Mary Ellen Samuels hired a man to kill
her 40-year-old husband, on December 8, 1988, whom she was divorcing,
in Northridge County, California, and the murder of her husband's
killer (a man of 27 years) on June 1989 in Ventury County. She was
also convicted of hiring two men in June 1989 to kill the hitman.
S.C. Upholds Death Sentence for
Tuesday, June 28, 2005
The California Supreme Court
yesterday unanimously affirmed the death sentence for a San Fernando
Valley woman in the murders of her husband and the man who allegedly
helped her hire the actual killer.
Justice Janice Rogers Brown, writing
for the court, said Mary Ellen Samuels received a fair trial for the
murders of Robert Samuels and James Bernstein. Even if Los Angeles
Superior Court Judge Michael Hoff committed evidentiary or
instructional errors. Brown wrote, they were harmless because the
evidence “overwhelmingly linked defendant to the murders of Robert
Samuels and James Bernstein.”
Mary Ellen Samuels, the justice
said, killed her husband for money, including $240,000 in insurance
proceeds, $70,000 from the Subway sandwich shop that they continued to
co-own, even though they had been in divorce proceedings for 26 months
before Robert Samuels was killed, and $160,000 as a result of
refinancing the family home.
Police and prosecutors called
Samuels the “green widow” after she spent virtually all of that money
in less than a year. A photograph introduced in evidence, taken by a
male companion sometime after the killings, showed Samuels in bed
covered with nothing but currency.
Jurors found her guilty of two
counts each of murder, solicitation, and conspiracy, with special
circumstances of multiple murder and killing for financial gain.
Robert Samuels was shot in the back
of the head with a shotgun in his Northridge home Dec. 8, 1988.
The day after his body was found,
the suspected hit man took out a $25,000 life insurance policy, naming
Samuels’ daughter, Nicole, as beneficiary, according to testimony.
Seven months later, he was dead-strangled, beaten and dumped along the
highway in an isolated Ventura County canyon.
Evidence regarding the lavish
spending was properly admitted, Brown said, as was testimony by
Elizabeth Kaufman, who represented Robert Samuels in the family law
action, that Robert Samuels was having financial difficulties and was
trying to reduce his support payments.
The testimony helped establish the
motive for the murder, Brown said.
Brown also said Hoff did not abuse
his discretion in dismissing a juror, identified only as Audrey W.,
after she wrote to the judge, saying she was unsure she could vote for
a death penalty, and was questioned by the judge about her beliefs.
“[T]he record reflects that Audrey
W. was distressed and volunteered to the court that she could not
follow her oath and instructions to consider imposition of the death
penalty in this case,” the justice said. “She also admitted she lacked
‘courage’ to impose the ultimate punishment if appropriate under all
the circumstances, and that she feared she ‘couldn’t act; on her
obligation to do so. Therefore, after a meaningful inquiry, the trial
court credited Audrey W.’s expressions of her state of mind and
determined there was a demonstrable reality that she was unable to
perform as a juror. We defer to this finding and the underlying
The case is People v. Samuels,
05 S.O.S. 3129.
Judge Sentences Samuels to Death
Courts: Jury's recommendation that the 'green
widow' face the gas chamber for arranging the murders of her husband
and a hit man is upheld. She becomes the state's fifth woman on Death
Row since 1977
By Ann W. O'Neill - Los Angeles Times
September 17, 1994
VAN NUYS — Mary Ellen Samuels, portrayed during her
murder trial as a cold, calculating "green widow" who orchestrated two
murders for money, on Friday became the fifth woman to be sentenced to
death since California resumed capital punishment 17 years ago.
Ten members of the jury that in July had
recommended Samuels' execution packed the courtroom's front rows as
Superior Court Judge Michael R. Hoff formally sentenced Samuels to die
for orchestrating the murders of her husband and the hit man she hired
to arrange the husband's killing.
Later, outside the courtroom, several jurors said
the judge had validated their decision that Samuels, a 47-year-old
grandmother, deserved execution for her crimes.
"We wanted to let people know we were sure," said
juror Karen Hudson, explaining the jurors' presence.
As in all capital cases, the Samuels verdict will
be reviewed by the state Supreme Court, a process that could take at
least two years. An expected appellate issue is whether one of the
Samuels jurors felt pressured by the others when she asked to be
excused during deliberations because she was unable to vote for the
death penalty. She was replaced by an alternate.
Within the next few weeks, Samuels will join two
other former San Fernando Valley women who also have been convicted of
killing for money and are awaiting execution at the state's Central
California Women's Facility in the San Joaquin Valley city of
Two other women on Death Row were sentenced by
judges and juries in Orange and San Bernardino counties.
They are expected to be joined shortly by a sixth
woman, the first from Northern California. A San Mateo County jury
ruled in August that she should be sentenced to death, and a judge is
scheduled to sentence her next month.
During the early stages of her case, Samuels
rejected a plea bargain that would have spared her life, Deputy
District Atty. Janice Maurizi said.
Neither Maurizi nor Samuels' current defense
attorneys were involved with the case at the time.
Samuels was convicted July 1 of multiple counts of
murder with the special circumstances of soliciting murder and
conspiracy to murder.
According to testimony, she first hired a reputed
drug dealer to murder her 40-year-old husband, Robert Samuels, a
motion picture camera assistant who had decided to divorce her
following a three-year marital separation and several unsuccessful
reconciliation attempts. He was bludgeoned and shot to death in his
Northridge home in December, 1988.
Maurizi had argued that Samuels plotted to kill her
husband for two years, after realizing he was "worth more to her dead
than alive." Samuels would have received a $30,000 settlement in the
divorce, the prosecutor said, but as a widow she inherited $500,000 in
real estate, business and insurance proceeds.
Samuels also was found guilty of funneling $5,000
to two other men to kill the original contract killer, 27-year-old
James Bernstein, to prevent him from cooperating with police.
Bernstein was suspected of arranging the murder of Robert Samuels, but
not of being the actual gunman.
Authorities have never made public the identity of
Robert Samuels' alleged gunman, but Maurizi said he is believed to be
Bernstein, who was engaged to marry Samuels'
daughter Nicole, was strangled in June, 1989, by Paul Edwin Gaul and
Darrell Ray Edwards.
Gaul and Edwards testified for the prosecution
against Samuels under plea agreements that spared them the death
penalty. Both are serving sentences of 15 years to life in state
During the year between her husband's murder and
her arrest, Samuels inherited and spent more than $500,000 on a
Porsche, a Cancun condo, vacations, fur coats, rented limousines,
nightclub hopping and custom outfits from a trendy West Hollywood
store called Trashy Lingerie.
Her lavish spending habits inspired police and
prosecutors to dub Samuels "the green widow."
The trial also included testimony about lurid love
letters, male strippers, mother-daughter cheesecake photos, cocaine
sniffing, botched murder schemes and a talking parrot that cursed the
Among the most eye-catching evidence: A photograph
taken of Samuels by a lover within months of the murders, showing her
on a hotel bed, nude and smiling, her body covered with about $20,000
in $100 bills.
"Why did she do it? For the love of money," Susan
Conroy, Robert Samuels' younger sister, told reporters in a courthouse
Conroy, who lives in Corona, had urged Hoff to
impose the death penalty upon her sister-in-law, who grew up with
Conroy and her brother in Santa Ana.
Conroy said her brother, who worked on films such
as "The Color Purple," "Heaven Can Wait" and "Lethal Weapon 2," still
is "missed very much by his family, his friends and his profession."
"He was taken away from us in such a brutal
fashion, and for only one reason. Greed. She must now fact the
consequences of her actions."
Neither Samuels nor her two defense attorneys,
Philip Nameth and Josh Groshan, said anything to the judge before
sentencing. The defense had sought a new trial, alleging misconduct on
the part of the prosecutor and some jurors, but Hoff denied that
appeal Friday, immediately before passing sentence.
Samuels also declined to speak with the probation
officer who prepared her sentencing report, except to make a single
"The defendant did wish the court to know that
although she has been depicted as a 'green widow' who would do
anything for money, she has continually refused to tell her story to
the tabloids," Deputy Probation Officer Richard A. Richardson wrote in
Announcing the results of his independent review of
the case, the judge declared that the jury's guilty and death verdicts
were "clearly supported by the evidence," which he described as
"overwhelming . . . extensive, vivid, graphic and most compelling."
"It clearly demonstrated that the defendant planned
the murders for a long time, and had the ability to convince others to
do her dirty work. . . . The defendant involved many people, even her
own teen-age daughter and her daughter's friends."
Recapping testimony from the penalty phase of
Samuels' trial, Hoff found scant evidence of any positive character
traits to counter the gravity of her crimes.
She had a normal childhood, the judge observed,
made many family trips to Disneyland, dearly loved a pet dog named
Patches, taught a stepdaughter to bake cookies, and was considered a
"den mother" and Bible class leader at the County Jail for women,
where she has been held for the past four years.
Gloria Pina, who befriended Samuels in jail and
attended the trial daily, crossed herself as Samuels was led from the
courtroom by several deputies. A man, who told reporters he was a
former boyfriend, strained to catch her eye, but Samuels did not
Samuels' daughter, Nicole, who defied her own
lawyer's advice and testified on her mother's behalf during the trial,
did not attend the sentencing.
Maurizi said prosecutors consider Nicole Samuels
Moroianu, now 26 and the mother of a young son, to be an unindicted
co-conspirator. Prosecutors still are contemplating filing charges
against her in the deaths of her stepfather and fiance.
"There's no statute of limitations for murder,"
Both Samuels and her daughter denied plotting to
kill anyone and claimed on the witness stand that Robert Samuels had
But several of the daughter's high school friends
testified that she had asked them at school where she could find a gun
to kill her stepfather.
When she arrives in Chowchilla, Samuels will be
joining a small group of women whose ranks have slowly increased
during the past five years. As of Sept. 1, there were 390 inmates
under sentence of death, four of them women, the state Department of
Maureen McDermott, a nurse convicted of killing a
roommate to collect a $100,000 mortgage insurance policy, also
received a death sentence from a Van Nuys jury in 1990, and was the
first woman on Death Row.
Two years later, a Downtown jury sentenced West
Hills widow Catherine Thompson to be executed for murdering her
mechanic husband so she could collect a $400,000 insurance policy.
The others are Maria del Rosio Alfaro, an admitted
drug addict who was sentenced to die by an Orange County jury for
stabbing a 9-year-old girl to death during a burglary, and Cynthia
Lynn Coffman, sentenced in both Orange and San Bernardino counties to
die for the abduction-murders of two women during a cross-county crime
spree with her tattooed biker boyfriend.
Only four women have legally been put to death by
the state since 1893. But 503 men have been executed, the majority of
them by hanging.
Since the capital punishment laws were revised in
1977, two men have been executed in California: Robert Alton Harris
and David Edwin Mason, who was executed a year ago.
The first woman to die in California's gas chamber
was Juanita Spinelli in 1941. The most recent was Elizabeth Ann
Duncan, a 59-year-old Ventura County woman convicted of hiring two men
to kill her daughter-in-law. She died in the gas chamber at San
Quentin State Prison on Aug. 8, 1962.
Jury Urges Execution of Woman
Courts: Mary Ellen Samuels, who arranged slayings
of her husband and his killer, will be sentenced in September
By Ann W. O'Neill - Los Angeles Times
July 22, 1994
The Porsche, the parties, and the Cancun beaches
she savored as a newly rich widow now only a memory, Mary Ellen
Samuels sat stunned Thursday as a jury recommended that she be
executed for orchestrating the murders of her estranged husband and
the man she hired to kill him.
A hush fell over the packed Van Nuys courtroom as
the jury delivered the verdict.
Samuels, 45, did not change expressions as a court
clerk read the verdict of the jury--reached after two days of
deliberations. But she was unable to respond when the judge asked her
a procedural question, and her eyes filled with tears as she was
escorted from the courtroom.
Superior Court Judge Michael R. Hoff scheduled
sentencing for Sept. 16. If he carries out the jury's recommendation,
Samuels will join four other women on California's Death Row. All have
been sentenced by Southern California juries, one of them in the same
Van Nuys courthouse where Samuels was tried.
As they left the courtroom, members of the jury
used words such as "cold," "selfish," "uncaring" and "evil" to
"I thought she was trash," jury foreman Nick
Catran-Whitney said. "She had no values."
Samuels was dubbed the "green widow" by police and
prosecutors because she spent her husband's $500,000 estate in less
than a year after he was murdered.
She was convicted July 1 on two counts of
first-degree murder, and the jury found special circumstances that
warranted the death penalty--that she orchestrated multiple murders
and that she killed for financial gain.
Robert Samuels, a 40-year-old motion picture camera
assistant who worked on the films "Lethal Weapon" and "Heaven Can
Wait," was shot in the back of the head with a shotgun in his
Northridge home Dec. 8, 1988.
The day after his body was found, the suspected hit
man took out a $25,000 life insurance policy, naming Samuels'
daughter, Nicole, as beneficiary. Seven months later, he was
dead--strangled, beaten and dumped along the highway in an isolated
Ventura County canyon.
Trial testimony was lurid. Tales of murder and
treachery poured forth from witnesses, stories involving steamy love
letters, shopping sprees, limousines, cocaine parties, hit men,
insurance checks, fast cars, male strippers, mother-daughter
cheesecake photos and a talking pet parrot who cursed the police.
A key prosecution exhibit was a photograph of
Samuels taken by a lover less than nine months after her husband's
slaying, on a hotel bed in Cancun, her naked body covered only by
$20,000 in cash.
Deputy Dist. Atty. Jan Maurizi alleged that greed
was Samuels' motivation in a crime "so bizarre no fiction writer could
write it. She almost got away with the perfect murder."
Samuels arranged to have her husband killed when
she learned he planned to divorce her, Maurizi said.
As his ex-wife, Samuels would have received a
$30,000 settlement and monthly alimony payments of $1,100, according
to testimony. But as a widow, she inherited $500,000--including her
husband's house, his Subway sandwich shop and the proceeds from
several insurance policies.
The defense had argued that Samuels was a victim of
domestic abuse and that Nicole Samuels-Moroianu, who testified on her
mother's behalf, had been sexually abused from age 12 by Robert
Samuels, her stepfather.
"It's not 'Leave It to Beaver.' It's not 'Make Room
for Daddy.' This was a dysfunctional family," defense attorney Phil
Nameth had told the jury.
But jurors rejected that argument, saying the
defense offered no proof to support the accusations by Samuels and her
One male juror described Samuels' testimony as "a
pack of lies."
After her husband's death, Samuels testified, she
used the insurance money to pay bills, and her lifestyle did not
change. But prosecution testimony showed that Samuels defaulted on her
mortgage payments, paid cash for a new Porsche, rented limousines for
bar-hopping jaunts, and lent money to her friends. She spent thousands
on trips to Las Vegas and Cancun, and on fur coats and custom outfits.
She threw a huge birthday party for herself at the Knollwood Country
Club four months after her husband's slaying.
Robert Bernstein, the 27-year-old suspected hit
man, was slain because Samuels feared that he would succumb to police
pressure and implicate her, Maurizi said. Bernstein died believing he
was engaged to Samuels' daughter.
As they filed out of the courtroom, jurors paused
to embrace Robert Samuels' sister, Susan Conroy, who sported his
portrait on a large button she had pinned to her sweater. Conroy
attended the four-month trial almost daily, and said she had trouble
maintaining her composure as Samuels branded her murdered brother a
wife-beater, a drunk and a child molester.
"I'm delighted," at the death sentence, Conroy
said. "She gave the exact same sentence to my brother. I think it's
exactly what she deserves."
Samuels' death sentence will be appealed
automatically and reviewed by the state Supreme Court. Among the
issues that probably will be raised is the dismissal Wednesday of a
juror after she wrote to the judge, saying she was unsure she could
vote for a death penalty. The defense is expected to raise the
possibility that the woman was pressured by other jurors into asking
to be excused. She was replaced by an alternate.
Defense attorney Josh Groshan said he found the
death verdict grossly excessive.
Some jurors expressed amazement at testimony that
Samuels could openly solicit--and find--willing killers in the same
San Fernando Valley bars and restaurants they frequent.
"Whenever someone turned her down, she'd just go to
someone else," Catran-Whitney said.
Some jurors said they found it offensive that
Samuels summoned her ailing, elderly parents to the courtroom to beg
for her life, even though she rarely visited them and never told them
her husband had left her a large estate.
And they laughed at a defense attorney's
description of the murder plots as a midlife crisis for Samuels.
"You'd better look out, then. There's a whole lot
of us who could go ape at any time," juror Karen Hudson joked.
Samuels Is Convicted on 2 Counts of Murder
Trial: The woman is found guilty of arranging her
husband's slaying in Northridge and his executioner's death seven
By Ann W. O'Neill - Los Angeles Times
July 2, 1994
Mary Ellen Samuels, dubbed the "Green Widow"
because she spent the $500,000 estate she inherited from her slain
husband at a dizzying pace, was convicted Friday of two counts of
first-degree murder for arranging the husband's December, 1988,
shooting death--and his executioner's strangulation death seven months
Samuels, who had denied from the witness stand that
she was involved in either killing, leaned heavily against defense
attorney Phil Nameth but showed no other reaction as the jury returned
the verdicts, reached after 18 days of deliberations.
But the investigating officer, who spent the final
years of his career building the case against Samuels, broke down and
cried. Sitting just a few feet away from her former sister-in-law,
Susan Conroy also wept.
"You know what people say about black widows? Well,
she's a green widow. It's the same thing as a black widow, which eats
its mate when he's no longer useful to her," retired Los Angeles
Police Detective George Daley said.
"She was a very cunning predator."
The seven men and five women on the jury will
return to court July 11 to determine whether Samuels, 45, should
receive the death penalty or spend the rest of her life in prison for
the murders of Robert Samuels, 45, a Hollywood camera operator's
assistant, and James R. Bernstein, 27, a reputed drug dealer.
"She's shocked," Nameth said of Samuels' reaction
to the verdict. "Now, it's time to get down to the business of saving
Besides the first-degree murder convictions--which
included the special circumstances of multiple murders and murder for
financial gain--the jury convicted Samuels of two counts of conspiracy
and two counts of solicitation of murder.
Jurors deadlocked on two other counts--attempted
murder and solicitation--and on a special circumstance that the hit
man was slain for financial gain. Superior Court Judge Michael R. Hoff
declared mistrials on those counts.
During the lengthy trial, which unfolded like a
pulp novel, Deputy Dist. Atty. Jan Maurizi alleged that Samuels
plotted to have her husband killed when she realized "he was worth
more to her dead than alive."
As a divorcee, Samuels would have received a
settlement worth about $30,000. But as a widow, she inherited
$500,000. She spent nearly all the money during the 13 months she was
under investigation--on a Porsche, a Cancun condo, a country club
birthday bash, rented limousines, fake fur coats, trips to Las Vegas
and custom-made outfits from a store called Trashy Lingerie.
Yet she didn't pay for her husband's headstone,
defaulted on her mortgage and failed to pay debts rung up by the
family's Sherman Oaks sandwich shop, according to testimony.
The former Mary Ellen Gurnick, known by the
nickname "Betty Boop" as she grew up just a few doors away from her
future husband in Santa Ana, smiled and winked at spectators as the
trial began, but appeared haggard as testimony drew to a close two
Many of the key prosecution witnesses once were
among Samuels' closest confidants. They described Samuels' search for
a hit man and several botched attempts on her husband's life. Some of
the former friends testified under grants of immunity from prosecution
for their roles in the murder schemes.
"The sad part of this case is there were so many
victims" besides the two men slain, Maurizi said. "Just about anybody
whose life she touched became a victim."
Robert Samuels, who worked on the films "Lethal
Weapon" and "Heaven Can Wait," was ambushed in his Northridge home
Dec. 8, 1988, by an intruder who hit him over the head, then shot him
with a 16-gauge shotgun, firing through a pillow. Samuels and her
daughter, Nicole, then 18, told police they discovered the body when
they dropped off a pet schnauzer for the weekend.
Bernstein, who carried a business card identifying
himself as a "specialist," was strangled to death on June 27, 1989,
and his body was dumped in remote Lockwood Canyon, in Ventura County.
According to testimony, the killers drove Samuels' black Toyota Celica
The letters on the car's vanity plate were NAST
VXN, for "nasty vixen."
The confessed killers, Paul Edwin Gaul and Darrell
Ray Edwards, testified for the prosecution under plea bargains. Under
the arrangement, both pleaded guilty to second-degree murder and
received sentences of 15 years to life in prison. Gaul testified that
he drank 30 to 40 beers the day they killed Bernstein.
Nameth suggested that Samuels was framed by an
overzealous detective and "fair-weather friends" who accused her to
spare themselves from prosecution for their own roles in the murders.
Those witnesses painted an unflattering portrait of
Samuels as a crass woman who hired male strippers for her daughter's
18th birthday and flirted with police the night she discovered her
"I like bald guys," she told one detective, rubbing
his hairless head, according to testimony. Later, however, she was not
so friendly toward police. Several witnesses testified that she taught
a pet parrot to make profane remarks about detective Daley.
Her trial played like a movie of the week, tracing
a story line of puppy love among childhood neighbors that soured into
deceit and betrayal.
According to testimony, Mary Ellen and Robert
Samuels grew up a block apart, and he had always been sweet on her.
They met again in late 1979, following her failed first marriage, and
wed in 1980. She left him six years later, leaving a "Dear John" note
on the kitchen table, complaining that the marriage had gone "stale."
"No matter what happens or what you think of me now
or later, I will still always care for you, we just can't live
together," she wrote.
Samuels and her daughter testified that Robert
Samuels abused them, but their stories were uncorroborated by
evidence, and she did not include abuse among her list of complaints
in the letter.
Until two months before his death, Robert Samuels
hoped they might reconcile, confiding to a friend that he was reading
the self-help book "How to Save Your Marriage," according to
But by then, testimony showed, Samuels and her
daughter already were searching for someone to kill him. Several of
Nicole's high school friends testified that she had asked if they knew
where she could find a gun to kill her father.
Within months of her husband's death, Samuels took
up with a new boyfriend, a concert promoter named Dean Groover who
photographed her in a Cancun hotel room, wearing only $20,000 in cash
and a smile. The photograph became a memorable piece of prosecution
Samuels denied she'd lived in the fast lane after
her husband died. She testified that she "paid bills" with the
insurance money, denying that her lifestyle changed. Later she
conceded, "Naturally, I got to do more things."
Nicole Samuels-Moroianu also testified on her
mother's behalf, even though prosecutors consider her an unindicted
co-conspirator. She said Robert Samuels raped her, beginning when she
During one court recess while Samuels-Moroianu was
on the stand, the defendant smiled and mouthed the words, "I love
you," to her daughter.
"I love you more," Samuels-Moroianu responded.
Maurizi said prosecutors are still considering
whether to file charges against the daughter.
Supreme Court of California
People v. Samuels
The PEOPLE, Plaintiff and Respondent,
Mary Ellen SAMUELS, Defendant and Appellant.
June 27, 2005
Joel Levine, under appointment by the Supreme
Court, for Defendant and Appellant.Bill Lockyer, Attorney General,
Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Kyle S.
Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Mary Ellen Samuels of
the first degree murders of Robert Samuels and James Bernstein,
soliciting the murders of Robert Samuels and James Bernstein, and
conspiring to murder Robert Samuels and James Bernstein. (Pen.Code,
§§ 187, subd. (a), 653f, subd. (b), 182, subd. (a)(1); hereafter all
statutory references are to the Penal Code unless otherwise
indicated.) The jury found true the financial gain special
circumstance as to the murder of Robert Samuels, the multiple-murder
special circumstance, and the allegation that a principal in the
murder of Robert Samuels had used a firearm. (§§ 190.2, subd. (a)(1),
(3), 12022, subd. (a)(1).)
The jury returned a death verdict for each murder.
The trial court denied defendant's motions for a new trial and to
reduce the penalty verdict. The court imposed a death sentence.
This appeal is automatic. (§ 1239, subd. (b).)
We affirm the judgment in its entirety.
I. Statement of Facts
A. Guilt Phase
Defendant was married to Robert Samuels. On
October 31, 1986, defendant filed for divorce. Even after the
divorce proceedings were initiated, defendant and Robert Samuels were
cordial, and defendant continued to work in the Subway restaurant she
and Robert Samuels owned. However, by November 1988, just before his
murder, Robert Samuels was depressed and had a less than friendly
relationship with defendant.
On October 31, 1988-approximately two months before
he was killed-Robert Samuels went to his divorce attorney, Elizabeth
Kaufman, and signed a document seeking changes to his divorce
agreement. Robert Samuels wanted to run the Subway restaurant
because he was unemployed and felt he would be better at running the
business. He also wanted to reduce spousal support payments below
the $1,200 per month level because he was no longer able to pay that
amount. The modification was never filed because Kaufman was waiting
for Robert Samuels to complete a portion of the paperwork.
1. The Solicitation and Murder of Robert Samuels
Beginning in 1987, defendant solicited people to
murder Robert Samuels on numerous occasions.
Anne Hambly, defendant's friend, testified
defendant told her that after several attempts to find someone to kill
Robert Samuels had failed, defendant was able to get James Bernstein
to agree to commit the murder. Bernstein was dating defendant's
daughter, Nicole Samuels. Bernstein was apparently angered when
defendant told him that Robert Samuels had abused Nicole. A month
before Robert Samuels was murdered, Bernstein said he wanted Samuels
“taken care of permanently” because he was a child molester and
batterer. He asked his employer, Charles Mandel, if he knew anyone
who could “take care of it.” Mandel provided Bernstein with the
phone number of Mike Silva. Also, during November and December 1988,
Bernstein asked a friend who owned a gun shop if he could get some
On December 7, 1988, defendant told Anne Hambly
that Robert Samuels was dead and that she planned to “discover” his
body in two days. On December 8, 1988, Nicole Samuels called her
friend, David Navarro, and said “it's done” in reference to Robert
On December 9, 1988, the Los Angeles Fire
Department responded to a call from Robert Samuels's home. Robert
Samuels was found dead. He had been dead for over 12 hours and was
killed by a shotgun blast fired into his head from close range.
Samuels also suffered a blunt force trauma to his head that was a
contributing factor to his death.
Defendant and Nicole Samuels were present when the
police arrived. Defendant and Nicole worked to make it appear that
there had been a struggle in the house. Defendant told the police
she discovered Robert Samuels's body while dropping off the family's
dog. Defendant sought to bolster this story by leaving messages on
Samuels's answering machine regarding her plans to drop off the dog.
Anne Hambly testified that she also went to Robert
Samuels's house the night he was found dead. Referring to the murder
of Robert Samuels, defendant told Hambly that she could not believe
that “it had finally happened” and that she had given Bernstein money
six months earlier to arrange the killing. Defendant feared being
caught and was also afraid to speak because she thought the police had
“bugged” her car, purse, and home.
At trial, the prosecution introduced evidence
showing defendant collected on several insurance policies after Robert
Samuels's death. The total amount of these policies was in excess of
$240,000. In addition, the prosecution introduced evidence that a
sandwich shop owned by Robert Samuels and defendant was sold in early
1989, and defendant kept the proceeds of approximately $70,000.
Additional evidence introduced by the prosecution showing how
defendant benefited from Robert Samuels's death included: (1)
defendant kept a car owned by Robert Samuels; (2) she received
approximately $6,000 in uncashed payroll checks of Robert Samuels;
and (3) she refinanced the family home after Robert Samuels's death,
thereby gaining possession of an additional $160,000.
Defendant began to live a lavish lifestyle after
Robert Samuels died. In addition, defendant made several
incriminating statements after his death. For example, when asked by
Anne Hambly who Mike Silva was, defendant told Hambly that Silva was
hired by Bernstein to kill Robert Samuels. Defendant also told a
friend, Marsha Hutchinson, that if she were not careful in her divorce
proceedings, then Hutchinson's husband might decide to put a hit on
her. Defendant also spoke and acted in a manner that led Bernstein's
older brother and sister-in-law to believe that defendant had Robert
James Bernstein also made incriminating statements
after Robert Samuels's death. He told his employer, Charles Mandel,
that Robert Samuels's murder had been taken care of and that he
received money from defendant to pay Silva for his part in the crime.
2. The Solicitation and Murder of James
On June 27, 1989, James Bernstein was killed. The
circumstances leading to his murder are as follows: David Navarro and
James Bernstein met in February 1989. Navarro testified he met
Bernstein through Nicole Samuels, who was a friend of Navarro's
Navarro and Bernstein became friends and they sold
drugs together until Bernstein disappeared in June 1989. Bernstein
and Navarro were together once when Bernstein received a page, called
the number he had been sent, and then went to meet Mike Silva.
Bernstein referred to Silva as the “hit man.”
Navarro made an anonymous call to the police and
provided them with the phone number Bernstein received via the page
and Mike Silva's name. Navarro also provided the names of defendant
and Bernstein to the police. Los Angeles Police Officer John Birrer
received Navarro's call on May 1, 1989. After Navarro provided this
information, the police served search warrants. Police searched
Bernstein's apartment on May 16, 1989, in connection with the murder
of Robert Samuels. The police also searched the victim's house.
In late May or early June 1989, Bernstein told a
friend, Rennie Goldberg, he was feeling remorseful and frightened of
being caught. He wanted to confess his involvement in Robert
Samuels's murder. By June 1989, Bernstein had become so afraid that
he wanted to move out of the area. By the end of June 1989,
Bernstein was ready to go to the police and admit what he knew. He
told Navarro that he and Mike Silva had killed Robert Samuels and that
defendant had paid them for it. He repeatedly said that defendant
had solicited him to murder Robert Samuels. Bernstein stated that
defendant wanted Robert Samuels killed for insurance money, and that
one person had been paid but did not do the job so she approached
Bernstein to see if he would do it. On June 26, 1989, Bernstein told
his older brother that he was frightened and that he was the only
person who could “burn Mary Ellen.”
After Robert Samuels's murder, defendant told Anne
Hambly that she wanted Bernstein killed because she thought he would
go to the police and disclose her involvement in the murder. In
March or April of 1989, Anne Hambly introduced Paul Gaul to defendant.
Gaul was Hambly's live-in boyfriend. Hambly believed Gaul could
help defendant with her trouble with Bernstein. Defendant and Gaul
had several conversations about Robert Samuels's death. In the first
conversation, defendant mentioned she received insurance money from
Robert Samuels's death and that Bernstein was blackmailing her for her
involvement in the murder. In the second conversation, defendant
repeated the substance of the first conversation and added that she
wanted Robert Samuels killed because he had abused Nicole and she
wanted insurance money. During a third conversation, defendant
mentioned a failed attempt to kill Robert Samuels. Defendant also
said that she had paid for Robert Samuels's murder, but that the
murder was done sloppily and that she had not expected it to be done
in her house with blood everywhere.
Even in their first conversation, Gaul came to
believe that defendant wanted his help in killing Bernstein. Gaul
testified that it was not until a later conversation that defendant
expressly asked Gaul for help. She told Gaul that she wanted
Bernstein killed because he was blackmailing her. She also told
Gaul that Bernstein was selling drugs to children.1
Defendant told Gaul that she would pay for Bernstein to be killed.
Defendant spoke with Gaul five to 10 times about killing Bernstein,
discussing payment two to four times.
Prior to Bernstein's murder, defendant called Gaul.
She told Gaul that she was taking a trip to Cancun and wanted
Bernstein murdered before she returned. Defendant agreed to pay Gaul
$5,000 for killing Bernstein. Another form of payment was that
defendant would forgive a loan made to Anne Hambly. To assist him in
killing Bernstein, Gaul solicited Darryl Ray Edwards. Edwards agreed
to kill Bernstein for $5,000.
In June 1989, at defendant's request, Bernstein
moved in with Anne Hambly and Paul Gaul. When he moved out of his
apartment, Bernstein told his apartment manager that he was moving out
of town to avoid the police. Bernstein moved in with Hambly and Gaul
because he was afraid the police were closing in on him.
On June 27, 1989, Paul Gaul and Darryl Ray Edwards
killed James Bernstein. On that morning, Gaul met Edwards at a bar
and they started drinking. Their plan to murder Bernstein involved
getting Bernstein to go up to an area near Frazier Park. Gaul and
Edwards planned to tell Bernstein that Edwards knew some drug dealers
in Frazier Park and that Gaul, Edwards, and Bernstein would go and rob
The two men separated, planning to meet at Anne
Hambly's later that day. Gaul returned to Hambly's house around 5:00
or 6:00 p.m. Edwards arrived approximately two hours later.
Bernstein was at Hambly's house. Gaul, Edwards, and Bernstein talked
about going to rip off drug dealers. Although he did not initially
agree to the plan, Bernstein was curious and wanted more information.
Subsequently, Gaul, Edwards, and Bernstein left Hambly's house in
defendant's car. Gaul was the driver. After approximately 40
minutes, they ended up on an isolated dirt road. However, it turned
out to be a private driveway and several dogs came running at the car.
Edwards told Gaul to immediately get out of the driveway, so Gaul
placed the car in reverse and drove away. About five to 10 minutes
later, Edwards yelled “Now” or something similar. Gaul slammed on
the car's brakes, put the car in park, and turned off the headlights.
Edwards grabbed Bernstein's neck from behind and began to choke him.
Bernstein began to scream, but Gaul twice hit him in the side of the
head or neck to keep him quiet. Gaul accidentally hit Edwards, which
loosened Edwards's grip on Bernstein. Bernstein opened the car door
and jumped out. Edwards and Gaul got out of the car and chased
after Bernstein. Edwards caught Bernstein and wrestled him to the
ground. Gaul held Bernstein's legs, while Edwards choked him.
Bernstein asked, “Why?,” and Gaul said that it was because he talked
too much. Gaul stopped holding Bernstein's legs and joined in with
Edwards. Bernstein struggled for three to five minutes, then
stopped. Gaul put his ear to Bernstein's chest to listen for a
heartbeat, but did not hear one. An autopsy on Bernstein confirmed
that he had been strangled to death.
Gaul and Edwards placed Bernstein's body in the
backseat of the car. Edwards drove to a dark and isolated area.
During the drive to this area, Gaul took off Bernstein's belt, which
had the name “James” on it, and threw it over a cliff. Gaul also
threw Bernstein's pager over an embankment.
When Edwards stopped the car, he and Gaul pulled
Bernstein's body out of the backseat and put it over an embankment.
Gaul and Edwards then drove back to Anne Hambly's house. Upon
returning to Hambly's house, Gaul, Edwards, and Hambly discussed what
had happened. Gaul and Edwards told Hambly that they had killed
Anne Hambly made a phone call to defendant, who was
in Cancun, Mexico, at the time, and let her know that Bernstein was
dead. Hambly did so by using a “code” that she and defendant had
agreed to. The code involved Hambly's calling defendant to say that
Hambly had spoken to her sister. This statement was a signal to
defendant that Bernstein was dead and that it was safe for defendant
to return from Mexico.
3. Defense Case
The defense case centered on defendant's testimony
and the testimony of her daughter, Nicole. Defendant testified that
her six-year marriage to Robert Samuels had been stormy. Defendant
claimed Samuels developed a drinking problem and was abusive when he
Defendant testified that she moved out of her
residence with Robert Samuels on October 3, 1986, because of Samuels's
drinking. According to defendant, during the separation period, she
and Samuels were able to generally agree on subjects, such as custody,
child and spousal support, as well as the operation of the couple's
Subway restaurant. Defendant testified that she considered
reconciling, but decided not to when she learned that Samuels had
physically and sexually abused Nicole.
Despite learning that Robert Samuels had physically
and sexually abused Nicole, and physically abused her, defendant
testified she never wanted to kill Samuels and never asked anyone else
to do so. She also denied involvement in any physical attacks on
Samuels, including an incident where she allegedly struck Samuels
with a pipe. She also testified that her financial situation in 1987
was fine, even after her separation from Samuels.
With respect to Robert Samuels's murder, Nicole
Samuels denied any involvement in a plot to murder him. She
testified that Robert Samuels physically and sexually abused her and
that she moved out of her family's home because of this abuse.
Nicole stated that she did not tell her mother of the abuse until
after the couple had separated because she was afraid that the couple
would separate for this reason. Although she testified that she told
several people, including friends and a school counselor, about these
incidents, she never reported the abuse to law enforcement officials.
With respect to the murder of James Bernstein,
Nicole testified that she and Bernstein met at a party in the
beginning of 1986. Bernstein would subsequently visit the Subway
restaurant where Nicole worked and she and Bernstein developed a
friendship. For her part, defendant testified that she started to
socialize with Bernstein toward the end of 1986. With respect to the
prosecution's allegation that she was concerned with Bernstein
speaking to the police about Samuels's murder, defendant testified she
was not concerned because she had nothing to do with the murder. She
stated that Bernstein never threatened or blackmailed her and that she
did not want him dead, let alone conspire to have him killed.
Defendant testified she felt terrible upon learning Bernstein was
B. Penalty Phase
Susan Conroy, Robert Samuels's sister, was the only
witness the prosecution presented during the penalty phase. She
testified with respect to victim impact evidence and described her
good relationship with Robert Samuels.
Defendant offered the testimony of several
witnesses who attested to her good character.
Myrna Aaron, an outreach worker for the Jewish
Committee for Personal Service, visited defendant on an ongoing basis.
Aaron found defendant to be a sensitive person and able to cheer up
others despite her own circumstances. Aaron testified that defendant
would be an “invaluable source of support” for other inmates if she
were allowed to live.
Dawn Goodall, a fellow county jail inmate of
defendant, testified that defendant was a “wonderful woman” who would
do much more for others if allowed to live. She testified that
defendant never exhibited a temper and tried to break up altercations
Jacquelyne Gunn was defendant's fellow inmate for
almost two years. Gunn testified that defendant would give Bible
study classes almost every night. Gunn testified that when she could
not afford to buy an item while in prison, defendant would buy it for
her with no expectation of anything in return. Gunn also stated that
defendant helped sick inmates by giving them soup, water, and warm
towels. Gunn confirmed that defendant would help defuse altercations
between inmates. Gunn also testified about an incident in prison
when she received bad news and became suicidal. Gunn called for
defendant, and her presence spiritually comforted and made Gunn feel
safe. Gunn said that defendant aligned herself with weaker inmates
and her friends were all people of color. Gunn asked the jury to let
Defendant's childhood friend, Barbara Favilla,
testified that defendant was fun to be with and easy to get along
with. Favilla testified that she wanted to see defendant get a life
Defendant's first husband, Ronnie Lee Jamison,
testified about their marriage. Citing their good marriage and her
redeeming values, Jamison asked the jury to spare defendant's life.
Stephanie Hughes, defendant's former stepdaughter,
testified that defendant had treated her as if she were her own
daughter and that they had a great relationship. Hughes also asked
the jury to allow defendant to live.
Ellen Gurnick, defendant's mother, testified that
she had throat cancer and would be going into surgery the next day.
She testified that defendant had a normal childhood, was a popular
girl, and a good enough actress to get the lead part in a high school
drama production. Although Mrs. Gurnick had not seen defendant much
since Robert Samuels's death, she testified that she and defendant
frequently communicated via the telephone and mail. She asked the
jury to spare defendant's life.
Alexander Gurnick, defendant's father, testified
about defendant's numerous friendships as a girl. He recalled
defendant babysitting for her younger brother while he and his wife
worked. He asked the jury to let defendant live.
In addition, three sheriff's deputies testified on
defendant's behalf. Timothy Murakami, Gary Mann, and Dennis Ransom
testified that they had experienced no problems with defendant during
her incarceration, although on cross-examination, Murakami testified
he believed defendant was a manipulative person.
A. Pretrial Issues
1. Denial of Pitchess Requests
Defendant moved for discovery of the personnel
records for former Police Officer James Nowlin and Detective George
Daley, which the trial court denied.
Evidence Code sections 1043 and 1045, which
codified our decision in Pitchess v. Superior Court (1974) 11 Cal.3d
531, 113 Cal.Rptr. 897, 522 P.2d 305, allow discovery of certain
relevant information in peace officer personnel records on a showing
of good cause. Discovery is a two-step process. First, defendant
must file a motion supported by declarations showing good cause for
discovery and materiality to the pending case. (City of Santa Cruz v.
Municipal Court (1989) 49 Cal.3d 74, 82, 260 Cal.Rptr. 520, 776 P.2d
222.) This court has held that the good cause requirement embodies a
“relatively low threshold” for discovery and the supporting
declaration may include allegations based on “information and belief.”
(Id. at p. 94, 260 Cal.Rptr. 520, 776 P.2d 222.) Once the defense
has established good cause, the court is required to conduct an in
camera review of the records to determine what, if any, information
should be disclosed to the defense. (Evid.Code, § 1045, subd. (b).)
The statutory scheme balances two directly conflicting interests:
the peace officer's claim to confidentiality and the defendant's
compelling interest in all information pertinent to the defense.
(City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53, 19
Cal.Rptr.2d 73, 850 P.2d 621.) Here, the trial court denied
defendant's Pitchess motions. Defendant claims the court erred in
denying the motions and this error also violated her constitutional
rights under the Fifth, Sixth, and Fourteenth Amendments of the United
a) James Nowlin's records
Although James Nowlin was not involved in the
murder investigation of Samuels or Bernstein, defendant sought
Nowlin's records from the Costa Mesa Police Department where Nowlin
had been a reserve police officer. Defendant asserted that Nowlin
was violent and unstable and had a motive to kill Robert Samuels. In
support of her request, defendant alleged numerous facts including:
(1) Nowlin was initially investigated as a suspect in Samuels's death
because Samuels had a brief sexual relationship with Nowlin's
estranged wife and Nowlin was known to be jealous and violent; (2)
Nowlin owned shotguns and had been suspended from the Costa Mesa
Reserve Police Officer Program because he fired a handgun during an
argument with his wife and then lied about the incident; (3) a former
policeman reported that Nowlin's girlfriend had told him that Nowlin
said he had done “something very bad and that he could go to prison
for a long time,” and that Nowlin had asked the girlfriend to give him
an alibi; (4) Nowlin reconciled with his wife on the day that
Samuels's body was discovered.
The trial court denied the motion, holding that
defendant failed to lay a proper foundation under Pitchess. Here,
even if the trial court erred because defendant made a showing of good
cause in support of his request (see Warrick v. Superior Court (2005)
35 Cal.4th 1011, 29 Cal.Rptr.3d 2, 112 P.3d 2), such error was
harmless in light of the extensive evidence linking defendant to the
murders of Samuels and Bernstein. (People v. Watson (1956) 46 Cal.2d
818, 836, 299 P.2d 243.)
b) Detective Daley's records
George Daley was the homicide detective assigned to
the Samuels case. With respect to Daley, defendant claims his files
“might have led to discovery of prior instances of improper sexual
advances, as the defense asserted he had made toward defendant.
Moreover, the request sought to examine prior instances of dishonesty
on any matter, which might have detracted from Daley's credibility.”
The trial court reviewed Daley's records in camera and concluded there
was nothing to disclose. Regarding Daley's file, the records were
made part of the record on appeal but were sealed, and appellate
counsel has not been permitted to view them. We have independently
examined the materials and conclude the trial court did not abuse its
discretion by refusing to disclose the contents of Daley's personnel
files. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039, 130
Cal.Rptr.2d 672, 63 P.3d 228.)
2. Failure to Conduct Individual Sequestered
The trial court rejected defendant's request to
question each juror individually on the issue of the death penalty.
Defendant contends that as a result the trial court's voir dire did
not allow the parties to make intelligent decisions about whether a
prospective juror was qualified to sit as a juror. Defendant claims
this error violated her constitutional rights under the Sixth and
Fourteenth Amendments of the United States Constitution.
Contrary to defendant's contention that the trial
court improperly restricted voir dire, the record shows the trial
court's voir dire was adequate. The trial court asked the
appropriate death-qualifying questions required by Witherspoon v.
Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 and
Wainwright v. Witt (1985) 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841,
lengthy juror questionnaires were completed, and both sides had the
opportunity to question each prospective juror. There is no
indication that the trial court abused its discretion during voir
dire. (People v. Burgener (2003) 29 Cal.4th 833, 865, 129
Cal.Rptr.2d 747, 62 P.3d 1.)
Defendant also argues that she was entitled to
individually sequestered voir dire pursuant to our decision in Hovey
v. Superior Court (1980) 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d
1301, and that the trial court erred in denying her request. As in
the past, we reject this argument. Proposition 115, passed June 5,
1990, enacted Code of Civil Procedure former section 223, which
abrogated our decision in Hovey. (People v. Slaughter (2002) 27
Cal.4th 1187, 1198-1199, 120 Cal.Rptr.2d 477, 47 P.3d 262.)
3. Removal of Prospective Juror Robert P.
Defendant contends the trial court erroneously
excused Prospective Juror Robert P. for cause. Defendant claims this
error violated her federal constitutional rights under the Sixth,
Eighth, and Fourteenth Amendments of the United States Constitution.
The United States Supreme Court has stated that the
proper standard to excuse a juror for cause based on his or her views
on capital punishment is “whether the [prospective] juror's views
would ‘prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.’ ”
(Wainwright v. Witt, supra, 469 U.S. at p. 424, 105 S.Ct. 844.)
In his juror questionnaire Robert P. provided a
series of contradictory answers to questions regarding his views on
the death penalty. For example, although he indicated that the state
should impose the death penalty on everyone who intentionally kills
another person, Robert P. admitted that he might be tempted to find
special circumstances to be false, no matter the evidence presented,
in order to avoid the death penalty question. Robert P. was also
uncertain if he could set aside his own feelings regarding what the
law ought to be and follow the law as set forth by the court. When
asked how he would address a conflict between an instruction of law
and his own belief or opinion, Robert P. wrote, “Certain beliefs I
hold strongly. For those I would have to talk to him. I may not be
willing to bend.” Finally, on the final page of his questionnaire,
Robert P. wrote: “I feel the death penalty should be used in certain
cases. I do not think I could be the one to pull the switch. I have
thought much about how I would handle evidence that pointed to the
death penalty. I would vote for it, but I would not feel good about
it. I cannot say until actually faced with the situation, but I
might become hesitant as the issue turns from abstract discussion to
During oral voir dire, Prospective Juror Robert P.
also made contradictory statements about his ability to follow the
law. He initially stated he was willing to set aside his own views
and follow the law. However, when asked further about putting aside
his personal feelings and following the law as explained by the court,
Robert P. admitted that “there's certain things that I wouldn't be
willing to bend on․ I don't know if any of those things are going to
come up in this case, but I just wanted to leave the door open just in
case to say that some things might happen. Mostly this has to do
with my religious beliefs.” Further, when the prosecutor asked if
there were any situations where he would be unwilling to follow the
court's instructions, Robert P. stated, “Yes. And I don't know of an
example to bring up, but ․ maybe something might.” Based on our
review of the record, we find no federal error in the trial court's
excusing Robert P. for cause. (Wainwright v. Witt, supra, 469 U.S. at
p. 424, 105 S.Ct. 844.)
B. Guilt Phase Issues
1. Alleged Error in Admitting Evidence of
Defendant's Bad Character
Defendant sets forth numerous instances of alleged
trial court error in admitting character evidence. Defendant claims
these evidentiary errors violated her due process and fair trial
rights under the Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution. With respect to many of these claims,2
such as those showing the lavish lifestyle defendant enjoyed after
Robert Samuels's death, there was no error. The evidence was
relevant to prove defendant's financial motive for killing Samuels.
(People v. Sapp (2003) 31 Cal.4th 240, 313, 2 Cal.Rptr.3d 554, 73
In addition, certain evidence was properly admitted
to rebut defendant's claim that defendant was upset about Robert
Samuels's death. (See, e.g., People v. Raley (1992) 2 Cal.4th 870,
913, 8 Cal.Rptr.2d 678, 830 P.2d 712; People v. Barnett (1998) 17
Cal.4th 1044, 1131, 74 Cal.Rptr.2d 121, 954 P.2d 384.) This
included evidence showing that defendant did not pay for Samuels's
funeral and that she did not give Samuels's car or money to his
brother, and testimony from police officers who were present at the
crime scene that related how defendant dressed and acted
provocatively. In addition, defendant failed to object to the
admission of this evidence, so any claims with respect to this
evidence are waived. (People v. Lewis (2001) 25 Cal.4th 610, 673, 106
Cal.Rptr.2d 629, 22 P.3d 392.)
Also, the prosecution's questioning of Nicole
Samuels about the possibility she stole proceeds from the Subway
restaurant was not error because it was relevant to the prosecution's
cross-examination of Nicole with respect to her credibility.
With respect to evidence relating to defendant's
dressing in an unseemly manner and her attempt to teach a bird how to
call Detective Daley derogatory names, the trial court erred in
admitting this evidence, but such error is harmless. (People v.
Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)
As to the remaining instances of alleged error in
admitting character evidence, even if the evidence was admitted in
error, any error was harmless in light of the prosecution's extensive
case against defendant.3
(People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)
Finally, after reviewing the record on appeal, we
believe that any evidentiary error by the trial court, cumulative as
well as individual, was harmless. The prosecution presented other
evidence that overwhelmingly linked defendant to the murders of Robert
Samuels and James Bernstein. This evidence included testimony from
Anne Hambly and Paul Gaul, one of Bernstein's admitted killers, both
of whom implicated defendant in the murders. It is not reasonably
probable the jury would have reached a different result had the
evidence been excluded. The evidence about which defendant complains
shows her to be an indifferent, self-indulgent, and careless parent
who set a poor example. It added little to the compelling case
against her. Accordingly, any evidentiary error was harmless.
(People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)
Assuming defendant's constitutional claims are preserved, they fail
“because generally, violations of state evidentiary rules do not rise
to the level of federal constitutional error.” (People v. Benavides
(2005) 35 Cal.4th 69, 91, 24 Cal.Rptr.3d 507, 105 P.3d 1099.)
2. Alleged Judicial Bias
Defendant contends the trial court made
inconsistent evidentiary rulings, thereby demonstrating the court's
bias, and depriving her of her constitutional rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution. Failure to raise the issue of judicial conduct at
trial waives claims of statutory or constitutional error. Because
defendant failed to raise a proper objection, the issue is waived on
appeal. (People v. Wright (1990) 52 Cal.3d 367, 411, 276 Cal.Rptr.
731, 802 P.2d 221.) In any event, as set forth below, after
reviewing these rulings, we reject defendant's claim of judicial bias.
(People v. Clark (1992) 3 Cal.4th 41, 143, 10 Cal.Rptr.2d 554, 833
a) Handwriting exemplar of Nicole Samuels
Defendant claims the trial court erred by
preventing Nicole Samuels from providing a handwriting exemplar. As
a result of this alleged error, defendant claims she was prevented
from rehabilitating Nicole. We disagree. On cross-examination by
the prosecution, Nicole admitted to signing some checks she gave to
James Bernstein. On redirect examination, defense counsel asked
Nicole if she would be “willing, if asked by the prosecution, to give
your handwriting exemplar so it might be matched.” The prosecutor
objected on relevance grounds and the trial court upheld this
objection. Defense counsel attempted to have the judge reconsider
his ruling, but he stated, “You can have a handwriting expert do the
same thing. You are forcing one side to do the other person's work.”
There was no error and defendant sets forth no reason for how she
was prevented from introducing the evidence.
b) Cross-examination of Detective Daley
Defendant claims that on direct examination
Detective Daley testified that he never told witnesses or suspects any
specifics about the status of the investigation or evidence recovered.
During defendant's testimony, defense counsel attempted to elicit
testimony about references Daley made concerning the investigation.
The prosecutor objected on hearsay grounds and the court sustained the
objection. Defendant claims the prosecutor promised Detective Daley
would be recalled and asked about any disclosures. Detective Daley
was recalled by the prosecution, but defendant complains the
prosecutor failed to ask Detective Daley about any disclosures and the
trial court's rulings in this context supporting the prosecution
exhibited bias. This claim lacks merit. Defendant had the
opportunity to thoroughly cross-examine Detective Daley on this issue
and to impeach his credibility, yet failed to do so.
c) Disclosure of investigator's interview notes
The prosecution called John Krall as a witness to
testify about an incident where defendant allegedly struck Robert
Samuels with a pipe. Defendant sought to impeach Krall with
questions relating to an interview Krall had with a defense
investigator. At trial, the prosecution requested the defense to
disclose any interview notes it had with respect to this interview.
Defense counsel objected, claiming that he did not intend to call the
investigator as a witness or refer to the notes. Initially, the
trial court ruled defendant must disclose the interview notes.
However, the trial court ruled it would examine the written notes to
determine if the notes contained any work product or material
protected by the attorney-client privilege. After doing so, the
trial court held that there was no work product or privileged material
and that defendant was required to turn over the notes.
Even if the trial court erred in requiring the
defendant to turn over the notes to the prosecutor (see People v.
Sanders (1995) 11 Cal.4th 475, 520, 46 Cal.Rptr.2d 751, 905 P.2d 420),
in light of the overwhelming evidence against defendant, such error
was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d
243.) In addition, any erroneous evidentiary ruling by the trial
court does not show that the court was biased. (Kreling v. Superior
Court (1944) 25 Cal.2d 305, 312, 153 P.2d 734; Scott v. Family
Ministries (1976) 65 Cal.App.3d 492, 510, 135 Cal.Rptr. 430 [“A
possibly erroneous ruling on evidence does not establish prejudice of
the trial judge”].)
d) Alleged improper denial of defendant's right
to cross-examine prosecution witness David Navarro
On cross-examination of David Navarro, defendant
inquired about his immunity agreement with the prosecution. During
the course of this cross-examination, defendant asked Navarro his
opinion as to “who was the person who determines whether your
testimony is truthful?” The prosecutor objected on the grounds that
the question was asked for a legal conclusion and an improper opinion.
The trial court sustained the objection. Defendant claims she was
precluded from properly cross-examining Navarro because of this ruling
and that this ruling exemplified the court's bias. We disagree.
When the trial court sustained the prosecution's objection, defense
counsel did not object to this ruling. Rather, he continued with
his spirited cross-examination of Navarro, including further questions
with respect to his immunity agreement with the prosecution. There
is no showing of judicial bias in this ruling nor that defendant
suffered any prejudice in cross-examining Navarro.
e) Impeachment of Anna Davis
On direct examination, defense witness Anna Davis
testified that when she was in a limousine with defendant, Heidi
Dougall, and Anne Hambly, she saw Dougall and Hambly use cocaine. On
cross-examination, the prosecution inquired into Davis's use of
cocaine. Defendant objected to this line of questioning claiming it
was improper impeachment. After appointing counsel for Davis, the
trial court allowed the prosecution to continue with this line of
questioning. The trial court did not commit error. As set forth
above, Davis testified on direct examination on cocaine use by Dougall
and Hambly in a limousine, so defendant initially raised the issue.
On cross-examination, Davis admitted that she and defendant also used
cocaine with Dougall and Hambly. The trial court properly allowed
the cross-examination into Davis's cocaine use because it was relevant
to Davis's credibility. Again, defendant fails to show how this
ruling shows judicial bias.
f) Cross-examination of prosecution witness
Defendant attempted to cross-examine Heidi Dougall
by inquiring about her psychiatric hospitalization and attempted
suicide. The prosecution objected on the grounds that Dougall's
credibility was at issue, not her mental health. Defendant claims
the trial court was biased because it refused to permit any reference
to Dougall's hospitalization or attempted suicide.
“[T]he mental illness or emotional instability of a
witness can be relevant on the issue of credibility, and a witness may
be cross-examined on that subject, if such illness affects the
witness's ability to perceive, recall or describe the events in
question.” (People v. Gurule (2002) 28 Cal.4th 557, 591-592, 123
Cal.Rptr.2d 345, 51 P.3d 224.) Here, the record contradicts
defendant's claims that she was not permitted to adequately
cross-examine Dougall. The trial court ruled that it was appropriate
to ask Dougall whether she had taken any medications, drugs, or
alcohol that could have influenced her observations. The trial court
allowed defendant to inquire whether Dougall had taken any medications
that changed her powers of recollection. Defendant was allowed to
ask Dougall whether she was in the care of doctors, but not if she was
ever institutionalized. The trial court disallowed defendant's
questioning about Dougall's suicide attempt, stating that it was
irrelevant unless defendant could show some factor in the case was
related to it. Defendant promptly proceeded with her
cross-examination of Dougall, asking questions with respect to her
treatment by doctors and her medical condition between July 1988 and
Based on our review of the record, the trial court
correctly limited defendant's cross-examination to questions relevant
to Dougall's credibility, and defendant's claim that she was precluded
from making any inquiry about Dougall's medical condition lacks merit.
Thus, there was no showing of bias with respect to the court's
rulings on Dougall.
g) Admission of check
The trial court admitted into evidence a $1,500
check drawn from defendant's personal account dated October 17, 1989,
and made out to “cash.” Defendant objected on relevance grounds and
that no foundation had been laid for the check's admission. On
appeal, defendant claims this ruling was erroneous and exhibited the
trial judge's bias. This claim lacks merit. The check was relevant
because the prosecutor set forth that the financial gain circumstances
involved in the case were still pending when this check was dated, and
the check therefore supported the prosecution's theory of the case.
But we agree with defendant that the record is less than clear that
the prosecutor laid a proper foundation for the admission of the
check. However, even if the trial court erred in admitting this
evidence, such error was harmless in light of the extensive evidence
against defendant and the minor effect this check would have on the
jury. (People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)
h) Alleged threats to defense counsel
Defendant called her daughter, Nicole Samuels, as a
witness. Nicole testified that she had been sexually abused by
Robert Samuels. On cross-examination, the prosecutor attempted to
attack Nicole's credibility by asking her why she waited until May
1994 to reveal this information. On redirect examination, defendant
sought to introduce testimony from Nicole about statements she made
during interviews with defense investigator Marty Jensen with respect
to the alleged sexual abuse.
Outside the presence of the jury, the prosecutor
objected, claiming that defendant failed to turn over any discovery
statement pursuant to section 1054.3. Defense counsel responded by
stating no written statement from the interview existed, so there was
no disclosure requirement. After defense counsel admitted prior
knowledge about Nicole's statements to the investigators, the trial
court noted its frustration at defense counsel for springing this
information on the court during the trial. However, the trial judge
never made any threats that exhibited bias. Although the trial judge
said he would consider monetary sanctions, he concluded they would
not be effective. In fact, the trial court did not prohibit the
defense counsel from asking questions about the interview. Rather,
the record reflects defense counsel withdrew his question about
Nicole's interviews with the investigator because he realized it would
allow the prosecution to elicit testimony from the investigator
stating that she did not take any notes because she was following the
express instructions of former counsel. Defense counsel therefore
withdrew his question, not because of threats or intimidation by the
trial judge, but for strategic purposes.
i) Alleged improper impeachment of Nicole
Defendant claims the trial court erred by allowing
Detective Daley's rebuttal testimony relating to Nicole Samuels's
refusal to provide any information to the police about her alleged
sexual abuse by Robert Samuels. Daley testified that Nicole had
refused to cooperate, claiming the attorney-client privilege. The
defense objected to this testimony on the grounds that it was improper
rebuttal because it exposed the jury to learning that Nicole had
exercised her Fifth Amendment rights. The prosecution claimed that
because Nicole testified that she had told Daley about the sexual
abuse, Daley's testimony was highly relevant to Nicole's credibility.
Over defendant's objection, the trial court allowed
this testimony, stating it was a “prior inconsistent or consistent
statement” with Nicole's prior testimony that went to the issue of
credibility. Defendant alleges that because of this ruling the trial
judge “continued its role as either chief prosecutor or at least
co-prosecutor.” We disagree. There was no error in the ruling, and
even if the trial court erred in this ruling, there is no showing of
bias. The record shows that after considering the parties' arguments
the trial court simply made an evidentiary ruling. (Kreling v.
Superior Court, supra, 25 Cal.2d at p. 312, 153 P.2d 734; Scott v.
Family Ministries, supra, 65 Cal.App.3d at p. 510, 135 Cal.Rptr. 430.)
j) Exclusion of Jeffrey Weiss's testimony
Defendant claims the trial court exhibited bias by
excluding the testimony of Jeffrey Weiss. Defendant claims Weiss
would have testified with respect to an incident where he heard Nicole
Samuels shout at Robert Samuels, “Keep your hands off me. I don't
want you to touch me.” Without analysis, defendant claims this
testimony was improperly excluded and evidenced the court's bias.
Defendant merely states, “The Court excluded this testimony, and
predictably so.” No basis for concluding there was judicial bias
appears. Even if there was error, such error was harmless. (People
v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)
k) Manipulation of evidence
Defendant contends the trial court exhibited bias
by manipulating evidence of official files and reports. Defendant
claims the trial court did so by making favorable rulings to the
prosecution with respect to three rulings. These rulings related to
the trial court allowing the prosecution to admit James Bernstein's
criminal file and allowing the testimony of Los Angeles Police
Detective Terry Richardson. Detective Richardson testified about his
search on the police department's computer database with respect to
Robert Samuels and his opinion that Robert Samuels was never arrested
and never had a criminal complaint filed by the defendant against him.
Defendant also believes the trial court improperly excluded Exhibit
F, which was a police report relating to Dean Groover.
Even if these evidentiary rulings were erroneous,
such error was harmless. (People v. Watson, supra, 46 Cal.2d at p.
836, 299 P.2d 243.) In addition, the record is bereft of any
indication the trial court was biased in its rulings. On the
contrary, the record indicates the trial judge-as he did throughout
the trial-went to great lengths to ensure that both parties were
allowed to make their arguments before he made an evidentiary ruling.
(Kreling v. Superior Court, supra, 25 Cal.2d at p. 312, 153 P.2d
734; Scott v. Family Ministries, supra, 65 Cal.App.3d at p. 510, 135
l) Admission of Elizabeth Kaufman's testimony
Elizabeth Kaufman was Robert Samuels's divorce
attorney. She testified that Samuels intended to seek a change in
spousal support and permission to operate the Subway restaurant. At
trial, testimony was elicited that on the day Samuels's body was
discovered, defendant told the police that she had a good relationship
with Samuels. In addition, defendant stated to a sheriff's deputy
that she hoped that she and Samuels would get back together again.
The prosecution also introduced testimony at trial that Samuels had a
“less than cordial” relationship with defendant, had missed a support
payment, and had fought with defendant over her continuing to work at
the Subway restaurant. Under all these circumstances, the jury could
reasonably infer defendant knew about, and was angered by, Robert
Samuels's intention to finalize his divorce and reduce her financial
support-thereby providing her a motive to have him killed.
Accordingly, the challenged testimony was admissible because it was
relevant to show Robert Samuels's state of mind concerning defendant.
(People v. Smithey (1999) 20 Cal.4th 936, 971-972, 86 Cal.Rptr.2d
243, 978 P.2d 1171.) There was no error, and necessarily no
As set forth above, despite defendant's lengthy
catalogue of alleged biases, we conclude the record does not support
any display of bias by the trial court. (Kreling v. Superior Court,
supra, 25 Cal.2d at p. 312, 153 P.2d 734; Scott v. Family Ministries,
supra, 65 Cal.App.3d at p. 510, 135 Cal.Rptr. 430.)
3. Alleged Inadmissible Hearsay
a) Testimony of David Navarro, Rennie Goldberg,
and Matthew Raue
Defendant claims the trial court improperly
admitted hearsay from three witnesses with respect to their
conversations with James Bernstein. These witnesses were David
Navarro, Rennie Goldberg, and Matthew Raue. Defendant claims this
error denied her rights under the Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution.
(1) David Navarro's testimony
David Navarro testified that in discussing Robert
Samuels's death, Bernstein said, “He had done it and Mike [Silva] had
helped him. And that [defendant] had paid him.” Navarro further
testified that Bernstein said defendant had paid him, that Bernstein
had skimmed money off the top for himself, and then paid the balance
to Mike Silva. Bernstein also told Navarro that he paid Silva in
cocaine “in lieu of the money.”
Despite the People's contention that defendant has
waived this issue, the record reflects that defendant preserved this
issue for appellate review. (People v. Scott (1978) 21 Cal.3d 284,
290, 145 Cal.Rptr. 876, 578 P.2d 123 [“In a criminal case, the
objection will be deemed preserved if, despite inadequate phrasing,
the record shows that the court understood the issue presented”].)
Nevertheless, the claim fails on the merits.
Bernstein's statement to Navarro was properly admitted as a statement
against penal interest. Under that exception, an otherwise
inadmissible hearsay statement may come into evidence if the
statement, when made, subjected the declarant to serious risk of civil
or criminal liability or to various other serious risks. (Evid.Code,
This case is distinguishable from People v. Lawley
(2002) 27 Cal.4th 102, 153-154, 115 Cal.Rptr.2d 614, 38 P.3d 461, upon
which defendant relies, for Bernstein's facially incriminating
comments were in no way exculpatory, self-serving, or collateral.
Defendant argues that Bernstein's assertion “that [defendant] had paid
him” for the killing was either collateral to his statement against
penal interest, or an attempt to shift blame. We disagree. This
admission, volunteered to an acquaintance, was specifically disserving
to Bernstein's interests in that it intimated he had participated in a
contract killing-a particularly heinous type of murder-and in a
conspiracy to commit murder. Under the totality of the circumstances
presented here, we do not regard the reference to defendant
incorporated within this admission as itself constituting a collateral
assertion that should have been purged from Navarro's recollection of
Bernstein's precise comments to him. Instead, the reference was
inextricably tied to and part of a specific statement against penal
interest. (See People v. Wilson (1993) 17 Cal.App.4th 271, 277, 21
Cal.Rptr.2d 420.) Moreover, the differences between the
trustworthiness of the statements involved in this case and those
excluded in People v. Lawley, supra, 27 Cal.4th at pages 151-154, 115
Cal.Rptr.2d 614, 38 P.3d 461 (in which we found no abuse of discretion
in the trial court's exclusion, following an offer of proof, of
proposed testimony recounting a prisoner's assertions that the Aryan
Brotherhood was involved in a homicide he claimed to have committed)
are palpable. In any event, even had the trial judge erred, any such
error was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836,
299 P.2d 243.)
(2) Testimony of Rennie Goldberg and Matthew
Rennie Goldberg testified that in April 1989
Bernstein told him that he was being solicited by both defendant and
her daughter Nicole to have Robert Samuels murdered and that he was
considering doing so (even though Samuels had already been killed in
December 1988). Matthew Raue testified that in the spring of 1989,
Bernstein said he was approached by defendant and Nicole to help them
murder Robert Samuels. Defendant moved to exclude the testimony of
Raue and Goldberg on hearsay grounds. The prosecutor argued that the
testimony was admissible as either an admission of a coconspirator or
as a statement against Bernstein's interest. The trial court denied
this motion, ruling that the coconspirator exception applied.
Defendant claims the trial court erred by allowing this testimony.
With respect to Bernstein's statements made to Raue
and Goldberg, defendant is correct that none of the statements could
be admitted under the hearsay exception for statements made in
furtherance of a conspiracy. Raue and Goldberg testified that their
conversations with Bernstein took place after Robert Samuels had been
murdered. Therefore, Bernstein's statements could not have been made
in furtherance of any conspiracy.
Defendant also argues the statement against penal
interest exception to the hearsay rule is not applicable to Goldberg
and Raue's testimony. Even assuming the admission of these
statements was error, any error was harmless. (People v. Watson,
supra, 46 Cal.2d at p. 836, 299 P.2d 243.) In addition, assuming
defendant's constitutional claim was properly preserved on appeal see
People v. Yeoman (2003) 31 Cal.4th 93, 117, 133, 2 Cal.Rptr.3d 186, 72
P.3d 1166), it fails on the merits. (People v. Benavides, supra, 35
Cal.4th at p. 91, 24 Cal.Rptr.3d 507, 105 P.3d 1099.)
b) Testimony of Detective George Daley
Defendant claims that Detective Daley's testimony
about Mike Silva was inadmissible and the trial court's error violated
her Sixth, Eighth, and Fourteenth Amendment rights under the United
States Constitution. We disagree.
During the prosecution's case-in-chief, Detective
John Birrer testified that an anonymous caller had identified Mike
Silva as the hit man used by James Bernstein to kill Robert Samuels.
Detective Daley later testified that as a result of an anonymous call
to Detective Birrer, Detective Daley located and interviewed Mike
Defendant argues that the trial court erred by
allowing Detective Daley to testify about his conversation with
Detective Birrer. Defendant contends that this testimony was hearsay
and irrelevant. Because defendant failed to make a specific and
timely objection on hearsay grounds, she failed to preserve this claim
for review. (People v. Waidla, supra, 22 Cal.4th at p. 717, 94
Cal.Rptr.2d 396, 996 P.2d 46.)
In any event, Detective Daley's testimony was not
hearsay or irrelevant. It was not used to prove that Mike Silva
killed Robert Samuels. Instead, the testimony was used to explain
Detective Daley's reasons for obtaining search warrants and contacting
Mike Silva-subsequent action by a law enforcement officer during his
investigation into a murder. Accordingly, the trial court did not
Defendant also contends that Detective Daley's
testimony should have been excluded because it exceeded the scope of
his cross-examination. It did not. During Detective Daley's
cross-examination defense counsel asked questions about Mike Silva,
including whether Silva was ever arrested for Robert Samuels's murder.
Therefore, Detective Daley's testimony on redirect examination did
not exceed the scope of his cross-examination. (See People v. Brown
(1991) 234 Cal.App.3d 918, 939, 285 Cal.Rptr. 824.)
Defendant also claims Detective Daley should not
have been allowed to testify that Mike Silva was dead. The record
indicates that Silva's death was relevant because defendant had placed
it at issue. In fact, after acknowledging this fact during a
discussion outside of the jury's presence, defendant requested the
prosecutor not elicit details about how Silva's death occurred. The
trial court then directed the prosecutor not to elicit details on
Silva's death. Thus, defendant is barred from challenging this
testimony. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1139, 124
Cal.Rptr.2d 373, 52 P.3d 572.) Finally, assuming defendant's
constitutional claim was properly preserved on appeal (see People v.
Yeoman, supra, 31 Cal.4th at pp. 117, 133, 2 Cal.Rptr.3d 186, 72 P.3d
1166), no constitutional or other error occurred.
c) Testimony of Elizabeth Kaufman and Susan
As set forth above, Elizabeth Kaufman was Robert
Samuels's divorce attorney. She testified that Samuels intended to
seek a change in spousal support and court permission to operate the
Subway restaurant. Susan Conroy was Samuels's sister. Conroy
testified that Samuels told her that he intended to finalize his
divorce from defendant. Defendant contends the trial court erred by
admitting Samuels's statements to Kaufman and Conroy with respect to
Samuels's intent to seek a change in spousal support and to finalize
his divorce from defendant. Defendant claims these statements were
inadmissible because they were hearsay, irrelevant, and violated her
constitutional rights under the Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution. Defendant objected on
hearsay grounds, but not on constitutional grounds.
For the reasons set forth in part B.2.l (ante, 30
Cal.Rptr.3d at pp. 123-24, 113 P.3d at pp. 1139-41), the trial court
properly admitted this testimony. In addition, assuming defendant's
constitutional claim was properly preserved on appeal (see People v.
Yeoman, supra, 31 Cal.4th at pp. 117, 133, 2 Cal.Rptr.3d 186, 72 P.3d
1166), no constitutional or other error occurred.
4. Alleged Error in Admitting Photographs
Defendant argues that the trial court erred by
admitting certain photographs of Robert Samuels, thereby violating her
constitutional rights under the Eighth and Fourteenth Amendments of
the United States Constitution. Defendant argued at trial that the
photographs were cumulative, offensive, and had no probative value.
“The admission of photographs of a victim lies
within the broad discretion of the trial court when a claim is made
that they are unduly gruesome or inflammatory. [Citations.] The
court's exercise of that discretion will not be disturbed on appeal
unless the probative value of the photographs clearly is outweighed by
their prejudicial effect. [Citations.]” (People v. Crittenden (1994)
9 Cal.4th 83, 133-134, 36 Cal.Rptr.2d 474, 885 P.2d 887.)
The autopsy photographs depicted Robert Samuels's
body as it lay on a table in the county morgue. The photographs
depict that Samuels was shot in the back of the head by a shotgun and
were relevant to illustrate and corroborate the testimony supplied by
Dr. Christopher Rogers, Deputy Medical Examiner for Los Angeles
County. Dr. Rogers testified for the prosecution with respect to
Robert Samuels's autopsy and established the manner in which Samuels
was killed and other relevant matters. (People v. Crittenden, supra,
9 Cal.4th at p. 132, 36 Cal.Rptr.2d 474, 885 P.2d 887.)
Nor was the probative value of the autopsy
photographs clearly outweighed by their prejudicial effect. “We have
described the ‘prejudice’ referred to in Evidence Code section 352 as
characterizing evidence that uniquely tends to evoke an emotional bias
against a party as an individual, while having only slight probative
value with regard to the issues. [Citation.] As we previously have
observed, victim photographs and other graphic items of evidence in
murder cases always are disturbing. [Citation.]” (People v.
Crittenden, supra, 9 Cal.4th at p. 134, 36 Cal.Rptr.2d 474, 885 P.2d
Our independent review of the photographs leads to
the conclusion that, although the photographs are unpleasant, they are
not unduly shocking or inflammatory. Accordingly, the trial court
did not abuse its discretion in admitting the photographs.
To the extent defendant also argues that the
photographs are cumulative, we reject her argument. (People v.
Crittenden, supra, 9 Cal.4th at pp. 134-135, 36 Cal.Rptr.2d 474, 885
P.2d 887 [“We often have rejected the contention that photographs of a
murder victim must be excluded as cumulative simply because testimony
also has been introduced to prove the facts that the photographs are
intended to establish”].) In addition, assuming defendant's
constitutional claim was properly preserved on appeal (see People v.
Yeoman, supra, 31 Cal.4th at pp. 117, 133, 2 Cal.Rptr.3d 186, 72 P.3d
1166), it fails on the merits.
5. Alleged Prosecutorial Misconduct in
Defendant contends the prosecutor committed
misconduct by injecting inadmissible evidence at trial and then
abandoning it after the jury was contaminated. She claims her rights
under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the
federal Constitution were violated. Defendant failed to object or
seek a curative admonition, therefore this issue is waived on appeal.
(People v. Brown (2004) 33 Cal.4th 382, 398-399, 15 Cal.Rptr.3d 624,
93 P.3d 244.) However, there is no error.
“ ‘A prosecutor's ․ intemperate behavior violates
the federal Constitution when it comprises a pattern of conduct “so
egregious that it infects the trial with such unfairness as to make
the conviction a denial of due process.” ’ ” (People v. Gionis (1995)
9 Cal.4th 1196, 1214, 40 Cal.Rptr.2d 456, 892 P.2d 1199.) “ ‘Conduct
by a prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it involves
“ ‘ “the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.” ’ ” ' ” (People v. Ochoa
(1998) 19 Cal.4th 353, 427, 79 Cal.Rptr.2d 408, 966 P.2d 442.)
Finally, “when the claim focuses upon comments made by the prosecutor
before the jury, the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of
remarks in an objectionable fashion.” (People v. Samayoa (1997) 15
Cal.4th 795, 841, 64 Cal.Rptr.2d 400, 938 P.2d 2.)
Defendant cites several incidents at trial where
the prosecutor allegedly committed misconduct.
a) Impeachment of Robert Birney
Robert Birney, a defense investigator, testified on
behalf of defendant. Birney testified that he had been a police
officer for the City of Los Angeles for approximately 21 years. On
cross-examination, the prosecutor asked Birney if he had ever been
suspended from his duties with the Los Angeles Police Department.
Defendant objected and the parties discussed the matter outside of the
jury's presence. The prosecutor stated that a former colleague of
Birney's had informed her that Birney had been suspended for improper
conduct with respect to a suspect he once booked and his involvement
with an underage female related to that suspect. This suspension
allegedly occurred 10 or 11 years earlier.
Outside of the jury's presence, Birney testified
that he recalled an incident similar to the one described by the
prosecutor. However, Birney stated that he was not suspended and had
not taken any voluntary days off because of this incident. The
prosecutor stated that she would call the source as a witness to
impeach Birney's testimony. The prosecutor then withdrew her
question until other witnesses could be called or she could prepare a
motion pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531,
113 Cal.Rptr. 897, 522 P.2d 305. On redirect examination, Birney
testified that he had not been suspended.
Although defendant objected to the prosecutor's
question about Birney's alleged suspension, defendant failed to
request an admonition. (See People v. Brown, supra, 33 Cal.4th at pp.
398-399, 15 Cal.Rptr.3d 624, 93 P.3d 244.) Nevertheless, there was
no misconduct. Birney's admission that there was an incident that
was investigated shows that there was some good faith basis for the
prosecutor's asking whether he was suspended as a result of the
investigation. In addition, the prosecution's withdrawal of the
question combined with Birney's testimony stating that he was never
suspended do not lead to a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an
objectionable fashion. (People v. Prieto (2003) 30 Cal.4th 226, 260,
133 Cal.Rptr.2d 18, 66 P.3d 1123.)
b) Cross-examination of Nicole Samuels and
On cross-examination by the prosecution, Nicole
Samuels admitted to signing some checks she gave to James Bernstein.
Defendant claims that the prosecutor committed misconduct by
preventing Nicole from providing a handwriting exemplar showing that
certain sections of the checks were not in her handwriting. As a
result of this alleged misconduct, defendant claims the prosecutor
prevented Nicole Samuels from rehabilitating herself. We disagree.
The relevant factual context is recounted above.
(See ante, 30 Cal.Rptr.3d at pp. 119-20, 113 P.3d at pp. 1136-38.)
For the reasons stated in our rejection of defendant's claim of
judicial bias, there is also no prosecutorial misconduct based on the
prosecutor's relevance objection. Again, defendant was free to seek
a handwriting sample from Nicole and have an expert testify as to any
discrepancies between the exemplar and the check.
c) Alleged preclusion of impeachment of
For the reasons set forth in part B.2.b (ante, 30
Cal.Rptr.3d at p. 119, 113 P.3d at p. 1137), we reject defendant's
contention that the prosecutor committed misconduct by precluding
defendant from impeaching Detective Daley.
d) Alleged improper cross-examination of defense
witness Annette Bunnin-Church
Defendant claims the prosecution improperly
cross-examined defense witness Annette Bunnin-Church by asking her
questions about defendant's character for truth and veracity.
Defendant failed to raise objections to the initial questions about
her character and, even after defendant objected, she failed to
request a timely admonition, which would have cured any prejudice from
the alleged misconduct. Accordingly, she cannot raise this claim on
appeal. (People v. Prieto, supra, 30 Cal.4th at pp. 259-260, 133
Cal.Rptr.2d 18, 66 P.3d 1123.)
On the merits, the record indicates the prosecutor
did not introduce improper subject matter into Bunnin-Church's
cross-examination. Bunnin-Church's testimony stating that she never
had doubts about defendant's truthfulness does not lead to the
conclusion that there is a reasonable likelihood the jury construed or
applied any of the complained-of remarks in an objectionable fashion.
(People v. Prieto, supra, 30 Cal.4th at p. 260, 133 Cal.Rptr.2d 18,
66 P.3d 1123.) There was no misconduct.
6. Alleged Error in Failing to Grant Immunity to
Paul Gaul testified for the prosecution pursuant to
a plea agreement. He recalled a conversation that took place on a
sheriff's bus with defendant. Gaul testified defendant stated she
understood that he was testifying against her because he was given no
choice. Gaul also testified that defendant said, “You're the only
one who can cut me loose. You already-I know you took your deal.
You can cut me loose.” Gaul testified that he told defendant that
this was not the case and that he was simply telling the truth.
To impeach Gaul's testimony, defendant attempted to
call Wanda Piety. Piety was also present on the bus during the
conversation between Gaul and defendant and allegedly heard Gaul tell
defendant that he knew she was innocent, but that he had to testify
against her in order to get his plea agreement. However, when faced
with the possibility of being cross-examined by the prosecution, Piety
advised the court that she would assert her Fifth Amendment rights.
The defense then moved the court to grant Piety immunity, which the
Defendant claims the prosecutor committed
misconduct by not granting Piety immunity, thereby subjecting Piety to
possible cross-examination with respect to the facts of her own case.
We have previously stated, “[A]lthough the prosecution has a
statutory right, incident to its charging authority, to grant immunity
and thereby compel testimony [citation], California cases have
uniformly rejected claims that a criminal defendant has the same power
to compel testimony by forcing the prosecution to grant immunity.”
(In re Williams (1994) 7 Cal.4th 572, 609, 29 Cal.Rptr.2d 64, 870
P.2d 1072.) Accordingly, the prosecutor did not commit misconduct.
Defendant also claims the trial court's failure to
grant Piety immunity compounded the prosecutor's alleged misconduct
and violated defendant's Fifth, Sixth, Eighth, and Fourteenth
Amendment rights under the federal Constitution.
“[O]ur court [has] characterized as ‘doubtful’ the
‘proposition that the trial court [possesses] inherent authority to
grant immunity.’ [Citations.]” (People v. Stewart, supra, 33
Cal.4th at p. 468, 15 Cal.Rptr.3d 656, 93 P.3d 271.) However, we
have stated that it is “possible to hypothesize cases” where
“judicially conferred use immunity might possibly be necessary to
vindicate a criminal defendant's rights to compulsory process and a
fair trial.” (People v. Hunter (1989) 49 Cal.3d 957, 974, 264
Cal.Rptr. 367, 782 P.2d 608.) To the extent we assume there is such
a judicial authority, we hold that the trial court properly denied
defendant's request. Piety's testimony would have been cumulative of
testimony previously offered by other witnesses, such as Susan Jasso,
who testified that she heard the same conversation that Piety would
have described. (Stewart, at p. 470, 15 Cal.Rptr.3d 656, 93 P.3d
271.) In addition, in light of Jasso's testimony, Piety's testimony
was not essential. (Id. at p. 469, 15 Cal.Rptr.3d 656, 93 P.3d 271.)
7. Alleged Error with Respect to Polygraph
Defendant argues the prosecutor committed
misconduct by improperly using evidence relating to polygraph
examinations in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution. The prosecution was
allowed to present testimony with respect to defendant's lack of
cooperation with the police during the investigation of Robert
Samuels's death. However, the trial court refused to allow her to
present evidence of her willingness to submit to, and her successful
completion of, a polygraph test. Defendant argues such evidence
would have contradicted the prosecution's claim that she was not
cooperative during the investigation. This claim lacks merit since
polygraph evidence, absent a stipulation by all parties, is not
admissible. (Evid.Code, § 351.1; People v. Wilkinson (2004) 33
Cal.4th 821, 849-852, 16 Cal.Rptr.3d 420, 94 P.3d 551.)
Defendant also argues the prosecutor committed
misconduct by eliciting testimony from Marsha Hutchinson that related
to statements defendant made to her about how to “beat” a polygraph
test. There was no misconduct. The trial court properly admitted
this testimony on the basis that it demonstrated defendant's
consciousness of guilt. (People v. Jackson (1996) 13 Cal.4th 1164,
1224, 56 Cal.Rptr.2d 49, 920 P.2d 1254.) Even if there was
misconduct, the admission of such evidence could not be prejudicial
under any standard given the ample evidence against defendant.
8. Alleged Prosecutorial Misconduct with Respect
to Injecting Misleading Testimony
Defendant contends the prosecutor committed
misconduct and violated certain of her constitutional rights by
injecting the false and misleading testimony of Detective George Daley
with respect to a conversation between defendant and James Bernstein.
Daley's disputed testimony relates to discussions between defendant
and Bernstein that Daley overheard and recorded at a police station.
These statements involved someone named “Dave” who had approached
defendant at a nightclub and agreed to kill Robert Samuels for money.
In addition, Daley testified that the conversation between defendant
and Bernstein was “cordial and suspicious.”
As a general rule, to preserve a claim of
prosecutorial misconduct, the defense must make a timely objection and
request an admonition to cure any harm. (People v. Brown, supra, 33
Cal.4th at pp. 398-399, 15 Cal.Rptr.3d 624, 93 P.3d 244.) Defendant
failed to object to the alleged prosecutorial misconduct or to request
an admonition. Accordingly, defendant has failed to preserve this
Nonetheless, defendant's claim also lacks merit.
Defendant merely assumes Daley misremembered or misrepresented the
conversation, and that this problem could have been avoided had the
trial court admitted the conversation in recorded and transcribed
form. As set forth (post, 30 Cal.Rptr.3d at pp. 130-33, 113 P.3d at
pp. 1146-48), the trial court properly excluded the tape and
transcription of the conversation. In any event, such an assumption
is speculative as it appears defense counsel's vigorous questioning of
Daley failed to show that Daley's testimony was false or misleading.
9. Improper Exclusion of Taped Conversation
a) Best evidence rule
Defendant contends the trial court violated
Evidence Code section 1521 by permitting Detective Daley to testify,
during the prosecution's case, with respect to a recorded prearrest
conversation between defendant and James Bernstein.4
Defendant claims this error violated her constitutional rights under
the Sixth and Fourteenth Amendments of the United States Constitution.
On appeal, defendant claims the tape of the entire conversation
should have been admitted under the secondary evidence rule, codified
in Evidence Code section 1520 et seq. We disagree.
The secondary evidence rule was not effective until
January 1, 1999. Since the instant trial commenced prior to January
1, 1999, the secondary evidence rule is not applicable. Accordingly,
we apply the law that was applicable at the time, Evidence Code former
section 1500 et seq.,5
commonly referred to as the “best evidence rule.” (See In re Kirk
(1999) 74 Cal.App.4th 1066, 1073, 88 Cal.Rptr.2d 648.)
Applying the best evidence rule to this case, “[i]t
is well settled that where both a tape recording of a conversation and
a witness to the conversation are available at trial, the testimony of
the witness is not barred by the best evidence rule. [Citations.]”
(People v. Patton (1976) 63 Cal.App.3d 211, 220, 133 Cal.Rptr. 533.)
We have stated, “The so-called best evidence rule is inapplicable
under such circumstances. Since the officer was testifying to what
he had seen and heard, his testimony was ‘primary evidence’ whether or
not ‘part of the same matter was incorporated into a sound recording.’
[Citation.] In other words, he was not testifying as to what the
recording contained but ‘as to what he observed and knew because he
heard it․ [His] testimony ․ is not rendered incompetent by the fact of
the existence of the [recording].’ [Citations.]” (People v. Sweeney
(1960) 55 Cal.2d 27, 38, 9 Cal.Rptr. 793, 357 P.2d 1049.)
Assuming defendant's constitutional claim was
properly preserved on appeal (see People v. Yeoman, supra, 31 Cal.4th
at pp. 117, 133, 2 Cal.Rptr.3d 186, 72 P.3d 1166), it fails on the
b) Rule of completeness
Defendant further contends the trial court erred
and violated her constitutional rights under the Sixth, Eighth, and
Fourteenth Amendments of the federal Constitution by denying her
motion to admit the entire tape recording and transcript of the
conversation between defendant and James Bernstein under Evidence Code
section 356. That section provides: “Where part of an act,
declaration, conversation, or writing is given in evidence by one
party, the whole on the same subject may be inquired into by an
adverse party; when a letter is read, the answer may be given; and
when a detached act, declaration, conversation, or writing is given in
evidence, any other act, declaration, conversation, or writing which
is necessary to make it understood may also be given in evidence.”
The purpose of Evidence Code section 356 is to
avoid creating a misleading impression. (People v. Arias (1996) 13
Cal.4th 92, 156, 51 Cal.Rptr.2d 770, 913 P.2d 980.) It applies only
to statements that have some bearing upon, or connection with, the
portion of the conversation originally introduced. (People v. Zapien
(1993) 4 Cal.4th 929, 959, 17 Cal.Rptr.2d 122, 846 P.2d 704.)
Statements pertaining to other matters may be excluded. (People v.
Williams (1975) 13 Cal.3d 559, 565, 119 Cal.Rptr. 210, 531 P.2d 778.)
At trial, defendant sought to introduce the entire
tape of the conversation, which covered areas outside of Detective
Daley's testimony. The prosecution objected on hearsay grounds, and
the trial court sustained the prosecution's objection. In addition,
the trial court stated the tape was too long and would confuse the
jury. The trial court informed defendant that she was free to seek
admission of those portions of the tape that were purportedly
relevant. The record indicates defendant failed to do so. There
was no error.
10. Alleged Instructional Error
a) Definition of reasonable doubt
Defendant contends that CALJIC No. 2.90, defining
reasonable doubt, is a violation of her due process rights under the
Fourteenth Amendment of the United States Constitution. We have
rejected this argument in the past and find no persuasive reason to
revisit the issue. (People v. Seaton (2001) 26 Cal.4th 598, 667-668,
110 Cal.Rptr.2d 441, 28 P.3d 175.)
b) CALJIC No. 2.01
Defendant argues that the trial court erred by
instructing the jury with CALJIC No. 2.01, because it undermined the
requirement of proof beyond a reasonable doubt. Defendant claims
this error violated her constitutional rights under the Fifth, Sixth,
and Fourteenth Amendments of the federal Constitution. Defendant
claims the instruction directed jurors to accept an incriminating
interpretation of the evidence if it appeared to be reasonable,
thereby allowing a conviction based on an appearance of guilt.
Defendant acknowledges we have previously held that
“these instructions properly direct the jury to accept an
interpretation of the evidence favorable to the prosecution and
unfavorable to the defense only if no other ‘reasonable’
interpretation can be drawn. Particularly when viewed in conjunction
with other instructions correctly stating the prosecution's burden to
prove defendant's guilt beyond a reasonable doubt, these
circumstantial evidence instructions do not reduce or weaken the
prosecution's constitutionally mandated burden of proof or amount to
an improper mandatory presumption of guilt. [Citations.]” (People v.
Kipp (1998) 18 Cal.4th 349, 375, 75 Cal.Rptr.2d 716, 956 P.2d 1169.)
We see no reason to revisit the question and reject defendant's claim.
C. Penalty Phase Issues
1. Removal of Juror Audrey W.
Defendant claims the trial court erred by removing
Juror Audrey W. during the penalty phase deliberations. Defendant
argues this error violated her constitutional rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments of the United States
Section 1089 provides in pertinent part: “If at
any time, whether before or after the final submission of the case to
the jury, a juror dies or becomes ill, or upon other good cause shown
to the court is found to be unable to perform his or her duty, or if
a juror requests a discharge and good cause appears therefor, the
court may order the juror to be discharged and draw the name of an
alternate, who shall then take a place in the jury box, and be subject
to the same rules and regulations as though the alternate juror had
been selected as one of the original jurors.” “ ‘We review for abuse
of discretion the trial court's determination to discharge a juror and
order an alternate to serve. [Citation.] If there is any substantial
evidence supporting the trial court's ruling, we will uphold it.
[Citation.] We also have stated, however, that a juror's inability
to perform as a juror must “ ‘appear in the record as a demonstrable
reality.’ ” [Citation.]' ” (People v. Cleveland (2001) 25 Cal.4th
466, 474, 106 Cal.Rptr.2d 313, 21 P.3d 1225.) We have also stated a
court may remove a juror “who becomes physically or emotionally unable
to continue to serve as a juror due to illness or other
Substantial evidence supports the trial court's
decision. Here, Audrey W. requested that she be removed from the
jury. In a letter to the court, Audrey W. wrote, “I have come to
realize that I have serious questions about my ability to vote for the
death penalty should I become convinced of its appropriateness in this
case. I have not been able to resolve this conflict to my own
When questioned by the parties and the trial judge
about her situation, Audrey W. provided statements indicating she
would not be able to perform her duty as a juror. For example, when
asked by the prosecutor whether she was “at the point now where you
believe that perhaps you would under no circumstances ever be able to
impose the death penalty in a case where you thought it was
appropriate,” Audrey W. stated, “Well, that's where I am afraid that I
might not have the courage to do that. I think I explained to you on
the form and also when I was questioned, theoretically I do believe in
the death penalty. I was concerned about whether I would be able to
act on it. And when I actually found myself faced with an actual
case and having to consider that, I just found that it was-I was just
afraid that I wouldn't be able to do that.” The prosecutor then
followed up by asking, “Is that what you are finding now, that you are
just not able to consider it?” Audrey W. answered, “I'm afraid that
I couldn't act on it.”
Audrey W. also could not separate her discomfort
over the death penalty from the facts and circumstances of the case.
She stated, “I can't separate them and that's-that is what is causing
me the issue right now. It was not a problem before I was able to
keep them separate but now I've got that so I can't get them separated
In addition, when asked by the prosecutor whether
her physical, emotional, or mental state was being impaired or would
be impaired if she continued to deliberate, she stated that she “was
not in a good place to continue.” The court determined that “there
was enough there to raise some red flags in my concern.”
Accordingly, the record reflects that Audrey W. was
distressed and volunteered to the court that she could not follow her
oath and instructions to consider imposition of the death penalty in
this case. She also admitted she lacked “courage” to impose the
ultimate punishment if appropriate under all the circumstances, and
that she feared she “couldn't act” on her obligation to do so.
Therefore, after a meaningful inquiry, the trial court credited Audrey
W.'s expressions of her state of mind and determined there was a
demonstrable reality that she was unable to perform as a juror. We
defer to this finding and the underlying record. The trial court did
not abuse its discretion by dismissing Audrey W. (People v. Cleveland,
supra, 25 Cal.4th at p. 474, 106 Cal.Rptr.2d 313, 21 P.3d 1225.)
2. Alleged Prosecutorial Misconduct
a) Closing argument
Defendant claims the prosecutor committed
misconduct by improperly referring to defendant's bad character, in
violation of her constitutional rights under the Sixth, Eighth, and
Fourteenth Amendments of the United States Constitution. We
disagree. “The claim was waived by [defendant's] failure to object to
the statement at trial. [Citation.]” (People v. Staten (2000) 24
Cal.4th 434, 465, 101 Cal.Rptr.2d 213, 11 P.3d 968.) The claim also
lacks merit. Defendant mischaracterizes the prosecutor's statements.
The comments at issue were part of the prosecutor's argument that
defendant had failed to show any remorse. We have “consistently
rejected claims of prosecutorial misconduct based on a prosecutor's
reference to the defendant's lack of remorse.” (People v. Lewis (2001)
25 Cal.4th 610, 673, 106 Cal.Rptr.2d 629, 22 P.3d 392.)
b) Biblical references
Defendant also claims that, over her objections,
the prosecutor committed misconduct by referring to the Bible.6
Defendant claims that as a result of this misconduct, her
constitutional rights under the Sixth, Eighth and Fourteenth
Amendments of the United States Constitution were violated.
We have previously stated, “ ‘[t]he primary vice in
referring to the Bible and other religious authority is that such
argument may “diminish the jury's sense of responsibility for its
verdict and ․ imply that another, higher law should be applied in
capital cases, displacing the law in the court's instructions.” ’
[Citations.]” (People v. Hughes (2002) 27 Cal.4th 287, 389, 116
Cal.Rptr.2d 401, 39 P.3d 432.)
Even if the prosecutor's argument was error, such
error was harmless. (People v. Slaughter (2002) 27 Cal.4th 1187,
1211, 120 Cal.Rptr.2d 477, 47 P.3d 262.) The prosecutor's biblical
argument was only a small part of her argument, the bulk of which
focused on arguing to the jury why it should find that the statutory
aggravating factors outweighed the mitigating factors.
c) Prosecutor's alleged statements suggesting
ultimate responsibility for imposing the death penalty did not rest
with the jury
Defendant claims that the prosecutor committed
misconduct by suggesting that the ultimate responsibility for imposing
the death penalty did not rest with the jury. Defendant bases this
argument on references the prosecutor made to defendant's appellate
rights and the Governor's power of commutation, and argues that such
references should have resulted in the trial court granting her motion
for a mistrial.
The first statement defendant relies on was made
when the prosecutor contrasted the imposition of the death penalty as
so-called state-sanctioned murder with the killing of Robert Samuels.
The prosecutor said, “It seems somewhat incredible that some people
can't grasp the moral difference between the taking of an innocent
life and the state enforcing laws and taking a life. [¶] The
defendant has had all of the guarantees that our system of justice has
entitled her to. She has had her preliminary hearing. She has had
a fair trial. She has had a penalty phase. She will have appellate
review. What rights did the victims have?” The other statement was
made by the prosecutor in anticipation that defense counsel would
argue “that there are others in California who have committed far more
brutal crimes who didn't get the death penalty.” The prosecutor
stated, “Well the fact of the matter is in California the death
penalty is the law of the land. That's not true in all states.
Even in California there was a time when the death penalty was
repealed and all those on death row had their sentences commuted.
Now please don't misunderstand me, I'm not suggesting that that will
happen in this case. You cannot consider that and that's not the
reason I bring it up. The only reason I bring it up is to suggest to
you that such analogies and such comparisons are not fair.”
Here, there is no reasonable likelihood a juror
would have understood the prosecutor as suggesting that the
responsibility for imposing a death sentence rested elsewhere.
(Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329, 105 S.Ct.
2633, 86 L.Ed.2d 231.) There was no misconduct and there was no
basis for the trial court to grant defendant's request for a mistrial.
3. Alleged Instructional Error
a) Meaning of life imprisonment without the
possibility of parole
Defendant claims that the trial court erroneously
instructed the jury on the meaning of life imprisonment without the
possibility of parole in violation of her constitutional rights under
the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United
States Constitution. We reject this claim.
Here, the trial court read to the jury CALJIC No.
8.84, which stated that defendant's punishment would be “death or
confinement in the state prison for life without the possibility of
parole․” Our cases hold that CALJIC No. 8.84 adequately informs the
jury of defendant's ineligibility for parole. (People v. Prieto,
supra, 30 Cal.4th at pp. 269-271, 133 Cal.Rptr.2d 18, 66 P.3d 1123.)
Defendant seeks to distinguish Prieto on the ground
that here the jury manifested some confusion as to the meaning of life
imprisonment without the possibility of parole, as evidenced by its
note to the judge asking, “Does ‘without the possibility of parole’
mean no chance of parole-ever!” After receiving this note, the trial
court conferred with counsel and, over defendant's objection, decided
to repeat its prior instructions. The trial court stated it would
reiterate these instructions and “see what happens.” The trial court
stated, “If they ask a further question, they'll get a further
Unlike the situation in Prieto, here the jury
expressed confusion regarding CALJIC No. 8.84's meaning. However, we
reject defendant's claim because the trial court's refusal to respond
more fully to the jury's question did not constitute prejudicial
error. In so holding, we follow People v. Bonillas (1989) 48 Cal.3d
757, 798, 257 Cal.Rptr. 895, 771 P.2d 844, and People v. Silva (1988)
45 Cal.3d 604, 641, 247 Cal.Rptr. 573, 754 P.2d 1070, in which we
observed no prejudicial error in refusals to respond to comparable
jury requests for clarification as to the possibility of defendant's
release from prison. Here, as there, “[t]he [court's] response left
the jury in the same position as when the jury asked the
question-i.e., uncertain of the answers. It is inconceivable that
such uncertainty affected the jury's penalty verdict.” (Silva, at p.
641, 247 Cal.Rptr. 573, 754 P.2d 1070.)
b) Use of special verdict forms
Defendant was found guilty of count 1, the first
degree murder of James Bernstein. The jury failed to reach a verdict
on the special circumstance allegation that the murder was committed
for financial gain under section 190, subdivision (a)(1). Defendant
was also found guilty of the first degree murder of Robert Samuels as
set forth in count 2. The jury found that defendant committed this
murder for financial gain under section 190, subdivision (a)(1). In
addition, the jury found “the allegation that the offenses charged in
Counts I and II are a special circumstance within the meaning of Penal
Code section 190.2(a)(3) [multiple murder] to be true.”
Over defendant's objection, the jury was given
separate verdict forms for counts 1 and 2. The verdict form relating
to count 1 read: “We the jury in the above entitled action, having
found the defendant, Mary Ellen Samuels, guilty of the crime of murder
in the first degree and the special circumstance of multiple murder to
be true as related to Count I of the information, hereby fix the
penalty at: death.” The verdict form for count 2 stated: “We the
jury in the above entitled action, having found the defendant, Mary
Ellen Samuels, guilty of the crime of murder in the first degree and
the special circumstances of multiple murder and murder for financial
gain to be true as related to Count II of the information, hereby fix
the penalty at: death.”
On appeal, defendant argues that the use of
separate verdict forms misled the jury by stating that the jury had
found-at the guilt phase-a special circumstance for multiple murder
for count 1. Defendant also claims this error violated her
constitutional rights under the Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution. Defendant's argument
rests on a faulty factual premise. The jury found defendant guilty
of multiple murder under section 190.2, subdivision (a)(3) based on
the allegations set forth in counts 1 and 2. In addition, the trial
court instructed the jury that it could consider the multiple-murder
special circumstance only once. The jury was not misled and the
trial court did not commit any error. In addition, assuming
defendant's constitutional claim was properly preserved on appeal (see
People v. Yeoman, supra, 31 Cal.4th at pp. 117, 133, 2 Cal.Rptr.3d
186, 72 P.3d 1166), it fails on the merits.
c) Alleged instructional error in the death
selection process used to condemn defendant
Defendant further claims section 190.3, factor (a),
which allows the consideration of the circumstances of her crime in
the penalty phase, has been applied so arbitrarily and capriciously
that its application in her case violated the state and federal
Constitutions. We have rejected this claim in prior decisions, and
defendant has failed to offer grounds for reconsidering those
holdings. (People v. Jenkins (2000) 22 Cal.4th 900, 1050-1053, 95
Cal.Rptr.2d 377, 997 P.2d 1044.)
Nor was the trial court required to delete any
inapplicable factors from the penalty phase instructions (People v.
Taylor (2001) 26 Cal.4th 1155, 1179-1180, 113 Cal.Rptr.2d 827, 34 P.3d
937), designate aggravating and mitigating factors (id. at p. 1180,
113 Cal.Rptr.2d 827, 34 P.3d 937), or submit written findings and
reasons for its death verdict (People v. Jenkins, supra, 22 Cal.4th at
p. 1053, 95 Cal.Rptr.2d 377, 997 P.2d 1044).
Defendant claims the trial court did not adequately
define the meaning of the term “mitigating.” Defendant contends that
CALJIC No. 8.88 as read to the jury was reasonably likely to lead the
jury to believe it was limited by the type of mitigating evidence it
could consider. We have previously rejected this argument and do so
again. (People v. Taylor, supra, 26 Cal.4th at pp. 1180-1181, 113
Cal.Rptr.2d 827, 34 P.3d 937.)
In addition, defendant claims the trial court
should have instructed the jury that if the factors in aggravation did
not outweigh the factors in mitigation, then it should return a
sentence of life imprisonment without the possibility of parole. We
reject this claim. (People v. Duncan (1991) 53 Cal.3d 955, 978, 281
Cal.Rptr. 273, 810 P.2d 131.)
d) Alleged trial court error by failing to
instruct jury on core adjudicative principles
We also conclude there is no constitutional
requirement that the jury be instructed concerning the burden of
proof-whether beyond a reasonable doubt or by a preponderance of the
evidence-as to the existence of aggravating circumstances (other than
other-crimes evidence), the greater weight of aggravating
circumstances over mitigating circumstances, or the appropriateness of
a death sentence, and no requirement that the jury achieve unanimity
as to the aggravating circumstances. (People v. Jenkins, supra, 22
Cal.4th at pp. 1053-1054, 95 Cal.Rptr.2d 377, 997 P.2d 1044.) Recent
United States Supreme Court decisions in Apprendi v. New Jersey (2000)
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 and Ring v. Arizona
(2002) 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556, have not altered
our conclusions regarding the burden of proof or jury unanimity. (See
People v. Prieto, supra, 30 Cal.4th at pp. 263, 275, 133 Cal.Rptr.2d
18, 66 P.3d 1123.)
We also reject defendant's argument that the
court's failure to instruct the jury on the presumption of life
violated the state and federal Constitutions. (See, e.g., People v.
Hughes, supra, 27 Cal.4th at p. 404, 116 Cal.Rptr.2d 401, 39 P.3d
4. Constitutional Claims
We reject defendant's claim that the death penalty
law is unconstitutional by failing to adequately narrow the class of
death-eligible offenders. (People v. Prieto, supra, 30 Cal.4th at p.
276, 133 Cal.Rptr.2d 18, 66 P.3d 1123.) We also reject defendant's
claim that the death penalty law is constitutionally deficient because
the prosecution retains discretion whether to seek the death penalty.
(People v. Koontz (2002) 27 Cal.4th 1041, 1095, 119 Cal.Rptr.2d 859,
46 P.3d 335.)
In addition, “[i]ntercase proportionality review is
not required.” (People v. Combs (2004) 34 Cal.4th 821, 868, 22
Cal.Rptr.3d 61, 101 P.3d 1007.) We similarly reject defendant's
claims that the state and federal Constitutions are violated by the
alleged influence of political pressure on this court in determining
capital appeals. There is no basis for this claim and we have
previously rejected it. (People v. Kipp, supra, 26 Cal.4th at pp.
1140-1141, 113 Cal.Rptr.2d 27, 33 P.3d 450.)
5. Alleged Cumulative Error
Defendant argues that the cumulative effect of the
errors at her penalty trial requires reversal of her death sentence.
We disagree. Any errors we have found are no more compelling when
considered in combination. Their cumulative effect does not warrant
reversal of the judgment.
We affirm the judgment in its entirety.
Having found no error requiring reversal, I concur
in the majority's decision to affirm the judgment. I write
separately, however, to suggest the time has come to modify our
position concerning whether a jury in a capital case should be
completely informed of the meaning of life imprisonment without the
possibility of parole.
The trial court in this case delivered CALJIC No.
8.84, the standard jury instruction concerning the penalties
applicable in a capital case. That instruction states in pertinent
part: “It is the law of this state that the penalty for a defendant
found guilty of murder of the first degree shall be death or
imprisonment in the state prison for life without possibility of
parole in any case in which the special circumstance[s] alleged in
this case [has] [have] been specially found to be true.” (Italics
added.) We have, in prior cases, rejected the contention that the
term “life without possibility of parole,” as used in this
instruction, “confuses jurors or has a technical meaning that requires
a sua sponte definitional instruction.” (People v. Smithey (1999) 20
Cal.4th 936, 1009, 86 Cal.Rptr.2d 243, 978 P.2d 1171; see, e.g.,
People v. Prieto (2003) 30 Cal.4th 226, 270-271, 133 Cal.Rptr.2d 18,
66 P.3d 1123; People v. Ochoa (1998) 19 Cal.4th 353, 457, 79
Cal.Rptr.2d 408, 966 P.2d 442; People v. Sanders (1995) 11 Cal.4th
475, 561-562, 46 Cal.Rptr.2d 751, 905 P.2d 420.) Our position on
this issue has been clear and consistent.
Jurors, however, faced with making the enormous
decision whether or not to impose society's ultimate criminal penalty,
apparently are not so confident about the plain meaning of CALJIC No.
8.84. For example, in People v. Snow (2003) 30 Cal.4th 43, 132
Cal.Rptr.2d 271, 65 P.3d 749, the jury, after retiring to deliberate,
sent out a note asking the trial judge: “ ‘If we give life
imprisonment without possibility of parole, can we be assured he will
never be[ ] released from prison[?]’ ” (Id. at p. 123, 132
Cal.Rptr.2d 271, 65 P.3d 749.) Similarly, in People v. Hart (1999)
20 Cal.4th 546, 85 Cal.Rptr.2d 132, 976 P.2d 683, the jury, prior to
closing argument, sent the trial court a note asking: “ ‘Does life in
prison without the possibility of parole mean he will never get out
under any circumstances?’ ” (Id. at p. 654, 85 Cal.Rptr.2d 132, 976
P.2d 683.) In People v. Bonillas (1989) 48 Cal.3d 757, 257 Cal.Rptr.
895, 771 P.2d 844, the jury, after retiring to deliberate, sent out a
note asking: “ ‘Is there any way at all that a parole could be
granted[?] Please list the ways.’ ” (Id. at p. 797, 257 Cal.Rptr.
895, 771 P.2d 844.) In People v. Silva (1988) 45 Cal.3d 604, 247
Cal.Rptr. 573, 754 P.2d 1070, the jury asked this question: “ ‘[D]oes
life in prison without possibility of parole mean just that, or is
parole possible at some future date? If so, under what
circumstances?’ ” (Id. at p. 640, 247 Cal.Rptr. 573, 754 P.2d 1070.)
The instant case is no different; here, the jury sent out a note
during deliberations that asked: “Does ‘without the possibility of
parole’ mean no chance of parole-ever![?]”
Defense attorneys, aware of this potential
confusion, often propose a special instruction in an attempt to
clarify the meaning of a sentence of life imprisonment without the
possibility of parole. For example, in People v. Gutierrez (2002) 28
Cal.4th 1083, 124 Cal.Rptr.2d 373, 52 P.3d 572, the defendant proposed
an instruction that would have informed the jury that “ life without
the possibility of parole means ‘defendant will be imprisoned for the
rest of his life.’ ” (Id. at p. 1159, 124 Cal.Rptr.2d 373, 52 P.3d
572.) In People v. Thompson (1988) 45 Cal.3d 86, 246 Cal.Rptr. 245,
753 P.2d 37, the defendant proposed this instruction: “[I]f you
determine that life without the possibility of parole is the proper
sentence, you are instructed that the defendant will never be released
from prison.” (Id. at p. 129, 246 Cal.Rptr. 245, 753 P.2d 37.) In
the instant case, defendant proposed this penalty phase instruction:
“You are instructed that life without possibility of parole means
exactly what it says: The defendant will be imprisoned for the rest
of her life. [¶] ․ [¶] For you to conclude otherwise would be to rely
on conjecture and speculation and would be a violation of your oath as
We generally affirm a trial court's rejection of
such proposed instructions on the ground the instruction is
technically incorrect (see People v. Musselwhite (1998) 17 Cal.4th
1216, 1271, 74 Cal.Rptr.2d 212, 954 P.2d 475) because a defendant,
sentenced by a jury to life imprisonment without the possibility of
parole, could still gain his freedom if a state or federal appellate
court grants relief on appeal, or if the Governor exercises his
commutation or clemency power (People v. Thompson, supra, 45 Cal.3d at
p. 130, 246 Cal.Rptr. 245, 753 P.2d 37). Although rare, these
possibilities nevertheless exist.
Because the jury in this case specifically asked
the trial court for guidance on the question of the possibility of
parole, we know it was concerned about this issue. Given that the
jury had already been instructed and had retired to deliberate, its
question came at a critical point in the trial. Under the
circumstances, the trial court should have answered the question.
Penal Code section 1138 provides: “After the jury have retired for
deliberation, ․ if they desire to be informed on any point of law
arising in the case, they must require the officer to conduct them
into court. Upon being brought into court, the information required
must be given in the presence of, or after notice to, the prosecuting
attorney, and the defendant or his counsel, or after they have been
called.” (Italics added.)
Some jurors may have been concerned that the
primary actor in a conspiracy that resulted in two murders could
eventually go free were they to vote for life imprisonment instead of
death. By simply rereading CALJIC No. 8.84-the same instruction
already provided to the jury-the trial court failed to clarify the
legal issue that concerned the jury and thus ran the risk that some
jurors, erroneously believing release on parole was a possibility,
voted to impose the death penalty as a way of ensuring defendant would
never be released to kill again. A death penalty verdict reached
under such circumstances may implicate a defendant's right to due
process of law. (See Simmons v. South Carolina (1994) 512 U.S. 154,
162, 114 S.Ct. 2187, 129 L.Ed.2d 133 (plur.opn.) [due process violated
when state imposes death sentence based in part on the defendant's
future dangerousness when jury not informed the alternative penalty of
life imprisonment was without parole].)
Providing the jury with a more complete picture of
the legal effect of a sentence of life without the possibility of
parole, admittedly, may encourage it to speculate on matters
irrelevant to its penalty decision. We faced a similar situation in
People v. Ramos (1984) 37 Cal.3d 136, 207 Cal.Rptr. 800, 689 P.2d 430,
concerning whether a trial judge in a capital trial should inform the
jury of the Governor's commutation power. We concluded: “When the
jury raises the commutation issue itself-either during voir dire or in
a question posed to the court during deliberations-the matter
obviously cannot be avoided and is probably best handled by a short
statement indicating that the Governor's commutation power applies to
both sentences but emphasizing that it would be a violation of the
juror's duty to consider the possibility of such commutation in
determining the appropriate sentence.” (Id. at p. 159, fn. 12, 207
Cal.Rptr. 800, 689 P.2d 430.)
We should apply the same approach to a jury's
question concerning the meaning of life imprisonment without the
possibility of parole. Thus, although CALJIC No. 8.84 seems clear on
its face, some jurors may nevertheless believe a life prisoner will
still be able to obtain release on parole sometime in the future. If
the jury submits a question on this topic, I believe the trial court
should respond with a short statement explaining that, in unusual
cases, future action by the judiciary or the Governor may permit the
defendant to obtain parole, that such possibilities apply whether the
jury imposes a sentence of death or of life without the possibility of
parole, that the jury should assume such future actors will follow the
law, and that the jury should not speculate on such possibilities and
should assume the sentence it reaches will be carried out.1
(See People v. Thompson, supra, 45 Cal.3d at p. 131, 246 Cal.Rptr.
245, 753 P.2d 37; see generally People v. Davis (1995) 10 Cal.4th
463, 547, 41 Cal.Rptr.2d 826, 896 P.2d 119 [quoting extensive
instructions concerning the import of a sentence of death or of life
without the possibility of parole and the factors the jury cannot
properly consider].) In that way, the jury is fully informed as to
its sentencing choices but is instructed not to consider matters
irrelevant to its decision. A contrary conclusion, in which we
tolerate a jury reaching a penalty decision while uncertain of the
true meaning of the applicable penalty choices, seems unwise.
In the present case, the trial court indicated that
if the jury were again to question the meaning of “life without
possibility of parole” it would provide “a further answer.” No
further question was asked. Because nothing in the record suggests
the trial court's failure to clarify the law in response to the jury's
question convinced a juror to vote for death instead of life
imprisonment, I cannot now conclude the trial court's failure to
clarify CALJIC No. 8.84 was prejudicial. Accordingly, I concur.
I join the majority in affirming the judgment. I
write separately to express my disagreement with the majority's
analysis of two issues, one pertaining to financial motive to kill,
the other involving the prosecutor's biblical references.
At the guilt phase of defendant Mary Ellen
Samuels's capital trial for the murders of her estranged husband and
an accomplice who, she feared, would report the killing of her husband
to the police, the prosecution presented this evidence: As a
beneficiary of her husband's life insurance policy defendant received
more than $240,000 in proceeds; she got $70,000 for selling a
sandwich shop that she and her husband had owned; and she obtained
$160,000 by refinancing the family home. She then spent the money on
such things as an expensive sports car, a large television, limousine
service, property in a Mexican resort, and clothing from a store
called Trashy Lingerie.
Defendant challenges the trial court's admission
into evidence of how she spent the money, contending it was
inadmissible character evidence. The majority brushes the contention
aside with this cursory comment: “[T]here was no error. The
evidence was relevant to prove defendant's financial motive for
killing Samuels. (People v. Sapp (2003) 31 Cal.4th 240, 313 [2
Cal.Rptr.3d 554, 73 P.3d 433].)” (Maj. opn., ante, 30 Cal.Rptr.3d at
p. 118, 113 P.3d at p. 1135.) The majority's citation of Sapp is
puzzling; no issue in that case bears the faintest resemblance to the
merry widow's spending spree at issue here.
In Sapp, a jury convicted the defendant of
murdering three people. Thereafter, in closing argument at the
penalty phase, the prosecutor referred to evidence at the penalty
phase that the defendant had also killed his mother (a crime for which
he was not convicted), and argued that like the other murders, the
defendant had a financial motive to kill his mother, because he owed
her $60,000. On appeal, the defendant in Sapp contended that the
trial court should have instructed the jury that in determining
whether he had killed his mother (a prerequisite for using that fact
against him as an aggravating circumstance at the penalty phase), the
jurors should not infer, based on his commission of the charged
murders, that he had a propensity toward criminal behavior. This
court held that the evidence did not warrant such an instruction.
(People v. Sapp, supra, 31 Cal.4th at pp. 312-313, 2 Cal.Rptr.3d 554,
73 P.3d 433.)
Sapp is inapposite. (1) At issue there was the
trial court's failure to give a particular jury instruction; at issue
here is the admissibility of evidence. (2) Sapp involved the
penalty phase of a capital trial; this case involves the guilt phase.
(3) In Sapp, the prosecutor tried to use evidence of three murders to
prove the commission of a fourth murder; here, the prosecutor used
evidence of defendant's spending spree after her husband's death to
prove that she killed him.
The only aspect of Sapp that remotely resembles
this case is the prosecutor's reference in Sapp to evidence that the
defendant had a “financial motive” (People v. Sapp, supra, 31 Cal.4th
at p. 312, 2 Cal.Rptr.3d 554, 73 P.3d 433) to kill his mother because
he owed her money. But that evidence is wholly unlike the evidence
of financial motive at issue here, which pertains to how defendant
spent the inherited money; in any event, this court's opinion in Sapp
did not address the admissibility of that evidence. Thus, Sapp has
no bearing on the issue here: Whether, as the majority holds, the
manner in which defendant spent the money she inherited from the
murder victim shows that she had a financial motive to kill him. The
issue ought to be resolved by applying established principles on the
admissibility of evidence.
Only relevant evidence is admissible. (Evid.Code,
§ 350.) Relevant evidence is evidence “having any tendency in reason
to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid.Code, § 210.) “The test of
relevance is whether the evidence tends ‘logically, naturally, and by
reasonable inference’ to establish material facts․” (People v. Garceau
(1993) 6 Cal.4th 140, 177, 24 Cal.Rptr.2d 664, 862 P.2d 664.) Motive
is a material fact. (Ibid.)
Evidence that a defendant charged with murder
inherited property or collected life insurance benefits from the
victim is relevant, and therefore admissible, when the defendant knew
of the policy's existence at the time of the victim's death. (People
v. Goedecke (1967) 65 Cal.2d 850, 860, 56 Cal.Rptr. 625, 423 P.2d
777.) Such evidence would tend to show that the defendant had a
motive for the murder. Thus, here the prosecution was entitled to
introduce evidence that defendant collected life insurance benefits
and inherited property on the death of her estranged husband, because
it is reasonable to infer that she knew she would be entitled to them
when her husband died. But what she did with those assets has no
bearing on her motive to kill. How one disposes of inherited money
or property differs from person to person. Some may choose to invest
in the stock market or to support a favorite charity. Others may
decide to use the inherited wealth to indulge in a buying spree
largely for their own benefit and enjoyment, as occurred here. In
either situation, how the inheritance is spent has no “tendency in
reason” (Evid.Code, § 210) to establish a motive for the killing by
which the funds were obtained.
Thus, the evidence of defendant's spending habits
after her husband's death served only to show, as defendant puts it,
that she was outside “the norm of middle class women,” and that she
was “a person of poor judgment” who was “loose with money.”
Assuming, as does the majority, that defendant objected with
sufficient specificity to preserve the issue, the trial court erred by
admitting, at the guilt phase of defendant's capital trial, evidence
of how she spent the money she inherited from her murdered husband.
The error, however, was harmless, because there was
overwhelming evidence of defendant's guilt. Three witnesses (Heidi
Dougall, Celina Krall, and Marsha Hutchison) testified that defendant
told them that she wanted her husband dead, and another witness (David
Navarro) testified that defendant had solicited him to kill her
husband. Defendant's close friend, Anne Hambly, testified that
defendant told her she had persuaded James Bernstein to hire a “hit
man” to kill defendant's husband. Defendant also told Hambly that
she later had Bernstein killed because she was afraid that he would
tell the police of her involvement in her husband's death. Paul
Gaul, who killed Bernstein with the assistance of an accomplice,
testified that defendant had asked him to commit the murder because
Bernstein was blackmailing her by threatening to tell the police of
her role in her husband's murder. Given the strength of this
evidence, it is not “reasonably probable” (People v. Watson (1956) 46
Cal.2d 818, 836, 299 P.2d 243) that the outcome of defendant's trial
would have been different if the trial court had excluded the evidence
of how she spent the money she inherited after his death.1
I now turn to the prosecutor's biblical references
at the penalty phase.
In her closing argument to the jury, the prosecutor
said: “Genesis chapter 9, verse 6; Exodus chapter 21, verse 12; and
the Book of Numbers chapter 35, verse 31 all repeat the same basic
message: ‘Whoever sheds the blood of man, by man shall his blood be
shed, for in his image did God make man.’ ” Defendant raised an
objection, which the trial court overruled. The prosecutor then
continued, “ ‘He who fatally strikes a man shall be put to death.’
[¶] Exodus even answers a common defense argument that only God can
take a life. [¶] ‘It is not [sic ] man, not God, who is to execute
murders. By man shall his, the murderers [sic ] blood be shed.’ [¶]
Although some look to the New Testament and quote, ‘Vengeance is mine,
I will repay saith the Lord,’ in the very next chapter, Romans, Paul
calls for capital punishment by saying, ‘The ruler bears not the sword
․ in vain for he is the minister [of] God, a revenger to execute wrath
upon him that doeth evil.’ ”
The prosecutor followed those biblical quotations
with these comments: “Now that's enough said. And please understand
I'm not telling you to use the Bible. I'm telling you not to use the
Bible. The Bible is not the law of the land. [¶] I only read those
brief quotes for any of you who may have personal reservations against
the death penalty because you believe that it is against your own
beliefs. [¶] Please don't misunderstand because there was no other
reason for reading those sections other than that. [¶] Ladies and
gentlemen, ․ a free society requires of its citizen jurors strength
and vigilance and courage and resolve in making the tough decision
that is before you now. [¶] It is much easier to beg you to spare a
life than to ask you to take a life. That's because those of us who
live within the norms of society have a natural compassion, a natural
reference [sic ] for life. [¶] It would be very easy for you to ․
walk away, to say that [defendant] will spend the rest of her life in
prison. [¶] But there is a greater principle here. If you believe
that the death penalty is appropriate, then to walk away and to take
the easy road because it was convenient or because it's easy to live
with, I submit you are ignoring the laws of the land that capital
punishment should be applied when you decide it is appropriate.”
Defendant argues that the prosecutor's biblical
references violated her rights under the Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution. The majority does not
resolve the issue. It simply concludes that even if improper, the
prosecutor's argument did not prejudice defendant. The majority
explains: “The prosecutor's biblical argument was only a small part
of her argument, the bulk of which focused on arguing to the jury why
it should find that the statutory aggravating factors outweighed the
mitigating factors.” (Maj. opn., ante, 30 Cal.Rptr.3d at p. 135, 113
P.3d at p. 1150.)
If I were to find that the prosecutor's biblical
references in this case were improper, I would conclude that they
prejudiced defendant. The majority is wrong when it says that a
prosecutor's improper reliance on religious authority is harmless if
it is only a “small part” of the prosecutor's closing argument. I
explained why in my dissenting opinion in People v. Slaughter (2002)
27 Cal.4th 1187, 120 Cal.Rptr.2d 477, 47 P.3d 262. There, this court
used reasoning identical to that used by the majority here to find
that the prosecutor's improper biblical references in his closing
argument at the penalty phase of a capital case were harmless. I
dissented, with these comments: “The majority's assertion that the
prosecutor's improper argument must be considered harmless because it
was ‘part of a longer argument that properly focused upon the factors
in aggravation and mitigation’ ․ makes little sense. Under that
logic, prosecutors may freely refer to biblical authority when making
their penalty arguments to juries in capital cases, secure in the
knowledge that this court will never reverse a resulting death
judgment for this misconduct, provided only that the prosecutors also
present an argument focusing on the statutory aggravating and
mitigating factors. Appeals to divine authority in jury arguments in
capital cases are prejudicial when jurors for whom the aggravating and
mitigating factors appear closely balanced use religious
considerations to resolve their doubts, as the prosecutor's improper
argument invites them to do.” (Id. at p. 1228, 120 Cal.Rptr.2d 477,
47 P.3d 262 (dis. opn. of Kennard, J.); see also People v. Vieira
(2005) 35 Cal.4th 264, 309, 25 Cal.Rptr.3d 337, 106 P.3d 990 (dis.
opn. of Kennard, J.).) The majority here employs the same faulty
logic used by the majority in Slaughter.
Because, in my view, an impermissible reliance on
religious authority by the prosecutor may be prejudicial even when, as
here, the biblical references are only a short part of the
prosecutor's argument, I must decide whether the prosecutor's biblical
references in this case were improper. On point here is this court's
decision in People v. Hughes (2002) 27 Cal.4th 287, 116 Cal.Rptr.2d
401, 39 P.3d 432, in which I joined. There the prosecutor, as in
this case, quoted several biblical passages supportive of the death
penalty in his closing argument at the penalty phase of a capital
trial. But he went on to explain to the jury that he was not trying
to argue that the Bible provided a basis for imposing the death
penalty, but only to show that the Bible was “ ‘not an impediment to
imposing the death penalty.’ ” (Id. at p. 391, 116 Cal.Rptr.2d 401,
39 P.3d 432.) This court held the comments were permissible: “The
prosecutor's references were part of a straightforward argument that
jurors should not be persuaded either way by biblical and religious
teachings, and that the ultimate penalty decision was an individual
determination. The prosecutor did not imply or suggest that another,
higher law should be applied instead of the court's instructions․”
(Id. at p. 392, 116 Cal.Rptr.2d 401, 39 P.3d 432.)
“Because any use of biblical references in argument
must be carefully scrutinized, cautious prosecutors will choose to
avoid such references” (People v. Harrison (2005) 35 Cal.4th 208, 248,
25 Cal.Rptr.3d 224, 106 P.3d 895); “[a] prosecutor who mentions the
Bible in closing argument runs a grave risk that a reviewing court
will ․ reverse the defendant's conviction” (ibid.). But here, as in
Hughes, the prosecutor's biblical references “were part of a
straightforward argument that jurors should not be persuaded either
way by biblical and religious teachings․” (People v. Hughes, supra,
27 Cal.4th at p. 392, 116 Cal.Rptr.2d 401, 39 P.3d 432), but should
instead base their penalty decision on “the laws of the land.” Thus,
under this court's decision in Hughes, the prosecutor's argument did
not violate defendant's constitutional rights.
testified that his brother had been killed by drug dealers and that he
had been angered by it.
noted above, these claims relate to evidence that after Robert
Samuels's death defendant not only lived a lavish lifestyle and made
extravagant purchases, she was callous and indifferent to Samuels's
death. Evidence of defendant's extravagant purchases included a new
Porsche automobile; costly custom clothing from a store called
“Trashy Lingerie”; scuba equipment for Dean Groover; a 30-inch
television and a car phone; and a fur coat. Additional evidence of
defendant's lavish lifestyle included a trip to Mexico and the
purchase of property in Cancun, Mexico; a financial investment in
Groover Productions; paying for the cost of others to travel to Las
Vegas, San Francisco, and Cancun; being free with her money;
throwing a birthday party for herself at a country club; using
limousines for transportation; and expending most, if not all, of the
money she received from Robert Samuels's death within one year.
Evidence of defendant's callousness and indifference included
defendant's posing for a photograph while covered only in money;
commencing a relationship with Dean Groover; forging Robert
Samuels's mother's signature; and refinancing the home she inherited
after Samuels's death and providing fraudulent information on the
related loan documents.
instances include: defendant requested that Paul Gaul steal paperwork
for her in Mexico; defendant attended bars and clubs; defendant
received pornographic letters; defendant used drugs; defendant
allowed her daughter to drop out of high school; defendant allowed
her daughter to leave the family home at age 16; defendant took her
minor daughter and her minor friends to bars; defendant's daughter
and her daughter's friends used drugs supplied by defendant while at
defendant's house; defendant influenced her daughter and her
daughter's friends to dress inappropriately; defendant allowed her
daughter to take a trip to Mexico with James Bernstein; defendant's
daughter allowed herself to be photographed in a suggestive position;
defendant's daughter refused to return or pay for jewelry she had
“hocked” that had been bought for her by James Bernstein with David
Navarro's credit and suggested that a false insurance claim be made;
defendant's daughter was engaged to James Bernstein while engaged to
Daley interviewed Bernstein at the police station on April 24, 1989.
After this interview, Daley asked defendant to come to the police
station. Daley placed defendant and Bernstein in the same room and
listened to their conversation from a monitoring room in the police
Code sections 1500 to 1511 were effective until January 1, 1999.
(Stats.1998, ch. 100, § 1.)
referring to the Bible, the prosecutor stated: “Genesis chapter 9,
verse 6; Exodus chapter 21, verse 12; and the Book of Numbers
chapter 35, verse 31 all repeat the same basic message: ‘Whoever
sheds the blood of man, by man shall his blood be shed, for in his
image did God make man.’ ․ ‘He who fatally strikes a man shall be put
to death.’ Exodus even answers a common defense argument that only
God can take a life. ‘It is not [sic ] man, not God, who is to
execute murderers. By man shall his, murderers blood be shed.’
Although some look to the New Testament and quote, ‘Vengeance is mine,
I will repay saith the Lord,’ in the very next chapter, Romans, Paul
calls for capital punishment by saying, ‘The ruler bears not the
sword-’ ․ ‘-the sword in vain for he is the minister [of] God, a
revenger to execute wrath upon him that doeth evil.’ ”
course, care should be taken not to suggest that the jury's
responsibility for its verdict is in any way diluted by the
possibility of an appeal or future commutation or grant of executive
clemency. (See People v. Memro (1995) 11 Cal.4th 786, 878-879, 47
Cal.Rptr.2d 219, 905 P.2d 1305; People v. Fierro (1991) 1 Cal.4th
173, 245, 3 Cal.Rptr.2d 426, 821 P.2d 1302; see generally Caldwell v.
Mississippi (1985) 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231.)
When a jury asks for greater elucidation on this subject, however,
some mention of the possibility of appellate review or commutation may
also argues that in addition to violating state law, admission of the
evidence showing how she spent her inheritance violated her right to
due process under the Sixth, Eighth, and Fourteenth Amendments to the
federal Constitution. She cites authority holding that “the
admission of bad act testimony violates due process where ‘the
admission of the testimony was arbitrary or fundamentally unfair.’ ”
(Terrovona v. Kincheloe (9th Cir.1988) 852 F.2d 424, 429.) Assuming
for the sake of argument that this standard, which pertains to the
admission of prior criminal conduct by the defendant, is applicable
here, I perceive no violation of defendant's constitutional rights.
The trial court's admission of the evidence in question, although
erroneous under state law, was not so damaging as to make the trial
WE CONCUR: GEORGE, C.J., BAXTER, CHIN, and MORENO,
JJ.I join the concurring opinion: KENNARD, J.
Mary Ellen Samuels
Mary Ellen Samuels