Los Angeles County Super. Ct. No. NA019605 Judge: James B. Pierce
The opinion of the court was delivered by: Corrigan, J.
Defendant Raymond Oscar Butler was convicted of two counts each of murder, robbery, and carjacking.*fn1 On all charges, the jury found that defendant personally used a firearm; on the robbery and carjacking charges, it found that he inflicted great bodily injury.*fn2 The jury found as special circumstances that the murders were committed during the attempted commission of a robbery, and were multiple murders.*fn3 It fixed the penalty at death. We affirm the judgment.
The facts are summarized here for background purposes. Further factual and procedural details are provided in the discussion of defendant‟s appellate arguments.
On the night of March 25, 1994, defendant approached Takuma Ito and Go Matsuura in the parking lot of a Ralphs grocery store in San Pedro. Ito and Matsuura were Japanese citizens attending Marymount College. Ito had gotten out of his car; Matsuura was in the passenger seat. As Ito stood by the open driver‟s side door, defendant confronted him and demanded money. Defendant took Ito‟s wallet, removed cash from it, then forced Ito to the ground and shot him in the back of the head. After a brief pause, defendant fired several times into the car, also striking Matsuura in the head at close range. Defendant drove away in Ito‟s car, leaving his victims in the parking lot. Ito and Matsuura were taken to the hospital and kept on life support until their families arrived from Japan.
Ito‟s car was found the next day. Defendant was arrested a few days later, after an eyewitness identified him in a photographic lineup. He was later implicated in the murders by the three companions who drove with him to the Ralphs parking lot: his sister-in-law Kelli Waquan, Waquan‟s niece Christine Munoz, and Munoz‟s friend Irene Ruiz.
Only a minimal defense was presented at the guilt phase. Defense counsel established that fingerprints found inside Ito‟s car were not defendant‟s, and briefly questioned two police officers regarding their interviews with witnesses.
The centerpiece of the prosecution‟s penalty phase evidence was defendant‟s participation in the murder of a fellow jail inmate while defendant was awaiting trial for the Ito and Matsuura murders. The victim, Tyrone Flemming, and defendant were housed in a high-security unit. Flemming was generally disrespectful and abusive both of inmates and deputies in the jail. On the morning of March 26, 1995, Deputy Jose Mendoza prepared to take Flemming, Paul Gornick, Daniel Rivera, and defendant to the showers. He entered each cell to handcuff the inmates, then stepped behind the row gate and locked it. The procedure was for the inmates to approach the gate, at which point it would be opened and the deputy would escort them to the showers.
Mendoza called for Deputy John Hunter to open the four inmates‟ cell doors from a control booth. As they emerged, Mendoza saw that Gornick‟s right hand was uncuffed. Gornick unlocked the cuff on defendant‟s right hand. Gornick, defendant, and Rivera surrounded Flemming, who remained handcuffed, as did Rivera. Gornick began stabbing Flemming in the chest with a metal shank, while defendant hit Flemming in the face with his fist, kicked him, and kneed him. Rivera kicked, kneed, and elbowed Flemming. After stabbing Flemming five to eight times, Gornick handed the shank to defendant. Defendant also stabbed Flemming five to eight times in the upper torso, while Gornick and Rivera struck and kicked him. Flemming managed to break away and run toward the row gate, where he fell to his knees. Gornick, Rivera, and defendant followed and kicked him while he was on the floor.
After Mendoza sprayed them with pepper spray, the attackers ran to the other end of the row. Defendant made an underhand throwing motion into one of the cells. Shortly thereafter, a toilet flushed. The three inmates lay on the floor of the row with their hands behind their backs. Deputies arrived and tended to Flemming, whose wounds proved fatal. When Mendoza and other deputies approached the attackers, Mendoza saw that Gornick and defendant were handcuffed again. The entire episode lasted less than a minute.
Deputies in the jail are unarmed. Inmates are aware that a fight involving a weapon will not be impeded until backup deputies arrive. Killing another inmate in front of a deputy gains the respect of other inmates, both in jail and in the subsequent prison environment. Hunter had called for backup as soon as he saw the attackers approach Flemming. When the row was searched, no shank was found. Inmates often dispose of a weapon by flushing it down the toilet when it is thrown into their cell after an attack. When Hunter heard the toilet flush, he shut off the water to the module, but the shank used to kill Flemming was not found. Inmates commonly have makeshift handcuff keys, and Gornick was known to be able to use them. There was no retaliation against defendant, Gornick, or Rivera. Ordinarily, there would have been a reprisal for an attack by Hispanics on an African-American inmate, unless there were an understanding between the groups. Flemming was African-American; defendant testified that he and Gornick were of mixed racial heritage, and associated with Hispanics in the jail.
The prosecution also presented evidence that on three occasions, prohibited razor blades were found in defendant‟s cell. In addition, a deputy testified that in February 1996, as he took defendant and other inmates back from court, defendant managed to free one hand from his cuffs and strike another inmate in the face with his fist, without provocation. This inmate was charged with setting a house fire in which his children had died. The prosecution also showed that defendant had been convicted of residential burglary in September 1993.
The fathers of Takuma Ito and Go Matsuura testified about their sons, and the impact of the murders on their families.
Defendant testified at the penalty phase. He said that on the day of the murders he had met with his probation officer, who persuaded him to check into a drug rehabilitation clinic. Afterward, he went to Kelli Waquan‟s house, drank some tequila, and decided to go out with her, Christine Munoz, and Irene Ruiz. Waquan, Munoz, and defendant left in Waquan‟s van around 6:30 p.m. and picked up Ruiz. Defendant had the revolver that he always carried when he went out. It was unloaded, but he had bullets in his pocket. He had no particular plan to use it. He had been given the gun by a fellow Rancho San Pedro gang member, because the gang was at war with the Crips.
Waquan drove to a liquor store and bought two bottles of Thunderbird, which defendant drank as they drove around. Defendant bought some crack cocaine, which he shared with Waquan. They bought more alcohol and crack cocaine, which all four smoked. They then bought more cocaine on credit and smoked that. Someone in the van brought up the idea of committing a robbery, but defendant maintained it was not his idea. By the time they got to the crime scene, defendant was quite inebriated.
In the Ralphs parking lot, defendant approached Ito and asked for a ride, intending to go somewhere else for the robbery. Ito pulled the car seat back for defendant to get in. Defendant had loaded his gun before leaving the van, and had it in his hand. As he was getting into the car, the gun went off by accident. Only then did he notice Matsuura in the car. He panicked and began shooting until his ammunition was gone. He could not remember what he was thinking at the time. He turned to go back to the van, but Waquan drove away. Defendant got into Ito‟s car and left in it. He did not know how the victims‟ bodies came to be in the positions where they were found in the parking lot.
The defense played tapes of three statements defendant gave after his arrest. In the course of these interviews, defendant eventually admitted that he alone had been the shooter, and expressed remorse for the victims and their families.
Regarding Flemming‟s murder, defendant testified that Gornick and Rivera were friends of his. Defendant disliked Flemming, who had verbally abused him, but the real conflict was between Gornick and Flemming. After a cell search, Gornick‟s address book had been mistakenly returned to Flemming‟s cell. Flemming threatened Gornick‟s family members, and the dispute was well known on the row. Gornick had to take action against Flemming, or the other inmates would consider him a coward. Other inmates testified about Flemming‟s threats against Gornick and his family.
Defendant knew that Gornick and Flemming were going to fight on the morning of the murder, but he expected only a fist fight. Gornick did not unshackle him when they left their cells. He and Rivera moved to shield Gornick and Flemming from the deputies‟ view. Defendant kept his back to the fight for most of the time, moving in an attempt to keep blocking the deputies‟ view, but he did see Gornick stab Flemming and the blood pour from Flemming‟s chest. Flemming was handcuffed, and kicking at Gornick. He bumped into defendant as he attempted to escape, and kicked at him. Defendant kicked back three or four times, as he and Rivera tried to keep Flemming from reaching the row gate. After Mendoza hit him with pepper spray, defendant stepped away from the gate and Gornick handed him a shank. Defendant ran down the row and tossed the shank into a cell, knowing the inmate would flush it down the toilet. Defendant would have done the same if someone threw a shank into his cell. He lay down on the floor, still in his handcuffs, which were never unlocked during the attack.
Defendant testified that he had razor blades in his cell for general use, not as weapons. He said he had struck the accused child-killer after unlocking his handcuffs with a makeshift key because other inmates would consider him a "punk" if he did not take the opportunity to do so.
Defendant told the jury that he first drank alcohol when he was eight years old, and was drinking regularly by age 11 or 12. He began using marijuana when he was 12 or 13, and harder drugs a year later. At the age of 15 or 16, his use was habitual and he was selling drugs to support his habit. He had a daughter, whom he had never met but with whom he planned to establish a relationship while in jail.
Defendant‟s relatives testified to a family history of drug and alcohol abuse. Defendant was a slow learner in grade school, and was often absent. He had asthma and his mother kept him home frequently. He attended three different junior high schools, often fighting to protect his younger brother. He transferred from high school to a continuation school in 10th grade because he was failing and not attending class. He dropped out of the continuation school after a year. He never earned a high school equivalency degree.
On March 22, 1993, at the age of 17, defendant attempted suicide with pills and alcohol. He testified that the attempt was the result of arguing with his mother about his girlfriend. He tried to overdose on two other occasions. He was diagnosed with major depression, poly-substance abuse, antisocial personality traits, and a "parent-child problem." He told a psychiatrist that he had a gun, would use it to make money, and was willing to kill someone for that purpose. Although he was cooperative at times, defendant became abusive and hostile in the hospital and was discharged early at his family‟s request.
Defendant testified that his burglary conviction resulted from an incident in which he had served as a lookout while someone else entered a residence to steal speakers. He was arrested the same day and pleaded no contest. He was sentenced to a year in jail on September 15, 1993, and released about three months before the murders. His probation officer testified that defendant had violated the conditions of his probation by using drugs, failing to appear for drug testing, failing a drug test that he did take, and failing to report to the officer. On the day he killed Ito and Matsuura, defendant‟s mother brought him to meet his probation officer. The officer told him he was in violation of his probation, would have to go to court, and could be sentenced to prison, though enrolling in a drug program might be viewed positively by the court.
A clinical psychologist interviewed defendant and reviewed his family history, as well as school, medical, and criminal records. He diagnosed defendant with poly-substance abuse and cocaine-induced psychotic disorder with delusions. Defendant had a borderline personality and moderate depression. His general adaptive functioning was normal, and there was no evidence of brain damage.
A. Denial of Defendant's Joinder Motion
On February 7, 1996, defendant moved to consolidate trial of the Ito and Matsuura murders (the Long Beach case) with the Flemming murder trial (the Compton case). Jury selection was set to begin on February 21 in Long Beach. A pretrial hearing was set for February 14 in Compton, where Gornick and Rivera were charged as codefendants. The Compton information alleged a special circumstance against Gornick, though a determination to seek the death penalty against him had not yet been made. No special circumstances were alleged against defendant in the Compton case at that point.
In a declaration supporting joinder, defense counsel claimed that the prosecutor had told the Compton judge that if the Long Beach jury did not return the death penalty, the Compton charges would be amended to use the Long Beach murders as special circumstances. Thus, he asserted, the prosecutor was keeping the cases separate in order to have two opportunities to obtain the death penalty based on the same set of facts. Counsel cited no authority in his papers other than section 954.*fn4 He argued that consolidation would be efficient because "it can be expected that [defendant‟s] case will be severed from his codefendants‟."
The prosecutor opposed joinder, contending it would cause unnecessary delay and complexity. She noted that defense counsel had known for months that the Flemming murder would come up in the Long Beach penalty phase, but had waited until the eve of trial to seek joinder. The murders in the two cases were factually unrelated. Consolidation would require the jury to consider different legal theories, felony murder in the Long Beach case and willful murder in the Compton case. Gornick and Rivera were not ready to proceed to trial, nor was the prosecution, which had not yet determined whether Gornick would face the death penalty. Gornick and defendant were both proceeding in propria persona in Compton. While defense counsel in the Long Beach case was acting as defendant‟s advisory counsel in Compton, no advisory counsel had yet been appointed for Gornick. The prosecutor argued that it would be unfair to Gornick and Rivera to combine their trial with defendant‟s capital case. If severance was the answer to this problem, it was premature of defendant to seek consolidation in the first place.
At the hearing on the motion, defense counsel emphasized that he did not intend to include the Gornick and Rivera prosecutions in the consolidation, but to sever defendant‟s case from theirs. He claimed that all three defendants were likely to seek severances in the Compton case. The court denied the motion. It noted that before it could consider consolidating defendant‟s cases, it would have to provide notice and a hearing to Gornick and Rivera on the question of severance. Although defense counsel asserted that Gornick and Rivera would not oppose a severance, based on his conversations with their counsel, the court was unwilling to countenance the complications and delays entailed in consolidation.
Defendant recognizes that granting joinder is a matter of discretion. Section 954 "permits but does not require joinder under some circumstances." (People v. Marlow (2004) 34 Cal.4th 131, 143.) Defendant claims the court abused its discretion here.*fn5 He does not dispute that undue complication would have arisen if the Gornick and Rivera charges had been included in a consolidated trial. His argument presupposes that the Gornick and Rivera cases would have been severed. However, he did not seek a severance in Compton, or make a competent showing of what the other defendants‟ position on severance was. Defense counsel could not speak for Gornick or Rivera. Indeed, he could not speak for defendant‟s interests in the Compton case, because defendant was representing himself in that proceeding. Although present at the hearing on the joinder motion, defendant did not make his position known. Instead of seeking defendant‟s cooperation in pursuing a severance, defense counsel waited until shortly before the Long Beach trial to seek consolidation, based merely on the prospect of a severance in the other case and on his personal assurances regarding the views of Rivera‟s counsel and Gornick on the subject. Faced with the uncertainty, complication, and delay arising from the severance question alone, the trial court was well within its discretion to deny defendant‟s joinder motion.
B. Limitation of Voir Dire
At the same hearing, the prosecutor raised a voir dire matter. She noted that defense counsel had said he would ask the court to question jurors about the "third killing in jail." The prosecutor strongly objected to this idea, contending it would be reversible error to inform the jury about a third killing of which defendant had not been convicted. She asked the court to require written submissions on the propriety of such questioning.
Defense counsel responded that the penalty phase was the most crucial part of the case, and he wanted to explore whether any juror "would automatically vote for death, if they knew about the jail killing." He claimed, "The only way I can know that is if they have been asked, knowing that [defendant] is charged in this jail killing and is involved in this jail killing." Counsel noted that a jailhouse killing was powerful evidence suggesting defendant would be a threat even if imprisoned for life. He argued that it would be unfair for the jury to "suddenly" learn about such an event for the first time at the penalty phase, and that allowing the prosecutor to "surprise the jury with this evidence" would be "devastating to my client." He offered to make any waivers necessary to permit the jury to be told that defendant "was involved in a killing inside the jail."
The prosecutor declared that the jury would be "irreparably taint[ed]" in their guilt phase deliberations if they knew about the third killing. She claimed the jury questionnaires, which addressed the fact that the case involved "multiple killings," were sufficient to explore the jurors‟ attitudes about the death penalty.
The court said it had given this question "a great deal of thought," and had concluded it would be inappropriate "to go into aggravating and mitigating circumstances in the specifics, not the abstract." It would be enough to question the jurors generally about "multiple killings," without "asking them to prejudge the case."
The juror questionnaire asked whether "[a]nyone who intentionally kills more than one person without legal justification and not in self defense, should receive the death penalty." Before voir dire began, defense counsel asked the court, "I gather you do not want me to say anything about the jail killing . . . is that correct?" The court responded in the affirmative, telling counsel he was free to follow up on any responses from the questionnaires, but not to "get into details of the facts of the case."
Defendant contends this restriction on voir dire was an abuse of discretion, and denied him his right to a fair and impartial jury.*fn6 We recently summarized the law governing this issue in People v. Zambrano (2007) 41 Cal.4th 1082: " "[T]he trial court has "considerable discretion . . . to contain voir dire within reasonable limits" [citations]. This discretion extends to the process of death-qualification voir dire established by Witherspoon v. Illinois (1968) 391 U.S. 510, and Wainwright v. Witt [(1985)] 469 U.S. 412. [Citation.] Limitations on voir dire are subject to review for abuse of discretion. [Citation.]‟ (People v. Jenkins (2000) 22 Cal.4th 900, 990 (Jenkins).)
"Moreover, as we have said on many occasions, "[d]efendant ha[s] no right to ask specific questions that invite[ ] prospective jurors to prejudge the penalty issue based on a summary of the aggravating and mitigating evidence (People v. Cash (2002) 28 Cal.4th 703, 721-722), to educate the jury as to the facts of the case (People v. Sanders (1995) 11 Cal.4th 475, 538-539), or to instruct the jury in matters of law (People v. Ashmus (1991) 54 Cal.3d 932, 959).‟ (People v. Burgener (2003) 29 Cal.4th 833, 865; see also, e.g., People v. Mason (1991) 52 Cal.3d 909, 939-941 (Mason).)
"We have explained that "[t]he Witherspoon-Witt . . . voir dire seeks to determine only the views of the prospective jurors about capital punishment in the abstract . . . . The inquiry is directed to whether, without knowing the specifics of the case, the juror has an "open mind" on the penalty determination.‟ (People v. Clark (1990) 50 Cal.3d 583, 597 . . . .) In Mason, alluding to the facts there presented, we said that "[m]any persons whose general neutrality toward capital punishment qualifies them to sit as jurors might, if presented with the gruesome details of a multiple-murder case, conclude that they would likely, if not automatically, vote for death.‟ (Mason, supra, 52 Cal.3d 909, 940; see also People v. Sanders, supra, 11 Cal.4th 475, 539.)
"On the other hand, we have indicated that because " "[a] prospective juror who would invariably vote either for or against the death penalty because of one or more circumstances likely to be present in the case being tried, without regard to the strength of aggravating and mitigating circumstances, is . . . subject to challenge for cause," ‟ the death qualification process "must probe "prospective jurors‟ death penalty views as applied to the general facts of the case, whether or not those facts [have] been expressly charged." ‟ (People v. Earp (1999) 20 Cal.4th 826, 853 . . . .)
"Reconciling these competing principles dictates that "death-qualification voir dire must avoid two extremes. On the one hand, it must not be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair the performance of their duties in the case being tried. On the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and aggravating evidence likely to be presented. [Citation.] In deciding where to strike the balance in a particular case, trial courts have considerable discretion. [Citations.] (People v. Cash, supra, 28 Cal.4th 703, 721-722.)" (People v. Zambrano, supra, 41 Cal.4th at pp. 1120-1121; see also People v. Carasi (2008) 44 Cal.4th 1263, 1285-1287.)
We cannot say the court abused its considerable discretion in this instance. In 1996, when the court made its ruling, the law was clear that "[i]t is not a proper object of voir dire to obtain a juror‟s advisory opinion based upon a preview of the evidence," and that the relevant inquiry was the juror‟s "general neutrality toward capital punishment." (People v. Mason, supra, 52 Cal.3d at p. 940.) The court could reasonably rely on our advisement that "[t]he inquiry is directed to whether, without knowing the specifics of the case, the juror has an "open mind‟ on the penalty determination." (People v. Clark, supra, 50 Cal.3d at p. 597.)
Defendant places great reliance on our subsequent decision in People v. Cash, supra, 28 Cal.4th 703. There, however, the trial court‟s error was "precluding mention of any general fact or circumstance not expressly pleaded in the information." (Id. at p. 722.) Moreover, the question the defendant was barred from asking in Cash was "whether prospective jurors could return a verdict of life without parole for a defendant who had killed more than one person, without revealing that defendant had killed his grandparents." (Id. at p. 719.) Here, the court did not prevent counsel from raising matters beyond the allegations in the information, and counsel did not seek to ascertain the jurors‟ attitudes on other murders in general, or even on jailhouse murders in general. He wanted to inform them that defendant was involved in a jailhouse killing, and to explore their attitudes based on that case-specific information. The court properly refused to allow this line of inquiry. "[A] defendant cannot insist upon questions that are " "so specific" ‟ that they expose jurors to the facts of the case." (People v. Carasi, supra, 44 Cal.4th at p. 1286.)
There was no merit in defense counsel‟s complaint that the jury would be surprised if it "suddenly" learned about the jailhouse killing at the penalty phase. It is not unusual for new information to be brought forward at that point in a capital trial. Defense counsel was free during voir dire to explore the prospective jurors‟ general attitudes about jailhouse killings and whether the death penalty is always appropriate for such perpetrators. However, our cases make it clear that counsel was not entitled to ...