PEOPLE v. NELSON









Filed 1/20/11





IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Respondent, )
) S085193
v. )
)
BERNARD ALBERT NELSON, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. BA162295
__________________________________ )

STORY CONTINUE FROM PART I….

B. Penalty Phase Issues

1. Voir Dire Regarding Penalty Deliberations

During voir dire the court examined the willingness of potential jurors to impose the death penalty if the aggravating circumstances were so substantial in comparison with the mitigating circumstances that they concluded death was warranted. However, in querying individual jurors, the court used a shorthand expression: “the bad outweighs the good.” For example, the court asked: “If the bad outweighs the good, can you see yourself actually voting for death‌ Prospective Juror No. 11: Yes. The Court: If the bad outweighs the good, can you see yourself nevertheless voting for life‌ Prospective Juror No. 11: Yes.” The Defense never objected to the shorthand usage, or asked for further elaboration on the point during jury selection.
Defendant now contends these colloquies amounted to “de facto instructions” that were prejudicially defective in two respects: (1) The word “good” misleadingly suggested that only positive behavior on the part of the defendant might be considered as a mitigating circumstance; and (2) the shorthand expression also failed to inform jurors that in order to return a verdict of death, each of them would have to be persuaded that the aggravating circumstances were so substantial in comparison with the mitigating factors that death was warranted, instead of life without possibility of parole.
Neither claim is meritorious. The court covered both of these points when it initially explained the law to the jury before conducting voir dire. “At the penalty phase we deal with different kinds of evidence, mitigation and aggravation, good things, to make it simple, versus the bad things.” The court clarified that “good” was not limited to “good deeds,” but rather included “background” factors, such as a “tough childhood” or “brain damage,” that might “explain” the defendant’s conduct and help the jury “decide what the appropriate penalty is.” It repeatedly emphasized that rendering a death verdict would be appropriate only if the jurors concluded that the aggravating factors “substantially” outweighed the mitigating factors.
Both points were covered again in formal instructions before the penalty deliberations. The jury was specifically told: “A mitigating circumstance is any fact, condition or event which does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty.” “To return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole.”
We have repeatedly upheld the pattern jury instruction^[1] used by the court in its formal instructions. (See, e.g., People v. Bramit (2009) 46 Cal.4th 1221, 1249 (Bramit).) The jury was properly instructed, and the court explained its shorthand usage. It is not required that every utterance by the court be so formulaic as to constantly repeat cumbersome phrases or unduly consume time. A party concerned about lack of clarity may certainly interpose an objection. None was made here. Finally, there is no indication that the jury was actually misled.

2. Corroboration of Aggravating Evidence

Section 190.3, factor (b) provides that in determining whether to impose the death penalty or life without possibility of parole, the trier of fact may take into consideration the “presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.”
The evidence of defendant’s prior violent acts included his involvement with Frank Lewis in the attempted murder of Lisa La Pierre^[2] and with Leonard Washington in two bank robberies.^[3]
Defendant contends it was error to admit Lewis’s and Washington’s testimony because it was not corroborated.
Section 1111 prohibits a defendant from being convicted on the uncorroborated testimony of an accomplice. The section provides that accomplice testimony must be corroborated by “such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”
The accomplice corroboration requirement applies to the penalty phase as well. (People v. Hernandez (2003) 30 Cal.4th 835, 873-874; People v. McDermott (2002) 28 Cal.4th 946, 1000 (McDermott); People v. Mincey (1992) 2 Cal.4th 408, 461.)
The corroborating evidence may be slight and entitled to little consideration when standing alone. However, it must tend to implicate the defendant by relating to an act that is an element of the crime. It need not by itself establish every element, but must, without aid from the accomplice’s testimony, tend to connect the defendant with the offense. The trier of fact’s determination on the issue of corroboration is binding on review unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime. (People v. Abilez (2007) 41 Cal.4th 472, 505; McDermott, supra, 28 Cal.4th at p. 986.)
Lewis’s testimony was adequately corroborated by other evidence connecting defendant with the attempted murder of Lisa La Pierre. One of the expended cartridge casings found at the La Pierre crime scene was fired by the .380-caliber pistol defendant dropped at Glasgow Place. Detective Cade related statements made by Glenn Johnson. Johnson said that defendant admitted he dropped the pistol and ran from the police. Defendant had earlier given him the same pistol and warned him to be careful with it because “there was some murders on the gun.” Referring to this evidence, defense counsel admitted in argument that Lewis’s testimony was corroborated. “[Y]ou are left with some evidence, yeah, the gun. During the guilt phase, there is that evidence that came in that the gun that shot Miss La Pierre was the same .380 semiautomatic that was used in the other crimes. So there is some corroboration.”
The Attorney General contends that Frank Lewis’s testimony regarding defendant’s involvement in the attempted murder of Lisa La Pierre served to corroborate Leonard Washington’s testimony regarding defendant’s involvement in the bank robberies, because defendant used the same “modus operandi” in all three instances, using teenagers to commit the crimes while he waited in the car.
We need not resolve this question. There is no reasonable possibility that defendant would have received a more favorable verdict had Washington not testified in the penalty phase.^[4] The jury found beyond a reasonable doubt that defendant committed one murder and four attempted murders. It is extremely unlikely that they had been ambivalent about the death penalty but were won over to that decision by relying on two robberies in which no one was injured.

3. Victim Impact Evidence

Defendant claims the trial court erred in overruling his objections to: (a) childhood photographs of Richard Dunbar, (b) a written statement by Mr. Dunbar’s friends, and (c) a photograph of Lisa La Pierre before the shooting.

a. The childhood photographs of Richard Dunbar

As noted, six members of Mr. Dunbar’s family testified about his murder’s enduring impact. (See ante, pt. I.B.1.a.) In the course of their testimony, the jury was shown a poster board with five photographs of Mr. Dunbar as a child and one of him as an adult.^[5]
“ ‘Unless it invites a purely irrational response from the jury, the devastating effect of a capital crime on loved ones and the community is relevant and admissible as a circumstance of the crime under section 190.3, factor (a).’ (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057.) ‘The federal Constitution bars victim impact evidence only if it is “so unduly prejudicial” as to render the trial “fundamentally unfair.” ’ (Id. at p. 1056, quoting Payne v. Tennessee (1991) 501 U.S. 808, 825.)” (Bramit, supra, 46 Cal.4th at p. 1240.) ^[6]
The childhood photographs of Mr. Dunbar clearly satisfied this standard. We have cautioned trial courts about admitting victim impact videotape evidence, particularly if the presentation is lengthy or underscored with stirring music. (See, e.g. People v. Prince (2007) 40 Cal.4th 1179, 1289 (Prince).)^[7] However, the few childhood photographs displayed here do not raise those concerns. As the trial judge observed in overruling defendant’s objection to them, “I don’t see those [photographs] as being anything that particularly pulls at somebody’s heart strings.” Instead, they simply “ ‘humanized’ the victim, ‘as victim impact evidence is designed to do.’ ” (Bramit, supra, 46 Cal.4th at p. 1241, quoting People v. Kelly (2007) 42 Cal.4th 763, 797.)

b. The statement by Mr. Dunbar’s friends

A second poster board was an enlarged photograph of Mr. Dunbar as an adult. Superimposed on it was a statement written by two of his friends. According to his sister Christina, the statement was written as an eulogy for Mr. Dunbar’s memorial service.^[8]
At trial, defendant objected to the statement on the ground that its authors were “not going to be present” in court. The trial court overruled the objection, observing, “I’m not sure that’s a valid objection.” Defendant now contends the trial court erred because the statement was inadmissible hearsay. Alternatively, defendant contends the statement should have been excluded as unduly emotional. This is not a ground he assigned below.^[9]
Without explaining why, the Attorney General says he disagrees that the statement was inadmissible hearsay. He also claims defendant failed to perfect a hearsay objection below by clearly stating it.
Any error in admitting the statement was clearly harmless beyond a reasonable doubt. Six members of Mr. Dunbar’s family testified to the lasting impact of his murder on them. They were close to him, proud of his achievements, and felt his loss keenly. The prosecutor did not refer to the statement of his friends in her penalty phase argument.

c. The photograph of Lisa La Pierre

Defendant contends that the trial court erred in admitting a photograph of Lisa La Pierre as she appeared before the shooting paralyzed her. The photograph of Ms. La Pierre was not technically victim impact evidence, but rather aggravating evidence of defendant’s other violent crimes. “[T]he circumstances of the uncharged violent criminal conduct, including its direct impact on the victim or victims of that conduct, are admissible under factor (b). (People v. Holloway (2004) 33 Cal.4th 96, 143; People v. Mendoza (2000) 24 Cal.4th 130, 185-186.)” (People v. Demetrulias (2006) 39 Cal.4th 1, 39.) The admission of such evidence “lies within the court’s discretion. The jury is entitled to consider other criminal activity involving force or violence. (Pen. Code, § 190.3, factor (b).) As the trial court found, allowing the jury to know what the other murder victims looked like in life legitimately aided it in determining the appropriate punishment.” (People v. Carpenter (1997) 15 Cal.4th 312, 401.) The trial court here properly exercised its discretion, permitting the prosecution to introduce only one of the “myriad of photographs” it had of Ms. La Pierre before the shooting.

4. Aggravating Evidence: Asserted Boyd Error

Defendant contends the trial court erred in admitting his rap lyrics as aggravating evidence. Defendant’s authorship of the lyrics was undisputed. They were found in a notebook in his Jeep and bore his name and a copyright mark. ^[10] Defendant contends the lyrics, which speak in the first person about shooting police officers, should have been excluded as nonstatutory aggravating evidence. The Attorney General responds: (1) Defendant failed to object on this ground below; (2) the lyrics were properly admitted as aggravating evidence bearing on “the circumstances of the crime,” his attempted murders of the police officers, under section 190.3, factor (a); and (3) any error in their admission was harmless.
Evidence of a defendant’s background, character, or conduct that is not probative of any specific sentencing factor is irrelevant to the prosecution’s case in aggravation and therefore inadmissible. (People v. Hawthorne (2009) 46 Cal.4th 67, 92; People v. Carter, supra, 30 Cal.4th 1166, 1202; People v. Boyd (1985) 38 Cal.3d 762, 773-774.)
“Aggravating evidence must pertain to the circumstances of the capital offense (§ 190.3, factor (a)), other violent criminal conduct by the defendant (id., factor (b)) or prior felony convictions (id., factor (c)); only these three factors, and the experiential or moral implications of the defendant’s age (id., factor (i)), are properly considered in aggravation of penalty. [Citations.] Evidence offered as rebuttal to defense evidence in mitigation, however, . . . need not relate to any specific aggravating factor. [Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 108-109.)
The prosecution had sought to introduce the lyrics in the guilt phase. However, the court excluded them on the ground their probative value would be substantially outweighed by their prejudicial effect. (Evid. Code, § 352.)
In the penalty phase, the prosecution again moved to introduce the lyrics in its case-in-chief. The court informed counsel it was inclined to admit them. Defense counsel objected, saying “it’s nothing but lyrics basically. And it could be interpreted very prejudicially . . . .” He added: “Most of those things were written years ago and doesn’t necessarily mean any of this was planned.” The objection was overruled.
Defendant now claims the lyrics “should have been excluded in that they were not relevant to any of the factors in aggravation listed in Penal Code section 190.3.” The Attorney General contends that defendant failed to object on this ground in the trial court. Defendant responds: “[T]rial counsel made a clumsily phrased objection. However, the nature of the objection was such that both the court and prosecutor were adequately noticed of its legal grounds.”
“Under California law, error in admitting evidence may not be the basis for reversing a judgment or setting aside a verdict unless ‘an objection to or a motion to exclude or to strike the evidence . . . was timely made and so stated as to make clear the specific ground of the objection or motion . . . .’ (Evid. Code, § 353, subd. (a), italics added.) ‘In accordance with this statute, we have consistently held that the “defendant’s failure to make a timely and specific objection” on the ground asserted on appeal makes that ground not cognizable. [Citations.]’ (People v. Seijas (2005) 36 Cal.4th 291, 302.) Although no ‘particular form of objection’ is required, the objection must ‘fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.’ ([People v.] Partida [2005] 37 Cal.4th [428,] 435.)” (People v. Zamudio (2008) 43 Cal.4th 327, 354.)
Here the court did make “ ‘a fully informed ruling’ ” on the ground defendant now asserts, that the lyrics “were not relevant to any of the factors in aggravation listed in Penal Code section 190.3.” In the course of overruling defendant’s objection, it explained: “It seems to me it’s relevant to the circumstances of the crime. It goes to the state of mind, his attitude towards the police, his attitude toward crime, attitude toward carrying weapons. Even if it was written in 1991, they were updated, and I think he was carrying them currently. [¶] Weighing them under 352, I think that the probative value . . . outweigh[s] the prejudice.” Accordingly, we will review the ruling.
Whether a defendant murdered without remorse “bears significantly on the moral decision whether a greater punishment, rather than a lesser, should be imposed. [Citation.]” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1232; accord, People v. Ramos (1997) 15 Cal.4th 1133, 1164.) “Evidence that reflects directly on the defendant’s state of mind contemporaneous with the capital murder is relevant under section 190.3, factor (a), as bearing on the circumstances of the crime. [Citations.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1154.) It bears repeating that it is evidence of the defendant’s state of mind at the time of the murder that is admissible under factor (a). We have held that postcrime evidence of remorselessness, for example, does not fit within any statutory sentencing factor, and thus should not be urged as aggravating. (People v. Pollock (2004) 32 Cal.4th 1153, 1184; Gonzalez, supra, 51 Cal.3d at p. 1232.)
The rap lyrics certainly express a remorseless attitude toward murder. Nevertheless, defendant contends they were inadmissible evidence of his state of mind for two reasons. First, lyrics are an art form. He urges that views expressed in a work of art are not necessarily those of the artist. Second, even if the lyrics expressed his views at the time he wrote them, they may have changed by the time of the murder. The existence of benign explanations does not stand as a bar to admissibility. In ruling on defendant’s motion, the court would ordinarily consider alternative explanations in conducting an Evidence Code section 352 analysis. However, we need not resolve the admissibility question because there is no reasonable possibility that any error in admitting the lyrics was prejudicial. The jury found beyond a reasonable doubt that defendant had committed a murder and four attempted murders. The crimes were particularly distressing, with one victim shot in the eye, another permanently paralyzed, and two policemen attacked in the line of duty. The jury also learned that defendant repeatedly used juveniles as his agents to commit violent offenses. In light of this evidence, it strains credulity to suggest that the jury was improperly influenced by learning of defendant’s foray into music publishing. Moreover, the prosecutor did not refer to the lyrics in her penalty phase argument.

5. Cumulative Error

Defendant contends the cumulative effect of guilt and penalty phase errors requires reversal of his death sentence. We disagree. To the extent we concluded or assumed that the trial court erred, no single error warranted reversal, and we are not persuaded that reversal is warranted when those same nonprejudicial errors are considered collectively.

6. Challenges to the Death Penalty Law and Instructions

Defendant raises a series of challenges to California’s death penalty law and the standard CALJIC sentencing instructions. We have rejected each of these challenges in the past and now reaffirm our holdings.
California’s grant of discretion to prosecutors to decide in which cases to seek the death penalty is constitutional. (People v. Gamache (2010) 48 Cal.4th 347, 406 (Gamache); People v. Burney (2009) 47 Cal.4th 203, 268 (Burney); People v. Brown (2004) 33 Cal.4th 382, 403.)
Section 190.3, factor (a), which permits the jury to consider the circumstances of the crime in deciding whether to impose the death penalty, does not license the arbitrary and capricious imposition of the death penalty. (Tuilaepa v. California (1994) 512 U.S. 967, 975-976; People v. D’Arcy (2010) 48 Cal.4th 257, 308 (D’Arcy); People v. Cruz (2008) 44 Cal.4th 636, 680 (Cruz).)
California homicide law and the special circumstances listed in section 190.2 adequately narrow the class of murderers eligible for the death penalty. (Gamache, supra, 48 Cal.4th at p. 406; People v. Barnwell (2007) 41 Cal.4th 1038, 1058 (Barnwell).) Specifically, the felony-murder special circumstance (§ 190.2, subd. (a)(17)) is not overbroad and adequately narrows the pool of those eligible for death. (Gamache, supra, 48 Cal.4th at p. 406; People v. Kraft (2000) 23 Cal.4th 978, 1078.)
Nothing in the federal Constitution requires the penalty phase jury to make written findings of the factors it finds in aggravation and mitigation; agree unanimously that a particular aggravating circumstance exists; find all aggravating factors proved beyond a reasonable doubt or by a preponderance of the evidence; find that aggravation outweighs mitigation beyond a reasonable doubt; or conclude beyond a reasonable doubt that death is the appropriate penalty. (Burney, supra, 47 Cal.4th at pp. 267-268; People v. Williams (2008) 43 Cal.4th 584. 648-649.) This conclusion is not altered by the United States Supreme Court’s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Ring v. Arizona (2002) 536 U.S. 584, and Blakely v. Washington (2004) 542 U.S. 296. (D’Arcy, supra, 48 Cal.4th at p. 308; People v. Carrington (2009) 47 Cal.4th 145, 200; People v. Mendoza (2007) 42 Cal.4th 686, 707.)
CALJIC Nos. 8.84.1 and 8.85, in directing the jury during the penalty phase to determine the facts from the evidence received during the entire trial, does not unconstitutionally allow the consideration of nonstatutory aggravating circumstances in the determination of penalty. (People v. Ramirez (2006) 39 Cal.4th 398, 474; People v. Harris (2005) 37 Cal.4th 310, 359; People v. Champion (1995) 9 Cal.4th 879, 946.)
The trial court need not label the statutory sentencing factors as either aggravating or mitigating, nor instruct the jury that the absence of mitigating factors does not constitute aggravation. (D’Arcy, supra, 48 Cal.4th at p. 308; People v. Watson (2008) 43 Cal.4th 652, 704; People v. Cunningham (2001) 25 Cal.4th 926, 1041.)
The use in the sentencing factors of the phrases “extreme mental or emotional disturbance” (§ 190.3, factor (d), italics added) and “extreme duress or . . . substantial domination of another” (id., factor (g), italics added) does not inhibit the consideration of mitigating evidence or make the factors impermissibly vague. (Bramit, supra, 46 Cal.4th at p. 1249; People v. Bunyard (2009) 45 Cal.4th 836, 861 (Bunyard); People v. Lewis (2008) 43 Cal.4th 415, 532.)
The jury may properly consider unadjudicated criminal activity at the penalty phase and need not make a unanimous finding on each instance of such activity. (D’Arcy, supra, 48 Cal.4th at p. 308; People v. Elliot (2005) 37 Cal.4th 453, 488; People v. Morrison (2004) 34 Cal.4th 698, 729.) Apprendi and its progeny do not compel a different result. (D’Arcy at p. 308; Bunyard, supra, 45 Cal.4th at p. 861; People v. Ward (2005) 36 Cal.4th 186, 221-222.)
Review for intercase proportionality is not constitutionally compelled. (Pulley v. Harris (1984) 465 U.S. 37, 42, 50-51; Bramit, supra, 46 Cal.4th at p. 1250; People v. Butler (2009) 46 Cal.4th 847, 885 (Butler).)
Because capital defendants are not similarly situated to noncapital defendants, California’s death penalty law does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants but not to capital defendants. (People v. Jennings (2010) 50 Cal.4th 616, 690; Cruz, supra, 44 Cal.4th at p. 681; People v. Johnson (1992) 3 Cal.4th 1183, 1242-1243.)
The death penalty as applied in this state is not rendered unconstitutional through operation of international law and treaties. (People v. Mills (2010) 48 Cal.4th 158, 215; Butler, supra, 46 Cal.4th at p. 885; Barnwell, supra, 41 Cal.4th at p. 1059.)

7. Restitution Fine

Pursuant to section 1202.4, the trial court imposed a $10,000 victim restitution fine. Defendant contends the court erred by failing to take into consideration his ability to pay. We find no error.
First, defendant forfeited this claim by failing to object at his sentencing hearing. (Gamache, supra, 48 Cal.4th at p. 409.) Unlike in People v. Vieira (2005) 35 Cal.4th 264, defendant’s claim does not depend on any subsequent statutory amendments. At the time of his 1995 crime and his 2000 sentencing, the law called for the court to consider a defendant’s ability to pay in setting a restitution fine, and defendant could have objected at the time if he believed inadequate consideration was being given to this factor.^[11] (Gamache, at p. 409.)
Second, defendant’s claim fails on the merits. “He points to no evidence in the record supporting his inability to pay, beyond the bare fact of his impending incarceration. Nor does he identify anything in the record indicating the trial court breached its duty to consider his ability to pay; as the trial court was not obligated to make express findings concerning his ability to pay, the absence of any findings does not demonstrate it failed to consider this factor. Thus, we cannot say on this record that the trial court abused its discretion.” (Gamache, supra, 48 Cal.4th at p. 409.)

III. DISPOSITION

The judgment is affirmed.
CORRIGAN, J.

WE CONCUR:

KENNARD, Acting C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
GEORGE, J. *









___________________________

* Retired Chief Justice of California, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Nelson
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S085193
Date Filed: January 20, 2011
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Jacqueline A. Connor

__________________________________________________________________________________

Attorneys:

Glen Nierny, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon, John R. Gorey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.














Counsel who argued in Supreme Court (not intended for publication with opinion):

Glen Nierny
P.O. Box 764
Bridgton, ME 04009
(207) 647-2600

Michael J. Wise
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2356




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