P. v. Cooper

Filed 10/20/06 P. v. Cooper CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant David Cooper was convicted after a jury trial of the crime of first degree murder, with the special circumstance of torture (Pen. Code, §§ 187, 190.2, subd. (a)(18)).^[1] He was also separately convicted of the crime of torture. (§ 206.) Appellant was sentenced to life without possibility of parole.

He contends: 1) the trial court abused its discretion in denying severance of his trial from that of his codefendant, Debra Soler, and 2) the jury instruction relating to the torture murder special circumstance was prejudicially erroneous. We reject both contentions and affirm.

I. FACTS AND PROCEDURAL HISTORY

This appeal arises from the murder of Michelle Breault (Michelle) at the Stanford Hotel in San Francisco on the evening of July 16, 2001. While appellant does not challenge the sufficiency of the evidence, we summarize the facts.

Michelle, who was described by a social worker as innocent, naïve, and depressed, had recently moved to San Francisco from New Mexico with her boyfriend. They were homeless and living in Golden Gate Park, until Michelle’s boyfriend was seriously injured in a fight and hospitalized. About July 10, 2001, Michelle obtained a housing voucher from a veterans aid group and moved into room 422 at the Stanford Hotel at 250 Kearney Street, San Francisco.

Debra Soler (Soler) lived in room 420. Soler had been living in the hotel for about six years, and did minor maintenance jobs around the hotel. Soler’s boyfriend, appellant David Cooper (Cooper), surreptitiously lived with Soler in room 420, because he had previously been banned from the hotel. Soler’s friend Belinda German (German) also lived nearby, in room 416.

On the evening of July 16, 2001, at about 8:45 p.m., Michelle confronted the hotel clerk, Ms. Pushpa Patel, about the need to fix the toilet on the fourth floor. Michelle was loud and angry, and appeared to be under the influence of alcohol.^[2]

Around 10:00 p.m., Michelle knocked on the door of the room occupied by Soler and her boyfriend Cooper. Also in the room was Soler’s friend, German. Soler, German, and Cooper had been drinking beer, and German described the mood inside the room as jovial. Michelle was obviously intoxicated, and asked to come in. She sat on the bed in the room and talked about her injured boyfriend.

Cooper was apparently suspicious of Michelle, and began questioning her about whether she was “a cop or a narc.” Cooper demanded to see Michelle’s identification. Michelle did not have her wallet with her, but she gave her key to German to go retrieve it. Michelle then took her identification out of the wallet and showed it to Soler, but this did not seem to satisfy him. Soler called the hospital to confirm Michelle’s story about her boyfriend.

Cooper again demanded angrily to know whether Michelle was “a cop or a narc.” Michelle hit Cooper in the head with a glass, and Cooper pushed Michelle away. Soler grabbed Michelle by the hair, and began shaking her and punching her in the face with her fists. Michelle fell to the floor, and Soler “stomped” on her several times until Cooper told her to stop. Soler then grabbed a hammer and attempted to strike Michelle repeatedly in the head. Cooper yelled to German to stop Soler, so German grabbed the hammer and hid it in the bathroom.

Soler went into the bathroom and returned with a plastic garbage bag and put it around Michelle’s neck, saying that Michelle was a “bitch.” Michelle struggled and was able to get the bag off her head. Soler put another bag on Michelle’s head, but Michelle removed that one as well.

Soler got another bag and asked Cooper to hold Michelle’s feet. Cooper said he would have to knock Michelle out. German left the room at that point to go to the hallway bathroom. Five minutes later, she saw Cooper again in the hallway, with blood on his hands. He told German that “we’re going to have to kill her now” because this was Cooper’s “third strike.”

At around this same time, Rita Tonucci and her boyfriend Adam Chedister were in the room directly below Soler’s, and Adam heard loud noises of banging and what sounded like a woman being choked and hit, while a man threatened to kill her. Tonucci banged on the ceiling with a broom, and the sounds finally stopped after about 20 minutes. Tonucci and her boyfriend prayed that what they had heard was not a murder, although they feared that it was.

German went to the room of her friend Jimmy Murray and told him that someone was being beaten in Soler’s room. German went back to Soler’s room. Soler told German that Cooper had left. There was something on the floor wrapped in a blanket--apparently Michelle.

German returned to Murray’s room and said something had happened to a woman upstairs. Murray suggested they should go out to eat, so they went to a restaurant and did not return until early the next morning about 1:30 a.m.

Sometime after 2:00 a.m., German went to Michelle’s room and saw Michelle’s body inside. German did not want to report the presence of the body herself, so she pulled a fire alarm, which ultimately led to the discovery of Michelle’s body. The body was naked from the waist up, with the pants unzipped. There was a syringe in her pocket and some injection sites on her arm, although no drugs were found in the toxicological examination, leading the coroner to believe the evidence had been staged to make it appear that she was a drug abuser. There were also blood smears and drag marks in the room, and some letters written on the wall.

Michelle’s body had suffered multiple blunt and sharp trauma, including many wounds to her head and face consistent with blows from a hammer, and stab wounds in her abdomen, all of which would have inflicted extreme pain. There was relatively little blood, and no spattered blood, in the room, suggesting that Michelle had been killed elsewhere and dragged to her room.

German did not at first tell anyone what she knew about the murder. Later, she went to Soler’s room and saw Cooper, who talked about the murder and killing the victim. German said she did not want to know more, and Cooper warned her not to talk. German also saw Soler wearing a halter top, and noticed bruises on her arm, shaped like fingers. Soler told German, “the girl fought.”

On July 19, 2001 German told Pushpa Patel what she knew about the July 16 murder, and Patel called the police. The police obtained a search warrant and searched Soler’s room, finding a hammer, knives, a dagger, and two items from Michelle’s room, a suitcase and a radio. There were also blood splatters and pools of blood on some furniture. There was no visible blood on the top of the rug, but there was a pool of blood underneath it. There were traces of blood on the hammer and a knife. DNA testing matched the blood on the hammer and furniture to Michelle.

Soler gave a statement to the police in which she denied knowing the victim or participating in any murder.

On July 24, 2001, Cooper and Soler were jointly charged by felony complaint with the murder of Michelle Breault. Both were held to answer on August 22, 2002. An information charging the murder and the torture special circumstance was filed on September 6, 2002. An amended information was filed on February 21, 2003. On June 13, 2003, codefendant Soler filed a motion to sever her case from that of appellant.^[3] Appellant joined in that motion, which was denied after hearing on June 26, 2003. Trial commenced with pretrial motions on February 11, 2004, with jury selection beginning on February 17, 2004. On February 19, 2004, appellant presented his own motion to sever on the basis of “antagonistic defenses.” That motion was denied on February 25, 2004.

Cooper testified in his own defense, blaming Soler for the murder. He claimed that Soler had attacked Michelle after Michelle had hit him in the head with a beer bottle, and the two women fought, while Cooper only watched. Soler hit Michelle in the head with a hammer, and Cooper yelled to German to stop Soler. Soler tried to put a bag over Michelle’s head. Cooper left the room and talked with German, telling German that Soler might be killing Michelle as they were talking. Cooper returned to the room to find Michelle dead, and blood all over. Cooper insisted that he had nothing to do with killing Michelle. However, he admitted he helped Soler move the body and stage a murder scene in Michelle’s room. Cooper testified that he was on parole at the time of the murder. It was stipulated that he had previously been convicted of domestic violence. He denied threatening Soler or discussing his criminal past with her.

Soler testified, swearing that Cooper was the one who killed Michelle, while Soler was in the bathroom after Michelle hit Cooper with a bottle. Soler said that she had grabbed Michelle by the hair to drag her out of the apartment, and that Cooper had started hitting her, knocking her down. She alleged that it was Cooper who started beating Michelle and trying to put a bag over her head. According to Soler, she heard Michelle screaming for help while Soler was in the bathroom for about 20 minutes. Cooper told Soler that he had gotten “carried away” and killed Michelle by “sticking a knife in her,” and that he did not want to go back to prison. Soler claimed she did not aid in the torture or murder, and only helped to clean up the blood.

On April 2, 2004 both Cooper and Soler were convicted by the jury of first degree murder, with the torture special circumstance found to be true, and both were convicted of the separate crime of torture. (§§ 187, 190.2, subd. (a)(18), 206.)

Appellant was sentenced to life without possibility of parole. The trial court granted Soler’s motion for new trial.^[4]

II. DISCUSSION

A. Denial of the Motion for Severance was not an Abuse of Discretion.

Appellant Cooper first contends that the trial court abused its discretion in denying his motion to sever his trial from that of his codefendant Soler. We find no abuse of discretion.

Severance is governed by section 1098.^[5] Under that statute, “a trial court must order a joint trial as the ‘rule’ and may order separate trials only as an ‘exception.’ (5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2518, p. 3021.)” (People v. Alvarez (1996) 14 Cal.4th 155, 190, italics omitted.) The trial court is granted the authority to determine whether severance is warranted, and its decision will be reversed on appeal only if the court abused its discretion. (Id. at p. 189.) “‘[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]’” (People v. Green (1995) 34 Cal.App.4th 165, 182-183.) Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial. (People v. Keenan (1988) 46 Cal.3d 478, 502-503 (Keenan).)

The only other basis for reversal after trial where a severance motion has been denied is if it appears that, because of the joint trial, a gross unfairness occurred such as to deprive the defendant of a fair trial or due process of law. (People v. Boyde (1988) 46 Cal.3d 212, 233 (Boyde).)

Joint trials are favored because they “promote [economy and] efficiency” and “‘serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.’” (Zafiro v. United States (1993) 506 U.S. 534, 537 (Zafiro).) As appellant acknowledges, the Legislature has “expressed a preference for joint trials.” (Boyde, supra, 46 Cal.3d at p. 231.) In light of the legislative preference for joinder, separate trials are usually ordered in circumstances where the admission of an incriminating confession of a codefendant which cannot be adequately redacted, or where there may be prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that a codefendant would give exonerating testimony at a separate trial. (People v. Box (2000) 23 Cal.4th 1153, 1195 (Box).)

In deciding whether the exception applies, the trial court is required to decide whether the realistic benefits from a consolidated trial are outweighed by the likelihood of substantial prejudice to the defendant. (Keenan, supra, 46 Cal.3d at p. 500.) “The balancing process is a ‘highly individualized exercise’ [citation], and the propriety of a trial court ruling depends on the facts as they appeared when the motion was decided. [Citation.]” (Id. at p. 501, italics omitted.)

Appellant here argues that the trial court was aware, by virtue of Soler’s June 13, 2003 motion, that his codefendant intended to present evidence at trial that appellant was violent and abusive to women, and that appellant was solely responsible for Michelle’s murder. The trial court rejected, however, Soler’s request to introduce evidence that Cooper had repeatedly attacked his previous girlfriend, Deborah Edgar, while they lived together at the Stanford Hotel, on the basis of its potential for prejudice to Cooper’s defense.

Appellant contends that the court was still required to sever his case from Soler’s because it was evident that the two had “antagonistic defenses,” and that his codefendant intended to implicate him in the murder. Appellant relies largely upon federal authorities applying Federal Rules of Criminal Procedure, rule 14, including a decision of the Ninth Circuit in U.S. v. Tootick (9th Cir. 1991) 952 F.2d 1078 (Tootick), reversing convictions upon finding that the defendants had demonstrated clear and manifest prejudice, and that on the record before it “[t]he jury could not have been able to assess the guilt or innocence of the defendants on an individual and independent basis.” (Id. at p. 1083; see also U.S. v. Rucker (11th Cir. 1990) 915 F.2d 1511; United States v Romanello (5th Cir. 1984) 726 F.2d 173.) The federal rule permits severance on a showing of prejudice, and the Ninth Circuit in Tootick, addressing what it considered to be a case of first impression, suggested that a finding of mutually exclusive defenses requires severance under Federal Rules of Criminal Procedure, rule 14. (Id. at pp. 1081-1082.) Tootick premised its holding in large part upon the “second prosecutor” theory, with each codefendant’s counsel required to do everything possible to convict the other defendant under such circumstances.

In the first instance, the “‘decisions of the lower federal courts on federal questions are merely persuasive. [Citations.]’” (People v. Wallace (1992) 9 Cal.App.4th 1515, 1519, fn. 3 (Wallace).) Our Fourth District in Wallace expressly declined to follow Tootick and Rucker as “‘too rigid in circumscribing the discretion of the trial court.’” (Ibid.) We agree.

Moreover, the United States Supreme Court in its subsequent decision in Zafiro, supra, held that mutually antagonistic defenses are not prejudicial per se, and that Federal Rules of Criminal Procedure, rule 14 does not require severance, even if prejudice is shown. (Zafiro, supra, 506 U.S. at pp. 538-539.) The court determined that a federal trial court “should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” (Ibid.)

In Zafiro, as here, appellants did not articulate any specific instances of prejudice, but rather contended that the very nature of their defenses, without more, prejudiced them on the theory is that “when two defendants both claim they are innocent and each accuses the other of the crime, a jury will conclude (1) that both defendants are lying and convict them both on that basis, or (2) that at least one of the two must be guilty without regard to whether the Government has proved its case beyond a reasonable doubt.” (Zafiro, supra, 506 U.S. at p. 540.) The Supreme Court rejected these contentions, noting that “it is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials,” and that “[w]hile ‘[a]n important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence,’ [citation] a fair trial does not include the right to exclude relevant and competent evidence. A defendant normally would not be entitled to exclude the testimony of a former codefendant if the district court did sever their trials, and we see no reason why relevant and competent testimony would be prejudicial merely because the witness is also a codefendant.” (Ibid., italics omitted.) Further, Tootick was subsequently limited to its facts by the Ninth Circuit after Zafiro. (U.S. v. Buena-Lopez (9th Cir. 1993) 987 F.2d 657, 660-661; U.S. v. Balter (3rd Cir. 1996) 91 F.3d 427, 434.)

Our own Supreme Court has also consistently held that, contrary to appellant’s argument, severance is not required merely because it is anticipated defendants will attempt to shift responsibility to each other. (Box, supra, 23 Cal.4th at pp. 1196-1197; Alvarez, supra, 14 Cal.4th at p. 190; People v. Cummings (1993) 4 Cal.4th 1233, 1287 (Cummings); People v. Hardy (1992) 2 Cal.4th 86.) In Box, as in Cummings, the defense positions were antagonistic because the circumstances of the victims deaths, and the identity of the killer, were in dispute. As here, “‘That each was involved in the incident was undisputed, however, and the prosecution had offered evidence sufficient to support verdicts convicting both defendants. . . . [T]his was not a case in which only one defendant could be guilty. . . . Here the prosecution theory was that both defendants participated in, and were guilty of, the murder[s].’ (Cummings, supra, at p. 1287.) The jury was presented with a straightforward decision regarding both defendants’ relative culpability; its verdict finding each defendant guilty as charged reveals it accepted neither defense.” (Box, supra, at p. 1197.)

More recently, our Supreme Court unanimously declined to reverse capital murder convictions where severance had been denied on claims of antagonistic defenses. (People v. Coffman and Marlow (2004) 34 Cal.4th 1 (Coffman).) In Coffman the defendants were tried jointly for the murder and other crimes. Each of the defendants contended the other was the more culpable party. As in the present case, Marlow’s girlfriend, Coffman, testified that she had not directly participated in the killing, and that her presence and limited participation was due to fear of Marlow. Her defense focused on depiction of Marlow as a vicious and violent man. (Id. at p. 42.) Finding no abuse of discretion in denying severance, the court held that “‘Although there was some evidence before the trial court that defendants would present different and possibly conflicting defenses, a joint trial under such conditions is not necessarily unfair. [Citation.] “Although several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants’ trials, none has found an abuse of discretion or reversed a conviction on this basis.“ [Citation.] . . . “Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.”’ [Citation.] When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance. [Citation.]” (Coffman, supra, at p. 41, italics in original.)

If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials, and separate trials would appear to be mandatory in almost every case. “When defendants are charged with having committed ‘common crimes involving common events and victims,’ as here, the court is presented with a ‘”classic case”’ for a joint trial.” (Coffman, supra, 34 Cal.4th at p. 40; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 998; Keenan, supra, 46 Cal.3d at pp. 499-500.)

In the case before us, there was more than sufficient independent evidence of appellant’s guilt in the testimony of eye witness German, and that of Rita Tonucci and her boyfriend Adam Chedister, who were in the room directly below the room where appellant lived, heard loud noises of banging and a woman being choked and hit, while a man, who could only have been appellant in light of the other evidence, threatened to kill her.

The charges against appellant Cooper and his codefendant Soler arose out of the same incident of torture and murder, with testimony required from the same witnesses. The independent evidence established that both defendants participated in the killing. This was not a case where the jury would necessarily be unable to assess the guilt or innocence of the defendants on an individual and independent basis, nor was it a case in which only one defendant could be guilty, since the prosecution theory was that both defendants participated in, and were guilty of, the murder. (Cummings, supra, 4 Cal.4th at p. 1287.) The jury was instructed that it was required to determine the guilt or innocence of each defendant separately, both as to guilt and as to the torture special circumstance. (CALJIC Nos. 17.00 & 8.80.1.) A jury is presumed to have understood and followed its instructions. (People v. Mills (1991) 1 Cal.App.4th 898, 918; People v. Yoder (1979) 100 Cal.App.3d 333, 338.) Here the jury was required to decide the relative culpability of each of the defendants, and the verdicts finding each defendant guilty reflects that it accepted neither defense. (Box, supra, 23 Cal.4th at pp. 1196-1197.)

We find no abuse of discretion in the refusal to grant separate trials. Further appellant has, in any event, failed to establish any reasonable probability of a more favorable outcome had severance been granted. Neither do we find any “gross unfairness“ depriving appellant of a fair trial.^[6]

B. The Jury Instructions Regarding The Torture Murder Special Circumstances Were Not Prejudicially Erroneous.

Appellant also contends the jury instruction given relating to the torture special circumstance (CALJIC No. 8.81.18) was prejudicially erroneous, because the instruction as given permitted the jury to find the special circumstance charged against him to be true even if he did not personally harbor the specific intent required for that finding. We reject this contention, finding that when the jury instructions, verdict form, and evidence are properly considered as a whole, there was no prejudicial error.

In People v. Davenport (1985) 41 Cal.3d 247, 271, our Supreme Court held that the torture murder special circumstance specified in section 190.2, subd. (a)(18)^[7] requires proof of an intent to inflict extreme and cruel pain. In accordance with this holding, the jury in the present case was instructed, using the language of then standard instruction, CALJIC No. 8.81.18, that the jury must find that “a defendant intended to inflict extreme, cruel physical pain . . . .” (Italic added.)^[8] Appellant challenges the use of the indefinite article “a” in the instruction. Since there were two defendants on trial, he contends that, under the instruction as given, he might have been found guilty of the torture murder special circumstance even though he did not personally have the required intent to inflict extreme pain, if the jury believed that his codefendant harbored such intent.

In People v. Petznick (2003) 114 Cal.App.4th 663 (Petznick), cited by appellant, the Sixth District held that it was error to give an instruction similar to former CALJIC No. 8.81.18 where the jury could have understood the phrase “a defendant” to refer to any of the four participants in a homicide in which three special circumstances, including torture, were alleged. (Petznick, supra, at pp. 685-687.) In that case, the court also found that use of the indefinite article was emphasized by the trial court both orally and in writing, that the jury demonstrated confusion on the issue of intent by questions concerning a conspiracy instruction, and that the error was prejudicial because it was not cured by argument or other instruction. (Ibid.)

In evaluating claims of instructional error, we determine how the challenged instruction would be understood by reasonable jurors, and review the instructions as a whole to assess whether the entire charge delivered a correct interpretation of the law. (People v. Cox (1991) 53 Cal.3d 618, 667.) Here, the instructions viewed as a whole differ from those in Petznick in crucial respects. In the present case, unlike Petznick, appellant was also found guilty of the independent crime of torture, which definitionally requires a finding of an intent to inflict extreme pain. Our Supreme Court has recently confirmed that the intent required for the torture murder special circumstance is the same intent required for the crime of torture. (People v. Elliot (2005) 37 Cal.4th 453, 479.) As to this required intent for the crime of torture, the jury was instructed, pursuant to the standard instruction, CALJIC No. 9.90, that the jury must find a specific intent as follows: “The person inflicting the injury did so with the specific intent to cause cruel or extreme pain and suffering . . . .” In this connection, the jury also received CALJIC instruction 3.31, on the required concurrence of the act and the requisite specific intent. That the jury understood that the same specific intent was required for verdicts on both the torture charge and the special circumstance finding is reflected in a question submitted by the jurors, asking if a true finding on the special circumstance eliminated the need for a finding on the torture charge. Having found both the crime of torture and the torture murder special circumstance to have been proven beyond a reasonable doubt, the jury necessarily found appellant to have harbored the same specific intent requisite for each. Further, the verdict form for the special circumstance in the present case specifically required the jury to find that “the murder of Michelle Breault was committed by David Cooper, and that the murder was intentional and involved the infliction of torture.”

In the present case there was no reasonable possibility that the torture murder special circumstance could apply to appellant unless he was found to have intended to inflict extreme pain on the victim. The jury found Michelle was both murdered and tortured by appellant. Appellant’s defense was not any lack of intent to inflict pain, but rather that he was simply not involved at all in either the torture or murder, contentions necessarily rejected by the jury in its verdict.

In light of these facts, we find any error in including the word “a” before the word “defendant” in the challenged instruction, CALJIC No. 8.81.18, to be harmless. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Morales (1989) 48 Cal.3d 527, 561-562 [analogous error in instructions on torture murder special circumstance found harmless beyond a reasonable doubt].) Under the evidence and instructions as a whole, there is no reasonable doubt that the jury would still have found that appellant acted with the intent to inflict extreme pain required for the torture murder special circumstance, even in the absence of the error complained of by appellant.

III. DISPOSITION

The judgment of conviction is affirmed. The request for judicial notice is granted.

BRUINIERS, J.^*

We concur.

JONES, P. J.

GEMELLO, J.

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^[1] All further statutory references are to the Penal Code unless otherwise noted.

^[2] Her post-mortem blood alcohol level was .21 per cent by volume, and was probably closer to .28 per cent at the time of death.

^[3] The pleading was captioned “MOTION IN LIMINE TO ADMIT THIRD PARTY CULPABILITY EVIDENCE AND/OR TO SEVER DEFENDANTS.”

^[4] The People appealed the grant of Soler’s new trial motion, and that appeal is also pending before this court (case No. A109295). The Attorney General has requested that we take judicial notice of documents filed in that appeal, particularly as they relate to the issue of severance, and no party has objected. We grant the request.

[5] Section 1098 states, in part, “When two or more defendants are jointly charged with any public offense . . . they must be tried jointly, unless the court order separate trials.”

^[6] For the same reasons, we find no violation of appellant’s constitutional rights as a result of the denial of the severance motion. (See Coffman, supra, 34 Cal.4th at p. 44 [rejecting constitutional claim arising out of denial of severance motion].)

^[7] This special circumstance applies if the jury finds the following facts to be true: “The murder was intentional and involved the infliction of torture.” (§ 190.2, subd. (a)(18).)

^[8] This instruction was revised in 2005, after the 2004 trial in this matter, to eliminate the use of the word “a” before the word “defendant.” The revised instruction now requires the jury to find: “2. The defendant intended to inflict extreme cruel physical pain.” (CALJIC No. 8.81.18 (2005 Rev.), italics added.)

^* Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.