution of counsel. At a hearing in August 1999, the district court denied Gallego’s motions to represent himself and for substitute counsel.
The second penalty hearing was held in September 1999. The State presented evidence that Gallego kidnapped and murdered Redican and Twiggs, that he had been convicted of kidnapping and murdering two other people in California (Sowers and Miller), and that he kidnapped and killed two more people in California (Vaught and Scheffler) but had not been charged with the latter offenses.
The defense introduced written declarations by a number of people familiar with extreme physical and emotional abuse that Gallego suffered growing up and by Dr. Myla K. Young, the psychologist who examined him. Psychiatrist Dr. David V. Foster testified for the defense. Gallego’s medical history showed that he had suffered serious head injuries, and Foster stated that neu-ropyschiatric and neuropsychological testing and a CAT (computerized axial tomography) scan indicated significant damage to Gallego’s brain. Foster summed up Gallego’s family history as follows: “Mr. Gallego was severely tortured, beaten, humiliated and at times starved and deprived of food, affection, warmth, and suffers severe post-traumatic stress disorder as a consequence.”
The jury found all three alleged aggravating circumstances, which were that the murder was committed: by a person previously convicted of another murder; by a person previously convicted of a felony involving the use or threat of violence; and while the defendant was engaged in the commission of kidnapping in the first degree. It found that the mitigating circumstances did not outweigh the aggravating circumstances and returned a death sentence for each murder.
The defense filed a motion for a new trial, alleging that the jury neglected its duty to consider the mitigating evidence. After a hearing on the motion, the district court denied it. A sentencing hearing was then held, and the court entered judgment and sentenced Gallego to death.
DISCUSSION
I. The denial of appellant’s motion to represent himself
Gallego contends that the district court violated his constitutional right to represent himself.
A criminal defendant has the right to self-representation under the Sixth Amendment of the United States Constitution and article 1, section 8 of the Nevada Constitution. However, an accused who chooses self-representation must satisfy the court that his waiver of the right to counsel is knowing and voluntary. Such a choice can be competent and intelligent even though the accused lacks the skill and experience of a lawyer, but the record should establish that the accused was made aware of the dangers and disadvantages of self-representation. Deprivation of the right to self-representation is reversible, never harmless, error. A court may deny a defendant’s request for self-representation when the defendant is incompetent to waive the right to counsel, the request is untimely, the request is equivocal, the request is made solely for the purpose of delay, or the defendant abuses the right to self-representation by disrupting the judicial process.
The district court expressed a number of grounds for denying Gallego’s motion to represent himself. It found the request to be untimely and equivocal and that Gallego had waived the right to represent himself. It also cited Gallego’s uncooperative, obstructive behavior as grounds to deny the motion.
Whether the request for self-representation was untimely or waived
In Lyons v. State, this court held that if a request for self-representation “comes early enough to allow the defendant to prepare for trial without need for a continuance, the request should be deemed timely.” We conclude that the district court erred in deeming Gallego’s request untimely. None of the cases cited by the court on this issue were apposite since all involved requests for self-representation coming on the first day of trial or later.
Here, the district court treated Gallego’s request to represent himself as if it came just before the penalty phase in the midst of an ordinary, uninterrupted capital trial. This treatment was not appropriate because the penalty phase followed the original trial by fifteen years and required a new jury to be empaneled. Gallego first made his request in October 1998, almost a year before that empaneling. There is no indication that Gallego was trying to delay the proceedings. Deeming the request untimely under these circumstances improperly placed form over substance and was erroneous. Under Lyons, Gallego’s request was timely because it was made well before the penalty phase of the trial and did not necessitate a continuance.
The district court also found that Gallego waived the right to represent himself by accepting court-appointed counsel at his original trial. It cited our opinion in Tucker v. State, which holds: “Where a defendant requests a court-appointed attorney and thereafter voluntarily acquiesces in representation by that court-appointed attorney, he waives his constitutional right to conduct a pro se defense.” In Tucker, a burglary defendant told the district court at a pretrial hearing he would not accept representation by the public defender, but then voluntarily accepted such representation and made no objection once it commenced.
Tucker is not on point here, and again the district court placed form over substance and treated Gallego’s request as if it came in the midst of an ongoing trial. It concluded that his acceptance of appointed counsel for the trial in 1984 acted to waive his right to proceed without counsel at the second penalty hearing fifteen years later. However, during the proceedings related to the new penalty hearing Gallego never acquiesced to the appointment of his counsel, and the court erred in finding waiver under these circumstances.
Whether appellant’s request for self-representation was equivocal
The district court found Gallego’s request to be equivocal because Gallego also asked the court for substitution of counsel. The pertinent facts are the following.
In September 1998, the district court appointed the Nevada State Public Defender to represent Gallego. Gallego filed a motion for permission to represent himself on October 8, 1998. This motion unequivocally asked the court to allow Gallego to represent himself. When Gallego first appeared before the district court on October 16, 1998, he informed the court, “I am my attorney.”
Gallego’s counsel, McGuire, then asked for a determination of Gallego’s competency, and for most of a year the proceedings in district court largely related to this issue. During a competency hearing in November 1998, Gallego told the court that his appointed attorneys were trying to kill him and he wanted another lawyer. The court asked, “Are you saying you don’t want to represent yourself?” Gallego said, “I want another lawyer, one I can talk to, a real lawyer like [the State] got.” The court said, “it appears for the record that you want an attorney, you just don’t want the attorneys you have right now; is that correct, sir?” Gallego said, “I want an attorney that is going to represent me. It’s just that simple.”
In July 1999, the district court found that Gallego was competent. In August 1999, McGuire filed a brief supporting Gallego’s motion for self-representation. McGuire asserted that if a canvass under Faretta showed that Gallego had made his decision with a clear comprehension of the attendant risks, then he had the right to waive counsel and represent himself. Around the same time, Gallego submitted a pro per request for discharge of McGuire and substitution of counsel.
At a hearing on August 24, 1999, as the district court began to canvass Gallego on his request to represent himself, he asked the court to first address his motion for substitute counsel. The court agreed to do so. Gallego said that McGuire had a conflict of interest and there was a lack of trust and total breakdown of communications. He therefore asked the court “to terminate Mr. McGuire and appoint new counsel.” Gallego insisted that the motion for substitute counsel was not connected to his motion to represent himself. He said, ‘ T don’t know how the court is going to rule on my motion to represent myself, but either way I would object to Mr. McGuire.” Gallego acknowledged that because he was indigent he was not entitled to counsel of his choice, but he asked the court for any counsel other than McGuire or anyone from his office. McGuire agreed that there had been an irremediable breakdown in the attorney-client relationship and joined in Gallego’s motion.
Without addressing the motion for self-representation or conducting a Faretta canvass, the court denied Gallego’s motion to represent himself, finding it equivocal. We conclude that the record does not support this finding.
During the August 1999 hearing, the district court, Gallego, McGuire, and the prosecutor all to some degree obscured the discussion of the motion for substitute counsel with references to the motion for self-representation. It was reasonable, however, for Gallego to ask the court to first decide the motion for substitution of new counsel because granting it would have rendered the motion for self-representation moot. And although Gallego stated more than once that his motion for substitute counsel was a separate request, the court never distinguished it from the motion for self-representation. Thus, the court saw the request for new counsel as nothing more than an equivocal element in the motion for self-representation. However, this “equivocation” might have been eliminated if the court had addressed the motions separately.
There is no question that Gallego sought to have new counsel appointed. Though relevant to a request for self-representation, this is not dispositive. Numerous courts have recognized that a request to proceed without counsel can be unequivocal even if in the alternative the defendant would prefer a different attorney.
The Ninth Circuit’s analysis in Adams v. Carroll is apt.
Although [Adams’s] two self-representation requests were sandwiched around a request for counsel, this was not evidence of vacillation. To the contrary, each of these requests stemmed from one consistent position: Adams first requested to represent himself when his relationship with Carroll broke down. He later requested counsel, but with the express qualification that he did not want Carroll. When Carroll was reappointed, Adams again asked to represent himself. Throughout the period before trial, Adams repeatedly indicated his desire to represent himself if the only alternative was the appointment of Carroll. While his requests no doubt were conditional, they were not equivocal.
Here, it appears that Gallego’s requests to represent himself and for substitute counsel also stemmed from one consistent position: his desire to discharge McGuire as his counsel.
Although an unequivocal request for self-representation can be conditional, “it must speak to self-representation and not simply to a dissatisfaction with current counsel,” and “a court can insist that the defendant explicitly cho[o]se to proceed pro se once informed that a substitution of counsel will not be permitted.” Gallego’s request went beyond dissatisfaction with counsel and expressly sought self-representation, but he was never presented the explicit choice to proceed in proper person.
The question is whether Gallego wanted to represent himself if he could not have new counsel. We do not have a definitive answer to this because no record was made on the issue. The district court’s conclusion that Gallego’s request was equivocal was, at best, premature. The court should have denied the request for substitute counsel and then ascertained whether Gallego nevertheless wanted to represent himself. The record as it stands suggests that Gallego would have preferred to represent himself rather than be represented by McGuire and the State Public Defender. Therefore, the district court erred in finding the request equivocal simply because Gallego preferred to have new counsel.
Whether appellant was disruptive
The United States Supreme Court has stated: “The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” An accused has the right to conduct his own defense provided that he is “able and willing to abide by rules of procedure and courtroom protocol.”
A defendant’s pretrial activity is relevant in determining whether the defendant will disrupt courtroom proceedings. This court will not substitute its evaluation for the district court’s personal observations and impressions if the latter finds that a defendant will be disruptive. We conclude that the record supports a finding that Gallego’s pretrial behavior showed he was unable or unwilling to abide by rules of procedure and courtroom protocol.
Although the district court was concerned with Gallego’s refusal to cooperate with the mental health experts appointed to determine his competency, we do not consider this behavior relevant to his right to conduct his own defense because a defendant has the Fifth Amendment right to remain silent during a court-ordered psychiatric interview. Other behavior by Gallego, however, was relevant to his right to represent himself. He showed an unwillingness or inability to follow procedural rules in repeatedly claiming his innocence and seeking to present evidence on that issue despite being informed by the district court that such a claim was improper during the penalty phase. Gallego impeded pretrial proceedings on numerous occasions by refusing to respond or participate, often claiming that he could not hear the district court or another speaker. Although the record shows that there was some trouble with acoustics in the courtroom as well as with Gallego’s hearing, it also establishes that Gallego was frequently malingering. Although the prison provided Gallego with a hearing aid, he did not wear it and denied having received one. The district court was remarkably patient, but noted that Gallego’s hearing problem appeared to come and go. During proceedings Gallego often waited long periods of time before asserting that he had not been able to hear anything the court had said. Several times he simply refused to respond at all to the court. At least twice he turned his back on courtroom proceedings and once refused to participate in a hearing conducted by conference call.
It is clear from the overall record that Gallego repeatedly and intentionally obstructed the proceedings below. We conclude that the district court acted within its discretion in denying his motion for self-representation based on this behavior.
II. The denial of appellant’s motion for substitute counsel
Gallego contends that the district court erred in denying his motion to substitute new counsel. The pertinent facts follow.
On August 13, 1999, Gallego submitted a pro per motion for discharge of McGuire and substitution of counsel. Gallego alleged a “conflict of interest” because “all his [McGuire’s] defen[s]e does is offer me up to the D.A. for ex[e]cution” and McGuire had “not filed any motions I feel he should have.” Gallego also alleged a total breakdown of communications and lack of trust because McGuire had lied to him and failed to keep promises.
At the hearing on August 24, 1999, Gallego argued in support of his motion for substitute counsel. He complained that he was not receiving records of the court proceedings and claimed that McGuire had broken his promise to bring in attorney Richard Cornell to help with the defense. He explained he was asking the court for any counsel other than McGuire or anyone from his office, not for a particular attorney. Gallego also maintained that he had new evidence proving his innocence which he wished to present to the court. During the hearing McGuire moved to withdraw. He explained that he had felt compelled to raise the issue of Gallego’s competency early in the proceedings against Gallego’s wishes and this had harmed their relationship. McGuire agreed that there had been “an irremediable breakdown for any potential attorney-client relationship.” McGuire also believed that he had sent Gallego all the records in the case. The court rejected Gallego’s motion for substitute counsel.
In Thomas v. State, this court held that a defendant’s right to substitution of counsel is limited:
“A defendant is not entitled to reject his court-appointed counsel and request substitution of other counsel at public expense absent a showing of adequate cause for such a change.” Junior v. State, 91 Nev. 439, 441, 537 P.2d 1204 (1975). The decision whether friction between counsel and client justifies appointment of new counsel is entrusted to the sound discretion of the trial court and should not be disturbed on appeal in the absence of a clear showing of abuse.
Where a motion for new counsel is made considerably in advance of trial, the court may not summarily deny the motion but must adequately inquire into the defendant’s grounds for it. “ ‘A defendant cannot base a claim of inadequate representation upon his refusal to cooperate with appointed counsel. Such a doctrine would lead to absurd results.’ ”
Thomas is consistent with other case law on this topic. An indigent defendant “has a right to substitution only upon establishing ‘good cause, such as a conflict of interest, a complete breakdown of communication, or an irreconcilable conflict which [could] lead ... to an apparently unjust verdict.’ The mere loss of confidence in his appointed counsel does not establish ‘good cause.’ ” Good cause is not “determined solely according to the subjective standard of what the defendant perceives. While loss of trust is certainly a factor in assessing good cause, a defendant seeking substitution of assigned counsel must nevertheless afford the court with legitimate reasons for the lack of confidence.” “Attorney-client conflicts justify the grant of a substitution motion only when counsel and defendant are so at odds as to prevent presentation of an adequate defense.”
Here, Gallego undoubtedly lacked confidence and trust in his counsel and often refused to work with them. (It was not an absolute breakdown in the relationship, however. Gallego was able to meet and consult with counsel during the penalty phase although he still disagreed with them.) But Gallego never provided legitimate reasons for his lack of confidence in his counsel. Although he claimed that McGuire had a “conflict of interest,” he provided no evidence that McGuire’s loyalty was in any way compromised. Gallego apparently based this claim on his contention that McGuire’s defense would offer him up for execution. This amounted to a disagreement between Gallego and McGuire over trial strategy, not a conflict of interest. This disagreement was not good cause for substitution of counsel: McGuire’s strategy was reasonable while Gallego’s strategy was ill-conceived and largely impermissible.
Gallego wanted to dispute his culpability and blame Charlene Williams for the murders and even call her as a witness. He wanted to present evidence that she was a violent, intimidating lesbian who had sex by force; that she was a liar; and that she had made a plea agreement and was no longer serving prison time for her crimes. Further, Gallego wanted to present evidence that the original trial prosecutor and others had written and profited from a book on Gallego’s crimes. He also wanted to present a statement from his deceased mother and testimony by his brother, his cousin, and a former employer as mitigating evidence.
McGuire’s strategy was to present evidence that Gallego had endured severe physical and emotional abuse as a child — including at the hands of his mother — and that he suffered from mental disabilities and had abused drugs. McGuire also informed the jury that Williams actively participated in the crimes, lied to authorities various times, and received a plea bargain and was now free, but he did not call Williams because he considered her a hostile witness who would have provided damaging testimony against Gallego. McGuire expressed doubt that the jury would find it relevant that people connected to Gallego’s case had written a book about it. And McGuire had attempted to locate various mitigation witnesses, but many could not be found, and others did not want to testify.
We conclude that McGuire’s strategy was reasonable, while much of the evidence which Gallego wished to present was not even admissible. A court may exclude proffered mitigating evidence as irrelevant if it does not bear on the defendant’s character, his prior record, or the circumstances of his offense. Evidence presented in mitigation must be relevant to the offense, the defendant, or the victim.
Gallego’s claim that McGuire broke a promise to have attorney Richard Cornell join the defense team is somewhat understandable, but groundless. In November 1998, McGuire applied for the district court’s approval to employ Cornell to assist in the case because the federal court’s deadline for resentencing was so short and Cornell had represented Gallego for eleven years. The court originally ordered the employment. However, McGuire did not oppose the State’s request to rescind the order after the federal court granted a six-month extension of time for the resentencing. Gallego has offered no other specific basis for his claims that McGuire lied to him and broke promises made to him. Nor has he specified any motions which McGuire refused to file.
We conclude that the district court adequately inquired into Gallego’s grounds for moving to substitute counsel, that Gallego proffered no legitimate reason for his lack of confidence and trust in his counsel, that his counsel represented him ably, and that the attorney-client conflict here did not prevent the presentation of an adequate defense or result in an apparently unjust verdict. Therefore, the court acted within its sound discretion in refusing to appoint substitute counsel.
III. The propriety of jury instructions and closing argument
Gallego contends that certain jury instructions were erroneous and that the prosecutor made improper remarks during closing argument. Gallego did not object below to the instructions or remarks. Failure to object during trial generally precludes appellate consideration of an issue. Despite such failure, this court has the discretion to address an error if it was plain and affected the defendant’s substantial rights. Normally, the defendant must show that an error was prejudicial in order to establish that it affected substantial rights.
Gallego complains that instruction numbers 10 and 29 and a remark by the prosecutor failed to inform jurors that they had to weigh any mitigating circumstances against aggravating circumstances before considering other evidence offered by the State against Gallego. No error occurred: the jury instructions and the prosecutor’s remarks as a whole correctly informed the jury to consider the mitigating evidence. Gallego also claims that instruction number 9 was erroneous under Geary v. State This claim has no merit.
Gallego complains that the prosecutor commented in closing argument that the defense had not rebutted the alleged aggravators. This comment was improper. To obtain a death sentence, the State must prove beyond a reasonable doubt that at least one aggravating circumstance exists and that the aggravating circumstance or circumstances outweigh any mitigating evidence. Thus, the prosecutor’s remark improperly suggested that the defense had a burden to disprove aggravating circumstances. Nevertheless, the remark here was extremely brief and general, and there was overwhelming evidence to prove the three aggravating circumstances. Even assuming the error was plain, we conclude that the remark did not affect Gallego’s substantial rights.
IV. The jury’s failure to fully mark a special verdict form
The jury received a special verdict form directing it to check any listed mitigating circumstances that it found or to check that it found none. The form then directed the jury to check that either the mitigating circumstances were sufficient to outweigh the aggravating circumstances or were not. The jury checked only the final item on the verdict form: the mitigating circumstances were not sufficient to outweigh the aggravating circumstances.
Gallego contends that the failure to fill out the whole verdict form shows that the jury failed to consider the mitigating evidence and weigh it against the aggravating circumstances. He also claims that he proved, without rebuttal, the eleven mitigators listed on the form.
As an initial point, there is no requirement that a jury specify the mitigating circumstances it has found. NRS 175.554(3) provides that the jury need only state that there are no mitigating circumstances which outweigh the aggravating. The jury here so stated.
We do not accept Gallego’s suggestion that jurors had to find some or all of his proffered mitigating circumstances simply because he presented unrebutted evidence to support them. Although the State did not offer any direct rebuttal evidence, the prosecutor cross-examined the defense psychiatrist vigorously and argued generally against the mitigating force of Gallego’s evidence. Jurors were properly instructed to consider the evidence presented in mitigation. We presume that the jurors followed their instructions and considered the evidence. Gallego “fails to cite any authority which holds that a jury is required to find a mitigating circumstance when a defendant presents evidence in support of that circumstance.” It appears that the jurors found no mitigating circumstances and simply overlooked that they were supposed to indicate this on the form. We conclude that no error occurred here.
Given the jury’s failure to fill out the entire verdict form, Gallego also claims that this court cannot perform its mandatory review of his death sentence because we must review the weight that jurors gave to the mitigating evidence. We disagree. NRS 177.055(2) requires this court to consider, among other things, whether a death sentence is excessive. To do so, we must consider the mitigating evidence presented by a capital defendant, but our review is not dependent on the jury’s assessment of that evidence. In fact, as discussed above, this court may not even know the jurors’ findings on particular alleged mitigators because a verdict form specifying such findings is not required. Therefore, the jury’s failure to fully mark its verdict form does not prevent our mandatory review of Gallego’s sentence.
V. Appellant’s exclusion from in camera proceedings
Gallego complains that he was not present at a number of in camera proceedings. Specifically, he contends that his right to be present at the empaneling of the jury was violated because several prospective jurors were excused in such proceedings. We conclude that no error occurred.
Gallego cites two decisions by the United States Supreme Court for authority that his right to be present was violated, but these cases are distinguishable because they both involved the defendants’ absence when challenges to prospective jurors were being made and decided. Here, by contrast, the prospective jurors were dismissed by the stipulation of both counsel for reasons ranging from knowledge of the case to ill health.
This court has explained that a defendant does not have an unlimited right to be present at every proceeding.
The right to be present is rooted in the Confrontation Clause and the Due Process Clause of the Federal Constitution. The confrontation aspect arises when the proceeding involves the presentation of evidence. The due process aspect has been recognized only to the extent that a fair and just hearing would be thwarted by the defendant’s absence. The right to be present is subject to harmless error analysis. The defendant must show that he was prejudiced by the absence.
No evidence presented at the in camera proceedings implicated Gallego’s confrontation right. He has not shown how his absence prejudiced him in any way, and we conclude that the proceedings were fair and just despite his absence.
VI. Appellant’s waiver of his right to testify
Gallego claims that the waiver of his right to testify was not valid because he made it under a misconception that his testimony would have been restricted. This claim has no merit.
The district court advised Gallego fully of his right to testify or to speak in allocution, explaining that any statements he gave would be limited to matters relevant to the penalty phase, such as mitigating circumstances and expressions of remorse, not issues of guilt. Gallego responded that if he could not tell “the whole truth,” he had “no choice but to forfeit” his right to testify. Gallego did speak in allocution.
“Criminal defendants have the right to testify on their own behalf under the due process clause of the fourteenth amendment, the compulsory process clause of the sixth amendment and the fifth amendment’s privilege against self-incrimination.” The United States Supreme Court has stated that a valid waiver of a fundamental constitutional right ordinarily requires “an intentional relinquishment or abandonment of a known right or privilege.” Courts should indulge every reasonable presumption against waiver and should not presume acquiescence in the loss of fundamental rights.
Gallego contends that his waiver of his right to testify was not knowing because at trial he believed that his testimony would be restricted when he actually could have testified “as he wished,” subject to cross-examination. He is incorrect. “The proper place for the introduction of evidence tending to establish innocence is in the guilt phase of trial. At the penalty phase, the defendant’s guilt has already been assessed and is no longer in issue.” Evidence presented in mitigation must be relevant to the offense, the defendant, or the victim. At a capital penalty hearing, a court may constitutionally exclude evidence as irrelevant if it does not bear on the defendant’s character, his prior record, or the circumstances of his offense.
Thus, Gallego’s belief at trial that the scope of his testimony could be limited was not a misconception. We conclude that Gallego understood his right to testify and intentionally waived it.
VII. Other assignments of error
Gallego’s other assignments of error also warrant no relief.
Gallego claims that Nevada’s capital sentencing scheme improperly allows a jury to find a defendant death-eligible based on evidence other than enumerated aggravating circumstances and therefore the district court erred in denying his motion to trifur-cate or bifurcate the penalty hearing. We conclude that the process by which juries in capital cases in Nevada consider the evidence and decide on a sentence is constitutionally adequate.
Gallego complains that a former sheriff’s lieutenant said without any supporting evidence that Gallego and Williams were “responsible for probably ten murders.” Testimony regarding police investigations of a defendant’s other crimes is admissible at a capital penalty hearing so long as the evidence is not impalpable or highly suspect. The remark here constituted only impalpable evidence; however, the remark was inadvertent and brief. Reliable evidence did establish that Gallego had committed six murders: the two in this case, the two he was convicted of in California, and two uncharged murders in California. In light of this evidence, we conclude that the single, passing reference to four other possible murders did not prejudice Gallego.
Gallego contends that he was denied funding for magnetic resonance imaging and positron emission tomography testing necessary to establish that he suffered from organic brain damage. We conclude that the district court did not err in denying the motion for the funding. Not only was Gallego appointed a psychiatrist and a psychologist who provided their opinions that he had organic brain damage, but the record shows that he had received a CAT scan which his experts were able to rely on to support their opinions. Gallego has failed to show why further testing was necessary to adequately present this theory of mitigation.
Gallego claims that the father of one of the victims asked the jury to return a death sentence. Gallego did not object below. A victim can express an opinion regarding the defendant’s sentence only in noncapital cases. However, no error, let alone plain error, occurred: Mr. Redican did not express to the jury an opinion regarding Gallego’s sentence.
Gallego challenges the constitutionality of the death penalty in Nevada on several grounds. First, he claims that the aggravators set forth in NRS 200.033 fail to truly narrow the class of persons eligible for the death penalty. Gallego does not argue that any aggravator was misapplied in his case, and we reject this claim. Second, Gallego contends that NRS 175.552(3), which allows the introduction of evidence against a defendant on “any other matter which the court deems relevant,” is unconstitutionally vague and is contrary to NRS 200.033. This contention lacks merit: the statutes are compatible, and we have defined the limited scope and use of “other matter” evidence. Third, Gallego argues that the death penalty is cruel and unusual punishment in violation of the Eighth Amendment. Even if death is not an unusual punishment in this country, he contends that it is undeniably cruel and therefore violates article 1, section 6 of the Nevada Constitution, which prohibits “cruel or unusual punishments.” We decline to reconsider our precedent upholding the constitutionality of the death penalty.
Finally, Gallego claims that the State improperly conducted his psychological evaluation at the Northern Nevada Correctional Center rather than at Lakes Crossing. We conclude that Gallego fails to demonstrate a violation of any right in this regard.
Vin. Mandatory review of appellant’s death sentence
Pursuant to NRS 177.055(2), we conclude that the evidence supports the aggravating circumstances found in this case; we discern no indication that Gallego’s death sentence was imposed under the influence of passion, prejudice, or any arbitrary factor; and considering the crime and the defendant, we conclude that the sentence is not excessive.
CONCLUSION
We conclude that the district court did not err in denying Gallego’s motion to represent himself or his motion for substitute counsel. We also conclude that Gallego’s other assignments of error do not warrant relief. We therefore affirm his judgment of conviction and sentence of death.
Agosti, Rose, Leavitt and Becker, JL, concur.
See Gallego v. State, 101 Nev. 782, 784, 711 P.2d 856, 858 (1985) (reciting the facts); Gallego v. McDaniel, 124 F.3d 1065, 1068-69 (9th Cir. 1997) {Gallego II) (same).
Gallego II, 124 F.3d at 1074-76, 1079.
U.S. Const, amend. VI; Faretta v. California, 422 U.S. 806, 818-19 (1975); Nev. Const, art. 1, § 8, cl. 1.
Faretta, 422 U.S. at 835; Godinez v. Moran, 509 U.S. 389, 400-01 (1993).
Faretta, 422 U.S. at 835.
McKaskle v. Wiggins, 465 U.S. 168, 111 n.8 (1984).
Tanksley v. State, 113 Nev. 997, 1001, 946 P.2d 148, 150 (1997).
106 Nev. 438, 446, 796 P.2d 210, 214 (1990).
See, e.g., United States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir. 1979) (holding that request made on second day of trial was properly refused as “a ploy to frustrate the orderly procedures of a court”).
92 Nev. 486, 491, 553 P.2d 951, 954 (1976).
Id.
See, e.g., Hamilton v. Groose, 28 F.3d 859, 862 (8th Cir. 1994) (concluding the request was equivocal); Adams v. Carroll, 875 F.2d 1441, 1444-45 (9th Cir. 1989) (concluding the request was unequivocal); State v. Stenson, 940 P.2d 1239, 1275-76 (Wash. 1997) (equivocal); State v. Sinclair, 730 P.2d 742, 745 (Wash. Ct. App. 1986) (unequivocal); People v. Longuemire, 257 N.W.2d 273, 274-75 (Mich. Ct. App. 1977) (unequivocal).
Adams, 875 F.2d at 1444-45.
3 Wayne R. LaFave et al., Criminal Procedure § 11.5(b), at 573, and (d), at 582 (2d ed. 1999).
Faretta, 422 U.S. at 835 n.46.
McKaskle, 465 U.S. at 173.
Tanksley, 113 Nev. at 1001, 946 P.2d at 150.
Id. at 1002, 946 P.2d at 151.
See U.S. Const, amend. V; Brown v. State, 113 Nev. 275, 288-89, 934 P.2d 235, 244 (1997).
94 Nev. 605, 607-08, 584 P.2d 674, 676 (1978) (citation omitted).
See id. at 608, 584 P.2d at 676.
Id. (quoting Shaw v. United States, 403 F.2d 528, 529 (8th Cir. 1968)).
3 LaFave, Criminal Procedure § 11.4(b), at 555 (quoting McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981)) (footnotes omitted).
McKee, 649 F.2d at 932.
Stenson, 940 P.2d at 1272.
See Harte v. State, 116 Nev. 1054, 1069, 13 P.3d 420, 430 (2000) (citing Lockett v. Ohio, 438 U.S. 586, 604 n.12 (1978)).
NRS 175.552(3); Coliman v. State, 116 Nev. 687, 725, 7 P.3d 426, 450 (2000).
Rippo v. State, 113 Nev. 1239, 1259, 946 P.2d 1017, 1030 (1997).
See NRS 178.602 (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”).
See United States v. Olano, 507 U.S. 725, 734-35 (1993) (discussing Fed. R. Crim. P. 52(b), which is identical to NRS 178.602).
See Greene v. State, 113 Nev. 157, 167-68, 931 P.2d 54, 61 (1997) (a jury instruction is not judged in isolation, but must be viewed in the context of the overall charge), receded from on other grounds by By ford v. State, 116 Nev. 215, 994 P.2d 700 (2000).
114 Nev. 100, 103-04, 952 P.2d431, 432-33 (1998).
See Witter v. State, 112 Nev. 908, 923, 921 P.2d 886, 896 (1996), receded from on other grounds by Byford, 116 Nev. 215, 994 P.2d 700.
See, e.g., Whitney v. State, 112 Nev. 499, 502, 915 P.2d 881, 883 (1996) (“[I]t is generally improper for a prosecutor to comment on the defense’s failure to produce evidence or call witnesses as such comment impermissibly shifts the burden of proof to the defense.”).
See Rogers v. State, 101 Nev. 457, 469, 705 P.2d 664, 672 (1985).
Id.
See Thomas v. State, 114 Nev. 1127, 1149, 967 P.2d 1111, 1125 (1998).
Id.
Lewis v. United States, 146 U.S. 370, 376 (1892); Hopt v. Utah, 110 U.S. 574, 577 (1884).
Kirksey v. State, 112 Nev. 980, 1000, 923 P.2d 1102, 1115 (1996) (citations omitted).
Phillips v. State, 105 Nev. 631, 632, 782 P.2d 381, 382 (1989) (citing Rock v. Arkansas, 483 U.S. 44, 49 (1987)).
Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
Barker v. Wingo, 407 U.S. 514, 525-26 (1972).
Echavarria v. State, 108 Nev. 734, 744, 839 P.2d 589, 596 (1992).
NRS 175.552(3); Coliman, 116 Nev. at 725, 7 P.3d at 450.
See Harte, 116 Nev. at 1069, 13 P.3d at 430.
See Holloway v. State, 116 Nev. 732, 745-47, 6 P.3d 987, 996-97 (2000); Middleton v. State, 114 Nev. 1089, 1116-17, 968 P.2d 296, 314-15 (1998).
Leonard v. State, 114 Nev. 1196, 1214, 969 P.2d 288, 299 (1998).
See NRS 7.135 (providing for reimbursement for “such investigative, expert or other services as may be necessary for an adequate defense”); cf. Sonner v. State, 112 Nev. 1328, 1340, 930 P.2d 707, 715 (1996) (a defendant is entitled to attempt to prove defense theory, but unlimited expenditure in effort to find support for theory is not required), modified on other grounds on rehearing by 114 Nev. 321, 955 P.2d 673 (1998).
Rippo, 113 Nev. at 1261, 946 P.2d at 1031.
See, e.g., Hollaway, 116 Nev. at 745-47, 6 P.3d at 996-97.
The Honorable A. William Maupin, Chief Justice, and The Honorable Cliff Young, Justice, did not participate in the decision of this appeal.