Los Angeles County Super. Ct. No. A530714. Judge: Charles E. Horan
The opinion of the court was delivered by: Moreno, J.
In 1984, defendant Michael Anthony Jackson was convicted and sentenced to death for murdering a police officer who was engaged in the performance of his duties. This court affirmed the judgment in People v. Jackson (1989) 49 Cal.3d 1170, but the Ninth Circuit Court of Appeals set aside the penalty verdict and death sentence, finding defendant had received ineffective assistance of counsel. (Jackson v. Calderon (9th Cir. 1998) 211 F.3d 1148.) Following a penalty phase retrial, a judgment of death again was imposed on September 20, 2002. This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) As explained below, we affirm the judgment.
Shortly after noon on August 31, 1983, West Covina Police Officer Ken Wrede radioed that he had been told by a citizen of an intoxicated person in the area and would "be checking." A few minutes later, Edward Butler,*fn1 who was working in the area, noticed defendant walking toward the corner of Glenview Road and Francisquito Avenue. Defendant was walking "kinda crooked." Officer Wrede arrived, made a U-turn, and pulled to the curb at an angle. He radioed that defendant was "possibly dusted," meaning under the influence of phencyclidine (PCP), and requested backup. Officer Wrede got out of the vehicle, asked defendant where he was going, and told defendant to sit down on the curb.*fn2
Defendant began to walk away and the officer used his walkie-talkie to again request backup.*fn3 The officer again told defendant to sit down on the curb, but defendant continued walking. The officer approached defendant "and kind of tapped him in the back of the knees with the billy club." Defendant "turned around and he started fighting."*fn4
Defendant and the officer fell to the ground and began "tussling" and fighting. Defendant was punching and kicking the officer. Officer Wrede tried to defend himself and struck defendant in the midsection with his baton several times, to no effect. Officer Wrede sprayed mace in defendant's face several times, with no apparent effect. Defendant pulled a wooden tree stake out of the ground, uprooting the tree it was supporting, and swung the stake at the officer, who blocked it with his baton, causing the stake to fly into the street. During the altercation, defendant ripped the officer's badge from his uniform and broke his sunglasses.
Officer Wrede ran to the driver's side door of the police vehicle and defendant ran to the opposite side of the vehicle, opened the passenger side door and grabbed a shotgun that was secured in a rack. Officer Wrede broadcast, "he's got my shotgun rack," and then pushed defendant and they struggled over the shotgun until defendant ripped the shotgun and the rack from the vehicle.*fn5 Officer Wrede broadcast, "he pulled it out," and then pointed his handgun at defendant over the roof of the vehicle. The shotgun was kept in the rack at "patrol ready," meaning there were four rounds of ammunition in the magazine and the safety was on. To fire the shotgun, the safety must be off and a round must be moved from the magazine to the firing chamber by sliding the pump action. Defendant attempted to load a round into the shotgun by sliding the pump. He pointed the weapon at the victim and appeared to pull the trigger, but the shotgun did not fire. Defendant again tried to load the weapon, which was still in the rack. This time, defendant was able to move the slide and Dunham heard the sound of a load entering the firing chamber of the shotgun. Officer Wrede crouched down behind the vehicle, still pointing his gun at defendant. Defendant then laid the shotgun on the roof of the vehicle and placed his hands on the roof of the vehicle, appearing to give up. Officer Wrede pointed his gun up, above defendant, and started to walk around the vehicle when defendant picked up the shotgun and shot the officer in the head.
Los Angeles Deputy Sheriff Stephen Vine was told by a passing motorist that a fight was occurring and arrived at the scene just after Officer Wrede was shot. Deputy Vine pulled his vehicle next to Officer Wrede's vehicle and saw Officer Wrede's body on the ground. As Deputy Vine left his vehicle, defendant stood up from behind Officer Wrede's vehicle and pointed the shotgun at Deputy Vine. Deputy Vine ducked back into his vehicle, backed away from defendant a couple of hundred feet, and jumped back out of the vehicle with his gun drawn. Defendant was walking toward the deputy, pointing the shotgun at him. Defendant appeared to be trying to both pull the trigger and move the slide to load a round into the shotgun.
West Covina Police Officer Arthur Marinello and his police dog came up behind defendant. Deputy Vine yelled for Officer Marinello to shoot defendant or release his dog. Defendant responded by repeating "I'll shoot you" and "I will kill all you fucking pigs," as he continued to point the shotgun at the deputy while both pulling at the trigger and trying to load a round into the chamber. Officer Marinello released his dog. Defendant struck the dog with the butt of the shotgun, stunning the animal, but the dog recovered and bit defendant, causing him to fall to the ground and drop the shotgun. West Covina Police Officer Christopher Mohler, who had arrived on the scene on his motorcycle just after Deputy Vine, ran into the street, kicked the shotgun to the side and grabbed defendant's arm as Officer Marinello grabbed defendant's other arm. Defendant struggled and tried to grab Officer Marinello's gun and Officer Mohler's gun. Deputy Vine approached and struck defendant in the stomach with his baton three or four times, subduing defendant enough to permit the other officers to handcuff defendant.
Deputy Sheriff Sabino Muniz arrived at the West Covina Police Station shortly after defendant was arrested and accompanied defendant as paramedics transported him to a hospital for treatment. The parties stipulated that a blood sample taken from defendant shortly after the crime revealed the presence of PCP. At the hospital, defendant answered the deputy's preliminary questions, stating his name, age, birthday, address and other information without difficulty or apparent confusion. A couple of hours later, after defendant had been treated, defendant asked Deputy Muniz: "Why am I under arrest? Am I being charged for killing a cop?" To Deputy Muniz's knowledge, no one had mentioned in defendant's presence that a police officer had been killed.
Los Angeles County Sheriff Detective Sergeant Michael Lee, a homicide investigator, later questioned defendant in his hospital room in the jail ward. He advised defendant of his rights, which defendant waived. Defendant was responsive and appeared to understand. Defendant asked Sergeant Lee what he was being arrested for, and Sergeant Lee answered, "murder." Defendant asked, "I killed a policeman?" The next day, Sergeant Lee and his partner returned and asked defendant if he remembered them. Defendant replied, "Yeah, you're the cops that said I shot that officer with a shotgun." To Sergeant Lee's knowledge, no one had told defendant that Officer Wrede had been killed with a shotgun. Sergeant Lee asked defendant how he knew Officer Wrede had been killed with a shotgun. Defendant replied he had read it in the newspaper, but newspapers were not available in the jail ward and defendant's wrists were secured to the sides of his bed.
George T. testified that seven years earlier on June 18, 1976, when he was 17 years old and in the Army, defendant and another man entered his barracks at 11 p.m. and climbed into his bunk. Defendant's accomplice struck the witness in the face and defendant sodomized him, causing his rectum to bleed.
Raul Curiel testified that on April 16, 1969, when he was 18 years old, he was walking with a friend in West Covina when they were summoned by defendant, who was 15 years old, and an accomplice. Defendant's accomplice poked a knife in Curiel's stomach and demanded money. Curiel responded that he had no money, turning his pockets inside out and throwing to the ground his wallet and a Department of Motor Vehicles (DMV) application for a driver's license. Defendant then took the knife and demanded Curiel's cigarettes. Curiel handed defendant his cigarettes and defendant poked him in the stomach with the knife. Defendant then returned the pack of cigarettes and he and his accomplice ran off. Curiel encountered a police officer and reported that he had been robbed. Defendant and another man were arrested a short time later and Curiel's wallet and DMV application were recovered. Two knives were recovered from defendant.
George Dorta testified that on July 5, 1983 he was a West Covina police officer and conducted a traffic stop of a vehicle that was weaving. The vehicle stopped in a gas station with a minimarket and Officer Dorta approached the driver and asked for his driver's license. Defendant, who was a passenger in the vehicle said "you don't have to do that" and got out of the vehicle and walked toward the officer with clenched fists. The driver also left the vehicle and began walking toward the officer, who retreated behind the pumps, drew his gun and ordered them to stop. Defendant cursed at Officer Dorta, but withdrew to the minimarket.
Officer Gregory Bennallack arrived in response to a request by Officer Dorta for backup and learned from Officer Dorta that defendant was in the minimarket and possibly was under the influence of PCP. Officer Bennallack entered the market and told defendant to come outside. Defendant said "Fuck you, I don't want to talk to you" and began to walk away. Officer Bennallack put his hand on defendant's shoulder and said they needed to go outside and talk. Defendant again refused and then grabbed the officer with one hand and ripped his badge from his shirt with the other. Officer Bennallack struck defendant in the legs several times with his baton, which had no effect. Defendant again grabbed for the officer's badge, which was hanging from the officer's shirt and reached for the officer's gun. Officer Bennallack punched defendant in the face, causing him to fall on his face, kneeled on top of him, and handcuffed him. After defendant was booked, he threaten to rape Officer Bennallack's wife and kill his children.
Friends who knew and worked with the deceased described kind and heroic acts Officer Wrede had performed and recalled how highly people thought of him. Officer Wrede's sisters testified about his childhood, his devotion to his family and his profession, and the impact of his death on his family. The victim's wife described their life together and the impact his death had on her. His parents testified about their love for their son and how much they missed him.
Evidence was introduced that defendant had suffered a felony conviction for burglary in 1974.
The defense read to the jury the prior testimony of Lucinda Smith, who had died prior to the penalty phase retrial. She had seen defendant on the street shortly before noon on August 31, 1983. He had socks on, but no shoes, and appeared disoriented. She continued down the street and encountered Officer Wrede and told him about defendant. Officer Wrede said he would take care of it.
James Butler testified he had been defendant's friend since 1983 and they would smoke PCP together several times a week. About 10 a.m. on August 31, 1989, defendant came to Butler's house with two young women and Butler gave defendant a PCP-laced cigarette. At some point, defendant kicked off his sandals and ran off.
Defendant's mother, Lillian Williams, testified that defendant was one of her six children, fathered by three different men, two of whom were deceased at the time of trial. Defendant's father, Tamridge Jackson, was a "bookie" who never lived with or supported defendant. Williams supported her family on "county aid." They lived in "shacks." Defendant was born in March 1954. The next year, Williams met and later moved in with Arthur Morrissette, until he left her for another woman five years later.
Williams admitted that she "whooped" all of her children, meaning that when angered she would strike the children with whatever object was handy. On one occasion, she choked defendant. Two of defendant's sisters and one of his brothers confirmed this.
In 1960, Lillian Williams met Mr. Williams. The next year, he and five of his six children moved in with her, so they had 11 children living in a two-bedroom house. Defendant had played sports and wanted to be a professional athlete, but around the age of 14 or 15 he began using drugs; first sniffing glue and later using PCP.
Pamela Jackson, defendant's sister, described how, as children, she and defendant would go looking for their father in "bookie joints." Although he was happy to see them, he would make them leave and never spent time with them. At home, their mother would administer whippings using a belt or extension cord, but only if they misbehaved.
Defendant's 28-year-old daughter, Shameka Dahlberg, testified that defendant has been in custody since she was eight years old but she has visited him and he calls her on the telephone every few months. She thinks of him more as a friend than as a parent.
Defendant's wife, Sabrina Jackson, testified. Defendant married Sabrina when he was in his "early 20's." She had a child when they met and she and defendant had two more children. On cross examination, Sabrina testified that defendant was capable of taking care of himself and his family, when he was not taking drugs. Defendant "wasn't the greatest writer the greatest reader," but he could read and write.
Dr. Dale Watson, a psychologist specializing in neuropsychology, tested defendant and testified that defendant has "borderline intellectual abilities. His intelligence quotient (IQ) is in what is called the borderline range. It is just about retarded." Defendant had a "moderate degree of impairment of the brain functions." Defendant's "full scale IQ, which is a combination of both verbal and non-verbal abilities, was 79. And his verbal IQ, which is simply his ability to deal with verbal information, was also 79. His non-verbal or performance IQ was 83. All of these scores fall within what is called the borderline range." An average IQ is 100. Defendant's IQ was tested on numerous occasions between 1967 and 1980 and varied between a low of 72 and a high of 90. Defendant displayed several types of brain impairment. Outside the presence of the jury, Dr. Watson told the court that the term "mentally retarded" meant "a score of approximately 70," but that could mean an IQ of up to 75 because there was up to a five-point margin of error in testing. Defendant never had received an IQ score below 70.
Dr. Jay Jackman, a forensic psychiatrist, testified that the beatings inflicted by defendant's mother "severely impaired his development." Defendant "has borderline intelligence and he has brain impairment." "PCP is classed as a dissociative anesthetic. And what that means is that it will reduce people's level of sensation to such a degree that they can have surgical anesthesia and be alert and awake and not feel pain." The amount of PCP measured in defendant's blood following the crime "would result in a significant intoxication and impairment."
James Esten, a "correctional consultant," examined defendant's prison records and testified that he would not pose a threat to inmates or staff if he was sentenced to life in prison without parole.
C. Prosecution's Rebuttal Evidence
On rebuttal, Daniel Smith testified that on July 27, 1969, he was returning home from the store with loaves of bread and some food stamps while running an errand for his mother. As he rode through an alley on his bicycle, several people, led by defendant, jumped out of an automobile and ordered him to stop. When he did not stop, one of them threw a rock, which hit him on the arm, causing him to fall off his bicycle. Defendant and another person grabbed Smith and threw him up against a wall. One person threatened Smith with a rock while defendant emptied his pockets and ripped a St. Christopher medal from his neck. They took everything he had, including the bread and the food stamps. Smith later told his family, who notified the police, and defendant was arrested.
Dr. Terrence McGee, a physician specializing in addiction medicine, testified that the high level of PCP in defendant's blood at the time of the crime indicated defendant had developed a tolerance for the drug. Dr. McGee opined that although defendant was under the influence of PCP, "it was a very minor pattern."
A. Denial of Continuance to Prepare Atkins Defense
On March 13, 2001, pursuant to the decision of the Ninth Circuit Court of Appeals, the federal district court denied defendant's petition for writ of habeas corpus "as to the guilt phase" and granted his petition "as to the penalty phase of that proceeding." On April 24, 2001, the case was called in the Los Angeles Superior Court. Defendant was not present but was represented by the public defender. The public defender declared a conflict of interest and was relieved as counsel and the case was continued to April 30, 2001.
On April 30, 2001, defendant was present in court and counsel was appointed to represent him. Defendant waived the statutory time for trial and the case was continued numerous times. On February 27, 2002, the trial court granted defendant's request to continue the trial to May 29, 2002, but noted that no further continuances would be granted and trial would commence on that date.
On May 6, 2002, defense counsel filed a written motion for continuance, stating that obligations in other cases had prevented him from adequately preparing for the penalty phase retrial. On May 10, 2002, the trial court granted the motion and continued the trial to July 1, 2002.
On June 20, 2002, the United States Supreme Court held in Atkins v. Virginia (2002) 536 U.S. 304, 321, that executing a mentally retarded defendant is prohibited by the Eighth Amendment to the United States Constitution as "cruel and unusual" punishment. The high court noted that "clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18."*fn6 (Id. at p. 318.) The high court, however, left to the states the task of establishing procedures to determine which offenders were retarded. (Id. at p. 317.)
On June 24, 2002, defendant filed a written motion to continue the trial "due to the decision of the Supreme Court of the United States in Atkins v. Virginia." The motion stated that the high court had ruled "that mentally retarded people could not receive the death penalty," but defendant's motion acknowledged that "[t]he issue that is not clear is what constitutes being mentally retarded." Defendant stated: "The Supreme Court has decided that the individual States should define what Mental Retardation means. There is no definition of Mental Retardation for this purpose in California Law. The Supreme Court does not define Mental Retardation in this decision."
The motion for continuance stated that a week earlier (three days prior to Atkins) defendant had been tested to determine if he "was a 'brain damaged' person" and he was determined to have an IQ of 79, which defense counsel described as "borderline for retardation." Defense counsel requested a 60-day continuance, stating he could not be ready for trial until he investigated "the adaptive functioning factors that are mentioned in the Atkins v. Virginia opinion."
At a hearing on the motion conducted that day, the trial court indicated it was not inclined to continue the case, asking defense counsel what he hoped to learn. Defense counsel responded that he hoped the Legislature would define mental retardation. The trial court stated: "I'm not going to continue the case based on what the Legislature may or may not do. The period of time for a bill to get through our legislature at a minimum you are talking months, counsel. It is speculative and I will not do it. I cannot see any reason at all to continue the matter. None at all. If you have evidence that your client is mentally retarded, that is evidence that you would put on in any event. The record will be clear that it is an issue and both sides should be prepared to put on whatever they have in the issue. These cases are not going to be resolved at the trial level. Not for many years will there be given a standard to give to the jurors. I'm not going to try to explain to the jury that if the person is 'mentally retarded' they should not impose the death sentence. I don't feel equipped to do that. There would be no guidance here for this court to do it and it would be an exercise in futility." The penalty phase retrial commenced on July 1, 2002.
Defendant contends the trial court deprived him of his rights to the assistance of counsel and due process of law under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution by denying his motion to continue the trial. "The determination of whether a continuance should be granted rests within the sound discretion of the trial court, although that discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare." (People v. Sakarias (2000) 22 Cal.4th 596, 646.)
The trial court did not abuse its discretion in denying defendant a continuance to investigate "the adaptive functioning factors that are mentioned in the Atkins v. Virginia opinion" and to wait for the Legislature to define mental retardation. Defendant asserts: "The trial court was required to follow the law set forth in Atkins." The trial court did so. Atkins simply held that mentally retarded defendants could not be executed and left it to the states to define mental retardation and establish procedures to determine which defendants were mentally retarded. The trial court was correct that it would be months, at least, before the Legislature would define mental retardation and establish the necessary procedures for determining which defendants were mentally retarded. In fact, it was not until the following year that the Legislature enacted Penal Code section 1376,*fn7 which defines "mentally retarded" and establishes procedures for determining whether a defendant is mentally retarded.*fn8 The trial court, therefore, did not violate the holding in Atkins by proceeding to trial in the absence of guidance from the Legislature on how to implement the holding in that case and did not abuse its discretion in denying defendant's motion to continue the trial.
Even had defendant established that the trial court abused its discretion in denying his motion to continue the trial in light of the high court's decision in Atkins, the record before this court does not establish that defendant was prejudiced. (People v. Zapien (1993) 4 Cal.4th 929, 972 [" 'In the lack of a showing of an abuse of discretion or of prejudice to the defendant, a denial of his motion for a continuance cannot result in a reversal of a judgment of conviction.' "].) Nothing in the record before us suggested that defendant would have been able to show that he was retarded had the trial court granted his request for a continuance. Defendant's expert did not testify he was retarded, but rather that he was in "the borderline range" and "just about retarded." Defendant does not argue in this court that he is retarded. He argues only that "the question of whether [defendant] is mentally retarded has never been adequately investigated as a discrete and decisive issue."
Defendant contends he must be granted a new penalty phase trial at which jurors have the opportunity to decide whether he is mentally retarded. Defendant asserts that he has a right to have a jury determine whether he is mentally retarded under Ring v. Arizona (2002) 536 U.S. 584, which held that the Sixth Amendment to the United States Constitution requires that a jury must determine all facts that make a defendant eligible for the death penalty. Defendant asserts that "Atkins expressly transformed mental retardation from solely a mitigating factor into a 'narrowing' circumstance that determines a defendant's eligibility for the death penalty."
As noted above, the Legislature in 2003 enacted section 1376, which grants a defendant "[i]n any case in which the prosecution seeks the death penalty . . . a jury hearing to determine if the defendant is mentally retarded" if the defendant first submits "a declaration of a qualified expert stating his or her opinion that the defendant is mentally retarded." Two years later, this court held that section 1376 applied only to preconviction proceedings and adopted a similar procedure for defendants challenging a judgment of death. (In re Hawthorne (2005) 35 Cal.4th 40, 47.) We held that such a post-conviction claim of mental retardation "should be raised by petition for writ of habeas corpus . . . . To state a prima facie claim for relief, the petition must contain 'a declaration by a qualified expert stating his or her opinion that the [petitioner] is mentally retarded . . . .' [Citation.]" (Ibid.) We did not, however, grant a similar right to a jury trial, deeming it "inappropriate to extend the jury trial option to post-conviction claims." (Id. at p. 49.) We held there was "no constitutional mandate" to have a jury determine whether a ...