PEOPLE v. RUSSELL

ng victim impact evidence requested by the prosecution, and no such instruction was provided here. In People v. Ochoa, however, we concluded that the jury was adequately instructed pursuant to CALJIC No. 8.84.1. ( People v. Ochoa, supra, 26 Cal.4th 398, 455.) Just as in People v. Ochoa, the jury here was given an instruction broadly cautioning it to determine the facts from the evidence presented, to follow the law, and to avoid being swayed by bias or prejudice against defendant. (See CALJIC No. 8.84.1.) We have consistently concluded that neither the trial court's refusal to provide a victim impact evidence instruction worded similarly to defendant's proposed instruction, nor the trial court's refusal to sua sponte provide a similar instruction, constitutes error. Defendant presents us with no reason to reconsider our prior holdings.

5. Alleged Instructional Error Regarding Uncharged Acts as Aggravating Factors

Defendant claims the court erred by admitting evidence of uncharged crimes as an aggravating factor under section 190.3, factor (b) without instructing the jury sua sponte that the commission of uncharged crimes under section 190.3, factor (b) must be proven beyond a reasonable doubt pursuant to People v. Robertson (1982) 33 Cal.3d 21, 53-56 [ 188 Cal.Rptr. 77, 655 P.2d 279]. Defendant correctly points out that People v. Robertson requires the prosecution to prove beyond a reasonable doubt the commission of uncharged crimes when introduced as a factor in aggravation, but defendant fails to acknowledge that a reasonable doubt instruction is not required if evidence of uncharged crimes is admitted for other purposes. ( People v. Rich (1988) 45 Cal.3d 1036, 1121 [ 248 Cal.Rptr. 510, 755 P.2d 960]; People v. Robertson, supra, 33 Cal.3d at p. 60 (cone. opn. of Broussard, J.).)

Here, defendant claims that evidence of uncharged crimes was introduced in several ways. During his opening statement at the penalty retrial, the prosecutor explained to the jury that defendant abused his wife and had gone to jail in the past when his wife called the police. The prosecution elicited testimony from defendant's former brother-in-law that defendant had "mistreated" his wife during their marriage. During cross-examination of Dr. Verde from the Veterans Administration medical center, the prosecutor elicited testimony concerning 12 incidents of domestic violence referred to in defendant's medical records. The prosecution also elicited testimony from Pastor Young that defendant's wife stated several weeks before the shootings that defendant had threatened to shoot her. Finally, the prosecutor stated during his closing argument that defendant was abusive towards his wife.

The People argue that none of the evidence concerning domestic abuse was introduced as a factor in aggravation under section 190.3, factor (b), but instead was introduced to show defendant's intent to commit the instant crimes. This was elicited through defendant's brother-in-law's testimony concerning defendant's past statements that defendant would not be bothered by shooting a police officer. Similarly, the People claim that testimony elicited during the cross-examinations of Dr. Verde and Pastor Young demonstrated defendant's unchanging nature (presumably to show that defendant continued to believe he would not be bothered by shooting a police officer) and the likelihood that defendant would act on threats made previously, or to show a factor in mitigation, such as defendant's acting while under the influence of extreme mental or emotional disturbance.

The People rely heavily on People v. Rich, in which we concluded that a court need only give a Robertson reasonable doubt instruction "`when evidence of other crimes is introduced or referred to as an aggravating factor'" under section 190.3, factor (b). ( People v. Rich, supra, 45 Cal.3d at p. 1121, quoting People v. Robertson, supra, 33 Cal.3d at p. 60 (cone. opn. of Broussard, J.).) The People contend that the contested evidence was introduced here for purposes distinct from proving the commission of other crimes as an aggravating factor under section 190.3, factor (b). We do not find People v. Rich instructive here because in that case most of the contested other crimes evidence was introduced by the defendant in the guilt phase of the trial to establish diminished capacity. ( People v. Rich, supra, 33 Cal.3d at pp. 1121-1122.) Here, the contested evidence was introduced during the penalty retrial, and the purpose for which it was introduced was not made as clear as in People v. Rich.

Nonetheless, we have concluded that a court's failure to provide a Robertson instruction does not constitute error where, as here, "the prosecutor did not argue that any evidence relating to . . . factor [(b)] had been presented" even when "the jury was instructed that in determining penalty it could consider, among other things, the presence or absence of criminal activity involving the use, attempted use, or threat of violence." ( People v. Lang (1989) 49 Cal.3d 991, 1040 [ 264 Cal.Rptr. 386, 782 P.2d 627].) In the present case, the prosecutor argued only that section 190.3, factors (a) and (k) — circumstances of the crime and circumstances extenuating the gravity of the crime, respectively — were relevant. Accordingly, no Robertson instruction was required because the evidence was not introduced as evidence of uncharged crimes under section 190.3, factor (b). (See People v. Lang, supra, 49 Cal.3d at p. 1040; People v. Poggi (1988) 45 Cal.3d 306, 341 [ 246 Cal.Rptr. 886, 753 P.2d 1082].)

Even if the trial court's failure to provide sua sponte a Robertson instruction constituted error, any error was harmless because it is not reasonably probable that providing the omitted instruction would have altered the verdict. ( People v. Brown (1988) 46 Cal.3d 432, 446-449 [ 250 Cal.Rptr. 604, 758 P.2d 1135]; People v. Avena (1996) 13 Cal.4th 394, 433-435 [ 53 Cal.Rptr.2d 301, 916 P.2d 1000].) Defendant did not argue during the penalty phase of his trial, and does not argue now, that the evidence concerning the alleged domestic abuse was inaccurate. (See People v. Avena, supra, 13 Cal.4th at p. 433 [uncontroverted other crimes evidence renders failure to give Robertson instruction nonprejudicial].) Indeed, defense counsel alluded to the domestic abuse in his own cross-examination of the People's witness, Pastor Young. Pastor Young testified that defendant's wife would call seeking counseling because she was fearful that defendant would harm her; Pastor Young also testified that defendant brought Pastor Young a gun because he wanted to "remove [it] from [his] home, because [he] want[ed] to work on [his] relationship with Elaine." Far from arguing that evidence concerning the domestic abuse was inaccurate, defendant elicited similar testimony from the prosecution's witnesses during cross-examination. Accordingly, we conclude that the court's error, if any, in failing to instruct the jury pursuant to People v. Robertson was harmless because it is not reasonably probable that the verdict would have been different. ( People v. Avena, supra, 13 Cal.4th at p. 433.)

6. Alleged Instructional Error Regarding Lack of Prior Felony Convictions

Defendant requested that the jury be instructed that the absence of any prior felony convictions is a factor in mitigation. The jury was instructed, pursuant to CALJIC No. 8.85, that it must "consider, take into account, and be guided by the following factors, if applicable. . . . C, the presence or absence of any prior felony conviction other than the crimes for which the defendant has been tried in the present proceedings." Defendant alleges that the court's refusal to give a more specific instruction, stating in particular that the absence of a prior felony conviction is a mitigating factor, violated section 1093, subdivision (f), and his state and federal constitutional rights to due process and a reliable penalty determination. Defendant also contends that the prosecutor's argument that only section 190.3, factors (a) and (k) were relevant, and defendant's counterargument that section 190.3, factors (b) and (c) should also be considered, added ambiguity to the standard instruction, thus warranting a more specific instruction. We disagree.

The instruction requested by defendant and rejected by the trial court provided: "The absence of any felony convictions prior to the crime [s] for which the defendant has been tried in the present proceedings is a mitigating factor."

Section 1093, subdivision (f) provides, in pertinent part, "The judge may then charge the jury, and shall do so on any points of law pertinent to the issue, if requested by either party. . . ."

We have consistently concluded that CALJIC No. 8.85 is "`correct and adequate,'" and that no error results from a court's refusal to provide a more specific instruction informing the jury that it may consider a defendant's lack of prior felony convictions to be a factor in mitigation. ( People v. Burney, supra, 47 Cal.4th at p. 262, quoting People v. Valencia (2008) 43 Cal.4th 268, 309 [ 74 Cal.Rptr.3d 605, 180 P.3d 351]; see also People v. Monterroso (2004) 34 Cal.4th 743, 788 [ 22 Cal.Rptr.3d 1, 101 P.3d 956] [" `[A] trial court need not instruct that the absence of prior felony convictions is necessarily mitigating,' even if the defendant requests such an instruction."], quoting People v. Pollock (2004) 32 Cal.4th 1153, 1194 [ 13 Cal.Rptr.3d 34, 89 P.3d 353].) Defendant presents us with no compelling reason to reconsider our prior holdings.

7. Alleged Instructional Error Regarding Double Counting Special Circumstances as Aggravating Factors

Defendant argues that the trial court erroneously refused his request to instruct the jury that it "should not double count aggravating factors which are special circumstances," and that this error violated his rights to due process and a reliable penalty determination under the Eighth and Fourteenth Amendments to the United States Constitution. We disagree. Even if the court erred by failing to provide defendant's requested instruction, we have repeatedly held that no prejudice results from such an error where, as here, the prosecutor does not suggest that double counting aggravating factors is permissible and the jury receives the standard instruction concerning the weighing of aggravating and mitigating factors. ( People v. Melton (1988) 44 Cal.3d 713, 774-775 [ 244 Cal.Rptr. 867, 750 P.2d 741]; see People v. Ayala (2000) 24 Cal.4th 243, 289 [ 99 Cal.Rptr.2d 532, 6 P.3d 193] [standard instruction does not encourage double counting of aggravating factors]; see also People v. Burney, supra, 47 Cal.4th at p. 267.)

8. Alleged Instructional Error Regarding Jury's Consideration of Circumstances of Crime as Aggravating Evidence Under Section 190.3, Factor (b)

Defendant argues that the jury was improperly permitted to consider the circumstances of the crimes as uncharged violent crimes under section 190.3, factor (b) (factor (b)) in violation of his state and federal constitutional rights to due process, a fair trial, and a reliable penalty determination. Specifically, defendant contends that evidence concerning the events leading up to the shootings of Deputies Lehmann and Haugen, which formed the basis for the additional charged crimes of assault with a deadly weapon of Brown (which was dismissed during trial) and misdemeanor spousal abuse of Elaine Russell (to which defendant pleaded no contest before trial), were improperly considered by the jury as factor (b) evidence. Defendant's claim fails.

Factor (b) permits a jury to consider "[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence." The court instructed the jury pursuant to CALJIC No. 8.85, which, with regard to factor (b), informs the jury that it may consider evidence of criminal activity "other than the crime[s] for which the defendant has been tried in the present proceedings." Here, the only evidence about which defendant complains concerns the circumstances of the charged crimes, not criminal activity other than charged crimes and circumstances surrounding them. Accordingly, defendant's claim that the jury was improperly permitted to consider evidence regarding the circumstances of the charged crimes as factor (b) evidence is belied by the language of the instruction provided to the jury that it could only consider evidence of criminal activity other than the crimes for which defendant was being tried.

Indeed, in the present case the prosecutor informed the jury that the only relevant section 190.3 factors were factors (a) and (k) — the prosecution did not suggest to the jury that factor (b) was relevant or that it should consider the circumstances of the instant crimes as factor (b) evidence. Defense counsel argued to the contrary, informing the jury that it could "also consider factor [(b)], presence and absence of other criminal activity." Defendant complains that instructing the jury with both factor (a) and factor (b) improperly permits the jury to double count the same evidence. Defendant's claim is forfeited to the extent that he did not object to the instruction being given, and even argued to the jury that it could and should consider factor (b). (See People v. Valdez (2004) 32 Cal.4th 73, 113 [ 8 Cal.Rptr.3d 271, 82 P.3d 296]; see also People v. Carpenter (1997) 15 Cal.4th 312, 390 [ 63 Cal.Rptr.2d 1, 935 P.2d 708], superseded by statute on other grounds as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096 [ 77 Cal.Rptr.3d 287, 183 P.3d 1250].) Moreover, as previously explained, the language of the instruction reveals the flaw in defendant's argument. Factor (a) permits the jury to consider the circumstances of the charged offenses, and factor (b) permits the jury to consider a defendant's violent crimes other than the crime(s) at issue in the proceeding before it. Accordingly, we conclude that a reasonable jury would not conflate or confuse the instructions concerning factors (a) and (b), and the trial court did not err by instructing the jury consistently with factor (b). (See People v. Melton, supra, 44 Cal.3d at p. 763; People v. Ashmus (1991) 54 Cal.3d 932, 998 [ 2 Cal.Rptr.2d 112, 820 P.2d 214], abrogated on other grounds as recognized in People v. Yeoman (2003) 31 Cal.4th 93, 117 [ 2 Cal.Rptr.3d 186, 72 P.3d 1166].) Even assuming the instruction was erroneously given, no prejudice resulted because it was never suggested to the jury, or even implied, that "circumstances of the murder should be considered both under factor (a) and as criminal activity under factor (b)." ( People v. Coleman (1989) 48 Cal.3d 112, 157 [ 255 Cal.Rptr. 813, 768 P.2d 32].)

9. Penalty Phase Instructional Challenges

Defendant raises a host of federal constitutional challenges to the instructions given during the penalty phase of the trial to preserve them, recognizing that this court has repeatedly rejected similar contentions. Defendant argues that the court erred by failing to instruct the jury that it must find beyond a reasonable doubt that aggravating factors outweigh mitigating factors before it imposes a sentence of death. We have repeatedly rejected this claim, and defendant presents us with no reason to reconsider our prior holdings. ( People v. Martinez (2009) 47 Cal.4th 399, 455 [ 97 Cal.Rptr.3d 732, 213 P.3d 77].) Defendant urges us to reconsider our holding in light of the high court's decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435, 120 S.Ct. 2348] and Ring v. Arizona (2002) 536 U.S. 584 [ 153 L.Ed.2d 556, 122 S.Ct. 2428], which we have consistently declined to do. ( People v. Martinez, supra, 47 Cal.4th at p. 455 ["` "[u]nlike the guilt determination, `the sentencing function is inherently moral and normative, not factual' [citation] and, hence, not susceptible to a burden-of-proof quantification."` "], quoting People v. Manriquez (2005) 37 Cal.4th 547, 589 [ 36 Cal.Rptr.3d 340, 123 P.3d 614].) Defendant claims his Eighth and Fourteenth Amendment rights were violated because the jury was not told that it was permitted to impose death only if it were persuaded beyond a reasonable doubt that aggravating factors outweighed mitigating factors. We have repeatedly rejected this claim. ( People v. Cruz (2008) 44 Cal.4th 636, 681 [ 80 Cal.Rptr.3d 126, 187 P.3d 970].) Defendant argues that the Sixth, Eighth and Fourteenth Amendments to the United States Constitution require that the state bear some burden of persuasion at the penalty stage, which the jury instructions failed to provide. We have consistently rejected this contention. (See People v. Manriquez, supra, 37 Cal.4th at p. 589.) We similarly reject defendant's claims that the penalty phase instructions were constitutionally deficient because they did not mandate juror unanimity concerning aggravating factors ( People v. Martinez, supra, 47 Cal.4th at p. 455), and we reject defendant's claim that the jury should have been instructed regarding a "`presumption of life.'" ( People v. McWhorter, supra, 47 Cal.4th at p. 379.)

10. Alleged Instructional Error Regarding Scope of Jury's Sentencing Discretion and Nature of Deliberative Process

Defendant argues that the concluding instruction given to the jury, a modified version of CALJIC No. 8.88, was flawed because it failed to adequately convey deliberative principles, was misleading and was vague. Defendant contends these defects violated his rights to due process, a fair trial by jury, and a reliable penalty determination under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Not so.

The instruction read to the jury provided: "It is now your duty to determine which of the two penalties, death or confinement in the state prison for life without the possibility of parole, shall be imposed on the defendant, [¶] After hearing — after having heard all of the evidence and having heard and considered the arguments of counsel, you shall consider, take into account, and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed, [¶] An aggravating factor is any fact, condition or event attending the commission of a crime which increases its guilt or enormity or adds to its injurious consequences which is above and beyond the elements of the crime itself. [¶] A mitigating circumstance is any fact, condition or event which does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. [¶] The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale or the arbitrary assignments of weights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider. [¶] In weighing the various circumstances you determine under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. [¶] To return a judgment of death each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without possibility of parole."

Defendant argues that the phrase "so substantial" in the final paragraph of the instruction — that jurors may return a verdict of death if each is "persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants [a judgment of] death" (italics added) — created a vague and directionless standard in violation of the Eighth and Fourteenth Amendments to the United States Constitution. We disagree. As an initial matter, we note that defendant did not request a clarifying instruction; accordingly, any objection he has to the instruction is forfeited. ( People v. Arias (1996) 13 Cal.4th 92, 171 [ 51 Cal.Rptr.2d 770, 913 P.2d 980].) Defendant's claim also fails on the merits. We have consistently held that the "so substantial" language in CALJIC No. 8.88 "is not inadequate or misleading. By advising that a death verdict should be returned only if aggravation is `so substantial in comparison with' mitigation that death is `warranted,' the instruction clearly admonishes the jury to determine whether the balance of aggravation and mitigation makes death the appropriate penalty." ( People v. Arias, supra, 13 Cal.4th at p. 171; see also People v. Breaux (1991) 1 Cal.4th 281, 315-316 [ 3 Cal.Rptr.2d 81, 821 P.2d 585].)

Defendant next contends that the instruction's use of the term "warrants" was inadequate because jurors are called upon to decide whether death is the "appropriate" penalty, not whether it is warranted. We rejected an identical argument in People v. Breaux, concluding that the "contention is spurious." ( People v. Breaux, supra, 1 Cal.4th at p. 316; see also People v. Friend (2009) 47 Cal.4th 1, 90 [ 97 Cal.Rptr.3d 1, 211 P.3d 520] ["The phrases `so substantial' and `warranted' in CALJIC No. 8.88 are not unconstitutionally vague."].) Finally defendant suggests that the instruction was inadequate because it failed to convey to the jury that it must impose a life sentence if it did not find that aggravating factors outweighed mitigating factors. We have consistently concluded otherwise. ( People v. Friend, supra, 47 Cal.4th at p. 90; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 124 [ 17 Cal.Rptr.3d 710, 96 P.3d 30].)

11. Alleged Instructional Error Regarding Section 190.3

Defendant raises numerous challenges to the jury instructions concerning section 190.3 (CALJIC Nos. 8.85, 8.88, as given), all of which this court has repeatedly rejected. Defendant first contends that section 190.3, factor (a) violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because the "circumstances of the crime" factor is applied in "a wanton and freakish manner" resulting in arbitrary and capricious imposition of the death penalty. We have previously considered and rejected this claim. ( People v. Gutierrez (2009) 45 Cal.4th 789, 831 [ 89 Cal.Rptr.3d 225, 200 P.3d 847].) Defendant next contends that the trial court erred by failing to delete inapplicable factors from CALJIC No. 8.85 as provided to the jury; we have consistently concluded otherwise. ( People v. McWhorter, supra, 47 Cal.4th at p. 378.) We have also consistently rejected the claim that the failure to instruct the jury as to which factors were mitigating constituted error. ( Ibid.) We have likewise repeatedly rejected the claim that adjectives such as "extreme" and "substantial" act as a barrier to the jury's consideration of factors in mitigation. ( Id. at pp. 378-379.)

Defendant also argues that the failure of CALJIC Nos. 8.85 and 8.88 to require written findings deprived him of his rights to due process, meaningful appellate review, and equal protection pursuant to the Eighth and Fourteenth Amendments to the United States Constitution. We have consistently concluded otherwise. ( People v. Geier (2007) 41 Cal.4th 555, 620 [ 61 Cal.Rptr.3d 580, 161 P.3d 104].) Finally, defendant erroneously suggests that California's death penalty scheme denies capital defendants equal protection of the laws; we have repeatedly concluded to the contrary. ( People v. Gutierrez, supra, 45 Cal.4th at p. 831; People v. Zamudio (2008) 43 Cal.4th 327, 373 [ 75 Cal.Rptr.3d 289, 181 P.3d 105].)

12. Intercase Proportionality Review

Defendant argues that the California capital sentencing scheme's lack of intercase proportionality review violates his rights to be free from the arbitrary and capricious imposition of a capital sentence pursuant to the Eighth and Fourteenth Amendments to the United States Constitution. We have repeatedly rejected similar claims, and are presented with no arguments compelling us to alter our long-standing rule. ( People v. Gutierrez, supra, 45 Cal.4th at p. 833; People v. Hoyos (2007) 41 Cal.4th 872, 927 [ 63 Cal.Rptr.3d 1, 162 P.3d 528].)

13. Cumulative Error

Defendant argues that even if individual errors do not warrant reversal, the cumulative effect of multiple errors resulted in prejudice to defendant mandating reversal. We disagree. To the extent we concluded or assumed that the trial court erred, no single error warranted reversal, and we are not persuaded that reversal is warranted when those same nonprejudicial errors are considered collectively.

14. Alleged Violation of International Law, and of the Eighth and Fourteenth Amendments to the United States Constitution

Defendant's final contention — that his death sentence and California's capital sentencing scheme are inconsistent with international norms, and therefore violate the Eighth and Fourteenth Amendments to the United States Constitution — has been repeatedly rejected by this court. ( People v. Curl (2009) 46 Cal.4th 339, 362-363 [ 93 Cal.Rptr.3d 537, 207 P.3d 2].)

III. CONCLUSION

We affirm the judgment.

George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Corrigan, J., concurred.