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The People v. Charles Mcdowell

June 25, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CHARLES MCDOWELL, JR., DEFENDANT AND APPELLANT.



Court: Superior County: Los Angeles Judge: William R. Pounders Super. Ct. No. A379326

The opinion of the court was delivered by: Chin, J.

Los Angeles County

Capital defendant Charles McDowell, Jr., comes before this court for the second time. In 1984, a jury convicted defendant of first degree murder (Pen. Code, § 187),*fn1 attempted murder (§§ 187, 664), attempted rape (§§ 261, 664), and burglary (§ 459). The jury sustained personal use of a knife allegations as to each offense (§ 12022, subd. (b)); in conjunction with the attempted murder, it sustained allegations that defendant inflicted great bodily injury (§ 12202.7) and that his victim was a person over 60 years of age (§ 1203.09). The jury also sustained two special circumstance allegations, felony-murder burglary and felony-murder rape (§ 190.2, subd. (a)(17)), and defendant admitted a prior conviction for lewd, lascivious, and indecent assault on a child. After a penalty trial, the jury set the penalty at death. This court affirmed the judgment in its entirety. (People v. McDowell (1988) 46 Cal.3d 551, 557 (McDowell I).) However, in 1997, the Ninth Circuit Court of Appeals, while affirming the federal district court's denial of defendant's petition for writ of habeas corpus as to the guilt phase, reversed its denial of the writ as to the death sentence on the ground that the trial court committed prejudicial error by failing to correct the jury's misapprehension as to what factors might be considered in mitigation on the issue of penalty. (McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833 (en banc).)

The first retrial of the penalty phase, in 1999, resulted in a mistrial after the jury indicated it was deadlocked. After the second penalty retrial, also in 1999, the jury returned a verdict of death. The trial court denied defendant's application to modify the penalty (§ 190.4, subd. (d)) and sentenced him to death. This appeal is automatic. (§ 1239, subd. (b).)

We affirm the judgment.

I. FACTS PRESENTED AT SECOND PENALTY RETRIAL A. Prosecution Evidence 1. Circumstances of the Crime

In May 1982, Frank and Diane Bardsley lived in the Hollywood hills of Los Angeles. To their north lived Theodore and Dolores Sum; to their south lived Lee D'Crenza. At that time, defendant, who was then 28 years old, had been staying with D'Crenza for about five months. D'Crenza knew defendant by an alias, "Gene Holland."*fn2

In the afternoon of May 20, 1982, defendant broke into the Bardsley home. After attempting to rape Paula Rodriguez,*fn3 the Bardsleys' 28-year-old housekeeper, defendant stabbed her to death. Prior to the murder, defendant had come to the Bardsley home to use their telephone on at least six occasions. A day before the murder, Dolores had noticed defendant standing between the top of her property and the Bardsley property, looking down towards the Bardsley house; when he realized he had been seen, defendant hid behind a bush and then ran to the D'Crenza residence.

Dolores testified that on May 20, she and Theodore called the Bardsley residence after hearing "terrible" screaming emanating from it. When their call was answered, they heard screams, and then the call was disconnected. They had the Bardsleys' house key and immediately went to check on Paula because they knew she was their housekeeper and that she worked that day. When Theodore, who was 73 years old at the time, arrived at the front entrance, "a hand came out from the door and cut [Theodore's] throat" with a knife, in a motion from left to right. The couple called the police from their home, and paramedics took Theodore to the hospital by ambulance.

In his testimony, Theodore described the screams he and his wife heard while inside their house as "frantic" and "female."*fn4 He testified that when he arrived at the Bardsley home to check on Paula, the front door was closed but unlocked. He opened it slightly, looked inside, and called out, "Paula, where are you?" When no one answered, he opened the door wider, stepped inside, and called Paula's name again. Moments later, defendant appeared near the front entrance, naked and bloody. He made a sudden upward thrusting motion towards Theodore's neck. Theodore was cut by the knife in defendant's hand. Theodore pushed defendant's belly, defendant lost his balance, and Theodore was able to close the door and run home. It was there that Theodore realized there was a "big hole" in his throat and that he was bleeding profusely.*fn5

When the police arrived at the Bardsley residence, they found Paula's body in the living area between a bar and a chair. Her legs were "spread," her skirt had been pulled up, and her underpants had been "cut or ripped."*fn6 Paula was not wearing any shoes; one plastic thong was found behind the front door; its match was found in the same room as Paula's body.

Paula had been stabbed four times. She would have died from the stab wound that went through her chest and hit her aorta "within about a minute." She had suffered a deep stab wound to her abdomen that likely was inflicted when she already was dying or in shock. Paula also had two superficial stab wounds, one to her chest and a "defensive wound" to her forearm. In addition, her hands had more than 15 knife wounds, including deep cuts across her fingers, in the web of one thumb, and on a palm; those wounds were consistent with injuries she would have received had she grabbed the knife "in a defensive maneuver to try to stop the stabbing process." Paula also had a cut on each side of her throat; they were consistent with wounds suffered when a knife is used to control a person's actions.

There was blood all over the living room, on the blinds, walls, carpet, sofa, and telephone. Officers found a pack of True cigarettes and a Bic lighter on the floor, although neither the Bardsleys nor Paula smoked. Defendant's fingerprints and palm prints were found on the Bardsleys' bloodied telephone and on the inside of their front door.

Officers searched the residence for other victims or suspects. Upstairs, they discovered Paula's two-year-old baby, Valeria, unharmed in her stroller. No one else was in the house.

When Los Angeles Police Detective Henry Petroski arrived at the murder scene, he saw that the front doorknob had punched a hole in the wall, which led him to conclude the door had been opened "in a very forceful manner."*fn7 Petroski noticed blood on the sidewalk, the front door, and the entryway of the Bardsley residence. He followed a trail of blood that led from the house and went south and up the steps into the D'Crenza residence.

The door to the D'Crenza residence was open. In the kitchen Petroski found a bloodstained knife and bloodstains in the sink. He saw blood smears and drops on an upstairs linen closet door. In a bedroom, he found a bloody pair of men's shorts and saw blood smears on the shower's tile wall and handles. On the dining room table he noticed a blood-soaked roll of masking tape. In the living room he noticed several True cigarette butts in an ashtray.*fn8

Once Petroski realized no one was home, he stepped outside, and noticed additional blood drops leading south of the D'Crenza residence. That trail ended at the driveway of a house on a nearby street. As Petroski bent down to circle the last bloodspot with chalk, he heard a voice say, "Don't shoot me, don't shoot me" and "I give up." At some point, the person said, "I'm bleeding." Petroski drew his gun and ordered the person to come out from the nearby bushes. Defendant, who responded that he was "stuck," obeyed an order to show his hands, and Petroski could see they were cut and bleeding.

Officers who arrived to assist Petroski pulled defendant from the bushes. Petroski then heard defendant make a number of statements in a loud and belligerent manner, including, " 'Hey, I'm good for a rape in Florida too,' or something to that effect." Defendant, who was shirtless when arrested, had a cut to one wrist "serious enough to leave a continuous blood trail." He was transported to a hospital for medical treatment. At the time of the arrest, defendant was carrying a California identification card in the name of "Gene Hollon." The arrest occurred approximately two hours after the murder and less than a quarter-mile from the D'Crenza residence.

During the ride to the hospital and his stay there, defendant made several statements to officers assigned to watch him. He told Officer Michel his name was "Gene Hollon, Jr.," and several times pleaded with Michel to shoot him, once saying, "Take out your .357 and shoot me in the head." Defendant commented that the day before Paula's murder, he had been watching a television program when he "felt a force come over his body," that he felt the same force when he was "hurting the girl," and that he could not control that force. He also said he had "hurt" Paula because he had worked on the D'Crenza house all day, but when D'Crenza came home, D'Crenza had not appreciated the work defendant had done. Defendant added that he was surprised by Paula's strength and that "she had put up quite a fight." At the hospital, when a police technician observed defendant's hands, defendant stated, "That would be my blood. Her blood would be on my stomach." Defendant told Michel he was using an alias because he was wanted for rape in Florida, that he was a habitual criminal, that he was a "Hitler buff," and that if Michel did not shoot him, he "would just go out and do it again."

Defendant was at the hospital for between six and seven hours. He then was transported to the police station.*fn9

With regard to the issue of whether defendant had been intoxicated at the time of Paula's murder, the prosecution presented testimony from Detective Petroski and Officer Michel that defendant did not appear to be "under the influence of anything" during the trip to the hospital, during the hospital stay, or at the Hollywood police station.

The trial court told the jury it was taking judicial notice of the following facts: on August 16, 1984, defendant was convicted by a jury of the first degree murder of Paula, attempting to murder Theodore, attempting to rape Paula, and burglarizing the Bardsley residence; the jury had found true special circumstance allegations that the murder of Paula was committed during an attempted rape and a burglary, and that defendant used a knife in the commission of the offenses; and on February 24, 1977, defendant was convicted in Florida of victimizing Curtis M. A certified copy of the Florida conviction for lewd, lascivious and indecent assault on a child was received into evidence. (McDowell I, supra, 46 Cal.3d at p. 557.)

2. Prior Criminal Acts

The prosecution presented evidence concerning the following incidents of criminal behavior by defendant.

Defendant's younger sister Teressa testified that when she was a child, defendant "made [her]" urinate in his mouth.*fn10

Defendant's ex-wife Rebecca married defendant in 1975 when she was 14 years old. She testified that during the time they were married, defendant beat her, choked her, forced her to have sex while holding a knife to her throat, gave her razor blades and told her to cut her wrists, and put items in her rectum.*fn11 Defendant told her he enjoyed the aberrant sexual things that he did to her, and Rebecca did what defendant wanted because he was "violent" and "very controlling." Rebecca testified that shortly after they were married, defendant made her aware that he was bisexual. Defendant's brother Thomas testified he saw defendant grab Rebecca by the hair and then drag her along the ground. Rebecca testified she had been "knocked out" during that incident and that defendant pulled her out of the house by her hair.

In 1977, while defendant was living in a trailer park in Florida, he enticed Curtis M., his four-year-old neighbor, to enter his trailer by promising Curtis a quarter. Defendant took Curtis into his bedroom, locked the door, undressed, and had Curtis undress. Defendant had Curtis suck his penis, defendant sucked Curtis's penis, and defendant inserted his penis into Curtis's rectum. After Curtis got dressed, defendant gave him a quarter. Curtis reported to his parents that defendant had given him a quarter and "put his penis inside [Curtis's] behind." Curtis added that "his behind was hurting." Curtis's mother testified that she had "checked" him, found "redness on his rectum," and called the police. This incident led to the Florida conviction and to defendant's commitment to a Florida state hospital. While defendant was confined there, Rebecca left him and went into hiding for several years because she feared defendant would kill her if he found her.

In 1981, defendant told his brother Thomas that he would definitely kill Rebecca even if it was the last thing he ever did. He added that he would kill Thomas if Thomas "gave him a reason." Thomas compared defendant to a wild animal, "full of hate," like one "that's been shot." Thomas said he had known defendant "was going to hurt somebody, you could see it."

In 1981, 28-year-old Patricia H. met defendant after he began living in a tent near the house she shared with her six-year-old son, Paul. Paul met defendant as well. Both Patricia and Paul testified at the penalty retrial. A summary of their testimony follows.

On July 29, 1981, a week or two after Patricia met defendant, he knocked on their door in the evening. Defendant said he had been "mugged" and needed to use Patricia's telephone to call the police. He was naked except for tennis shoes, and asked for a towel to cover up. He covered himself with the towel, picked up the telephone, and appeared to speak with the police. Patricia said defendant could stay until the police arrived but became nervous when she noticed he was wearing jewelry. In response to her question, defendant said the muggers had been in a hurry and had not taken everything. Defendant put on a pair of shorts. He sat with Patricia on a couch, said he wanted to make love to her, and tried to kiss her. Patricia declined, excused herself, called her friend Carol, asked Carol to call her back, and then told defendant to wait outside. When defendant left, Patricia called Carol and told her what had happened. They agreed Patricia and Paul would spend the night at Carol's house. While Patricia was on the telephone, defendant yelled through the window, "[L]ady, don't get all upset now. Nothing is going to happen."

As Patricia and Paul left the house and approached their car, defendant jumped from behind the car, grabbed Patricia, and said he now "was going to have it his way." Paul started to run and scream but stopped when defendant said he would kill Paul and his mother if he "didn't shut up." Patricia took Paul into the house after defendant warned that if she did not obey him, he would kill her and then "do it" to her son and then kill him.

Following defendant's demands, Patricia put Paul in his room and called Carol to say she had changed her mind. Defendant then ordered Patricia to take off her clothes. He then raped her, forced her to insert her fingers in his rectum, made her orally copulate him, had her fondle his testicles, made her crawl "like a dog" and sodomized her as she did so, shaved her pubic hair, and inserted a razor in her rectum. Throughout this sexual assault, defendant warned that if Patricia cried he would "do it" to Paul and then kill him. He also told Patricia "to make him feel loved." When Carol periodically called to see why Patricia had changed her mind, defendant had Patricia answer the phone. In one call, Carol asked if "that guy" had left, and Patricia said "no." When the police later called and asked if the perpetrator still was there, Patricia said yes.

After Patricia hung up, defendant had her orally copulate him again. He told her to hold his semen in her mouth and then put it in his mouth. However, as soon as he ejaculated Carol called again, and he told Patricia to swallow and answer the phone. Defendant next had Patricia get him his cigarettes, he smoked one, and he asked for a glass of tea with a paper towel around it because he wanted to conceal his fingerprints, having "done enough time" to know "all the tricks." Defendant then took Patricia's keys, locked the deadbolt, handed the keys back, and told Patricia to wash them to remove his fingerprints. He then forced her back into the bedroom to engage in more sex acts.

When headlights lit Patricia's driveway, defendant assumed Carol had come and ordered Patricia to "get out there and make that cunt leave." It was not Carol, but Patricia's ex-brother-in-law. Patricia explained the situation and then broke Paul's bedroom window, lacerating her knees as she pulled him outside. As the three drove off, they passed police cars, so they returned. By the time police searched Patricia's house, defendant was no longer there.*fn12

On cross-examination, Patricia testified defendant smelled "[o]f beer" when he tried to kiss her, but on redirect examination, she said she did not believe defendant was under the influence of alcohol during the sexual assault because he "[q]uite precisely" told her "what to do and how to do it."

3. Victim Impact Evidence

Paula's husband, Jose, and her daughters, Maria and Valeria, testified regarding the impact of Paula's death on them. Jose, who had been married to Paula for nine years, testified he thought about her every day and "suffered every minute" since her death. In describing how Paula's murder affected him, Jose said his family was "not well" and that they were "not really united at all." Maria, who was age nine when Paula died, missed her mother and thought about her every day. Maria and her mother had discussed how together they would celebrate Maria's 15th birthday party, an "important" birthday in the "Mexican culture," but Maria did not have one. Maria was unmarried and did not intend to have children because she did not want "them to suffer the same way I'm suffering now and for the rest of my life without my parents." After Paula's death, Maria "had a problem" with her father and other members of her family, and, at the time of the second retrial, she was not close with her father. Valeria missed her mother although she had little memory of her. She thought about what her life would have been like had her mother lived and wondered if she would not be so estranged from her sister Maria.

B. Defense Evidence

The defense introduced evidence from a number of witnesses that defendant had grown up in a highly dysfunctional family.

According to defendant's paternal aunt, Roberta Williams, defendant's father, Charles, Sr., was "very violent" towards his family members. He had a terrible temper and beat defendant and his siblings with a belt or with his fists during much of defendant's childhood. Williams described an incident when defendant was about five years old when defendant and his brother Ronald were throwing pebbles at a pony; in response, Charles, Sr., "beat them in the face" with his fist, bloodying their noses and then daring them to cry. Williams testified that defendant's mother, Shirley, did not provide adequate care for defendant when he was an infant, giving him "curdled milk" to drink and keeping him in dirty diapers so long his "bottom" was "bloody." When defendant was older, Williams often saw Shirley beat defendant with a broom, slap his face, and beat him with her fist. While the family lived in Florida, Shirley briefly left her husband on several occasions; she would take the younger children and leave defendant and Ronald with Charles, Sr. Williams and other witnesses testified they never saw any positive interactions between defendant and his mother.

Defendant's mother, Shirley, testified that Charles, Sr., began beating defendant when he was a few weeks old "to make him go to sleep" because he would cry at night.*fn13 She said defendant was "whipped" by his father as a young boy "every day." When defendant was two or three years old, he wet his bed each night; in response, Charles, Sr., beat him every morning and sometimes rubbed defendant's nose in the urine. When defendant's brother Ronald was about the same age, he wet his pants; in response, his father pinched his penis so hard that Ronald had to have an operation to repair the damage. When defendant was five years old, he and his brother Ronald set their doghouse on fire; in response, Charles, Sr., removed their clothes and held them naked over the fire.

Defendant and his brothers often had bruises and welts where Charles, Sr., had hit them. Once Charles, Sr., threw a fork at defendant, which lodged in defendant's finger. Charles, Sr., beat any child whose report card did not meet his expectations. The children often could not tell what would "set [their father] off," but he would inflict multiple "licks . . . until the urge passed him." When one member of the family did something to provoke Charles, Sr., he often would beat up everyone in the house. Charles, Sr., once "stomped" on his son Thomas, breaking one of his ribs, and he later continued to beat Thomas while he was in a body cast. Thomas testified there was no safe time or safe place in the house, that although all the sons were beaten, defendant, who was the oldest child, "got the worst" of Charles, Sr.'s beatings, and that the violence level of the father towards the family "escalated as time went on."

Once, when Charles, Sr., picked up his three-year-old daughter and smeared her face with paint she had spilled, defendant's mother tried to "wrestle" their daughter from him. Defendant, who was a teenager at the time, then hit Charles, Sr., on the top of his head with a two-by-four. In response, Charles, Sr., grabbed defendant by the throat and lifted his feet off the ground while Ronald begged him not to kill defendant.

Religion played a major role in defendant's family life. Charles, Sr., forced the family to attend church and also provided religious instruction in their home. If the children or Shirley resisted his preaching, which always concerned hell and damnation, Charles, Sr., would beat them. He regularly told his children they were sinners who were going to hell, while portraying himself as "perfect" and someone who would be "saved."

Several witnesses testified that Charles, Sr., was physically and verbally abusive towards his wife. He beat her in front of the children with a belt or with his fists. He broke or bloodied her nose on several occasions and left bruises on her. All of the children witnessed these beatings their entire childhood. Charles, Sr., would beat his wife if she tried to intervene on behalf of the children, and he once pointed a gun at her. He treated his wife "like a child," "cursed her," and called her names, telling her she was lazy, filthy, and incompetent.

Defendant's sister Teressa testified that their father, Charles, Sr., had sexually molested her as far back as she could remember, probably starting before she was three years old. The molestations continued until Teressa was age 17, when she told her mother about the sexual abuse and Charles, Sr., moved out of the house. Charles, Sr., would come into her room almost every night through a hole he had created in the closet between their bedrooms, touch her until he had an ejaculation, and then cry and ask for forgiveness. Charles, Sr., also molested Teressa during the day on Saturdays when Shirley went shopping for groceries, and he made Teressa sleep in his bed during a period when Shirley was in the hospital. Teressa had to kiss Charles, Sr., when he came home from work each day, in a way a wife kisses a husband; if she did not, "there would be hell to pay" for the entire family. Thomas had caught Charles, Sr., in Teressa's bedroom and had seen them naked together, and Shirley once had found Teressa in bed with Charles, Sr. Shirley testified that when their children were teenagers, Charles, Sr., would accuse their sons of having sex with Teressa.

When defendant was a teenager, the family moved to Florida. A Florida neighbor, Bonnie Haynes, saw bruises on defendant, Ronald, and Thomas. In defendant's presence, the boys told Haynes that Charles, Sr., "whipped" them and had inflicted the bruises she saw on their arms, backs, and shoulders. After defendant's younger sister Belinda was hit by a car and killed, Haynes heard Charles, Sr., on several occasions spend an hour blaming his other children for Belinda's death while making them look at a large photograph of her. She also frequently saw bruises on the arms of defendant's mother. Haynes said Charles, Sr., never had "a kind word to say to the boys" and was "always real mean" to defendant, talking to him in a derogatory manner, criticizing him, telling him he was dumb and ignorant, and saying that he was going to hell. Defendant told Haynes he was "no good" and was "for sure going to hell." She described defendant's childhood as "pitiful" and said she did not think defendant or his siblings "ever had a chance" because abuse was not reported to the authorities "back then."

Robbie Edwards, a registered nurse, testified she was defendant's primary therapist while he was in a mentally disordered sex offender (MDSO) program in Florida.*fn14 She testified that while under her supervision, defendant had seemed sincere about wanting some help. She evaluated his participation and graded him as very good or excellent, but she acknowledged that at one point defendant had a "homemade knife" on the ward, and that in 1977 the hospital staff concluded that while he had made some positive changes, defendant "still remained a menace to society based on his assaultive tendencies." Edwards testified defendant had reported several instances in which he was forced into homosexual acts, first by his uncles when defendant was nine or 10 years old, and later by employers, schoolmates, and members of a Boy Scout troop.*fn15 Edwards added that defendant told her he feared homosexual advances by other inmates on the ward, but she acknowledged a court-appointed psychiatrist had concluded that defendant's "sexual deviation" involved elements of homosexuality and pedophilia. Edwards also testified that another Florida doctor concluded defendant had a sociopathic character disorder. In 1979, Edwards and the staff recommended that defendant be returned to the court because he no longer met the definition of an MDSO under the Florida statute.

The defense called defendant's ex-wife Rebecca as its own witness. In that capacity, Rebecca testified she once had been in Teressa's room when Charles, Sr., stood outside the window and let his daughter Teressa know he was there. Rebecca testified that, in response, Teressa "was naturally frightened of him." Rebecca also described an incident that occurred when she was 16 years old, defendant was in the state hospital, she was moving to be near him, and Charles, Sr., was helping with the move. The two were in his truck en route to her new home when Charles, Sr., pulled his truck to the side of the road and "made a pass" at her, grabbing her face and trying to pull her towards him to kiss her. She rebuffed his sexual advances, and their trip continued without incident. Rebecca said that defendant's brother Ronald once lost his temper during a card game and slapped her. That was the only time she witnessed Ronald act in a violent manner, and she testified he was not violent like defendant.

Defendant's brother Thomas testified that the circumstances in which he and defendant grew up "made him what [he] had been in the past," namely, someone who "was convicted of rape, sexual abuse." Thomas decided never to have children because the "legacy that I was brought up with, sexual abuse, sexual misconduct, I don't want to pass that on to any children that I might have." At the time of the second penalty retrial, Thomas intentionally had been out of contact with his entire family, and he refused to tell the jury where he was living.

II. DISCUSSION A. Constitutionality of the Second Penalty Retrial

Defendant contends "the long-delayed and repeated retrial of the penalty phase" violated his "state and federal constitutional speedy trial rights, rights to due process, and to freedom from cruel and unusual punishment." We conclude there is no merit to these constitutional challenges to the second penalty retrial.

1. Cruel or Unusual Punishment

Defendant contends the state's repeated retrials of the penalty phase in his case "after lengthy delays for which he was not responsible" constituted cruel and unusual punishment in violation of our state and federal Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)*fn16 We disagree.

The death row delays in the present case do not constitute cruel and unusual punishment because they resulted from the "desire of our courts, state and federal, to get it right, to explore . . . any argument that might save someone's life." (Chambers v. Bowersox (8th Cir. 1998) 157 F.3d 560, 570; see also People v. Anderson (2001) 25 Cal.4th 543, 606 (Anderson).) Reaching the same conclusion, the Fifth Circuit, in rejecting a claim that petitioner White had been on death row for so long that executing him would be cruel and unusual punishment, recognized that "there are compelling justifications for the delay between conviction and the execution of a death sentence. The state's interest in deterrence and swift punishment must compete with its interest in insuring that those who are executed receive fair trials with constitutionally mandated safeguards. As a result, states allow prisoners such as White to challenge their convictions for years. White has benefitted from this careful and meticulous process and cannot now complain that the expensive and laborious process of habeas corpus appeals which exists to protect him has violated other of his rights." (White v. Johnson (5th Cir. 1996) 79 F.3d 432, 439.) Defendant similarly benefitted from challenging his conviction for many years and cannot successfully complain that the delay from the process of state and federal appellate and habeas review resulted in cruel and unusual punishment.

The fact that defendant prevailed on one of his claims in federal court and succeeded in obtaining a reversal of his initial death sentence does not alter our conclusion. In Anderson, we concluded the "automatic appeal process following judgments of death is a constitutional safeguard," and held that "appellate delay in a capital case is not cruel and unusual punishment." (Anderson, supra, 25 Cal.4th at p. 606.) We rejected a claim similar to that made here, although the defendant in that case initially had been sentenced to death in 1979, had his death sentence reversed in 1987 due to instructional error, and, after retrial of the penalty phase, was again sentenced to death in 1991. (Id. at p. 559.)

Defendant argues his case is different from Anderson in part based on his claim that he has suffered "agony" as a result of his prolonged stay on death row, and his belief that the prosecution should "acknowledge" the instructional error by the trial court in 1984 and seek a modification of defendant's sentence to life without the possibility of parole. None of defendant's arguments alter the fact that his situation is indistinguishable from that in Anderson, and we remain convinced that reasonable "appellate delay in a capital case is not cruel and unusual punishment." (Anderson, supra, 25 Cal.4th at p. 606.) In so holding, we reject, as we have in the past, the contention that execution after such an extensive delay serves no penological purpose. (People v. Ochoa (2001) 26 Cal.4th 398, 463-464.)

2. Speedy Trial and Due Process

The Sixth Amendment speedy trial guarantee "is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." (United States v. Ewell (1966) 383 ...


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