PEOPLE v. FARLEY
Filed 7/2/09 (reposted same date to correct participating concurring justices)
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
Defendant and Appellant. ) Super. Ct. No. 123146
__________________________________ )
STORY CONTINUE FROM PART III.
a. Factual background
(1) Excusal of Prospective Juror L.R.
On his juror questionnaire, Prospective Juror L.R. wrote Yes, when asked whether he thought defendant was guilty of the charges. He also stated that he opposed the death penalty. On voir dire, the trial court asked L.R. whether he would be able to set aside your previous impressions and opinions and judge this matter solely on the evidence produced in this courtroom and on the arguments of the attorneys and on the body of law that the Court will instruct you? L.R. found the question very difficult to answer, and stated that I really dont know how I would behave as a juror since I have never been a juror. The court explained that he was not being asked to forget his opinions and impressions; rather, he would be called upon to set them aside and decide the case based upon what he heard in the courtroom. L.R. said he did not know whether he could do so.
The prosecutor challenged L.R. for cause under Peoplev. Bittaker (1989) 48 Cal.3d 1046, 1090 (Bittaker), because he has not affirmatively said that he can set aside his opinions and deal only with the facts in the case as they are presented in the Court. Defense counsel asserted the prosecutor lacked standing to challenge a prospective juror for cause on this basis. In response to further questioning by the court, L.R. iterated that he did not know whether he could base his decision solely on the evidence presented in court, and stated he did not know whether he would be a fair and impartial juror.
The trial court sustained the prosecutors challenge, finding that this juror cannot be fair and impartial. This juror is equivocating to the point where I have absolutely no idea what his state of mind is. He has indicated to me that he cannot base his decision in this case solely on the evidence produced in this courtroom, and that he has been so impressed and influenced by the pretrial publicity that he cannot be fair and impartial. Im making that finding. Defense counsel again opposed the challenge for the reasons . . .stated before, and also argued that the attitudes expressed by [L.R.] . . . are not necessarily indicative of his state of mind, but more indicative of a desire not to serve. I dont think that creates a situation where the Court can legitimately make a finding that he cannot be a fair and impartial juror. The court stated, I dont think he can be fair and impartial in this case. I have a duty to get fair and impartial jurors; hes not one of them.
(2) Excusal of Prospective Juror C.S.
On her juror questionnaire, when asked whether defendant was guilty of the charges, Prospective Juror C.S. wrote Yes at least some of the charges the murder charges, but I dont know if its first degree. On voir dire, she repeatedly stated she did not know whether she could set aside her impressions and opinions about the case and base her decision upon the evidence presented in court. She stated her work in policy analysis did not involve arbitrarily setting aside information, and therefore she did not know whether she could set aside what she had heard out of court.
The prosecutor challenged C.S. for cause under Bittaker, supra, 48 Cal.3d 1046, because she could not make an affirmative declaration that she could set aside the views she derived from pretrial publicity. Defense counsel objected, contending that the prosecutor lacked standing, and that C.S. in fact could set aside what she might know about the case and her conclusions about the case. My sense of listening to her and watching her is that the ambivalence that she has expressed doesnt have to do with her inability to go through the mental or intellectual exercise of setting things aside; it has to do more with the emotional level or the responsibility of making a decision involving someone elses life.
The trial court sustained the challenge. With regard to this juror, the Court cannot get a clear indication of her state of mind based on her ambivalent and ambiguous answers. I dont think that she can be fair and impartial. She said that she cannot set aside her opinions of the Defendants guilt. When I asked her if she would make every effort to set aside those opinions, she said she didnt know, she didnt know whether she could do it. Under those circumstances, her opinion is that the Defendant is guilty, and she would have a very difficult time setting aside those opinions, and so the Court will grant the challenge based upon her inability to be fair and impartial in this case.
(3) Excusal of Prospective Juror D.M.
On her juror questionnaire, Prospective Juror D.M. wrote in capital letters and underlined Yes, when asked whether she thought defendant was guilty of the charges. In response to the question, [H]ave you formed any opinions about this case, she wrote, Right now, my vote is for the [d]eath sentence. On voir dire, she stated she understood the law required that she presume defendant innocent, but she had difficulty applying the presumption of innocence to defendant. She stated that she had heard about the case in media reports, and she would find defendant guilty beyond a reasonable doubt, based upon what she had heard in the press, without any evidence being presented. D.M. also noted she had changed her mind concerning the death penalty, and would not be able to at any time be responsible for putting anybody to the death sentence. At the conclusion of the courts questioning, D.M. confirmed she would presume defendant guilty unless the contrary was proved.
The prosecutor challenged D.M. under Bittaker, noting: She has an opinion about guilt. She has opinions about penalty . . . Shes unfair to both sides . . . . Defense counsel objected that the prosecutor did not have standing to make a challenge for cause under Bittaker. The trial court sustained the challenge, stating: Counsel has the right to raise the issue of whether a juror can be fair and impartial, and this juror . . . exhibits the presumption of guilt as to the defendant. I dont see it any way that she is fair and impartial.
(4) Excusal of Prospective Juror D.R.
On her juror questionnaire, in response to the question of whether defendant was guilty of the charges, Prospective Juror D.R. wrote, Yeah probably he did it but why, what drove him to it, will he or could he be driven to it again? She also stated she could not handle knowing I was responsible for sending someone to the chair, or responsibility for the death penalty. She disclosed that her fianc was in prison for murder, and expressed the opinion that her fianc would not be there if he werent poor, undereducated and Black. On voir dire, D.R. stated she did not know whether she would follow the law as instructed by the court. She stated that her recollection of the details of the case was hazy, but if something presented in court conflicted with something she recalled from media reports, she would question what had been presented in court. Defense counsel asked, If the court were to tell you that its your responsibility as a juror to decide this case solely on the evidence presented here in court would you follow that instruction? D.R. answered, No.
The prosecutor challenged D.R. under Bittaker, supra, 48 Cal.3d 1046. Defense counsel asserted that the prosecutor did not have standing to make this challenge, and also argued that D.R.s hazy recollections would not in any way impinge on her ability to listen to the evidence. The prosecutor note[d] once again, that a fair trial is the providence of the court and everyone who knows what her opinions are like, they could impinge on the prosecution in terms of what magnificent little details shed dredge up during the course of the trial.
The trial court sustained the challenge. This juror has come in, expressed that attitude that defendant is guilty. . . . She has said that she . . . doesnt believe people tell the truth in court. She has said she cannot follow the courts instructions, follow the evidence in court. She said she would take whatever she remembers over what she sees in court. She has said she doesnt believe in the court system. She thinks that too many people make deals, and she trusts her perceptions far more than what is told to her. . . . Its abundantly clear to me that she is just totally unqualified to be a juror. I couldnt for the life of me understand why the defense persists in thinking that she above all the other people weve ever interviewed in this case, is going to be able to set aside whatever miniscule specific facts that she might have pertaining to this case and be a fair and impartial juror. She just flat out cant be. I think it would be a travesty of justice to let her remain on this case.
b. Analysis
We held in Bittaker, supra, 48 Cal.3d at page 1090, that a prospective juror who has an opinion based upon media reports, is qualified only if he affirmatively declares that he can and will act impartially. A declaration that he will try to be impartial, but doubts that he can succeed, is insufficient. (Italics omitted.)[1] Defendant describes the issue in the present case as whether the prosecutor can make a Bittaker challenge to a juror on the ground that the juror has an opinion adverse to the defendant. The prosecutors challenges and the trial courts rulings were not based, however, solely upon the ground that the prospective jurors held opinions adverse to defendant. Rather, the Bittaker challenges and the courts rulings were based upon these individuals inability to set aside what they knew or believed concerning the case and to decide the issues based upon the evidence and pursuant to the courts instructions. Although particular opinions and beliefs expressed by these prospective jurors during voir dire revealed bias against defendant with respect to the issue of guilt, their answers also established they could not declare that they would decide the issues fairly and impartially based upon the evidence presented in court. Clearly, the prosecutions case could be harmed by jurors who would decide issues based upon rumors or information received outside of court, and who would not follow the courts instructions. Therefore, the premise of defendants claim that the prosecutor lacked standing to challenge these prospective jurors namely, that the prosecutor was not aggrieved by the prospective jurors beliefs and attitudes is mistaken.
Defendants claim that the trial court erred in excusing the prospective jurors for cause also fails. On review of a trial courts ruling, if the prospective jurors statements are equivocal or conflicting, that courts determination of the persons state of mind is binding. If there is no inconsistency, the reviewing court will uphold the courts ruling if substantial evidence supports it. (Peoplev. Hillhouse (2002) 27 Cal.4th 469, 488 (Hillhouse).) As noted above, L.R. and C.S. each repeatedly responded that they could not say whether they could set aside their impressions and opinions and decide the case based solely upon the evidence; D.M. stated she would decide based upon what she heard and saw in the press, unless the contrary was proven, and D.R. stated she would not follow an instruction that she decide the case solely upon the evidence presented in court. Thus, substantial evidence supports the trial courts findings that these jurors were not fair and impartial, and to the extent any of these jurors responses were equivocal, the trial courts determination is binding.
Defendant contends the trial courts decision to excuse these jurors because they were biased against defendant interfered with defendants right to have his counsel make tactical decisions, in violation of his right to counsel, and deprived him of a number of peremptory challenges equal to those allotted the prosecution. This claim is forfeited. In the trial court, defendant never conceded that these prospective jurors were biased with respect to the issue of guilt, or asserted that they nonetheless were desirable to defendant because of their stated views in other areas. Thus, Peoplev. Partida (2005) 37 Cal.4th 428, upon which defendant relies, is inapplicable. Partida held that constitutional arguments raised for the first time on appeal are not forfeited if they do not invoke reasons different from those the trial court was asked to apply, but merely assert that the trial courts act or omission, to the extent erroneous for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution. (Id. at p. 435.) Here, the trial court never had the opportunity to consider whether defendant had the right to retain prospective jurors concededly biased with respect to the issue of guilt, but acceptable to the defense for other tactical reasons.
Moreover, as we have noted, these jurors properly were excused for reasons other than bias against defendant. Contrary to defendants assertion, a trial courts proper grant of a prosecutors challenge for cause neither confers upon the prosecution a greater number of peremptory challenges than the number to which it is entitled by statute, nor violates a defendants right to counsel. Indeed, outside the context of challenges based upon juror views concerning the death penalty, a [d]efendant has a right to jurors who are qualified and competent, not to any particular juror. (People v. Holt (1997) 15 Cal.4th 619, 656.)
4. Defense challenges for cause
Defendant contends the trial court erred in denying a defense challenge to Prospective Juror E.D. for cause, in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.[2] Following the courts refusal to excuse E.D., defendant used a peremptory challenge to excuse her.
This claim is not preserved for appeal. Defendant exercised only 12 peremptory challenges, leaving him with eight remaining when he accepted the jury. (Code Civ. Proc., 231, subd. (a).) To preserve a claim of error in the denial of a challenge for cause, the defense must exhaust its peremptory challenges . . . . (Hillhouse, supra, 27 Cal.4th at p. 487.) Defendant contends his failure to exhaust available peremptory challenges was justified by his assertion in the trial court that, although he had eight challenges remaining, the venire included more than eight prospective jurors against whom he had made unsuccessful challenges for cause. We have rejected this contention above. (See ante, p. 38, fn. 8.)
Defendant asserts that this rule that a defendant must exhaust all peremptory challenges before claiming on appeal that jurors should have been dismissed for cause forces a defendant to choose between (1) accepting a biased jury or (2) exercising all peremptory challenges and risking a jury panel that is more unfavorable to the defendant than the panel presently seated. Without citation to authority, he proposes a different, and more reasonable, method of determining whether a jury is unfair. Defendants proposed method would require the court to consider (1) whether the jurors selected appear, from their backgrounds and answers in voir dire, to be highly unfavorable from the defenses viewpoint, (2) whether the highly unfavorable jurors are balanced by the presence of jurors favorable to the defense, and (3) whether the defense, but not the prosecution, was forced to employ peremptory challenges to remove jurors whom the court should have removed for cause. Defendants test would require appellate courts to engage in a highly subjective evaluation of the relative favorability of jury panels. We decline to adopt defendants proposed test.
We also reject defendants contention that the assertedly erroneous denial of the challenge for cause to Prospective Juror E.D. is reversible error because it in effect deprived him of a peremptory challenge. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. (Ross v. Oklahoma (1988) 487 U.S. 81, 88; id. at pp. 89-91 [the court also rejected a challenge under the 14th Amend.]); see Peoplev. Richardson (2008) 43 Cal.4th 959, 987-988 [where defendant did not exhaust all his peremptory challenges, he cannot even begin to demonstrate that his right to an impartial jury was impaired]; Peoplev. Ashmus (1991) 54 Cal.3d 932, 966 [That an allegedly biased juror might have sat had he or she not been removed by peremptory challenge does not implicate the right to a fair and impartial jury in any substantial way], abrogated on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117.)
B. Guilt Phase Issues
1. Denial of suppression motions
Defendant contends the trial court violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution by erroneously denying several motions to suppress.
a. Residence and vehicle search
(1) Factual background
On February 16, at approximately 6:10 p.m., Sunnyvale Department of Public Safety Detectives Davis and Messier, joined by five San Jose Police Department officers, forced entry into defendants residence to search for victims. Davis and at least one other officer looked in rooms, under beds, and in closets, but did not open any cabinets or drawers. Davis observed in plain view a rifle standing against a dresser, a gas mask on top of a different dresser, and gun cleaning equipment on the coffee table. Due to earlier confusion concerning defendants current address, Davis briefly looked at documents on a table to determine whether there was mail addressed to defendant. Approximately five to 15 minutes elapsed during the search, after which all but one San Jose officer left. Nothing was seized. Between approximately 6:30 and 6:45 p.m., Davis informed Sunnyvale Department of Public Safety Detective Piatanesi that no victims had been found.
At approximately 8:00 p.m., Piatanesi called Davis and instructed him and Messier to search the residence for explosives and garage door openers. They searched for these items for approximately 15 to 20 minutes, this time opening cabinets and drawers. No such items were found, and nothing was seized. At approximately 8:30 p.m., defendant was taken into custody at ESL.
The next day February 17, 1988 law enforcement officers sought and obtained warrants to search defendants residence and his vehicle parked in front of the house. The affidavit in support of the warrants represented that law enforcement authorities sought evidence regarding firearms; body armor; incendiary, explosive, or detonation devices; ammunition; photographs of defendant, Laura Black, or ESL; documents to or from Black or ESL; medical documents related to defendant; documents related to defendants employment at ESL and Covalent; and evidence of ownership and occupancy of, and possessory right to, the vehicle and the residence. The affidavit stated the following: utility records reflected that service at the residence was in defendants name; defendants former roommate identified defendants vehicle in front of the house; defendant was a disgruntled former employee who had entered ESL and shot and killed seven individuals on February 16; an ESL employee identified defendant as the person who had entered the building with a shotgun; Laura Black stated defendant shot her at ESL on February 16, 1988, and had been harassing her for four years; on February 2, 1988, Black had obtained a temporary restraining order against defendant; an officer at the scene of the shooting had jumped inside the open motor home for cover and there observed a rifle with a scope, a large pile of empty ammunition boxes, and four gallons of inflammable liquid; Home Away From Home Rentals confirmed defendant had rented the motor home; and during the warrantless search of defendants residence on February 16, a gas mask, a rifle, and gun cleaning equipment were observed in plain view.
Defendant moved to suppress all evidence seized from his house and his vehicle. The trial court denied the motion.
(2) Analysis
Defendant contends the two warrantless entries on February 16 were invalid, the search warrants were tainted by evidence obtained illegally in the warrantless searches, and the warrants lacked probable cause and sufficient particularity. We need not decide whether the warrantless searches were justified because (1) even assuming that the first warrantless search was invalid and excising from the search warrant affidavit the evidence observed during the first search, the affidavit nonetheless provided probable cause to support issuance of the warrants, and (2) the second warrantless search disclosed no additional evidence.
Probable cause to search exists when, based upon the totality of the circumstances described in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Illinois v. Gates (1983) 462 U.S. 213, 238; Peoplev. Kraft (2000) 23 Cal.4th 978, 1040-1041 (Kraft); 1525.) Excising from the search warrant affidavit the evidence observed during the first warrantless search (the gas mask, rifle, and gun cleaning equipment), the affidavit alleged that defendant was a disgruntled former employee who on February 16 had entered ESL and shot and killed seven individuals, had harassed ESL employee Laura Black for four years and then shot her at ESL after the recent issuance of a temporary restraining order, and possessed a rifle with a scope, numerous empty boxes of ammunition, and inflammable liquid in the motor home he had rented and driven to ESL the day of the shooting. (Peoplev. Weiss (1999) 20 Cal.4th 1073, 1081.) These circumstances demonstrated a fair probability that evidence relevant to defendants commission of the crimes existed in defendants house and vehicle. (Illinois v. Gates, supra, 462 U.S. at p. 238; see People v. Gonzalez (1990) 51 Cal.3d 1179, 1206 (Gonzalez) [the court acknowledged case law recogniz[ing] that from the nature of the crimes and the items sought, a magistrate can reasonably conclude that a suspects residence is a logical place to look for specific incriminating items ].)
We also reject defendants contention that the categories of the search warrants lacked sufficient particularity and allowed the searching officers almost unfettered discretion. A search warrant must particularly describ[e] the place to be searched. (U.S. Const., 4th Amend.; Cal. Const., art. I, 13; see also Pen. Code, 1525.) The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. (Maryland v. Garrison (1987) 480 U.S. 79, 84.) (People v. Amador (2000) 24 Cal.4th 387, 392.) Whether the description in a warrant of property to be seized is sufficiently definite is a question of law subject to independent review by the appellate court. (Kraft, supra, 23 Cal.4th at p. 1041.)
Here, the warrants sought evidence of defendants possession and ownership of weapons and explosives, photographs and documents related to Black and ESL, documents concerning his employment at Covalent, proof of ownership and of a possessory right to the residence and the vehicle, and his medical and psychiatric records. Such description was sufficiently definite to allow the officer conducting the search to identify the property to be seized, and to prevent a wide-ranging exploratory search.
b. Storage locker search
On February 25, 1988, Detective Piatanesi obtained a search warrant for the storage locker rented in Mei Changs name the weekend before the commission of the crimes.[3] The supporting affidavit sets forth the same information as was provided in support of the warrant to search defendants residence and vehicle. In addition, the affidavit noted that Mei Chang had rented the storage locker on February 13, three days before the shootings, at defendants request because he had credit problems and needed the space to store computers, books, and tools. The affidavit further observed that Chang was with defendant when the locker was rented, but not when he moved property into it.
In the course of searching the storage locker, Piatanesi observed an IBM computer among the lockers contents. On March 18, 1988, he obtained a second warrant to search the locker, authorizing seizure of the computer observed during the first search of the locker, including all software and hardware.
Defendant contends the first warrant to search the storage locker lacked probable cause and sufficient particularity, and because of these defects, the second warrant authorizing seizure of the computer was based upon tainted evidence. As to the first search warrant, in light of the circumstance that any items stored in the locker were placed there sometime during the three days preceding the shootings, a magistrate reasonably could conclude there was probable cause to believe incriminating evidence would be found in the storage locker. (See Gonzalez, supra, 51 Cal.3d at p. 1206.) Because the search authorized by the warrant was virtually identical to the search authorized with respect to defendants residence and vehicle, the warrant was sufficiently particular in describing the objects of the search, for the same reasons as stated above. Moreover, defendant has not identified any item seized that was admitted at trial. Accordingly, even if we were to assume some provision of the warrant was overbroad, defendant has not shown that any evidence should have been suppressed. (Peoplev. Carpenter (1999) 21 Cal.4th 1016, 1043-1044 (Carpenter).)
Because we conclude the first search of the storage locker was proper, we reject defendants contention that the second search warrant was tainted by the first assertedly unconstitutional search of the storage locker. His additional contention that documents from the telephone company, Pacific Bell, which were not identified in the warrant and were unrelated to the computer, improperly were seized in the second search also fails. The documents from Pacific Bell were seized pursuant to a search warrant directed to Pacific Bell, and the return to that separate warrant apparently was attached inadvertently to the return to the second storage locker search warrant. Piatanesi testified that diskettes,[4]not documents from Pacific Bell, were seized in connection with the second search of the locker.
c. Seizure of personnel records
On February 17, 1988, warrants were issued to search for documents and correspondence at ESL and Covalent relating to defendant, and to search his Covalent work area. The warrants were based upon the same affidavit that led to the issuance of warrants to search defendants residence and vehicle. In addition to the information noted above, the affidavit stated that complaints regarding harassment are kept in personnel files, and based upon Detective Piatanesis training and experience, individuals keep personal effects in their work areas. (See ante, pp. 56-57.)
TO BE CONTINUED AS PART V.
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[1]Our decision in Bittaker interpreted former section 1076, which provided in relevant part: No person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to the jury, founded upon public rumor, or statements in public journals, circulars, or other literature, or common notoriety if upon his or her declaration, under oath or otherwise, it appears to the court that he or she can and will, notwithstanding that opinion, act impartially and fairly upon the matters to be submitted to him or her. (Quoted in Bittaker, supra, 48 Cal.3d at pp. 1088-1089.)
By the time of trial in the present case, section 1076 had been repealed, and juror challenges for cause were governed by Code of Civil Procedure sections 225 through 230. The bases for disqualifying a prospective juror for cause under these provisions are [g]eneral disqualification, [i]mplied bias, and [a]ctual bias. (Code Civ. Proc., 225, subd. (b)(1).) Among the grounds for general disqualification is [t]he existence of any incapacity which satisfies the court that the challenged person is incapable of performing the duties of a juror in the particular action without prejudice to the substantial rights of the challenging party. (Id., 228, subd. (b).) Among the grounds for finding implied bias is [h]aving an unqualified opinion or belief as to the merits of the action founded upon knowledge of its material facts or of some of them. (Id., 229, subd. (e).)
[2] Defendant asserts the court erred in denying defense challenges for cause, noting that the trial court denied 20 defense challenges, but he addresses only one denial of a defense challenge for cause, for the asserted reason that the erroneous denial of even one challenge for cause was reversible error because it in effect deprived him of a peremptory challenge. Defendant states that, [b]ecause the issue . . . is one of principle rather than numbers, [defendant] will discuss in detail only one of the jurors in question, [Prospective Juror E.D.] We therefore limit our analysis to this prospective juror.
[3] The storage locker warrant identified the same evidence as that itemized in the warrants authorizing the search of defendants residence and vehicle defendants firearms, ammunition, explosives, documents regarding and photographs of Black and ESL, employment at ESL and Covalent, and medical records except the evidence respecting ownership and control of the storage locker apart from the residence and the vehicle.
[4] The computer no longer was in the storage locker at the time of the second search.
