PEOPLE v. MOORE







Filed 1/31/11







IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Respondent, )
) S081479
v. )
)
RONALD WAYNE MOORE, )
) Monterey County
Defendant and Appellant. ) Super. Ct. No. SS980646
__________________________________ )

STORY CONTINUE FROM PART II….

The Attorney General first argues that any error in giving these instructions was invited because defense counsel included both on his list of requested instructions. However, “[t]he invited error doctrine will not preclude appellate review if the record fails to show counsel had a tactical reason for requesting or acquiescing in the instruction.” (People v. Moon (2005) 37 Cal.4th 1, 28.) Here, no such tactical reason appears in the record. CALJIC Nos. 8.71 and 8.72 were the commonly used pattern instructions on application of the reasonable doubt principle to lesser included homicide offenses, a topic on which counsel obviously and appropriately wanted the jury to be instructed. Trial counsel’s failure to detect in the standard instructions the flaw appellate counsel perceives and to request a modification does not demonstrate a tactical intent to induce the error now claimed.
On the merits, the Attorney General correctly notes that in People v. Frye (1998) 18 Cal.4th 894, 963-964, we rejected a similar challenge to earlier versions of CALJIC Nos. 8.71 and 8.72. These earlier versions, however, did not contain the problematic language of which defendant now complains. (See fn. 7, ante.) We have not previously decided whether the particular instructions at issue here are reasonably likely to be understood and applied in an unconstitutional manner. (See Frye, at p. 957.)
In two decisions, the Third District Court of Appeal has rejected challenges, made on the same ground offered here, to the 1996 version of CALJIC Nos. 8.71 and 8.72, concluding in both cases that the challenged instructions, read together with the other instructions given, would not likely have led jurors to believe they were required to vote for first degree murder if any of the other jurors found that charge proven. (People v. Gunder (2007) 151 Cal.App.4th 412, 424-425; People v. Pescador (2004) 119 Cal.App.4th 252, 255-258.)
In Gunder, the court relied on the trial court’s having instructed with CALJIC No. 17.40, a pattern instruction on the duty of individual jurors to decide the case for themselves, which tells the jurors, in part, that they are not to “decide any question in a particular way because a majority of the jurors, or any of them, favor that decision.” In light of that instruction, the Gunder court concluded, “a reasonable juror will view the statement about unanimity [in CALJIC No. 8.71] in its proper context of the procedure for returning verdicts, as indeed elsewhere the jurors are told they cannot return any verdict absent unanimity and cannot return the lesser verdict of second degree murder until the jury unanimously agrees that the defendant is not guilty of first degree murder.” (People v. Gunder, supra, 151 Cal.App.4th at p. 425.) CALJIC No. 17.40 was also given in the present case, as was CALJIC No. 8.75, the instruction on returning verdicts to which the Gunder court referred, in which the jury is told not to return a verdict for second degree murder unless the jurors unanimously acquit of first degree murder, and not to return a verdict of manslaughter unless they unanimously acquit of murder.
In Pescador, the court relied, in addition to CALJIC No. 17.40, on two other instructions given: CALJIC No. 17.11, which told jurors, without any requirement of unanimity, that if they had reasonable doubts as to the degree of murder proven, they had to find the defendant guilty only of second degree murder (People v. Pescador, supra, 119 Cal.App.4th at p. 257); and CALJIC No. 8.50, which, as given, stated in part: “ ‘To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder . . .’ ” (Pescador, at p. 258). Neither CALJIC No. 17.11 nor CALJIC No. 8.50 was given in the present case, though the jury was, of course, instructed on the requirement of proof beyond a reasonable doubt (CALJIC No. 2.90) and its application to the mens rea elements of the charged crimes (CALJIC No. 4.21).
We conclude the better practice is not to use the 1996 revised versions of CALJIC Nos. 8.71 and 8.72, as the instructions carry at least some potential for confusing jurors about the role of their individual judgments in deciding between first and second degree murder, and between murder and manslaughter. The references to unanimity in these instructions were presumably added to convey the principle that the jury as a whole may not return a verdict for a lesser included offense unless it first reaches an acquittal on the charged greater offense. (See People v. Kurtzman (1988) 46 Cal.3d 322, 329-333.) But inserting this language into CALJIC Nos. 8.71 and 8.72, which address the role of reasonable doubt in choosing between greater and lesser homicide offenses, was unnecessary, as CALJIC No. 8.75 fully explains that the jury must unanimously agree to not guilty verdicts on the greater homicide offenses before the jury as a whole may return verdicts on the lesser.^[1]
We need not decide here, however, whether Gunder was correct that the possibility of confusion is adequately dispelled by instruction with CALJIC No. 17.40 on the jurors’ duty of individual decision. Any error in giving these instructions was harmless beyond a reasonable doubt (Chapman v. California, supra, 386 U.S. at p. 24) in light of the jury’s true findings on the burglary-murder and robbery-murder special circumstances. Having found defendant killed Nicole Carnahan in the commission of robbery and burglary, the jury must also have found him guilty of first degree murder on those same felony-murder theories. The lesser offenses of second degree murder and manslaughter were not legally available verdicts if defendant killed Nicole in the commission of burglary and robbery, as the jury unanimously determined he had. (See § 189; People v. Bramit (2009) 46 Cal.4th 1221, 1238; People v. Dillon (1983) 34 Cal.3d 441, 472.) Any confusion generated by the challenged instructions, therefore, could not have affected the jury’s verdicts.^[2]

VI. Instruction on First Degree Felony Murder

Because the information charged first degree murder in terms of malice aforethought and premeditation, defendant contends the trial court deprived him of due process by instructing the jury on first degree murder predicated on killing in the commission of robbery and burglary. He further contends the court erred in failing to instruct the jury on the need for unanimity on the type of first degree murder committed.
For reasons given in prior decisions, we disagree. “A pleading charging murder in these terms adequately notifies a defendant of the possibility of conviction of first degree murder on a felony-murder theory. (People v. Gallego (1990) 52 Cal.3d 115, 188 [276 Cal.Rptr. 679, 802 P.2d 169].) Defendant mistakenly relies on a statement in the plurality opinion in People v. Dillon[, supra,] 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697] that the ‘two kinds of murder’—that is, felony murder and murder with express or implied malice—‘are not the “same” crimes.’ (Id. at p. 476, fn. 23 (plur. opn. of Mosk, J.).) As we have since explained, however, this means only that the two forms of murder have different elements even though there is but a single statutory offense of murder. (People v. Carpenter (1997) 15 Cal.4th 312, 394-395 [63 Cal.Rptr.2d 1, 935 P.2d 708]; People v. Pride (1992) 3 Cal.4th 195, 249 [10 Cal.Rptr.2d 636, 833 P.2d 643].) ‘Felony murder and premeditated murder are not distinct crimes . . . .’ (People v. Davis (1995) 10 Cal.4th 463, 514 [41 Cal.Rptr.2d 826, 896 P.2d 119].)” (People v. Kipp, supra, 26 Cal.4th at p. 1131; accord, People v. Hughes, supra, 27 Cal.4th at pp. 369-370.) Moreover, in the present case the information charged defendant, in addition to first degree murder, with the crimes of burglary and robbery, and alleged as special circumstances that defendant murdered Nicole Carnahan during the commission of burglary and robbery. These allegations gave defendant more than adequate notice the prosecution would pursue a felony-murder theory of first degree murder. (People v. Morgan (2007) 42 Cal.4th 593, 616-617; Kipp, at p. 1131.)
As to the asserted requirement for unanimity, it has long been settled “that unanimity as to the theory under which a killing is deemed culpable is not compelled as a matter of state or federal law. Each juror need only have found defendant guilty beyond a reasonable doubt of the single offense of first degree murder as defined by statute and charged in the information. (Schad v. Arizona (1991) 501 U.S. 624, 630-645 [111 S.Ct. 2491, 2496-2504, 115 L.Ed.2d 555] (plur. opn. of Souter, J.); id. at pp. 648-652 [111 S.Ct. at pp. 2505-2507] (conc. opn. of Scalia, J.); People v. Pride, supra, 3 Cal.4th 195, 249-250, and cases cited; People v. Chavez (1951) 37 Cal.2d 656, 670-672 [234 P.2d 632].)” (People v. Millwee (1998) 18 Cal.4th 96, 160.)
Defendant argues our prior holdings cannot stand in light of Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny. This line of authority, however, addresses the Sixth Amendment right to a jury determination of facts used in sentencing beyond the elements of the charged offenses. Defendant cites nothing in the United States Supreme Court’s decisions creating new notice or unanimity requirements for alternative theories of a substantive offense such as first degree murder. (See People v. Taylor (2010) 48 Cal.4th 574, 626; People v. Morgan, supra, 42 Cal.4th at p. 617.)

VII. Instruction on Consciousness of Guilt

Defendant contends a standard instruction outlining the permissible inference of consciousness of guilt that may be drawn from a defendant’s willfully false statements (CALJIC No. 2.03)^[3] was “unfairly partisan and argumentative” and allowed the jury to make irrational inferences about his state of mind in commission of the offenses. As in many other recent decisions, we reject defendant’s claim that instruction on an inference of consciousness of guilt deprived him of due process or other rights under the United States and California Constitutions. (See, e.g., People v. Richardson, supra, 43 Cal.4th at p. 1019; People v. Howard (2008) 42 Cal.4th 1000, 1025; People v. Nakahara (2003) 30 Cal.4th 705, 713; People v. Kelly (1992) 1 Cal.4th 495, 531-532 [noting that the instruction’s admonition that evidence of false statements is insufficient by itself to prove guilt favors the defense but cannot sensibly be given without the complementary portion allowing the jury to consider the evidence].)
Defendant repeatedly told Carnahan and the police he had seen a “Mexican” man (in the original telling, two men) in Carnahan’s backyard. He eventually went so far as to detail the man’s clothing, hairstyle and movements. As in People v. Howard, supra, 42 Cal.4th at page 1025, defendant’s jury “could quite reasonably conclude that defendant made a series of false statements to deflect suspicion from himself.” And while defendant may be correct that one could not rationally infer the existence of the exact mens rea required for each charged crime from his apparent falsehoods, the challenged instruction, read as a whole, did not suggest such an inference be made. “The instructions advise the jury to determine what significance, if any, should be given to evidence of consciousness of guilt, and caution that such evidence is not sufficient to establish guilt, thereby clearly implying that the evidence is not the equivalent of a confession and is to be evaluated with reason and common sense. The instructions do not address the defendant’s mental state at the time of the offense and do not direct or compel the drawing of impermissible inferences in regard thereto.” (People v. Crandell (1988) 46 Cal.3d 833, 871.)

VIII. Instructions on Evaluation of Evidence

Defendant contends a number of standard instructions guiding the jury’s evaluation of evidence (CALJIC Nos. 2.01, 2.21.1, 2.21.2, 2.22, 2.27, 2.51, 8.83) undermined the requirement of proof beyond a reasonable doubt, depriving him of his constitutional rights to due process, a jury trial, and reliable determination of the special circumstances and capital sentence. We recently explained why the challenged instructions were not reasonably likely to have such an effect. (People v. Brasure (2008) 42 Cal.4th 1037, 1058-1059; see also People v. Rundle (2008) 43 Cal.4th 76, 154-155; People v. Nakahara, supra, 30 Cal.4th at pp. 713-714.) Defendant makes no compelling argument for revisiting those conclusions.

IX. Constitutionality of California’s Death Penalty Law

Acknowledging the same arguments have been raised and rejected in previous decisions, defendant, to preserve his claims, contends several features of California’s capital sentencing scheme violate provisions of the United States Constitution. For the reasons given in our precedents, we again reject these claims.
The set of special circumstances qualifying a first degree murder for capital sentencing (§ 190.2) is not impermissibly broad. (People v. Dykes (2009) 46 Cal.4th 731, 813.) Nor is section 190.3, factor (a), under which the jury may consider the “circumstances of the crime” as a factor in aggravation (or mitigation) of penalty, so broad as to make imposition of a death sentence arbitrary and capricious. (People v. Brasure, supra, 42 Cal.4th at p. 1066.) “ ‘As in [People v. Brown (2004) 33 Cal.4th 382, 401], defendant argues that a seemingly inconsistent range of circumstances can be collected from decisions upholding imposition of the death penalty. As we observed in Brown, however, “[w]hat this reflects is that each case is judged on its facts, each defendant on the particulars of his offense. Contrary to defendant’s position, a statutory scheme would violate constitutional limits if it did not allow such individualized assessment of the crimes but instead mandated death in specified circumstances.” (Brown, supra, at p. 401.)’ ” (Brasure, at p. 1066.)
“ ‘Our statute “is not invalid for failing to require (1) written findings or unanimity as to aggravating factors, (2) proof of all aggravating factors beyond a reasonable doubt, (3) findings that aggravation outweighs mitigation beyond a reasonable doubt, or (4) findings that death is the appropriate penalty beyond a reasonable doubt.” [Citation.] No instruction on burden of proof is required in a California penalty trial because the assessment of aggravating and mitigating circumstances required of penalty jurors is inherently “ ‘normative, not factual’ [citation] and, hence, not susceptible to a burden-of-proof quantification.” ’ (People v. Bell (2007) 40 Cal.4th 582, 620 [54 Cal.Rptr.3d 453, 151 P.3d 292] .) Nor is an instruction on the absence of a burden of proof constitutionally required. (People v. Cornwell (2005) 37 Cal.4th 50, 104 [33 Cal.Rptr.3d 1, 117 P.3d 622].)” (People v. Brasure, supra, 42 Cal.4th at p. 1067.) The United States Supreme Court’s decisions in Apprendi v. New Jersey, supra, 530 U.S. 466, and its progeny do not establish a Sixth Amendment right to determination of particular aggravating factors, or the balance of aggravation and mitigation beyond a reasonable doubt, or by a unanimous jury. (People v. Taylor (2009) 47 Cal.4th 850, 899; Brasure, at pp. 1067-1068.) Finally, “[n]o instruction on a presumption that the sentence should be life without parole, rather than death, was constitutionally required.” (Taylor, at p. 899.)
“The Constitution does not forbid use of unadjudicated prior criminal activity as a circumstance in aggravation or require jury unanimity as to proof of such prior activity. (People v. Zambrano (2007) 41 Cal.4th 1082, 1181-1182 [63 Cal.Rptr.3d 297, 163 P.3d 4]; People v. Stanley (2006) 39 Cal.4th 913, 962 [47 Cal.Rptr.3d 420, 140 P.3d 736].)” (People v. Brasure, supra, 42 Cal.4th at p. 1068.)
“The use of the limiting adjectives ‘extreme’ and ‘substantial’ in the instruction on section 190.3, factors (d) [referring to “extreme mental or emotional disturbance”] and (g) [referring to “extreme duress” and “substantial domination” by another] does not unconstitutionally prevent the jury from considering mitigating evidence.” (People v. Taylor, supra, 47 Cal.4th at p. 899.) As defendant acknowledges, we have rejected this contention because jurors remain free to weigh lesser mental disturbance, duress, or domination under the “catchall” provision of section 190.3, factor (k), which permits consideration of “[a]ny other circumstance which extenuates the gravity of the crime.” (See, e.g., People v. Wright (1990) 52 Cal.3d 367, 443-444.) Defendant urges us to reconsider these holdings, observing that in his case the prosecutor argued to the jury his mental impairments were not severe enough to qualify as “extreme” disturbance under factor (d), and did not address any lesser mental disturbance in discussing factor (k).^[4] Nothing in the prosecutor’s argument or the court’s instructions, however, precluded the jury from considering the evidence of defendant’s mental impairments, whether under factor (d) (to the extent jurors disagreed with the prosecutor’s assessment of the impairments as less than extreme), factor (h) (referring to “mental disease or defect” as potentially impairing defendant’s ability to appreciate the criminality of his conduct or conform it to the law’s requirements) or the catchall factor (k). Defense counsel argued to the jury that defendant’s conduct during the crime showed he acted in the grip of a mental disturbance. No objection was heard to this argument, and while counsel did not explicitly tie it to any of the listed mitigating factors, he was in no manner precluded from doing so. As defendant was neither prevented from introducing evidence of mental impairment, nor precluded from arguing its relevance and force as mitigation, or from having it considered as such, we see no infringement on defendant’s rights under the Fifth, Sixth, Eighth or Fourteenth Amendments to the United States Constitution.
The trial court did not err in failing to delete from its instructions references to assertedly inapplicable factors listed in section 190.3 or to specify which factors may be considered only in mitigation. (People v. Taylor, supra, 47 Cal.4th at p. 899; People v. Brasure, supra, 42 Cal.4th at p. 1069.)
Comparative intercase proportionality review of death sentences is not constitutionally required. (People v. Taylor, supra, 47 Cal.4th at p. 900; People v. Brasure, supra, 42 Cal.4th at p. 1068; People v. Lawley (2002) 27 Cal.4th 102, 169.) “Because capital and noncapital defendants are not similarly situated in the pertinent respects, equal protection principles do not mandate that capital sentencing and sentence-review procedures parallel those used in noncapital sentencing.” (Brasure, at p. 1069.)
X. International Law and the Eighth Amendment
“California’s use of capital punishment as an authorized sentence for certain specified types of first degree murder does not constitute cruel and unusual punishment merely because most nations have chosen not to employ the death penalty at all. (People v. Brasure, supra, 42 Cal.4th at pp. 1071-1072; People v. Demetrulias (2006) 39 Cal.4th 1, 43-44 [45 Cal.Rptr.3d 407, 137 P.3d 229].)” (People v. Taylor, supra, 47 Cal.4th at p. 900.)
Defendant further argues international law requires that when the death penalty is invoked, the state must rigorously observe guarantees of a fair trial. While we have concluded the trial court erred in permitting a forensic expert to answer a hypothetical question that lacked foundation in the evidence (see pt. II, ante) and have, for purposes of discussion, assumed error in failing to suppress the last portion of defendant’s interview at the sheriff’s station (see pt. I, ante) and in giving certain standard instructions on deciding between greater and lesser offenses (see pt. V, ante), none of these errors, actual or assumed, rendered defendant’s trial unfair or affected the jury’s verdict either separately or, as discussed below, cumulatively.

XI. Cumulative Prejudice from Errors

The three errors we have concluded or assumed occurred below, each individually harmless, related to distinct procedural or evidentiary issues not closely related to one another. We see no possibility their individual effects, if any, cumulatively resulted in prejudice to defendant.
Disposition
The judgment of the superior court is affirmed.
Werdegar, J.
We Concur:
Baxter, J.
Chin, J.
Moreno, J.
George, J.^*

concurring and dissenting OPINION BY KENNARD, ACTING C. J.

I concur in the majority’s affirmance of the judgment of death. But I disagree with the majority’s analysis of an issue pertaining to a hypothetical question asked by the prosecutor.
Defendant was charged with bludgeoning and stabbing to death his 11‑year‑old neighbor, Nicole Carnahan, while burglarizing her house when she was home alone. Police found the victim’s body in her bedroom, which was stained heavily with blood. On the carpet in the living room was a single, small bloodstain.
That bloodstain became part of the prosecution’s theory of the crime: that Nicole saw defendant in her house and, presumably, cried out; that he hit her, and she fell; and that, as she lay on the living room carpet bleeding (and leaving a stain), defendant had what the prosecutor described to the jury as an “opportunity to think.” Calling that moment “the turning point” of the crime — at which defendant could have chosen to flee, but chose instead to kill Nicole and carry on with his burglary — the prosecutor used it to argue that the murder had been premeditated.
To support its theory, the prosecution called criminalist Greg Avilez, an expert on bloodstains, to testify about the lone stain in the living room. The prosecutor asked him whether the person who left the stain had likely been standing or lying down at the time. The defense objected, asserting that no evidence proved that the stain had come from a person bleeding on the carpet rather than from a bloody object that had been placed there — such as the brass rod or pipe that defendant had with him, and that was later found, stained with blood, in his tool shed. The trial court, reasoning that jurors could logically infer that the stain had come either from a person or from a bloody object, ruled that the prosecutor could base a hypothetical question on the first of those two inferences.
The prosecutor then asked criminalist Avilez whether, assuming that a person had “deposited” the bloodstain, the person “would have been standing or either lying down or very close to the carpet.” Avilez replied: “At or near the surface of [the] carpeting.”
The majority concludes, first, that the prosecutor’s hypothetical question to the criminalist “called for an opinion without adequate foundation” and the trial court abused its discretion in allowing it, but, second, that the abuse of discretion was harmless. (Maj. opn., ante, at pp. 23–24.) On the first conclusion, I disagree. I conclude that the trial court did not abuse its discretion. Therefore, I do not reach the question of prejudice.
Decades ago, this court set forth principles governing hypothetical questions. In discussing the breadth of a trial court’s discretion in applying those principles, this court noted that “[i]t is not essential . . . that the facts assumed should be undisputed.” (Guardianship of Jacobson (1947) 30 Cal.2d 312, 324 (Jacobson).) Rather, hypothetical questions are proper as long as they are based on “facts within the possible or probable range of the evidence” and are “not unfair or misleading.” (Ibid.) The trial court has “large discretion relating to the form of the question.” (Ibid.)
Because a trial court hears all the evidence, that court is in the best position to decide if a hypothesis is within the “possible or probable range” of that evidence (Jacobson, supra, 30 Cal.2d at p. 324), and it therefore deserves a measure of latitude in doing so. The trial court can also best determine whether, ultimately, the testimony will help the trier of fact evaluate the issues it must decide. (People v. Richardson (2008) 43 Cal.4th 959, 1008.) Hence, this court reviews a trial court’s rulings on hypothetical questions for abuse of discretion. (See, e.g., id. at p. 1009.)
Here, the trial court did not abuse its discretion in concluding that the hypothesized fact — that the bloodstain came directly from a person — was within the “possible . . . range” of the evidence. (Jacobson, supra, 30 Cal.2d at p. 324.) A hypothetical question can rest on “ ‘ “any theory which can be deduced” from any evidence properly admitted at trial, including the assumption of “any facts within the limits of the evidence.’’ ’ ” (People v. Boyette (2002) 29 Cal.4th 381, 449, italics omitted.) “[D]irect testimony is not required” to support a hypothesized fact as long as the fact “is fairly inferable from the circumstances proved.” (1 McCormick on Evidence (6th ed. 2006) ch. 3, § 14, p. 89, fn. omitted.) The evidence here proved these circumstances: The wounds inflicted on the murder victim caused her to bleed, and hers was the blood on the carpet in the living room, an area where she could have been. From that evidence, a juror could reasonably deduce the factual theory assumed by the prosecutor’s hypothetical question, namely, that the victim’s blood was on the carpet because she bled there.
That the expert could not exclude the alternative possibility — that the bloodstain on the living room carpet came from a weapon used to attack the victim — is of no consequence. The inference must be a reasonable one, not the only reasonable one. For the same reason, it does not matter that no evidence pointed exclusively to the prosecutor’s hypothesis. Yet that is what the majority seems to require.
Nevertheless, because I find no impropriety in the trial court’s ruling at issue, I agree with the majority’s affirmance of the judgment of death.
KENNARD, ACTING C. J.
I CONCUR:
CORRIGAN, J.

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

Name of Opinion People v. Moore
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S081479
Date Filed: January 31, 2011
__________________________________________________________________________________

Court: Superior
County: Monterey
Judge: Wendy Clark Duffy

__________________________________________________________________________________

Attorneys:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Arnold A. Erickson, Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Alice B. Lustre and Catherine McBrien, Deputy Attorneys General, for Plaintiff and Respondent.








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

Arnold A. Erickson
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Catherine McBrien
Deputy Attorney General
455 Golden gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5760



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