People v. Beames
Filed 3/22/07
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
) Tulare County
John Michael Beames, ) Super. Ct. No. 35201
__________________________________ )
STORY CONTINUED FROM PART I..
We reject these related claims for the reasons already given, and additionally on the ground that a trial court generally is under no obligation to continue a matter for the defense in the absence of a request. (E.g., People v. Medina (1995) 11 Cal.4th 694, 739; People v. Alcala (1992) 4 Cal.4th 742, 782.)
Sheppard, supra, 384 U.S. 333, and Williams, supra, 34 Cal.3d 584, do not compel otherwise. The facts of this case do not compare to those in Sheppard, in which the United States Supreme Court looked beyond the pretrial publicity generated in the defendants case to find that the massive, pervasive, and inflammatory publicity that attended the actual trial, coupled with the carnival atmosphere at the trial itself, prevented the defendant from receiving a fair trial consistent with the federal due process clause. (See Sheppard, supra, 384 U.S. at pp. 355 [bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard], 356-357 [much of the inflammatory material broadcasted or printed during the trial was never heard from the witness stand but nonetheless reached some of the jury].) Moreover, the procedural posture of this case is different from that in Williams, where the defendant actually moved for a change of venue and sought writ relief based on the trial courts denial of his motion. (Williams, supra, 34 Cal.3d at p. 587.) Although Williamss analysis perhaps suggests that factors supporting a continuance or a venue change may have been present here, that decision does not stand for the proposition that pretrial publicity may require a continuance of a trial without a defense request, or that a reversal on venue-related grounds may be compelled even though the defendant failed to exhaust his peremptory challenges and neglected to object to the jurys final composition.
2. Denial of Challenges for Cause
Defendant contends the trial court erroneously refused to excuse six biased jurors for cause, thereby denying his federal constitutional rights to a fair and impartial jury, due process of law, and a reliable penalty determination.
To preserve a claim of trial court error in failing to remove a juror for bias in favor of the death penalty, a defendant must either exhaust all peremptory challenges and express dissatisfaction with the jury ultimately selected or justify the failure to do so. (People v. Ramirez, supra, 39 Cal.4th at p. 448; see also People v. Avila (2006) 38 Cal.4th 491, 539.) Here, defendant did not make a peremptory challenge to any of the six jurors (K.H.; D.B.; R.O.-H.; B.C.; M.A.; S.S.) who he claims should have been excused for cause; neither did he exhaust his available 20 peremptory challenges. (Code of Civ. Proc., 231, subd. (a).) Defendant did not express displeasure with the jury as selected, and he did not object to the jurys composition. Moreover, he makes no attempt to justify his failure to do so. Accordingly, this issue has not been preserved for review.
Even assuming the claim had been properly preserved, we would find it lacking in merit. Apart from R.O.-H., none of the five other allegedly biased individuals actually served on defendants jury and so they could not have possibly affected the jurys fairness. (People v. Avila, supra, 38 Cal.4th at p. 540; see People v. Farnam (2002) 28 Cal.4th 107, 133.)
With regard to Juror R.O.-H., the governing law provides: A prospective juror may be challenged for cause based upon his or her views regarding capital punishment only if those views would prevent or substantially impair the performance of the jurors duties as defined by the courts instructions and the jurors oath. [Citations.] Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court. [Citation.] [Citation.] On appeal we will uphold the trial courts decision if it is fairly supported by the record, and accept as binding the trial courts determination as to the prospective jurors true state of mind when the prospective juror has given conflicting or ambiguous statements. [Citations.] (People v. Farnam, supra, 28 Cal.4th at p. 132, fn. omitted.)
Although some of Juror R.O.-H.s comments during the voir dire process could be construed as suggesting she might automatically vote for death at the penalty phase, other remarks she made indicated an ability and a willingness to be fair and open-minded. For instance, after candidly saying she initially had formed an opinion of defendants guilt after reading a newspaper story about McMainss trial, R.O.-H. stated: But after listening to the judge speak earlier about the duties of a juror, I dont know if I hold the same opinion or not. She also commented that [a] newspaper article, I know isnt written I know its not, you know, the truth. Finally, although she stated in response to defense counsels questioning that she would need to hear evidence to overcome her suspicion of defendants guilt, she later expressed her understanding that, under the law, everyone is presumed innocent until proven guilty. She also promised to base her decision solely upon the evidence that is presented and to follow the law as the judge instructs. Given R.O.-H.s conflicting statements, and the trial courts unique opportunity to evaluate her credibility as she spoke, we shall defer to that courts determination regarding her true state of mind. Indeed, the defense evidently agreed at the conclusion of voir dire questioning that R.O.-H.s views would not prevent or substantially impair the performance of her duties as a juror, for it declined to exercise an available peremptory challenge against her.
B. Guilt Phase Issues
Defendant contends the trial courts erroneous failure to instruct the jury on the lesser included offenses of second degree murder and involuntary manslaughter deprived him of his federal constitutional rights to a fair trial, due process of law, trial by jury, and a reliable penalty determination. With regard to this claim, we understand defendant to argue the trial court should have instructed on all three theories of second degree murder, that is, unpremeditated murder with express malice, implied malice murder, and second degree felony murder.
A court must generally instruct the jury on lesser included offenses whenever the evidence warrants the instructions, whether or not the parties want it to do so. [Citation.] (People v. Horning (2004) 34 Cal.4th 871, 904-905 (Horning); see People v. Valdez (2004) 32 Cal.4th 73, 115.) [T]he sua sponte duty to instruct on lesser included offenses, unlike the duty to instruct on mere defenses, arises even against the defendants wishes, and regardless of the trial theories or tactics the defendant has actually pursued. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Here, however, we need not decide whether the evidence warranted instructions on second degree murder and involuntary manslaughter, because we find any error both invited and harmless.
After defendant testified at the guilt phase, the trial court and the parties discussed proposed guilt phase jury instructions. With the agreement of both sides, the court stated it would instruct the jury with the applicable versions of CALJIC Nos. 8.00 (homicidedefined), 8.10 (murderdefined), 8.11 (malice aforethoughtdefined), 8.24 (murder by torture), 8.30 (unpremeditated murder of the second degree), and 8.31 (second degree murderkilling resulting from unlawful act dangerous to life). The court then asked the defense whether it wanted the jury instructed on the lesser included offense of second degree murder, based on the second degree felony-murder rule, pursuant to CALJIC No. 8.32 (second degree felony murder).[1] Defense counsel said no. In doing so, counsel expressed his understanding that instructions on second degree murder as a lesser included offense of first degree murder count were required sua sponte.
Shortly thereafter, the trial court assented to the defenses request for instructions on the lesser included offense of involuntary manslaughter pursuant to CALJIC Nos. 8.45 (involuntary manslaughterdefined), 8.46 (due caution and circumspectiondefined), 8.50 (murder and manslaughter distinguished), and 8.51 (murder and manslaughter distinguishednature of act involved). Subsequently, however, defense counsel asserted: If it turns out I dont want involuntary manslaughter, this isnt something that you have to give if I waive it. The court agreed the defense could waive instructions on this lesser included offense, but cautioned counsel that if you do wish to do so, you have to make it clear on the record, and Ill go over that very thoroughly. The next court day, counsel informed the court that the defense was not requesting any instructions on the lesser included charges of second degree murder and involuntary manslaughter in connection with the murder count. In response to the courts inquiry, counsel represented his decision was a matter of trial strategy. Counsel clarified, however, that the defense wanted the court to instruct on the lesser related offense of child endangerment (CALJIC No. 9.37), with regard to the torture count.
After all the evidence was presented and both sides rested, defense counsel expressed concern that the testimony of the prosecutions rebuttal witness, Dr. Dollinger, might necessitate giving the lesser of the second. Counsel asked for some time to discuss the issue privately with defendant, which the trial court permitted. When the proceedings reconvened, counsel stated: We dont want any lessers given with Count 1. I discussed it with John. I told him the reasons lawyers often want to do that, it gives them a chance to compromise if they feel like somebody did something wrong. He explains to me none of the actual legal theory this a second or involuntary could be based on the truth that he did not kill this baby, the cart fell on it. We dont want the lessers. In accordance with the defenses requests, the trial court did not instruct the jury on any theory of second degree murder or involuntary manslaughter.
[A] defendant may not invoke a trial courts failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial courts failure to give the instruction. (Horning, supra, 34 Cal.4th at p. 905, quoting People v. Barton (1995) 12 Cal.4th 186, 198.) Here, the record clearly reflects that defendant and his counsel expressed a deliberate tactical purpose in resisting instructions on second degree murder and involuntary manslaughter, the very instructions he now complains should have been given. The circumstances here were substantially similar to those in Horning, which found invited error where a capital defendant and his counsel insisted at trial they did not want instructions on the lesser included offenses of second degree murder and manslaughter because they were inconsistent with the defense that the defendant did not commit the crime at all. (Horning, supra, 34 Cal.4th at p. 905.) Consistent with Horning, we find that any error on these theories was invited, and that defendant therefore is barred from invoking such error as a basis for reversing his conviction. Moreover, we are not persuaded to forgo application of the invited error doctrine based on the mere fact that defense counsel did not discuss the elements or the possible merits of these particular lesser included offenses in more depth than he did while addressing the court about the instructions.
In any event, again assuming error with regard to any or all of the omitted instructions, it also was harmless. As our decisions explain, [e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions. (People v. Chatman (2006) 38 Cal.4th 344, 392; Horning, supra, 34 Cal.4th at p. 906; People v. Sedeno (1974) 10 Cal.3d 703, 721, disapproved on other grounds in People v. Breverman, supra, 19 Cal.4th at p. 165.) Here, the jury was properly instructed that a torture-murder special circumstance requires the intent to kill.[2] (See 190.2, subd. (a)(18); Chatman, supra, 38 Cal.4th at p. 392.) When the jury found this special circumstance true, it necessarily determined that defendant intended to kill Cassie when he tortured her. Thus, there was no prejudice resulting from any erroneous failure to instruct on second degree felony murder (see People v. Blair (2005) 36 Cal.4th 686, 747) or involuntary manslaughter (see Chatman, supra, 38 Cal.4th at p. 392). Likewise, in finding the killing was intentional, the jury necessarily found express, not implied, malice. (Accord, People v. Combs (2004) 34 Cal.4th 821, 857.) Accordingly, any error in failing to instruct on implied malice second degree murder also was harmless.
Defendant contends the jurys true finding on the torture-murder special-circumstance allegation did not render the failure to instruct on second degree felony murder harmless because the finding left open certain factual questions posed by the omitted second degree felony-murder instruction. This contention fails to warrant a reversal.
If a jury is not satisfied that a defendant acted with either express or implied malice, it may find the defendant guilty of second degree murder on a felony murder theory. (People v. Blair, supra, 36 Cal.4th at p. 745 [addressing failure to instruct on second degree felony murder as a lesser included offense of first degree murder by poison, where jury found true a special circumstance allegation of murder by poison].) Here, as indicated, the true finding on the torture-murder special-circumstance allegation shows that the jury was satisfied defendant acted with express malice, and that it necessarily rejected any theory that defendant intended only to torture Cassie and not to kill her. In view of these circumstances, any error in failing to instruct on second degree felony murder was harmless. (See People v. Blair, supra, 36 Cal.4th at p. 747.)
Additionally, we conclude that any error in failing to instruct on the second degree murder theory of unpremeditated murder with express malice (CALJIC No. 8.30) was harmless. As the record discloses, the evidence supporting the jurys verdict of guilt of first degree murder by torture was so relatively strong, and the evidence supporting a different outcome was so comparatively weak, that there is no reasonable probability that the claimed error affected the result. (People v. Breverman, supra, 19 Cal.4th at p. 177 [applying People v. Watson (1956) 46 Cal.2d 818, 836]; see also People v. Rogers (2006) 39 Cal.4th 826, 870.) Here, the evidence supporting the guilt verdict included medical testimony establishing that a number of Cassies injuries were inflicted only hours or minutes before her death, including multiple facial bruises, rib fractures, and abrasions to the shoulder and back. More significantly, the evidence showed that a soft ligature was used to hang Cassie by the neck for a period of time before she was killed, and that Cassie survived this ordeal but then died from a final blow of such immense force and impact that it split her liver in two. The number, character, and successive nature of the injuries leading up to and culminating in Cassies death provided strong evidence that defendant acted with premeditation both in torturing and in killing her.
By contrast, there was no evidence showing that defendant acted without premeditation at the time of the killing; instead, defendant maintained throughout the trial that he was out of the room when a tool-laden cart fell on Cassie. On appeal, defendant points to the evidence of his intolerance of crying children, and argues it supported an inference that he could well have snapped when Cassie started crying. But any inference that Cassie died of an impulsive act would have been seriously undercut by the evidence that Cassie, who was a mere 15 months old, suffered a multitude of injuries and was hung by the neck in the minutes and hours before the fatal blow that transected her liver. Also undermining such an inference was the backdrop of other evidence showing that, in the prior days, weeks, and months, Cassie was constantly injured while living in the home with defendant. Her black eyes, multiple sets of burns, broken leg, broken ribs, and numerous bruises, contusions, lacerations, and abrasions all strongly indicated a pattern of conduct that was consistent with what occurred on the day of the killing. Given the relative strength of the evidence of first degree murder, and the relative weakness of the evidence to the contrary, we do not find it reasonably probable that had the jury been instructed on this theory of express malice second degree murder, it would have concluded defendant intended to kill Cassie without premeditation or deliberation.
Finally, defendant contends Beck v. Alabama (1980) 447 U.S. 625, and its progeny have established a rule of constitutional law that, where the evidence supports instructions on lesser included offenses in a capital case, the trial court cannot refuse them and a defendant cannot waive them. As we have explained, however, Beck does not prohibit a criminal defendant [in a capital case] from choosing to forgo such instructions for strategic reasons . . . . (Horning, supra, 34 Cal.4th at p. 906 [quoting People v. Hardy (1992) 2 Cal.4th 86, 185].) Moreover, and in any event, Becks principles are not violated where, as here, the jury was provided with the noncapital option of first degree murder without special circumstances. (Horning, supra, 34 Cal.4th at p. 906; see People v. Sakarias (2000) 22 Cal.4th 596, 621, fn. 3.)
We find no reversible state or constitutional error at the guilt phase.
C. Penalty Phase Issues
During the penalty phase deliberations, the jury submitted the following written questions to the trial court. Life in Prison? Dose [sic] life in prison without parole really mean without parole forever? What priviledges [sic] would he have? family visitations? girl friends? isolation or general population? Death Row? Do you get visitors? Are you ever with any of the other inmates for meals or exercise? The court informed the prosecution and the defense of these inquiries. After discussing the matter for several minutes, the court indicated it would hear more from the parties and resolve the issue the following morning in a hearing outside the jurys presence.
At the hearing, the defense argued against informing the jury about the Governors power of commutation because: (1) it would be misleading to tell the jury about commutation during deliberations when the topic had not been discussed during voir dire; (2) instructing the jury on commutation would impair defense counsels credibility because he had already informed the jury a life sentence meant that defendant would never get out of prison; and (3) if the court were to tell the jury about commutation, it should also indicate that a commutation in a capital case had never before occurred.
The trial court expressed its concern that the danger is, as I see it, we get the jury back there, if you dont tell them that the [G]overnor has commutation power and that this power applies to both types of sentences, then we get a juror back there who insists perhaps that there is such a thing and they get speculating and it does more harm than good. Accordingly, the court decided to give the jury the following written response: This response is in respect to the questions asked relative to whether life in prison without parole actually means the defendant would never be released from prison and inquiries in respect to prison life should the defendant receive either a sentence of life without parole or the death penalty. [] The Governor has commutation power and this commutation power applies to both sentences, that of life in prison without parole and the death penalty. However, the jury is not to consider this commutation power in arriving at a verdict in the penalty phase. The jury must not assume anything other than death means death by execution and life without parole means imprisonment for the rest of the defendants natural life. [] In arriving at a verdict in the penalty phase the jury is not to speculate or consider living conditions in the prison as these are matters which must not affect your verdict in any way.
Defendant contends the trial court improperly instructed the jury regarding the Governors commutation power and thereby violated his federal constitutional rights to a reliable penalty determination, a fair penalty trial, and due process. We disagree.
Generally, reference to the commutation power is improper because it invites the jury to consider matters that are both totally speculative and that should not, in any event, influence the jurys determination. (People v. Ramos (1984) 37 Cal.3d 136, 155.) However, [w]hen the jury makes a specific inquiry about how a postconviction proceeding such as commutation might affect defendants sentence, we have suggested that trial courts issue a short statement emphasizing that it would be a violation of the jurys duty to consider the possibility of commutation in determining the appropriate sentence. (People v. Benavides (2005) 35 Cal.4th 69, 115.) It is now firmly established that a court in a capital case does not err when it answers a jury question generally related to the commutation power by instructingas suggested in People v. Ramos, supra, 37 Cal.3d at page 159, footnote 12that the Governor may commute either a death sentence or a life without possibility of parole sentence, but that the jury must not consider the possibility of commutation in determining the appropriate sentence. (People v. Hines (1997) 15 Cal.4th 997, 1073; see People v. Davis (1995) 10 Cal.4th 463, 547-548; see also People v. Ledesma (2006) 39 Cal.4th 641, 737.) Here, the courts responses to the jurys inquiries conformed to this principle. No error or constitutional violation appears, and we decline defendants invitation to reconsider our decisions on the matter.
Defendant asserts the trial court should not have instructed on commutation, because the jury did not specifically ask about the Governors commutation power but, rather, inquired about parole. We have held, however, that commutation instructions are properly given when the jury implicitly raises the issue of commutation. (E.g., People v. Hines, supra, 15 Cal.4th at p. 1073 [jury did not explicitly refer to commutation, but asked whether its penalty could be modified through any part of the appeal process ]; People v. Hunter (1989) 49 Cal.3d 957, 981 [jury asked under what circumstances could [defendant] be released from prison? ].) Here, the issue was implicit in the jurys question whether life in prison without parole really mean[s] without parole forever? (See People v. Whitt (1990) 51 Cal.3d 620, 657, fn. 29.) Accordingly, the trial court properly instructed the jury that the Governor has the power to commute either a death sentence or a sentence of life without possibility of parole, that it would be improper to consider commutation in determining the appropriate penalty, and that [t]he jury must not assume anything other than death means death by execution and life without parole means imprisonment for the rest of the defendants natural life.
Defendant additionally contends on appeal that, given his three prior felony convictions at the time of trial, the trial courts instruction was grossly misleading and violated federal constitutional standards because it failed to inform the jury that commutation was possible for a twice-convicted felon only with the agreement of four California Supreme Court justices (see Cal. Const., art. V, 8, subd. (a)) and only upon consultation with the Board of Prison Terms ( 4802, 4812, 4813). At trial, however, defense counsel never suggested that a failure to mention these limitations on the Governors commutation power would be misleading in light of his felon status. But even assuming the issue may be raised on appeal, it is properly rejected on the merits. As our prior decisions make clear, [t]here [is] no need to discuss the law of commutation exhaustively and good reason not to stress defendants record. (People v. Hines, supra, 15 Cal.4th at p. 1074; see also People v. Martinez (2003) 31 Cal.4th 673, 698; People v. Whitt, supra, 51 Cal.3d at p. 657.)
Contrary to defendants assertions otherwise, McLain v. Calderon (9th Cir. 1998) 134 F.3d 1383 and Hamilton v. Vasquez (9th Cir. 1994) 17 F.3d 1149 do not support a finding of reversible error where, as here, the trial courts comments were sufficient to advise the jurors not to consider the speculative possibility of commutation at all in arriving at their sentencing determination. (See People v. Hart (1999) 20 Cal.4th 546, 656-657.) As indicated, the court properly emphasized to the jurors that they must not assume anything other than death means death by execution, and life without parole means imprisonment for the rest of the defendants natural life, and that they were not to consider this commutation power in arriving at a verdict in the penalty phase. Thus, even assuming the court should have more completely explained the limitations on the Governors commutation power for a twice-convicted felon such as defendant, its failure to do so was insignificant (because the specific details of the commutation process bore no relevance to the jurys task), and there is no reasonable possibility that the perceived incompleteness of the courts comments affected the result. (Ibid.)
Finally, defendant asserts the trial court violated his federal constitutional rights by refusing his request to advise the jury that no death sentence or sentence of life without possibility of parole had ever been commuted since adoption of the present death penalty statute. In a similar vein, he complains he had no opportunity to offer evidence and/or argument on the issue of the likelihood of commutation. These complaints are devoid of merit because, as indicated, consideration of the possibility of commutation is improper in capital penalty phase determinations. (People v. Mitcham (1992) 1 Cal.4th 1027, 1077; see People v. Ramos, supra, 37 Cal.3d at p. 155.) Defendant had no right to present evidence or to have the jury instructed on matters the jury should not have been considering in the first place. (See People v. Hunter, supra, 49 Cal.3d at p. 984 [where . . . the jury has been admonished to disregard the commutation power, such evidence would have been wholly irrelevant].
D. Cumulative Error
Defendant argues the cumulative effect of the errors in both the guilt phase and the penalty phase requires reversal of both the guilt and penalty verdicts. We disagree. We have concluded that all of defendants claims of error are either meritless or do not require reversal. Whether we consider such claims individually or together, we find no prejudicial error at either phase of the proceedings.
E. Constitutional Challenges to Californias Death Penalty Statute
Defendant contends the sentencing scheme under Californias death penalty statute is constitutionally flawed for a number of reasons. We have repeatedly rejected identical claims, as follows.
Californias death penalty statute does not fail to perform the constitutionally required narrowing function by virtue of the number of special circumstances it provides or the manner in which they have been construed. (People v. Morrison (2004) 34 Cal.4th 698, 730; People v. Jenkins (2000) 22 Cal.4th 900, 1050; see People v. Cook (2006) 39 Cal.4th 566, 617.) As Justice Kennard recently explained in a concurring opinion, although at one time the United States Supreme Court suggested that a constitutionally valid death penalty law must exclude most murders from eligibility for the death penalty, that is no longer the case. (People v. Jurado (2006) 38 Cal.4th 72, 146 (conc. opn. of Kennard, J., and authorities cited therein).) Because the special circumstances listed in section 190.2 apply only to a subclass of murderers, not to all murderers (Tuilaepa v. California (1994) 512 U.S. 967, 971-972), there is no merit to defendants contention, based on a statistical analysis examining appeals from murder convictions, that our death penalty law is impermissibly broad. (See People v. Morrison, supra, 34 Cal.4th at p. 730; People v. Frye, supra, 18 Cal.4th at pp. 1028-1029.)
As applied, section 190.3, factor (a), does not result in the arbitrary or capricious imposition of the death penalty. (People v. Elliot (2005) 37 Cal.4th 453, 487; People v. Lewis (2001) 26 Cal.4th 334, 394; People v. Jenkins, supra, 22 Cal.4th at pp. 1050-1053.)
A penalty phase jury may consider prior unadjudicated criminal conduct under section 190.3, factor (b), and the jury need not make a unanimous finding that defendant was guilty of the unadjudicated crimes. (People v. Elliot, supra, 37 Cal.4th at p. 488; see People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1066, 1068; People v. Cook, supra, 39 Cal.4th at pp. 618, 619.)
Section 190.3s use of adjectives such as extreme (factors (d), (g)) and substantial (factor (g)) in describing mitigating circumstances does not impermissibly limit consideration of such factors. (People v. Elliot, supra, 37 Cal.4th at p. 488; People v. Morrison, supra, 34 Cal.4th at pp. 729-730.)
The absence of procedural safeguards utilized by other states in the operation of their death penalty laws does not render Californias law unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (People v. Lawley (2002) 27 Cal.4th 102, 169; People v. Lucero (2000) 23 Cal.4th 692, 741.) As we have repeatedly concluded, [t]he jury need not make written findings, or achieve unanimity as to specific aggravating circumstances, or find beyond a reasonable doubt that an aggravating circumstance is proved (except for other crimes), that aggravating circumstances outweigh mitigating circumstances, or that death is the appropriate penalty. (People v. Morrison, supra, 34 Cal.4th at p. 730, and cases cited; see People v. Lucero, supra, 23 Cal.4th at p. 741.) Neither Apprendi v. New Jersey (2000) 530 U.S. 466, nor Ring v. Arizona (2002) 536 U.S. 584, affects Californias death penalty law or otherwise calls for a different result. (People v. Cook, supra, 39 Cal.4th at pp. 618-619; People v. Morrison, supra, 34 Cal.4th at p. 731.)
The death penalty statute is not unconstitutional for failing to provide the jury with instructions of the burden of proof and standard of proof for finding aggravating and mitigating circumstances in reaching a penalty determination. [Citations.] (People v. Morrison, supra, 34 Cal.4th at pp. 730-731; see People v. Sapp (2003) 31 Cal.4th 240, 316-317; People v. Hayes (1990) 52 Cal.3d 577, 643.) We therefore reject defendants alternative contention that, at the very least, the jury is required to find by a preponderance of the evidence that an aggravating circumstance is proved, that aggravating circumstances outweigh mitigating circumstances, or that death is the appropriate penalty. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1066.)
Intercase proportionality review is not constitutionally required. (People v. Elliot, supra, 37 Cal.4th at p. 488; People v. Morrison, supra, 34 Cal.4th at p. 731.) Equal protection does not require that capital defendants be afforded the same sentence review as other felons in the noncapital context. (People v. Cook, supra, 39 Cal.4th at p. 619; People v. Morrison, supra, 34 Cal.4th at p. 731.)
The trial court did not commit constitutional error by failing to instruct that statutory mitigating factors were relevant only in mitigation. (People v. Elliot, supra, 37 Cal.4th at p. 488; People v. Morrison, supra, 34 Cal.4th at p. 730.) Moreover, the statutory instruction to the jury to consider whether or not certain mitigating factors were present did not impermissibly invite the jury to aggravate the sentence upon the basis of nonexistent or irrational aggravating factors. [Citations.] (People v. Morrison, supra, 34 Cal.4th at p. 730.)
Finally, we have previously rejected the contention that Californias imposition of death as a regular form of punishment for a substantial number of crimes falls below international norms of humanity and decency. (People v. Cook, supra, 39 Cal.4th at p. 619; People v. Harris (2005) 37 Cal.4th 310, 366.) We do so again here.
III. Disposition
For the reasons stated above, we find no reversible error in the record. The judgment of death is affirmed.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Beames
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
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Opinion No. S050455
Date Filed: March 22, 2007
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Court: Superior
County: Tulare
Judge: Ronn M. Couillard
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Attorneys for Appellant:
Barry L. Morris, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Patrick J. Whalen, Carlos A. Martinez and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Barry L. Morris
1260 B Street, Suite 220
Hayward, CA 94541
(510) 247-1100
Robert Gezi
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 445-7544
Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by San Diego County Property line attorney.
[1] At this hearing, there was discussion of a second degree felony murder instruction with child abuse serving as the underlying felony. On appeal, defendant does not contend the failure to give such an instruction was error; rather, he asserts that, at the time of the crimes, second degree felony murder based on the predicate felony of torture ( 206) constituted a lesser included offense of first degree murder by torture, and that instruction on this theory was required. Without deciding the merits of this theory (cf. People v. Cole (2004) 33 Cal.4th 1158, 1219-1220), we accept it for purposes of addressing defendants contentions on appeal.
[2] The court instructed: [] To find that the special circumstance referred to in these instructions as murder involving infliction of torture is true, each of the following facts must be proved: [] One, the defendant intended to kill, or with intent to kill, aided and abetted in the killing of a human being. [] Two, the defendant intended to inflict extreme cruel physical pain and suffering upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose. [] And, three, the defendant did inflict extreme cruel physical pain and suffering upon a living human being no matter how long its duration. [] Awareness of pain by the deceased is not a necessary element of torture.
