PEOPLE v. COWAN

other jurors may have been berating Juror No. 045829 in order to coerce her to change her vote. But defendant's assertions about possible coercion are speculative. Further, "jurors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means. To probe as defendant suggests, in the absence of considerably more cogent evidence of coercion, would `"deprive the jury room of its inherent quality of free expression."' [Citation.] . . . Moreover, any such inquiry could in itself have risked pressuring the dissenting juror to conform her vote to that of the majority." ( People v. Johnson, supra, 3 Cal.4th at p. 1255.) Accordingly, the trial court did not err in declining to inquire about possible coercion.

9. Challenges to death penalty statute

Defendant attacks the constitutionality of California's death penalty statute on a number of grounds. We have in the past rejected each of these contentions. Thus, we have concluded:

Section 190.2 adequately narrows the class of offenders eligible for the death penalty in conformance with Eighth and Fourteenth Amendment requirements. ( People v. Leonard (2007) 40 Cal.4th 1370, 1429 [ 58 Cal.Rptr.3d 368, 157 P.3d 973]; People v. Rogers, supra, 39 Cal.4th at p. 892.)

Section 190.3, factor (a), which allows the jury to consider the "circumstances of the crime" in determining whether to impose the death penalty, is not unconstitutionally vague, arbitrary or capricious, (see People v. Leonard, supra, 40 Cal.4th at p. 1429; accord, People v. Curl, supra, 46 Cal.4th at p. 362.)

"`The Eighth and Fourteenth Amendments do not require that a jury unanimously find the existence of aggravating factors or that it make written findings regarding aggravating factors.' [Citations.] `[N]either the cruel and unusual punishment clause of the Eighth Amendment, nor the due process clause of the Fourteenth Amendment, requires a jury to find beyond a reasonable doubt that aggravating circumstances exist or that aggravating circumstances outweigh mitigating circumstances or that death is the appropriate penalty. [Citations.]`" ( People v. Rogers, supra, 39 Cal.4th at p. 893.) Moreover, the statute "`is not unconstitutional because it does not contain a requirement that the jury be given burden of proof or standard of proof instructions for finding aggravating and mitigating circumstances in reaching a penalty determination.`" ( People v. Curl, supra, 46 Cal.4th at p. 362.) On the other hand, the trial court is not required to instruct the jury that neither party bears the burden of proof. ( People v. Leonard, supra, 40 Cal.4th at p. 1429.) Nothing in the United States Supreme Court's recent decisions interpreting the Sixth Amendment's jury trial guarantee (e.g., Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856, 127 S.Ct. 856]; Ring v. Arizona (2002) 536 U.S. 584 [ 153 L.Ed.2d 556, 122 S.Ct. 2428]; Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435, 120 S.Ct. 2348]) compels a different answer to these questions. ( People v. Curl, supra, at p. 362; People v. Rogers, supra, at p. 893.) Further, "Evidence Code section 520, establishing that a party `claiming that a person is guilty of crime or wrongdoing has the burden of proof on that issue,' does not apply to the normative decision on penalty that is performed by the trier of fact at the penalty phase of a capital trial." ( People v. Dykes, supra, 46 Cal.4th at p. 814; see People v. Leonard, supra, at p. 1429.)

The failure to require intercase proportionality review does not violate due process, equal protection or the Eighth Amendment. ( People v. Curl, supra, 46 Cal.4th at p. 362; People v. Lewis, supra, 43 Cal.4th at p. 538.) The use of unadjudicated criminal activity as an aggravating factor at the penalty phase is not unconstitutional. ( People v. Hillhouse (2002) 27 Cal.4th 469, 507 [ 117 Cal.Rptr.2d 45, 40 P.3d 754]; People v. Balderas (1985) 41 Cal.3d 144, 204-205 fn. 32 [ 222 Cal.Rptr. 184, 711 P.2d 480].) And the use of restrictive adjectives such as "extreme," "reasonabl[e] belie[f]," and "impaired" in section 190.3, factors (d), (f), (g) and (h) does not prevent the consideration of constitutionally relevant evidence. ( People v. Rogers, supra, 39 Cal.4th at pp. 893, 895; see People v. Ghent (1987) 43 Cal.3d 739, 776 [ 239 Cal.Rptr. 82, 739 P.2d 1250].)

The jury need not be instructed that section 190.3, factors (d), (e), (f), (g), (h) and (j) are relevant only as possible mitigators. ( People v. Leonard, supra, 40 Cal.4th at p. 1430.) Nor is the trial court required to instruct that the absence of a particular mitigating factor is not aggravating. ( People v. Rogers, supra, 39 Cal.4th at p. 897.) In any event, the jury here was instructed that "[t]he absence of mitigation does not amount to the presence of aggravation."

The availability of certain procedural protections in noncapital sentencing — such as a burden of proof, written findings, jury unanimity and disparate sentence review — when those same protections are unavailable in capital sentencing, does not signify that California's death penalty statute violates Fourteenth Amendment equal protection principles. ( People v. Leonard, supra, 40 Cal.4th at p. 1430; People v. Blair, supra, 36 Cal.4th at p. 754.)

The death penalty, when applied in accord with state and federal statutory and constitutional requirements, does not violate international law. ( People v. Lewis, supra, 43 Cal.4th at p. 539.) International norms of human decency do not render the death penalty, applied as a regular form of punishment, violative of the Eighth Amendment. ( People v. Curl, supra, 46 Cal.4th at pp. 362-363; People v. Lewis, supra, 43 Cal.4th at p. 538.)

E. Cumulative Error

Defendant contends that the cumulative impact of all of the errors at his trial caused him substantial prejudice and rendered his trial fundamentally unfair in violation of his Fourteenth Amendment right to due process of law, requiring reversal of the guilt and penalty judgments. (See People v. Lewis, supra, 43 Cal.4th at p. 537; People v. Davis (2005) 36 Cal.4th 510, 572-573 [ 31 Cal.Rptr.3d 96, 115 P.3d 417].) We have found no errors with respect to the guilt phase. As for the penalty phase, we have found two errors or assumed errors: the trial court's failure to instruct regarding reasonable doubt with respect to the Russell murder, and its failure to redefine reasonable doubt in its penalty phase instructions. We conclude that even when considered cumulatively, any instructional error was harmless beyond a reasonable doubt ( Chapman v. California, supra, 386 U.S. at p. 24), and there is no reasonable possibility of a different result at the penalty phase in its absence. ( People v. Brown, supra, 46 Cal.3d at pp. 467-468.) As we have explained, even if the jurors believed — contrary to their explicit instructions — that they could consider the Russell murder in aggravation, we find it highly unlikely that they would conclude that any standard other than reasonable doubt applied to the consideration of that murder, or that those jurors who did not believe Russell's murder had been proved beyond a reasonable doubt would use that murder as the deciding factor in their penalty calculus. Moreover, we find no indication in the record that the jurors at the penalty phase were confused about the meaning of the reasonable doubt standard to be applied to evidence of other criminal activity, and it is unlikely the jurors would have forgotten the meaning of that term, given that the question of defendant's guilt of the Russell murder was hotly disputed at the guilt phase. Under all the circumstances, and considering the strength of the aggravating evidence, we conclude any errors both singly and in combination were harmless under any standard and did not render defendant's penalty trial fundamentally unfair. (See People v. Lewis, supra, 43 Cal.4th at p. 538; People v. Davis, supra, 36 Cal.4th at pp. 572-573.)

III. DISPOSITION

We affirm the judgment.

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

Appellant's petition for a rehearing was denied September 15, 2010.