Los Angeles County Super. Ct. No. VA008051 Judge: Robert W. Armstrong
The opinion of the court was delivered by: Kennard, J.
Defendant Marchand Elliott*fn1 appeals from a judgment of death upon his conviction by jury verdict of one count of murder in the first degree (Pen. Code, §§ 187, 189),*fn2 with the special circumstance of murder during the commission of a robbery (§ 190.2, subd. (a)(17)). The jury found him guilty also of one count each of robbery (§ 211) and assault with a deadly weapon (§ 245, subd. (a)(1)), and it found that he personally used a handgun to commit both the robbery and the assault (§ 12022.5). At the penalty trial, the jury returned a verdict of death for the murder. The trial court denied the automatic motion to modify the penalty (§ 190.4, subd. (e)) and sentenced defendant to death.
This appeal from the judgment of death is automatic. (§ 1239, subd. (b).) We affirm the judgment.
I. Facts and Proceedings A. Prosecution's Guilt Phase Case-in-chief 1. Robbery and assault at Boys Market
Around 9:45 a.m. on October 31, 1988, an armored car driven by a man named Ramirez*fn3 stopped in the parking lot of the Boys Market on North La Brea Avenue, in Inglewood, Los Angeles County. Joseph Swal, Ramirez's partner, got out to retrieve a shopping cart, which Ramirez then loaded with a box of coins and a canvas bag full of currency. Pushing the cart, Swal entered the store and walked to the courtesy booth, where he delivered the coins and currency, receiving in exchange some clear plastic bags containing currency and coins. Swal placed the plastic bags in the canvas bag, which he put in the shopping cart. He walked toward the store exit, where he removed the canvas bag from the shopping cart. As he was about to leave the store, Swal heard a mumbled voice, but he did not understand what was being said. Continuing to walk, he heard the voice again and felt a gun pressed against his right temple. The person holding the gun, who was identified at trial by a witness as defendant, said, "Drop it, drop it, drop the bag."
Swal dropped the bag. Defendant said, "Get down, get down on the floor, get down." As Swal was lying on the floor, defendant pulled Swal's revolver from its holster, picked up the canvas money bag, and started running toward the back of the store. As he was running, defendant encountered a store employee, Pierre Jacobs, near the end of one of the store's aisles. Defendant told Jacobs to "get back," and Jacobs immediately dropped to the floor. As Jacobs was lying on the floor, he twice heard a sound he recognized as a gun's trigger being pulled, but no gun fired.
Holding a gun in each hand, and with the money bag tucked under his arm, defendant ran through the interior double doors leading into the store's warehouse area. Placing one gun against the right temple of Ardis Irvine, a store employee, defendant said, "Motherfucker, open the door now or I'm going to blow your damn head off." Irvine began rolling up the exterior warehouse door, but the door stuck. Defendant repeated his threat, pressed the gun harder against Irvine's head, and pulled back the hammer. When the door opened, defendant ran outside, jumped off the loading dock, and ran off. The store's manager, Wilson Colon, saw defendant run to a blue van waiting on Market Street. The van drove off after defendant entered on the passenger side. Colon reported the van's description and license number to the police.
Inglewood Police Officer Randy Goodro was driving a patrol car on the morning of October 31, 1988, when he received information about a robbery at a Boys Market on La Brea in Inglewood. The information included a vehicle description and license number. Around 10:30 a.m., Officer Goodro found a van matching the description in a carport behind an apartment building on North Market Street. The van, which had been reported stolen that day, was unoccupied and unlocked. After being examined for fingerprints, the van was impounded and towed.
2. Robbery and murder at Lucky Supermarket
Around 11:00 a.m. on December 15, 1988, an armored car driven by Howard Sands stopped near the front entrance of the Lucky Supermarket on Lakewood Boulevard in Bellflower. Since the store's opening, just eight days before, the armored car had arrived every day around the same time. Patrick Rooney, Sands's partner, got out of the armored car and entered the store to make a delivery and a pickup. Michael Fiamengo, the assistant store manager, met Rooney at the store's safe. Rooney delivered payroll checks and cash, receiving in exchange $64,184 in cash and around $30,000 in checks, which he put in a canvas bag. As he walked back through the store to the front entrance, Rooney carried the canvas bag in his left hand and his gun, held by his side and pointing down, in his right hand.
As Rooney was about to exit the store, a man identified as defendant at trial by 12 witnesses rushed up behind Rooney, put his left arm around Rooney's neck, and shoved Rooney's head into the glass door, shattering it. At the same time, defendant pointed a gun, held in his right hand, at the right side of Rooney's head and fired one shot, killing Rooney. After grabbing the canvas bag and Rooney's gun with his left hand, defendant then ran back through the store to the warehouse area. As he ran through the store, defendant shouted: "Get the fuck out of my way. Everybody get the fuck out of my way." When he reached the warehouse area, defendant pointed his gun at Lawrence Diehl, a store employee. Defendant ran outside through the receiving doors and across the street to the corner of Palm Street and Virginia Avenue, where he stopped and waited. A van pulled up, defendant got in, and the van drove off.
At 11:35 a.m. the same day, in an apartment complex parking lot on Palm Street in Bellflower, Los Angeles County Deputy Sheriff Ronald Dietrich found a van matching the description of the one used in the robbery. The engine was running, but no one was in or around the van. The van had been stolen six days earlier after its owner had parked it on a street in the City of Rancho Cucamonga. A set of keys that the owner had left in the van was found next to Rooney's body at the entrance to the Lucky Supermarket. After determining that the van had been stolen, Sergeant Dietrich impounded it.
The van and its contents, including a plastic container lid and a tabloid newspaper, were examined for fingerprints by Los Angeles County Deputy Sheriff Ronald George. He found and photographed five fingerprints that he determined were made by defendant. Two of the fingerprints were on the container lid; the other three were on the tabloid newspaper.
An autopsy revealed that Patrick Rooney died of a gunshot wound to the head, the bullet entering through the right temple. When it was fired, the gun was in loose contact with Rooney's temple.
Janet Delaguila, a Lucky Supermarket employee, was one of the witnesses who identified defendant at trial as the perpetrator of the robbery and murder of Patrick Rooney. She testified that two days before those crimes, on December 13, 1988, she had seen defendant in the Lucky Supermarket and had recognized him as a regular customer of Courtesy Cleaners, a dry cleaning store in Compton, where she had previously worked. During the two years she had worked at Courtesy Cleaners, she had seen defendant approximately three times each week. On December 13, defendant had been in the company of a woman, and they were pushing a shopping cart. When she next saw defendant, on December 15, 1988, he was running through the Lucky Supermarket carrying two guns, one in each hand, and a bag. On December 15, 1988, about an hour after the murder, a police officer took her to the dry cleaning store in Compton to search for a record with defendant's name. She remembered only that defendant's last name started with the letter "E." They looked at several months of receipts but did not find anything helpful.
B. Defense Case at the Guilt Phase
Fourteen persons who had been present at Lucky Supermarket when Patrick Rooney was killed testified as defense witnesses. Before trial, none of them had unequivocally identified defendant as the person who shot Rooney, and immediately after the crime they had described the perpetrator's appearance, hair style, and clothing in ways that were arguably inconsistent with descriptions given by other witnesses. On cross-examination, however, six of these witnesses identified defendant in court as the person they had seen at Lucky Supermarket that day shooting Patrick Rooney or running through the store immediately afterward with guns and a canvas bag. Of the remaining eight, one testified that defendant was definitely not that person, one testified that he could not identify defendant in court, although he had tentatively selected defendant's photo from a photo array, and the other six were not asked to make an in-court identification. Instead, those six individuals testified about viewing a live lineup in which defendant participated and/or viewing photo arrays that included defendant's photograph. Four of the six witnesses had not been able to identify anyone, one had identified someone other than defendant, and the remaining person had identified three different individuals, although she had not been positive as to any of them.
Peggy Patterson testified that she is defendant's aunt, that she saw him regularly before 1988, and that she never knew him to wear prescription eyeglasses. Modesto Ponce de Leon testified that he is the owner of Courtesy Cleaners, a dry cleaning store in Compton. Janet Delaguila, who testified for the prosecution, had been an employee at the store in 1987 and 1988. At the end of 1988, someone came to the store looking for some records, and Ponce de Leon provided the records he had. At that time, he kept sales receipts for only four or five months, and some receipts had been thrown out after getting soaked during a heavy rain.
Denise Ahlrich testified that on December 15, 1988, she had been working at Denny's Restaurant in Bellflower, which shares a parking lot with Lucky Supermarket. Shortly before 11:00 a.m. that day, after she had seen police cars and heard sirens at Lucky Supermarket, a Black man entered Denny's and went straight to the men's bathroom. A short while later, he left the bathroom, walked out of the restaurant, and got into a white van. Ahlrich wrote down the van's license number. About 15 minutes later, the van drove out of the parking lot. She reported her observations to the police. Three years later, in December 1991, she selected defendant's photograph from a photo array as being the person she had seen at Denny's.
Scott Fraser, a professor of psychology, testified as an expert on eyewitness identification. Research studies indicate that the accuracy of an identification depends on the duration of the viewing, whether it was cross-racial, and how stressful the circumstances were. Memory of a visual observation deteriorates rapidly during the first four to six hours, and more gradually thereafter.
Four Los Angeles County deputy sheriffs testified about their interviews with various individuals at Lucky Supermarket on December 15, 1988. Deputy Dennis Flinn testified that he interviewed Howard Sands, the driver of the armored truck. Sands said he saw the shooter leave the store through the front entrance, get into a brown Toyota car, and drive away toward Palm Street. Deputy James R. Smith testified that he interviewed Debbie Van Sluys, who testified as a defense witness as trial. She told him she had heard a gunshot, saw a male Black suspect wearing a light-colored jacket, then turned away and hid and saw nothing else. Deputy Dieter Gerlach testified that he spoke to Michael Fiamengo, a prosecution witness at trial. Fiamengo described the hair of Patrick Rooney's killer as "short natural." Deputy Sheriff Michael Miltimore had interviewed Cheryl Pitzer, a prosecution witness, and Cynthia Chikahisa, a defense witness. Pitzer said she had only seen the shooter's right-side profile and was unsure she could identify him. Chikahisa described the shooter as a light-skinned Black male with a slim build and short black hair.
Los Angeles County Deputy Sheriff John Charles Shannon testified that on December 15, 1988, at Lucky Supermarket in Bellflower, he drew sketches of Patrick Rooney's killer based on descriptions given by various witnesses, including Janice Maier, who testified at trial as a defense witness. Usually Shannon continues making changes in a sketch until a witness is satisfied with it, but sometimes he is unable to produce a sketch that satisfies a witness. Shannon did not remember whether Maier was satisfied with the sketch he drew at her direction. She testified that she was not satisfied with the sketch.
C. Prosecution's Penalty Phase Case in Aggravation 1. Robbery and shooting at Hughes Market
On December 29, 1987, Augustus Guardino was working as assistant manager of the Hughes Market on National Boulevard in Los Angeles. Shortly before 8:00 a.m., Guardino removed from the store's safe a bag containing the store's receipts from the previous day. Following his usual procedure, he began walking toward the store's cash office, where the store's receipts would be counted in preparation for their pickup by an armored transport service. As he passed one of the store's aisles, he saw a man whom he identified at trial as defendant pointing a gun at him. Guardino jerked his head back, defendant fired the gun, and Guardino fell to the floor, having been shot through the face. Defendant fired two shots in the direction of the store's exterior doors, grabbed the bag from Guardino, and ran through the store. After pushing a door open, defendant went outside, ran through the parking lot, jumped a fence, and got into a car that sped off.
Guardino was not killed, but the bullet, which entered just below his right eye and exited near his left temple, destroyed his left eye, both cheekbones, and part of his upper jaw.
On June 25, 1988, Los Angeles County Deputy Sheriff John Kuhn was on patrol duty in the City of Lakewood. As he was standing on a sidewalk, defendant and three other men walked toward him. Because he was investigating a report of "suspicious [B]lack males," Deputy Kuhn told the men to put their hands on the hood of Kuhn's patrol car. The other three men did so, but defendant did not. Defendant accused Kuhn of harassing them. Saying he had identification that would prove he was a good person, defendant started to reach for his left rear pocket with his left hand. Deputy Kuhn told defendant to keep his hands in front of him. Talking rapidly, defendant tried several more times to reach his left rear pocket until finally Deputy Kuhn threatened to shoot defendant. At this point a backup officer arrived, and defendant cooperated by putting his hands on the hood of the patrol car. In defendant's left rear pocket, Deputy Kuhn found a loaded revolver with a two-inch barrel. Defendant's wallet, containing his driver's license, was in defendant's right rear pocket.
3. Robbery and shooting at Bank of America
On December 5, 1988, at 12:45 p.m., Hojatola Danai Bouroumand was about to enter the Bank of America on Foothill Boulevard in the City of Rancho Cucamonga, San Bernardino County. In his left hand, Bouroumand carried a zippered pouch containing around $5,000, which he intended to deposit. As he was entering the door to the bank, someone from behind grabbed the pouch. Bouroumand turned around and immediately was shot in the hand. The shooter took the pouch, ran to a white van, and got in on the passenger side. As a result of the gunshot, three fingers on Bouroumand's hand were seriously injured. Defendant admitted being the shooter by pleading guilty to second degree robbery.
4. Robbery of Robert Reynolds
On March 11, 1989, around 4:27 p.m., Robert Reynolds was sitting in his van, which was parked near a market in the City of Ontario, San Bernardino County. Reynolds had just purchased groceries and was preparing to drive home when he was approached by a man he later identified in court as defendant. Defendant said, "Get the fuck out of the car." Reynolds said, "What's your problem?" Pulling a gun from his belt and pointing it at Reynolds, defendant said: "Get the hell out of the car. Leave the keys there." After putting the keys on the van's floor, Reynolds got out. Defendant got in and tried to start the engine, but he appeared to be having difficulty. Noticing that defendant had put the gun down, Reynolds punched defendant on the left side of his face. Defendant picked up the gun, and Reynolds heard it fire. Reynolds then ran inside the market.
Christopher Thomas, who had observed these events from across the street, saw defendant get out of the van, holding a gun. Defendant ran away, with Thomas following at a distance. At one point he noticed that defendant was holding his leg as he ran. Eventually police officers arrived and took over the pursuit. They found defendant, with a bullet wound in one leg, hiding in some bushes by the fence line of a residence. In the backyard of another residence nearby, they found the gun that defendant had apparently discarded during his flight.
The parties stipulated that a woman present in court was Rebecca Rooney and that she was the wife of Patrick Rooney, the armored transport guard whom defendant killed during the robbery at the Lucky Supermarket.
D. Defense Penalty Phase Case in Mitigation 1. Robbery and shooting at Hughes Market
The defense presented testimony to cast doubt on defendant's identity as the person who robbed and shot Augustus Guardino on December 29, 1987, at the Hughes Market in Los Angeles.
Los Angeles Police Detective Thomas Villalobos interviewed Guardino at the hospital on December 29, 1987. Guardino described the shooter as a male Black, late 20's to early 30's, wearing a knit cap. Los Angeles Police Officer Michael Gannon interviewed Guardino twice. Guardino told him the shooter was shorter than five feet 11 inches and that he had a thin mustache and a dark, mole-like coloration on the right side of his mustache. In November 1988, Guardino told Los Angeles Police Detective Peter Waack that on a television news broadcast, and also in a local newspaper called the Daily News, he had seen pictures of the person who had shot him. A law clerk working for defendant viewed microfilm copies of the Daily News published between November 21 and November 30, 1988, looking for articles about armored car robberies that included pictures. He found only one such article, which included a photograph of a composite sketch.
Daniel Lopaze, who saw the shooting of Augustus Guardino, described the shooter as a Black man, around five feet nine inches tall, weighing 145 to 150 pounds, with short hair. The shooter was not wearing a cap. Robert Davis also witnessed the shooting. Afterwards, he met with an artist who drew a picture of the shooter at his direction. He told the artist that the shooter had a mustache and wore a knit watch cap. Fernando Ponce, a police composite artist, identified a sketch of the shooter that he had prepared in January 1988 at the direction of Robert Davis. In his opinion, defendant resembled the sketch.
2. Defendant's character and family background
Defendant's parents, Orie and Brenda Elliott, also had two other sons. Defendant, their middle child, was born on March 25, 1968. As a child, defendant was quiet and shy. When defendant was five or six years old, Orie and Brenda separated and divorced. Thereafter, defendant "seemed to be a little withdrawn." Orie did not provide regular financial support for Brenda and their sons, but he gave money when he could. Brenda worked during the evenings, leaving defendant and his brothers at home alone. After the separation, Orie had only infrequent contact with Brenda and their sons until defendant was 10 or 12 years old, when Orie began visiting once a week. Orie and Brenda tried to reconcile, but it did not work out. On two or three occasions when Orie came to visit, he found defendant at home when he should have been in school. Defendant did not graduate from high school.
In 1987, when defendant was 19 years old, Paul Burns, a friend and co-worker of defendant's father, helped defendant get a job as a baggage handler at United Express, a commuter airline. Defendant was dismissed after three months because on his application he had falsely claimed to have graduated from high school. While the job lasted, defendant came to work on time, did his job, and got along with the other workers. Defendant later got some other jobs, but none lasted very long.
Jacqueline Elliott was married to defendant's older brother. She met defendant when he was 15 and she was 17 years old. She never saw defendant use illegal drugs or act violently. In 1988, she did not see defendant with new clothes, gold jewelry, or new cars.
Michael Alverson was defendant's next-door neighbor in 1986 and 1987, when defendant, who lived with his mother and his brother, was around 17 to 19 years old. During that time, Alverson saw defendant almost daily. Defendant "seemed to be a very nice young man" and seemed very happy with his job at United Express.
During the summer of 1988, defendant visited his maternal grandparents in Texas to look for employment, but he was unable to find a job.
Efram Cater lived in the same apartment complex as defendant from late 1983 to 1988. They were close friends. Cater never saw defendant use drugs or alcohol. Defendant held several different jobs during that time. Defendant did not seem to have a lot of money to spend in 1988.
Wilbert Harris met defendant around the beginning of 1987 and they became friends, seeing each other a few times a week, mostly on weekends. They went to clubs together to dance and talk to girls. Harris never saw defendant use drugs or alcohol or become violent.
3. Prison security conditions
James Park, a retired prison administrator, described the security classification and corresponding security precautions for prisoners serving sentences of life imprisonment without possibility of parole in California's state prisons. Such prisoners, who are classified as Level IV, are housed in prisons with double fences topped with razor-ribbon concertina wire and gun towers with armed guards every 700 feet. The perimeters of these Level IV prisons have never been breached. Level IV prisoners work in prison industries, which reduces the cost to the taxpayers.
James H. Johnson, a geography professor, testified to a "massive decline in manufacturing level jobs" in Los Angeles, and a correspondingly high unemployment rate among young Black men, during the 1970's and 1980's. Many young Black men turned to illegal activities after unsuccessful attempts to find work.
Robert L. White, a forensic psychologist in private practice, interviewed defendant and his brothers, his parents, his cousin Lisa Gaines, his sister-in-law Roshand Elliott, his aunt Peggy Patterson, and his maternal grandmother. Based on those interviews, he formed the opinion that during defendant's childhood, his home environment lacked discipline and structure. Often there was no adult supervision. As a result, important values were not transmitted to defendant, and he became accustomed to receiving everything he wanted from his parents. The dismissal from his job at United Express caused defendant great distress and frustration. Defendant then fell under the influence of persons engaged in "heavy-duty criminal activity."
On January 1, 1988, Long Beach Police Officer Larry Brown arrested and searched defendant, but he found no money. Los Angeles Police Detective John Yarbrough, who was the investigating officer for the murder of Patrick Rooney during the December 1988 Lucky Supermarket robbery, was not aware that any picture of defendant was published in any of the news media between November 20 and November 28 of 1988. Dwight Van Horn, a qualified firearms examiner, test-fired the gun found after defendant's arrest for the March 1989 robbery of Robert Reynolds. He determined that the gun did not fire a bullet recovered from the parking lot of the Lucky Supermarket after the December 1988 killing of Patrick Rooney at that market.
Defendant was incarcerated in the Los Angeles County jail from July 25 to October 12, 1988. A person named Steven Young, who was born on September 17, 1959, is five feet seven inches tall and weighs approximately 140 pounds. Defense penalty phase exhibits E and F are photographs of Jeffrey Young, the brother of Steven Young. (The defense argued that Steven or Jeffrey Young committed the October 1988 Boys Market robbery and the December 1988 Lucky Supermarket crimes.)
II. Pretrial and Jury Selection Issues A. Denial of Severance Motion
Before trial, defendant unsuccessfully moved to sever the charges relating to the October 1988 Boys Market robbery from those relating to the December 1988 Lucky Supermarket robbery, so that those charges would be tried separately.*fn4 Defendant contends that in denying this motion the trial court applied the wrong standard, abused its discretion, and denied him his federal constitutional right to due process of law. We disagree.
Under section 954, "[a]n accusatory pleading" may charge "two or more different offenses of the same class of crimes or offenses, under separate counts." Here, as defendant has conceded both in the trial court and now on appeal, the charged offenses relating to the two market robberies are all crimes of the same class, and thus they meet this statutory requirement for joinder. Section 954 also provides, however, that the trial court, acting "in the interests of justice and for good cause shown, may in its discretion order that the different offenses . . . be tried separately." In exercising that discretion, a trial court should consider (1) whether the evidence relating to the various charges would be cross-admissible in separate trials, (2) whether some of the charges are unusually likely to inflame the jury against the defendant, (3) whether a weak case has been joined with a strong case or with another weak case, and (4) whether one of the charges is a capital offense or the joinder of the charges converts the matter into a capital case. (People v. Cook (2006) 39 Cal.4th 566, 581.)
Arguing that the trial court applied the wrong standard when ruling on the motion to sever, defendant relies on one particular statement that the trial court made during the hearing on defendant's severance motion. Before considering that statement, we review the context in which it was made.
At the beginning of the hearing on defendant's motion to sever, after saying that it had read the points and authorities submitted by both sides, the trial court asked defense counsel if there was anything he wanted to add. Defense counsel said he wanted to inform the court of "one additional problem" with the Boys Market robbery case. The defense had hired an expert to examine fingerprints lifted from a shopping cart at the robbery scene, but the defense then had learned that the fingerprints could not be located. Defense counsel said that "at this point we can't say we could even answer ready until we get an answer on those prints" and that "[w]e might have a Trombetta/Youngblood motion to make on that case." (See California v. Trombetta (1984) 467 U.S. 479 (Trombetta); Arizona v. Youngblood (1988) 488 U.S. 51.) Defense counsel then addressed the four factors that a trial court is to consider in exercising its discretion on a motion to sever.
In response, the prosecutor said that although the fingerprint evidence had not been located, "chances are we will find [the evidence] later today." The prosecutor was waiting to speak with the officer who had most recently had custody of the prints, to determine what he had done with them. The court and counsel then engaged in further discussion about the severance factors, including the defense argument that the prosecution had joined a weak case (the Boys Market attempted murder and assault) with a strong case (the Lucky Supermarket robbery and murder).
At the end of the hearing, the trial court made the remark that, according to defendant, shows that the court used the wrong standard: "[I]f there is a serious issue where there is a Trombetta or Hitch-type motion [see People v. Hitch (1974) 12 Cal.3d 641], that would have to be entertained here; and that could be -- could result in that other case being dismissed." Immediately after making that remark, the court said that "[i]f there was mishandling or misconduct as far these prints were concerned, then that's a whole new issue." The court added that this "whole new issue" was not then before it and that the prosecutor had indicated that the matter could probably be resolved.*fn5
Nothing in the trial court's remarks shows that it mistakenly considered the fingerprint issue relevant to the merits of the severance motion, or that it used an incorrect test for deciding that motion. On the contrary, the court's remarks show that it was aware of the four relevant factors in question and that it considered those factors in exercising its discretion by denying the severance motion. We therefore reject defendant's argument that the trial court applied the wrong legal standard when ruling on the severance motion.
We next consider defendant's argument that the trial court abused its discretion in denying the severance motion. A defendant claiming such an abuse of discretion must make a clear showing of prejudice. (People v. Mendoza (2000) 24 Cal.4th 130, 160.) We review the trial court's exercise of discretion in light of the record before it when it ruled. (Id. at p. 161.)
The first step in the analysis is to determine whether evidence of the various charges arising from the two incidents would have been cross-admissible in separate trials. The Attorney General does not argue that the evidence here would have been cross-admissible, and therefore we will assume, without deciding, that the evidence would not have been. But "evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together . . . ." (§ 954.1; see People v. Cook, supra, 39 Cal.4th 566, 581; People v. Mendoza, supra, 24 Cal.4th 130, 161 ["the absence of cross-admissibility does not by itself demonstrate prejudice"].)
To discharge his burden of showing prejudice from the joinder of the charges arising from the two incidents, defendant must show that one of the charged offenses was substantially more inflammatory than the other or was supported by significantly stronger evidence. (People v. Price (1991) 1 Cal.4th 324, 389.) Defendant has shown neither. The prosecution's evidence for the two market robberies was similar, relying primarily on eyewitness testimony, and roughly equivalent in strength. Although only the Lucky Supermarket robbery involved a murder, during the Boys Market robbery defendant placed the barrel of a gun against a store employee's head and threatened to kill him if he did not immediately open the store's exterior warehouse door. In this way, the two market robberies involved criminal conduct that was similarly egregious. (See People v. Soper (2009) 45 Cal.4th 759, 781; Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1227.) We conclude that defendant did not make a sufficiently compelling showing of prejudice to require severance. Therefore, the trial court did not abuse its discretion in denying defendant's severance motion.
Finally, we consider defendant's argument that joinder of the charges relating to the two market robberies "actually resulted in 'gross unfairness,' amounting to a denial of due process." (People v. Arias (1996) 13 Cal.4th 92, 127.) The evidence offered to prove defendant's guilt of the various charges arising from the two incidents was "relatively straightforward and distinct," while the evidence relating to each charge was "independently ample" to support defendant's conviction on that charge. (People v. Soper, supra, 45 Cal.4th 759, 784.) The testimony of one or more eyewitnesses identified defendant as the gunman involved in each incident. (See People v. Cook, supra, 39 Cal.4th 566, 583.) Considering defendant's trial as a whole, we conclude that it was not grossly unfair, and thus that the joinder of the charges relating to the two market robberies did not result in a denial of due process.
B. Statements Regarding Costs of Punishments
Defendant contends that during jury selection the trial court and the prosecutor gave prospective jurors incorrect and irrelevant information about the costs incurred by the government to impose the death penalty in a particular case as compared to the costs of imposing a sentence of life imprisonment without the possibility of parole. The claim lacks merit.
The questionnaire that prospective jurors were required to complete included this question: "Without having heard any evidence in this case, what are your general thoughts about the benefit of imposing a death sentence of [sic] a criminal defendant?" In response to this open-ended question, some jurors wrote that they thought, or had heard, that the death penalty costs less than life imprisonment. During voir dire, defense counsel was the first to raise the issue, asking whether, in deciding penalty, a prospective juror would "think about economics, how much it cost to keep a person alive for the rest of their lives." The prosecutor also explored the issue on voir dire, but she cautioned the jurors that the cost of housing a defendant was not one of the circumstances they would be allowed to consider in reaching the penalty verdict. The trial court likewise cautioned prospective jurors to "put it out of your minds" because any difference in the state's costs to administer the death penalty, as compared to life imprisonment, was "not one of the factors that you're allowed to consider in determining the question of life or death."
In this context, the trial court and the prosecutor here made the remarks of which defendant now complains. In questioning a prospective juror who said she had "heard conflicting statements" on which penalty was cheaper for the state, the prosecutor said that "on the one hand, if a person has life without [parole], and the state is supporting them for the rest of their lives, on the other hand if they have a death penalty, the court is paying for their appeals and we're paying for them to be alive and we're paying for their lawyers, and the appellate process, and whatnot, would you say it about evens out?" The defense did not object to this remark, which the prosecutor immediately clarified by cautioning that penalty-administration costs were not a factor that the jurors would be permitted to consider in determining penalty.
The trial court, directly before it cautioned the jurors that costs of punishment could not considered in determining penalty, stated that "financially, to put this to rest, without going into a great deal of detail, there isn't an awful lot of difference between the cost to the State in a death penalty and a life without possibility of parole case." The defense did not object to this remark.
To preserve for appeal a claim of prosecutorial or judicial misconduct, a timely objection and a request for a jury admonition is required. (People v. Lee (2011) 51 Cal.4th 620, 646 [prosecutorial misconduct]; People v. Seaton (2001) 26 Cal.4th 598, 635 [trial court misconduct].) Because he did not object to these remarks by the prosecutor and the trial court, and an admonition would have cured any harm, defendant has forfeited his misconduct claims. Had the claims not been forfeited, we would reject them on the merits. The court and the prosecutor correctly advised the prospective jurors that in deciding the penalty issue, if the case reached the penalty stage, they would not be permitted to consider the respective government costs of the death penalty and life imprisonment without parole. Telling the prospective jurors that the costs would "even out," and that there was not "an awful lot of difference" between the costs, could only further diminish the possibility that jurors would be tempted to allow cost considerations to influence the penalty decision. For this reason, those remarks could not have prejudiced defendant.
C. Voir Dire Implying Threat to Juror Safety
During voir dire, a prospective juror who ultimately was not selected as a juror or an alternate said that he had been the victim of a crime, and that he had reported the crime but later "dropped the charges." He explained: "I feel I did the right thing, because I was in a position where I was going to be hurt if I -- if I kept on with it, you know. It was too close. I had a barber shop, and the young kids, you know, were -- lived too close to the barber shop, and I was a target there."
The prosecutor followed up with this question: "Let me ask you something hypothetically, and I think you will see what my point is. Once again, this has absolutely -- I cannot stress this enough. This has absolutely nothing to do with this case. [¶] Let's say you sat on a jury, and you perceived -- as you were sitting on the jury listening to evidence and everything, you perceived some danger to yourself in coming back with a verdict one way or the other. [¶] Would that affect your decision?"
The defense promptly objected, and the trial court sustained the objection, stating: "That situation is not going to exist. There is no reason to feel it would exist. Therefore, it is not an appropriate inquiry in the context of this case, the fear that someone may have a result because of -- in a neighborhood of being terrorized is completely divorced from what the situation is in this courtroom. There isn't a person on this jury who has the slightest reason to fear any consequence as a result of their jury service."
Defendant contends the prosecutor committed misconduct by asking a question that implied the existence of a threat to the safety of jurors in this case. " 'A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] Under California law, a prosecutor who uses reprehensible methods of persuasion commits misconduct even if such actions do not render the trial fundamentally unfair. [Citation.] Generally, a claim of prosecutorial misconduct is not cognizable on appeal unless the defendant made a timely objection and requested an admonition." (People v. Doolin (2009) 45 Cal.4th 390, 444.)
Because defense counsel objected, and the trial court admonished the prospective jurors who were present in the courtroom, the prosecutorial misconduct claim is cognizable, but it fails on the merits. Here, a prospective juror admitted that he had previously dropped criminal charges out of fear for his safety. Given that admission, the prosecutor was understandably concerned that the prospective juror's fears might in some way affect his ability to discharge his duties as a juror. Seeking to explore the issue, the prosecutor couched her inquiry in terms of a hypothetical situation, saying she could not stress enough that it had nothing to do with this case. The trial court promptly sustained the defense objection and vigorously admonished the prospective jurors that no one had "the slightest reason to fear any consequence as a result of their jury service." This was an isolated incident; the prosecutor did not pursue a similar line of inquiry with any other prospective juror. Considering all these circumstances, the risk of prejudice to defendant was insignificant, and therefore defendant has not shown prosecutorial misconduct.
D. Voir Dire Affecting Jurors' Sense of Responsibility
Defendant contends that during voir dire the trial court and the prosecutor made comments that diminished the jurors' sense of responsibility for the sentencing decision. We disagree.
Defendant relies on Caldwell v. Mississippi (1985) 472 U.S. 320 (Caldwell). There, the prosecutor told the jurors during argument that if they returned a death verdict their decision would be reviewed by the Mississippi Supreme Court. The United States Supreme Court reversed the penalty determination, holding that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." (Caldwell, at pp. 328-329.) The high court has since clarified that Caldwell error occurs only when the remarks to the jury concerning its role in the sentencing process are inaccurate or misleading in a way that allows the jury to feel less responsible than it should for the sentencing decision. (Romano v. Oklahoma (1994) 512 U.S. 1, 9; see People v. Murtishaw (2011) 51 Cal.4th 574, 592; People v. Collins (2010) 49 Cal.4th 175, 232; People v. Avila (2009) 46 Cal.4th 680, 721.)
The first incident of which defendant complains occurred during the voir dire of Prospective Juror E.L., who had written on her questionnaire that in an appropriate case she could vote for a death sentence, but who, when questioned by defense counsel during voir dire, said she could never do so. Seeking clarification, the trial court asked her: "Did you misspeak in the questionnaire, or have you changed your position?" E.L. replied: "I think is [sic] not my position to do that decision. I think is your -- is the judge, you know. That's what I think about it."
Defendant faults the trial court's response, which was this: "Let me clarify that, as well. Nobody is going to have to impose the death penalty, but the jury has to make the decision. Nobody is going to tell you what to do. Nobody is ever going to tell you [that] you have to impose the death penalty or you have to impose life without the possibility of parole, or decide on the death penalty or decide on life without the possibility of parole. [¶] If the jury comes back with a sentence of death, then at a later time it would be my responsibility to actually impose a death sentence, to actually say the words, just as it would be my responsibility to say the words 'life without possibility of parole.' But in order to prompt the words that I say, it's your decision." (Italics added.)
In arguing that this remark by the court improperly diminished the jury's sense of responsibility for the sentencing decision, defendant ignores the words that we have italicized. The prospective jurors present in the courtroom would understand from the quoted remarks that although it was the responsibility of the court, and not the jury, to actually pronounce the sentence, it was indeed the jury's responsibility to determine which sentence -- death or life imprisonment without possibility of parole -- the court would pronounce. The court's remark was neither inaccurate nor misleading, much less was it misleading in a way likely to diminish the jurors' sense of responsibility for the sentencing decision. Consequently, there was no Caldwell error.
The other voir dire incident on which defendant bases his Caldwell error claim occurred later the same day. Prospective Juror K.T. had written on her questionnaire, in response to a question asking for her opinion about the death penalty, that it "must not be based on circumstantial evidence." The prosecutor told her that if she were selected to be on the jury, the trial court would instruct her that "circumstantial evidence is just as good as direct evidence," and asked K.T. what she thought of that. K.T. answered that around 12 or 14 years before, when she was in college, she had performed research on the death penalty and had found "numerous cases where people had been put to death" but later "they found they weren't guilty."
The prosecutor responded: "Let me tell you here, because you're addressing a concern that the judge is going to tell you now we have laws set up, and we have all these safeguards and procedures in place. [¶] We have this kind of a system, things that have developed and evolved over the last 20, 30, 40 years that weren't in place possibly when you did these studies and did all of that. [¶] And these are all things -- this is why we're going through all of this, and this is why the People have a certain burden. This is why the burden is on the People, and all these things. And in ...