PEOPLE v. BOOKER










Filed 1/20/11



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Respondent, )
) S083899
v. )
)
RICHARD LONNIE BOOKER, )
) Riverside County
Defendant and Appellant. ) Super. Ct. No. CR67502
__________________________________ )


STORY CONTINUE FROM PART III….

Defendant finally does not dispute that he drew his knife while others fought. Brandishing a weapon may be committed by drawing or exhibiting a weapon in a rude, angry, or threatening manner. (§ 417, subd. (a)(1); e.g., People v. Sanders (1995) 11 Cal.4th 475, 542.) A weapon need not be pointed at the victim to be threatening. (E.g., Sanders, supra, 11 Cal.4th at p. 502 [sufficient evidence when the defendant positioned a rifle at victim after a coperpetrator said, “ ‘Shoot him. Shoot him.’ ”].) “For purposes of the conduct which [section 417] is meant to deter, it is enough that the brandishing be in public, in the presence of the victim, where some third party happening along might get the idea that either the victim or brandisher need help, or might think a brawl is in the making which he might join. The thrust of the offence is to deter the public exhibition of weapons in a context of potentially volatile confrontations.” (People v. McKinzie (1986) 179 Cal.App.3d 789, 794 [ruling victim’s awareness of the weapon not required].) Although defendant did not join in the physical altercation, sufficient evidence was introduced that he participated in the argument giving rise to the fight and that he drew his knife in the context of the confrontation.

3. Admission of victim impact evidence

Defendant contends the trial court erred by admitting victim impact evidence that was irrelevant, cumulative, unduly prejudicial, and inflammatory.
Unless it invites a purely irrational response, evidence of the effect of a capital murder on the loved ones of the victim is relevant and admissible under section 190.3, factor (a), as a circumstance of the crime. (E.g., People v. Burney (2009) 47 Cal.4th 203, 258 (Burney).) The federal Constitution bars victim impact evidence only if it is so unduly prejudicial as to render the trial fundamentally unfair. (Burney, at p. 258, citing Payne v. Tennessee (1991) 501 U.S. 808, 825.)
Over defendant’s objection to the victim impact evidence, six relatives of the three victims testified over the course of two days about the impact the murders had on their lives. After the first witness testified, defendant objected to her testimony and moved for a mistrial, which the trial court denied. In addition, over defendant’s objections, the jury viewed three videotapes depicting photographs of the victims.
On appeal, defendant first contends the trial court erred by admitting the videotapes. The trial court ruled the videotapes were admissible, but ordered the prosecutor to remove the audio track, which contained sentimental music.
We have viewed the three videotapes. The videotape for Powalka is four minutes in length; Amanda’s is five minutes long; and Corina’s is seven minutes long. There is no sound on any of the videotapes. Each videotape depicts a series of photographs of the victims; in some photographs, they are alone, in others they are with persons who are presumably friends or family members. The photographs depict the young women engaging in a variety of activities or enjoying various holidays. Corina’s videotape also includes a photograph of what appears to be a school display commemorating her being named student of the month.
Citing Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d 330, defendant contends these videotapes amounted to inadmissible “photographic eulogies.” Although we have acknowledged the constitutional issues implicated by Salazar, it is not binding on us. (E.g., People v. Kelly (2007) 42 Cal.4th 763, 797-799 (Kelly).) In Kelly, for example, this court ruled the trial court did not abuse its discretion in admitting an approximately 20-minute videotape containing a montage of photographs and video clips from the life (from her infancy until shortly before her death) of the victim, a 19-year-old woman. (Id. at p. 796.) The videotape in Kelly was narrated by the victim’s mother and soft music played in the background. (Ibid.)
As with the videotape in Kelly, the videotapes here supplemented but did not duplicate the other victim impact evidence, and properly humanized the three young women. (See Kelly, supra, 42 Cal.4th at p. 797.) Also as in Kelly, the videotapes did not emphasize any particular aspects of the young women’s lives; they did overwhelmingly depict them in childhood, but the victims were, after all, still young when defendant killed them. (See ibid.) The combined length of these three videotapes was less than the one videotape admitted in Kelly. Notably, unlike the videotape in Kelly, none of these videotapes had an audio soundtrack. Accordingly, the trial court did not err in admitting these videotapes; we are satisfied the videotapes did not invite a purely irrational response from the jury.
Defendant next contends the victim impact evidence was unnecessarily cumulative and that the trial court abused its discretion in denying his motion for a mistrial. After the prosecution’s first victim impact witness, Frankie Sanderson (Powalka’s mother), testified, defendant objected and moved for a mistrial, arguing in essence that her testimony was cumulative, as she testified for over 30 minutes, and that some of her testimony was irrelevant as it was not proper victim impact evidence. The trial court overruled defendant’s objection and denied the motion for a mistrial, but advised the prosecutor to be more succinct with other witnesses. The trial court indicated it did not want to “have everybody in the audience like they are, crying and teary-eyed like they are . . . .”
Defendant’s contention lacks merit, as he fails to specify exactly what evidence was cumulative. Although the trial court cautioned the prosecutor to be more succinct after Sanderson testified, it did not abuse its discretion in denying defendant’s motion for a mistrial, as Sanderson’s testimony, although evocative, did not invite a purely irrational response from the jury.
Defendant quotes Cargle v. State (Okla.Crim.App. 1995) 909 P.2d 806, 830, in which the Oklahoma Court of Criminal Appeals stated, “The more a jury is exposed to the emotional aspects of a victim’s death, the less likely their verdict will be a ‘reasoned moral response’ to the question whether a defendant deserves to die; and the greater the risk a defendant will be deprived of Due Process,” and thus contends the jury here was overly exposed to the emotional aspects of the victims’ deaths. To bolster this argument, defendant notes that after Sanderson testified, the court declared a brief recess. During the break, an audience member pulled out his wallet, approached the bailiff in the elevator, and said, “How much money would it cost for you to leave for five minutes‌” Believing the audience member was expressing a desire to harm defendant, the bailiff responded, “You don’t have enough money.” As the audience member was about to reply, the bailiff said, “You don’t say anything else now.” Also in the elevator were Sanderson, her friend, and a juror. Outside the presence of the other jurors, the trial court and counsel questioned the juror who was in the elevator. The juror acknowledged hearing the bailiff, but did not hear what the audience member had said. The juror was not fazed by the exchange, and said it would not affect her decision making ability.
As additional evidence of the emotional nature of the victim impact evidence, defendant also notes that while testifying, Nora (Corina’s mother) at one point said she was “very sad” and felt “very faint.” The prosecutor offered to stop, but Nora requested a minute to compose herself, and then continued to testify.
Defendant’s contention lacks merit, as Cargle is not binding on us; moreover, the trial court was well aware of the emotional impact that the testimony was having on the audience members. (See, e.g., Prince, supra, 40 Cal.4th at pp. 1289-1291 [urging trial courts to monitor the effect of emotionally laden evidence on the jury and audience members and make a careful record of their observations].) Given the emotional reaction by audience members to Sanderson’s testimony, the trial court took proper remedial steps to control the tone of the victim impact testimony, and the record before us discloses no further problems.^[1] (See, e.g., People v. Jurado (2006) 38 Cal.4th 72, 132-134 [finding no error when testimony from multiple family members caused some jurors to cry].) Consequently, neither the type nor the amount of evidence invited a purely irrational response or otherwise rendered defendant’s trial fundamentally unfair. (See, e.g., Burney, supra, 47 Cal.4th at p. 258.)
Defendant next contends the testimony regarding Powalka’s funeral and cremation was too remote from defendant’s actions to be relevant. As we have noted, however, evidence of a victim’s family’s grief at funeral services, and the condition of the victim’s body, is admissible and relevant. (See, e.g., People v. Harris (2005) 37 Cal.4th 310, 351-352 [photographs of the victim’s gravesite were relevant to the effect the murder had on her family].) To the extent defendant contends the testimony about Powalka’s open-casket funeral that the jury heard was unduly prejudicial, we note the jury already had viewed numerous photographs of the crime scene and autopsies.
Defendant also contends Sanderson’s testimony regarding her beliefs concerning the effect that Powalka’s murder had on her and her mother’s health was unduly speculative and prejudicial. To the extent this testimony constituted improper speculation, defendant forfeited this claim by failing to object and request that the trial court instruct the jury to ignore it. (Carrington, supra, 47 Cal.4th at p. 197.) In any event, there is no reasonable possibility that this error affected the penalty phase verdict. (See, e.g., People v. Gonzalez (2006) 38 Cal.4th 932, 960-961.)
Defendant further contends Sanderson improperly testified about the effect of waiting for the trial. Sanderson testified that the trial brought “closure to a chapter, that finally the end is in sight,” but that the years between Powalka’s death and the trial were “hell” because “not a day that doesn’t go by that I don’t think of her.” After Sanderson’s testimony, defense counsel, as part of the mistrial motion, argued this testimony, as well as the testimony about her and her mother’s deteriorating health, implied defendant was to blame for the delay between the killings and the trial. Although the prosecutor denied that was his intent in asking those question, the trial court agreed with defense counsel that the jury understood Sanderson blamed defendant for the delays, but the trial court nonetheless denied the motion for a mistrial. We already have concluded the trial court did not abuse its discretion in denying defendant’s motion for a mistrial, and this additional claimed basis for a mistrial does not alter the conclusion that Sanderson’s testimony did not provoke a purely irrational response. Moreover, the prosecutor heeded the trial court’s warning and did not question other witnesses about this subject.
Defendant further contends that Nora’s testimony, which included her emotional descriptions of her suicide attempt, hospitalizations, and her nearly fainting while testifying, was “unduly prejudicial and totally unnecessary.” The devastating effect of Corina’s death on Nora plainly was relevant victim impact evidence. The testimony was emotional at times, but emotional testimony is not necessarily inflammatory. (See People v. Verdugo (2010) 50 Cal.4th 263, 298‑299 [finding no error when victim’s mother cried while testifying].) Although Nora’s husband and Corina’s stepfather, Richard, also testified about how Corina’s murder affected their family, Nora’s and Richard’s testimony, contrary to defendant’s argument, was not unduly cumulative of each other. Richard testified primarily about what type of person Corina was, his relationship with her, and how he learned of her death. Although Richard did testify about the effect of Corina’s death on their family, he also testified how the change in Nora caused by Corina’s death affected him, which was a subject about which Nora did not testify.
Finally, contrary to defendant’s contention, the overall amount of victim impact witnesses was not prejudicial. Although six family members did testify, given that there were three victims, an average of two witnesses per victim is not excessive. (See, e.g., Brady, supra, 50 Cal.4th at pp. 567-573 [no error when 60 witnesses over 12 days testified, including eight witnesses who were friends, relatives, or coworkers of the capital crime victim].) Although trial courts must continue to exercise their discretion under Evidence Code section 352 to exclude unduly cumulative evidence, the trial court here was aware of these concerns and did not abuse its discretion in admitting the evidence. (See Brady, at p. 583.)

4. Refusal to instruct jury on age as a mitigating factor

Defendant, who had turned 18 only a month before the murders, contends the trial court erred by refusing to instruct the jury that, under factor (i) of section 190.3, his age could only be considered as a mitigating factor. The trial court instructed the jury that defendant’s age could be considered as a factor in determining the sentence, but declined to specify whether it was an aggravating or mitigating factor. During closing arguments, defendant argued his age and immaturity were mitigating factors.
This contention lacks merit. In Burney, supra, 47 Cal.4th at pages 257-258, we ruled the trial court did not err in refusing the defendant’s request to list his age (18) as a specific example of a mitigating factor. Although the trial court in Burney did instruct the jury that the defendant’s age could not be considered as an aggravating factor, it was not constitutionally required to do so. (See ibid.) The trial court here properly instructed the jury that, under factor (k) of section 190.3, it could consider “[a]ny other circumstance which extenuates the gravity of the crime,” which would include defendant’s age.
Defendant nonetheless contends the high court’s decision in Roper v. Simmons (2005) 543 U.S. 551 compels us to revisit whether the trial court should have instructed the jury that his age could only have been considered as a mitigating factor. We disagree. Roper concluded the imposition of the death penalty for crimes committed while the defendant was under the age of 18 constituted cruel and unusual punishment under the federal Constitution; it did not address whether an offender’s youthfulness is an aggravating or a mitigating factor. As defendant acknowledges, we rejected a similar argument in People v. Brown (2003) 31 Cal.4th 518, 564-565, concluding the trial court did not err in rejecting the 19-year-old defendant’s request to instruct the jury that a person under the age of 18 is not subject to the death penalty. Defendant’s contrary argument notwithstanding, nothing in Roper undermined the rationale of Brown.^[2]

5. Cumulative error

As with defendant’s guilt phase cumulative error claim, defendant contends that if we do not conclude that any individual penalty phase error mandates reversal, the cumulative effect of the penalty phase errors requires reversal. We disagree. To the extent that there are a few instances in which we found or assumed the existence of error, we concluded that no prejudice resulted. We reach the same conclusion after considering their cumulative effect.

D. General Challenges to California’s Death Penalty Scheme

Defendant raises a number of constitutional challenges to California’s death penalty law, all of which we have repeatedly rejected, and he offers no persuasive reason to reexamine these prior decisions.^[3] Thus, we again hold:
The death penalty is not inherently cruel or unusual punishment. (E.g., People v. Thompson (2010) 49 Cal.4th 79, 144 (Thompson).)
The circumstances and pace of California’s executions do not make the death penalty arbitrary or unconstitutional. (E.g., People v. Redd (2010) 48 Cal.4th 691, 758-759.)
California’s death penalty statute is not vague and overbroad, and does adequately narrow the class of death-eligible offenders. (Tuilaepa v. California (1994) 512 U.S. 967, 975-976; e.g, Martinez, supra, 47 Cal.4th at p. 967; People v. Lewis (2008) 43 Cal.4th 415, 515-516; People v. Cook (2006) 39 Cal.4th 566, 617; People v. Chatman (2006) 38 Cal.4th 344, 394-395; People v. Vieira (2005) 35 Cal.4th 264, 303-304 (Vieira); Benavides, supra, 35 Cal.4th at p. 104; San Nicolas, supra, 34 Cal.4th at pp. 676-677; see People v. Saille (1991) 54 Cal.3d 1103, 1116.)
The death penalty law does not require that the jury be given instructions on the burden of proof or the standard of proof for finding the existence of aggravating factors (except for other uncharged violent criminal conduct), for finding that aggravating factors outweigh mitigating factors, or for finding that death is the appropriate penalty. (E.g., People v. Collins (2010) 49 Cal.4th 175, 260-261 (Collins).) The United States Supreme Court decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, Blakely v. Washington (2004) 542 U.S. 296, United States v. Booker (2005) 543 U.S. 220, and Cunningham v. California (2007) 549 U.S. 270 have not altered these conclusions. (E.g., Collins, supra, 49 Cal.4th at pp. 260-261; Thompson, supra, 49 Cal.4th at p. 134.)
The federal Constitution does not require that jurors agree unanimously on each instance of uncharged violent criminal conduct. (People v. Bunyard (2009) 45 Cal.4th 836, 861.) Apprendi and its progeny do not alter that conclusion. (Bunyard, at p. 861.)
Written or specific findings by the jury regarding aggravating factors are not constitutionally required. (E.g., Collins, supra, 49 Cal.4th at p. 261.) Equal protection does not require that capital defendants be afforded the same sentence review afforded other felons sentenced under the determinate sentencing law. (Ibid.)
The prosecutorial discretion of individual district attorneys to select in which eligible cases the death penalty will be sought is not evidence of an arbitrary and capricious death penalty system. (See, e.g., People v. Bennett (2009) 45 Cal.4th 577, 629.) Contrary to defendant’s contention, the voting rights case Bush v. Gore (2000) 531 U.S. 98 does not compel a different result. (See, e.g., Bennett, at p. 629, fn. 19.)
A trial court is not required to instruct the jury that the absence of mitigating factors is not itself an aggravating factor. (See, e.g., Vieira, supra, 35 Cal.4th at p. 299.) Similarly, a trial court is not required to instruct the jury that a single mitigating factor may be sufficient to outweigh all aggravating factors. (See, e.g., People v. Davis (2009) 46 Cal.4th 539, 621-623 (Davis).)
The sentencing factors in section 190.3 do not fail to adequately channel or limit the sentencer’s discretion in choosing death over life without the possibility of parole. (Stanley, supra, 39 Cal.4th at p. 967.)
Comparative intercase proportionality review is not constitutionally required. (E.g., Collins, supra, 49 Cal.4th at p. 261; see Pulley v. Harris (1984) 465 U.S. 37, 50-51.)
The delay between sentence and execution does not violate the federal or state Constitutions. (See, e.g., Davis, supra, 46 Cal.4th at p. 628.)
The use of restrictive adjectives such as “extreme” and “substantial” in the list of potential mitigating factors does not act as a barrier to consideration of mitigating evidence. (E.g., Thompson, supra, 49 Cal.4th at p. 144.)
The trial court was not constitutionally required to inform the jury that certain sentencing factors are relevant only in mitigation. (E.g., Ervine, supra, 47 Cal.4th at p. 810.)
California’s assertedly regular use of the death penalty does not violate international laws or norms. (E.g., People v. Dykes (2009) 46 Cal.4th 731, 820.)

III. Conclusion

The judgment is affirmed.
MORENO, J.
WE CONCUR: Kennard, Acting C. J.
Baxter, J.
Werdegar, J.
Chin, J.
CORRIGAN, 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. Booker
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S083899
Date Filed: January 20, 2011
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Edward D. Webster

__________________________________________________________________________________

Attorneys:

Jonathan P. Milberg, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Adrianne S. Denault and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.















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

Jonathan P. Milberg
300 North Lake Avenue, Suite 320
Pasadena, CA 91101
(626) 685-8910

Elizabeth A. Hartwig
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2278




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Analysis and review provided by Carlsbad Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com

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