Maureen McDermott, a former
nurse, hired an orderly at the hospital where she worked to kill her
male roommate so she could collect mortgage insurance on a house they
S.C. Upholds Death Sentence for
Local Woman in Killing for Hire
By Kenneth Ofgang - MetNews.com
Tuesday, August 13,
Supreme Court yesterday unanimously affirmed Maureen McDermott’s death
sentence for hiring the men who killer her former housemate.
Accepting the prosecutor’s comparison of former
nurse McDermott “to a Nazi working in the crematorium by day and
listening to Mozart by night,” the justices unanimously rejected
challenges to the conviction and sentence for the killing of Stephen
McDermott is the first woman to have her death
sentence upheld by the state high court since California re-instituted
capital punishment in 1977. She is among 13 women currently under
sentence of death in the state, which has a Death Row population of
In the last 130 years, California has executed four
women, the last in 1962. California has executed 10 men since 1992,
and one inmate was executed in Missouri while under sentence of death
here as well as in that state.
Eldridge, then 37, was stabbed 44 times in April
1985 in the Van Nuys home he shared with McDermott. The deputy medical
examiner testified that 28 of the wounds were independently fatal.
Three months after the killing, police arrested
Jimmy Luna. Luna, a former orderly at County-USC Medical Center,
implicated McDermott-a friend and former co-worker-and she was
arrested a month later.
Luna agreed to plead guilty and testify at
McDermott’s trial. He admitted recruiting brothers Marvin Lee and
Dondell Lee to assist in the murder.
The Lees received immunity for their testimony.
Luna, who was on the stand for five weeks-including eight days of
cross-examination-received life imprisonment without the possibility
Luna told the jury in Los Angeles Superior Court
Judge Alan Haber’s courtroom that McDermott promised him $50,000-half
the proceeds of the mortgage life insurance on the home they owned as
joint tenants-to kill Eldridge. A month before the fatal attack, he
said, he and Marvin Lee made a first attempt, but Eldridge pushed them
out of the way and ran out.
In addition to having been repeatedly stabbed,
Eldridge had his penis cut off-after he died, the pathologist
testified. Luna said that was done at McDermott’s insistence, in order
to make it appear that the killing was a “homosexual murder” that
McDermott surmised the police would not vigorously investigate.
McDermott did not testify. But her trial lawyers,
Joe Ingber and Carl Burkow, insisted that she had nothing to do with
the killing and that Luna and the Lees could not be believed.
McDermott spoke publicly for the first time at
sentencing, denying that she had anything to do with the murder and
calling prosecutor Katherine Mader, now a Los Angeles Superior Court
judge, “a power-hungry woman . . . with so little integrity.”
On appeal, the defense attacked Mader, accusing her
of systematically using peremptory challenges to remove blacks from
the jury and of having made improper personal attacks on the defendant
in closing argument.
But Justice Joyce L. Kennard, writing for the high
court, said there was no misconduct on the prosecutor’s part.
With respect to the peremptory challenges-the
prosecution removed eight black potential jurors, the defense one,
leaving no African Americans on the jury-Kennard said the judge did
not err in concluding that each of the challenged venire members was
removed because of reservations about capital punishment and not
because of race.
While each professed to be unbiased, and some
actually expressed support for capital punishment, the justice
explained, each had also indicated that they had doubts about imposing
it under the circumstances of McDermott’s case.
Some indicated they might not support it where the
special circumstances were lying in wait and killing for financial
gain, others indicated their support for capital punishment in general
was only lukewarm, one indicated he thought all killing was wrong, one
indicated that he was not inclined to support it for a person with no
prior criminal record or who did not actually participate in the
killing, and one indicated she would likely vote against it if she
thought the defendant could be rehabilitated.
“A prospective juror’s views about the death
penalty are a permissible race- and group-neutral basis for exercising
a peremptory challenge in a capital case,” Kennard said. Haber’s
conclusions are entitled to deference, she added, because he made the
“sincere and reasoned attempt to evaluate each stated reason as
applied to each challenged juror” required by prior Supreme Court
Kennard went on to say that Mader did not commit
misconduct by calling the defendant “a mutation of a human being,” a
“wolf in sheep’s clothing,” a “traitor,” a person who “stalked people
like animals,” and someone who had “resigned from the human race.”
Those remarks “did not exceed the permissible scope
of closing argument in view of the evidence presented of, among other
things, defendant’s deliberate and cold-blooded planning of the
killing of Stephen Eldridge,” the justice wrote.
As for the “Nazi” comment, Kennard explained, the
prosecutor was not drawing a parallel between the Eldridge murder and
the Holocaust, but was trying to impress on the jury the fact that a
person may show “a refined sensitivity in some activities while
demonstrating barbaric cruelty in others.”
The analogy was appropriate under the facts of the
case, Kennard said. McDermott, who Luna testified had hired him two
years before the Eldridge murder to commit the brutal beating of a
home health care worker so that she could get his job, had been shown
“to be both a caring and competent nurse and a person capable of
plotting a brutal murder,” the justice said.
McDermott was represented on appeal by Steffan
Imhoff of Del Mar-who said in a statement yesterday that his client
was “an innocent woman who received an unfair trial”-and Verna Wefald
of Pasadena. Deputy Attorney General G. Tracey Letteau argued for the
The case is People v. McDermott, 02 S.O.S.
Nurse Gets Death in Murder Case
Crime: She had roommate killed to collect mortgage insurance. Her
execution would be 5th of a woman in state history
By Patricia Klein Lerner - Los Angeles Times
June 9, 1990
A 42-year-old registered nurse, tearfully
protesting her innocence, was sentenced Friday to die in the gas
chamber for hiring a co-worker to murder her roommate so she could
collect a $100,000 mortgage insurance policy.
Maureen McDermott, a former nurse at County-USC
Medical Center, became the second woman sentenced to die in California
since the death penalty was reinstated in 1978, prison officials said.
If executed, she would be the fifth woman ever to be killed by the
Wearing a black suit, McDermott sat stoically as
Van Nuys Superior Court Judge Alan B. Haber formally sentenced her to
death for the April 28, 1985, murder of Stephen Eldridge.
Haber described McDermott--whose work was highly
praised by superiors and co-workers at the hospital--as "a
compassionate nurse during her career," but said "the circumstances of
the crime demonstrate that Miss McDermott had a complete disregard for
A jury on March 2 convicted McDermott of
first-degree murder with special circumstances in Eldridge's death and
of attempted murder in a March 21, 1985, knife attack on Eldridge
arranged by McDermott. The same jury unanimously recommended last
April that McDermott die for the crimes.
Eldridge, 27, was stabbed 44 times and his penis
cut off in the Van Nuys home he co-owned with McDermott. Prosecutors
alleged that McDermott paid a former orderly at County-USC Medical
Center, James Flores Luna, to kill Eldridge and mutilate his body in
hopes that police would mistake it for a homosexual crime of passion.
She also induced Luna to carry out the earlier
attempt on Eldridge's life, then comforted Eldridge while plotting
another attempt, the prosecution charged. Eldridge confided to a
friend that he felt secure when McDermott was with him, said Deputy
Dist. Atty. Katherine Mader.
McDermott, who did not testify in her own behalf,
spoke for the first time since her trial began, accusing the judge of
favoring the prosecution. "I want you to know I have no fear of dying.
However, I wish not to die in vain," she told the judge.
"I have sat in this courtroom and listened to the
district attorney verbally rape me and witnesses perjure themselves,"
McDermott continued, referring to Mader.
"Never in my life have I ever come across such a
power-hungry woman . . . with so little integrity. I did not kill
Steven Eldridge and I had nothing to do with the murder," McDermott
said, breaking into tears.
Eldridge's brother, Patrick--speaking for his
mother, father and sister, who sat quietly in the front row of the
courtroom--asked the judge to order McDermott put to death. "Nothing
we do or say here today will ever bring Steven Eldridge back, but we
want to make sure she never does it to another person," he said.
Mader told Haber that McDermott "has shown no
remorse" for the killing and called her "one of the coldest human
beings you will ever see."
Carl Burkow, one of McDermott's two court-appointed
lawyers, had urged the judge to sentence McDermott to life in prison
without the possibility of parole.
He pointed out that Luna, the key witness against
McDermott, made a deal with prosecutors under which he was spared the
risk of the death penalty in exchange for his testimony. Luna, 36,
pleaded guilty to murder with special circumstances and is scheduled
to be sentenced July 6. Two other men who helped kill Eldridge
received immunity in exchange for testifying.
IN A NUTSHELL
Maureen "Miki" McDermott, a highly regarded
registered nurse and licensed respiratory therapist, hard worker and
devoted daughter, who had no prior arrest or criminal record, who
loved animals, took in strays and helped people in need, who never
exhibited any signs of violence or greed, now languishes on death row,
innocent of the crime for which she was convicted. Her trial was
tainted with insanity, perjury, prosecutorial misconduct, jury
stacking and ineffective assistance of counsel.
Based on nothing more than the uncorroborated
testimony of the actual killer, who was psychotic and delusional, and
whom the prosecutor was willing to "stipulate" was a "liar"
(70RT8841), Maureen was condemned to death in the allegedly for-hire
murder of her friend and roommate, Stephen Eldridge. She has been
unjustly deprived of nearly 19 years of her life. She continues
steadfastly to proclaim her innocence.
The prosecution knew that the killer, Jimmy Luna,
had a host of mental problems, including dissociative psychosis, a
history of violent behavior, a lengthy criminal record, and a
reputation as a pathological liar. Nonetheless, the entire "case"
against Ms. McDermott was based on Mr. Luna's statements, with no
evidence of any kind to back them up. Luna's crime partners were the
brothers Marvin and Dondell Lee, both of whom had extensive records
for violent crimes.
THE WRONGFULLY CONVICTED
Maureen McDermott was born May 15, 1947, in
Wildwood, NJ, into to a working-class family, the third of four
children and the only girl. Her father, an alcoholic who was often
away from home, drinking or working, was at times verbally, but never
physically, abusive. Miki was very close to her mother, who was deeply
religious and a teetotaler. Miki often sent small sums of money home
to her mother after she (Miki) moved to California.
Miki attended Catholic schools in New Jersey, left
high school before graduating, and moved to California in 1968. She
worked full time while attending, first, adult night school for her
high school diploma, then school to become a Respiratory Therapist.
She worked at St. Joseph's Medical Center in Burbank, CA for seven
years in that capacity, during which time she also took college
courses and attended Los Angeles County Medical Center nursing school.
She continued to work at St. Joseph’s until she
received her license as a registered nurse in 1979, and was then
employed at L. A. County USC Medical Center, (Los Angeles County
Hospital) Ward 3000, the infected orthopedics ward, where she first
met Jimmy Luna, an orderly on her ward.
Ms. McDermott was known to her co-workers to be
very compassionate and generous, a "soft touch." All of her life she
was known for her love of animals, had many pets, loved to ride horses
and cared for strays. Her colleagues at the hospital, who remain
convinced of her innocence, said it was her naiveté, generosity and
her refusal to turn her back on a "pathetic character" like Jimmy Luna
that caused her to be "victimized" by him.
She listened to his tales of woe at work and on the
phone at home, felt sorry for him, but never socialized with him. He
was a compulsive phone caller who was reprimanded at work for making
literally hundreds of personal phone calls. Co-workers say Miki was
very conscientious and hard-working, kind, generous, caring and
compassionate. She cared about the "underdog," was an excellent nurse,
and was not someone who would harm another person.
WHERE IT ALL BEGAN
Miki and another nurse, Martha Espinoza, had made
plans to go to work in Saudi Arabia as nurses. [In those days, many
American nurses would make good money working in Saudi Arabia for a
year or two.]
McDermott had rented, then purchased, a small house
in Van Nuys, CA. In about 1982, she met Stephen Eldridge at a gay bar
in the neighborhood, and they became friends. Miki told Eldridge of
her Saudi Arabia plans, and asked him if he would like to rent the
house while she was away, to look after the property and her several
pets. Mr. Eldridge suggested that instead he buy into the property.
After he made this suggestion numerous times, she acceded, thinking he
would take better care of the place if he were part owner. Never at
any time did Eldridge harm or mistreat the pets.
Eldridge suggested that the two of them take out a
$100,000 insurance policy to cover the mortgage, in case something
happened to Ms. McDermott in Saudi Arabia.
Jimmy Luna was born in Los Angeles on May 7, 1953,
to two heroin addicts who abandoned him in infancy. He was taken in by
relatives who really didn't want to care for him, and he was horribly
abused - emotionally, physically and sexually. This childhood produced
a man who was "consumed by rage and propelled by violence." As a
child, he lied all the time and, when caught, would then tell another
lie to cover it up. He cried often, particularly when he was lying.
Jimmy's adult life was marked by criminal and
antisocial behavior. His behavior escalated from minor offenses to
major crimes. He had many arrests, suicide attempts, drug overdoses,
and a number of venereal diseases including secondary syphilis. He was
hired to work as an orderly at L. A. County Hospital through an
affirmative action program.
He was known on the job as a liar, an "oddball,"
was abusive and sadistic towards staff members and patients, and was
often violent. He was a compulsive phone caller who juggled different
identities and affected different voices, and often called himself
"Rita." He also stalked people, and told a psychotherapist that he was
feeling "uncontrollable rage" and that he had beat up a girlfriend.
During the early years of Luna's employment at
County Hospital he was trusted and liked by his peers, but during the
last two years of his employment his behaviors became frightening and
erratic. Dr. Stewart Shanfield, a co-worker, described Luna as a
"strange and scary person." Luna made "veiled threats of violence" to
his supervisors at Ward 3000.
One nurse, Linda Spehr, quit her job because of her
fear of Luna after he physically assaulted her and slashed her tires
on two separate occasions. Martha Espinoza heard Luna threaten to kill
Linda Spehr for writing him up because he was late for work He bragged
to Espinoza that he had been making crank phone calls to Spehr in
order to frighten her.
During his tenure at L. A. County Hospital, Luna
was arrested four times, for crimes including assault with a deadly
weapon. Susan Merritt (R.N., friend, co-worker) recalled that, at the
hospital, Luna often acted as a "lookout" for drug addicted patients,
and assisted them in having illicit drugs brought in from the outside.
He stole a car belonging to another nurse, "Ilene." He cursed at
patients, threw things at them and threatened them.
Luna always complained of being financially broke,
and borrowed money from many co-workers, whom he never repaid. The
only person who remained sympathetic towards him, and continued to
give (not lend) him money, was Maureen McDermott, who also continued
to "feel sorry" for him long after all the others had distanced
themselves from him.
Fellow employees complained about Jimmy's bizarre
and violent behavior, but it was impossible to fire him because of the
affirmative action program and his membership in a union. In 1983, he
was suspended from work for falsifying patients’ vital signs. What
finally got him fired in 1985 was his abusive behavior toward
patients, and the discovery that he had lied on his employment
application when he denied having a criminal record.
Jimmy Luna told Martha Espinoza that Miki would be
"abandoning" him if she went to Saudi Arabia. "Who will take care of
me if Miki leaves?" he asked. Luna asked Miki if he could take care of
her house and animals when she went to Saudi Arabia, but she declined;
she did not trust him because he was known to be a habitual liar,
extremely unstable and unreliable.
Luna "skated frantically on the thin edge of his
own mind, concocting fantastic stories, mimicking voices, pretending
to be other people and alternating between self-pitying depressions
and manic bouts of feverish phone calling. (70RT8737-8904.) Over the
years, as his work deteriorated, Luna's outrageous behavior escalated.
Philip Merritt M. D., another co-worker of Jimmy
and Miki, said "because Luna was such a twisted person -- both in his
illogical thinking and his threatening manner" that Luna "probably
found out about the mortgage insurance policy that Miki had on her
house, and therefore killed Miki's roommate, thinking that if Miki
came into some money," he, Luna, "could continue to borrow from her.
[Luna] was crazy enough to do something like that." Dr. Merritt always
thought Luna was psychotic.
A few weeks before he murdered Stephen, Jimmy was
evicted from his apartment for property damage and violence toward his
neighbors, and asked to borrow money from Miki at that time. She said
she couldn't help him. Just after he murdered Eldridge, Luna again
called Miki on the phone and asked to borrow money. She told him
"You've got to be kidding . . . after what I'm going through."
The first time Eldridge was assaulted, March 21,
1985, Miki had no reason to believe Luna was behind the attack. At
that time, two men, one black, one Hispanic, came to the McDermott/
Eldridge house and attacked and brutalized Eldridge. The men took $35
and fled when the dog in the yard "made a racket." LAPD Officer David
Yates, who was called to the scene, said the house was not ransacked,
and the incident was "not consistent" with a robbery. It was later
determined that this attack was made by Jimmy Luna. It was also
determined that Luna previously had made similar attacks on other
Just after midnight on April 29, 1985, three men,
two black, one Hispanic, entered the house and murdered Eldridge. He
was stabbed 44 times and his penis was cut off. Luna placed Mr.
Eldridge's penis in his own pocket and took it home, where he carried
it into the bathroom and flushed it down the toilet.
THE NIGHT OF THE CRIME
The night of the murder, April 29, 1985 Miki had
planned that, after taking a bath, she would go Palm Springs to visit
a friend. She got out of the tub, heard noises, opened the bathroom
door, and saw three men with homemade masks on their faces. She was
terrified and did not look into their eyes. The two taller men were
not wearing gloves, and she could see they were black. The third,
shorter man was wearing gloves, but she could see by a patch of wrist
skin that he was white. She never recognized that he was Jimmy Luna.
The first time she ever heard of the Lee brothers was in the
The men took McDermott to her bedroom, pushed her
to the floor, cut her on the breast with a knife, and kicked or hit
her head, causing her to lose consciousness. She came to, freed
herself, and, confused and nauseated, called 911. She was taken to a
hospital, where she was told that Eldridge was dead.
Maureen was then taken to the police station for
questioning, wearing nothing but a thin, skimpy hospital gown, with no
underwear and no outer garment for warmth. She was not allowed to put
on her own clothes or shoes, and at the police station she was tired,
cold, frightened, still nauseated, and in a state of shock. She was
interrogated from 2 AM until after 9 AM. She never went home after
that, but stayed with friends from then on. Police did not read her
rights, nor did they allow her to leave the police station that night,
and no lawyer was present or suggested. She had had no prior
experience with police procedures or Miranda rights. She was
physically and emotionally damaged from the night's events, and in her
weakened condition was vulnerable to police interrogation techniques.
Over the next several weeks, she was interrogated
many times by police. She always cooperated with them, and soon
realized they suspected her of being responsible for the murder.
Detective Melvin Arnold told Miki he wanted to believe she was
innocent, but he thought the phone records made her look guilty. She
told Arnold that Luna was a compulsive phone caller, that he was
always on the phone at work and outside of work, and that she called
Luna after the incident to tell him what had happened because he
claimed not to know.
She also told police that Luna was unstable, not
trustworthy, and "not the type of person [she would] socialize with."
She would "feed him, [she'd] feed a dog. . . . he's flaky. You can't
believe everything he says." She could not believe Luna would hurt
her. "I've helped him, fed him. I cannot believe this man would hurt
me." She said she did not think Luna knew she had a roommate.
After reviewing the police report of the March 21
incident, Det. Arnold thought the homicide was related to the previous
attack. (41RT4949, 4963-68.) After a visit to the crime scene, Arnold
concluded this was a "murder" and not a "robbery that turned into a
murder." Eldridge had been stabbed numerous times and his penis was
cut off, indicating the killing was deliberate. (41RT5019-24.)
[Eldridge had been stabbed 44 times ante-mortem, and the penis was
amputated post-mortem.] Eldridge still wore his watch and gold chain
necklace. The house did not appear to be ransacked: cameras, the
television and a stereo had not been taken. (41RT5007.)
Maureen McDermott was intimidated by Detectives
Riehl and Arnold, who played "good cop-bad cop." Riehl, she said, was
very mean, and told her he did not like homosexuals. In their request
for a search warrant, they wrote that she "appeared not to be in
physical or emotional distress" though she clearly had been beaten up.
Her temperature in the emergency room was 96.2 F, indicating she was
Dr. Marjorie Braude, M. D., a psychiatrist, whom
Maureen consulted subsequent to the crime, stated "there is no one
particular behavior that is appropriate in such situations." It is
established that police officers are not qualified to render expert
opinions as to what is appropriate emotional response in any given
situation. A police officer who testifies that a defendant was not as
upset as he/she should have been at most demonstrates the bias of
police officers, but this type of opinion is not grounded in any kind
of scientific analysis. (Exh. 26). [To this day, Dr. Braude remains a
staunch supporter of Miki and firm believer in Miki's complete
The essentially nonexistent police "investigation"
was a sham. They said there was an inordinate number of phone calls
between McDermott and Luna, more than 75% of them having been made by
Luna. She told them he was constantly on the phone both at work and on
his own time, but they never inquired at the workplace to verify this.
Phone company employees testified that while it could be determined
that a call was placed from one number to another number, it could not
be ascertained who made or received the call or if it was answered by
Detective Arnold admitted that he never took any
notes at the crime scene, and at trial five years later had to rely on
his memory for his testimony. He also stated that he speculated or
wondered about various things but never attempted to find the answers
to them. Arnold was allowed to testify that there were things about
the crime scene that were "unusual" or caused him concern, but were in
fact meaningless (Exh. B, RT 4993.) Arnold constantly supplied
speculation instead of scientific "expert" testimony.
Police also wrote in their reports that LAPD
Criminalist Doreen Music had conducted "independent experiments and
found that the [bath] water would have been too hot" for Miki to have
been taking a bath. Music testified at Luna's preliminary hearing that
she thought the bath water was "moderately warm" and "warmer than
lukewarm." However, she did not take the temperature of the bath
water. Music also testified that she conducted what she herself
referred to as "crude" experiments in her own bathtub. (Exh. F, RT
By his own testimony, Det. Arnold admitted that his
methods were "sloppy" and that he was "only guessing" about various
matters, that he took no notes, and that he did not know who did write
whatever notes were taken.
Ms. McDermott's appellate counsel obtained a
psychiatric evaluation of Luna in 1994 that should have been done by
the prosecution and trial counsel, but never was. Psychiatrist Dorothy
Otnow Lewis M. D. determined that Luna had a severe dissociative
psychotic disorder. Dr. Lewis stated that "one almost never sees this
kind of mental illness without a history of extraordinary physical and
sexual abuse." She declared that Luna had expressed the intentions of
castrating a man long before the murder and mutilation of Eldridge.
Dr. Lewis concluded that Luna murdered Eldridge when he, Luna, was
becoming increasingly psychotic and out of touch with reality.
Dr. Lewis opined that in Luna's delusional state,
he could have misinterpreted a casual remark of McDermott's as
evidence she wanted her roommate killed, or perhaps he simply acted in
response to his own delusions or fantasies. At trial Luna testified
that McDermott never actually asked him to kill Eldridge, but he "just
knew" that's what she wanted. There was no evidence that she wanted
her roommate dead except the words from Luna's mouth.
Dr. Braude said in her declaration "I have looked
high and low for clues to any deviant behavior on her part and I have
found nothing to indicate that Miki could have done this horrible
crime." (Exh. 27.)
Luna was arrested on May 30, 1985, on the basis of
an immunized statement by Marvin Lee. held for 72 hours, then
released. He denied involvement. He was arrested again on July 2,
1985. Luna did not implicate Ms. McDermott until July 12, 1989, more
than four years after his arrest, when he pled guilty to first degree
murder with special circumstances, said what amounted to "She made me
do it," and agreed to testify against her. (43RT 5194-5201.)
DDA Katherine Mader and Det. Arnold first debriefed
Luna when he had not slept in over 24 hours. Mader made it clear to
Luna that he had to implicate McDermott in order to get a deal. He was
given a deal despite the fact that his assertions of Miki's alleged
motive were absurd and crazy. Luna said her motives were that Eldridge
"yelled at" her dogs, and that she needed money to send to her mother.
Luna told Mader, during his initial debriefing,
that "I always looked at Miki as being my close friend, because when I
needed her she was there. When I needed a dime she was there." (Exh.
35, RT9.) "So basically I've been abandoned, you know, all my life. So
anytime I see an opportunity that somebody has - I have something to
lean on, you know, and it's a mother image or sister image, you know,
I feel lucky, then somebody cares for me." (Exh. 35, RT 49.)
In letting loose his uncontrollable rage on Stephen
Eldridge, Luna believed, in his delusional state of mind, that
eliminating Eldridge would prevent McDermott from "abandoning" him.
Out of the $100,000 insurance money, Luna said
Maureen was going to give him $50,000. Another time, Luna said she was
going to give him $75,000. Luna said Miki wanted it to look like a
"homosexual murder," so that police would not bother to investigate
it. (44RT5354.) When asked to explain the difference between a
homosexual murder and a heterosexual murder, Luna said he didn't know.
Luna testified that McDermott "had an insurance
policy and she wanted Steve dead." Luna "never asked her why because I
knew why. She had an insurance policy and wanted Steve dead."
(43RT5210-5217.) Luna also said she "resented" Eldridge hollering at
her pet animals, and also she "wanted him dead because he was fixing
up the house to try to sell it." (43RT5218-19.) Luna jumped from story
to story on the witness stand.
DEFENSE ATTORNEY JOE INGBER
When Luna was in L. A. County Jail, he had a lover,
Randy Howard, who was represented by attorney Joe Ingber. Luna tried
to hire Ingber, and Luna later testified that Ingber was trying to get
appointed to defend him [Luna.] When that didn't happen, Ingber was
subsequently hired by McDermott's friends to defend her. A friend,
Joan Porkola, collected the money and acted as liaison to Ingber. She
paid Ingber in cash but kept no records; however she remembered that
she had paid Ingber a total of $58,000, of which McDermott contributed
$12,000, proceeds from a disability insurance policy taken out while
she was working at County.
Ingber did not tell McDermott or her friends of his
prior relationship with Luna, and in fact, denied it. He did not,
however, deny visiting Luna in jail to "hold his hand." Mader knew of
this conflict of interest but didn't alert the court to it.
Ingber did not investigate the case prior to trial,
and paid no attention to the investigation that was done after the
trial was well underway. He failed to demand a psychiatric evaluation
of Luna. He failed to hire a Criminalist to evaluate the crime scene.
He developed no theory of defense. He did not speak to any witnesses
before the trial, though he did talk with witnesses in a group in the
courthouse cafeteria immediately before the trial began.
While he was pursuing court appointment to defend
McDermott, Ingber lied to the court about the amount he was paid by
her friends, in order to maximize the amount he would receive from the
court. He failed to call as witnesses Miki's friends who had paid him,
because to have done so would bring to the court's attention the truth
about payments already made to him.
The first time Miki met Ingber was in the courtroom
at her arraignment. He told her he was "too busy" to work on her case,
and he hired another attorney, Carl Burkow, to work on it. Between
January 10, 1986 and May 19, 1989, Ingber did absolutely nothing to
earn the $58,000 cash he had been paid. All he did was request a total
of 27 continuances.
He told Ms. McDermott that the longer the trial was
delayed, the better it would be because witnesses would die or forget.
Miki told Ingber she did not want people to die or forget what
happened. He then told her he was very busy and she would just have to
wait. Ingber ultimately got himself appointed by the court in a secret
ex parte proceeding.
None of the judges ever asked Maureen if she was
concerned about the delays or the fact that her attorneys were not
doing any work on her case. Ingber never showed her any police reports
or witness statements. He never discussed with her what the case was
all about. Investigator Bob Zink was hired in May, 1989, 40 months
after the arraignment. Zink said he had the impression that no
investigation of any kind had ever been done. He had no idea Miki had
been in custody since August, 1985. Zink recalled that one day he was
surprised to find out the trial had already started. At no time did
Ingber or Burkow ever discuss any theory of the case with Zink. The
investigator further declared he believed McDermott was the victim of
the most egregiously incompetent representation (Dec.Exh.29)
Maureen asked Ingber when he was going to prepare
her to testify. He told her he did not have time for that. Just before
she got on the witness stand, Miki asked Ingber what kinds of
questions the prosecutor would ask. He answered "How the hell should I
know what she's going to ask you? I'm not clairvoyant!"
Ingber did not do any penalty phase investigation
until after McDermott was convicted. He did not call any of her
friends or co-workers, many of whom requested that they be called as
witnesses. Mader told the jury "It was interesting, was it not, that
not one of her friends showed up to testify in her behalf . . . "
After the guilty verdict was read, Det. Riehl and
Mader were seen snickering at a note Riehl had written out on a legal
pad and passed to Ingber. It said "Thanks, Joe, we couldn't have done
it without you."
In an article about McDermott's horrendous
conditions of confinement when she was first sent to death row, Ingber
said "People may be appalled by her crime, and glad she's off the
streets, but that doesn't justify locking her up like a caged animal."
("Waiting in Isolation" Los Angeles Times, January 25, 1991.) It was
only after reading the quote that she realized Ingber believed she was
guilty, and he didn't want to defend her because of that belief.
PROSECUTOR DDA KATHERINE MADER
Accusations of misconduct and unprofessional
lawyering have dogged Mader throughout her career.
Marvin Lee was given complete immunity in exchange
for his testimony. When Mader learned more than a year later that
Marvin had lied about the fact that his brother Dondell also helped to
kill Eldridge, her response was not to rescind Marvin's immunity deal,
but rather to extend to Dondell complete and total immunity as well,
for having committed capital murder.
DDA Mader told Luna it would have been racist to
offer a deal to McDermott, and therefore this was his (Luna's)
opportunity to help her (Mader) go after a white woman. When Luna
asked Mader why she didn't make a deal with McDermott, she said "Hey,
Miki, you come on my side, we'll get the two black guys and the
Mexican, us white people will walk down the primrose path . . that's
not right, okay?" (RT47, exh.35.)
When requesting a search warrant, Mader told Judge
Alan B. Haber that the only time Luna "has done a serious act of
violence" was at McDermott's behest. (RT8761.) DDA Mader knew,
however, that this was not true. Nor did Mader ever tell the court
that the police knew from the start of their investigation that Luna
was a violent individual with mental problems.
Mader knew that under California law no one can be
convicted on the word of an accomplice unless there is corroborating
evidence that independently links the defendant to the crime.
Nevertheless, Mader conceded that the phone records of Luna's
voluminous calls to McDermott's number were her "best" evidence, and
that "by themselves don't mean a lot." Mader even told the jury that
it was necessary to give immunity and deals to cold blooded killers in
order to explain the significance of these phone records. (AOB
460-462.) She sought Miki's conviction and death sentence based solely
on the unsupported word of Jimmy Luna, whom she "stipulate[d] was "a
DDA Mader either lied or misled the court on
several points, including her reason for dismissing juror Gilbert Kee,
and "stacked" the jury to exclude all blacks. She promulgated the bad
faith argument that Ms. McDermott should receive the death penalty
because she would be dangerous and likely to kill again in prison. She
concealed the fact that she knew Ingber had a relationship with Jimmy
Luna. She lied when she told the court that Luna had never committed
an act of violence except at the behest of Ms. McDermott.
Mader relied on Luna's testimony, knowing he was a
pathological liar, without having him undergo a psychiatric
Mader used McDermott's bank records as "proof" she
killed for the insurance because she allegedly was broke and needed
money. Maureen had bounced some checks in 1984, she says because
someone had given her a check that bounced, and she deposited it and
then wrote out checks thinking they would be covered. During September
and October 1984 her account showed a negative balance of between $13
and $25, which she recalls was covered by an overdraft protection
account. From January to June 1985, deposits exceeded withdrawals.
Mader went on to become the first inspector general
of the Los Angeles Police Department. She was forced to resign in lieu
of being fired amidst accusations that she was incompetent,
unprofessional and untrustworthy. The police commission disliked her
"clumsy style, as well as the quality of her work." They said "her
investigative style was not adequate . . . she would start out with a
conclusion and then attempt to find facts to meet that conclusion . .
. . [resulting in] misinterpretation of facts and ignoring of facts,
and a reckless abuse of innocent people's reputations."
DDA Mader used the same closing argument - the
identical venomous, vicious hyperbole - almost verbatim - in the cases
of Ms. McDermott and McDermott's neighbor on death row, Catherine
Thompson. (L. A. County Superior Court No. SA004363, Exh. 79.)
Maureen McDermott's fate was sealed by the
confluence of a psychotic killer who the prosecutor offered to
"stipulate" was a "liar," by an ambitious prosecutor who was not shy
about committing misconduct in her zeal to win at all costs, and by a
defense attorney who willingly put his own interests ahead of his
client in pursuit of a paycheck. (Habeas 163-4.)
This summary was prepared by Maria Telesco, a
friend and supporter of Maureen McDermott.
STATEMENT BY MAUREEN McDERMOTT
April 8, 2004
I need help! My name is Maureen McDermott, but my
friends call me "Miki." My life has been stolen away from me by the
horrific violence and insane lies of Jimmy Luna, whom I once thought
was, at worst, a pest. Never did I imagine that he would steal the
life of my friend, Stephen Eldridge, then lie and steal my life, too.
But that's what he did.
My case was fabricated from police and
prosecutorial misconduct. My trial was a travesty. My incompetent
trial lawyer did no investigation, and presented no defense. And I'm
on death row for a crime I did not commit, a crime I knew nothing
about, a crime I never would have wanted to happen, had I ever known
or suspected it was going to happen.
I had excellent attorneys for my post-conviction
appeal, and now I have excellent attorneys for federal habeas.
What I need most now is public support. I need
favorable publicity. I need people to be informed of how I was
unjustly convicted, and how three brutal murderers avoided punishment
in return for their perjured testimony that made me out to be a
cold-blooded killer. I need people on my team to influence public
opinion, to convince people of my innocence, and to work for my
I need your help. I am completely innocent. Please
help me to prove it.
Maureen "Miki" McDermott
California Supreme Court
People v. McDermott (2002)
28 Cal. 4th 946 [123 Cal. Rptr. 2d 654, 51 P.3d 74]
THE PEOPLE, Plaintiff and Respondent,
MAUREEN MCDERMOTT, Defendant and Appellant.
(Superior Court of Los Angeles County, No. A810541,
Alan B. Haber, Judge.)
(Opinion by Kennard, J., expressing the unanimous
view of the court.)
Steffan Imhoff and Verna Wefald, under appointments
by the Supreme Court, for Defendant and Appellant
and one count of attempted murder (§§ 664, 187, subd. (a)). The jury
found true special circumstance allegations that the murder was
carried out for financial gain (§ 190.2, subd. (a)(1)) and by means of
lying in wait (§ 190.2, subd. (a)(15)). Defendant was sentenced to
death. This appeal is automatic. (Cal. Const., art. VI, § 11; Pen.
Code, § 1239.)
I. FACTS AND PROCEEDINGS
A. Guilt Phase
On April 28, 1985, Stephen Eldridge was brutally
stabbed to death in the home he shared with defendant, Maureen
McDermott. It was undisputed at trial that the actual killers were
Jimmy Luna (a former coworker and personal friend of defendant's) and
two brothers whom Luna had hired for the murder, Marvin and Dondell
Lee. The prosecution's theory at defendant's trial was that defendant
had hired Luna to kill Eldridge so she could obtain sole ownership of
a house she co-owned with Eldridge and collect $100,000 under an
insurance policy she had on Eldridge's life. Luna (who had pled guilty
to first degree murder) and both Marvin and Dondell Lee (who had
received complete immunity and were never charged with the murder)
testified against defendant. Defendant denied complicity in Eldridge's
1. Prosecution evidence
At the time of Stephen Eldridge's murder in 1985,
defendant was 37 years old. During the day, she worked as a registered
nurse at a hospital (Los Angeles County-USC Medical Center), and in
the evening she provided nursing care to Lee La Porte at his home.
Defendant shared a house in Van Nuys with Eldridge, a 27-year-old,
self-employed landscaper. They owned the property as joint tenants. In
December 1984, defendant and Eldridge had each bought $100,000 in life
insurance, designating each other as beneficiary. [28 Cal. 4th 963]
In early 1985, defendant's relationship with
Eldridge deteriorated. Eldridge complained about the unkempt condition
of the house and about defendant's pets. Defendant was upset about
Eldridge's treatment of her pets and his plans to sell his interest in
the house. Near the end of February 1985, defendant discussed with
Jimmy Luna, a hospital coworker and personal friend, a plan to kill
Eldridge. Defendant told Luna that she had an insurance policy on
Eldridge's life and that she wanted him dead. She offered Luna $50,000
to kill Eldridge, and he agreed. Defendant told Luna that she wanted
Eldridge stabbed because a gun would make too much noise, and that she
wanted the killing to look like a "homosexual murder" because she
thought the police would not investigate the murder of a homosexual as
vigorously as other killings. To make the murder look like a
homosexual killing, defendant on different occasions suggested that
Luna carve out the word "gay" on the body with a knife or cut off the
On three occasions in late February and early March
of 1985, defendant arranged for Luna to be at the house she shared
with Eldridge so Luna could kill Eldridge. Each time, however, Luna
became frightened and could not carry out the murder. Defendant then
suggested to Luna that he find someone to help him kill Eldridge, but
she told him she did not want anyone but Luna to know of her
In March 1985, Luna asked his friend Marvin Lee to
help him commit the murder. He told Marvin that an "organization"
wanted someone killed, and he offered Marvin $3,000 to "watch [his]
back." Marvin agreed. In later conversations, Luna told Marvin that
the intended victim was a homosexual and that Luna would castrate the
victim to make it look like a "homosexual murder."
In the evening of March 21, 1985, Luna and Marvin
knocked on the door of the house where defendant and Eldridge lived.
As Eldridge opened the door, Luna and Marvin forced their way inside.
Threatening Eldridge with a knife, Luna ordered him to crawl on his
hands and knees into the bedroom and to lie facedown on the bed. Luna
then cut Eldridge on the buttocks with the knife and yelled homosexual
epithets at him. From another room, Marvin retrieved a two-foot-long
bedpost, with which Luna struck Eldridge on the head. Eldridge jumped
up and ran out of the house. Luna and Marvin left.
Los Angeles Police Officer David Yates, who was
dispatched to investigate the attack on Eldridge, found him at the
house dressed only in his underwear and covered in blood. An ambulance
took Eldridge to a hospital for treatment.
The next day, defendant spoke on the telephone with
Luna about the failed murder attempt, telling him, "we are going to
have to do it again, and this [28 Cal. 4th 964] time you can't
fail." After March 21 but before April 28, 1985, there were several
telephone conversations between defendant and Luna. During one of
these conversations, Marvin was with Luna, and he listened in as
defendant discussed the murder plan and what they would do with the
anticipated insurance proceeds. Defendant objected to Marvin's
participation in the planned murder; she said that if Marvin told
anyone about it, that Luna would "have to kill that nigger too." Luna
assured her that Marvin was trustworthy and would not say anything.
Marvin's brother Dondell overheard part of this conversation when
Marvin passed him the telephone.
On the day of the murder, April 28, 1985, Luna met
Marvin and Dondell Lee, and Luna offered Dondell money to help commit
the murder. Luna then made several telephone calls to defendant,
during which defendant told Luna that she would leave a front bedroom
window open for entry into the house and that Luna should tie her up
and cut or hit her so she would look like a robbery victim.
Around 8:15 p.m., Luna, Marvin, and Dondell entered
the house through the front bedroom window. Luna went down the hall to
defendant's bedroom, where defendant told him that Eldridge had not
yet returned from a dinner engagement. Defendant told Luna to cut her
on the breast and inner thigh, which he did, to make it appear that
Eldridge was killed when he came home while defendant was being
Around 10:40 p.m., Eldridge came home. When he
entered the house, Dondell Lee met him with a rifle owned by
defendant, but provided to him by Luna. Marvin Lee then grabbed
Eldridge by the neck in a chokehold and took him down the hall, where
Luna repeatedly stabbed him until he slumped to the floor. Luna then
returned to defendant's bedroom, where he found defendant lying on the
floor with a facial injury. Defendant asked Luna how the injury
looked, saying she had banged her head on a table in the bedroom. As
Luna and the two Lee brothers were about to leave the house, Marvin
Lee overheard defendant yell from the back bedroom not to forget to
cut off Eldridge's penis. Luna did so.
Los Angeles County Deputy Medical Examiner Susan
Selser performed the autopsy. She testified that Eldridge had been
stabbed 44 times and that his penis was cut off postmortem. Of the 44
stab wounds, 28 were independently fatal.
On May 23, 1985, Luna was taken into custody for
questioning, but he was released within 72 hours. On July 2, 1985, he
was arrested for the first degree murder of Eldridge. In August 1985,
defendant was also arrested. She [28 Cal. 4th 965] was charged
with attempted murder, and murder and special circumstance allegations
of murder for financial gain and lying in wait. Marvin Lee, who was in
custody for an unrelated offense, was granted immunity for the murder
of Eldridge in exchange for his confession and truthful testimony. In
August 1986, Dondell Lee was granted immunity while in the custody of
the California Youth Authority. In July 1989, Luna entered into a plea
agreement under which he pled guilty to first degree murder and agreed
to testify truthfully in the prosecution of defendant.
2. Defense evidence
The main theory of the defense at trial was that
the prosecution had not proven its case against defendant. Defense
counsel cross-examined prosecution witness Luna for eight days,
thoroughly challenging his veracity. The defense also presented the
testimony of five of Luna's former coworkers from Los Angeles
County-USC Medical Center that Luna was a habitual liar.
Defense witness Dr. John Ryan, a pathologist,
testified that--based on his review of the autopsy report--Eldridge's
stab wounds had been inflicted by two different weapons.
B. Penalty Phase
1. Prosecution evidence
At the penalty phase, the prosecution presented
evidence that defendant had Luna beat up someone so she could obtain
that person's job.
In April 1983, Dewayne Bell, John Phillips, and
Philip La Chance worked alternating shifts at the La Porte residence
as caretakers for the elderly Lee La Porte. At that time, Bell had
worked for the La Portes for five years. While La Chance was in jail
for driving under the influence, defendant temporarily assumed his
caretaker duties. Defendant told Luna that she wanted permanent
employment with the La Portes, and she offered Luna money to injure
Bell so she could take his job. Luna later attacked Bell at his home,
slashing Bell's face, throat, and chest. When Bell returned to his
caretaker duties at the La Portes' home, defendant had Luna repeatedly
telephone the La Portes and make threats against Bell when Betty La
Porte answered the phone. As a result of these calls, Bell lost his
job with the La Portes, and defendant took over Bell's duties.
2. Defense evidence
At the penalty phase, the defense presented
testimony of defendant's coworkers, her brother, prison guards, and a
criminal justice expert. [28 Cal. 4th 966]
Dr. Philip Merritt, who had worked with defendant
at the county hospital, described defendant as a compassionate and
According to Carol Kelly, a nurse and defendant's
colleague at the hospital, defendant was a hard worker who was
dependable and well liked by the patients and student nurses.
Wayne McDermott, defendant's brother, testified
that defendant was very loving towards their mother, to whom she
regularly sent money. He expressed the hope that defendant not be
given the death penalty.
Margaret Stokes, a deputy sheriff who worked at the
Sybil Brand Institute for Women in Los Angeles, described defendant as
a cooperative, sensitive, and caring person who had saved an inmate
from choking. In her view, defendant had adjusted well to
incarceration. Another deputy, Victoria Samaniego, mentioned that
because of defendant's reliability she had been made a jail trusty,
and that she had never caused problems.
Jerry Enomoto, a college professor, criminal
justice consultant, and former director of the Department of
Corrections, stated his opinion that defendant would adjust well in
prison if sentenced to life without the possibility of parole.
II. JURY SELECTION ISSUES
A. Prosecutor's Exercise of
[1a] Defendant contends she was denied both her
state constitutional right to trial by a jury drawn from a
representative cross-section of the community (Cal. Const., art. I, §
16) and her federal constitutional right to equal protection (U.S.
Const., 14th Amend.) because the prosecution impermissibly used its
peremptory challenges to remove prospective jurors on the basis of
race (see Batson v. Kentucky (1986) 476 U.S. 79, 84-89; People v.
Wheeler (1978) 22 Cal. 3d 258, 276-277). We disagree.
During the initial jury selection process, the
defense excused 20, and the prosecution 18, prospective jurors on
peremptory challenges. The prosecution exercised six of its 18
peremptory challenges against Black prospective jurors, while the
defense removed one Black prospective juror by peremptory challenge.
The jury that was sworn included no Blacks. [28 Cal. 4th 967]
Immediately after the jury was sworn, the trial
court recalled that one of the jurors had told the bailiff he had read
a newspaper article about the case. After inquiring into the matter,
the trial court discharged this juror. To select a replacement for the
discharged juror, the court granted the defense one peremptory
challenge and the prosecution two peremptory challenges.
The first prospective juror called, James T., was
Black. After both sides passed for cause, the prosecutor exercised a
peremptory challenge against him. The next prospective juror called,
Gerald W., was also Black. When the defense did not challenge him for
cause, the prosecution immediately exercised its remaining peremptory
challenge against Gerald W. At that point, the defense accused the
prosecution of exercising its peremptory challenges for the
constitutionally impermissible purpose of eliminating prospective
jurors because of their race.
The trial court asked the prosecutor to give her
reason for excluding Prospective Juror Gerald W., but the court stated
it was not making a finding that the defense had established a prima
facie case of racial motivation. The prosecutor replied that Gerald W.
had initially "said that he favored the death penalty only in
situations if a person had a criminal record," although the prosecutor
acknowledged that Gerald W. had "changed his mind later." The
prosecutor also asserted that on his questionnaire Gerald W. had said
he was in favor "basically of rehabilitation and counseling before
punishment such as the death penalty."
Defense counsel observed that the prosecutor had
exercised eight of 20 peremptory challenges against Black prospective
jurors and that the jury as constituted did not include any Blacks.
Asserting that the prosecutor had used peremptory challenges to excuse
Blacks who "were fundamentally pro prosecution on the death penalty
issue," defense counsel argued that exclusion based on race was the
only explanation for the prosecutor's use of peremptory challenges
The trial court commented that although the jury as
sworn included no Blacks, the prosecutor had earlier twice accepted a
jury that included a Black juror whom the defense later peremptorily
challenged. The court then asked to see defense counsel's copies of
the questionnaires of the Black prospective jurors whom the prosecutor
had excused by peremptory challenge, noting that counsel's copies were
more organized than the court's. As defense counsel handed the
questionnaires to the court, the prosecutor made comments as to some
of the excused Black prospective jurors. Noting that Keia M. was only
19 years old, the prosecutor said she "didn't feel she [Keia] was
mature enough" to sit as a juror in this death penalty case [28
Cal. 4th 968] because "her views were not thought out at all." As
to Theola J., the prosecutor described her as "very, very stupid,"
adding that "she couldn't see herself ever giving the death penalty."
Of Gilbert K. the prosecutor noted that he "stated that he would
consider the death penalty if the crime was particularly brutal" but
"he doesn't want the death penalty unless the defendant would kill
again in prison," and the prosecutor "didn't feel that was a realistic
prospect for the defendant in this case."
The trial court said it might "be prepared to find
a prima facie case" and would have to "go through each explanation to
see if there is any reasonable basis for the exercise of the
challenge." After a recess, the court stated: "I think I have all the
information I need." The court found that the defense had established
a prima facie case, and said it was "looking at all the questionnaires
of Black jurors who have been excused and listening to [the
prosecutor's] explanations and trying to see if there is a reasonable
relationship between the reason for the excusal and the viewpoints of
Asked by the trial court if she wanted to be heard
any further, the prosecutor replied: "I would like to say one more
thing that in addition to the explanations which I have provided to
the court with respect to each one of these jurors which honestly
wouldn't have made any difference to me what their race was, given
some of their views, I also took into account the fact that I believe
that all these jurors weren't necessarily opposed to the death
penalty, but that I had a pool of jurors out in the audience who I
thought were more in favor of the death penalty than these particular
jurors. And that it was no reason to keep them. [¶] I didn't feel they
would be good prosecution jurors on the issue of the death penalty.
[¶] And I would have preferred, frankly, to have a number of Black
jurors on this case because of the fact that the defendant makes
racist remarks which will be coming into evidence. And that I have two
Black prosecution witnesses Marvin Lee and Dondell Lee. And that I
would have liked to have some Black jurors."
The trial court remarked that at issue were the
"death penalty views" of the prospective jurors, and it found a
"reasonable relationship" between those views expressed either in the
juror questionnaires "or orally by the prospective juror" and the
prosecutor's challenge to each of those jurors. The court noted that
in making this finding it had also taken into account that the
prosecutor had twice earlier accepted the jury when it included one
Black juror. The court denied the defense motion.
The jury selection process continued, and a twelfth
juror, Harold O., was selected and sworn. Thereafter, six alternate
jurors were selected and sworn. One of the alternates was Margaret C.,
a Black woman, who eventually served on the jury, replacing a juror
excused during the trial. [28 Cal. 4th 969]
[2a] "The exercise of peremptory challenges to
eliminate prospective jurors because of their race violates the
federal Constitution (Batson v. Kentucky (1986) 476 U.S. 79, 89) and
the California Constitution (People v. Wheeler (1978) 22 Cal. 3d 258,
276-277)." (People v. Williams (1997) 16 Cal. 4th 636, 663.) A party
claiming an opponent improperly discriminated in the exercise of
peremptory challenges must make a timely objection and demonstrate a
strong likelihood that prospective jurors were excluded because of
their race or other group association. (Id. at pp. 663-664; People v.
Arias (1996) 13 Cal. 4th 92, 134-135.)
This court has stated that a motion alleging
discriminatory use of peremptory challenges is untimely if "first
asserted after the jury has been sworn." (People v. Thompson (1990) 50
Cal. 3d 134, 179.) We made that statement, however, in the context of
a motion brought after all jury impanelment procedures had been
concluded. (Id. at pp. 178-179; see also People v. Perez (1996) 48
Cal. App. 4th 1310, 1314.) As other courts have recognized,
discriminatory motive may become sufficiently apparent to establish a
prima facie case only during the selection of alternate jurors, and a
motion promptly made before the alternates are sworn, and before any
remaining unselected prospective jurors are dismissed, is timely not
only as to the prospective jurors challenged during the selection of
the alternate jurors but also as to those dismissed during selection
of the 12 jurors already sworn. (People v. Rodriguez (1996) 50 Cal.
App. 4th 1013, 1023; People v. Gore (1993) 18 Cal. App. 4th 692,
701-706; see also Morning v. Zapata Protein (USA), Inc. (4th Cir.
1997) 128 F.3d 213, 215 [stating that a Batson challenge must "be
raised, at the latest, before the venire is excused"]; Dias v. Sky
Chefs, Inc. (9th Cir. 1991) 948 F.2d 532, 534 [stating that Batson
challenge must "occur as soon as possible, preferably before the jury
is sworn."].) Thus, it is more accurate to say that the motion is
timely if made before jury impanelment is completed because "the
impanelment of the jury is not deemed complete until the alternates
are selected and sworn." (In re Mendes (1979) 23 Cal. 3d 847, 853.)
Here, the defense motion was timely because it was made before the
alternate jurors were selected and sworn.
The party, here defendant, who claims the opposing
party has engaged in discriminatory use of peremptory challenges bears
the initial burden to establish a prima facie case--that is, to raise
a reasonable inference that the opposing party has challenged the
jurors because of their race or other group [28 Cal. 4th 970]
association. (People v. Box (2000) 23 Cal. 4th 1153, 1188, fn. 7.)
Here, the trial court found that the defense had established a prima
facie case, and we assume that finding is supported by substantial
evidence. (People v. Silva (2001) 25 Cal. 4th 345, 384.)
Once the trial court finds that the moving party
has made a prima facie case, the burden shifts to the opposing party
to provide an explanation for the peremptory challenges that is race
or group neutral and related to the particular case being tried.
(People v. Silva, supra, 25 Cal. 4th at p. 384; People v. Ervin (2000)
22 Cal. 4th 48, 74-75.)
Here, the prosecutor said she had peremptorily
challenged the eight Black prospective jurors because their views on
the death penalty were unfavorable to the prosecution. Although the
prosecutor also stated that one juror, Keia M., was immature, and that
another, Theola J., was "very stupid," the trial court understood that
the overriding reason for challenging the eight prospective jurors was
the attitude of each toward the death penalty. The Attorney General
agrees that the prosecutor challenged each of the eight Black
prospective jurors for essentially the same reason, namely, that "the
prospective juror's views and attitudes regarding the death penalty
were adverse to the prosecution . . . ."
 A prospective juror's views about the death
penalty are a permissible race- and group-neutral basis for exercising
a peremptory challenge in a capital case. (People v. Mayfield (1997)
14 Cal. 4th 668, 724.) [2b] When the trial court has found a prima
facie case, and the party exercising the peremptory challenges has
stated a race-neutral reason for each challenge, "the trial court must
then decide . . . whether the opponent of the strike has proved
purposeful racial discrimination." (Purkett v. Elem (1995) 514 U.S.
765, 767; see also People v. Silva, supra, 25 Cal. 4th at p. 384.) The
trial court's ruling on this issue is reviewed for substantial
evidence. (People v. Alvarez (1996) 14 Cal. 4th 155, 196.) But we
apply this deferential standard of review only when "the trial court
has made a sincere and reasoned attempt to evaluate each stated reason
as applied to each challenged juror." (People v. Silva, supra, 25 Cal.
4th at p. 386; accord, People v. Fuentes (1991) 54 Cal. 3d 707, 720;
People v. Hall (1983) 35 Cal. 3d 161, 167-168.)
[1b] We consider each of the eight challenged
jurors, taking them in the order in which the prosecutor challenged
them. [28 Cal. 4th 971]
a. Patricia M.
On the jury questionnaire, in response to a
question about her general feelings on the death penalty, Patricia M.
wrote: "If evidence is presented of one taking a life without
justifiable cause--for example, molesting children or child abuse--I
really have no problem with a guilty verdict--or where proof is shown
where someone took anyone [sic] life just for thrills." She wrote that
she had voted to reinstate the death penalty when it was on the ballot
in 1978, and she stated that "the State should have the right to
execute, depending on the circumstance, an individual who--unlawfully
kills another human being, whether intentionally or not."
On voir dire, defense counsel asked what Patricia
M.'s views would be on the appropriate penalty if she were to find
defendant guilty of first degree murder with the special circumstance
of lying in wait or financial gain. She answered: "I would probably be
more apt to say life without the possibility of parole." Asked to
explain, she said: "Because to me it is death anyway. You're going to
be confined and it said without any parole. You're going to die there
anyway. It is a slow death."
Under questioning by the prosecutor, Patricia M.
said that death was a more severe punishment than life imprisonment
without parole. Asked whether she would be more inclined to vote for
life imprisonment without parole if the victim was not a child, she
replied: "Depending on the situation with her as to why--if in fact
she killed the person. It would be the involvement. I'd have to hear
the circumstances surrounding it. But I don't feel that I would be
swayed one way or the other as to more for the death or more for
Asked whether a premeditated murder for financial
gain was "the type of murder [she] would consider the death penalty
for," she replied, "Possibly." Asked whether she felt the death
penalty "really serves any purpose," she replied, "Not really."
Having reviewed the record--especially Patricia
M.'s view that the death penalty did not serve any purpose and her
stated inclination to impose life imprisonment rather than death for a
premeditated murder carried out for financial gain--we conclude that
substantial evidence supports the trial court's findings that the
prosecutor could reasonably view Brenda B. as unfavorable on the
penalty issue and that the prosecutor's peremptory challenge against
her was based on her death penalty views and not on her race.
b. Gilbert K.
On the jury questionnaire, in response to a
question about his general feelings on the death penalty, Gilbert K.
wrote: "Necessary in some cases to [28 Cal. 4th 972] protect
the population, and society." Gilbert K. thought the state had the
right to impose capital punishment for both intentional and
On voir dire, in response to a question whether he
had strong feelings about the death penalty either way, Gilbert K.
replied: "No, I wouldn't, especially I would say that I feel every
case has its own merits, and depending on what the case is about and
what is happening, I would decide from that point." The prosecutor
asked Gilbert K. to rate his death penalty views on a scale of one to
10, "10 being somebody who would always impose it in a case of
premeditated murder, an eye for an eye; you kill somebody, you get the
death penalty; one let's say being somebody who would never do so."
Gilbert K. answered that he "would probably be somewhere around a four
or five, depending on the case itself and a person is found guilty and
circumstances involved in it." The prosecutor asked whether this meant
Gilbert K. was "somebody who kind of leans away from the death
penalty." Gilbert K. replied, "I find myself straddling the line
basically at five until I hear the difference to persuade me either
way or the other."
The prosecutor asked whether Gilbert K. could
"think about any type of case just in the abstract that . . . in your
mind would call for the death penalty." He replied: "Possibly a case
where a person who could be found guilty or would be found guilty I
would say was a person that could possibly want to commit murder
again. [¶] That would make me think more about the death penalty. [¶]
A person that could possibly go back out and kill somebody else again
or couldn't be controlled to keep somebody from hurting again." The
prosecutor reminded Gilbert K. that the alternative penalty was life
imprisonment without parole, meaning that "the person would never come
out of prison alive." Gilbert K. replied: "But that person would be in
prison with other people, and people are, even though they may be in
prison, can be hurt in prison."
The prosecutor then asked Gilbert K. if he could
see himself ever voting for the death penalty if he "did not feel that
there was a chance that the person would kill again." Gilbert K.
replied: "If I did not feel the person would kill again, that's very
doubtful. It is very doubtful." Asked to explain further, he added:
"Because of the fact that the person is to me is under total control
or being controlled for the rest of their life. [¶] I don't see the
necessity to kill somebody for that. . . . What I am just basically
saying is depending on the circumstances and the circumstances of the
case itself, if a person was found guilty of the crime, and I felt
that they could not do anybody any other harm or that they were the
type of person warranted any [28 Cal. 4th 973] other harm, life
in prison I think would fit. [¶] If a person was a person who I felt
was dangerous to society or to themselves, or a type of person who
without any thought or malice could hurt somebody at any time, I say
that is the person who maybe would be a good candidate for the death
Under further questioning by the prosecutor,
Gilbert K. modified his views. He said he could see himself voting to
impose the death penalty on a defendant who would not likely kill
again if the defendant was guilty of a premeditated murder by lying in
wait or for financial gain and the crime was particularly brutal or
cold-blooded or had been planned over a long period of time.
Having reviewed the record, we conclude that
substantial evidence supports the trial court's finding that the
prosecutor could reasonably view Gilbert K. as unfavorable on the
penalty issue. Because defendant apparently had no history of violence
and did not personally commit the capital murder, the prosecutor had
little basis to argue that defendant would kill again if sentenced to
prison for life without parole. Although Gilbert K. eventually said he
could see himself voting to impose the death penalty on a defendant
who was not likely to commit future violent acts, his earlier
responses, questioning the need to execute someone who posed little or
no threat of violence in prison, could be a matter of legitimate
concern to the prosecutor in this case. We see no basis to disturb the
trial court's finding that the prosecutor's peremptory challenge
against Gilbert K. was based on his death penalty views and not on his
c. Theola J.
On the jury questionnaire, in response to a
question about her general feelings on the death penalty, Theola J.
wrote: "Mixed." Asked during voir dire to explain what she had meant,
she said: "Well, I feel that I don't think--just like if I have a
chance to decide on that, I don't think I would." Asked whether she
meant she would have difficulty voting for the death penalty, she
said: "No, I wouldn't have--after I see, you know, what everything
that I listened to, you know." She said she would not automatically
vote either for or against the death penalty, but instead would listen
to any evidence presented on the issue of penalty. She said: "I would
have to hear. I would have to make up my mind after I hear what's
presented before me. I just couldn't say right now, you know. I
couldn't say one way or the other because like I said, mixed. I don't
know really, you know. "
Asked by defense counsel whether she would be
"somewhere in the middle" on a scale of one to 10, Theola J. answered
in the affirmative. Asked [28 Cal. 4th 974] by the prosecutor
whether she thought the State of California should have the right to
execute somebody for a particular kind of murder, Theola J. said:
"Well, I think they should have that right. I say under certain
circumstances, I think." Asked to explain what circumstances would
warrant the death penalty, she said: "It would really have to be
horrible. . . . Some of the things that I might, you know, that a
person what I believe just didn't have a heart, you know, that would
do something to somebody. That's the way I feel."
The prosecutor asked Theola J. whether she felt
"that the state should have the right to execute somebody if they are
found guilty of a first degree premeditated deliberate murder." Theola
J. replied: "No, I don't think so." Asked to explain, she said: "Well,
I would think that it could be another punishment, you know, maybe
life or something." On further probing of her views by the prosecutor,
Theola J. said: "Well, like I said, maybe the state should have the
right under certain circumstances, but some of them that I don't think
that I would think it was that--that they should have that right."
Asked to explain what circumstances would warrant the death penalty,
she said: "Like I said before, it would have to be worse than death. .
. . It would have to be, like I said, a more--even though that's
violent, it would have to be a little more violent or something, I
At this point the trial court intervened and
explained to Theola J. that under this state's laws not every first
degree murder qualifies for the death penalty, that a first degree
murder with the special circumstances of financial gain or lying in
wait did qualify for the death penalty, and that the jury would
determine penalty only if it found defendant guilty beyond a
reasonable doubt of first degree murder with one or both of these
special circumstances. Theola J. indicated that she understood the
court's explanation, that it seemed different than what the prosecutor
had asked her, and that she did not have any problem with the law as
the court had explained it. The court asked Theola J. whether she was
"one of those persons who would never vote for the death penalty under
those circumstance, under those conditions." She answered: "No, I
don't think I would be one that would never vote for it. I think I
would vote for it. But, like I said, I would have to hear. They would
have to convince me. See, I would have to be convinced, you know,
because I could say, well, I would decide, you know, I wouldn't want
this to happen or want this to happen, but my mind could change after
hearing what I have to hear. That's the only way I could be
The prosecutor then asked whether Theola J. felt
"that the state should have the right to execute somebody who has
committed a premeditated, deliberate murder by lying in wait." Theola
J. replied: "Yes, I think so." [28 Cal. 4th 975] Asked whether
such a crime would be "horrible enough" to make the death penalty
appropriate, Theola J. said: "Yeah, I think so after I hear. Like I
said, it is really hard for me because I could say one thing and then
after I hear it I could say maybe I shouldn't have said that. After I
hear. After you hear things and it's been explained to you from A to
Z, it is a lot better than just trying to say it now. You know, I
think the more I would hear about what happened then my decision could
be, you know, I could decide for myself, you know, which way I would
Having reviewed the record, we conclude that
substantial evidence supports the trial court's finding that the
prosecutor could reasonably view Theola J. as unfavorable on the
penalty issue. Although her responses were confused and inconsistent,
and her final statements indicated neutrality on the death penalty,
two of her answers could cause the prosecutor legitimate concern. Most
obviously, she said she did not think the state should have the right
to impose the death penalty for a first degree premeditated deliberate
murder, and she thought there could be another punishment, such as
life imprisonment. Although she modified or explained this view, she
then said that to impose the death penalty "they"--by inference the
prosecution--would have to convince her, suggesting that she might
enter the penalty phase with something like a presumption in favor of
the alternate penalty of life without parole. In view of these
responses, we see no basis to disturb the trial court's finding that
the prosecutor's peremptory challenge against Theola J. was based on
her death penalty views and not on her race.
d. Brenda B.
On the jury questionnaire, in response to a
question about her general feelings on the death penalty, Brenda B.
wrote: "In some cases I believe in the death penalty. However, only
when there can be no rehabilitation at all." She repeated this view on
voir dire, stating: "I believe that a person--if a person can be
rehabilitated and if they're truly sorry for what they did . . . . I
believe in giving them a chance to prove it." At one point she said
she would automatically vote for life without parole, rather than
death, if she was convinced the defendant could be rehabilitated.
Although she later retreated from this position somewhat, she
continued to view the potential for rehabilitation as the most
important consideration in determining penalty in a capital case.
Because defendant had no prior criminal record, the prosecutor might
reasonably conclude that Brenda B.'s focus on rehabilitation made her
an unfavorable jury for the prosecution on the penalty issue.
Substantial evidence supports the trial court's finding that Brenda
B.'s views on the death penalty, rather than her race, were the basis
for the prosecution's peremptory challenge. [28 Cal. 4th 976]
e. Kathryn S.
On the jury questionnaire, in response to a
question about her general feelings on the death penalty, Kathryn S.
wrote: "I really don't know for sure. I have never really given it
thought." On voir dire, the trial court asked if she had since given
thought to the death penalty. Kathryn S. said she had, adding: "I
don't have any feelings one way or the other." Asked whether she
believed there should be a law allowing for the death penalty, she
said: "I don't know. I really can't say if there should be a law or
On voir dire by defense counsel, Kathryn S. said
she would want to hear from defendant in making the penalty
determination, but that she would not necessarily vote for death if
defendant did not testify. She said that on a scale of zero to 10,
with zero being never voting to impose the death penalty and 10 being
always voting to impose the death penalty, she would consider herself
The prosecutor asked Kathryn S. whether she thought
the death penalty was "worse" than life without possibility of parole.
At first, Kathryn S. replied: "I really can't say. I don't know. They
are both bad." The prosecutor asked which of these punishments Kathryn
S. would impose if she "wanted to punish somebody the worst that you
possibly could." Kathryn S. said: "Maybe I would say life in prison. .
. . So they could have a chance to think about what they did." Asked
again which punishment she would choose to punish someone "in the most
harsh manner that you could," Kathryn S. said: "Life without
possibility of parole." Asked why she would ever "give the death
penalty," Kathryn S. replied: "I don't know that I would. I mean I
can't say. Why would I--I don't know why I would ever give it or if I
After reviewing the record, we conclude that
substantial evidence supports the trial court's finding that the
prosecutor could reasonably view Kathryn S. as unfavorable on the
penalty issue. Although her responses generally indicated neutrality
on the death penalty, she expressed considerable doubt that the death
penalty was a harsher punishment than life in prison without
possibility of parole and she could not explain why she would ever
choose the death penalty over life without parole. In view of these
responses, we see no basis to disturb the trial court's finding that
the prosecutor's peremptory challenge against Kathryn S. was based on
her death penalty views and not on her race.
f. Keia M.
On the jury questionnaire, in response to a
question about her general feelings on the death penalty, Keia M.
wrote: "It depends on the case." On [28 Cal. 4th 977] voir dire
by the trial court, Keia M. said she did not have strong feelings
either way about the death penalty and would not automatically vote
either for or against it.
On voir dire by defense counsel, Keia M. agreed
that she was "right down the middle" on the death penalty and that on
a scale of zero to 10 her views on the death penalty would be a five.
The prosecutor on voir dire asked Keia M. if she
had any thoughts on whether life in prison without possibility or
death was "worse as a punishment." Keia M. replied: "I really don't
think one is worse than the other. I can't say that life imprisonment,
in prison is worse than the death penalty, because I have never been
in prison. I mean, I don't know the situation. But I would think that
there is no difference. There is really not a difference." Asked which
penalty she would choose if she "wanted to punish the person the most
severely that [she] could," Keia M. replied: "The death penalty." She
explained: "You just go faster. You don't--well, not a lot of people
think the way I do. I think the more time you have here on this earth,
the better it is, you know, no matter where you are."
Substantial evidence supports the trial court's
finding that the prosecutor could reasonably view Keia M. as
unfavorable on the penalty issue. Although her responses generally
indicated neutrality on the death penalty, and although she eventually
expressed the view that the death penalty was a harsher punishment
than life in prison without possibility of parole, she nonetheless had
expressed the view that there was really no difference between the two
penalties in terms of severity. Given this expression of opinion on an
issue critical to penalty determination, we see no basis to disturb
the trial court's finding that the prosecutor's peremptory challenge
against Keia M. was based on her death penalty views and not on her
g. James T.
On the jury questionnaire, in response to a
question about his general feelings on the death penalty, James T.
wrote: "I have mixed feeling because my religious beliefs condem [sic]
killing, yet I feel punishment should fit the crime." On voir dire by
the trial court, James T. said there was no conflict between his
religious beliefs and state law allowing a jury to impose the death
penalty and that he would not automatically vote either for or against
On voir dire by the prosecutor, James T. said that
the biblical command "Thou shalt not kill" applied to "everybody in
society" but not to the state. [28 Cal. 4th 978] He affirmed
again that voting as a juror to impose the death penalty would not
conflict with his religious views. He said that a murder deliberately
planned for financial gain was the type of murder that could get his
vote for the death penalty. Asked whether he thought our society
should have a death penalty, James T. replied: "I think that society
needs to be in a situation where they should not have a death penalty.
And that's what I am just saying. No one should kill another person,
you know, to bring the situation up." The prosecutor then asked
whether James T. would vote for the death penalty if it was on the
ballot. James T. answered: "I would probably vote no. . . . Because
simply killing is wrong."
Substantial evidence supports the trial court's
finding that the prosecutor could reasonably view James T. as
unfavorable on the penalty issue. Although he consistently denied any
conflict between his religious views and state law on the death
penalty, James T. said he would vote against it if it appeared on the
ballot because of his strongly held view that killing is wrong. Given
this expression of doubt about the moral legitimacy of the death
penalty, we see no basis to disturb the trial court's finding that the
prosecutor's peremptory challenge against James T. was based on his
death penalty views and not on his race.
h. Gerald W.
On the jury questionnaire, in response to a
question about his general feelings on the death penalty, Gerald W.
wrote: "If someone purposely takes the life of another, I feel that
they should be punished severely. If accidental or without thought I
feel they should go through some type of rehab & counseling for an
extensive period of time." On voir dire by the trial court, Gerald W.
said he would not automatically vote either for or against the death
The prosecutor on voir dire asked Gerald W. whether
he thought "that as a society we should even have the death penalty."
Gerald W. replied: "Yes, I believe that there are some murder cases
that require the death penalty. Because there are some people that
just are killers. Might have had, to me, a criminal life or scrapes
with the law, you know." The prosecutor then asked how he would feel
"if the person had not done it before." Gerald W. said: "They would be
in a different category." Asked whether his ability "to vote for the
death penalty in a lot of ways would be determined by the person's
prior criminal record," Gerald W. replied: "It would have a lot to do
with it." On further questioning, however, Gerald W. added that he
could see himself voting for the death penalty when the person did not
have a prior criminal record but committed "a very violent
premeditated murder." Asked what [28 Cal. 4th 979] kinds of
things he would look for in making the penalty determination in that
situation, Gerald W. said: "The history of what the person was like
prior to this murder." The prosecutor then asked this question: "Could
you see yourself ever voting for the death penalty in a situation
where you have already found the person guilty because they
participated in the crime, but they weren't the person who actually
pulled the trigger and did the stabbing, whatever?" Gerald W. replied:
"I don't think so." He later said, however, that if three people
agreed to commit a robbery and decided in advance to kill the robbery
victim, he could vote for the death penalty for each of the
participants because "one should not get off any lighter as far as
sentencing or anything than the other because all three of them--to
me, that would like they all shared equally in that crime."
Substantial evidence supports the trial court's
finding that the prosecutor could reasonably view Gerald W. as
unfavorable on the penalty issue. Although he indicated he was neutral
on the death penalty, his answers suggested that in making the penalty
determination he would be heavily influenced by the presence or
absence of a prior criminal record and that at least initially he was
not inclined to impose the death penalty on one who did not personally
participate in the killing. In the context of this case, where the
defendant lacked a prior criminal record and did not directly
participate in the killing, we see no basis to disturb the trial
court's finding that the prosecutor's peremptory challenge against
Gerald W. was based on his death penalty views and not on his race.
3. Defendant's arguments
 Defendant argues that the trial court's
findings are not entitled to deference because the trial court did not
make " 'a sincere and reasoned attempt to evaluate the prosecutor's
explanation.' " (People v. Fuentes, supra, 54 Cal. 3d at p. 718.) More
particularly, defendant asserts the trial court reviewed jury
questionnaires as to only seven of the eight Black prospective jurors
that the prosecutor had excused by peremptory challenge. We find the
record on this point to be inconclusive. The trial court asked defense
counsel for his copies of the questionnaires because, as the court
said, they were better organized than the court's, and the court
mentioned seven of the eight prospective jurors by name, omitting the
name of Patricia M. But the trial court may have had its own copy of
Patricia M.'s questionnaire already in hand, or defense counsel may
have supplied the court with all eight questionnaires. We note that
the court later announced it had "look[ed] at all the questionnaires
of Black jurors who have been excused." Defense counsel did not
challenge this statement. On this record, we find no basis to conclude
that the trial court failed to review the questionnaires and the voir
dire responses of each of the eight prospective jurors. [28 Cal.
 Defendant also argues that the trial court
should have granted the defense motion because the prosecutor failed
to give separate reasons for challenging each of the eight Black
prospective jurors and because the trial court failed to make separate
findings as to each challenged juror. Although we agree that it is
generally preferable to have individual reasons and individual
findings for each challenged juror, we have never required them. "When
the prosecutor's stated reasons are both inherently plausible and
supported by the record, the trial court need not question the
prosecutor or make detailed findings." (People v. Silva, supra, 25
Cal. 4th at p. 386; see also People v. Arias, supra, 13 Cal. 4th at p.
137, fn. 17.)
 Defendant next asserts that the prosecutor's
stated reasons for the challenges invited a comparison with the pool
of remaining unselected prospective jurors. The prosecutor said: "I
also took into account the fact that I believe that all these jurors
weren't necessarily opposed to the death penalty, but that I had a
pool of jurors out in the audience who I thought were more in favor of
the death penalty than these particular jurors." Defendant argues that
in view of this statement it became necessary to undertake the
comparison that the prosecutor invited.
We note that at trial the defense did not suggest
undertaking such a comparison, and indeed defendant's trial attorney
stated that at issue were the death penalty views of the challenged
Black prospective jurors, not the views of prospective jurors who had
not yet been called into the jury box. The trial court indicated its
agreement with this statement. The defense did not protest when the
trial court said it had reviewed the questionnaires and voir dire of
the challenged jurors, without referring to the unselected jurors
remaining in the jury pool. Because the trial court's review of the
questionnaires and voir dire of the challenged jurors showed that each
had expressed views that the prosecutor could reasonably regard as
unfavorable on the penalty issue, the trial court apparently
concluded, with defense acquiescence, that there was no need to
compare their expressed views with those of the remaining prospective
jurors in the jury pool.
Moreover, the comparison that defendant invites
hardly seems feasible. Under the jury selection system that the trial
court was using, the parties did not know the order in which
prospective jurors in the jury pool would be called into the jury box.
The number of prospective jurors in the pool, and their identities,
changed with the exercise of each peremptory challenge and the
summoning of each prospective juror from the pool into the jury box.
Defendant has attempted to undertake a comparative analysis in his
appellate brief, but it is inconclusive. Defendant does not dispute
that at the time of each prosecution peremptory challenge against a
Black prospective juror, [28 Cal. 4th 981] there remained in
the jury pool at least one prospective juror (and usually several)
whom the prospector could reasonably regard as more favorable on the
penalty issue, and that, during most of the time in question, the
prosecutor had more remaining peremptory challenges than the defense.
Although the prosecutor could never be entirely certain that the
challenged Black prospective juror would be replaced by a juror with
more favorable penalty views, the prosecutor could reasonably have
thought it more likely than not that this would occur.
We conclude, therefore, that defendant has failed
to demonstrate error in the trial court's denial of his motion under
Batson v. Kentucky, supra, 476 U.S. 79, and People v. Wheeler, supra,
22 Cal. 3d 258.
B. Challenges to Prospective Jurors
[7a] Defendant contends that during jury selection
the trial court erred in overruling her "for cause" challenges to six
prospective jurors and in granting the prosecution's challenges to two
 The same legal standard governs the inclusion
or exclusion of a prospective juror. (People v. Mincey (1992) 2 Cal.
4th 408, 456.) A trial court should sustain a challenge for cause when
a juror's views would "prevent or substantially impair" the
performance of the juror's duties in accordance with the court's
instructions and the juror's oath. (People v. Earp (1999) 20 Cal. 4th
826, 853; People v. Mayfield, supra, 14 Cal. 4th at p. 727.) On
appeal, we will uphold a trial court's ruling on a challenge for cause
by either party "if it is fairly supported by the record, accepting as
binding the trial court's determination as to the prospective juror's
true state of mind when the prospective juror has made statements that
are conflicting or ambiguous." (People v. Mayfield, supra, 14 Cal. 4th
at p. 727; see also People v. Jenkins (2000) 22 Cal. 4th 900, 987;
People v. Crittenden (1994) 9 Cal. 4th 83, 121; People v. Mincey,
supra, 2 Cal. 4th at pp. 456--457.)
1. Harold O.
[7b] The trial court properly denied the defense
challenge for cause to Prospective Juror Harold O. On voir dire,
Harold O. expressed strong feelings in favor of the death penalty, but
he also said he would not automatically "go one way or the other" and
would follow the law as instructed. Although Harold O. at one point
said he would automatically vote [28 Cal. 4th 982] for death at
the penalty phase unless evidence was introduced to convince him
otherwise, the record shows that Harold O. mistakenly thought he was
being asked for his views on the appropriate penalty if no evidence
was introduced at the penalty phase. When the trial court clarified
the question, Harold O. assured the court that he would consider the
evidence and mitigating factors. The trial court impliedly resolved
any conflicts or ambiguities in Harold O.'s responses by finding that
his views on the death penalty would not prevent or substantially
impair the performance of his duties as a juror. We will not disturb
that finding, which is fairly supported by the record.
2. Mary F.
The trial court properly denied the defense
challenge for cause to Prospective Juror Mary F. Although Mary F. said
she favored the death penalty, she also said she would keep an open
mind and would consider life without possibility of parole at the
penalty phase. The trial court impliedly resolved any conflicts or
ambiguities in Mary F.'s responses by finding that her views on the
death penalty would not prevent or substantially impair the
performance of her duties as a juror. We will not disturb that
finding, which is fairly supported by the record.
3. Hilyard B.
Prospective Juror Hilyard B. said he felt strongly
that the death penalty should be imposed under certain circumstances,
but he also said that he could set aside his personal feelings and
follow the law as instructed, and that the appropriate sentence to be
imposed would depend on the particular situation. Hilyard B. stated
that although he would give greater weight to the circumstances of the
crime and recent mitigating factors, he would consider other factors
in aggravation and mitigation as well. These responses do not show
that the trial court erred in denying the defense challenge for cause.
Hilyard B. did not answer questions in the juror
questionnaire about how he had voted in elections; he explained that
he considered that information personal and confidential. We reject
defendant's argument that the trial court was required to excuse
Hilyard B. because of his failure to answer these particular
questions, or that defendant was denied a right to adequate voir dire.
Hilyard B. freely answered questions on voir dire about his death
penalty views and his ability to obey the court's instructions
regarding penalty determination in a capital case. Thus, the defense
had adequate opportunity to voir dire Hilyard B. in support of a
challenge for cause. (See People v. Holt (1997) 15 Cal. 4th 619, 661
[28 Cal. 4th 983] [stating that reversal of judgment is
required only when voir dire was "so inadequate that the reviewing
court can say that the resulting trial was fundamentally unfair"].)
4. Katherine K. and Barbara M.
As defendant concedes, Prospective Jurors Katherine
K. and Barbara M. gave contradictory answers on voir dire. When
denying the defense challenges for cause, the trial court impliedly
resolved those contradictions by finding that their views would not
prevent or substantially impair the performance of their duties as
jurors, and we will not disturb those findings, which are fairly
supported by the record. Although Barbara M. did not disclose in her
juror questionnaire that her mother-in-law had been a murder victim 20
years earlier, she disclosed the information on voir dire, and the
trial court considered it in denying the defense challenge for cause.
5. Richard R.
The trial court properly denied the defense
challenge for cause to Prospective Juror Richard R. Although during
voir dire Richard R. said he thought defense counsel was trying to
influence the prospective jurors, he said he would not hold this
against the defense and it would not affect his performance as a
juror. By denying the defense challenge for cause, the trial court
impliedly found that Richard R.'s views would not prevent or
substantially impair the performance of his duties as a juror, and we
will not disturb that finding, which is fairly supported by the
6. Scott M. and Beverly S.
 The trial court did not err in granting the
prosecution's challenges for cause to Prospective Jurors Scott M. and
Beverly S. As defendant recognizes, they made statements in their
juror questionnaires that would disqualify them from serving as jurors
in this case. Although their later statements during voir dire may not
have been disqualifying, the resolution of these conflicts and
contradictions was the task of the trial court. By granting the
prosecution's challenges for cause, the trial court impliedly found
that these prospective jurors' views would prevent or substantially
impair the performance of their duties as jurors, and we will not
disturb those findings, which are fairly supported by the record.
C. Double Jeopardy and Comment on
Failure to Testify
Immediately after the jury was sworn, the trial
court recalled that one of the jurors, Fred L., had earlier told the
bailiff about reading a newspaper [28 Cal. 4th 984] article
regarding the case. The court, in the presence of the other jurors,
inquired into the matter. When the court asked whether the article had
affected his ability to be fair to either side, Juror Fred L.
responded: "It would cause me to want the defendant to testify on her
own behalf even though she constitutionally doesn't have to, and that
would lead me to be prejudiced against her." The court then asked, "In
other words, you would expect if the defendant doesn't take the stand
and testify in her own behalf, you would hold it against her?" Juror
Fred L. replied, "Yes." After a sidebar discussion with the attorneys
for both sides, the trial court discharged Fred L. When the court then
asked the remaining 11 jurors if any of them had read anything that
would cause them to believe that they could not be fair, no one
 Defendant contends that jeopardy attached when
the 12 jurors were sworn, and that therefore the trial court
proceedings after the discharge of Juror Fred L. violated her
constitutional right under the Fifth Amendment to the federal
Constitution to not be placed in jeopardy twice for the same offense.
We have held that generally "where a court has indicated that a trial
will be conducted with alternate jurors the impanelment of the jury is
not deemed complete until the alternates are selected and sworn." (In
re Mendes, supra, 23 Cal. 3d at p. 853.) The trial court here
indicated that there would be alternate jurors. Defendant urges us to
overrule Mendes because, according to defendant, it conflicts with the
United States Supreme Court's decision in Crist v. Bretz (1978) 437
U.S. 28, holding that jeopardy attaches when jurors are impaneled and
sworn. As the Attorney General notes, however, we were aware of and
considered the high court's decision in Crist when we decided In re
Mendes, and we there concluded that our decision was not in conflict
with Crist. (In re Mendes, supra, 23 Cal. 3d at pp. 853-854.) We
adhere to that view.
We also reject defendant's argument that the
statements by Juror Fred L. and those the trial court made in the
presence of the full jury constituted improper comments on defendant's
failure to testify. Fred L. stated that based on the article he read,
he would want defendant to testify "even though [defendant]
constitutionally doesn't have to," and that would lead him "to be
prejudiced against her." Defendant did not preserve the issue for
appeal because she did not make a timely objection in the trial court.
(See People v. Hines (1997) 15 Cal. 4th 997, 1035.) In any event, the
specific contents of the article were not discussed in front of the
other jurors but only in a sidebar conference with counsel, Juror Fred
L.'s comment expressly recognized defendant's constitutional right not
to testify, and the trial court instructed the jury not to draw any
inferences from a defendant's failure to testify. Accordingly, the
statements in question were not constitutionally improper comments on
defendant's failure to testify. [28 Cal. 4th 985]
III. GUILT PHASE ISSUES
A. Accomplice Corroboration
[11a] Defendant contends she is entitled to a
judgment of acquittal because the only evidence linking her to the
crimes came from the uncorroborated testimony of accomplices James
Luna and brothers Marvin and Dondell Lee. As recited earlier, that
testimony was as follows: Defendant agreed to pay Luna $50,000 from
the proceeds of an insurance policy to kill victim Eldridge. Defendant
made arrangements for Luna and brothers Marvin and Dondell Lee to
enter the house to kill Eldridge, for Luna to help her inflict some
injuries on herself so it would appear that the killing occurred
during a robbery, to kill Eldridge, and to cut off his penis to make
the crime look like a "homosexual murder."
 A conviction can be based on an accomplice's
testimony only if other evidence tending to connect the defendant with
the commission of the offense corroborates that testimony. (§ 1111.)
The corroborating evidence may be circumstantial or slight and
entitled to little consideration when standing alone, and it must tend
to implicate the defendant by relating to an act that is an element of
the crime. The corroborating evidence need not by itself establish
every element of the crime, but it must, without aid from the
accomplice's testimony, tend to connect the defendant with the crime.
(People v. Rodrigues (1994) 8 Cal. 4th 1060, 1128.) The trier of
fact's determination on the issue of corroboration is binding on the
reviewing court unless the corroborating evidence should not have been
admitted or does not reasonably tend to connect the defendant with the
commission of the crime. (People v. Szeto (1981) 29 Cal. 3d 20, 25.)
[11b] Here, to corroborate the accomplice
testimony, the prosecution presented independent evidence that
defendant had a motive to kill Eldridge to obtain possession of the
house they owned in joint tenancy and to obtain the proceeds of an
insurance policy on Eldridge's life. The prosecution also presented
independent evidence that defendant was present in the house when
Eldridge was killed and that, although Eldridge was stabbed 44 times,
defendant received only superficial wounds, casting doubt on the
defense claim that she, like Eldridge, was a victim of a residential
robbery. The investigating detective concluded, based on the evidence
at the crime scene, that there was a murder, not a robbery that led to
a murder. And the prosecution presented independent evidence that
accomplice James Luna, who admitted stabbing Eldridge to death, was
defendant's coworker and personal friend. Considered together, this
evidence adequately corroborated the accomplice testimony. [28 Cal.
In addition, the prosecution introduced evidence
that on the day before and the day of the murder there were 11
telephone calls between defendant and accomplice Luna collectively
lasting more than 100 minutes, and that on the day after the murder
there were six calls between them collectively lasting more than 40
minutes. Because evidence of the telephone communications was not the
only corroborating evidence, we do not address defendant's contention
that the records of the telephone calls between defendant and
accomplice Luna, considered in isolation, are insufficient
corroboration of the accomplice testimony. (See People v. Bunyard
(1988) 45 Cal. 3d 1189, 1208, fn. 9.) Meritless, too, is defendant's
assertion that the prosecutor stated in closing argument that the
telephone records are the best corroborating evidence. The prosecutor
stated that the telephone records were the best evidence of a
connection between defendant and accomplice Luna, while also noting
that the records would require the testimony of a participant witness
to give the telephone calls content.
B. Right to Speedy Trial
In August 1985, defendant was arrested in
Pennsylvania for the murder of Stephen Eldridge in California. She was
arraigned in Los Angeles, California, on January 10, 1986. The
preliminary hearing began on January 2, 1987, and ended on January 9,
1987. On September 2, 1987, the prosecution filed an amended
information charging defendant with attempted murder, solicitation of
murder, and murder. The amended information also alleged the special
circumstances of murder for financial gain and murder by lying in
wait. Defendant was rearraigned, entered a plea of not guilty, and
denied the special circumstance allegations. Later, the trial court
dismissed the charge of solicitation of murder.
Between defendant's initial arraignment on January
10, 1986, and the commencement of jury selection on August 14, 1989,
Defense Counsel Joe Ingber requested and was granted 25 motions for
continuances; each time defendant waived her right to a speedy trial.
The continuances were based on Ingber's trial commitments in other
criminal cases, including capital cases, and the need to prepare for
defendant's trial. The prosecutor, as early as December 1987, and on
several occasions thereafter, expressed to the court her concern about
the trial delay.
[13a] Defendant contends she is entitled to a
dismissal with prejudice because the delay of three years and eight
months between her arraignment and the beginning of jury selection
violated her constitutional right to a speedy trial. In support, she
cites the speedy trial provisions of the federal and state
Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.)
[28 Cal. 4th 987] Her argument, however, addresses only the
speedy trial provision of the federal Constitution.
The Sixth Amendment to the United States
Constitution guarantees that in "all criminal prosecutions, the
accused shall enjoy the right to a speedy trial . . . ." In Barker v.
Wingo (1972) 407 U.S. 514, the high court announced a balancing test
in determining whether a defendant's right to a speedy trial under the
Sixth Amendment had been violated. It identified four criteria to be
considered: (1) length of the delay; (2) reason for the delay; (3) the
defendant's assertion of the right; and (4) prejudice to the
defendant. (Id. at p. 530.)
Here, defendant's speedy trial claim fails under
the third factor because she not only did not assert her speedy trial
right in the trial court, but she repeatedly requested and obtained
continuances and waived time for each continuance. (People v. Seaton
(2001) 26 Cal. 4th 598, 633-634.) Anticipating this conclusion,
defendant argues that trial counsel Ingber provided ineffective
assistance by requesting and agreeing to the continuances of the trial
 A defendant seeking to establish the
incompetence of trial counsel must show both that counsel's
performance was deficient and that this deficient performance
prejudiced the defendant's case. (People v. Mendoza (2000) 24 Cal. 4th
130, 158.) In assessing the adequacy of counsel's performance, a court
must indulge "a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances,
the challenged action 'might be considered sound trial strategy.'
[Citations.]" (Strickland v. Washington (1984) 466 U.S. 668, 689.) If
" 'the record contains no explanation for the challenged behavior, an
appellate court will reject the claim of ineffective assistance
'unless counsel was asked for an explanation and failed to provide
one, or unless there simply could be no satisfactory explanation.' "
(People v. Kipp (1998) 18 Cal. 4th 349, 367.)
[13b] Here, defendant fails to establish that trial
counsel Ingber's performance was deficient. The record shows that
Ingber needed continuances to prepare for the preliminary hearing as
well as the trial, to seek or review discovery, and to await
completion of accomplice Luna's preliminary hearing. The record belies
defendant's assertion that the only grounds for the continuances were
Ingber's commitments in other cases. Although defendant asserts that
Ingber intentionally delayed the trial to obtain a higher fee, the
[28 Cal. 4th 988] record does not support this assertion. Because
defendant has not shown that trial counsel's performance was deficient
when measured against the standard of a reasonably competent attorney,
we reject her claim that counsel's requests for continuances denied
her the right to effective assistance of counsel.
C. Conflict of Interest
[15a] Defendant contends she was denied her Sixth
Amendment right under the federal Constitution to be represented by
counsel free of a conflict of interest. We disagree.
1. Relevant facts
On October 24, 1989, at the end of the first day of
the prosecution's case-in-chief, Defense Counsel Ingber told the trial
court that during a prosecution interview with accomplice James Luna
four days earlier, Luna had mentioned having a "relationship" with
Ingber. Ingber expressed concern that the prosecution might call him
as a witness in this case. Ingber explained that in another case he
had represented Randy Howard, who was Luna's cellmate and sexual
partner, but he had never represented Luna. When the prosecutor agreed
not to bring up the subject of Luna's claimed relationship with Ingber
during Luna's direct examination, the trial proceedings continued.
The prosecution's direct examination of accomplice
Luna began on November 1, 1989. The next day, on cross-examination by
defense cocounsel Burkow, Luna testified that he had a sexual
relationship with cellmate Randy Howard from August 1985 until
February 1988, and that he had told Howard of the March 1985 attempted
murder and the April 1985 actual murder of Eldridge.
On November 8, 1989, during a break in the
cross-examination of Luna, and outside the jury's presence, the
prosecutor expressed her concern to the trial court about Defense
Counsel Ingber's prior representation of Randy Howard. The prosecutor
asserted that if Ingber had obtained confidential information from
Howard that could be useful in the cross-examination of prosecution
witness Luna, Ingber's prior attorney-client relationship with Howard
might preclude disclosing such information to his cocounsel, Burkow.
The prosecutor suggested that defendant waive any potential conflict
Ingber then told the trial court that he had not
told Cocounsel Burkow anything discussed with Howard. Ingber added: "I
spoke with Mr. Luna [28 Cal. 4th 989] myself prior to the time
I represented Miss McDermott, discussing nothing about the case
whatsoever, as a solicitous, gratuitous, favor on behalf of Mr. Howard
to speak to Mr. Luna. [¶] That's all of my relationship with Mr.
Luna." In Ingber's view, failing to disclose to cocounsel Burkow any
information about Luna's character received from Howard could not be
detrimental to defendant. The trial court disagreed, finding a
potential conflict of interest. The court then appointed Bruce Hill,
an experienced criminal defense attorney, as independent counsel to
consult with defendant.
On November 20, 1989, in defendant's presence,
Attorney Hill told the trial court he had met with defendant for an
hour and a half, 50 minutes of which were spent discussing the subject
of the potential conflict of interest presented by Defense Counsel
Ingber's prior representation of Randy Howard in a different case.
When the court asked defendant whether she still wanted Ingber to
represent her, she responded "Yes, I do, your honor." The court then
asked defendant if she understood that because of the potential
conflict she ran "the risk of a greater chance of conviction."
Defendant replied, "Yes." Defendant also said she understood that in
waiving her right to conflict-free counsel she was giving up her right
to appeal on the ground of ineffective assistance of counsel relating
to a claim of counsel's potential conflict of interest. The following
colloquy then occurred:
"THE COURT: All right.
"Having been advised of the right to be represented
by an attorney free from conflict of interest, and having understood
the dangers and disadvantages in being represented by an attorney with
a conflict, do you specifically give up the right to be represented by
an attorney who has no conflict of interest.
"THE DEFENDANT: Yes, I do."
When the defense called Randy Howard as a witness,
he testified that he had not told Counsel Ingber anything Luna had
told him about the case. Howard also said Luna had told him that
defendant had hired Luna to kill someone to collect on an insurance
2. Waiver of counsel's conflict of
 The federal and state constitutional rights to
the assistance of trial counsel (U.S. Const., 6th Amend.; Cal. Const.,
art. I, § 15) include the right to representation by counsel without
any conflict of interest (People v. Jones (1991) 53 Cal. 3d 1115,
1133-1134). [28 Cal. 4th 990] When a trial court knows or
should know of a possible conflict of interest between a defendant and
defense counsel, the court must inquire into the circumstances and
take appropriate action. (People v. Frye (1998) 18 Cal. 4th 894, 999.)
Such action may include ascertaining whether the defendant wishes to
waive the right to be represented by conflict-free counsel. Although a
trial court may refuse to accept such a waiver (Wheat v. United States
(1988) 486 U.S. 153, 162), it is not required to do so (People v.
Carpenter (1997) 15 Cal. 4th 312, 375-376; People v. Bonin (1989) 47
Cal. 3d 808, 837). The defendant's waiver must be a knowing,
intelligent act done with awareness of the circumstances and likely
consequences, and it must be unambiguous. (People v. Mroczko (1983) 35
Cal. 3d 86, 110.)
[15b] Here, the record shows that the trial court
fully informed defendant of the potential conflict of interest on the
part of Defense Counsel Ingber and that defendant knowingly,
intelligently, and voluntarily gave up her right to be represented by
conflict-free counsel. As discussed in detail above, the trial court
appointed independent counsel to discuss with defendant the potential
conflict of interest, advised defendant of her right to the
appointment of different counsel at no expense to her, told defendant
that her chances of being convicted were possibly greater if Ingber
remained as her counsel, offered to address any questions or concerns
defendant might have, and obtained an express statement from defendant
waiving her right to conflict-free counsel. We have in the past
rejected the contention that the right to conflict-free counsel cannot
be waived in capital cases. (People v. Carpenter, supra, 15 Cal. 4th
at pp. 375-376.)
D. Effectiveness of Trial Counsel
Citing to both the state and federal Constitutions,
defendant contends she was denied her right to effective assistance of
counsel at trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, §
15.) More specifically, she claims that her trial counsel failed to
adequately investigate and prepare her case; failed to move at the
close of the prosecution's case for a judgment of acquittal and to
object to the prosecution's closing argument on the ground the
accomplice testimony was not corroborated; did not present a coherent
theory of the case; lacked basic trial skills; presented
incomprehensible defenses; bolstered the prosecution's theory of
murder for financial gain; bolstered the testimony of accomplice Luna;
used vulgar language; expressed personal opinions about defendant's
guilt; and conceded defendant's guilt in closing argument. [28 Cal.
 As we have explained, a defendant claiming
ineffective assistance of trial counsel must show both that counsel's
performance was deficient and that this deficient performance
prejudiced defendant's case. (People v. Mendoza, supra, 24 Cal. 4th
130, 158.) If counsel's deficiencies were so severe as to result in a
complete breakdown of the adversary process, prejudice is presumed.
(United States v. Cronic (1989) 466 U.S. 648, 656-657.) Otherwise, the
defendant must show prejudice " 'in the sense that it 'so undermined
the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.' " (People v.
Kipp, supra, 18 Cal. 4th at p. 366.)
We reject at the threshold defendant's contention
that she is entitled to a presumption of prejudice because her trial
counsel's deficiencies resulted in a complete breakdown of the
adversarial process. The record shows that defense counsel vigorously
represented defendant and subjected the prosecution's case to
adversarial testing. As just one example, defense counsel's
cross-examination of prosecution witness James Luna lasted eight days.
1. Claim that defense counsel
failed to adequately investigate and prepare case
 In support of her claim that Defense Counsel
Ingber failed to investigate and prepare the case, defendant points to
Ingber's involvement in trying other cases while representing her, his
citation of a disapproved case in a motion, and his failure to timely
review discovery by the prosecution. Defendant also asserts that
Ingber did not hire an investigator until May 1989 and did not conduct
his first field investigation until June 1989, shortly before trial
started in August 1989, that Ingber did not interview defense
witnesses until the morning of their testimony, that some defense
witnesses never spoke to Ingber or his cocounsel, Burkow, before
testifying, and that Ingber did not ask for a continuance when
accomplice James Luna agreed to testify against defendant one month
As the Attorney General observes, the appellate
record does not support many of these assertions. To show when trial
counsel Ingber hired an investigator and began the field
investigation, defendant mistakenly relies on trial counsel's funding
requests. But these requests only cover the period after the trial
court appointed Ingber as defendant's trial counsel. The appellate
record does not show what actions Ingber did or did not take during
the long period before his appointment when Ingber represented
defendant as retained counsel.
Assuming trial counsel Ingber did not interview
many defense witness until the day of their testimony, we are not
persuaded this establishes [28 Cal. 4th 992] deficient
performance. Experienced counsel may, for example, choose to rely on
an investigator's report or other form of written statements
describing the witnesses' anticipated testimony. Because defendant has
not shown that trial counsel Ingber failed to adequately investigate
or prepare, defendant also has not shown show that counsel should have
requested additional continuances.
2. Claim that defense counsel
should have moved for judgment of acquittal or objected to
prosecution's closing argument
Defendant faults trial counsel for not seeking a
judgment of acquittal when the prosecution rested its case and for not
objecting to the prosecutor's closing argument on the ground that the
accomplice testimony of James Luna, Marvin Lee, and Dondell Lee was
not corroborated. As discussed earlier, there was sufficient
corroboration of the accomplice testimony. Because a motion or
objection on the ground now asserted by defendant would have been
futile, trial counsel's failure to move for acquittal or to object to
the prosecutor's argument was not deficient performance. (People v.
Diaz (1992) 3 Cal. 4th 495, 562.)
3. Claim that defense counsel did
not have a coherent defense theory
 Defendant accuses her trial counsel of lacking
a coherent defense theory, as shown, according to defendant, by
counsel's failure to establish that accomplice James Luna might have
had a motive for the killing of Eldridge separate and apart from
defendant's. Defendant is wrong. The defense did present a coherent
theory of the case, namely, that the prosecution could not prove
beyond a reasonable doubt that defendant had anything to do with the
4. Claim that defense counsel
lacked basic trial skills
Defendant asserts that her trial counsel lacked
basic trial skills. In support, she points to a question by the
prosecutor that she claims her counsel should have objected to as
leading and as assuming facts not in evidence. She then lists 29
questions defense counsel asked accomplice Luna on cross-examination,
claiming that these questions show that counsel was acting as "another
prosecutor." Such matters as whether objections should be made and the
manner of cross-examination are within counsel's discretion and rarely
implicate ineffective assistance of counsel. (People v. Bolin (1998)
18 Cal. 4th 297, 334.) Here, as we pointed out earlier, defense
counsel cross-examined accomplice Luna for eight days and vigorously
attacked his credibility in closing argument. The record belies
defendant's assertion that her trial counsel lacked basic trial
skills. [28 Cal. 4th 993]
5. Claim that defense counsel
presented "incomprehensible defenses"
 In arguing that defendant's trial counsel
presented "incomprehensible defenses," defendant points to (1)
counsel's attempt to establish that murder victim Eldridge received
only superficial injuries in the earlier nonfatal attack on March 21,
1985, and (2) counsel's examination of Luna's aunt, Alice Gonzales,
eliciting her testimony that Luna was at home on April 28, 1985, when
Eldridge was killed. As the Attorney General points out, evidence that
Eldridge received only superficial injuries during the March 21 attack
supported the defense argument that the attack was not an attempted
murder, as the prosecution had argued, but instead was part of an
attempted robbery. In turn, this supported the defense argument that
the later murder of Eldridge occurred during a residential robbery
rather than, as the prosecution had argued, to obtain financial
benefits for defendant. The testimony of accomplice Luna's aunt was
offered not to exculpate Luna from the murder but to impeach Luna by
showing that he had manipulated his aunt to induce her to lie on his
behalf. This was consistent with the defense strategy to portray Luna
as an individual whose testimony completely lacked credibility.
6. Claim that defense counsel
"bolstered" prosecution's case
 Defendant accuses her trial counsel of
bolstering the prosecution's theory that defendant's motive for
Eldridge's murder was financial gain, namely, obtaining the proceeds
of the life insurance on Eldridge's life and full title to the house
they jointly owned. In support, she cites trial counsel's decision to
call as witnesses Robin Tratner, Linda Gunderson, and Antoinette
Defense witness Robin Tratner was the custodian of
records for the bank where defendant maintained an account. Through
direct examination of Tratner, defense counsel established that
defendant did not have a negative bank balance during the first half
of 1985, when Eldridge was killed. Although Tatner testified on
cross-examination that defendant had bounced over 100 checks in 1984,
the defense succeeded in establishing that defendant's financial
situation had improved in 1985.
Defense witness Linda Gunderson, a probate lawyer
representing the family of murder victim Eldridge, testified that
Eldridge's heirs had filed a claim for the insurance proceeds under
the policy that Eldridge had bought naming defendant as a beneficiary.
Defendant argues that her counsel's decision to have Gunderson testify
was a tactical blunder because it allowed the prosecution, during its
rebuttal, to call as a witness defendant's former [28 Cal. 4th 994]
attorney, Mitchell Egers, who testified that he had written a letter
to the insurance company claiming that defendant was entitled to the
proceeds of Eldridge's life insurance as the beneficiary designated on
the policy. We do not agree that defendant was significantly harmed by
Egers's testimony, or that the testimony was inconsistent with
defendant's claim of innocence. If, as defendant claimed, she was not
involved in Eldridge's murder, she would be entitled to claim the
proceeds of his life insurance.
Defense witness Antoinette Garcia was the sister of
Phillip La Chance, who worked with defendant at the La Porte
residence. The defense called her as a witness to impeach La Chance's
testimony that defendant had asked him to steal Betty La Porte's ring.
Garcia testified that La Chance was not working at the La Porte
residence when, according to La Chance, defendant had asked him to
steal the ring. On cross-examination by the prosecution, Garcia said
that La Chance told her that defendant and La Chance had taken Betty
La Porte's ring and had tried to sell it. Whether Garcia's testimony
was detrimental to the defense is fairly debatable. Although the
prosecution's cross-examination of Garcia produced further evidence
that defendant had participated in the theft of the ring, that
evidence was an out-of-court statement by La Chance, and Defense
Counsel Ingber's direct examination of Garcia successfully undermined
La Chance's credibility. Because reasonable minds could differ on the
value of Garcia's testimony for the defense, we do not find that
Defense Counsel Ingber performed deficiently by calling her as
witness. (See People v. Hines, supra, 15 Cal. 4th at p. 1065.)
Defendant also faults trial counsel for calling as
witnesses Randy Howard, Betty Jones, and Dondell Lee who, according to
defendant, each gave testimony against her. We reject defendant's
claim because she has not shown that there could be no satisfactory
explanation for defense counsel's actions. (People v. Kipp, supra, 18
Cal. 4th at p. 367.) Howard testified that accomplice Luna told him
defendant had hired Luna to kill someone for insurance money. As the
Attorney General notes, Howard's testimony was consistent with Luna's
and was used by the defense in closing argument to show that because
the source of the evidence was Luna himself, Luna's testimony could
not be independently corroborated. As to Jones, her testimony that
Luna told her defendant sometimes would pick Luna up in her car and go
out for cocktails was not adverse to defendant, given that Luna and
defendant were friends and coworkers. Dondell Lee's testimony that
defendant describes as "the 'lady' told Luna to do this or that" might
have been offered by defense counsel to show that accomplice Dondell
and his brother Marvin, also an accomplice, had concocted a version of
events that was not credible. [28 Cal. 4th 995]
7. Claim that defense counsel used
vulgar language and sexual innuendo
 Defendant accuses trial counsel of using
vulgar language and sexual innuendo during the examination of Marvin
Lee and Gary Venturini, thus rendering ineffective assistance. We
The defense played the tape of the July 12, 1985,
police interview of accomplice Marvin Lee. The tape apparently
contained explicit sexual language, and the questions by defense
counsel that defendant now claims were improper all related to that
interview. Having reviewed the record, we do not find that Defense
Counsel Ingber performed deficiently by referring to and repeating
some of the vulgar and offensive language used during the taped
Defendant next asserts trial counsel improperly
asked Gary Venturini, who was murder victim Eldridge's former lover,
if Venturini's relationship with another former lover was physical,
and improperly elicited testimony that the other former lover had died
of AIDS. After the prosecution objected, defense counsel rephrased the
question to delete any reference to the relationship being physical.
Defense counsel could not have anticipated the testimony defendant now
claims was offensive, that Venturini's former lover had died of AIDS,
because that statement was not responsive to defense counsel's
question, which made no reference to the death of the former lover.
In neither of these incidents has defendant shown
incompetent representation at trial. In addition, defendant does not
even attempt to show prejudice from the purportedly deficient
8. Claim that defense counsel
allowed witnesses to express personal opinions of defendant's guilt
 Defendant faults her trial counsel for
allowing three defense witnesses (Linda Gunderson, Curt Livesay, and
Agnes Gordon) and two prosecution witnesses (Twyla Hacker and Carol
Bond) to testify as to their opinion of her guilt. The record does not
support defendant's claim.
As mentioned previously, defense witness Linda
Gunderson was the attorney for the family of murder victim Eldridge.
On cross-examination, the prosecution asked whether defendant, the
beneficiary of the insurance policy taken out on Eldridge's life, was
disqualified from receiving the insurance proceeds because "she had,
in your mind, murdered your client . . . ." [28 Cal. 4th 996]
Gunderson never answered the question, however, because the trial
court sustained defense counsel's prompt objection, and the prosecutor
ended her questioning. Thus, contrary to defendant's assertion,
Gunderson expressed no opinion on defendant's guilt.
Defense witness Curt Livesay was the assistant
district attorney in charge of determining whether the prosecution
should seek the death penalty in special circumstance cases. He
testified about the terms of accomplice Luna's plea agreement. On
cross-examination by the prosecution, Livesay explained that the
purpose of the plea bargain was to have Luna tell the jury about
defendant's role in the killing, and that without the plea bargain
Luna was certain to have invoked his right against self-incrimination.
Livesay did not give his personal opinion on defendant's guilt, and
defense counsel had a legitimate tactical reason for calling Livesay
as a witness: to attempt to undermine prosecution witness Luna's
testimony by showing that the prosecution had given him a favorable
deal in exchange for his testimony against defendant. In any event,
defendant was not prejudiced. Undoubtedly, the jury was aware that the
prosecution, as the charging party, was convinced of defendant's
Defense witness Agnes Gordon was a police officer
who spoke to defendant shortly after Eldridge's murder, and she
testified that defendant was not as upset after that murder as Gordon
would have expected. Contrary to defendant's claim, she expressed no
personal opinion on defendant's guilt.
Twyla Hacker, a friend of defendant's, testified as
a prosecution witness that police officers told her they thought
defendant was guilty; contrary to defendant's assertion, she expressed
no opinion about defendant's guilt.
Prosecution witness Carol Stanford Bond, a friend
of murder victim Eldridge, testified that she was not on friendly
terms with defendant before the murder and that she liked defendant
even less at the time of her trial testimony. Contrary to defendant's
claim, Bond expressed no view of defendant's guilt.
9. Claim that defense counsel
conceded defendant's guilt in closing argument
 Defendant accuses her trial counsel of
conceding her guilt in closing argument, thereby rendering ineffective
assistance. We find no concession of guilt and no deficient
performance in counsel's argument to the jury.
First, defendant asserts that defense counsel told
the jury there was no defense. That is not what defense counsel said,
however. The prosecution in [28 Cal. 4th 997] its closing
argument had attempted to ridicule the defense by characterizing as
purported or attempted defenses the testimony about an AIDS death,
about accomplice Luna having been at home during the murder, about the
possibility of two knives being used in the killing, and about the
insurance claim submitted by murder victim Eldridge's family. Defense
counsel argued that the prosecutor had inaccurately characterized the
defense. Considering defense counsel's argument as a whole, a
reasonable juror would have understood that the defense theory was
simply that the prosecution had failed to prove defendant's
involvement in the murder beyond a reasonable doubt.
Second, defendant notes that at the outset of his
argument to the jury, defense counsel thanked the jury for being
attentive, regardless of how they voted. Defendant claims that by this
statement defense counsel told the jury it did not matter how the jury
voted on defendant's guilt. No reasonable juror would have so
understood counsel's statement, particularly when counsel thereafter
proceeded to vigorously argue on defendant's behalf that the
prosecution had not established her guilt beyond a reasonable doubt.
Third and last, defendant faults counsel for
likening defendant's decision not to testify at trial to a coach's
decisions in a football game. What counsel said was that just as a
football coach must decide which players to use during a football
game, so also an attorney must use professional judgment to decide
whether a defendant should testify. There was a legitimate tactical
purpose for this argument, which was to reduce the risk that the jury
would draw some inference of guilt from defendant's failure to
E. Admission of Videotape
 The jury was shown an 18-minute videotape of
the crime scene made by police officers shortly after they arrived
there. Defendant objected to the videotape as being more prejudicial
than probative. (Evid. Code, § 352.) The videotape contained a
30-second view of the victim's groin area showing that his penis had
been cut off. The trial court, after reviewing the tape in its
entirety, ruled that it would admit the tape into evidence if the
scene showing the victim's genital area were to be shortened and if
the sound, except for a portion recording the sound of barking dogs,
were to be turned off. Defendant contends that the tape was not
shortened and that the sound was not turned off, so that the jury
could hear police officers laughing in the background. The Attorney
General states that the prosecution turned off the videotape after a
brief view of the victim's mutilated groin. The Attorney General also
asserts that except for the segment recording the barking dogs, the
sound portion of the video was not played. [28 Cal. 4th 998]
It is not necessary to resolve the dispute between
the parties regarding what portions of the videotape were shown to the
jury or whether the sound of the tape was turned on or off. We have
reviewed the entire videotape, including the audio portion, and find
nothing in it that is unduly gruesome or inflammatory. (See People v.
Mendoza, supra, 24 Cal. 4th at p. 171.) It consists largely of
exterior views of the house in which Eldridge was killed. The portion
depicting the house's interior contains mostly views of the various
rooms. The portion showing the victim's body is not particularly
gruesome: There is very little blood shown on or near the body. In the
portion of the tape showing the victim's mutilated groin, no blood is
apparent. Although unpleasant, the image is not shocking. The trial
court did not abuse its discretion in admitting the videotape. (See
People v. Scheid (1997) 16 Cal. 4th 1, 20.)
We see no reason to criticize the trial court for
not watching the videotape again with the jury. With respect to
defendant's claim that police officers could be heard laughing in the
background, the sound of laughter can only be heard briefly, and it is
not clear that the person laughing is a police officer. Thus, the
audio part of the videotape in which laughter may be heard would not
have prejudiced the jury.
F. Admission of Prior Bad Acts
Phillip La Chance, who had worked with defendant in
caring for the disabled Lee La Porte, testified over defense
objections to two prior instances of misconduct by defendant. In the
fall of 1984, probably during the months of September and October,
defendant told La Chance she needed money to pay bills and discussed
with him a plan to steal a ring from Betty La Porte so they could sell
it. Around the same time, defendant asked La Chance, who sometimes
handled Betty La Porte's banking matters, to get Lee La Porte to sign
a check so they "could clear out the checking account." The prosecutor
argued that the evidence was relevant to show not only defendant's
tendency to employ others to commit crimes for her but also her
desperate need for money, which also led her in this case to arrange
for Eldridge's murder so she could collect on the insurance policy on
his life. The trial court instructed the jury that the evidence was
admitted only for the purpose of establishing a possible motive for
the murder of Eldridge, and not to prove that defendant had a bad
character or a predisposition to commit crimes.
[26a] Defendant contends the trial court violated
her right to due process by admitting La Chance's testimony because
the evidence that she suggested to La Chance that they steal Betty La
Porte's ring and embezzle funds from [28 Cal. 4th 999] the La
Portes' bank account had no logical tendency to show that defendant
had Eldridge killed to get insurance proceeds and the house she held
in joint tenancy with him.
 Generally, evidence of a defendant's poverty
or indebtedness is inadmissible to establish a motive to commit
robbery or theft, "because reliance on poverty alone as evidence of
motive is deemed unfair to the defendant, and the probative value of
such evidence is considered outweighed by the risk of prejudice."
(People v. Wilson (1992) 3 Cal. 4th 926, 939.)  Evidence that a
defendant committed other crimes may be admitted when relevant to
establish a motive for the commission of the charged offense or a
common plan or design (Evid. Code, § 1101, subd. (b); People v. Ewoldt
(1994) 7 Cal. 4th 380, 393-394), but only if the offenses share common
features (People v. Ewoldt, supra, at pp. 402-403). [26b] We do not
need to decide here, however, whether the trial court erred in
admitting the evidence because its admission did not prejudice
defendant. The testimony was relatively brief and the trial court
limited its prejudicial impact by instructing the jury that the
evidence was not admissible to prove bad character or predisposition
to commit crimes. (See People v. Lewis (2001) 25 Cal. 4th 610, 637.)
Defendant also argues that the trial court should
have excluded La Chance's testimony because he was an accomplice to
the acts of misconduct about which he testified, and his testimony was
not corroborated. We disagree. For purposes of the corroboration
requirement, an accomplice is "one who is liable to prosecution for
the identical offense charged against the defendant on trial in the
cause in which the testimony of the accomplice is given." (§ 1111.)
Because La Chance had nothing to do with the earlier attempted murder
and the later murder of Stephen Eldridge, the only crimes charged
here, he could not be prosecuted for those crimes, and thus he was not
an accomplice whose testimony required corroboration.
Finally, defendant contends that La Chance's
testimony was inadmissible because his testimony about defendant's
plan to steal money from the La Portes' bank account constituted the
crime of solicitation to commit grand theft, an offense that must be
proven either by the testimony of two witnesses, or by one witness
whose testimony is corroborated. (§ 653f, subd. (f).) But the proof
requirements of section 653f are inapplicable here. For the
prosecution offered La Chance's testimony not to prove a violation of
section 653f, but to show defendant's tendency to have others commit
crimes for her and to show her desperate need for money, evidence the
prosecution argued was relevant in this case. [28 Cal. 4th 1000]
G. Cumulative Effect of Alleged
Defendant argues that her convictions for attempted
murder and murder should be reversed because of the cumulative effect
of the errors at the guilt phase. We disagree. Whether considered
separately or in combination, the few errors that occurred during the
guilt phase of defendant's trial, all of which we discussed earlier,
did not prejudice defendant and therefore do not require reversal.
IV. PENALTY PHASE ISSUES
A. Corroboration of Aggravating
[29a] Accomplice James Luna testified as a
prosecution witness at the penalty phase. He said that defendant had
asked him to beat up Dewayne Bell so she could replace Bell as a
caretaker for Lee La Porte, an invalid. Luna took two men with him to
Bell's apartment where they beat Bell and cut his face. They fled when
Bell started screaming. Defendant contends the trial court should not
have admitted Luna's testimony because it was not corroborated.
 When, as here, the prosecution calls a witness
to testify at the penalty phase about the defendant's prior violent
conduct, there must be corroboration of that testimony. (People v.
Mincey, supra, 2 Cal. 4th at p. 461.) The jury was so instructed here.
As we have observed, corroborating evidence may be slight and entirely
circumstantial. (People v. Szeto, supra, 29 Cal. 3d at p. 27.) It must
tend to implicate the defendant by relating to some act or fact that
is an element of the crime, but it need not be sufficient in itself to
establish every element of the crime. It is sufficient if it
substantiates enough of the accomplice's testimony to establish his
credibility. The finding of the trier of fact on the issue of
corroboration is binding on a reviewing court unless the evidence
should not have been admitted or it does not reasonably tend to
connect the defendant with the commission of the crime. (Ibid.)
[29b] Here, Luna's penalty phase testimony was
adequately corroborated by the testimony of Dewayne Bell, who
testified as a prosecution witness at the penalty phase. Bell
described the three individuals who attacked him as a Hispanic man and
two Black men. Bell recalled that defendant had previously introduced
him to one of the Black men who had attacked him. When Bell saw Luna
in the courtroom, Bell recognized him as another person that defendant
had introduced him to and he said that Luna "look[ed] similar" to the
Hispanic individual who had attacked him. Additional corroboration was
provided by evidence of the plan's success in [28 Cal. 4th 1001]
having Bell replaced by defendant as caretaker of the invalid Lee La
Porte: After the attack on Bell, the La Portes discharged him and
B. Prosecutorial Misconduct
Defendant contends the prosecutor engaged in
prosecutorial misconduct during her closing argument at the penalty
phase by: (1) using inflammatory epithets, (2) arguing the absence of
mitigation evidence was aggravating, (3) implying defense counsel
fabricated evidence, (4) making references to the Bible, (5)
misstating the law, (6) misstating the evidence, (7) arguing
defendant's character as aggravating, (8) engaging in bad faith by
arguing defendant would be dangerous in prison, (9) making a plea to
impose the death penalty based upon gut instinct, and (10) asserting
that defendant was more deserving of the death penalty because she is
a woman. At trial, defendant objected only to the first three of these
claimed instances of prosecutorial misconduct.
 Generally, " 'a defendant may not complain on
appeal of prosecutorial misconduct unless in a timely fashion--and on
the same ground--the defendant made an assignment of misconduct and
requested that the jury be admonished to disregard the impropriety.' "
(People v. Hill (1998) 17 Cal. 4th 800, 820.) This general rule,
however, does not apply if a defendant's objection or request for
admonition would have been futile or would not have cured the harm
caused by the misconduct; nor does it apply when the trial court
promptly overrules an objection and the defendant has no opportunity
to request an admonition. (Ibid.) Defendant here fails to show that
any of these exceptions applies to any of the seven instances of
alleged prosecutorial misconduct to which she did not object at trial.
Thus, she may not now raise these claims.
Arguing that we should excuse her trial counsel
from the legal obligation to object to prosecutorial misconduct,
defendant cites our decision in People v. Hill, supra, 17 Cal. 4th
800. Defendant's reliance on Hill is misplaced, however. There the
prosecutor subjected the defense "to a constant barrage of . . .
unethical conduct, including misstating the evidence, sarcastic and
critical comments demeaning defense counsel, and propounding outright
falsehoods," and the trial court consistently failed to curb the
prosecutor's excesses. (Id. at p. 821.) Such egregious conduct did not
We also reject defendant's claim that her trial
counsel was ineffective for not objecting to the alleged prosecutorial
misconduct. Because the record does not show the reasons for counsel's
actions, defendant's claim of ineffective assistance is more
appropriately decided in a habeas corpus [28 Cal. 4th 1002]
proceeding. (People v. Mendoza Tello (1997) 15 Cal. 4th 264, 266-267.)
 At the penalty phase, the prosecutor began her
closing argument to the jury with these comments: "The time has now
arrived for us to . . . look exactly at what one human being did to
another. [¶] And I use the term human being in a literal sense because
I'm not so sure that Maureen McDermott really should be categorized as
a human being. [¶] Because human beings have a heart and human beings
have a soul. And nobody with a heart and nobody with a soul could have
done what Maureen McDermott has done in this case."
The trial court overruled defense counsel's
objection that it was improper for the prosecutor to argue that
defendant was not a human being. The court explained that the
prosecutor did not use the word "animal," adding that "it's proper for
a prosecutor to argue what someone did was inhumane or inhuman."
As we have said, we do not condone the use of
opprobrious terms in argument, but such epithets are not necessarily
misconduct when they are reasonably warranted by the evidence. (People
v. Hawkins (1995) 10 Cal. 4th 920, 961; People v. Sandoval (1992) 4
Cal. 4th 155, 180.) Here, the prosecutor's remarks, which the trial
court understood as referring to conduct by defendant that was
inhumane, did not exceed the permissible scope of closing argument in
view of the evidence presented of, among other things, defendant's
deliberate and cold-blooded planning of the killing of Stephen
Eldridge. (See, e.g., People v. Hawkins, supra, at p. 961 [finding no
prosecutorial misconduct in describing the defendant as "coiled like a
snake" and in comparing the act of sentencing defendant to life in
prison as akin to "putting a rabid dog in the pound"]; People v. Sully
(1991) 53 Cal. 3d 1195, 1249 [reference to the defendant as a "human
monster" and a "mutation"].)
Defendant also cites as improper the prosecutor's
comments in closing argument describing defendant as "a mutation of a
human being," a "wolf in sheep's clothing," a "traitor," a person who
"stalked people like animals," and someone who had "resigned from the
human race." Because defendant did not object to these remarks or
request an admonition at trial, she may not now challenge these
statements. (People v. Hill, supra, 17 Cal. 4th at p. 820.) Moreover,
when considered in the context of the planning and execution of [28
Cal. 4th 1003] Eldridge's murder, these references are within the
permissible bounds of argument, and in any event would not have had
such an impact "as to make it likely the jury's decision was rooted in
passion rather than evidence." (People v. Thomas (1992) 2 Cal. 4th
Defendant asserts that the prosecutor committed
misconduct by comparing her to a Nazi working in the crematorium by
day and listening to Mozart by night. We find no misconduct in these
remarks. The prosecutor was not comparing defendant's conduct in
arranging Eldridge's murder with the genocidal actions of the Nazi
regime. Rather, the prosecutor was arguing that human beings sometimes
lead double lives, showing a refined sensitivity in some activities
while demonstrating barbaric cruelty in others. In the context of this
case, where the evidence showed defendant to be both a caring and
competent nurse and a person capable of plotting a brutal murder, the
argument was appropriate.
Finally, defendant claims the prosecutor committed
misconduct by comparing defendant to a germ, a mad dog, and a snake.
These remarks were a permissible form of argument designed to show the
circumstances in which society may be justified in taking one life to
protect the lives of others. (People v. Hawkins, supra, 10 Cal. 4th at
p. 961; People v. Thomas, supra, 2 Cal. 4th at p. 537; People v.
Sully, supra, 53 Cal. 3d at p. 1249.)
2. Alleged Davenport error
 Defendant contends the prosecutor improperly
argued that the absence of statutory mitigating factors made the crime
more aggravated. (See People v. Davenport (1985) 41 Cal. 3d 247,
288-290.) Not so. When the prosecutor discussed the statutory
mitigating factors, she merely noted their absence in this case. She
did not argue that this absence transformed the mitigating factors
into aggravating factors. This argument was proper. (People v. Millwee
(1998) 18 Cal. 4th 96, 152; People v. Hines, supra, 15 Cal. 4th at p.
3. Claim that prosecutor implied
fabrication of evidence by defense counsel
 Defendant complains about a comment the
prosecutor made in closing argument when, after urging the jury not to
extend sympathy to defendant, the prosecutor said: "It is the job of
the defense attorneys in this case to create sympathy during this
phase for Maureen McDermott just like [28 Cal. 4th 1004] in the
guilt phase it's their job to argue that she is not involved in these
crimes." (Italics added.) The trial court overruled defense counsel's
objection that the prosecutor's use of the word "create" implied that
defense counsel would present arguments without any evidentiary basis.
The court found nothing in the prosecutor's comment suggesting
fabrication of evidence by defense counsel for the purpose of
portraying defendant as a person deserving of the jury's sympathy. We
agree that, viewed in context, the prosecutor's comment did not impugn
the integrity of the defense.
C. Instruction on Accomplice
At the guilt phase of the trial, the prosecutor
told the jury that accomplices Marvin and Dondell Lee had received
immunity from prosecution for the murder of Stephen Eldridge, and that
accomplice James Luna agreed to a plea bargain under which, in return
for his truthful testimony at defendant's trial, he was to receive a
sentence of life in prison without possibility of parole for his role
in Eldridge's murder.
At the penalty phase of the trial, over defense
objection, the trial court granted the prosecution's request to
instruct the jury in this language: "You may not consider either the
punishment or absence of punishment for the following accomplices:
James Luna, Marvin Lee and Dondell Lee in determining the appropriate
penalty for the defendant Maureen McDermott in this case." In
discussing the matter with counsel for both parties, the trial court
stressed that the instruction did not preclude defense counsel from
mentioning the sentence or absence of sentence for any of the
accomplices, but the court barred defense counsel from arguing to the
jury that the punishment or the absence of punishment for the
accomplices would justify leniency for defendant by not rendering a
verdict of death against her.
 Defendant contends that this instruction was
improper because: (1) the instruction nullified the trial court's
instruction on sympathy as sympathy for defendant would "naturally" be
aroused by the disparate punishment given the accomplices; (2) this
court has never held that the defense may not ask a jury to show mercy
to a defendant in light of the punishment given the accomplices; (3)
the instruction was fundamentally unfair because the prosecutor at the
guilt phase was allowed to argue the life sentence given to Luna and
the complete immunity granted to both of the Lee brothers were morally
justified; and (4) the instruction made the judgment of death
arbitrary and capricious as well as unreliable in violation of the
Eighth Amendment to the federal Constitution. We disagree.
We have consistently held that evidence of an
accomplice's sentence is irrelevant at the penalty phase because "it
does not shed any light on the [28 Cal. 4th 1005] circumstances
of the offense or the defendant's character, background, history or
mental condition." (People v. Cain (1995) 10 Cal. 4th 1, 63; see also
People v. Hamilton (1989) 48 Cal. 3d 1142, 1183, fn. 26.) Nothing in
the challenged instruction precluded the jury from considering
sympathy for defendant in deciding the appropriate punishment for her
crimes. Nor did the instruction nullify the standard instruction the
court gave on sympathy, which provides that the jury may "consider
sympathy or pity" for a defendant as a mitigating factor.
Citing the high court's decision in Parker v.
Dugger (1991) 498 U.S. 308, defendant argues "evidence of disparity of
sentencing is indeed mitigating evidence and closing argument which
emphasizes the disparity is appropriate." We rejected a similar
contention in People v. Cain, supra, 10 Cal. 4th at page 63: ". . .
Parker did not hold evidence of an accomplice's sentence must be
introduced in mitigation at the penalty phase, or that a comparison
between sentences given codefendants is required. [Citation.] The
Parker court merely concluded a Florida trial judge, in sentencing the
defendant to death, had in fact considered the nonstatutory mitigating
evidence of the accomplice's sentence, as under Florida law he was
entitled to do. [Citation.] Parker does not state or imply the Florida
rule is constitutionally required, and California law is to the
contrary; we have held such evidence irrelevant because it does not
shed any light on the circumstances of the offense or the defendant's
character, background, history or mental condition. [Citations.]"
D. Claim of Cumulative Error
We reject defendant's contention that the
cumulative effect of errors at the penalty phase requires reversal of
the death judgment. As we have shown, there was no error.
E. Automatic Motion to Modify the
 "Under section 190.4, subdivision (e), a
capital defendant is deemed to have automatically applied for a
sentence modification. In ruling on the application, the trial judge
must independently reweigh the evidence of aggravating and mitigating
circumstances and determine whether, in the judge's independent
judgment, the weight of the evidence supports the jury verdict."
(People v. Mincey, supra, 2 Cal. 4th at p. 477.)
Defendant contends the trial court erred in
considering the circumstances of the crimes and the assault on Dewayne
Bell in ruling on the automatic [28 Cal. 4th 1006] motion to
modify the verdict of death. Defendant asserts that the trial court
"did not appreciate the well-settled law regarding the accomplice
corroboration rule." Not so. Defendant's argument assumes that her
earlier contentions at both the guilt and penalty phases regarding
accomplice corroboration were correct, and that the prosecution failed
to present adequate corroborating evidence. We have rejected those
arguments. The trial court's statement on the record when it denied
the motion shows that it independently reweighed the evidence and
determined that the weight of the evidence supported the jury's
verdict. (See People v. Rodrigues, supra, 8 Cal. 4th at p. 1196.) No
more was required.
The judgment is affirmed.
George, C. J., Baxter, J., Werdegar, J., Chin, J.,
Brown, J., and Moreno, J., concurred.
All statutory references are to the Penal Code unless otherwise