Aggravating and Mitigating Factors
Category > Aggravating and Mitigating Factors
Updated 2/24/2024The trial court erred in excluding defendant’s PET scan results at the penalty phase of his capital trial. The trial court erred at the penalty phase of defendant’s case by excluding his PET scan results. PET scans have been used for decades to evaluate brain abnormality and were relevant at the penalty phase. id: 27315
Updated 2/3/2024Error in excluding evidence relevant to lingering doubt at the penalty phase was harmless where the defense case did not focus on lingering doubt.Defendant intended to call Towne at the guilt phase of his trial but could not locate the witness. Towne would have testified that the shooter had a very different body type from defendant. The court later erred by precluding the witness (who had been found) from testifying at the penalty phase as this was mitigating evidence relevant to lingering doubt. However, the error was harmless where the defense penalty phase case did not focus on lingering doubt but rather on defendant’s family history and background.id: 27538
The trial court erred by allowing evidence at the penalty phase that the guard defendant stabbed was “Mexican American.”The prosecution admitted evidence at the penalty phase of defendant’s capital trial that defendant stabbed a prison guard with a shank while in custody. The admission of further testimony that the guard was “Mexican American” was improper because his race was irrelevant. However, the error was harmless since the comment was brief and the aggravating evidence was strong.id: 25965
Rumor on the street that defendant had committed an assault was insufficient to support its use as aggravating evidence in the capital trial.During defendant’s penalty phase trial, the prosecution introduced evidence of an armed assault committed two months before the murders. However, the court erred in admitting this as evidence in aggravation because there was no direct evidence linking defendant to the assault, just the testimony of a witness suggesting that was the word “on the street.” The error was harmless where that assault was a small piece of the prosecution’s aggravating evidence.id: 25681
The trial court erred by prohibiting defendant from presenting evidence that the correctional facilities in which he was housed failed to diagnose and treat his neurological problems. The trial court erred at the penalty phase by prohibiting evidence of institutional failure at the CYA facilities where defendant spent significant time, or evidence that treatment might have improved his mental health or life chances. However, the error was harmless absent a showing that had he received the proper treatment, he may have turned out to be a less violent adult. id: 23775
The trial court erred at the penalty phase by striking an expert’s testimony regarding antisocial personality disorder. The trial court erred at the penalty phase by striking the doctor’s testimony regarding defendant’s antisocial personality disorder and that it was compounded by organic brain damage, which another doctor had diagnosed. However, the error was harmless where another doctor had given similar testimony about “antisocial personality traits” and diagnosed defendant with a conduct disorder similar to APD.id: 23776
The trial court erred by precluding evidence at the penalty phase showing prison security measures for those sentenced to LWOP after the prosecution presented evidence of defendant’s dangerousness while in jail.During the penalty phase of defendant’s capital trial, the prosecution presented evidence of defendant’s violence in jail and his repeated escape attempts. The trial court later prejudicially erred by precluding the defense from presenting expert testimony about prison security measures for those sentenced to life without the possibility of parole. id: 24067
Supreme Court says suppressed evidence not material to guilt but may have been material to death penalty.At his state murder trial, defendant raised an insanity defense, arguing that when he committed the murders, he had amphetamine psychosis brought on by drug use. The prosecution argued that defendant was a drug seller, not a drug user, and that he was not suffering from amphetamine psychosis at the time of the murders. The jury convicted defendant and sentenced him to death. Ten years later, defendant discovered that prior to his trial, the prosecution had failed to produce evidence in its possession that defendant was impaired by the use of drugs when he committed the crime and that the police believed him to be a drug user. The Supreme Court, in an opinion by Justice Stevens, held that the suppressed evidence was not material to defendant’s guilt because it did not tend to show that defendant was unable to appreciate the wrongfulness of his conduct. The Court held, however, that the suppressed evidence may have been material evidence in mitigation at the penalty phase of defendant’s trial. For that reason, the Court remanded for a full review of the suppressed evidence. Chief Justice Roberts concurred in the judgment; Justice Alito concurred in part and dissented in part; Justice Thomas, joined by Justice Scalia, dissented.id: 21418
Evidence of defendant’s BB gun incident as a juvenile was not admissible as aggravating evidence at the penalty phase.The trial court erred at the penalty phase by admitting as aggravating evidence the defendant’s act of bringing a BB gun onto school property as a 12 year-old. The conduct was not criminal and did not involve an express or implied threat to use violence. However, the error was harmless in light of the evidence of multiple violent crimes defendant committed as an adult.id: 21251
Trial court erred at the penalty phase in allowing evidence that defendant had been incarcerated at the CYA until just before the charged murder.Juvenile adjudications are not prior felony convictions and are not admissible in the prosecution’s case-in-chief in the penalty phase. Therefore, the trial court erred in admitting evidence that defendant had been confined in the California Youth Authority until just a few days before the present murder. id: 20351
The trial court may have committed harmless error by restricting questions at the penalty phase regarding the grief defendant’s execution would cause his former girlfriend who was testifying for the prosecution.Defendant’s former girlfriend testified at the penalty phase regarding an assault defendant committed on her years earlier. The court prevented defense counsel from asking the witness on cross-examination whether she would like to see defendant killed. This may have been an improper limitation on defendant’s ability to present mitigating evidence. However, any error was harmless where defendant presented many witnesses who testified as to the grief an execution would cause. id: 20350
The trial court erred at the penalty phase in prohibiting defense counsel from arguing defendant’s demeanor during testimony reflected the love he felt. The trial court erred during the penalty phase by not permitting defense counsel to comment on defendant’s demeanor in reacting to the testimony of some of the defense witnesses. However, the error was harmless where defense counsel’s argument was thorough and wide-ranging. id: 20349
Corpus delicti rule applies to unadjudicated crimes admitted in aggravation at the penalty phase. The corpus delicti rule applies to unadjudicated crimes offered in aggravation at the penalty phase of a capital case. The crime for which there must be a corpus delicti is the same as the crime that must be proven. The testimony of the responding officers, that the apartment door had been broken open, with a person inside bleeding with a head injury permitted an inference that a crime of violence had been committed. This satisfied the corpus delicti rule.id: 20348
While a hypothetical question of an expert may not address the defendant’s intent, it may address motive.Defendant argued the trial court erred by preventing the defense psychologist from opining on a hypothetical question based on the facts of the case. To ask whether someone in defendant’s position would have had the specific intent required for robbery would have been improper because it would be the functional equivalent of asking whether defendant had the required intent. However, motive is different and a motive hypothetical would have been proper.id: 20331
Commissioner's testimony about rehabilitation facilities available to juveniles was inadmissible because it was irrelevant to any statutory factors in aggravation.Juvenile court commissioner's testimony concerning the juvenile court system and rehabilitation programs was inadmissible as not bearing on any statutory factor in aggravation. Moreover, it cannot be said that such testimony would have been admissible to rebut defendant's good character evidence since there is no way of knowing if defendant would have presented such evidence absent the commissioner's testimony in the prosecution's case-in-chief.id: 14367
Attempted murder evidence was improperly admitted where defendant had been acquitted and the evidence was not strong.The court erred under Penal Code section 190.3 in instructing the jury on attempted murder charge of which defendant had been formally acquitted. Given the Nevada acquittal, the strong wording of the reasonable doubt instruction, the ambiguous circumstances surrounding the shooting, including the chance the gun had accidentally discharged, it was not reasonably probable the jurors found attempted murder was established beyond a reasonable doubt.id: 14361
Asportation took place entirely within victim's home and therefore evidence of kidnapping was insufficient as a matter of law and should not have been included in other-crimes instruction.The trial court included simple kidnapping as one of the Nevada offenses the jury might consider as an aggravating circumstance if proved beyond a reasonable doubt. During that incident, the asportation took place almost entirely in victim's house as defendant dragged victim from one room to another. The asportation was too minor to constitute kidnapping and the court erred in including that offense in the other-crimes instruction.id: 14360
Admission of evidence not relevant to a statutory aggravating factor amounted to reversible Boyd error.Inasmuch as the testimony of nine witnesses, all of whom recounted defendant's threats and maladjustment while in prison was not relevant to any statutory aggravating factor, the evidence was inadmissible under <i>People v. Boyd</i> (1985) 38 Cal.3d 762, and the error required reversal of the death penalty.id: 14354
Court erred in conducting a foundational hearing regarding the admissibility of defendant's prior offenses after opening statements at the penalty trial.During the prosecutor's opening statement at the penalty phase he made reference to two prior incidents of molestation involving different victims. However, the testimony of these victims was later deemed inadmissible. While the admissibility of their testimony should have been determined prior to the trial, any error was harmless where the prosecutor's account was not unduly inflammatory and the court gave a lengthy admonition to disregard the evidence.id: 14376
Court erred in admitting photographs of other-crimes victims at the penalty phase.The People were permitted to introduce nongruesome photographs of the victims during the penalty phase. Allowing the photograph of the murder victim was not improper where significant time had passed since the guilt phase to put the victim's in a proper setting in terms of age and size. However, photographs of defendant's other crimes victims.id: 14375
People erred in failing to give notice of aggravating evidence until after the close of the guilt phase.The People did not file notice of intent to present evidence in aggravation until after the guilt verdicts had been returned. The notice listed 11 prior offenses. The notice given did not comply with Penal Code section 190.3 which requires that notice be given prior to the guilt phase. However, the error was harmless where the priors had been charged in the information as prior convictions for enhancement purposes and defendant could therefore not claim surprise.id: 14434
Burglaries committed after the murder were not admissible in aggravation as prior felony convictions.Prior felony convictions described in Penal Code section 190.3, factor (c) are limited to those entered before commission of the capital crime.id: 14363
Violent criminal activity admitted in aggravation must be proved beyond a reasonable doubt.The trial court erred in failing to instruct that violent criminal activity under Penal Code section 190.3, factor (b) need be proven beyond a reasonable doubt. The error was harmless given the likelihood the jurors believed beyond a reasonable doubt that defendant had been convicted of the armed robbery in question.id: 14476
Prosecutor improperly argued that the victim's nonparticipation in the murder could be considered an aggravating factor.The prosecutor improperly argued that the nonparticipation of the murder victim was a factor to be considered in aggravation. A murder is not an aggravated one, especially deserving of death, because the victim did not willingly participate. The error was not prejudicial taking into account the weight of the other aggravating evidence as compared to the relative weakness of the case in mitigation.id: 14449
Prior felony convictions within the meaning of Penal Code section 190.3 are convictions entered before the capital crime was committed.Defendant argued the trial court erred during the penalty phase by admitting evidence of his conviction of the felony of assault with intent to commit rape because a felony conviction entered after the capital offense<197>like that here<197>is not a prior felony conviction within the meaning of section 190.3. Defendant's argument was correct, but the error was harmless because the evidence of the facts underlying the conviction was properly admitted as relevant to the issue of other violent criminal activity.id: 14442
A crime committed after the capital murder was inadmissible in aggravation under factor (c).The trial court erred by admitting defendant's Pacoima robbery conviction as aggravating evidence under Penal Code section 190.3, factor (c). Prior felony convictions as described in factor (c) are limited to those entered before commission of the capital crime. The Pacoima robbery occurred after the capital robbery-murder was committed against victim Burke. However, defendant failed to object when the conviction was introduced in evidence. Moreover, that conviction based on defendant's guilty plea was admissible under factor (b) as proof of his participating in the underlying violent criminal activity.id: 14352
Defendant's earlier probation violation was improperly referred to at the penalty phase where it was not the result of violent criminal activity or a prior conviction.During opening argument at the penalty phase, the prosecutor alluded to the fact that defendant had been placed on probation after his first Florida breaking and entering offense and that as a result of a violation of probation he was sent to prison. This statement constituted improper argument because his probation violation was neither the result of violent criminal activity nor a prior felony conviction. The error was harmless where it was determined that the jury's knowledge of defendant's probation violation 20 years earlier did not figure significantly in its decision.id: 14392
Court erred in failing to strike the testimony of prosecution witnesses at penalty phase where the defense was given no formal notice.Trial court erred in denying the defendant's motion to strike the testimony of two prosecution witnesses called at the penalty phase to testify as to other criminal conduct within the meaning of Penal Code section 190.3. The testimony was inadmissible because the People gave no notice to the defense as required. However, the error was harmless where the testimony was brief, and it was not reasonably probable that it affected the verdict.id: 14377
Prior marijuana possession conviction was improperly used as an aggravating factor.Defendant argued that evidence of his 1967 felony conviction for marijuana possession could not be used in aggravation under Penal Code section 190.3, factor (c) because at the time of trial, the offense was no longer punishable as a felony and any record of a marijuana possession conviction cannot be considered if the record is more than two years old. The evidence was indeed inadmissible, but any error was harmless where there was no reasonable possibility that the error affected the penalty verdict.id: 14444
Court erred in admitting prior convictions at the penalty phase without exercising its discretion under Evidence Code section 352.Defendant argued the trial court erred in admitting as evidence in aggravation under Penal Code section 190.3 factor (c), evidence of two prior New York felony convictions without balancing the prejudice to him against the probative value of those convictions before ruling the evidence was admissible. The court's failure to explicitly set forth the weighing process was harmless where the court limited the prosecution to documentary evidence consisting of court records to prove the priors, thus minimizing the prejudice.id: 14374
Defendant's harassment of CYA supervisors did not constitute threats against public employees.At the penalty phase the trial court allowed testimony of three CYA supervisors regarding outbursts made by defendant, including death threats and sexual taunts as two of the three witnesses were women. However, the treats did not violate Penal Code section 71 which prohibits threats against public employees as there was no showing of intent to interfere with the performance of official duties or that defendant created a reasonable belief that the threats would be carried out. Defendant was locked in his cell for the night when he harassed the two women and his response to the other counselor was obviously intended as an angry retort. The error was not prejudicial as it simply suggested defendant had difficultly submitting to authority and controlling violent outbursts.id: 14394
Supreme Court reverses death sentence where judge improperly weighed coldness factor.In imposing the death sentence, the Florida judge found four aggravating circumstances, including that the murder was committed in a cold, calculated and premeditated manner, without any pretense of moral or legal justification. On appeal, the Florida Supreme court held that the evidence failed to support this factor, but affirmed on the basis of the other three aggravating factors. The court did not explain or discuss the harmless error doctrine. In a 5-4 opinion written by Justice Souter, the Supreme Court reversed because the Florida Supreme Court failed to find that the error was harmless beyond a reasonable doubt. The case was remanded for proceeding not inconsistent with this opinion. Justice O'Connor concurred, emphasizing that the Florida court could not fulfill its obligations simply by uttering the magic words harmless error. Chief Justice Rehnquist and Justices White and Thomas dissented, arguing that the Florida Supreme Court had already cured the error by finding it harmless. Justice Scalia dissented separately.id: 14460
Supreme Court holds that neither jury nor court may weigh invalid aggravating circumstances.In Florida capital cases, the jury weighs the aggravating and mitigating circumstances and makes a recommendation to the judge, who must give great weight to the recommendation. Here, the jury was instructed that it could find as an aggravating factor that the murder was committed in an especially wicked, evil, atrocious, or cruel manner. This phrase has been held to be unconstitutionally vague in prior cases, but the state argued that there was no error because the jury was not the final sentencer. In a 6-3 per curiam opinion, the Supreme Court rejected the argument, observing that the requirement to give great weight to the jury's recommendation creates the same potential for arbitrariness as the direct weighing of an invalid aggravating factor. The court held that if a weighing State decides to place capital sentencing authority in two actors rather than one, neither actor must be permitted to weigh invalid aggravating circumstances. Chief Justice Rehnquist and Justice White dissented from the summary reversal, stating simply that they would grant certiorari. Justices Scalia dissented on the merits.id: 14459
Supreme Court vacates death sentence based on a vague aggravating factor.Petitioner was convicted of first degree murder and sentenced to death after the trial judge found three statutory aggravating factors and no mitigating factors. The Arizona Supreme Court affirmed with two justices finding the aggravating factor <197> especially heinous, cruel or depraved matter <197> was appropriately narrowed and applicable. Two specially concurring justices agreed the death sentence was appropriate but found the case did not come within the aggravating factor as narrowed. Justice O'Connor, writing for a seven member majority, found the sentence violated the Eighth Amendment. The aggravating factor was unconstitutionally vague at the time of sentencing and the Arizona Supreme Court did not cure the vagueness error because the two concurring state justices did not actually reweigh the aggravating and mitigating circumstances. Where a death sentence has been infected by a vague or otherwise constitutionally invalid aggravating factor, the state court must perform a new sentencing calculus. Justice Thomas concurred, and Justice Scalia dissented.id: 14464
An extrajudicial statement repudiated under oath is legally insufficient standing alone to establish aggravating violent conduct beyond a reasonable doubt.At the penalty phase the prosecution introduced evidence of defendant's alleged 1969 assault on his sister-in-law. However, at his earlier penalty trial (this was a penalty phase retrial) the alleged victim repudiated her earlier claim. An extrajudicial statement repudiated under oath is legally insufficient, standing alone to establish aggravating violent criminal conduct beyond a reasonable doubt. However, admitting the evidence was not prejudicial given that the prior assault was the least serious and most weakly supported of the various aggravating matters.id: 14359
Instructions improperly permitted the jury to consider threats to injure animals and other property as an aggravating circumstance.The court instructed the penalty phase jury that before it could consider as an aggravating circumstance the evidence that defendant had made threatening telephone calls and had administered poison to animals those criminal acts need be proven beyond a reasonable doubt. The court erred in failing to modify these instructions to delete references to poisoning animals and threatening injury to property. Penal Code section 190.3 factor (b) encompasses only those threats of violent injury that are directed against a person. However, the error was not prejudicial as the testimony regarding threats to damage the house and the nonfatal poisoning of the dogs was brief and unemotional and there was no reasonable possibility that it affected the verdict.id: 14424
Supreme Court says a valid factor does not necessarily excuse a capital error.Virginia juries finding aggravating factors have full discretion to impose either the death penalty or life imprisonment. In <i>Zant v. Stephens</i>, 462 U.S. 862 (1983) the Supreme Court held that a death sentence supported by multiple aggravating factors in such nonweighing states <i>may</i> be upheld even if one aggravating factor is invalidated. Here, the future dangerousness aggravating factor was invalid because defendant did not have access to an independent psychiatrist to rebut the prosecution's psychiatrist. <i>Ake v. Oklahoma,</i>, 470 U.S. 68 (1985). The remaining, valid factor, vileness, did not render this due process error harmless because the error allowed the jury to consider unrebutted psychiatric evidence that may have been inaccurate. The Supreme Court remanded the case to consider whether the sentence should be sustained or reimposed. Justice Scalia, concurring, said this was merely an inadmissible evidence case requiring the harmless error analysis appropriate to collateral review.id: 14216
The prosecutor erred in revealing to the penalty jury contents of a probation report previously ruled inadmissible.Defendant argued the trial court erred in denying his mistrial motion because the trial court, in deliberately referring to the probation report, in contravention of the trial court's ruling, committed egregious misconduct. The People argued because the prosecutor should have been permitted to ask the questions, he did not commit misconduct in asking them. This argument is flawed. However, the erroneous question was harmless since it did not contain an unequivocal statement that defendant had another, unrevealed charge against him.id: 14470
Evidence of a rape was not admissible as a prior felony at the penalty phase where it was committed before the present offenses but the guilty plea was entered after the offenses.The trial court erred in admitting evidence of his conviction for rape pursuant to Penal Code section 190.3, factor (c), which allows prior felony convictions as a circumstance in aggravation. While the rape preceded the present offenses, defendant entered his guilty plea following the commission of the two murders. No prejudice occurred as the evidence was admissible under factor (b) as proof of defendant's participation in the violent criminal activity underlying the rape conviction.id: 14402
Penalty phase court erred in precluding testimony about the circumstances of a prior conviction which had a tendency to show defendant was not as morally culpable as the conviction in the abstract might suggest.In the defense case in mitigation at the penalty phase, defendant's uncle stated he was present when defendant was arrested in Florida for sexual assault. The trial court sustained the prosecutor's objection and prohibited defendant from asking whether the witness knew the person who brought these charges against defendant. Although the proffer of testimony regarding defendant's familiarity with the victim and their heavy consumption of alcohol preceding the sexual assault was not strongly relevant to defendant's character or record, the evidence had some tendency to show defendant was not as morally culpable as the conviction in the abstract might suggest. Although the court erred in excluding the evidence, the error was harmless as the focus of the case in aggravation was the circumstances of the capital crimes.id: 16297
Court erred in admitting evidence of a prior confrontation at the penalty phase where there were no details showing defendant participated in the incident.The trial court erred in admitting, at the penalty phase, rebuttal character evidence that in 1978 defendant and an unidentified man had an armed confrontation outside a Texas apartment. Although the prosecutor was entitled to rebut the defense's mitigating evidence that defendant was a peaceful person with evidence relating to that character trait, the testimony regarding the shooting incident did not establish the circumstances or even whether defendant participated in the shooting, and was essentially valueless. However, the error was harmless in light of the strength of the other aggravating evidence.id: 17535
Court violated the attorney-client privilege by allowing introduction of a note written by defendant at the penalty phase stating that a codefendant might be hurt by the others.During the preliminary hearing, defendant wrote his attorney a note indicating that one of his codefendants might be hurt by the others. The court permitted introduction of the note at the penalty phase only after defendant offered evidence that he was nonviolent. However, the note was protected by the attorney-client privilege because it preceded Evidence Code section 956.5, which removed the privilege if the lawyer believed disclosure of the communication was necessary to prevent significant harm. However, the error was harmless where it was not reasonably possible that it affected the death verdict.id: 16910
The trial court erred by restricting defense evidence at the penalty phase that defendant's hyperactivity as a child could have been controlled by drugs.The trial court abused its discretion at the penalty phase by restricting medical evidence that defendant was hyperactive as a child and the condition left unattended may have led to violence and crime. The evidence was relevant under Penal Code section 190.3, factor (k). However, the error was harmless where the doctor did testify about her concern that defendant was hyperactive and that his school recommended Ritalin. The defense was therefore able to put similar evidence before the jury.id: 17510
The trial court may have erred in excluding the testimony of a Native Alaskan cultural expert at the penalty phase.Defendant argued the trial court erred by precluding at the penalty phase, the testimony of a cultural expert regarding conditions experienced by the Native Alaskan population living in the Nome area. While certain aspects of her testimony were irrelevant (cultural attitudes several years after defendant was incarcerated), and some aspects were cumulative of other testimony (harsh conditions for Nome residents), other aspects could have been presented to the jury. For instance, she could have described the rigid and prejudicial attitudes regarding "half breeds" expressed by defendant's father - defendant was part Eskimo. However, any error was harmless in light of the other evidence of harsh living conditions in Nome and defendant's troubled childhood.id: 18737
The court erred by excluding defendant's testimony about his drug use at the penalty phase.The trial court erred at the penalty phase by excluding defendant's references to his own drug use since the evidence was relevant and admissible, and not excludable as improper expert opinion.id: 18515
The opinion of a witness who has a significant relationship with defendant on the appropriateness of the death penalty is admissible as it provides insight into defendant's character.An educational therapist defendant's family hired to work with him for three years when he was a teenager sought to testify at the penalty phase that he should be spared the death penalty because he was the equivalent of a child and children should not be executed. The court erred in excluding the testimony since a witness who has a significant relationship with the defendant may testify as to the appropriateness of the death penalty because such testimony provides insight into the defendant's character. However, excluding the testimony was harmless under the Chapman test since the witness was able to provide other direct evidence regarding defendant's character.id: 18419
Court erred in excluding evidence that defendant, if spared the death penalty, would lead a productive and non-violent life in prison.The trial court excluded the penalty phase testimony of a former prison warden describing defendant as being a likely candidate to lead a productive and non-violent life in prison. Exclusion of this mitigating evidence violated the constitutional requirement that a capital defendant must be allowed to present all mitigating evidence to demonstrate he deserves a sentence of life rather than death. (<i>Skipper v. South Carolina</i> (1986) 476 U.S. 1,) However, the error was harmless given the facts of the crime (the only aggravating evidence presented) as defendant sprayed a large group of innocent, unarmed people with gunfire leaving several dead and wounded.id: 14164
Trial court did not err at the penalty phase in excluding expert testimony on the sincerity of defendant's remorse in a tape-recorded confession.The trial court did not err at the penalty phase in excluding the testimony of a psychiatrist as to whether defendant showed remorse in a tape-recorded confession. While remorse is relevant at the penalty phase, the court acted within its discretion in permitting the jury to listen to the tape and judge for itself defendant's sincerity in expressing remorse.id: 17340
Updated 3/7/2024The trial court prejudicially erred by allowing substantial evidence of defendant’s racist beliefs at the penalty phase of his capital trial.The trial court prejudicially erred by allowing evidence of defendant’s white supremacist tattoos and beliefs at the penalty phase of his capital trial. While some of the evidence was relevant to penalty, the court allowed a lengthy presentation of such evidence to rebut the claim of defendant’s good character. The prosecutor then emphasized defendant’s racists beliefs at great length during closing arguments. The error required a reversal of the death judgment.id: 26294
Updated 3/6/2024Court did not err at the penalty phase by admitting photo of defendant shirtless and flexing to rebut his claim of remorse.The trial court did not err at the penalty phase by admitting a photograph of the defendant shirtless and flexing as it suggested his displays of remorse were not genuine.id: 26526
Updated 3/4/2024The trial court did not err at the penalty phase of defendant’s capital trial by allowing a mitigating witness to invoke his privilege against self-incrimination.The trial court did not violate defendant’s right to compulsory process and dilute mitigating evidence at the penalty phase of defendant’s case when it ruled that his former foster parent, who he said molested him as a child, had validly invoked his privilege against self-incrimination.id: 26972
Updated 3/4/2024Any error in placing restrictions on trial counsel’s penalty phase testimony was harmless.Defendant argued the trial court erred by placing unreasonable restrictions on proferred testimony by his trial counsel during the penalty phase of his capital trial. However, any error was harmless as the issues counsel intended to discuss were covered by other witnesses. id: 26973
Updated 3/4/2024The trial court did not err at the penalty phase by excluding testimony of two jurors from defendant’s first trial. The trial court at defendant’s penalty phase retrial did not err by excluding testimony from a juror and alternate juror from the first trial, witnesses who had come to know defendant after visiting him in jail. The court’s ruling did not violate Evidence Code section 352, and allowing such testimony would have been time consuming given the chance that the prosecution would have sought to present jurors to explain why they voted for death. id: 26974
Updated 2/24/2024The trial court during the penalty phase improperly sustained objections to the defense question of a jail chaplain describing defendant’s remorse.A chaplain from the jail testified at the penalty phase of his capital trial about the remorse he had shown. The trial court improperly sustained relevance objections to questions supporting the chaplain’s credibility - including how infrequently she testified for inmates she ministered and whether she believed in the death penalty.id: 27316
Updated 2/18/2024Admission at the penalty phase of evidence showing that defendant associated with a white supremacist gang member in prison was proper to rebut his claim that he would lead a peaceful life in prison. Defendant argued the trial court erred during the penalty phase of his capital trial by allowing evidence that he had been corresponding with a white supremacist gang leader while in jail. He argued guilt by association, and a violation of his First Amendment freedom of association and belief. However, the evidence was relevant to rebut defendant’s position that he was likely to live in a peaceful and cooperative manner in prison. id: 27113
The penalty phase jury’s consideration of defendant’s juvenile criminal activity was permissible.The trial court did not err by admitting, over defense objection at the penalty phase, evidence of juvenile’s commitment as a ward of the juvenile court at age 15.id: 26214
Supreme Court says right to have jury consider mitigating evidence was clearly established in 1990.At defendant's capital sentencing hearing in Texas state court, the court asked the jury to answer two special issues, affirmative answers to which would require the judge to impose a death sentence: whether defendant's conduct was committed deliberately with the reasonable expectation that it would result in the victim's death and whether it was probable defendant would commit future violent acts constituting a continuing threat to society. In 1990, the state courts upheld defendant's death sentence and rejected his claim that the jury had not been able to consider all of defendant's mitigating evidence. In federal habeas proceedings, the Supreme Court held that it was clearly established at the time the state court upheld defendant's sentence that these special issues did not allow the jury to give reasonable consideration to a defendant's mitigating evidence. Because the Court found a reasonable likelihood that state trial court's instructions prevented the jury from giving consideration to constitutionally relevant mitigating evidence, the Court held that defendant had satisfied his burden under 28 U.S.C. id: 20189
The trial court did not err at the penalty phase by admitting evidence of defendant’s possible gang affiliation and racist beliefs given the evidence that the killing as racially motivated. The trial court did not err at the penalty phase by admitting evidence of defendant’s possible gang affiliation and racist beliefs. Evidence of defendant’s Aryan Brotherhood tattoos and gang membership was relevant to explain the motivation for, and the savagery of his attack on the white female victim who was in a relationship with a black man.id: 25832
The trial court did not err at the penalty phase by excluding videotaped interviews with family history witnesses in Indiana, or in denying a conditional examination of those witnesses.Defendant argued the trial court erred at the penalty phase of his capital trial by denying his request to present his unsworn video recorded interviews of two unavailable witnesses. The elderly witnesses lived in Indiana and spoke in the videos about defendant’s behavior as a child and incidents of abuse relating to his alcoholic parents. However, this was anecdotal hearsay evidence that didn’t included a time-frame, and was based largely on things one witness’s husband had told her. Moreover, the trial court did not err by refusing a request for a conditional exam of those witnesses under Penal Code section 1335(a) because the jury had heard similar evidence from other family members.id: 25007
The trial court did not err at the penalty phase by admitting defendant’s prison packet that contained handwritten notes regarding rearrests and parole revocations.Defendant argued the trial court erred at the penalty phase by admitting into evidence defendant’s prison packet to prove two prior convictions because the jacket also contained a chronological history detailing other inadmissible evidence. However, this was a summary of handwritten notes that would have been meaningless to the jury and was never mentioned in any arguments to the jury.id: 25011
The trial court was not required to conduct a hearing on the admissibility of other crimes evidence during the penalty phase.A penalty phase witness testified that she had been shot and lost a leg years ago, but she could not identify the shooter. No other evidence was presented connecting defendant to the shooting. The court later instructed the jurors to disregard the witness’s testimony. Defendant argued the court erred by failing to conduct a hearing on the other crimes evidence before allowing the witness to testify. While such a hearing is advisable, it isn’t required.id: 25012
Defendant’s letter threatening violence was properly admitted as rebuttal evidence in the penalty phase after defendant presented extensive good character evidence.Defendant argued the trial court erred by allowing evidence of the defendant’s past violence during penalty phase rebuttal when he did not present evidence of his nonviolence. However, the defense did present evidence of the defendant’s good character and the letter threatening violence pertained to that evidence.id: 24829
The trial court properly discharged a juror during the guilt phase after determining the juror could not properly perform his responsibilities during the penalty phase.Just before opening statements in defendant’s capital case, a seated juror informed the court that upon further reflection he didn’t believe he could ever vote to impose the death penalty. The juror was properly discharged as he was unable to perform his duty at the penalty phase. Penal Code section 1089 allows a trial court to remove a juror before the conclusion of the guilt phase if the juror can’t fulfill his or her responsibilities at the penalty phase.id: 25539
The trial court did not err at the penalty phase by excluding evidence that defendant had offered to plead guilty in exchange for an LWOP sentence.The trial court did not err at the penalty phase of defendant’s trial by excluding mitigating evidence of his early offer to pled guilty in exchange for a life without parole sentence. The court was within its discretion in finding the plea evidence might confuse the jury by drawing its attention to irrelevant information regarding the circumstances of the plea offer and the prosecutor’s decision to reject it.id: 25424
The trial court properly admitted defendant’s threat to a jail guard as aggravating evidence at the penalty phase.Defendant argued the trial court erred at the penalty phase of his capital case by admitting, as aggravating evidence, a threat to a correctional officer at the county jail. After being informed that he was being moved to an isolation unit, defendant took a combative stance and told the guard “I’ll remember you.” The trial court could reasonably have inferred this was a threat in violation of Penal Code section 69, and it was properly admitted as aggravating evidence.id: 25284
The trial court did not err by failing to rule on the admissibility of aggravating penalty phase evidence before voir dire.The trial court did not err by failing to rule on the admissibility of aggravating evidence at defendant’s capital trial before voir dire. There was not need for such a pretrial determination in this case.id: 23939
The trial court did not err by denying the capital defendant funds for a polygraph test to be used as mitigating evidence at the penalty phase.Defendant argued the judge overseeing the funding request erred by denying him funding to obtain a polygraph expert to administer him a polygraph exam that he could have used as mitigating evidence at his capital trial. The court’s ruling was not improper because the results of a polygraph test would have been inadmissible under Evidence Code section 351.1.id: 24803
Absent a proper foundation by defense counsel, the trial court at the penalty phase properly excluded evidence of defendant’s conditions of confinement if given an LWOP sentence.Defendant argued the trial court erred by excluding evidence at the penalty phase that if he was sentenced to life without parole he would always be housed in a high security prison. However, defendant failed to present an offer of proof for the relevance of the testimony to the issue of an inmate’s ability to communicate with the outside world and defense counsel objected to the prosecutor’s questions on the topic as being outside the witness’s expertise, and so defendant failed to preserve the issue for appeal.id: 24804
The trial court did not err by prohibiting defense counsel from commenting during the penalty phase argument about the confinement conditions of LWOP inmates. Defendant argued the trial court improperly limited defense counsel's penalty phase closing argument by precluding comment on the conditions of confinement for inmates serving life without possibility of parole terms. However, counsel was permitted to convey the severity of an LWOP sentence and the court did not err by precluding counsel from providing more precise details - such as the measurements of a cell.id: 24241
The trial court properly admitted defendant’s threatening calls from the jail as aggravating evidence at the penalty phase.Defendant argued the trial court erred by admitting evidence of his threatening phone calls to his wife and her boyfriend as evidence in aggravation. He claimed the conduct did not amount to a violation of Penal Code section 653m because he was merely expressing frustration over his wife’s new relationship. However, his statements that he would blow up his wife’s workplace and have something done to her boyfriend qualified as annoying phone calls within the meaning of section 653m and were properly admitted as aggravating evidence.id: 24187
Double jeopardy didn’t prevent the prosecution from introducing evidence of a manslaughter plea connected to the case as aggravating evidence at the penalty phase.Before defendant’s capital murder trial he pled no contest to the voluntary manslaughter of one of the victims. Double jeopardy principles did not prevent the prosecution from introducing the facts of that case as aggravating evidence at the penalty phase of the capital case.id: 24016
The trial court did not err at the penalty phase in excluding a videotape generally describing learning disabilities. The trial court did not err in excluding, at the penalty
phase a videotape defendant sought to introduce which described learning disabilities. The videotape was hearsay and defendant was not precluded from presenting live witnesses who would be subject to cross-examination.id: 19734
Supreme Court says federal court may not presume that state court did not apply narrowing construction of aggravating factor.Defendant murdered an elderly couple by brutally delivering multiple blows to their heads. At the penalty phase of defendant's capital murder trial, the jury found four aggravating circumstances, including that the murder was "especially heinous, atrocious, or cruel." The state courts upheld the jury's finding, but the Sixth Circuit found that the aggravating factor was unconstitutionally vague. The Supreme Court summarily reversed, holding that the court of appeals improperly assumed that the state court had not applied a narrowing construction of the aggravating factor that it had announced in a prior case. id: 20126
General written notice of intended aggravating penalty phase evidence as well as more specific oral notification pretrial was sufficient.Defendant argued he was not given proper notice that the prosecutor intended to admit evidence in the penalty phase of his attempted sodomy in the jail. He received general written notification as well ass more specific oral notification prior to the trial. Moreover, defendant did not show how he would have dealt with the witness any differently had he been given specific written notice before the trial.id: 15115
Supreme Court reverses 9th Circuit ruling that instructions did not allow consideration of mitigating evidence.At the time of defendant's capital murder trial, a standard California jury instruction told the jury to consider "any other circumstance which mitigates the gravity of the crime, even though it is not a legal excuse for the crime." Defendant contended that the instruction did not allow the jury to consider "forward-looking" mitigation evidence that he would lead an exemplary life if he were incarcerated instead of being executed. The Ninth Circuit agreed and vacated defendant's death sentence. The Supreme Court reversed, holding that the California instruction is consistent with the constitutional right to present mitigating evidence in capital sentencing proceedings and that the Ninth Circuit erroneously adopted a "narrow" and unrealistic" interpretation of the instruction.id: 20170
The trial court did not err by allowing evidence at the penalty phase that the murder victim was pregnant.The trial court did not err by admitting at the penalty phase evidence that the murder victim was one month pregnant at the time of her death. It was properly admitted as a circumstance of the crime, and the fact of the pregnancy was not so unduly prejudicial as to require exclusion.id: 23521
Defendant’s postcrime statement about shooting the arresting officer was not admissible at the penalty phase to show lack of remorse but was admissible as consciousness of guilt. Defendant argued the trial court erred at the penalty phase by admitting his statement about wanting to shoot the arresting officers to show his lack of remorse. However, there was no error because the statement was admissible to show defendant’s consciousness of guilt.id: 23520
Defendant’s throwing of apples at judge and jury did not show evidence of incompetence and did not require mistrial or individual questioning of the jurors. During the presentation of the defense case at the guilt phase, defendant stood up and threw apples at the judge and jurors. The trial court did not err by not suspending proceedings to determine whether defendant was competent to stand trial or by not questioning the jurors to see if defendant’s misconduct had prejudiced them against him. And the prosecutor did not later err during the penalty phase by telling jurors they could consider the issue in determinating penalty.id: 22584
The trial court did not err by denying defendant’s request to have his children seen by the penalty phase jury.The trial court did not err by denying defendant’s request to bring his children into the courtroom to be seen by the jurors during his penalty phase trial. Parading his children before the jurors would not have constituted relevant mitigating evidence.id: 22842
The trial court did not err at defendant’s penalty phase trial by excluding evidence that his wife had experienced abuse as a child.Defendant and his wife were tried separately for the capital murder of a small child. The trial court did not err by excluding evidence regarding the abuse his wife had experienced as a child at his penalty phase trial. He offered the evidence to blame Veronica but it did not tend to prove her guilt.id: 22841
The trial court did not err at the penalty phase by presenting the preliminary hearing testimony of a witness from a hearing 15 years earlier.The trial court did not err at the penalty phase by admitting the preliminary hearing testimony from a case 15 years earlier. Reasonable efforts were made to find a witness, and his testimony was only used to describe the circumstances of an earlier crime about which the jury had already learned. Finally, the court rejected the argument that because the other case was 15 years old, defendant did not have a prior opportunity for cross-examination. id: 22050
Any error in admitting evidence of defendant’s rap lyrics in aggravation was harmless.Defendant argued the trial court erred in admitting his rap lyrics as aggravating evidence at his capital trial. He claimed the lyrics were an art form and may not have represented his views when he wrote them or at the time of the crime. Any error was harmless in light of the evidence regarding the vicious murder and attempted murders including the attempt to kill two police officers. The jury would not likely have considered defendant’s published lyrics, and the prosecutor did not refer to them in argument. id: 22012
The trial court’s penalty phase ruling did not lack balance where the proffered mitigating evidence was unreliable and the aggravating evidence impeached the defense expert’s opinion that defendant would not be a danger in prison.Defendant argued the trial court at the penalty phase erred by excluding mitigating evidence (a good deed done in jail and the fact that she had been molested by relatives as a child), while at the same time admitting aggravating evidence involving threats to an inmate and jail staff member. However, the alleged mitigating evidence was not reliable and the aggravating evidence was properly admitted to impeach her own expert’s claim that she would not be a danger if sentenced to life in prison.id: 22547
The trial court did not err at the penalty phase by excluding evidence concerning the conditions of confinement in prison. The trial court did not err by excluding testimony at the penalty phase regarding the conditions of confinement defendant would experience if sentenced to life imprisonment without parole.id: 22546
The trial court properly admitted evidence of defendant’s gun possession while on parole in Arizona under factor (b) since it demonstrated an implied threat of violence.At the penalty phase, the trial court admitted under Penal Code section 190.3 factor (b), evidence of defendant’s gun possession while on parole. The court did not abuse its discretion in admitting the evidence under factor (b) because the possession of a loaded gun at a time when defendant was subject to parole searches in Arizona was sufficient to permit the jury to view his possession as an implied threat of violence.id: 21840
The trial court did not err at the penalty phase by denying defendant’s requested instruction on Arizona voluntary manslaughter where he was able to argue that theory to the jury. At the penalty phase, the trial court admitted evidence of defendant’s prior second degree murder conviction in Arizona. He argued the court erred by refusing his request for a special instruction on the elements of manslaughter under Arizona law. However, defendant was able to argue that the Arizona killing was a result of a sudden quarrel or heat of passion and provoked by the victim. The legal label “manslaughter” was not vital to his argument. id: 21838
The trial court did not err at the penalty phase by excluding recorded statements defendant made to the police after his arrest. Defendant argued the denial of his request to admit at the penalty phase as evidence of the circumstances of the offense, his videotaped statements after the arrest, violated his right to a fair penalty determination and due process. This was a penalty phase retrial and the prosecution introduced the tapes at the guilt phase. Defendant claimed that even though hearsay, the evidence was reliable under Green v. Georgia (1979) 442 U.S. 95. However, the evidence was properly excluded as it involved self-serving and uncorroborated statements by the defendant.id: 21873
Trial court did not err at the penalty phase by excluding expert evidence regarding prison conditions for LWOP inmates. The trial court did not err at the penalty phase by excluding testimony of a corrections expert describing prison conditions for a defendant sentenced to a life without parole term. The evidence had no bearing on defendant’s character, culpability or circumstances of the offense, and it was speculative in that no one knows what officials will do in the future.id: 21345
It was not necessary to identify the precise crime when admitting “other crimes” evidence at the penalty phase.The prosecution presented evidence in aggravation during the penalty phase of an incident of a scuffle at the county jail pending trial. Contrary to defendant’s claim, neither the prosecutor nor the court had a duty to identify the actual offense defined by the criminal activity admitted as factor (b) evidence.id: 21535
The trial court did not err at the penalty phase by excluding evidence of the confinement conditions in the prison.The trial court did not err at the penalty phase by excluding expert testimony concerning the conditions of confinement in the prison. While a defendant may present evidence regarding probable future conduct in prison, the conditions of confinement did not relate to that issue.id: 21316
Supreme Court holds that state court’s decision upholding death sentence did not establish mental retardation.At the penalty phase of defendant’s state capital murder trial in 1992, defendant introduced evidence that he had mild mental retardation as a mitigating factor. On appeal from his death sentence, the state supreme court found that defendant’s “mild to borderline mental retardation” was a mitigating factor but did not outweigh the aggravating factors. In Atkins v. Virginia, 536 U.S. 304 (2002), the Court held that the Eighth Amendment barred the execution of mentally retarded offenders. In federal habeas proceedings, the Sixth Circuit held that the state supreme court’s decision had definitively determined that defendant had mental retardation and therefore that defendant could not be executed. The Supreme Court, in a unanimous decision written by Justice Ginsburg, held that the state supreme court’s discussion of defendant’s mental retardation did not collaterally estop the State from establishing that defendant was not mentally retarded for purposes of the Atkins rule.id: 21423
The trial court did not err at the penalty phase in excluding details of defendant’s employment as irrelevant.Defendant was obsessed with a coworker and one day shot several people at work, killing some and wounding others. He argued that the trial court erred at the penalty phase by excluding as irrelevant certain details of his employment while in the Navy and at his current job. However the evidence establishing that he was assigned to work in an area near the victim was relevant, but the details of the project were not. The jury was informed that defendant had a top-security clearance and that he worked on missions involving the rescue of aircraft and ships in distress. Any further details were unnecessary. id: 21252
The trial court did not err at defendant’s capital trial in excluding the statement of a co participant in a jailhouse killing after finding the statement was unreliable.The primary penalty phase evidence
at defendant’s capital trial was defendant’s participation in a jailhouse killing. The trial court did not err in excluding the statement of Gornick, another participant in the killing. The statement was not sufficiently trustworthy to qualify as a statement against Gornick’s penal interest and Gornick attempted to justify his actions (claiming self-defense) rather than incriminating himself. It also provided only a minimal account of defendant’s actions. Moreover, the evidence was not admissible under
Chambers v. Mississippi (1973) 410U.S. 284 and Green v. Georgia (1979) 442 U.S. 95, where there were serious questions about its reliability. id: 21037
Defendant’s prior firearm possession was properly admitted as evidence in aggravation at the penalty phase.Defendant argued the trial court erred at the penalty phase by admitting, as criminal activity under Penal Code section 190.3, factor (b), evidence that he possessed a firearm because his possession would have been legal if he had obtained a permit, and permits are not even required in some other states. However, defendant’s gun possession was a crime in California and properly admitted as aggravating evidence.id: 21047
There was no improper double counting of testimony to support two aggravating factors where the prosecutor never argued the unsuccessful solicitation made the killing more aggravated under factor (a).Defendant argued the use of a penalty phase witness’s testimony that defendant solicited him to kill the victim was used to support two aggravating factors - section 190.3 factor (a), circumstances of the crime, and factor (b), prior violent criminal activity. However, while the prosecutor used the evidence to confirm that defendant committed the murder, he did not suggest defendant’s unsuccessful solicitation of the witness made the murder more aggravated under factor (a). There was, therefore, no improper double counting.id: 20885
Defendant’s resistance to deputies with raised fists, and violent struggle after they extracted him from his cell constituted an assault for purposes of aggravation at the penalty phase.Defendant argued the evidence of an unadjudicated assault on sheriff’s deputies was insufficient to establish assault as a factor in aggravation under Penal Code section 190.3, factor (b). However, defendant leaped out of bed, raised his fists, assumed a fighting stance, informed the deputies he would go to court only if they took him, and struggled violently as the deputies extracted him from the cell. There was no actual fight because the deputies secured his arms before he could strike them. This was sufficient evidence of an assault as aggravated evidence at the penalty phase. id: 20884
Defendant, at the penalty phase, was not entitled to introduce evidence of the victim’s drug use to rebut the victim impact evidence.The trial court did not err at the penalty phase in excluding evidence of a toxicology report showing the victims had high levels of methamphetamines in their system at the time of the killings. Contrary to defendant’s claim, the evidence was not admissible to rebut victim impact evidence. While the prosecutor asked the jurors to remember the victims, it did not give defendant the right to present evidence of their drug use.id: 20450
The trial court did not err at the penalty phase by excluding certain evidence regarding defendant’s upbringing in a trailer park/religious cult.Defendant argued that the trial court erred at the penalty phase by excluding testimony by several witnesses that would show his problems were directly related to his upbringing in a religious cult. However, witnesses testified that children from the trailer park where he was raised had problems with the law. Imposing certain restrictions on the evidence in line with the rules of evidence did not deprive defendant of the right to present relevant evidence.id: 20449
Defendant’s possession of razor blades in his cell was admissible at the penalty phase as possession of a deadly weapon under Penal Code section 190.3, factor (b). The trial court did not err in admitting in aggravation at the penalty phase evidence that defendant possessed razor blades in his jail cell, especially where he had been in several fights with other inmates.id: 20499
The trial court did not err in excluding the penalty phase testimony of a criminologist who could not offer expert opinion on the psychological impact of defendant’s upbringing.The court did not err in excluding the penalty phase investigator, a criminologist, who did extensive research on defendant’s background and was prepared to “synthesize” information already presented through other witnesses. However, the court found he was not an expert, but rather a penalty phase investigator whose role was to analyze records and information collected by other witnesses. He was not qualified to offer an expert opinion as to the psychological impact of defendant’s upbringing on his current behavior or how he would adjust to life in prison.id: 20330
Evidence that defendant was not the shooter was admissible at the penalty retrial under Penal Code section 190.3 as a circumstance of the offense.The trial court erred at defendant's penalty phase retrial by barring defendant from presenting significant penalty phase evidence concerning the circumstance of the murder - evidence that the codefendant fired all of the shots - and in instructing the jury not only that a prior jury found defendant guilty of murdering the police officer with at firearm, but also that it had been "conclusively proved by the jury in the first case that this defendant did in fact, shoot and kill officer Verna" and that the jury disregard any contrary evidence. The error required reversal of the death verdict and a remand for a second penalty phase retrial.id: 20218
Court corrected any Ramos error when it told the jury that a death sentence meant that defendant would be executed.Court corrected any Ramos error when it told the jury that a death sentence meant that defendant would be executed.id: 20419
Failure to provide notice that victim's mother would testify at penalty phase was harmless error.The penalty phase testimony of victim's mother was not proper under the statutory authorization for evidence in proof of the offense to be admitted without advance notice. The error was not prejudicial since the testimony was brief, and since defendant did not contend that the victims had participated in or induced the conduct that led to their deaths, he could hardly claim to have been hampered in presenting his case in mitigation by lack of knowledge that the victim's mother would testify.id: 14421
Defendant was not prejudiced by the prosecutor's guilt phase argument that the murder was sexually motivated where the court barred the prosecutor from arguing that theory under factor (b) at the penalty phase.During guilt phase argument, the prosecutor argued the murder may have been motivated by defendant's interest in having sex with the victim. Before penalty phase began, the court ruled the prosecutor would be barred from arguing the sexual motive theory to show attempted rape under the rubric of aggravating factor (b) (Penal Code section 190.32, factor (b)) due to a lack of such evidence. Defendant argued he was prejudiced by the guilt phase argument. However, the jury was clearly instructed regarding the scope of their determination under factor (b) and defendant pointed to nothing in the record suggesting that the jury misunderstood its duty.id: 14390
Court properly excluded testimony of prison expert regarding weapon possession for self-defense where the witness had no knowledge of the specific area in San Quentin where defendant was housed.Defendant proffered the testimony of a prison expert to explain the circumstances of incarceration at San Quentin that might prompt an inmate to possess a weapon in self-defense. The trial court did not err in excluding the testimony after finding the expert lacked both sufficient personal knowledge of conditions in C section during the summer of 1984 and an adequate basis for formulating a relevant expert opinion notwithstanding his general qualifications. Moreover, other witnesses testified to the dangerous conditions for non-gang affiliated prisoners such as defendant who were housed in C section.id: 14383
Evidence of defendant's weapon possession in prison was properly admitted at the penalty phase following a witness' statement that defendant had recommitted himself to religion.During the penalty phase a defense witness testified defendant had recommitted himself to his religion. In light of this testimony, the prosecutor could properly impeach the witness with acts tending to contradict that impression. Evidence of defendant's weapon possession in prison was therefore properly admitted as it would suggest a violent character whether defendant intended to use the weapons offensively or defensively.id: 14406
Court properly admitted prior testimony of a dead jailhouse informant as the testimony was relevant to the circumstances of the crime.Capital case was returned to the trial court after the special circumstance finding was reversed. At the original trial, the prosecutor presented the testimony of a jailhouse informant asserting defendant laughed about the killings while in jail. Prior to the retrial the witness died. The trial court did not err in admitting the witness' prior testimony as it had a bearing on the circumstances of the crime under Penal Code section 190.3, factor (a). Moreover, the evidence was not inherently unreliable.id: 14380
Court properly excluded mitigating hearsay evidence at the penalty phase where no exceptions were claimed and similar evidence was already before the jury.Defendant argued the trial court erred during the penalty phase in sustaining objections to mitigating evidence including defendant's elementary school records (documenting his low I.Q.), a letter from his psychologist detailing his low intellectual capacity, evidence of his honorable discharge from the military, and his entire prison record showing institutional adjustment. However, defendant never attempted to establish that the documents came within any hearsay exception. Moreover, the excluded evidence would only have served to corroborate other testimony informing the jury of comparable facts.id: 14381
Supreme Court says President's authority to set aggravating factors for military death penalty does not violate separation of powers.In an opinion written by Justice Kennedy, the Supreme Court held that in delegating authority to the President as Commander in Chief to prescribe aggravating factors for military death sentences, Congress did not violate the doctrine of Separation of Powers. The Constitution gives the President power to regulate the military, and Congress provided sufficient standards to govern the delegation. On the way to its holding, the majority held that aggravating factors are necessary to the Constitutional validity of the military capital punishment scheme. The defendant's death sentence was affirmed.id: 14217
Defendant was not acquitted of the Texas sex offenses for purposes of section 190.3, factor (b) where the grand jury failed to indict.Penal Code section 190.3 expressly permits proof of any violent criminal activity at the penalty phase, regardless of whether it resulted in a conviction. The exception arises where the offense resulted in an acquittal. Defendant argued he was prosecuted and acquitted of the Texas sex crimes where the grand jury failed to indict him under a probable cause standard. However, the Texas proceeding involved a discretionary charging decision by the grand jury, and was not a judicial decision on the merits.id: 18444
Court did not err at the penalty phase in admitting the 1976 preliminary hearing testimony to prove the circumstances of that convictionDuring the penalty phase the prosecution sought to admit the 1976 preliminary hearing testimony of a witness to prove the circumstances of a 1976 conviction. At the time of the instant trial the witness was deceased and the prosecutor sought to admit the evidence on the ground that she was unavailable. However, the trial court properly found the defendant's motive and interest in cross-examining the witness at the preliminary hearing and at the capital trial were sufficiently similar to satisfy the requirements of Evidence Code section 1291.id: 14373
Supreme Court says death penalty may be imposed if aggravating and mitigating factors "in equipoise."Under the Kansas death penalty statute, the jury may impose the death penalty if it determines that mitigating circumstances do not outweigh aggravating circumstances, even if it finds that aggravating and mitigating factors are "in equipoise." The Supreme Court held that the Kansas capital sentencing scheme is constitutional and that there is no requirement that a jury must find that the aggravating factors outweigh the mitigating factors before imposing the death penalty. id: 20178
Supreme Court says defendant's instruction not to offer mitigating evidence barred ineffective assistance finding.At his death penalty sentencing hearing, defendant refused to allow his counsel to present testimony from hi sex-wife and mother as mitigating evidence, he interrupted counsel when counsel tried to proffer other evidence, and he told the trial judge that he did not wish to present mitigating evidence and asked the court to impose the death penalty. The Ninth Circuit held that despite defendant's instructions, counsel's failure to investigate defendant's past history constituted ineffective of counsel and that a more thorough investigation would have revealed substantial mitigating evidence. The Supreme Court held that defendant's instruction to counsel not to offer mitigating evidence meant that counsel's failure to investigate potential mitigating evidence cannot have been prejudicial and therefore could not constitute ineffective assistance.id: 20194
The trial court did not err in excluding at the penalty phase evidence of defendant's offer to plead guilty to show remorse because of other extensive evidence which showed remorse. Defendant argued the trial court erred in ruling inadmissible
defendant's conditional offer to plead guilty to the capital charges, thereby depriving her of crucial mitigating evidence. However, the penalty phase jury was presented with extensive
evidence of defendant's remorse, including a full taped confession where she repeatedly expressed remorse. The admission of evidence of an offer to plead guilty to show remorse would therefore have been cumulative, and there was no error in excluding it.id: 19795
The trial court erred in admitting defendant's possession of handcuff keys in his cell as criminal activity under section 190.3, factor (b). The trial court erred in admitting at the penalty phase evidence that defendant possessed handcuff keys in his cell because the possession did not rise to the level of an attempted escape, and this could not be said to involve any express or implied threat to use fore or violence under Penal Code section 190.3, factor (b). However, the error was harmless where the evidence was a small part of the prosecutor's penalty phase case.id: 19640
Exclusion at the penalty phase of video recording of defendant showing remorse was not improper since his nonassertive conduct (crying) was intertwined with statements designed to minimize his culpability.Defendant argued the trial court erred in excluding during the penalty phase, the recording of his first interview with police which showed remorse. The tape was excluded because it was "exculpatory hearsay" but defendant argued his crying
during the interview was not hearsay. However, defendant's nonassertive conduct was intertwined with statements designed to minimize his culpability, and excluding the evidence was not improper.id: 19396
Trial court did not err at the penalty phase by precluding defense evidence or comment on the lack of punishment for the accomplices. The trial court did not err at the penalty phase by precluding the defense from presenting evidence or argument on the lack of
punishment for the accomplices in the case.id: 19068
The court did not err by excluding from the penalty phase, self-serving hearsay statements.Defendant argued the court erred at the penalty phase by excluding the videotape of his interrogation which showed his displays of emotion. However, to explain the significance of the emotional displays defendant sought to introduce statements which were hearsay. Defendant had no constitutional right to present self-serving statements which lacked trustworthiness. id: 18997
Murder victim's pregnancy was admissible at the penalty phase as a circumstance of the crime even though unknown to defendant. Defendant argued the trial court erred by denying his request to keep the penalty phase jury from learning that the victim was pregnant when he killed her. However, the evidence was admissible as a circumstance of the crime even though it was not known to or reasonably foreseeable by the defendant at the time of the murder.id: 18998
The court did not err by admitting evidence at the penalty phase that defendant spit and threatened to kill his mother.Defendant argued the trial court at the penalty phase should have excluded as unduly inflammatory, evidence that defendant once pushed and spit at his mother and threatened her on another occasion. However, the evidence met all statutory requirements for admission under section 190.3, factor (b), and Evidence Code section 352 does not give a court discretion to exclude evidence that is admissible under factor (b).id: 18999
The prosecutor's failure to properly notify the defense of its intent to use evidence of a prior murder in aggravation was harmless where that murder was used as a special circumstance.Defendant argued the evidence of the prior murder could not be used in aggravation because the prosecution failed to provide the required written notice. However, the prior murder had been charged as a special circumstance, and counsel had previously represented defendant in that case. Any delay in formal notification was therefore harmless.id: 18911
The trial court did not err by allowing a prison expert to testify as to defendant's prospects for adjustment in prison subject to cross-examination regarding test results showing his violent tendencies.Defendant sought to present the testimony of a former corrections classification employee that defendant would make an above-average adjustment to living in a maximum security prison. The trial court did not err by ruling that if the witness so testified, the prosecution could cross-examine him with regard to defendant's psychological testing results and history of violence and criminal behavior.id: 18738
The trial court did not err in allowing as penalty phase aggravating evidence, the testimony of defendant's chemistry teacher who described defendant's interest in cyanide.Defendant was convicted of first degree murder along with a true finding on the murder by poison special circumstance. The trial court did not err by allowing the penalty phase testimony of defendant's former college chemistry instructor. The testimony demonstrated defendant's peculiar interest in cyanide, and his familiarity with its dangerous properties. It also showed he misused his educational opportunities for the nefarious purpose of poisoning the victims, and was therefore not only relevant to guilt but the reprehensibility of his conduct - a circumstance of the offense under Penal Code section 190.3, factor (a).id: 18699
Trial court did not err at the penalty phase by precluding evidence and argument of the victim's intoxication on the issue of sexual consent.Defendant sought to present evidence and argue at the penalty phase that the victim's .26 blood alcohol level had an effect on sexual consent. However, nothing showed the victim's intoxication affected her willingness to consent to sex. The defense wanted the jurors to assume this connection but such speculative inferences would have added nothing to what the jurors already knew.id: 18446
Penalty phase testimony of a psychologist that crimes like this are usually committed by sadistic pedophiles was admissible as an aggravating factor under factor (a) even though it was also mitigating evidence of mental illness under factors (d) and (k).A clinical psychologist testified for the prosecution at the penalty phase that crimes such as those committed in the present case are generally committed by sexual sadists who derive pleasure from carrying out a fantasy involving binding and molestation of a child. The evidence was admissible under Penal Code section 190.3, factor (a) as evidence relating to the circumstances of a crime. It was admissible as such even though it may also have qualified as mitigating evidence under Evidence Code section 352 because it was highly probative on the aggravating factor of whether defendant committed the crime for sexual pleasure.id: 18416
The trial court is not required to conduct a Phillips hearing to seek evidence of each element of an unadjudicated offense the prosecution seeks to admit during the penalty phase.At the penalty phase, the prosecutor sought to introduce evidence of an unadjudicated event relating to battery and witness intimidation. Defendant argued the court erred in denying his request for a hearing to determine the existence of substantial evidence to prove each element of the offenses. While such hearings may be advisable, they are not required, and the court did not err in denying defendant's request.id: 18351
Evidence of conduct underlying misdemeanor charges that were subsequently dismissed under section 1385 was admissible at the penalty phase.Defendant argued the trial court erred at the penalty phase by admitting evidence regarding misdemeanor charges that were dismissed. However, those charges were dismissed under Penal Code section 1385. This was not the equivalent of an acquittal and the evidence was admissible under Penal Code section 190.3. In any event, neither misdemeanor could have appreciably prejudiced the jury's consideration of the appropriate penalty.id: 18256
Defendant's violent act against himself in the jail using a sharpened instrument was properly admitted under factor (b) at the penalty phase.Defendant argued the court erred by admitting, at the penalty phase, evidence of defendant's violent act against himself at the jail. However, the evidence showed defendant possessed weapons in the jail and threatened force against the deputies if he did not get what he wanted. The evidence was admissible under Penal Code section 190.3, factor (b).id: 18280
The trial court did not err in excluding at the penalty phase, evidence of a large sum of cash found in the victim's house which defendant argued was admissible as a circumstance of the offense.At the penalty phase, defendant sought to introduce evidence of alleged drug activity by the victim's family - as $31,000 was taken from the house and later returned to a family member. The defense argued the evidence was admissible as a circumstance of the offense. However, there was no showing the perpetrators were aware of the existence of the money. Moreover, defendant's offer of proof regarding the victim's drug involvement consisted largely of inadmissible third party hearsay, and defendant made no attempt to establish a hearsay exception, and no evidence supported its reliability. Even if the evidence was admissible it did not serve to extenuate the circumstances surrounding the murder.id: 18236
The trial court did not err in allowing the prosecutor to comment during penalty phase argument on the extent of the victim's suffering.Defendant argued the trial court erred in ruling that the prosecutor could comment during penalty phase closing argument on the extent to which the victim suffered. However, evidence of the victim's suffering was admissible as a circumstance of the crime, and argument dealing with such evidence was not improper.id: 18043
The trial court did not err by admitting the victim's statement regarding defendant's past fondling as aggravating evidence at the penalty phase.The trial court did not abuse its discretion by allowing the victim's statement regarding defendant's past fondling of her and her intent to confront him, as aggravating evidence at the penalty phase. In addition to being appropriate aggravating evidence, the statement was relevant, not unduly prejudicial and fell within the state-of-mind exception to the hearsay rule.id: 17994
The trial court did not err in allowing evidence at the penalty phase of defendant's previous employment at a slaughterhouse.The trial court did not err in ruling that evidence of defendant's previous employment at a slaughterhouse was relevant at the guilt phase to show defendant slaughtered the victim like an animal would be slaughtered. The condition in which the victim's body was found supported the evidence. Moreover, the evidence was not unduly prejudicial as the testimony was brief, clear and neutral.id: 17995
Prosecutor's questioning of defense psychiatrist did not suggest the jury should consider defendant's perjury as an aggravating factor.Defense counsel argued that the prosecutor, in cross-examining a defense psychologist at the penalty phase, invited the jury to consider defendant's perjury as a factor in aggravation. However, the prosecutor's aim was clearly to probe the witness's optimistic assessment of defendant's personal growth by confronting him with defendant's continuing pattern of falsehoods. No reasonable juror would have taken the questions as suggesting defendant should be put to death for committing perjury.id: 17939
Court did not err at penalty phase in excluding jail deputy's opinion on defendant's adjustment to a structured setting.Defendant argued the court erred at the penalty phase in excluding testimony from the deputy sheriff who testified to defendant's good behavior in jail, on the issue of defendant's adjustment to a structured setting. However, defendant failed to show the witness had any experience or other source of expertise as to an inmate's adjustment to a life in prison.id: 17940
The prosecutor did not err by arguing defendant's remorselessness during his flight from the murder scene was an aggravating factor under section 190.3, factor (a).The prosecutor did not err by urging the penalty phase jury to consider defendant's lack of remorse while fleeing the scene since that was an aggravating factor under section 190.3, factor (a). Neither did the prosecutor err by commenting that the statement the defendant made after returning to the car from the victim's housed showed a lack of remorse since that was a factual issue for the jury to decide.id: 17880
The trial court did not err at the penalty phase by admitting evidence of defendant's possession of a razor blade while in jail.The trial court did not err in denying defendant's motion to exclude at the penalty phase evidence that he possessed a detached razor blade while incarcerated in county jail awaiting trial in this case. The court erred in instructing the jury that the possession violated Penal Code section 4502 since that provision refers to possession in state prison rather than county jail. The error was harmless since another provision (section 4574) similarly prohibits possession of a weapon in county jail. Any error in instructing the razor blade was a deadly weapon as a matter of law was harmless where it was unlikely the jury would have found otherwise.id: 17881
Court did not err in admitting evidence of defendant's court martial guilty plea at the penalty phase where it was not offered as a prior conviction.The trial court permitted the prosecutor to introduce at the penalty phase evidence of a prior rape to which defendant pled guilty in a court martial. Because the plea was admitted to prove violent conduct under Penal Code section 190.3, factor (b), and not a prior conviction under factor (c), and the limiting instruction and arguments were clear on that point, admission of the evidence was not improper.id: 17476
Court did not err in restricting argument concerning the effect of an execution on defendant's family members.Defendant argued the court's restriction on argument concerning the effect of an execution on defendant's family members violated his right to a reliable penalty determination. However, the jury's function is to decide whether a defendant deserves to die, not whether his family deserves to suffer the pain of an execution.id: 17413
Victim's testimony about racial remarks made by defendant during crimes was properly admitted at the penalty phase under factor (b).The court allowed four victims to testify about racial remarks defendant made to them while committing the crimes. While the remarks themselves were not criminal, they occurred in the course of violent criminal behavior and were admissible under section 190.3, factor (b) to demonstrate the aggravated nature of defendant's unlawful conduct.id: 17339
Defendant's tape-recorded statements with his wife were properly excluded at the penalty phase as they were made to placate his wife rather than show remorse.Following defendant's confession, he spoke with his wife twice and both conversations were recorded. He sought to admit the recordings at the penalty phase to show remorse under the state of mind hearsay exception. However, the statements were properly excluded as the circumstances under which they were made showed a lack of trustworthiness. The court reasonably found the statements were made to placate defendant's wife rather than show true remorse.id: 17341
Court did not err in precluding defendant's first attorney, with whom he had an altercation, from testifying death was not appropriate in this case.Defendant's first attorney testified for the defense about an incident in the jail in which defendant threw a chair at her. He also sought to have her testify that she did not believe death was the appropriate sentence. Her opinions about defendant's character were relevant but her opinion whether the crime warranted the death penalty was not.id: 17343
Court did not err in allowing the prosecution to rebut the defense expert's penalty phase prediction of a lack of future violence with evidence of a shouting match in the prison food line and two attempts to make alcohol.Defendant presented evidence at the penalty phase that he would not likely be violent if again sentenced to prison. The court did not err in allowing the prosecutor to impeach the defense expert with three disciplinary infractions defendant committed in prison - including a shouting match in the food line which did not escalate into a fight, and two attempts to manufacture a crude form of alcohol in his cell. The incidents were relevant to future dangerousness. The initial shouting match required intervention from the guards and could have escalated into violence. The attempts to make alcohol were relevant because the charged murder was preceded by alcohol and drug abuse.id: 17243
Evidence of 15 year-old criminal activity in prison was properly admitted at the penalty trial.Defendant challenged the admissibility at his penalty phase trial of criminal activity in prison that was nearly 15 years old at the time of his trial. However, neither remoteness nor an expired statute of limitations period bars admission of a defendant's prior unadjudicated criminal activity for purposes of Penal Code section 190.3, factor (b).id: 17176
Evidence that defendant possessed numerous razor blades (removed from the safety razors) while in jail was properly admitted as aggravating evidence. Defendant argued there was no evidence that the blades he possessed were dangerous weapons and his possession did not violate Penal Code section 4574, and could not be used as an aggravating factor in the penalty phase. However, defendant possessed numerous razor blades that had been removed from the safety razors and hidden in various locations around his cell. Even though handles had not been affixed to the blades, their possession violated section 4574 and the evidence was admissible in aggravation.id: 16985
Court did not abuse its discretion in admitting the evidence of defendant's gang membership at the penalty phase.The trial court did not err at the penalty phase in admitting evidence of defendant's gang membership. Such evidence can be relevant under Penal Code section 190.3 as evidence of past criminal behavior involving violence or the threat of violence.id: 16942
Evidence of defendant's suicide attempt in jail was properly admitted in rebuttal at the penalty phase after evidence that defendant was not a discipline risk in prison.Defendant presented evidence at the penalty phase showing he was no longer considered a discipline risk in prison. The court did not err by allowing the prosecution, in rebuttal, to present evidence that defendant had recently attempted suicide by cutting his wrist with a metal object which he then swallowed.id: 16943
Court did not abuse its discretion in playing a taped statement at the penalty phase where defendant admitted several contract killings where the prosecutor did not refer to these killings and the court gave an appropriate limiting instruction.The prosecutor played a taped confession at the penalty phase wherein defendant admitted previously committing 10-15 contract killings. The court did not abuse its discretion in admitting the evidence as a circumstance in the charged murder (Penal Code section 190.3, factor (a).) The prosecutor never mentioned that defendant committed other murders, and the court instructed the jurors to consider the evidence only on the issue of defendant's mental state and motive in the present case. Under the circumstances, it was likely the jurors understood the defendant's statements as mere braggadocio.id: 16908
Court properly allowed evidence of defendant's previous knife possession at the penalty phase to show implied threats of violence.The prosecution presented evidence at the penalty phase (under Penal Code section 190.3, factor (b)) of a previous incident in which defendant was arrested for illegal possession of knives. The criminal character of defendant's possession of weapons and the evidence of his use of the weapons to commit crimes, was sufficient to permit a jury to view his possession as an implied threat of violence. Defendant was free to and did present evidence that he possessed the weapons for self-protection.id: 16909
Notice that evidence of specific prior crimes would be presented at the penalty phase sufficiently informed the defense that certain crimes within the incidents would also be presented.Defendant argued the prosecutor gave inadequate notice of the uncharged incidents it sought to use at the penalty phase. While the prosecutor gave timely notice that the Griswold and McCarthy incidents would be presented, it did not refer to the sodomy aspect of the Griswold murder or the attempted sexual assault in the McCarthy attempted burglary. However, notice that the prior crime evidence would be presented was enough to alert the defense that evidence of all crimes committed as part of the same course of conduct might be offered.id: 16848
The court did not err in denying the lineup at the penalty phase to test "other crimes" evidence since eyewitness identification was not a material issue in that case.During the penalty phase trial, defendant moved on due process grounds to have the victims of a 1983 robbery and assault, attend a lineup in order to test their ability to make an identification. The prosecutor argued due process does not require a lineup to test the reliability of other crimes evidence at the penalty phase of a capital trial. The court ruled defendant was not entitled to the lineup since the eyewitness identification was not a material issue and no reasonable likelihood of misidentification existed.id: 16849
Prosecutor properly cross-examined defendant at the penalty phase regarding a nonviolent escape from a youth camp after defendant testified that he did well at the camp.Defendant testified at the penalty phase that he spent a few days at "Camp Barley Flats" following a juvenile offense and that he got along well with the staff and inmates. Thereafter, the prosecutor properly cross-examined defendant regarding his nonviolent escape from the facility. Contrary to defendant's claim, the prosecutor never relied on the escape as a circumstance in aggravation. However, the court erred in permitting cross-examination regarding a separate plot to stab a prison guard in an attempt to escape from the CYA. The CYA escape never occurred and there was no evidence defendant acted on the plan. The error was harmless in light of the overwhelming aggravating evidence.id: 16850
There was no error in admitting at the penalty phase evidence of a 1983 sex incident where the prosecutor dismissed charges for insuffient evidence.The trial court did not err in admitting evidence at the penalty phase showing that defendant sexually assaulted Wanda B. in 1983. He claimed double jeopardy prevented admission of the evidence since charges of the incident were dismissed on the prosecutor's motion for insufficient evidence. However, dismissal of the charges did not constitute an acquittal for double jeopardy purposes since defendant was never placed in jeopardy. Moreover, the correctness of the ruling was not undermined by the court's later determination, when deciding the verdict modification application, not to consider the incident in aggravation of penalty. The court's finding did not mean the jury could not reasonablely reach an opposite conclusion.id: 16792
Evidence did not support a claim of insanity at the time defendant committed an offense that was offered in aggravation.Defendant argued the death judgment was unreliable due to his insanity at the time of a prior offense offered in aggravation. However, despite certain bizarre behavior by the defendant, the evidence showed he committed the prior offense out of anger and vengefulness rather than an insane delusion.id: 16648
Court did not err in admitting evidence at the penalty phase regarding a 1985 plan to commit a similar crime to the one committed three years later.Defendant argued the trial court erred in admitting as aggravating evidence at the penalty phase, the testimony of a man regarding defendant's proposed criminal activity (rather than a completed crime) in 1985. However, the evidence was admissible to show, contrary to defendant's own testimony on cross-examination, that he originated an earlier plan to commit a similar crime - steal a black Corvette and murder its owner. id: 16588
Court properly allowed evidence of possession of a handcuff key as aggravating evidence at the penalty phase.The trial court did not err in admitting as aggravating evidence at the penalty phase (under Penal Code section 190.3, factor (b)) that defendant possessed a makeshift handcuff key while housed in the jail.id: 16411
Defendant's knowledge of the wrongfulness of a murder he committed as a juvenile was established for purposes of section 26 despite the lack of an on-the-record finding by the juvenile court judge.At the penalty phase in defendant's capital case, the prosecution offered evidence of a murder defendant committed in 1975 just before his 14th birthday. Defendant argued that because there was no indication the juvenile court found clear proof that he knew the wrongfulness of the murder, he lacked the capacity to commit the crime under Penal Code section 26. Assuming the court erred in failing to make an on-the-record finding, there was no harm since the record showed knowledge of wrongfulness. Defendant was seen running away from the burning car. He lied to the police twice about the cause of the fire. Since he was almost 14 years old, it was difficult to conclude he did not know it was wrong to douse a man with gasoline and throw a match.id: 16412
Defendant's setting fire to a bedsheet in a trash can outside his cell was properly admitted as an aggravating factor at the penalty phase.At the penalty phase, the prosecution introduced evidence that one morning, while in jail, defendant complained about not receiving a breakfast tray. He threatened to cause a disturbance, and thereafter set fire to his bed sheet which was thrown in a trash can outside his cell. In light of the fact that other inmates resided in the unit where the fire was set, the incident involved a threat to use force or violence under Penal Code section 190.3, factor (b). The guards subjective belief that he did not have a disturbance at hand did not establish the absence of violence or a threat of violence by defendant.id: 16413
Penalty phase jury may consider elements of first degree murder as aggravating.Defendant argued the penalty phase jury should have been instructed that it could not consider any aspect of the crimes that was part and parcel of the elements of first degree murder as aggravating. However, all circumstances of the crime including method of killing or planning evidence used to establish premeditation may be considered aggravating.id: 16294
Defendant's callous method of disposing of the bodies was a circumstance of the killing which could be considered in aggravation.Defendant argued the prosecutor's argument at the penalty phase was improper in that the reference to defendant's callous manner in disposing of the bodies suggested the lack of remorse could be considered in aggravation. However, defendant's callous method of disposing of the bodies in the dumpster was a circumstance of the murder that the jury could properly consider in aggravation.id: 16295
Exclusion of rabbi's testimony regarding position of Jewish religion on capital punishment did not deprive defendant of the right to present mitigating evidence.The defense called a rabbi as a character witness during the penalty phase. He testified that defendant was intelligent and sensitive. He also testified to his belief that no person should be executed. When defense counsel asked how that position could be reconciled with fundamental principles of Judaism, the court sustained the prosecutor's relevancy objection. Defendant argued the court's ruling prevented him from presenting mitigating evidence. However, the jury could infer from the rabbi's testimony that Judaism disapproves of the death penalty, and further exploration of the question would not necessarily have assisted the jury.id: 16296
The prosecutor need only present substantial evidence in penalty phase hearing regarding admission of prior violent crimesDefendant argued the court erred at the penalty phase in ruling the prosecution could introduce evidence that he had killed his 18 month old son. The court conducted a hearing which required the prosecution to show substantial evidence that defendant unlawfully and violently killed his son. Contrary to defendant's claim, the prosecution did not bear the burden at the preliminary inquiry to establish beyond a reasonable doubt that defendant committed a violent crime.id: 16298
The prosecutor properly directed the jury not to consider sympathy for defendant's family as mitigating evidence.Defendant argued the prosecutor committed misconduct by informing the jury it could not consider sympathy for the defendant's family. However, the argument properly directed the jury not to consider sympathy for defendant's family as mitigating evidence. It did not preclude the jury from considering the testimony of defendant's family to the extent it might have been relevant to sympathy for the defendant.id: 16299
The trial court did not err in denying the requested instruction suggesting mental age may be a mitigating factor.Defendant argued the court's refusal to give his requested instruction precluded the jury from considering his mental age as evidence in mitigation. Experts testified defendant was within the mildly mentally retarded range with a "mental age equivalent score" of 11 years. According to defendant, this was particularly important since the prosecutor stressed that defendant was 48 years old and less deserving of mercy than a young inexperienced defendant. However, the instructions given informed the jury that they were to consider defendant's mental retardation and mental age in deciding the appropriate penalty. Moreover, defense counsel argued that defendant's mental age fell within the appropriate mitigating factors.id: 16300
Trial court did not err at the penalty phase in excluding defendant's post-arrest writings which were self-serving and a possible attempt to create a case in mitigation.The trial court did not err in excluding at the penalty phase seized letters defendant had written while incarcerated. Defendant argued the letters showed his human side and sensibility to the problems of others. The court found the letters were hearsay, and entirely self-serving (and therefore unreliable) since they amounted to defendant telling his friends he was innocent. There was also evidence that from an early point in his incarceration, defendant was assembling a case in mitigation for the penalty phase. Any error was harmless where numerous witnesses testified that defendant was a caring and sensitive individual.id: 16301
Penalty phase jury could properly consider defendant's lack of emotion or remorse in evaluating the mitigation evidence that he was bright and had a loving relationship with his parents.Defendant argued the jury improperly considered his lack of remorse as an aggravating factor. The only proof of the claim was counsel's hearsay statement of what jurors purportedly told unidentified persons, which was then reported in a newspaper. This evidence was insufficient to support the claim. In any event, the jurors could consider the defendant's apparent lack of emotion or remorse at trial in evaluating the mitigating evidence presented at trial - that he was bright and had a loving relationship with his parents. Jurors could also properly consider his demeanor for other purposes.id: 15116
Bargained-for dismissal of gun use allegation in 1980 robbery did not amount to an acquittal, and evidence of gun use was properly admitted at penalty phase in current case.The prosecution sought to admit at the penalty phase, evidence of defendant's 1980 robbery. The victim of that robbery had testified that defendant used a gun, but the plea bargain dismissed the gun use allegation. The bargained-for dismissal did not amount to an acquittal and the evidence could be considered in aggravation.id: 14981
The presentation of evidence of past criminal conduct at a sentencing hearing did not place the defendant in jeopardy with respect to the past offenses.Defendant argued the court erred in permitting a penalty phase witness to testify regarding details of defendant's 1978 assault on him. He argued evidence of a prior felony conviction must be limited to the least adjudicated elements of the offense to avoid double jeopardy and speedy trial implications of litigating the truth of the past offense. However, defendant was not on trial for the past offense and may not claim either speedy trial or double jeopardy protection against introduction of such evidence.id: 14469
The trial court's statement that the defendant was not mentally impaired or in a psychotic state was more than an observation that the defendant had failed to prove potentially significant mitigating circumstances.Defendant's therapy and probation status at the time of the offense were clearly relevant to his conduct and admissible even though they were not statutory factors.id: 14471
Use of a dismissed charge as a circumstance in aggravation does not violate an implied term of the plea bargain when used at a capital penalty hearing.Defendant argued that an implied term of his negotiated dismissal of the earlier murder charge was that he would suffer no adverse consequences by reason of the facts underlying the dismissed charges. He claimed that evidence of this killing at the penalty phase violated his right to due process. However, the use of a dismissed charge as a circumstance in aggravation does not violate an implicit term of a plea bargain when used at a capital penalty hearing. The court also rejected defendant's claim that because his conviction as an accessory constituted an acquittal of murder, relitigation of the dismissed murder charge during the penalty phase violated due process and double jeopardy principles.id: 14472
Use of prior offenses whose prosecution is barred by the statute of limitations was proper.Introduction of evidence of prior unadjudicated offenses at the penalty phase was proper even though the prosecution of those offenses was barred by the statute of limitations.id: 14473
Use of unadjudicated murders at the penalty phase did not infringe upon the state or federal Constitutional privilege against self-incrimination.Prior to trial, defense counsel moved to strike from the prosecution's notice of aggravating circumstances all evidence relating to the alleged unadjudicated South Carolina murders and robbery committed by defendant on the ground the admission of the evidence would violate his privilege against self-incrimination under the state and federal Constitutions. Defendant maintained that the admission of this evidence would force him to choose between the right to defend himself at the penalty phase and the privilege not to furnish incriminating evidence against himself for use at his then-forthcoming trial in South Carolina. However, the forced choice of which defendant complained was not violative of his privilege against self-incrimination under the state or federal Constitution.id: 14474
When comments on lack of remorse do no more than suggest the inapplicability of a potentially mitigating factor, they are appropriate.During penalty phase argument, the prosecutor said you know, the least you can do is look remorseful. Defendant argued the remark was improper because it was unfair to expect an expression of remorse from one who denies guilt, and also because lack of remorse is not one of the statutory aggravating factors. However, when comments on lack of remorse do no more than suggest the inapplicability of a potentially mitigating factor, they are appropriate.id: 14477
While the notice of aggravating factors was facially deficient the failure to object did not constitute ineffective assistance where counsel had actual notice of the evidence.The written notice of aggravating factors the People provided defense counsel was in the general language of Penal Code section 190.3 and did not set forth the particular nature of any piece of evidence. Counsel was not ineffective for failing to object because the notice, while facially deficient, clearly stated that counsel had already been provided with all relevant reports. This fact was confirmed by defense counsel prior to the penalty phase.id: 14478
Witness' penalty phase testimony regarding defendant's prior statement relating to killing people was admissible to show the circumstances of his prior violent activity.Defendant argued the prosecutor improperly elicited testimony at the penalty phase regarding defendant's prior statement that he had killed in the past and would kill again in the future. However, the prosecutor did not intentionally elicit inadmissible testimony. Moreover, the testimony was admissible to show the extent to which defendant terrorized his victims, and thus showed the circumstances of defendant's prior violent activity.id: 14479
Prior crime which has been expunged may be considered by penalty phase jury.Penal Code section 1203.4 merely allows a defendant to withdraw his plea of nolo contendere and enter a plea of not guilty once the conditions of his probation have been fulfilled. Nothing in that section prohibits the jury in a capital case from considering the facts of the crime that gave rise to the offense.id: 14440
Prior felony conviction can be used for the upper term on every count and also to impose an enhancement for conviction of a prior violent felony.The same fact may be relied on both as an aggravating factor in determining whether to impose the death penalty and as an enhancement of a prison sentence which is imposed for another crime and is to be served in the event the death penalty is not carried out.id: 14441
Prior Florida felony convictions were admissible in aggravation notwithstanding the least adjudicated elements test.At the penalty phase, the People introduced evidence of three prior Florida felonies for breaking and entering. Defendant argued the Florida crimes would not have been felonies in California at that time, and hence those convictions should have been excluded from his penalty phase under the least adjudicated elements test. However, for purposes of Penal Code section 190.3, factor (c), prior felony convictions includes any prior conviction which was a felony under the laws of the convicting jurisdiction.id: 14443
Prior violent activity was not stale in the sense that it occurred more than seven years before the capital trial.Prior violent activity was not stale, in the sense that it occurred more than seven years before defendant's trial, and the evidence satisfied the Eighth Amendment requirement that the penalty determination be reliable.id: 14445
Prosecution could cross-examine as to defendant's youth gang activities where the witness testified as to defendant's participation in Little League and school plays.The witness had testified generally of defendant's good character and offered specific examples of his socially useful activities, including participation in Little League and school plays. The prosecution was entitled to present a more balanced picture. Membership in youth gangs was relevant to the issue of defendant's character and activities as a youth and specifically rebutted the direct testimony of the witness. Accordingly, the cross-examination constituted proper rebuttal.id: 14446
Prosecutor did not argue that defendant's service in Vietnam was aggravating, he argued it was not mitigating.In closing penalty phase argument, the prosecutor referred to defendant's military service. Defendant argued the prosecutor mentioned his service in Vietnam in an impermissible manner, attempting to convert mitigating evidence into aggravating evidence. However, the prosecutor did not argue that defendant's military service was an aggravating factor; he argued it was not mitigating.id: 14447
Prosecutor did not violate penalty phase notice provisions or mislead defendant as the witness to the earlier killing who identified defendant had not discussed the case with the prosecutor until shortly before he testified.At the penalty phase the prosecutor introduced evidence in aggravation of defendant's participation in an earlier homicide. Defendant claimed the prosecutor violated the notice provisions of Penal Code section 190.3 and used deceptive tactics in introducing identification testimony of witness Mitchell. However, defense counsel failed to object to the notice problem until the next day, and his failure to object earlier constituted a waiver of the point. Moreover, timely notice was given that the prosecution intended to introduce all relevant evidence as to the earlier homicide although they did not mention an identification witness. The record demonstrated the prosecutor did not know Mitchell would identify defendant as the shooter in the earlier killing until shortly before he testified. The prosecutor did not violate section 190.3 or mislead defendant.id: 14448
Prosecutor need not give notice of evidence in aggravation that is related to the circumstances of the capital crime.During the penalty phase the prosecutor referred to the victim's age, vulnerability and innocence. Defendant argued that he did not receive proper notice that the prosecutor would rely on such evidence. However, there is no requirement that the prosecutor give notice of evidence in aggravation that is related to the circumstances of the capital crime. Moreover, the prosecutor's argument did not constitute evidence, and therefore, the notice requirement was inapplicable.id: 14450
Prosecutor's comment during penalty phase argument regarding defendant's lack of remorse was not aggravating evidence that required notice prior to trial.During closing argument at the penalty phase, the prosecutor commented on defendant's lack of remorse after the killing. Defendant argued that the comment amounted to an aggravating factor and that the prosecutor was required to give notice that he intended to use it in aggravation. However, the prosecutor's words amounted to argument <197> not evidence. No notice was required. Moreover, the comment on the lack of remorse could not reasonably be interpreted as a reference to his failure to testify.id: 14451
Prosecutor's remark was not an invitation to treat defendant's lack of remorse as an aggravating factor.Prosecutor argued the penalty phase jury could consider the defendant's demeanor while on the stand. Defendant argued that by referring to his demeanor while testifying, the prosecutor was improperly arguing that the jury could consider in aggravation defendant's lack of remorse and failure to confess guilt. However, a reasonable juror could have interpreted the prosecutor's remark as an invitation to treat either defendant's apparent lack of remorse or his failure to confess as a separate aggravating circumstance.id: 14452
Rape and lewd-act special circumstance findings required different elements of proof and could be separately considered.Defendant argued that the rape-murder special-circumstance finding and the special circumstance finding of murder in the course of a lewd act on a child actually described the same conduct, so that it was impermissible for the jury to rely on each as a separate aggravating factor under factor (a) of Penal Code section 190.3. However, each of the offenses involved violations of different interests of the victim and were separately relevant.id: 14453
Refusal to instruct that first degree murder conviction was not in itself an aggravating factor was not erroneous.The trial court did not err in refusing to instruct the penalty phase jury that the first degree murder conviction was not in itself an aggravating factor since no one had suggested that the murder conviction in the abstract, as distinct from the circumstances of the murder, could be considered in aggravation.id: 14454
Second penalty jury was not told they could not consider lingering doubt as to guilt as a mitigating circumstance.The jury that determined defendant's guilt was unable to agree on the penalty so a second jury was impaneled for that purpose. Defendant correctly argued that he was entitled to have the jury consider, as a mitigating circumstance, lingering doubt about his guilt. However, the court was not required to instruct on this point. Moreover, comments by the court and prosecutor reminding the jury that it was not to redetermine guilt did not remove the question of lingering doubt from the jury. Rather, it correctly informed the jury that in the penalty phase guilt was to be conclusively presumed as a matter of law because the trier of fact had so found in the guilt phase.id: 14455
Section 190.3 is not unconstitutionally vague in failing to identify which sentencing factors are aggravating and which are mitigating.Defendant argued that Penal Code section 190.3 violates the U.S. Supreme Court's pronouncement in <i>Stringer v. Black</i> (1992) 112 Supreme Court 1130, because it does not expressly identify which sentencing factors are aggravating and which are mitigating. However, certain of the factors can only be mitigating and others i.e. other violent criminal activity, and prior felony convictions, can only be aggravating. Still others allow either aggravating or mitigating consideration, depending on the circumstances. The factors cannot be deemed unconstitutionally vague simply because they leave the sentencer free to evaluate the evidence in accordance with his or her own subjective values.id: 14456
Stressing the mercilessness of the crimes did not amount to improperly arguing the absence of remorse as a nonstatutory aggravating factor.Defendant argued that by stressing his mercilessness toward the murder and robbery victims, the prosecutor improperly argued absence of remorse as a nonstatutory aggravating factor. However, the prosecutor never stated the absence of remorse was aggravating. Moreover, evidence that the murder was remorseless could be considered under Penal Code section 190.3, factor (a) which allows the sentencer to evaluate all aggravating and mitigating aspects of the crime itself.id: 14457
Supreme Court holds that state appellate court may reweigh aggravating and mitigating evidence in upholding death sentence.The Mississippi Supreme Court upheld the death sentence in this case even though the jury instruction regarding one of the aggravating factors <197> that the murder was especially heinous, atrocious or cruel <197> was constitutionally invalid. In a 5-4 decision written by Justice White, the Supreme Court held that the federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless error review." Nevertheless the court vacated the judgment and remanded the case because it was unclear whether the Mississippi Supreme Court correctly employed either of these methods. Justice Brennan, Blackmun, Marshall and Stevens agreed that the judgment should be vacated, but dissented from the ruling permitting an appellate court to reweigh the aggravating and mitigating evidence.id: 14458
Supreme Court says state court interpretations of heinousness overcame vagueness problem.In imposing the death sentence, the Florida sentencing judge found that the murder was especially wicked, evil, atrocious or cruel. In a 7-2 opinion written by Justice Souter, the Supreme Court suggested that the Florida Supreme Court's recent decisions on this heinousness factor may evince inconsistent and overbroad constructions that leave a trial court without sufficient guidance. Nevertheless, the court found that the Florida Supreme Court has consistently held that heinousness is properly found if the defendant strangled a conscious victim. Since the defendant strangled the victim here, the majority found that the trial court had adequate guidance in basing the death sentence on this aggravating factor. Justices Blackmun and Stevens dissented.id: 14461
Supreme Court upholds death sentence based on utter disregard for human life.Defendant was sentenced to death based in part on the statutory aggravating circumstance, utter disregard for human life. The Idaho Supreme Court had placed a limiting construction on this phrase, defining it as referring to a cold-blooded pitiless slayer. However, the 9th Circuit held that the phrase was unconstitutionally vague, and this narrowing construction was inadequate to cure the defect. The Supreme Court granted certiorari and reversed in a 7-2 opinion written by Justice O'Connor. The majority ruled that although the question was close, the Idaho Supreme Courts' construction was sufficiently clear and objective and satisfied the requirement that a state's capital sentencing scheme genuinely narrow the class of defendants eligible for the death penalty. The majority held that it was not authorized to determine whether a limiting construction has been applied consistently, as long as the state court's formulation of the limiting construction is consistent. Justices Blackmun and Stevens dissented.id: 14462
Supreme Court upholds death sentence for crime committed by 19-year old.When he was 19, defendant murdered a convenience store employee. He was sentenced to death. At sentencing, the jury was instructed that it could consider all mitigating evidence submitted at trial or during the sentencing hearing in deciding whether (1) the conduct was committed deliberately with the reasonable expectation that death would result, and (2) there was a probability that defendant would commit criminal acts of violence that would constitute a further threat to society. In a 5-4 opinion written by Justice Kennedy, the Supreme Court held that these questions to the Texas jury allowed adequate consideration of the defendant's youth. Judges O'Connor, Blackmun, Stevens, and Souter dissented.id: 14463
Surviving victim's testimony regarding emotional trauma related to the nature and circumstances of the capital offense.Defendant argued the trial court erred at the penalty phase in admitting evidence of the emotional trauma suffered by a surviving victim subsequent to the crimes. However, the victim's testimony as a surviving victim of defendant's attempted murder, describing the psychological and emotional trauma suffered by her as a direct result of defendant's homicidal conduct, related to the nature and circumstances of the capital offense. That her suffering continued long after the shootings did not alter the fact it constituted a circumstance of the crime.id: 14465
The court must consider evidence of defendant's good conduct while in prison, but may weigh it accordingly.Contrary to the defendant's assertions, the trial court had considered evidence of the defendant's general good conduct while in prison. The trial court found, however, that the defendant's behavior was neither an aggravating nor mitigating factor. The Supreme Court held that there was no error in the trial.id: 14466
The individually negotiated disposition of an accomplice is not constitutionally relevant to defendant's penalty determination.The trial court did not err in refusing to instruct the penalty phase jury that the leniency granted to an accomplice could be considered a factor in aggravation.id: 14467
The penalty phase court did not err in rejecting defendant's offer to stipulate to the substance of a rape victim's testimony which was offered as aggravating evidence.At the commencement of the penalty phase the prosecutor sought to introduce testimony of a witness who had been raped in Oregon after he escaped from jail pending the instant trial. Defendant offered to stipulate to the victim's account of the incident so she would not testify. However, defendant's stipulations were not an adequate substitute for the victim's testimony, and the trial court did not abuse its discretion in concluding that the latter was relevant to the jury's task of assessing the defendant's degree of culpability at the penalty phase.id: 14468
Evidence of prior criminal activity was admissible notwithstanding that defendant was never charged with the crimes.The prosecutor was entitled to present testimonial evidence of two women as prior criminal activity under factor (b) of Penal Code section 190.3 even though defendant was never actually charged with a crime for the conduct. Defendant put a gun to one woman's head and forced her to orally copulate him. He showed the second woman a gun, drove her to the desert and had her pose for nude photographs. Evidence of the crimes was admissible since each involved violence or the implied use or threat of force.id: 14409
Evidence of robbery presented at the guilt phase but not penalty phase was properly argued as an aggravating factor despite lack of notice that it would be offered in aggravation.Defendant pled guilty to the robbery of victim Smith in which her automobile had been taken. Defendant argued that because no evidence of that offense had been presented at the penalty phase and he received no notice that it would be offered in aggravation, reference to the offense in penalty phase argument was improper. However, victim Smith testified at the guilt phase and the jury may consider all evidence presented at the guilt phase in proof of the capital offense and special circumstances. It was permissible for the jury to consider defendant's conduct during the robbery as an aggravating factor. Since the notice requirement does not include evidence presented for that purpose during the guilt phase, there was no error.id: 14410
Evidence of the victim's cerebral palsy was relevant to the circumstances of the crime under section 190.3.Prior to opening statements at the guilt phase, defendant moved the court in limine for an order prohibiting the People from introducing evidence that the victim suffered from mild cerebral palsy. The court ruled that it would allow the evidence. Such evidence was relevant to the circumstances of the crime under Penal Code section 190.3 as the victim's physical condition could tend to show that defendant mounted and executed his fatal attack without significant resistance <197> and therefore with unnecessary brutality.id: 14411
Evidence of violent criminal conduct while a juvenile is admissible as evidence in aggravation.Appellant argued the trial court erred in admitting evidence of his admission in juvenile court proceedings that he committed the offense of voluntary manslaughter as alleged in a juvenile court wardship petition. The evidence was not admissible under Penal Code section 190.3 factor (c) because juvenile court adjudications are not prior felony convictions. However, the evidence was admissible under section 190.3 factor (b) as violent criminal activity.id: 14413
Evidence of menacing in Oregon was admissible in aggravation although the conduct violated no California law.Defendant argued evidence of the Oregon incident did not qualify as evidence of other criminal activity to be used in aggravation. In Oregon a person had her tires slashed. Defendant denied the act but appeared at the restaurant where the victim worked and cleaned his fingernails with a butcher knife while staring at her. This conduct would violate no California penal statute but constituted menacing under Oregon law. The evidence was admissible under Penal Code section 190.3, factor (b).id: 14414
Evidence relating to the number of death judgments since the enactment of the death penalty law was not relevant mitigating evidence under the Eighth Amendment.Defense counsel sought to introduce statistical evidence reflecting the number of special circumstance cases in which the death penalty was imposed, in relation to all such cases filed since the enactment of the 1977 death penalty law. However, evidence relating to the incidence of death judgments since the enactment of the 1977 death penalty law is not relevant to any issue material to the choice of penalty under the Eighth Amendment.id: 14416
Evidence that, as a juvenile, defendant had been committed to the CYA was relevant to aggravation.Without objection, the court admitted evidence that a juvenile court referee had found defendant murdered the victim and had committed him to the Youth Authority. He argued his counsel was incompetent for not objecting because a juvenile court disposition is not a prior felony conviction under Penal Code section 190.3, factor (C), which requires the penalty phase jury to consider the presence or absence of any prior felony conviction. However, the adjudication was admissible under both the 1977 and 1978 law as evidence of criminal activity involving force of violence.id: 14417
Evidence that defendant possessed a shank was not rendered inadmissible at the penalty phase where defendant testified he possessed it for defensive purposes.Defendant argued reversal of his death sentence was required because the court erroneously allowed evidence of his possession of a shank while in jail. He argued the possession was not indicative of violence because he possessed it for defensive purposes. However, defendant's self-serving testimony about his motives did not render the shank evidence inadmissible.id: 14418
Facts of defendant's prior convictions of possession of cocaine and stolen property were properly admitted under factor (b) where the crimes led to arrests defendant resisted thereby establishing force or violence.Defendant argued that the evidence regarding his conviction of possession of stolen computers and suspected cocaine should not have been admitted at the penalty phase because the acts did not involve force or violence under Penal Code section 190.3, factor (b). While the fact of the convictions were admissible under factor (c), the underlying facts of the crime were inadmissible under that provision. However, while the possession of the computers and cocaine did not themselves involve force or violence, they were crimes leading to arrests which defendant resisted and thus were part of a continuous course of criminal activity which included force or violence. They were properly admitted under 190.3, factor (b). That resisting arrest does not inherently involve force or violence was not helpful to defendant where his actual criminal activity was violent.id: 14419
Failure to give timely notice of aggravating evidence was not prejudicial where all notices were filed prior to jury selection and defendant failed to request a continuance.Defendant argued the prosecutor delayed unduly in presenting the defense with the required notice of aggravating evidence the People intended to rely on during the penalty phase. The record showed the prosecutor initially filed a timely notice. However, defendant argued the three subsequent notices (adding additional offenses) filed after the date the case was assigned from the master criminal calendar for trial, were untimely. However, all of the notices were filed prior to the commencement of jury selection, and defendant failed to request a continuance, thereby indicating that the timing of the notices was not prejudicial to the defense.id: 14420
For purposes of section 190.3, an acquittal does not include a charge dismissed as part of a plea bargain.In 1978 defendant, in New York, pled guilty to robbery and the charges regarding the getaway and the shootout were dismissed. At the penalty phase in the instant case, the prosecution presented evidence under Penal Code section 190.3 factor (b) of the New York robbery, shootout and getaway. Defendant argued the dismissal of the getaway and shootout counts was an implied acquittal and admission of such evidence was improper. However, an offense for which a defendant has been prosecuted and acquitted under section 190.3 is one in which there has been a judicial determination of the truth or falsity of the charge. This does not include a charge dismissed pursuant to a plea bargain.id: 14422
Improper admission of nonstatutory aggravating evidence was not prejudicial where similar evidence was properly admitted.At the penalty phase the trial court improperly admitted evidence of defendant's threats while incarcerated and his statement to a counselor that he liked to do freaky things with the ladies. The evidence was inadmissible because it was irrelevant to any of the enumerated factors set forth in Penal Code section 190.3. However, given the properly admitted evidence of defendant's substantial criminal history and the circumstances of the instant offenses (rape of 76 year old victim in the course of murdering her) there was little possibility the jury's penalty was affected by the inadmissible evidence.id: 14423
Introduction at the penalty phase of documents reflecting defendant's views on Christianity was proper.Notwithstanding the jury's guilt phase determination that this was a premeditated and intentional murder, defendant testified at the penalty phase that he never intended to kill the victim, but only to harm her. Although he characterized his written hatred of Christianity as merely interesting commentary which he found useful in coping with things <197> the evidence was plainly relevant to rebut the penalty phase defense and reaffirmed what loomed as a strong, contributing motive for the murder; his bitter hatred and contempt of his ex-wife's affiliation with a fundamentalist Christian sect.id: 14425
Introduction of evidence of prior child-kidnapping did not prejudice the defendant.The defendant claimed that the trial court erroneously refused to exclude evidence of a prior child-kidnapping which occurred during a previous rape-robbery. The defendant was never charged with the kidnapping. This evidence was properly admitted at the penalty phase because it was probative of the defendant's conduct and involved the threat of force or violence. There was no reasonable probability that the jury was misled by this evidence since the judge instructed them to disregard the evidence if they found there was a reasonable doubt as to whether it had actually occurred.id: 14426
Lack of notice of penalty phase evidence did not require reversal where defense counsel did not seek a continuance and the inflammatory effect of the evidence was minimal.Defendant argued that evidence of certain photographs and a doctor's testimony regarding the great force of the knife blows, urged by the prosecution in aggravation of penalty, should have been excluded from consideration for lack of timely notice. While defendant received virtually no notice he did not seek a continuance, indicated great familiarity with the doctor's testimony, and cross-examined him at length to emphasize the number of superficial wounds. Lack of notice of the evidence did not require reversal where the additional inflammatory effect of the new evidence was minimal.id: 14427
Lack of timely written notice of aggravating evidence was harmless where the defense had actual notice well in advance of trial.Defendant argued the notice of aggravating evidence was inadequate because written notice was not provided until one day after the jury was sworn and over sixty days after jury selection had begun. However, the defense had actual notice well before the trial commenced and any error was therefore harmless.id: 14428
No constitutional violation in failing to require the jury to set forth written findings regarding the aggravating factors it relied on in imposing death.The 1978 death penalty law is not unconstitutional for failing to require the jury to set forth written findings regarding the various aggravating factors it relied on in imposing death.id: 14429
No unanimity instruction is required with respect to uncharged prior criminal offenses.The trial court did not err in failing to instruct sua sponte that an uncharged offense could only be considered at the penalty phase if the jury unanimously agreed that defendant had committed the offense.id: 14430
Overt remorselessness at the scene of the crime can be an aggravating factor because the sentencer may consider all aggravating and mitigating aspects of the capital crime itself.Defendant challenged the prosecutor's claim that defendant's absence of remorse was aggravating. Insofar as the prosecutor was urging defendant's overt remorselessness at the immediate scene of the crime, the claim of aggravation was proper. On the other hand, postcrime evidence of remorselessness does not fit within any statutory sentencing factor, and thus should not be urged as aggravating.id: 14432
Penalty phase evidence that defendant was a kind and considerate person in certain circumstances was subject to rebuttal.Defendant argued that the mitigating evidence he offered to show that he was good to members of his family was limited to evidence of his conduct when he was not under the influence of drugs and it was not offered as evidence that he was a nonviolent person. However, a capital defendant who offers as mitigating evidence relevant to whether he should live or die, evidence that he is a kind person may not restrict the scope of evidence offered to rebut that inference by arguing that he intended only to demonstrate that he was kind under limited circumstances. Evidence of his violence was relevant and proper rebuttal.id: 14433
Photograph of prior rape victim was relevant at the penalty phase to show the prior crime involved the use of force or violence.The parties stipulated at the penalty phase that defendant had a prior rape conviction and that the victim had been unavailable to testify at trial. In the instant trial the prior victim's mother testified regarding her daughter's physical appearance before and after the rape. She identified a photograph of her daughter taken several days after she had undergone facial reconstructive surgery. Defendant argued the photograph was unduly prejudicial and was not relevant to any disputed issues. However, the photograph was relevant to the prosecutor's penalty phase case as it tended to show the prior criminal activity involved force or violence.id: 14435
Possession of a knife involves the implied threat to use force or violence for purposes of penalty phase aggravation.Defendant argued the trial court erred in admitting facts underlying his conviction for possession of a concealed weapon while at the California Youth Authority because his conduct did not involve violence or the threat of force. However, that defendant did not actually use the knife at the CYA did not mean that he did not engage in criminal conduct involving the implied threat to use force or violence.id: 14436
Possible remoteness of a defendant's prior offenses is not a proper ground for excluding evidence under section 190.3Defendant argued the court erred in allowing the prosecutor to admit evidence that defendant participated in an armed assault in New Mexico 14 years prior to the penalty phase retrial in the instant case. According to defendant, the evidence was too remote to be of any value as aggravating evidence. However, possible remoteness of the defendant's prior offenses is not a proper ground for exclusion of evidence under Penal Code section 190.3, as remoteness affects the weight, not admissibility of the offense.id: 14437
Prior burglary was admissible in aggravation as other criminal activity involving force or violence, notwithstanding that defendant threw the knife away before using it.The People introduced evidence of defendant's prior burglary in aggravation as other criminal activity involving force or violence. Defendant argued the evidence was inadmissible as it did not demonstrate force or violence. However, aware of the presence of those who came to the apartment in response to his arrival, defendant took up the knife in the kitchen against their imminent entry. He did so in order to avoid apprehension and make good his escape. Evidence of force or violence was therefore established, notwithstanding that he actually cast the weapon away before putting it to use.id: 14438
Prior conviction admitted in aggravation was supported by evidence despite the kidnap victim's failure to positively identify the defendant at trial.The prosecutor admitted evidence of defendant's 1982 kidnapping conviction at the penalty phase. Defendant argued that the victim's inability to positively identify him as the driver of the truck and the prosecution's reliance on the prior out-of-court identification, rendered her testimony legally insufficient to convict him of the kidnap. Notwithstanding the victim's uncertain identification of defendant at trial, her prior photo identification made one day after the alleged kidnapping constituted sufficient evidence to support the trial court's ruling that the prior incident could be properly considered by the jury.id: 14439
Court properly admitted evidence of defendant's arson of the victim's car at the penalty phase since it clearly involved a threat of violence against a person.Defendant argued the court prejudicially erred at the penalty phase in admitting incidents involving violence or threats of violence to property only. However, defendant's arson of the victims's car was part of his attempt to frighten and control her, and clearly involved an implied threat of violence against a person.id: 14379
Court properly excluded penalty phase evidence of defendant's interview with Dove Cage magazine where he discussed past exploits and past feelings.Trial court, at the penalty phase, did not err in limiting evidence of defendant's interview with Dove Cage Magazine. The court ruled the testimony of the interviewer was only admissible insofar as it described the interviewer's personal observations of defendant in prison. Moreover, the remainder of the evidence was properly executed under the hearsay rule. The only portion that seemingly satisfied Evidence Code section 1250, subdivision (a) was defendant's expression of his then existing feelings of Christian rebirth and it was not improper for the court to find those statements inadmissible because they were made under circumstances indicating a lack of trustworthiness.id: 14382
Court rejected proposed rule excluding from penalty phase evidence of misconduct in prison where records are destroyed and culpability is established using anonymous in-house informants.Defendant urged the Supreme Court to adopt a rule that evidence of a defendant's alleged prior misconduct must be excluded from the capital sentencing determination whenever the alleged misconduct occurred in prison, physical evidence and prison records are destroyed and percipient witnesses cannot be identified and prison officials relied on anonymous inmates to establish defendant's culpability. He argued the rule is necessary because prison records are routinely destroyed when no criminal charges are filed, and in-house informants may be tempted to fabricate evidence in exchange for substantial advantages. However, the court rejected the blanket rule of exclusion finding defendant failed to demonstrate existing methods for safeguarding the fairness of a penalty trial are inadequate.id: 14384
Court was not required to instruct sua sponte that defendant's juvenile offenses could not be considered in determining guilt where defendant introduced the evidence himself.Defendant argued the court erred in failing to instruct the jury sua sponte that it could not consider offenses he committed as a juvenile and his misdemeanor vandalism conviction in determining guilt. However, defendant introduced that evidence himself to persuade the jury that his present offense, like the earlier ones, was the product of drug abuse. He invited the jury to consider these offenses in determining his guilt and may not complain on appeal that it did so.id: 14385
Court's refusal to hold a hearing before penalty jury was selected to determine whether the prosecution could prove another murder was not prejudicial.Defendant argued the trial court was required to hold a hearing before selecting the penalty jury to determine whether the prosecution could prove he committed another murder because, without that determination, defense counsel felt compelled to mention the murder during voir dire. However, defense counsel did not tell the jurors defendant committed the murder. He only said the prosecution might attempt to offer such evidence. The prosecution never mentioned the crime to the jury. Any error was harmless given the evidence that defendant committed horrendous crimes including seven other murders.id: 14386
Court's statement that the special circumstance had already been found true did not suggest it was an aggravating factor.In response to an inquiry regarding special circumstances the court indicated the multiple murder had been found to be true. His response did not improperly lead the jury to believe the special circumstances finding was itself an aggravating factor in addition to the circumstance of the crime. Moreover, the response did not constitute a directed verdict of death, or a presumption favoring death.id: 14387
Criminal activity of juveniles may be admissible under section 190.3 factor (b) if the offense necessarily involves violence.Defendant argued evidence of juvenile adjudication is inadmissible at the penalty phase of a trial because a juvenile adjudication is neither a prior felony conviction within the express terms of Penal Code section 190.3, factor (c), nor criminal activity involving violence within the terms of factor (b). The court held section 190.3, factor (b) does not exclude criminal activity of juveniles. However, evidence of defendant's prior lewd act on a child, burglary, and grand theft person were inadmissible because the offenses did not necessarily involve violence.id: 14388
D.A.'s earlier offer of a plea bargain including a sentence of life without parole was not mitigating evidence and the court did not err in excluding that evidence.The trial court precluded defendant from introducing evidence at the penalty phase that, following the disclosure of the trial prosecutor's misconduct, the District Attorney offered defendant a plea bargain that included a sentence of life in prison without possibility of parole. The court acted within its discretion in excluding the proffered evidence as the evidence did not bear upon defendant's character, prior record, or the circumstances of his offense and, thus, did not constitute mitigating evidence.id: 14389
Defendant was not substantially prejudiced by the use of a 12-year old unadjudicated charge at the penalty trial.Prior to the penalty phase, defendant moved to exclude evidence of a 12-year-old unadjudicated charge citing speedy trial and due process provisions as well as the statute of limitations. The defense argued it was substantially prejudiced by the loss of certain evidence. Mere passage of time between the 1976 crime and defendant's trial did not significantly diminish his ability to challenge the evidence in question. Moreover, the court permitted favorable testimony from the 1976 preliminary hearing to be read into the record. Defendant was also able to confront and cross-examine the two defense witnesses. Defendant failed to establish he was denied a fair trial due to stale evidence.id: 14391
Defendant's escape attempt was properly admitted to show criminal activity using force or violence notwithstanding that the crime in the abstract does not involve danger.The court admitted evidence at the penalty phase that defendant while in administrative segregation at the county jail attempted to escape. The evidence was admitted as criminal activity involving the implied threat to use force or violence. Defendant argued the crime of escape, in the abstract, does not involve violence. However, testimony in the instant case showed the escape would almost certainly have involved defendant in a confrontation with a guard.id: 14393
Defendant's refusal of the plea offer did not amount to mitigating character evidence.Defendant argued the trial court erred in excluding evidence that the prosecutor had offered, and defendant had refused, of the opportunity to plead guilty to murder and testify against his coperpetrators in return for a sentence of life without possibility of parole. Defendant sought to introduce evidence of his refusal as mitigating character evidence showing loyalty to his friends. However, defendant's refusal of the plea offer was properly excludable because it was not an indication of his character.id: 14395
Defendant's statement's to psychiatric experts were admissible.Even though the defendant failed to object to it's introduction by the prosecution, evidence of the defendant's statements to psychiatric experts was relevant to his character and mental condition, even if not linked to any specific statutory sentencing factor. Court's statement regarding defendant's mental state was not a comment on the absence of a mitigating factor that could be used in aggravation.id: 14396
Defense expert's testimony was admissible in rebuttal for the prosecution where defendant presented alibi evidence.Defendant argued the court erred in admitting the testimony of a defense expert called as a rebuttal witness by the prosecution over defense objection. The doctor testified to an admission by defendant. The prosecutor was not required to give notice of his intention to use this testimony given the defense of alibi following counsel's statements that the defense would concentrate on mitigation with background and character evidence.id: 14397
Double jeopardy does not bar introduction of prior offenses at penalty retrial when they were not introduced at the first penalty trial.Double jeopardy does not bar the introduction of prior offenses at penalty retrial when they were not introduced at the first penalty trial, because the prohibition has no bearing on the quality of evidence that may be introduced at successive trials.id: 14398
Double jeopardy does not bar use of a prior crime as an aggravating factor under section 190.3.Constitutional guarantees against double jeopardy do not apply to subsequent trials when the prior offense is used as an enhancement, nor do such principles apply when the prior criminal activity is considered by the penalty jury as a proper aggravating factor under Penal Code section 190.3, factor (b).id: 14399
Either counsel may argue age-related inferences at the penalty phase.Defendant argued that at the penalty phase the prosecutor improperly labeled defendant's sociopathic condition and age (41) as aggravating factors. Regarding defendant's mental condition, the prosecutor simply stated the jury should not view it as a mitigating factor. Age-related inferences may be argued by either counsel.id: 14400
Evidence of a prior conviction was properly admitted at the penalty phase retrial where the prosecution gave adequate notice.Before the first penalty trial, the prosecution was precluded from introducing evidence of defendant's 1967 child molestation conviction since no notice of the evidence was presented to the defense. The jury was unable to reach a penalty verdict. Before the retrial, the prosecution provided notice that it intended to introduce evidence of the prior conviction. Allowing introduction of the evidence at the retrial was proper.id: 14401
Evidence of a jailhouse scuffle between members of rival gangs was admissible under factor (b).Defendant complained about the penalty phase testimony of a CYA counselor describing a fistfight between defendant and another inmate. Evidence of a jailhouse scuffle is admissible under Penal Code section 190.3, factor (b) where the jury can conclude that defendant was not acting in self-defense and was therefore guilty of criminal assault. Defendant argued the court erred in allowing the witness to suggest the two combatants were members of rival gangs. However, testimony linking the two boys to rival gangs was admissible because it tended to explain the reason for the fight.id: 14403
Evidence of defendant's escape attempt was properly considered as an aggravating factor.Defendant argued the court erred in allowing the jury to consider evidence of his escape attempt as an aggravating factor because uncharged criminal activity involving use or attempted use of force may be used only if the jury concludes defendant's conduct amounted to a crime. However, the court found that evidence of the escape plan established a crime.id: 14404
Evidence of defendant's prior arrest was only admissible at the penalty phase because it was elicited by defendant.Evidence that defendant had been arrested, but not charged, for attempted robbery was inadmissible as other crimes evidence under Penal Code section 190.3, factor (b). However, there was no error in the instant case since the evidence was elicited by defendant.id: 14405
Evidence of greater charge dismissed under a plea bargain can be introduced as aggravating evidence under section 190.3.Defendant had been charged in the past with assault with intent to commit rape but pled guilty to the lesser charge of battery with serious boldily injury. The court did not err in allowing evidence of the assault with intent to commit the rape. A bargained conviction is not an acquittal as described in Penal Code section 190.3.id: 14407
Evidence of other offenses was admissible at the penalty phase notwithstanding that the charges had been dropped pursuant to a plea bargain.Defendant argued that some of the evidence of his other assaults and molestations was inadmissible because the charges were dismissed pursuant to a plea bargain. However, use of such evidence was barred by neither due process nor double jeopardy principles.id: 14408
Court did not err in admitting evidence at the penalty phase that a prior sexual assault victim became pregnant when defendant raped her.Defendant argued the court erred in allowing a woman to testify that she became pregnant when defendant raped her in 1979. However, because she testified that she gave birth to a child that defendant acknowledged as his own, evidence of the pregnancy tended to identify him as the perpetrator of the prior unadjudicated forcible rape.id: 14350
A defendant may not permit relevant aggravating evidence to come in without objection and then complain that the court permitted the jury to consider it.The trial court did not err in instructing the capital jury that evidence admitted without objection that is logically relevant to the penalty determination, but is not legally relevant because it is not evidence related to a statutory factor, may be considered as evidence of an aggravating factor.id: 14353
Admitting evidence at penalty phase on the prior manslaughter conviction did not allow the jury to consider defendant guilty of the greater crime of murder.During penalty phase the prosecutor introduced evidence of facts underlying defendant's prior conviction of voluntary manslaughter. Defendant argued the conviction of manslaughter constituted an implied acquittal of murder and that in considering the underlying facts the jury would have facts of the original, greater charge. However, defendant was not expressly or implicitly convicted of murder as the information charged only manslaughter. Moreover, the prosecutor never suggested the jury should consider the killing as the equivalent of murder or anything other than voluntary manslaughter.id: 14355
Admitting evidence of juvenile misconduct at the penalty phase did not violate the Eighth Amendment.Defendant argued that the admission of evidence of juvenile misconduct violates the Eighth Amendment because it permits aggravation of sentence for the capital crime for conduct not considered criminal when it occurred. However, the penalty verdict is attributable to defendant's current conduct, murder with a special circumstance finding, not his past criminal activity.id: 14356
Age in itself need not be considered at penalty phase, but age related evidence might.Contrary to the defendant's assertions, the trial court did not fail to consider evidence of the defendant's age and Vietnam experience, but determined that the evidence did not rise to a sufficient level of persuasiveness to establish a mitigating circumstance.id: 14357
All prior violent offenses are admissible at penalty phase unless the defendant has been acquitted.Because the concern at penalty trials is the conduct of the defendant, not the fact of conviction, there is no bar to the introduction of prior violent acts, unless the defendant has been acquitted of the offense.id: 14358
Attempted rape was properly used as an aggravating factor where defendant had been convicted of the offense but acquitted of the attempted rape special circumstance.The jury found defendant guilty of attempted rape but found the attempted rape special circumstance not true. The fact that the jury found the special circumstance not true did not invalidate the guilt verdict on the attempted rape charge. The attempted rape was properly used in aggravation under Penal Code section 190.3.id: 14362
California statements regarding a murder in Missouri in 1969 were not inadmissible due to police misconduct in Missouri and were admissible as evidence in aggravation.At the penalty phase, the prosecution sought to admit defendant's confession, taken in California, of a 1969 murder in Missouri. The original confession in Missouri was obtained in violation of defendant's Fifth and Sixth Amendment rights. The physical evidence implicating him in the murder was obtained as a direct result of the unlawfully obtained confession. Finally, the police officer in Missouri committed perjury at the suppression hearing. However, defendant's California statements (taken after proper Miranda advisements) were an act of free will and any connection between them and the misconduct in Missouri was so attenuated as to dissipate the taint. This is especially true where there was never any suggestion of coercion in Missouri or California.id: 14364
Capital juries need not be directed to consider the relative severity of an accomplice's sentence as a mitigating factor.The trial court did not err in rejecting the defendant's request that the jury be instructed that the plea bargains with his two female accomplices be considered as a mitigating factor. Capital juries need not be directed to consider the relative severity of an accomplice's sentence as a mitigating factor.id: 14365
Comment that defendant cannot claim mitigation from the potentially mitigating factor was not an argument that the absence of these factors could be used in aggravation.Defendant argued the prosecutor committed misconduct in reviewing the factors set forth in Penal Code section 190.3 in connection with the mitigating evidence presented by defendant. Commenting upon several factors, the prosecutor stated that defendant cannot claim mitigation from the potentially mitigating factor. Although the prosecutor noted the absence of certain mitigating factors, he did not expressly or implicitly argue that the absence of these factors could be considered in aggravation. The statement was within the range of proper argument.id: 14366
Court did not err in admitting penalty phase evidence that defendant transmitted gonorrhea to three young victims in sexual assaults several years earlier.Defendant argued that the court erred in admitting evidence during the prosecution's case-in-chief at the penalty phase that he transmitted gonorrhea to three young victims of his prior forcible sexual assaults in 1975 and 1979. He claimed that such information was irrelevant absent evidence that he actually knew he carried the disease before each forcible sexual assault occurred. However, evidence that he suffered from a sexually transmittable disease over the eight-year period preceding the instant attack suggested that he knew or should have known he posed a special danger when he committed the lewd act against the instant victim.id: 14368
Court did not err in failing to specify mental illness as a mitigating circumstance.Defendant argued the court's penalty phase instructions allowed the jury to use mental illness as an aggravating factor in violation of the Eighth Amendment. He pointed to the court's failure to label mental illness as a mitigating factor and its instruction to determine whether the listed factors were aggravating or mitigating. However, nothing in the charge suggested that mental illness was an aggravating factor. The jury was told it could act in response to feelings of sympathy and compassion. No reasonable juror would have inferred from the instructions that mental illness was a circumstance in aggravation.id: 14369
Court did not err in permitting the prosecution psychiatrist to testify during the penalty phase that defendant refused to cooperate in an examination.Defendant argued the court erred in permitting a psychiatrist to testify at the penalty phase regarding defendant's refusal to participate in the court ordered psychiatric examination. However, by tendering his mental condition as an issue in the penalty phase, defendant waived his Fifth and Sixth Amendment rights to the extent necessary to permit a proper examination of that condition. Therefore, those rights were not violated when the examining psychiatrist testified to defendant's refusal to cooperate.id: 14370
Court did not err in permitting the prosecution at the penalty phase from introducing evidence of an earlier crime that had been dismissed by the juvenile court.Defendant argued the prosecution erred at the penalty phase in introducing evidence of a crime that was dismissed in juvenile court. However, contrary to defendant's claim the dismissal was not tantamount to an acquittal of the underlying charge and introduction of the evidence was not improper.id: 14371
Court did not err at the penalty phase in admitting evidence about the razor blades and battery pack found in defendant's possession at the CYA.Defendant challenged the penalty phase testimony of a CYA counselor describing several unauthorized items found in defendant's cell. Defendant argued that because the extra razors, razor blades and batter-pack were not inherently deadly, there was insufficient evidence from which the jury could infer he violated laws prohibiting possession of deadly weapons by inmates. The trier of fact is free to consider any innocent explanation for defendant's possession of the items, but such references do not render the evidence inadmissible per se. The court erred in allowing testimony that the contraband was gang related but the error was harmless where the reference was brief and there was more serious evidence of defendant's misconduct in custody.id: 14372
Court is not required to instruct on the elements of other offenses presented as uncharged criminal activity.The trial court is under no obligation to instruct the jury sua sponte on the elements of other offenses presented as uncharged criminal activity; nor is it obliged to instruct sua sponte on the degree of intent required of such an offense, provided only that the instructions it does give do not mislead the jury.id: 14378
Threat to kill the guard violated section 69 despite the lack of present ability to carry out the threat because the guard could reasonably fear retaliatory action in the future.During the penalty phase the prosecutor admitted evidence of threats defendant made to sheriff's deputies at the jail. The prosecutor argued the threats violated Penal Code section 69 which prohibits attempts to prevent an officer from performing his or her duty. Contrary to defendant's claim, there was substantial evidence that defendant's threats violated section 69. While he may not have had the present ability to kill the guard as threatened, present ability to carry out threats is not required if, as here, the target of the threat could reasonably fear retaliatory action on some future occasion.id: 10789
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245