Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA057199, Ruffo Espinosa, Jr., Judge.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kristofer Jorstad and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Juanita Celia Garcia (appellant) was convicted of first degree murder with use of a firearm and sentenced to life without possibility of parole pursuant to a financial gain special circumstance. The deceased was her long-time male companion, with whom she had lived for over eight years. The jury rejected appellant’s self-defense and defense of others claims, notwithstanding expert testimony that she was a battered woman. We reject her contention that the evidence was insufficient to support the jury’s financial gain finding. We also reject her claims that the trial was tainted by judicial misconduct and Wheeler error during jury selection, evidentiary and instructional error during trial, prosecutorial misconduct during closing argument, and ineffectiveness of counsel with respect to a posttrial report of possible jury misconduct.
However, Garcia’s sentencing hearing was improperly conducted by the trial court without appropriate consideration of her request to discharge her retained trial attorney. We will vacate the judgment and remand for further proceedings related to her motion for new trial and sentencing. In all other respects, we affirm.
PROCEDURAL HISTORY
Appellant was convicted by jury of first degree premeditated murder, a violation of Penal Code section 187. The jury found that appellant had committed the murder for financial gain within the meaning of section 190.2, subdivision (a)(1). Several firearm enhancement allegations were also found true: that appellant personally used a firearm within the meaning of section12022.53, subdivision (b), that she personally and intentionally discharged it within the meaning of section 12022.53, subdivision (c), and that she proximately caused the victim’s death by discharging a firearm within the meaning of section 12022.53, subdivision (d). The trial court sentenced appellant to state prison for a term of life without possibility of parole, plus a consecutive sentence of 25 years to life. She filed a timely notice of appeal.
Except for references to the Evidence Code in section V. of the Discussion, all further undesignated statutory references are to the Penal Code.
FACTUAL SUMMARY
I. Overview
The charged offense took place on the evening of October 13, 2002, at the Long Beach home shared by appellant and victim David Zweig (Zweig). Appellant had been living with Zweig for several years, but they were not married. Zweig owned the home, in which he had installed a computerized camera system which recorded many of the events material to this case, including the shooting itself. The computer contained images, without sound, taken by 16 cameras between late September and October 13.
The prosecution established that the shooting occurred shortly after appellant retrieved a loaded handgun from a chest in her bedroom, and argued the video recording proved the absence of any imminent attack by Zweig. The day before the shooting, Zweig placed on the kitchen counter a handwritten, thirty-day notice of eviction of appellant. During an early October conversation tape recorded by appellant, she demanded that Zweig pay her $15,000 to move out. When he offered her much less, appellant threatened to “take [Zweig] down.” When Zweig asked if she was threatening his life she responded, “No, that’s a promise, honey. I have nothing to lose.” The prosecution proved appellant was the primary beneficiary of Zweig’s trust, which was designed to support her for life after Zweig’s death, and that her attorney made inquiries about accessing trust funds following Zweig’s death.
The defense presented extensive evidence regarding the relationship between Zweig and appellant and Zweig’s character for violent and threatening conduct. Appellant testified that she armed herself after Zweig threatened to kill her son, who was living next door, and that she shot Zweig intending only to wound him as he charged at her. Appellant explained her demand for money as based on a previous promise by Zweig to pay for her upcoming surgery. She denied intending to physically harm Zweig when she made the threat, and denied any financial motive at the time of the shooting. She denied intending to use trust funds for herself. Appellant and other witnesses established that Zweig had kicked her out of his home many times before, only to insist that she return. The defense sought to establish, through expert testimony and several witnesses, that Zweig had abused appellant emotionally, verbally and physically throughout their relationship, and that the battered women’s syndrome explained the shooting and other aspects of appellant’s conduct.
II. Prosecution Evidence
A. Zweig’s trust
In February of 2002, Zweig executed a trust prepared by probate attorney William Lanuti. The trust named appellant as the primary beneficiary. It provided that, if she survived Zweig, she would inherit all of Zweig’s personal property, plus $100,000 immediately, $6,000 per month from Zweig’s pension fund, complete health care coverage, a life estate in the house, and all necessary expenses to maintain the home.
Appellant knew about the trust. Shortly after it was created, she phoned attorney Lanuti and told him he had misspelled Zweig’s name, resulting in an amended document being signed by Zweig in May of 2002. The value of all the trust’s assets, including the house, was $3.1 million. After taxes, the value would be about $2.1 million. After Zweig died, appellant’s trial counsel made demands on the trust on appellant’s behalf. Appellant’s trial counsel also made several calls to police investigators checking on the status of the case in relation to appellant’s entitlement to the proceeds of Zweig’s trust.
B. Earlier assaults by appellant
The video recording included portions of incidents on October 1 and October 7, which depicted the appellant repeatedly striking Zweig.
C. Appellant’s money demand and threat
Audiotapes found in the house on the day of the shooting included a recording of an early October conversation wherein appellant and Zweig argued and berated one another, and discussed whether appellant and one of her sons would move out of the house. Zweig told appellant she would have difficulty getting money from him in court. He told appellant he didn’t want her to have anything, and hoped she would die on the table during her upcoming surgery. Zweig refused appellant’s demand for $15,000 before she would leave, adding, “I will give you five thousand. I’ll write you a check right now if you will leave today.” Appellant responded, “I’ll leave today if you give me 15.” Zweig again offered $5,000, adding, “And you’ll get outta here. You’re not getting any money from me for an operation.” After further conversation, the following exchange occurred:
“Zweig: Anyway... that’s your 30 day notice. I want you out.
“Appellant: Mmnh.
“Zweig: That’s what the Marshall says.
“Appellant: We’ll see about that. I’ll take you down like you’ve never been took before.
“Zweig: I’m not worried about what you
“Appellant: You know what? I ain’t got nothing to lose, honey. Ha, ha.
“Zweig: I know [unintelligible] so that’s a threat?
“Appellant: Nothing.
“Zweig: That’s a threat on my life?
“Appellant: No, that’s a promise, honey. I have nothing to lose.
“Zweig: You are going to jail.
“Appellant: Huh? I’m not making any threats.
“Zweig: You just threatened me.
“Appellant: I didn’t make any threats. I told you, that’s a promise.
“Zweig: Well, that’s a threat.
“Appellant: If you want to go in court, we can go in court.
“Zweig: I’d love to go to court. You see if you can get a lawyer. Tell em it’s what you’ve gotten from me all these years....”
D. The eviction notice
On the night of October 12, responding police officers found two notes in the kitchen of Zweig’s residence. One read, “You took all the keys to the car, you bitch. F*** you.” The other, stated, “Today is 10-11. Moving out notice, Juanita C. Garcia, one month from today. You will move out totally 11-12-02. David Zweig.”
E. October 12, 2002
On October 12, the night before the shooting, Long Beach Detective Donald Wood and other officers went to the Zweig home in response to a 911 call in which one of appellant’s sons, Will Charles, reported that Zweig was threatening people with guns. Appellant told Wood that Zweig was acting aggressively, might be drunk and had spread out and loaded a rifle and several handguns. She did not report being choked or mention the dogs, and she did not ask the officers to remove Zweig or the guns from the house.
Zweig confirmed the guns were his but stated he did not know who set the guns on the den floor. Zweig stated appellant and her sons were setting him up because Zweig was trying to evict them. Zweig added that he had already kicked Will Charles out of the house because Charles had been stealing from Zweig. Zweig had been drinking but did not appear drunk to Wood, who concluded no crime had occurred. Detective Wood advised Zweig that he should take the guns out of the house in order to protect himself.
F. October 13, 2002
On October 13 Zweig confided in bartender Susan Generakos about his domestic problems and gave her a trash bag containing seven guns for safekeeping. As he loaded them into her trunk, Zweig stated he was afraid appellant was going to kill him.
Later on October 13, the home video system recorded Zweig parking his car in the driveway and walking into the kitchen. After changing clothes, Zweig cleaned up dog feces in the back yard, returned to the kitchen and washed his hands. He then appeared to be changing trash bags in the kitchen. Meanwhile, appellant went to her bedroom and took a loaded handgun from her hope chest. She came out holding the gun behind a pillow. Appellant backed partially out of view of the camera, into a hallway off the living room near a recliner. She was about seven to eight feet away from Zweig when she shot him. Appellant set the gun down after the shooting and called 911.)
Long Beach Police Detective Paul Edwards reviewed all of the relevant recordings from Zweig’s home system, which included recordings by multiple cameras over a few days in September and 13 days in October. He was specifically looking for evidence of the relationship between appellant and Zweig. He found no evidence supporting appellant’s claim she had shot Zweig in self-defense. He did see two incidents of aggressive conduct by Zweig, on October 9 and 12. The latter occurred about an hour before the police were called to the house on the day before the shooting. The October 9 incident consisted of two separate occasions in a half hour time span. Both occurred in the living room during apparent arguments, and both involved Zweig rushing at appellant with outstretched arms, followed by Zweig grabbing either appellant or the sides of the chair on which she sat. He did not see Zweig grab appellant’s neck
Detective Edwards also watched recordings of two aggressive acts by appellant. One, on October 1, consisted of appellant slapping, prodding and grabbing Zweig. She also blocked his view of the television and antagonized Zweig by following him around the house as he tried to move away. The second, on October 7, was similar.
On the evening of October 13 Detective Wood and others responded to a report of a shooting at the Zweig residence. Appellant came out of the house and said she had shot Zweig in the stomach. Detective Wood found Zweig in the house, conscious and breathing. He was lying on his back, and had a gunshot wound to his abdomen. When Detective Wood asked Zweig about the guns, Zweig stated he had removed them and did not know where appellant had gotten a gun.
G. Zweig’s death and related crime scene investigation
Zweig was hospitalized for over a month and died on November 17, 2002, due to complications from the abdominal gunshot wound. The fatal bullet was fired from a.40 caliber semiautomatic handgun that was registered to appellant and found, loaded with a round in the chamber, on the floor near the wounded victim. A spent casing found on a loveseat was also matched to appellant’s gun. An unloaded rifle, a BB gun, a stun gun, several boxes of ammunition, magazines, and pepper spray were found in the den on the night of the shooting.
III. Defense Evidence
A. Appellant’s testimony
1. Background
Appellant and David Zweig considered themselves to be married, and told people that they were married. They lived together for eight and a half years. They met in 1990 when appellant was at business meetings, and he was at the bar where he often spent most of the day. Appellant resisted Zweig’s “advances” for five months, but eventually went out with him. Zweig was charming, but he lived in a shabby hotel room and was not working, because he had a stroke when he was 47 years old. He was also a heavy drinker. Appellant felt sorry for him. She cooked and bought food for him. She later learned that Zweig lied to her about his age. He was older than he said he was.
Appellant worked full-time plus weekend overtime before she met Zweig. She earned $35,000 to $40,000 a year, supporting herself and her children. Eventually Zweig asked her not to work outside the home, and she complied.
Once, when appellant brought Zweig food in his hotel room, he tried to force himself on her. She could tell he was under the influence of medication when she looked into his eyes. When she started crying, he stopped and apologized. He said he had been on medication, and had been drinking too much.
Appellant moved into Zweig’s hotel room. Later they moved to a house appellant rented from her mother. When they moved to Las Vegas at Zweig’s request, appellant quit her job. Zweig wanted to move after having trouble and fights with other bar patrons. In Las Vegas, appellant learned that Zweig was “quite wealthy.” He told her several times that there was no reason for her to work. She quit work and stopped going to her church meetings at his request, in order to spend more time with him. Her relationship with her family, which had been close, suffered after the move to Las Vegas.
Zweig gambled and drank more heavily in Las Vegas. He drank all day, every day. Zweig saw several doctors for various medical problems. He took many medications, close to 60 pills a day, including Prozac. Appellant drove Zweig from Las Vegas to medical appointments in California.
In Las Vegas, Zweig became more angry and violent. Several times each week he brought home strangers from bars without warning, and ordered appellant to make dinner for them. He yelled at appellant for taking too much time to do this. A few times, Zweig choked her and slammed her against the wall of their condominium, then cried and apologized.
Appellant left Zweig for a couple months, and stayed in Orange County. Zweig phoned her every day. She returned to him after he apologized. She felt sorry for him and loved him very much.
Months later, Zweig choked appellant again. She asked friends to take her to the Las Vegas airport, because her car did not work. She bought a ticket at the airline counter and took a standby flight to California. Appellant later learned that Zweig had tampered with her car, which explained why she could not use it. Appellant went to her mother’s home. After a few days, Zweig drove to California and asked her to meet him at a nearby motel. Appellant met him there, but told him she was leaving. As she walked out, Zweig pulled her through the window of his car by her hair, and punched her in the face several times. He pulled the ring off her finger, left her there, and drove to a bar. Appellant asked some people she knew to drive her to the bar so she could get her purse. Appellant told Zweig she only wanted her ring and her purse. He gave them to her. He said she should retrieve her property from Las Vegas. He also told her where he put the cable to her car. She took the next flight to Las Vegas to get her car. She then moved to Hawaii.
Appellant attempted suicide in Hawaii, then phoned her pastor. She soon returned to her mother’s home for several weeks. Zweig phoned her there, and visited a few times. She and Zweig returned to Las Vegas together. Zweig promised to stop drinking and acting violently. Appellant returned to him because she believed him and loved him. They moved back to California and into a house. For the next five years appellant worked in the chemical industry, again earning $35,000 to $40,000 a year with full benefits. At Zweig’s insistence, she spent weeks moving some heavy rocks which the prior owner had buried in the backyard.
Zweig was abusive to her “on and off,” and began drinking heavily again, from six to eleven hours a day. He took many medications, and had health problems. He ignored his doctors’ warnings about drinking. Appellant told Zweig’s doctors that Zweig was getting very aggressive. Zweig threatened several people. Zweig saw a psychiatrist. Until 2001, some of Zweig’s doctors did not know what medications the other doctors had prescribed. Appellant gave these doctors a full list of Zweig’s medications, but they did not alter Zweig’s prescriptions. Zweig also got prescription medications purchased in Mexico from bartenders, including Susan Generakos.
Zweig had great difficulty when he tried to have sex with appellant, despite the various medical treatments he used in his attempt to solve this problem. This made him angry, and he choked appellant a few times. Testosterone shots made him very aggressive.
Appellant left Zweig again and moved to a separate house for a year. She did that because Zweig kicked her out of their home about 20 times in the middle of the night. She had to hire people to help her move her furniture every time. Before she moved into that separate house, she stayed with friends or her mother, or slept in her office. Each time Zweig kicked her out appellant returned, because she loved him and she “was sucked into believing” him, due to her “sickness.” When appellant moved into her separate house she paid all her bills, and took no money from Zweig.
Zweig stalked her during this time. He drove by her work and office, and phoned her. Appellant did not call the police because she knew Zweig was ill and she did not want him arrested. She never thought about getting a restraining order. After Zweig cooked dinner for her and begged her to return, she agreed to move back into his house because she loved him. Zweig insisted that she sell her furniture before she moved back in with him. She told him she did not want to do so, but she acquiesced. She had a garage sale on weekends, and sold a very expensive piece of furniture for five dollars.
After appellant returned to Zweig, he was abusive, but less frequently. He tried hard, and drank much less. But on one occasion Zweig kicked appellant very hard in the stomach. Appellant was terrified and felt great pain. They had a lot of good days, but there were also times when she locked herself in the bathroom or left the house just to get away from him. Zweig would go “ballistic” due to his abuse of alcohol and medications. Despite the abuse, appellant physically cared for Zweig. Because of the alcohol and drugs, for a six year period Zweig would soil his pants and appellant had to wipe him and clean him up.
Appellant started to tape record Zweig because she was concerned about the threats he was making to other people. She did not call the police because she loved him and did not want him sent to jail. Zweig knew appellant recorded him, because the tape recorder was out in the open. Appellant played a tape of Zweig for his doctor, and warned the doctor that Zweig acted violently toward her and threatened to kill people. The doctor refused to get involved. The doctor offered to refer Zweig to a therapist, but Zweig refused.
Zweig had several guns, and carried one with him. He hit appellant when he mistakenly thought she took the clip out of his gun. Another time, he physically attacked appellant in front of the Boltons when she had them over for dinner. On several occasions Zweig went into rages if appellant or her son did not do the housework as he expected. Appellant’s son was very busy with extracurricular activities at school, and had very little time.
When appellant went to stay with her mother, Zweig physically attacked and yelled at appellant, and assaulted appellant’s mother with an activated taser. Appellant’s mother called the police and appellant asked Zweig to leave. Appellant stayed with her mother for three days, but reunited with Zweig after he apologized profusely.
They stayed in a hotel for a month. Zweig had a loaded gun at the hotel. He went to his cousins’ home and threatened to kill them. The police came to the hotel, and warned Zweig to stay away from his cousins or the police would arrest him.
When Zweig bought the house on Hanbury, it had none of the security measures present at the time of the shooting. Zweig added them over time at a total cost of $70,000.
Zweig wanted a professionally trained guard dog because he feared people might attack him, especially his nearby cousins, whom he had threatened. He was pleased when Bob Taylor trained the dogs to attack. Zweig said he wanted all the security measures because he planned to die soon, and he wanted to “take out a few people before he went.” Zweig wanted to make it difficult for people to come into his home. Zweig wanted the home on “lock down” at night. The security measures made appellant feel trapped and terrified, as if locked in with a crazy person. Appellant denied that the reason for the security system was that her son stole from Zweig. Appellant said her son was not living there, and never stole from them.
Appellant saw Zweig use a taser against the neighbors (the Pagnotta’s) and threaten to kill them. After that incident, Zweig got very angry and violent toward appellant, blaming her for her son turning against Zweig.
Zweig kept “tabs” on appellant when she ran errands for him. He phoned her constantly, asked what was taking her so long, and was verbally abusive. Appellant felt controlled, a “horrible feeling.” When she arrived late for a dog handling lesson at the trainer’s house, Zweig called the trainer repeatedly and yelled at appellant over the phone after she arrived.
Zweig bought numerous guns, and pressured appellant to buy guns in her name, so she could turn them over to him. Zweig had a gun in every room of the house, a total of 15 or 20, most of which were purchased in the months before the shooting. He purchased several gun safes because of appellant’s fear of the guns, but did not keep them locked. Zweig always carried a gun with him, though he did not have a concealed weapons permit. Zweig’s guns terrified appellant.
According to appellant, Shirley Bolton was mistaken when she testified appellant took care of her at her home every day. Bolton’s husband ate dinner with Zweig and appellant, and took food home to Shirley. Appellant also helped Bolton a little, but she did not stay at Bolton’s home regularly.
Moments before Zweig signed the trust documents, appellant declined his marriage proposal. He was afraid he was going to die in surgery and wanted appellant to have financial support. She told him she was not concerned about financial support. Appellant wanted to marry him, but only if Zweig first took care of his drinking problem and stopped abusing her. The doctors put a stent in his artery, which was 70 percent blocked.
Zweig never told appellant what was in the trust, and appellant never read it. Appellant admitted that she knew, when Zweig created the trust, that he was leaving most of his assets to her. Appellant did not recall whether she phoned the probate lawyer, Mr. Lanuti. She might have done so at Zweig’s request. Zweig frequently gave her instructions to call people.
Zweig tried to give appellant very expensive jewelry, but she declined because she did not feel comfortable wearing it. Appellant refused to take her share of her father’s estate. She was entitled to $100,000, and a share of 1100 acres. She felt her siblings needed the inheritance more than she did.
Asked about the video footage showing her standing near Zweig as he sat in a chair and watched television, appellant denied that she was blocking Zweig’s view. She was waiting for Zweig’s Viagra “to kick in.” She flicked his body with her finger to speed up the process. She touched him to get his attention. She grabbed his arm playfully. She was not trying to harass him.
Appellant discussed other parts of the video footage. According to her, it showed Zweig, at different times, yelling at her, lunging at her while he called the dog on her, grabbing her arm while calling the dog, choking her, trying to pull her off her chair by reaching for her leg, attacking her in bed because he wanted her to wear shorter hair, taking Vicodin and other medication the day before the shooting, taking other pills the morning of the shooting, and flipping her off.
2. October 12
On the afternoon of October 12, the day before the shooting, Zweig told appellant to go to the hairdresser. She only went once a year, when Zweig told her to go. Before she met Zweig, she went more frequently. Zweig gave her his wallet, containing his driver’s license and credit cards, as he customarily did when she went shopping. She left in Zweig’s car at 12:10. Zweig knew that appellant did not have an appointment with the hairdresser, and she called to remind him it would take longer than usual. Zweig had no problem with it. When she phoned him again, to check in as she was required to do, she had to reach him at the bar. He yelled and swore at her, and told her to come home as soon as possible. Appellant was very afraid because she knew Zweig was outraged and she was in trouble. She arrived home about 7:30 p.m. Zweig was not there, so appellant put on a nice dress and drove to the bar, concerned that Zweig had driven there while on medications and had been drinking. At this time, appellant was unaware of the presence of the guns in the den and the “eviction” note in the kitchen.
When appellant sat down with Zweig at the bar he immediately yelled and swore at her in front of all the customers. He told her to drive her own car home and, still yelling, chased her as she walked out. Zweig called her a “whore,” a “slut” and a “liar.” She felt devastated and in considerable stomach pain when she left the bar. She drove home; Zweig arrived about half an hour later.
Appellant undressed after arriving home from the bar, then walked into the den. That was when she first saw the guns and ammunition laid out, which scared her. There were ten or more guns, three or four fully loaded clips for each gun and over a dozen boxes of ammunition. Neither Zweig nor appellant’s sons had ever left the weapons out like that. Her son David had cleaned the guns in the past at Zweig’s request, but she had never seen either of her sons load the guns. Appellant had not asked her son to put the guns out in the den.
Zweig came home just before 10:00 p.m., intoxicated, staggering and, as depicted on the video, having unusual trouble unlocking the door. Appellant interpreted further video footage as showing that Zweig yelled at her when he returned home. (The video footage had no sound.) Zweig came into the living room where appellant was watching a prerecorded Billy Graham program. He choked and shook her as he called her a “whore” and a “slut” and accused her of lying about the hairdresser’s location. Appellant was scared. The dog growled and Zweig hit the dog. Zweig threatened to kill appellant and several others, including appellant’s mother and son, the neighbors, people at the bar and Zweig’s cousins. Appellant testified that this was the worst that Zweig ever treated her, with the possible exception of the day of the shooting.
Appellant went to the neighbors and told her son Charles to call the police because Zweig had attacked and choked her. She told him not to call from a house phone so that Zweig would not know who placed the call. Appellant interpreted video footage as showing that Zweig asked his friend, a police officer, to find out who placed the 911 call. According to appellant, Zweig obtained information from his friend about the Pagnottas on a prior occasion. This made appellant very fearful about reporting the October 12 incident.
When the police arrived on the twelfth, appellant told Detective Wood that Zweig had been drinking and taking pills, and had choked her. She showed Detective Wood marks on her neck and told him she was in great fear of the loaded guns and ammunition. She added that Zweig was angry, was on medication, just got back from the bar, and had been drinking. Appellant begged Detective Wood, but he took the matter very lightly. Appellant then told Officer Clint Cavaness about it and said she was in great fear. She was shaking and trembling, and told him she never had to call the police before. She explained that Zweig had threatened to kill her and choked her. Appellant showed Officer Cavaness the guns in the den, and he said, “Wow.” He was impressed by the quality of Zweig’s gun collection.
Appellant asked the officers to take the guns away. She was appalled when they did not take her seriously. The officers talked to Zweig casually, and did not discuss the guns. The officers asked her why she did not leave. She explained she had tumors, was bleeding heavily, and was very ill. When the police left appellant felt “devastated.” She saw Zweig speaking to a neighbor who was a police officer. The neighbor-officer agreed to find out who had summoned the police.
On October 12, appellant made the audio tape she later gave to the police. The background noise from the television included a comment about October 7, but that was because the television was playing a program she had recorded on October 7. Appellant needed $15,000 to pay for her surgery. Zweig had volunteered to pay for it, and a surgery date had already been set. On the audio recording, Zweig said he wanted appellant to “die on the table,” which meant the operating table. When appellant told Zweig she was going to “take him down,” she was not threatening his life. She merely meant that she would take him to court for his threatening behavior. Appellant insisted that Zweig threatened her in that audio recording, but could not demonstrate where the tape reflected that.
3. October 13
The next morning (October 13, the day of the shooting), appellant wanted to get away, and went to her mother’s home with her son, David Scott. She did not tell Zweig where she was going. After a few hours Zweig called appellant’s cell phone and demanded to know where she was. Appellant replied, “It’s none of your business.... It’s over.” As Zweig swore at her, she hung up. However, she returned home to ensure the safety of her youngest son, Will Charles (Charles), who was staying with the neighbors. Zweig was not home, and she took a nap on the couch. Later she went to the store. She was not home when Zweig packed a bag of guns and left the house.
After appellant returned from the store Zweig came home and yelled at her. As she and Zweig heard the sound of Charles revving his car engine at the neighbor’s home, Zweig yelled that he was going to kill Charles and the neighbors. He added that appellant would have to watch him do it, and then he would kill her too. At that point, appellant wanted to “protect” herself and her son. Appellant went to the bedroom, put on her robe, and put a gun in a pillow. It was Zweig’s gun, and the only other time she had touched it was in the gun store. She intended to use the pillow to lie down. As appellant came out of the bedroom Zweig charged at her. She “snapped” and shot him. She intended to shoot his leg and disable him, then call the police. The trust meant nothing to her and she was not thinking of it when she shot Zweig. After she shot him, she called 911.
Appellant was released on bail after less than a day in custody. She visited Zweig in the hospital every day. Appellant made a demand on the trust, but her purpose was to spend the money on Zweig and keep him alive. She later made a demand on the trust to pay for Zweig’s funeral expenses.
Appellant admitted that, when the police came to her home to arrest her on June 26 (several months after the shooting), she told her son, David, to lie to the police and say she was not home.
Appellant admitted she had been caught stealing in 1978, 1979 and 1999. She denied that she stole Zweig’s medication, or told her expert witness she had done so. She denied that video footage showed Zweig counting his pills and confronting her about it.
Appellant admitted that she had several friends and family members who would have let her stay with them if she wanted to leave Zweig. She did not leave because she was too sick.
B. Battered women’s syndrome
A forensic and board certified clinical psychologist, Nancy Kaser-Boyd, testified at length about battered women’s syndrome. She explained the three-phase cycle of violence. Dr. Kaser-Boyd detailed the controlling, paranoid and egocentric personality traits of a typical batterer. She noted an abuser has poor emotional control and frustration tolerance, and frequently abuses alcohol and/or drugs. She explained how a battered woman’s feelings of fear and helplessness explain her behavior, and how an abuser’s substance abuse, threats and displays of weapons exacerbate the situation. She noted a battered woman is hypervigilant, and it would not be unusual for her to arm herself in response to an abuser’s display of weapons.
In the present case, Dr. Kaser-Boyd had reviewed police reports, interviewed friends and family, reviewed the video and audio recordings and conducted seven interviews with appellant totaling about 15 hours. Although appellant acknowledged that Zweig had never inflicted a serious physical injury on her, Dr. Kaser-Boyd believed the syndrome accurately described the relationship between appellant and Zweig. Zweig had abused appellant physically, economically, emotionally and sexually. He had insulted and humiliated her, controlled and isolated her, threatened and coerced her. He had punched and choked her, slapped and kicked her, assaulted her son and mother, and threatened and abused her pets. He had forced her to do heavy labor, deprived her of sleep, coerced sex and blamed appellant for his sexual inadequacy. As a result, appellant repeatedly returned after being kicked out of the house, minimized and hid the problem, and unrealistically hoped she could change Zweig. She suffered from chronic pain as a result of stress. According to Dr. Kaser-Boyd, appellant was a “nine” on a ten point scale of a battered woman.
C. Toxicology
Dr. Vina Spiehler, a board certified forensic toxicologist, reviewed Zweig’s hospital toxicology report. Zweig’s urine and blood were negative for both drugs and alcohol. Spiehler testified the tests would not have detected numerous mood-altering drugs taken by Zweig. A combination of such drugs or excessive doses of an individual drug such as Wellbutrin can cause delusions, hallucinations, psychotic episodes and paranoia.
Dr. Spiehler explained that the body of a chronic drinker burns off alcohol faster than that of others. A chronic drinker develops a tolerance for alcohol and can mask symptoms. Spiehler would have expected a readable level of alcohol in Zweig’s body. A heavy drinker is likely to have a readable level at all times. When the alcohol level goes to zero, a chronic drinker suffers withdrawal symptoms.
D. Third party testimony
1. Zweig’s first marriage
Barbara Depue married Zweig five weeks after she met him in a pub in 1978. They separated three weeks later due to Zweig’s heavy drinking, but continued dating. One night, as she returned from a Christmas party, he surprised her, pushed her inside her apartment and choked her as he accused her of taking his cinnamon when she moved out. The next day, Zweig “was very remorseful,” and went to “rehab” to treat his alcohol problem. They went to a marriage counselor, and Depue agreed to move back in with him. Zweig continued to drink and was “mean” to her. When he choked her again after she refused to return a puppy, it was “the last straw.” Depue bought a plane ticket to Nebraska and left while Zweig was at work. She returned to Southern California after a couple of weeks and went to her job. Zweig phoned her at work, said he knew where she lived, and recited her correct address. Depue phoned the police, but they said they could not help her. Zweig continued to call her, and said he had hired someone to kill her family in Nebraska. Depue called the police again, but they ignored her. She got the marriage annulled and never saw or heard about Zweig after 1979. There was no evidence that Zweig ever harmed her family. Other than the choking incidents, he never assaulted her or used a weapon against her.
2. Zweig’s conflict with a neighbor (August 2002)
Michael Pagnotta was Zweig’s next door neighbor. In August of 2002, Pagnotta’s wife spoke to appellant about sharing the cost of lattice work on the brick wall between their homes. Zweig later came to Pagnotta’s yard and spoke to Pagnotta in an aggressive tone about Pagnotta’s plan. Zweig asked who would do the work. Pagnotta replied that he would probably ask the man who did other remodeling work in Pagnotta’s home. Zweig stated that the same man had worked in appellant’s home, and did a poor job. Zweig added, “I have you on tape looking at my fence [and] making fun of my sign, beware of dog. You better knock it off.” Pagnotta stated, “Is that an invasion of privacy?” Zweig said it was not. Pagnotta asked, “What’s your problem, man?” Zweig replied, “I don’t like you. You’re a prick.” Zweig pulled out a taser and threatened to use it if Pagnotta touched him. Pagnotta told Zweig to get off his property.
Pagnotta’s wife came out of their house, and asked what was going on. Zweig told her, “You don’t know anything, you fucking Mexican.” She then spat at Zweig. Pagnotta “backed her off,” told Zweig to put the taser down, and said they should go out in the street and “take care of this like two men.” Pagnotta took his shirt off. Zweig backed off, repeatedly saying that he was going to get his gun and kill Pagnotta. Appellant came out and took Zweig into the house. Pagnotta called the police, and later filed a request for a restraining order against Zweig. Pagnotta thought Zweig was a danger to him and his family. Appellant’s son, Will Charles, overheard the argument and wrote a declaration supporting Pagnotta, which Pagnotta filed in court. Either appellant or Zweig then made Will Charles leave their home. Pagnotta let Charles stay with him until the shooting.
The court denied Pagnotta’s request for a restraining order. In Pagnotta’s declaration supporting that request, he stated that Zweig threatened to get a gun and kill him, if “I have to.” Pagnotta did not have any other problems with Zweig before appellant shot Zweig.
3. The neighbor’s observations shortly before and after the shooting
On October 12, the day before the shooting, Pagnotta saw the police come to Zweig’s house. Pagnotta overheard the police ask Zweig if he had been drinking, and Zweig replied, “Not too much.” The officer asked Zweig if he understood that “weapons and alcohol are not a good mixture,” and Zweig agreed. Zweig’s demeanor was “extremely loud” and “arrogant.” He appeared to be under the influence of alcohol. The day of the shooting, Pagnotta and his wife went out to dinner at about 5 or 6 p.m. As Pagnotta was leaving he saw Zweig, and noticed that Zweig had been drinking. Zweig stumbled out his car and had bloodshot eyes.
Asked on cross-examination whether he spoke with appellant after the shooting while she was still living in her home, Pagnotta said he might have but did not recall. The prosecutor then reminded Pagnotta that she and an investigator spoke to him shortly after the shooting. Pagnotta eventually agreed that, after appellant was released from jail pending trial, she told Pagnotta that, on the night of the shooting, Zweig had a gun and said he was going to shoot Pagnotta, Pagnotta’s wife, and Will Charles. Appellant said that when Zweig put the gun down so he could put on his jacket, appellant picked it up and shot him.
4. Zweig’s dog trainer
Four or five months before the shooting Zweig hired Robert Taylor, a former police officer, to train two Rottweilers, Helga and Brutus. Zweig said he was “nervous and traumatized” by operations and ailments and Helga was supposed to calm him down. Helga was a good dog but Taylor thought that Brutus had been abused before, and noted that Brutus “would snap at you out of fear.” Zweig asked Taylor to train Brutus to be a sentry dog, which “will bite anyone who comes close to the handler unless the handler tells the dog differently.” Zweig told Taylor that he hated his neighbor. If the neighbor went on Zweig’s property, Zweig wanted to make sure that the neighbor did not leave “without getting bit.” If appellant’s son came over, Zweig wanted Brutus “to rip him up,” because he thought appellant’s son “betrayed” him by taking the neighbor’s side in a dispute, and was lazy and irresponsible. Taylor refused to train the dog to do that. Despite Zweig’s requests, Taylor only trained the dogs to attack for defensive purposes. When Taylor visited Zweig’s home, the dogs behaved just as he had trained them to do.
Taylor came to Zweig’s home one day at about 10 a.m., when Zweig was just waking up. Zweig was taking medication and drinking whiskey. Zweig drank about three glasses of whiskey in 90 minutes. Zweig showed his loaded guns to Taylor, which Zweig said he had for protection.
Taylor later spoke to Zweig on the phone because appellant was late arriving at Taylor’s house for a dog training appointment. Zweig said appellant was “untrustworthy, that she was spending his money, and she was... irresponsible, and that he’d like to get rid of her, that she was driving him nuts.” Zweig was “furious,” and said “he’d like to blow her away.” Appellant was nervous when she arrived and said Zweig had been calling her constantly.
Zweig “was angry most of the time,” and was angry at several people. Zweig told Taylor several times he wanted to kill appellant. When Zweig first made his comments to him about killing appellant, Taylor thought that Zweig was just “blowing his top again,” and just “venting.” Although Taylor was a former police officer, he did not call the police because he did not think Zweig was serious. Taylor thought Zweig’s later comments about killing appellant were more than venting, and that appellant needed emotional help. But Taylor did not believe that Zweig would kill appellant. Zweig also said he wanted appellant “out of his life,” and wanted her to leave, but she refused.
Zweig later insisted that Taylor return Brutus, even though Taylor told Zweig that Brutus was not fully trained. After Taylor returned Brutus, the dog attacked a veterinarian. Taylor returned to Zweig’s house on three other occasions. Zweig was drinking whiskey on each occasion, one of which was at 10 a.m. Zweig also took pills, which Zweig said were for diabetes, hypertension, cardiovascular disease and pain. When Zweig phoned Taylor during the evening, “it was obvious” that Zweig had been drinking.
Zweig also bought a new gun, and showed Taylor some of his guns. Zweig said he kept a loaded gun in every room to protect himself. Taylor saw two gun safes in the house.
Zweig never said that he was afraid of appellant, or that he thought appellant was trying to kill him. However, he said that he thought appellant’s sons were trying to kill him. Zweig wanted to kill his neighbor, and warned the neighbor he would do that if the neighbor came on Zweig’s property.
Taylor saw Zweig yell at appellant for failing to clean up the yard. Zweig then abruptly ended the training that day. He phoned Taylor later and apologized. Taylor started to resume the training. But the training was not complete when appellant shot Zweig. Taylor never saw appellant raise her voice to Zweig. Appellant was “very nice,” and “very sweet.” Zweig was often rude and condescending to appellant. Taylor never saw Zweig assault appellant.
Appellant told Taylor that Zweig had choked her, was “becoming aggressive and [was] out of control.” Taylor told appellant about Zweig’s threats and advised appellant to call the police or get out of the house. Taylor did not know that appellant had threatened Zweig a week before the shooting. Taylor considered appellant a friend, as he considered all his clients friends. Although Taylor did not think he was a confidant of appellant, he acknowledged that appellant phoned him immediately after she shot Zweig.
E. Testimony of appellant’s relatives
1. Appellant’s mother
Before appellant met Zweig, appellant rented a studio in a home owned by appellant’s mother, Sally Buzzo, and Buzzo’s father. Appellant worked full-time, paid the rent, and remodeled the home. She never asked Buzzo for money. Buzzo’s father wanted appellant to inherit the home, which was worth about $700,000. But when appellant met Zweig, she and Zweig moved elsewhere and appellant made no attempt to take control of the home. When appellant’s father died, appellant refused an inheritance of $100,000, which went to appellant’s siblings instead.
About a year before the shooting, appellant and Zweig lived with appellant’s mother (Buzzo)for three and a half weeks. Zweig was very irritable, “like a different person,” when he took medication. He constantly nagged and belittled appellant. Zweig told Buzzo he took 65 pills a day. Zweig went to the bar near their home for several hours at a time. When he returned home, he would belittle appellant and call appellant “a fat slob.” Zweig gave appellant a dollar and told her to “wipe [his] ass.” Appellant had to wipe Zweig’s bottom, because he had a medical problem and could not take care of himself. In addition, despite the fact that appellant prepared Zweig’s meals, drove him where he needed to go and cared for his health needs, Zweig complained about her.
Buzzo told Zweig that he had to leave, because she was tired of the way he treated appellant “like a slave.” Zweig got angry. Buzzo heard a buzzing sound, which she later found out was a stun gun. After appellant intervened, Zweig called the police and asked them to remove Buzzo from her own home. Buzzo took the phone away and spoke to the police, who then asked Zweig to leave. Appellant stayed with Buzzo for three days. Zweig kept phoning her because he could not take care of himself. Appellant left and moved in with Zweig.
Appellant told Buzzo that Zweig had threatened appellant, and Buzzo noticed marks on appellant’s neck during the time appellant lived with Zweig in the house where the shooting occurred.
After the shooting, appellant had surgery to remove two tumors, which presumably had made her overweight. Zweig had asked Buzzo to pay for appellant’s surgery.
Buzzo often visited appellant in jail. Buzzo never saw Zweig physically harm appellant, and never heard him threaten her. Buzzo insisted that appellant never asked her for money. Buzzo did not know that, one week before the shooting, appellant asked Zweig for money, or that appellant was “caught stealing” in 1978, 1979, and 1999.
2. Appellant’s sister
Appellant’s sister, Sandy Rickard, had been close to appellant before appellant met Zweig. Thereafter, Rickard rarely saw either of them and she did not know Zweig well. Rickard never saw Zweig hit appellant.
Rickard went to Las Vegas once while appellant and Zweig were there. Zweig screamed at appellant abusively, and onlookers noticed it before Rickard did. Rickard saw bruises on appellant’s body on two occasions when she saw appellant at their mother’s home. Appellant refused to explain the bruises. Twice, appellant hid black eyes behind sunglasses. Appellant said she ran into a door. On another occasion Rickard was talking to appellant on the phone. She heard Zweig swear and tell appellant he did not want her to talk to Rickard. Zweig threatened to kill appellant and Rickard. Appellant hung up the phone. Rickard tried to call appellant back, but could not reach her. Rickard did not call the police about Zweig’s threats.
Zweig said he had asked appellant to tape conversations. Rickard did not know that, during the last couple years of Zweig’s life, appellant spent most of her time taking care of another woman. Rickard was also unaware that appellant threatened Zweig one week before the shooting.
3. Appellant’s son
Appellant’s son, William Charles (Charles), came to California to live with his mother and Zweig in 1998, when he was 15. They lived in several different residences. Zweig appeared to be retired, often watching television and taking many medications. When they moved to the last residence Zweig added steel gates, security shutters, motion detectors, special locks, and cameras.
Life was stressful because Zweig yelled at them and kicked them out several times. On those occasions they stayed with appellant’s mother or her friend, Debera Meitzler. Appellant had bruises on her arms and collar bone while they lived with Zweig. Appellant cried about three times a month.
While Charles lived in Zweig’s home he did not have to pay rent. Charles never repayed a $500 loan that appellant got from Zweig for the repair of Charles’ car. Charles denied stealing from Zweig. After Zweig died, Charles and his brother inherited Zweig’s estate. Charles moved back in with appellant shortly after Zweig died.
Zweig had 14 or 15 guns and six gun safes. Twice, during arguments, Zweig confronted Charles with a weapon. Zweig got mad when Charles promised to take Zweig’s stereo to the repair shop but failed to do so because he had to work. Although Charles had told Zweig why he could not run the errand, when Charles came home all his property was outside. Zweig screamed at him, taunted him, and chased him with an activated taser.
Zweig also confronted Charles with a handgun once, but Charles had difficulty remembering that incident. It was dark and Charles was not sure a gun was involved. He did not remember ever telling the police about it. Charles acknowledged that he told the police about the time appellant pointed a taser at him. Asked whether the “taser incident was more memorable than Mr. Zweig pointing a gun at you,” Charles said the taser incident was more memorable.
Charles was present when Zweig argued with his neighbor, Pagnotta. Zweig screamed at Pagnotta, threatening to shoot Pagnotta and his dog. Charles gave Pagnotta a statement which was used in court. According to Charles, after that court hearing Zweig kicked Charles out of his house and Charles moved in with the Pagnotta’s. (However, the jury heard an audio recording in which appellant said she was the one who kicked Charles out of their home.)
On October 12, the night before the shooting, appellant came to the Pagnotta home where Charles was living. Appellant was screaming, crying, frantic and jittery. Charles had never before seen her so upset. Appellant said Zweig was being nastier than usual. She asked Charles to call the police, which he did. Appellant told him to identify himself to the police as her next door neighbor, which he also did. Appellant said that Zweig had a friend who was a police officer. Appellant was afraid to call the police herself, because she feared what Zweig would do to her. Although appellant told Charles that Zweig threatened to kill her that night, Charles failed to tell that to the 911 operator, but did tell the police when they arrived.
On the afternoon of the fatal shooting, while Charles washed his car at the Pagnotta home, Zweig walked his Rottweiler. Zweig provoked the dog by giving commands in German and pulling its leash. Zweig threatened to “get” Charles, and swore at him. Pagnotta came out and asked Charles to go inside to avoid any further confrontation with Zweig.
4. Appellant’s son’s girlfriend
Kristin Huntoon was Will Charles’ girlfriend from 1999 to 2003. She went to Zweig’s home almost every day while Charles lived with appellant and Zweig, and saw them often. Zweig often yelled at appellant and “nothing was ever good enough for him.” Huntoon never saw Zweig assault appellant, but was not surprised to hear that Zweig had choked her. Huntoon did not know that appellant refused to leave Zweig’s house unless he paid her $15,000, or that appellant had threatened to kill Zweig.
Zweig “got in [Huntoon’s] face one time,” when appellant rented a house from Huntoon’s family. Huntoon saw guns in Zweig’s gun safe. She also saw Zweig chase Charles with an activated taser in early 2002. Zweig was angry because Charles had failed to take Zweig’s stereo in for repair, and because Charles had left his clothes strewn about the house.
After Charles signed the declaration on behalf of the neighbor, appellant said she was very upset that Charles had “turned against” her and Zweig. Huntoon told appellant that Charles was upset because Charles said appellant forged his signature on a document filed in court.
On October 12, the night before the shooting, appellant came to Pagnotta’s home, where Charles and Huntoon were staying. Appellant said Zweig had beaten her. Appellant looked very upset but Huntoon did not see any injuries because appellant was wearing “a lot of clothes.” Appellant asked them to call 911, and someone did.
F. Testimony of friends and acquaintances of appellant and Zweig
1. Shirley Bolton
Shirley Bolton and her husband met Zweig in Huntington Beach in the 1980’s at a restaurant and bar they all frequented. At that time Zweig was a heavy drinker and also took prescription medication. Zweig was under the influence of drugs or alcohol almost every time Bolton saw him. He drank Scotch at the rate of two or three drinks an hour. One time Bolton suspected appellant stole some of her prescription vicodin.
Bolton met appellant in the 1990’s. Eventually the two couples visited each other’s homes frequently. Bolton saw bruises on appellant’s face and arms many times. She saw Zweig shake appellant on three occasions, the last time in 2001 or 2002. Zweig verbally abused appellant very badly and insulted her almost every time he was with her in Bolton’s presence. Appellant never criticized Zweig. She always protected him, but everybody knew better. Bolton’s whole family begged appellant to leave Zweig.
Zweig once drove Bolton to a doctor’s appointment, and Bolton was scared to see a gun in his glove compartment. Zweig told Bolton many times that he was going to kill people, and specifically said in the 1990’s that he was going to kill appellant. Bolton heard Zweig threaten to kill Will Charles.
When appellant got scared, she stayed with Bolton a few times, and with her own mother often. Zweig called Bolton’s house, urging appellant to return to him, but appellant would not talk to him.
Appellant took good care of Bolton when Bolton was very ill, cleaning and cooking for Bolton’s family every day for years, while still cooking for Zweig. Although Bolton knew appellant very well, “just like a sister,” she was unaware appellant secretly taped her conversations with people. Bolton was surprised to learn appellant had demanded money from Zweig several days before shooting him. In addition, it would “shock” Bolton if appellant had threatened Zweig’s life, because appellant was not that type of person. When Zweig told appellant he was going to buy appellant an expensive ring, appellant turned him down because she was not a materialistic person.
Bolton testified she could not remember if she told a District Attorney investigator that she never saw Zweig “hit, beat, or put his hands on” appellant, because she was on medication at the time, and she was upset that they came to her house. Bolton could not remember if she told investigators for either side that Zweig had threatened appellant’s life. Bolton said she was on the same medication at trial, and it did not affect her memory.
2. Neighbor Patricia Padilla
Patricia Padilla lived across the street from appellant and Zweig, and had been friendly with them since 1996. Once or twice a week, she heard Zweig screaming at appellant, but did not hear appellant respond. Zweig swore, called appellant names, degraded her, and ordered her out of the house. About once a week appellant came to Padilla’s residence in tears. On several occasions appellant had what appeared to be finger marks on her arms from being grabbed. Once there were marks and bruising on appellant’s throat from being choked. Another time Padilla saw Zweig grab appellant’s arms as appellant ran to her car, but appellant eluded him. Appellant sometimes spent the night with Padilla, but was afraid to stay longer. In Padilla’s opinion, it would have been out of character for appellant to demand money from Zweig or threaten him.
3. Appellant’s friend and former coworker, Debera Meitzler
Debera Meitzler worked with appellant at an insurance company in the late 1980’s, and they became friends. They were once best friends, and Meitzler continued to care deeply for appellant at the time of the trial. Meitzler met Zweig through appellant but did not know him well. She never saw Zweig yell or scream at appellant. After appellant met Zweig, she stayed at Meitzler’s home about five times, sometimes because she was preparing to leave Zweig. Each time, appellant returned to him. Meitzler never saw any physical injuries to appellant. Meitzler encouraged appellant to leave Zweig. Meitzler did not know that Zweig asked appellant to leave his home, or that appellant threatened to kill him. Meitzler did not know that appellant was named in Zweig’s trust as a beneficiary. Meitzler did not think appellant cared about money; she led a simple life.
4. Police testimony (events of October 12, the day before the shooting)
In a search warrant affidavit pertaining to the murder case, Detective Patrick Jennings wrote that a “domestic violence incident occurred” on October 12. That statement was based on what appellant and her son Charles had told him at the time. He had not yet viewed the video footage, and had no personal knowledge about whether Zweig had committed domestic violence.
Detective Jennings interviewed Charles on October 12 after Charles called 911. Charles told him appellant had been screaming, crying, and pounding a window of her own home. Charles then saw appellant on her front porch. Charles did not tell Detective Jennings that appellant came to the Pagnotta residence. Charles said that, according to appellant, Zweig had threatened to kill her.
IV. Prosecution Rebuttal
A trauma surgeon, Dr. Jeffrey Islas, treated Zweig for his gunshot wound. Zweig’s blood alcohol level was either zero or too small to detect. Zweig had no traces of any other medication in his urine or blood. Dr. Islas was uncertain whether the toxicology test would have detected every drug that Zweig reputedly used for his medical conditions.
District Attorney Investigator Terry Cagnolatti interviewed defense witness Shirley Bolton. Bolton told him and his partner that she never saw Zweig hit, beat, or put his hands on appellant. Bolton witnessed Zweig threaten to shoot people in a bar. Zweig drank daily and was addicted to vicodin and other medications. He had a “Dr. Jeckel/Mr. Hyde” personality and always gave appellant a hard time. He cursed appellant and threw things at her. Bolton saw bruises on appellant’s body, which appellant said had been inflicted by Zweig. Zweig would stalk and spy on appellant when appellant moved out.
DISCUSSION
I. Alleged Judicial Misconduct During Jury Selection
Appellant alleges judicial misconduct based on a question asked by the court during jury selection. As a reviewing court, we “determine the propriety of judicial comment on a case-by-case basis in light of its content and the circumstance in which it occurs.” (People v. Cash (2002) 28 Cal.4th 703, 730.) Our role “‘is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.’” (People v. Harris (2005) 37 Cal.4th 310, 347.)
A. Proceedings below
In the course of inquiring of the prospective jurors regarding domestic violence experiences, the following exchange took place in front of the entire panel. We will highlight the comment at issue in bold.
“The Court: That’s good. We thank you very much. [¶] “Anybody else? Remember, we’re talking about a domestic violence type thing. I don’t know anything about the facts of this case, and please do not imply anything by any question I ask or anything I say, but I’m just trying to -- from what I understand, there’s a defense that she was a battered cohabitant. So if any of you have been battered cohabitants, you ought to let me know right now. Or maybe you have had a daughter that has been battered or sister or very close friend of yours. Don’t tell us about some far out acquaintance.
“Juror No. 22, you raised your hand.
“Prospective Juror No. 22: I just mention this -- I think I was a baby when this happened. It was my father. He used to get drunk, and he would hit my mother. She didn’t stay with him that long, so she divorced him, but I still remember him because I used to tell her that I remember that he did that.
“The Court: But your mother didn’t kill him?
“Prospective Juror No. 22: No, she didn’t kill him.
“The Court: All right.”
After eliciting Juror 22’s opinion she could be fair, the court questioned another juror on the same subject. At that point defense counsel first voiced concern about the court’s remark to Juror 22, calling it “very prejudicial.” After equivocating, counsel asked for a mistrial. Implicitly denying the mistrial request, the court addressed Juror 22 in front of the entire panel:
“The Court: It’s been brought to my attention that I made an inappropriate comment a few minutes ago to one of the jurors in response to -- I believe that was Juror No. 22 where you said that your father used to beat up your mother, and I made a comment, ‘He didn’t kill her.’ That is an inappropriate comment. Sometimes we misspeak, but I don’t imply anything one way or another. I don’t know what the facts in this case are going to show. I don’t have any idea whether the killing in this case was justified or not. There are homicides where the killing is justified. It might very well be the case in this instance. Will you disregard my comment? Do you think you are capable of doing that?
“Prospective Juror No. 22: Yes.
“The Court: Any of you think that I made any implication one way or another because of this comment? If you do, I want you to accept my apologies. Counsel is that
“Defense Counsel: That’s fine, your honor. Thank you.”
B. Analysis
Appellant characterizes the question, “But your mother didn’t kill him?” as grossly inappropriate and incurable misconduct which tainted the trial by undermining the battered spouse defense and suggesting the trial judge was convinced of appellant’s guilt. In her view, the court “effectively told the jury panel that assaultive behavior against a spouse is not a valid basis for killing the assaultive spouse.” She contends the court should have brought in a fresh jury panel or, at a minimum, more thoroughly admonished and inquired of the existing panel as to whether they had been tainted. Respondent argues no misconduct occurred, and urges us to find any assumed impropriety was waived when appellant’s counsel indicated approval of the court’s admonition.
1.Whether judicial misconduct occurred
Taken literally, the court’s question was simply a direct way for the court to inquire about the outcome of the family violence experienced by the prospective juror, a highly relevant inquiry for which the court had prepared the jurors in its opening remarks and in the comment, quoted above, which immediately preceded the court calling on Juror 22. Although appellant now characterizes the tenor of the question as “snide,” the record contains no claim that the court’s tone of voice or demeanor was inappropriate.
On the other hand, when the court’s memory was refreshed about the comment, it did not question counsel’s concern about possible prejudice. The court immediately admonished Juror 22, characterizing its remark as “inappropriate.” We will follow the trial court’s lead and assume the remark was at least potentially prejudicial, i.e. a “loaded” question which prospective jurors might have interpreted as a suggestion the court was skeptical of appellant’s intended defense.
2. Failure to call for a new jury panel
Viewed in its worst light, we find the court’s isolated question did not require a mistrial. It occurred on the first day of jury selection, 33 calendar days from the start of deliberations. It was part of a highly relevant line of questioning, and was mitigated by the trial court’s prefatory remarks explaining the reason for the questioning and cautioning the jury not to “imply anything by any question I ask.” As noted above, appellant’s trial counsel did not suggest that the remark was aggravated by the court’s tone of voice or demeanor. Defense counsel did not even react immediately, registering his objection only after another juror had been questioned.
Under these circumstances, any presumed harm was curable. Therefore, the implicit refusal to discharge the jury panel was not error. (People v. Cash, supra, 28 Cal.4th at p. 730 [facetious remark alleged to have undercut defense impeachment of a witness was curable]; see also People v. Bell (2007) 40 Cal.4th 582, 605 [trial court’s criticism of defense counsel for “‘arguing out of both sides of their mouths’” should not have been made in front of jury, but did not suggest bias where it was an isolated remark in the course of a protracted trial]; People v. Monterroso (2004) 34 Cal.4th 743, 759-762 [judge’s remarks during capital case jury selection did not encourage death verdict; further, “comments, quips and banter” during jury selection and penalty phase did not diminish seriousness of the proceedings].)
3. Adequacy of admonition
Appellant finds no fault with the trial court’s curing admonition insofar as Juror No. 22 was concerned. She takes exception to the court’s failure to instruct the rest of the prospective jurors to disregard the comment and inquire as to whether any of them had become biased as a result of it. This contention was waived when the court sought a reaction to the admonition from appellant’s trial counsel, who said, “That’s fine, your honor. Thank you.” (People v. Harris, supra, 37 Cal.4th at p. 350; People v. Monterroso, supra, 34 Cal.4th at p. 759.)
Had the claim not been waived we would reject it on the merits. The curative colloquy with Juror No. 22 took place in the presence of all prospective jurors, who no doubt realized the admonitions applied to each of them as well. That colloquy included the court taking responsibility for an inappropriate comment, stating it did not know the facts of the case, and emphasizing the evidence might show the charged killing was justified. Juror No. 22 was specifically asked if she would disregard the comment and committed to doing so. The court then asked the panel if any of them thought the court’s remark “made any implication one way or another.” It is clear to us, as it undoubtedly was to appellant’s trial counsel, that the court in effect instructed the prospective jurors to disregard the remark and asked if any of them had become biased. When no juror responded affirmatively, the court moved on after obtaining the express concurrence of defense counsel.
On this record we conclude the trial court’s admonition, though not a model, adequately cured any assumed prejudice to the entire panel.
4. Absence of prejudice
We hold harmless any assumed misconduct and/or failure to properly cure it. In addition to all the factors discussed above, we note that Juror No. 22 was not a member of the final jury. That final group was fully and fairly instructed as to self-defense, the battered person syndrome, and all lesser forms of homicide. The jury was given the standard cautionary instruction to avoid taking any cues from the judge. (See People v. Harris, supra, 37 Cal.4th at p. 350 [standard jury instructions on witness credibility mitigated impact of court’s improper questioning of defendant].)
In pertinent part as given here, CALCRIM 3550 reads: “It is not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.
5. No incompetence of trial counsel
We have held that any impropriety here was cured and/or harmless. We therefore reject appellant’s claim that her trial counsel was incompetent in failing to insist on a mistrial or further admonition of the jury panel. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Farnam (2002) 28 Cal.4th 107, 148.)
II. The Prosecution Wheeler Motion
Appellant contends the trial court erred in granting the prosecutor’s Wheeler motion, which resulted in Juror No. 9, an “older white male” who was a retired attorney, being seated on the jury.
People v. Wheeler (1978) 22 Cal.3d 258.
A. Relevant Proceedings
The situation arose after the prosecutor had accepted the jury panel several times, but appellant’s trial counsel had continued to excuse jurors.
“Defense Counsel: I ask the court to thank and excuse Juror No. 9, your honor.
“Prosecutor: May we approach, your honor? Can we hold off on that?
“The court: Hold it a second.’
(THE FOLLOWING PROCEEDINGS WERE HELD AT SIDEBAR:)
“Prosecutor: I am going to make a Wheeler motion. Defense has excused -- what excuse was that? What number was that? Was that 13 or 14?
“The Court: He’s the lawyer, caucasian white lawyer.
“Prosecutor: He’s kicked — eight of his peremptories have been against male whites.
“Defense counsel: We don’t have any blacks. You kicked the black.
“Prosecutor: The victim in this case is male white. [Defense Counsel] has exercised eight of his 15.
“The Court: I am going to find good cause for you to tell me the reason why you want to excuse this juror.
“Prosecutor: I’m talking about all of them. We’re starting number 1, number 2, 6, 8, 9, 10, 11, 12.
“The Court: They’ve gone.
“Prosecutor: I keep notes. I think there’s a pattern now. I wasn’t sure at first, but now there is no reason for kicking these people.
“Defense Counsel: You kicked off -- She’s kicking off women.
“The Court: You can’t just — wait a second. You can’t just kick people off because they are male whites for no other reason. Would you have any reason why you want to get rid of him other than he’s a male white?
“Defense Counsel: Because of the answers that they gave.
“The Court: What answer did this juror give?
“Defense counsel: I feel that he would not be appropriate for this particular charge.
“The Court: Why?
“Defense Counsel: Because he is an older white male.
“Prosecutor: That’s a Wheeler violation right there.
“Defense counsel: I don’t think so, because the victim
“The Court: I’m not going to grant your excuse if that’s the only reason.
“Defense counsel: Well, let me look at my notes and see.
“The Court: Well, you already stated why. You don’t have to look at your notes. You are telling me that because he’s a male white, that’s not a valid reason.
“Defense Counsel: Because
“The Court: What did he say? What did he do? Give me some reason for not granting this. If you can’t
“Defense counsel: I am going to object because she now when I’ve already said that I wanted him to be off, and now he’s going to be prejudiced towards the defense.
“Prosecutor: Wheeler specifically allows this as a remedy if the court is ruling.
“The Court: I am going to deny your peremptory based on Wheeler. I could actually discharge this whole jury and start from the beginning.
“Prosecutor: I would ask the court to do the lesser remedy of just not excusing the one juror under the case of People v. Wheeler.
“The Court: I hadn’t noticed that this was occurring. Okay. I’m going to grant that.
“Defense Counsel: To what?
“The Court: You can’t excuse them — you haven’t stated any reason except that he’s a male and he’s white.”
Juror 9 remained in place on the prospective jury and was sworn in as a member of the trial jury the next day, Thursday May 18, 2006. The jury was then excused until Monday May 22, when selection of alternate jurors was scheduled to take place. On that date, a previously sworn juror was excused for cause and the parties agreed that selection of the first twelve jurors would be reopened. Both sides examined additional jurors and exercised additional peremptory challenges. An unrelated prosecution Wheeler motion was denied. At sidebar, appellant’s trial counsel returned to the subject of the Wheeler motion which the court had granted as to Juror 9. The following exchange took place:
“Defense Counsel: I want to know because I want to challenge Juror No. 9, and that was the white male from last week, but I did not look -- I wanted to go back and look at my notes.
“The Court: Sir, you have already established the reason why you wanted to excuse him, so I’m not going to allow you to
“Defense Counsel: He’s an attorney, and I knew there was a reason. That’s the reason I asked.
“The Court: I denied your Wheeler as to him, and you have already articulated that the reason you wanted him off was because he was a white male. That’s impermissible. Now you are going back and trying to pedal back and backtrack, and that doesn’t ring true to me.”
After a break, the trial court advised both counsel he had done some research on the Wheeler issue. The discussion continued:
“The Court: But do not exercise a peremptory again as to the one juror that you candidly admitted to me you were dismissing because he was a white male.
“Defense Counsel: I understand, your honor.
“The Court: That at that point, you gave me no option.
“Defense Counsel: I also indicated I did want to go back and look at notes, and you said you could not do that.
“The Court: No, you can’t. Because when you told me that on the record, you told me what you had thought due process was at that time. You can’t go back there and change your mind and now exercise it on a different grounds.
“Defense Counsel: Okay, your honor. With all due respect, I think I indicated that after I asked to look at notes.
“The Court: All right. Real fine.”
B. Analysis
When confronted by a Wheeler motion brought by either side, the court first determines whether the objecting party has made a prima facie showing that one or more peremptories were used improperly, i.e. solely based on membership in a cognizable class. If so, the opposing party must attempt to show nondiscriminatory reasons for the challenge at issue, and the court then determines whether “purposeful discrimination” has occurred. (People v. Ward (2005) 36 Cal.4th 186, 200.) The court must undertake an inquiry into counsel’s explanations and make findings as to their subjective genuineness. (People v. Reynoso (2003) 31 Cal.4th 903, 924.) If the Wheeler objection is sustained, either the entire panel must be replaced, or, with the consent of the moving party, the court may order that the challenged juror serve on the jury and continue jury selection with the same panel. (People v. Willis (2002) 27 Cal.4th 811, 817-825.)
An appellate court reviews the trial court’s findings for substantial evidence, exercising “great restraint.” (People v. Arias (1996) 13 Cal.4th 92, 136.) It gives “great deference” to the trial court’s ability to distinguish bona fide reasons from sham excuses. (People v. Reynoso, supra, 31 Cal.4th at p. 908.) However, this deferential standard applies only where the trial court has made a “sincere and reasoned attempt to evaluate each stated reason as to each challenged juror.” (People v. Silva (2001) 25 Cal.4th 345, 386; accord People v. McDermott (2002) 28 Cal.4th 946, 971.)
It is beyond dispute, as appellant tacitly concedes, that exercising a peremptory challenge solely because a prospective juror is an “older white male” is constitutionally improper. (People v. Williams (2000) 78 Cal.App.4th 1118, 1125 [men are a cognizable group for Wheeler purposes].) That appears to be exactly what happened in the present case, as appellant’s trial counsel candidly admitted when asked to respond to the motion. Nonetheless, appellant faults the trial court for not allowing trial counsel to check his notes when he asked to do so after the court told him, in effect, that he had just admitted a blatant Wheeler violation. Counsel on appeal also suggests that a number of Juror 9’s answers that might have been argued to have been nondiscriminatory reasons for excusing him.
While we certainly encourage the trial courts to grant requests by counsel to check personal notes in appropriate situations, the present record shows that, four days after the motion had been granted, having checked his notes, counsel’s only further explanation for his peremptory was that Juror 9 was an attorney. However, as noted above, Juror 9’s former occupation was mentioned by the court moments before counsel stated the impermissible reason for the peremptory. Consequently, no speculation is needed to determine what would have happened had the request to check notes been granted: counsel would have attempted to justify the peremptory based on the juror’s former occupation, and the court would have disbelieved him.
We are left with a situation where counsel’s immediate response to the motion was an accusation that the prosecutor had been excusing women and an admission that defense counsel had based his peremptory on the juror’s age, race and gender, followed by a belated claim that the juror had been excused because of his former occupation. The trial court found the latter explanation unbelievable, and this record clearly provides substantial evidence for that finding. Deferring as we must to the trial court’s evaluation of the credibility of counsel’s explanation, we find no constitutional or other error in the court’s handling of the prosecution Wheeler motion.
III. Sufficiency of Evidence of Financial Gain Special Circumstance
Appellant contends there was insufficient evidence to support the jury’s finding that she murdered Zweig for financial gain. We disagree, after applying the substantial evidence standard. This court’s role is to examine the evidence in the light most favorable to the judgment. We must determine whether the evidence was reasonable, credible and of solid value, such that a reasonable juror could have found the defendant guilty beyond a reasonable doubt. An appellate court will not disregard the jury’s evaluation of witness credibility, or supplant this evaluation with its own. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320; People v. Snow (2003) 30 Cal.4th 43, 66.)
A. Supplemental Jury Instruction
As appellant acknowledges, the prosecutor was not required to prove appellant killed Zweig solely or primarily for financial gain. An expectation of a financial benefit resulting from the crime is sufficient. (People v. Jackson (1996) 13 Cal.4th 1164, 1229; People v. Noguera (1992) 4 Cal.4th 599, 636; People v. Howard (1988) 44 Cal.3d 375, 409.) This principle was explained to the instant jury in response to their question during deliberations in the following words: “In order to find true the special circumstance that a murder is carried out for financial gain, the jury need not find that the exclusive motive for the killing was for financial gain. The relevant inquiry is whether the defendant committed the murder in the expectation that she would thereby obtain the desired financial result.” (11RT 2884-2885.)
Near the end of the second full day of deliberations the jury sent a note asking, “With respect to special circumstance, financial gain, must the People prove the killing was carried out only for financial gain?” After conferring with counsel the court sent a written response: “No.” The jury went home shortly after receiving the court’s response. Deliberations resumed a 9:00 a.m. the next day. About two hours later the jury sent a note asking “What does it mean if the jury does not agree on the special circumstance, financial gain? Does it mean that we have a hung jury?” After conferring with counsel off the record, the court went on the record with the jury and explained the procedure for returning a verdict on the charged offense even if they could not agree on the special circumstance. The court then brought up the jury’s question from the previous day and supplemented its answer as indicated in the text above. Next, the court inquired of the presiding juror as to whether the split on the jury as to the special circumstance was “very large or narrow.” The presiding juror stated the split was “narrow,” which was clarified as a difference of three votes or less. The court offered to further clarify the law if necessary, specifically inviting the dissenting jurors to inquire about “anything that is perplexing you or you need clarification on....” The jury resumed deliberations at 11:35 a.m. Thirteen minutes later the jury notified the bailiff that a verdict had been reached.
B. Similar Cases
We shall summarize the reported California cases which involve sufficiency of evidence of financial gain special circumstances in situations similar or analogous to the present matter.
In People v. Edelbacher (1989) 47 Cal.3d 983, 1026, the prosecution alleged defendant killed his ex-wife in order to avoid paying nearly $50,000 in child support arrearages and other money due as a result of their divorce. The evidence showed defendant had other delinquent debts, and hoped to become guardian of his son’s estate, thereby gaining control of the son’s inheritance from the victim. After the murder, the defendant failed to deny a financial motive when an acquaintance brought the subject up, and told a friend, “Well, really it worked out good for me because I don’t have any child support payments now and I have custody of my son.” (Id. at p. 1012.) The defendant went on to suggest that the friend could also benefit financially upon the death of the friend’s wife. The Supreme Court found the evidence sufficient to support the financial gain special circumstance.
In People v. Hamilton (1989) 48 Cal.3d 1142, 1152, the defendant enlisted his sister and a friend to assist in killing the defendant’s pregnant wife. The sister’s taped confession to the police, which the jury heard, quoted the defendant as stating he wanted his wife dead so that he would not lose custody of their four children in a divorce, and because he “‘wanted the money.’” (Id. at p. 1154.) The latter comment was a reference to a $100,000 insurance policy on the wife’s life, over $30,000 of which was to be paid to the sister and another accomplice. Although the Supreme Court did not directly rule on the sufficiency of the evidence of financial gain, in an apparent reference to the credibility of Hamilton’s sister, it noted the “relative weakness of the prosecution case on this point.” (Id. at p. 1173.)
In People v. Staten (2000) 24 Cal.4th 434, 461, evidence that the defendant killed his parents for financial gain was found sufficient even though the defendant made no effort to collect on insurance policies after the deaths. The defendant, who had often quarreled with his father, was aware he was the beneficiary of life insurance policies on his parents’ lives totaling more than $300,000. He told friends about the policies and claimed he would “‘take his father out.’” (Id. at p. 442.) He told two friends they could make a “‘five-digit’” (ibid.) sum by killing two people who ran the same type of business run by his parents. The defendant said of the Menendez brothers, “‘They did it wrong. They shouldn’t have got caught.’” (Ibid.)
In People v. Michaels (2002) 28 Cal.4th 486, 519, the court upheld a jury’s financial gain determination in a case where defendant Michaels and a woman named Christina conspired to murder Christina’s mother (JoAnn). In addition to a defense claim that the killing was motivated by defendant’s wish to stop the victim from abusing Christina, the jury heard the following evidence:
“Before JoAnn’s murder, Velinda Davis heard defendant tell Christina, ‘Now we can knock off the old lady.’ Christina replied, ‘And then we can get the money.’ Defendant told codefendant Popik that JoAnn had insurance coverage of $100,000, and that the money would help Christina and him to get a new start, and would provide Christina with money ‘to do good.’ After the murder Christina told the police that defendant said he thought her mother had insurance. After his confession to the police, when Detective Gaylor asked defendant if the life insurance policy was a secondary benefit of killing JoAnn, defendant agreed. Defendant said Christina had told him about JoAnn’s insurance policy, and that she was interested in going to a mechanics school in Phoenix and needed $9,000.” (People v. Michaels, supra, 28 Cal.4th at p. 519.)
The Supreme Court found this evidence sufficient, noting that financial gain need not be the perpetrator’s primary purpose, and need not actually occur. The court also held that the special circumstance applies even where the killer is motivated by another person’s financial gain. (Id. at pp. 519-520.)
In People v. Crew (2003) 31 Cal.4th 822, 851, the Supreme Court held:
“The evidence here is sufficient to support the jury’s finding. Just before she left California for South Carolina with defendant, murder victim Nancy closed out her bank accounts, obtaining $10,500 in cash and $2,500 in the form of a money order. Within a day or two of her disappearance, defendant arranged for Lisa Moody (the woman to whom defendant proposed marriage shortly after his marriage to Nancy) to convert $5,000 into a cashier’s check payable to his stepfather. Defendant then opened a bank account in South Carolina and there deposited Nancy’s $2,500 money order. He thereafter sold Nancy’s clothing, personal possessions, horse, horse trailer, truck and Corvette. From this evidence, a reasonable jury could find beyond a reasonable doubt that defendant killed Nancy with an expectation of financial gain.”
C. Discussion
Although Edelbacher, Hamilton and Michaels all involved explicit admissions of a financial motive by the defendant either before or after the crime, Staten and Crew illustrate that evidence including defendant’s words and actions can prove the motive circumstantially. Although appellant has consistently denied a financial motive, and further denied intending to kill Zweig, the circumstances and arguments of counsel clearly framed the issue for the jury.
The prosecution theory of the case as articulated in both the opening statement and final arguments was that appellant was primarily motivated by greed, in that she had been supported by Zweig for several years, knew about the trust, and knew the “gravy train” was ending because she was being evicted. The deputy district attorney argued appellant had attempted to orchestrate a self-defense scenario to justify her actions.
The jury could have reasonably believed appellant knew about the very substantial trust proceeds she would take after Zweig’s death. Absent the trust, which Zweig could have revoked at any time, she had no clear legal right to inherit from Zweig, both because they never married and because Zweig’s wealth predated their relationship. The jury knew appellant’s counsel made demands on the trust after Zweig died.
The jury also knew that, shortly before she shot Zweig, Zweig had refused appellant’s demand for $15,000 to compensate her for moving out, offering $5,000 instead. Appellant responded by refusing to leave and stated, “I’ll take you down like you’ve never been took down before.” When Zweig asked if her statement was a threat on his life appellant stated, “No, that’s a promise, honey. I have nothing to lose.”
Most of the evidence contrary to the above came from appellant’s own testimony. The jury was aware appellant had turned down a substantial inheritance from her father, and had declined when Zweig offered to buy her a $40,000 ring. The jury also heard appellant testify that her $15,000 demand had to do with Zweig’s previous promise to pay for her upcoming surgery, and that she did not intend to kill Zweig when she fired the gun. However, the jury was free to disregard her exculpatory version, particularly in light of appellant’s admissions that she had been caught and prosecuted for stealing in 1978, 1979 (from her own sister) and 1999.
Although the jury heard defense evidence and argument that the law does not allow a criminally culpable killer to inherit from her victim, the jury could have reasonably inferred either that appellant was unaware of that rule, or that she believed a self-defense killing would not disinherit her. Since the trust provided for appellant’s heirs to inherit under certain circumstances, the jury could have inferred that appellant believed her sons would take Zweig’s property if she did not.
We are not free to reweigh the evidence on appeal. On this record, a reasonable jury could have found beyond a reasonable doubt that appellant acted, at least in part, out of a desire for financial gain.
IV. Exclusion of Defense Expert on Police Procedures
Appellant claims the trial court violated her constitutional right to present a defense when it excluded proposed defense expert testimony that the police should have taken Zweig’s guns away on the day before the shooting. She asserts the expert, who had 29 years experience in law enforcement, would have established that Zweig’s guns could and should have been removed from the house when the officers responded on October 12, pursuant to Penal Code section 12028.5, subdivision (k). Appellant contends the expert would have impeached the officers who testified they concluded there was no basis to seize the guns or arrest Zweig. In appellant’s view, the expert would have demonstrated that the officers had a motive to lie at trial to cover for their mistake which, had it not been made, may have prevented the shooting the following day. Appellant claims the expert evidence would have “substantially bolstered” the battered woman defense, which included Dr. Kaser-Boyd’s testimony that the police inaction on October 12 increased appellant’s feelings of helplessness and fear.
Section 12028.5, subdivision (b) states in part that a specified peace officer: “who is at the scene of a domestic violence incidentinvolving a threat to human life or a physical assault, shall take temporary custody of any firearm or other deadly weapon in plain sight or discovered pursuant to a consensual or other lawful search as necessary for the protection of the peace officer or other persons present.”
The standard of review is abuse of discretion (People v. Ayala (2000) 24 Cal.4th 243, 282; People v. Ramos (2004) 121 Cal.App.4th 1194, 1205.), and it is abundantly clear the trial court did not err.
There is no logical connection between the correctness of the officers’ legal conclusion about the appropriate action on October 12, and appellant’s state of mind when she shot Zweig the following day. Whether a Monday-morning quarterback would opine that the officers were right or wrong would not have a bearing on appellant’s reaction to the situation at the time.
Further, the trial court allowed the subject to be explored at great length during the officers’ testimony. The officers’ claims they feared liability for taking the guns illegally was impeached by a thorough discussion of section 12028.5, including subdivision (k), which provides qualified immunity for good faith weapon seizures. The relevant trial issue related to the officers’ actions on October 12 was the factual dispute about whether they were told that Zweig had threatened, assaulted or injured appellant. The proposed expert could have added nothing of substance to this debate. The officers unanimously denied they were given such information, and unanimously indicated they would have arrested Zweig and/or seized his weapons if they had been told of a physical assault or threat to life. Multiple officers contradicted appellant’s claims at trial that she had reported being choked by Zweig and that she had shown the officers injuries to her neck.
To the extent the expert testimony would have constituted additional impeachment of the officers, the trial court was well within its discretion in invoking Evidence Code section 352 during the extended discussion of the issue with counsel. As the court noted, “I’m guided here by [appellant’s] conduct and whether her conduct was reasonable or unreasonable. The issue you wanted to raise here is whether the police officers’ conduct was reasonable or unreasonable. [¶] But that raises an issue that’s only peripherally relevant to this case, and I think it’s misleading especially to put it on at this stage of the proceedings. I think it would tend to confuse the jury because the issue is whether [appellant’s] conduct is reasonable or unreasonable....”
The court properly denied the request to present the expert testimony. (See People v. Torres (1995) 33 Cal.App.4th 37, 45-46 [error to admit police officer’s expert testimony on definition of criminal statutes and whether defendant violated same].
V. Decedent Zweig’s Statements Regarding Fear of Appellant
As noted above, the prosecution case included evidence that, on the afternoon of the shooting, Zweig had given some of his guns to bartender Susan Generakos, and told her he was afraid appellant was going to kill him. Generakos so testified, over a defense hearsay objection.
A. Crawford claim
In this court appellant initially pursued not only the hearsay issue, but a Confrontation Clause claim under Crawford v. Washington (2004) 541 U.S. 36. The latter claim appears to have been abandoned, because appellant’s Opening Brief never addressed whether the statements were “testimonial,” and her reply brief does not even mention the Crawford issue.
In any event, the Crawford claim fails. It was waived by the lack of a specific objection in the trial court. (People v. Lewis (2006) 39 Cal.4th 970, 1027-1028 & fn. 19.) On the merits, Crawford has no application because the statements were indeed not testimonial. (People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19 [victim’s statements to school friend]; People v. Smith (2005)135 Cal.App.4th 914, 924 [statements to declarant’s girlfriend in their motel room]; People v. Cervantes (2004) 118 Cal.App.4th 162, 173-174 [declarant’s statement to friend while seeking medical assistance].)
B.Hearsay issue
The trial court relied on Evidence Code section 1250, the so called “state of mind” hearsay exception, in overruling the defense objection. Section 1250, subdivision (a), states: “Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.”
Section 1252 in turn provides: “Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.”
Appellant focuses on subdivision (a)(1) of section 1250, contending decedent Zweig’s state of mind was not truly at issue because Zweig’s motivation for removing guns from the house “had no bearing on the ultimate issues,” and because the video recording of the events leading up to the shooting eliminated any dispute about Zweig’s conduct and state of mind. Appellant also argues the circumstances suggest Zweig’s statement was not trustworthy.
We disagree, and conclude the statement qualified under both prongs of section 1250(a). As argued by respondent, where a murder defendant alleges self-defense or other provocative conduct by a victim, that victim’s state of mind is highly relevant to show how he or she acted during the charged event. (People v. Spencer (1969) 71 Cal.2d 933, 944-946; People v. Romero (2007) 149Cal.App.4th 29, 37-38; People v. Escobar (2000) 82 Cal.App.4th 1085, 1102-1104; People v. Ortiz (1995) 38 Cal.App.4th 377, 385-392; Simons, Cal. Evidence Manual (2008) §§ 2.52-2.53, pp. 131-135.)
Here, the statement was made on the very day of the shooting, as Zweig carried out the suggestion of a police officer that the guns be removed from the house. Zweig’s statement that he feared appellant would kill him was evidence of both a fearful state of mind and of his reason for asking an acquaintance to take the guns. The fact that the shooting was on tape by no means removed the issue of Zweig’s aggression (or lack of same) from the case. Appellant’s entire theory of the case relied on Zweig’s alleged threats and violence toward her. Her trial counsel’s closing argument, as he played the video recording of the shooting, emphasized that it showed Zweig coming toward appellant as she backed away. Earlier in his summation counsel urged an outright acquittal, arguing appellant fired the gun in reasonable fear for her own life and that of her son. The prosecutor, of course, argued to the contrary.
Here, as in People v. Romero, supra, 149Cal.App.4th at p. 33, “[a]t trial the principal dispute appears to have been over whether appellant or [the alleged victim] was more likely to have been the initiator of the fatal conflict and whether appellant suffered from battered person’s syndrome.” We agree with the Romero court that in such circumstances a victim’s expression of fear of the defendant at a relevant time is “clearly admissible under... section 1250.” (Id. at p. 37.)
Appellant would have us look instead to cases which are distinguishable because the appellate courts made clear that the victim’s state of mind and actions in conformity were not relevant at trial. (See People v. Noguera, supra, 4 Cal.4th at p. 622 [victim’s state of mind not relevant where defense was alibi]; People v. Bunyard (1988) 45 Cal.3d 1189, 1204 [defense did not claim self-defense or raise any issue as to any conduct of victim prior to death]; People v. Ruiz (1988) 44 Cal.3d 589, 608 [defense raised no issue of victim’s conduct at the time of the crimes, two of which were execution style killings];
People v. Armendariz (1984) 37 Cal.3d 573, 587 [victim’s statements not admissible where only disputed issue was identity of killer]; People v. Ireland (1969) 70 Cal.2d 522, 530-531 [no disputed issue of conduct of victim, who was shot while reclining on a couch].)
As for trustworthiness, appellant’s contention that the delivery of the guns and accompanying statements were a charade designed to cover for Zweig’s own misdeeds is highly speculative. It is not at all clear that Zweig had anything to gain from telling his local bartender, falsely, that he was afraid appellant might kill him. The fact some guns were left behind in the house goes to the weight of the evidence rather than its admissibility. The statements were made to an uninvolved third party as a presumably logical explanation for Zweig’s desire to move guns out of the house. Zweig’s statements as quoted by witness Generakos were an unadorned expression of Zweig’s state of mind; they did not purport to narrate any specific threatening act or statement by appellant.
The trial court did not abuse its discretion in concluding the statement satisfied the trustworthiness requirement of Evidence Code section 1252. Zweig’s statement that he feared appellant might kill him was properly admitted.
VI. Instructional Issues
A. CALCRIM 300
The jury was instructed with the standard language of CALCRIM 300: “Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.” Appellant submits that instructing the jury the defense need not produce “all” relevant evidence improperly suggests the defense is required to produce “some” evidence. She reasons that such an implication would violate due process.
Other appellate districts have rejected this argument where, as here, the jury has been given proper instructions regarding the People’s burden of proof. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1189; People v. Anderson (2007) 152 Cal.App.4th 919, 937; People v. Simms (1970) 10 Cal.App.3d 299, 313.) We join in the reasoning of those courts. Further, as noted by respondent, this is a case where the defense put on much evidence, rendering any assumed error harmless under any standard. We find no constitutional or state law error in the use of CALCRIM 300.
B.CALCRIM 700
The jury was instructed with the standard language of CALCRIM 700: “If you find the defendant guilty of first degree murder, you must also decide whether the People have proved that the special circumstance is true. [¶] The People have the burden of proving the special circumstance beyond a reasonable doubt. If the People have not met this burden, you must find the special circumstance has not been proved. [¶] In order for you to return a finding that a special circumstance is or is not true, all 12 of you must agree.”
Focusing on the last sentence of the instruction, appellant asserts that the word “agree” is vague and imprecise, requiring speculation as to the matter on which the jury must agree. She would have us require language mandating a unanimous “finding,” beyond a reasonable doubt, as to all elements of the special circumstance allegation.
We find no defect in the existing wording. The challenged sentence refers to the required jury action as a unanimous “finding,” and the instruction as a whole makes the People’s burden of proof clear. CALCRIM 220 (defendant is presumed innocent and prosecutor must prove each element beyond a reasonable doubt) and 3550 (jury must be unanimous as to any special circumstance finding) reinforced these principles, leaving no room for speculation by the jury as to the rules for deciding whether the special circumstance had been proved. Another division of this court so reasoned in People v. Felix (2008) 160 Cal.App.4th 849, 861, and we concur.
C. CALCRIM 704
Appellant contends CALCRIM 704 lowers the People’s burden of proof by using the word “convinced” with reference to the jurors’ analysis of circumstantial evidence in connection with the special circumstance allegation. As noted in respondent’s brief, however, CALCRIM 704 does not address burden of proof. Other instructions did so adequately, and we find no constitutional or other defect in CALCRIM 704’s guidance for the jury’s “threshold inquiry regarding the use of circumstantial evidence to establish special allegations....” (People v. Felix, supra, 160 Cal.App.4th at p. 862; see also People v. Anderson, supra, 152 Cal.App.4th at pp. 933-934 [applying same reasoning to CALCRIM No. 224, which involves circumstantial evidence to establish guilt].)
CALCRIM 704, as given here, states: “Before you may rely on circumstantial evidence to conclude that a special circumstance allegation is true, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find that a special circumstance allegation is true, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the special circumstance allegation is true. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the special circumstance allegation is true and another reasonable conclusion supports a finding that it is not true, you must conclude that the allegation was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
VII. Prosecutor’s “Smoking Mirrors” Argument
In her final remarks to the jury, the prosecutor stated: “Now, the defense, in addition to the battered women’s syndrome, he’s throwing out all these red herrings. I like to call this sort of the smoking mirrors. You know, confuse you with issues that have nothing to do with this case like why didn’t the police take the guns? My gosh, how many times were the police asked about that? Why didn’t you take the guns? Why didn’t you take the guns?... ” There was no defense objection. The prosecutor went on to challenge a number of defense arguments as marginally relevant.
Appellant claims the above-quoted passage constituted prosecutorial misconduct “which disparaged appellant’s trial counsel and painted counsel as deceitful.” She also suggests a court reporting error occurred, since the prosecutor likely said “smoke and mirrors” rather than “smoking mirrors.”
Since appellant argues her trial counsel’s failure to object was incompetent, we will address the merits. Prosecutors may use colorful language to criticize defense counsel’s trial tactics and arguments where no improper attack on counsel’s integrity or claim of fabrication occurs. (People v. Zambrano (2007) 41 Cal.4th 1082, 1154; People v. Stitely (2005) 35 Cal.4th 514, 560.) Regardless of which words were actually uttered in the present case, the prosecutor did not cross the line. Her criticism was directed to counsel’s strategy and arguments, such as the issue of whether Zweig’s guns should have been seized by the police on the day before the shooting. As discussed earlier in this opinion, that issue had only marginal relevance, if any. The prosecutor argued that the defense’s effort to blame the shooting on the police was misguided, as was any attempt to focus on the credibility of the investigating officers. She also asserted the irrelevance of defense requests that the jury focus on Zweig’s dispute with his neighbor and on Zweig’s bartender-friend’s method of disposing of Zweig’s guns. These comments were legitimate advocacy. No improper attack on defense counsel occurred. (See People v. Stitely, supra, 35 Cal.4th at p. 559 [no misconduct where prosecutor referred to defense argument as “ridiculous,” “outrageous,” and a “legal smoke screen”]; People v. Cunningham (2001) 25 Cal.4th 926, 1002 [no misconduct where prosecutor told jury job of defense counsel was to “create straw men” and “put up smoke, red herrings”]; People v. Marquez (1992) 1 Cal.4th 553, 575 [upholding reference to defense as “heavy, heavy smokescreen”].)
The failure to object waives a claim of improper argument by a prosecutor, unless an objection would have been futile or an admonition would not have cured the problem. (People v. Demetrulias (2006) 39 Cal.4th 1, 30-31; People v. Williams (1997) 16 Cal.4th 153, 254.) Although we reach the merits, we also hold there was a waiver, and that any assumed impropriety clearly could have been cured by an admonition.
VIII. Alleged Incompetence of Defense Counsel Regarding Report of Jury Misconduct
At an impromptu hearing four days after the verdict, appellant’s trial counsel asked the court for confidential juror information. He stated that at some unspecified time after the verdict, he had received information that some of the jurors had discussed the case in the women’s restroom before deliberations began. Counsel did not identify the source of his information or the jurors involved. He acknowledged a lack of familiarity with the fact that a formal motion was needed to obtain the juror information. The trial court emphasized that counsel had to present good cause to obtain the sealed juror information. The court told counsel that bare allegations were inadequate, and invited him to present more detailed information at a later date. Counsel stated, “I will prepare whatever I believe is appropriate to get the information that I’m requesting.” Counsel did not raise the issue again.
Code of Civil Procedure sections 206 and 237 provide for the postverdict sealing of juror identity information in criminal cases, and for proceedings upon a showing of good cause for the release of such information. The involved jurors are entitled to notice and an opportunity to be heard.
To prevail on an ineffective assistance of counsel claim, a defendant must show both of the following: 1) the trial attorney’s representation fell below an objective standard of reasonableness, according to prevailing professional norms, and 2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. (Strickland v. Washington, supra,466 U.S. at pp. 687-688; People v. Farnam, supra, 28 Cal.4th at p. 148.) Where the appellate record “sheds no light on why counsel acted or failed to act,” a reviewing court on direct appeal must reject an ineffective assistance of counsel claim “unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in” a habeas petition. (People v. Carter (2005) 36 Cal.4th 1114, 1189, [rejecting claim on direct appeal that counsel should have presented defense witnesses]; accord, People v. Lopez (2008) 42 Cal.4th 960, 966; In re Arturo A. (1992) 8 Cal.App.4th 229, 243 [since counsel’s reasons are “typically...not reflected in the record,” habeas is the “preferred review procedure” for ineffectiveness claims].)
In this case, neither prong of the Strickland test can be resolved on direct appeal. Whether counsel had good cause to unseal the juror information would require factual information outside the appellate record, such as a declaration by trial counsel himself detailing the content and source of his information. Similarly, whether juror misconduct occurred and whether it was prejudicial would require an extensive factual inquiry well beyond the scope of our proceedings. The appellate record does not show that counsel acted unreasonably, or that counsel’s inaction affected the outcome of the case. Accordingly, appellant’s claim fails, without prejudice to her right to revisit the ineffectiveness issue in a petition for writ of habeas corpus.
IX. Appellant’s Attempt to Discharge Her Retained Counsel and File Pro Se New Trial Motion
Appellant contends she was denied her constitutional and statutory right to speak at her sentencing hearing when the trial court refused to consider her personally drafted motion for new trial. At this court’s request, the parties have briefed and argued related issues: whether appellant’s self-drafted motion and her personal comments at the sentencing hearing constituted a request to discharge her retained trial counsel and required the trial court to take further action before completing the sentencing.
A. Proceedings below
Sentencing was originally set for September 13, 2006. Two continuances at defense request resulted in the trial court ordering “no further continuances” and resetting the matter for December 18. On December 14 appellant’s trial counsel filed a 36 page new trial motion raising four separate issues. Sentencing did take place on December 18. Shortly after the proceedings began the court called for argument on counsel’s motion for new trial. Appellant immediately asked, “Sir, may I speak?” The court responded, “No, you may not.” The court then heard from both attorneys as to only one of the issues (jury misconduct, see footnote 9) raised in defense counsel’s written motion for new trial. The court discouraged argument on the other issues raised in the motion on the ground that they had been covered by argument and rulings during the trial. The motion was denied as to all issues. The court then proceeded to the sentencing hearing, eventually inviting appellant to speak after her counsel advised the court she wished to do so. The following exchange took place:
Appellant’s trial counsel’s written motion for new trial asserted: 1) insufficiency of evidence as to first and second degree murder and the financial gain special circumstance; 2) improper exclusion of proposed defense expert testimony; 3) judicial misconduct based on the court’s comment to a juror during jury selection; and 4) jury misconduct consisting of the jurors’ creation of a compact disc containing the jurors’ favorite songs, with a group photograph of the jurors visible on the top of the disc. A copy of the music CD was delivered to the trial court’s bailiff and passed on to the court, which added it to the record. On June 30, 2006, the trial court made a record of having received the CD later on the day of the verdict and the fact that the court had not listened to it. We have listened to the CD. As advertised, it consists of an eclectic collection of popular music.
“The Court: The 25 to life is mandatory as I understand it. It’s not something that’s discretionary. This is the sentence prescribed by law. [¶] Ms. Garcia, do you wish to address the court?
“The Defendant: Yes, I do, sir. I was just notified yesterday that my attorney was not going to be here, and I haven’t really seen much of him, so I was planning on dismissing him from my case as my attorney. I drew up my own notice of a motion for a new trial. Would you like me to read it, or would you like to go over it?
“The Court: No, because you are being represented by [defense counsel], and, of course, now we’re in the middle of sentencing and I don’t think your
“The Defendant: Well, I think I have valid reasons.
“The Court: -- your request is timely.
“The Defendant: I didn’t have much time, and of course I’m incarcerated, so I don’t have the materials and the information to get
“The Court: Well, what would the reason be for discharging [defense counsel] at this point in time in the middle of sentencing?
“The Defendant: Well, there’s a lot of ineffectiveness of counsel, and I apologize for that, sir, but under the California Penal Code 1181, which I looked up, there are several things that I looked at. [¶] There’s newly discovered evidence that I can bring in. there’s jury misconduct preventing a fair deliberation of the case.
“The Court: Is that the tape, the CD?
See footnote 9, ante.
“The Defendant: And other things that happened. Yeah, that’s one of them. That’s not the only thing.
“The Court: What’s the other thing?
“The Defendant: There’s also conversations that were held between -- in the restroom and outside that my family heard. This deputy officer here also had wheeled me out in plain clothes -- I mean in my county issued out these doors, where they saw me handcuffed to my wheelchair waiting -- waiting to be transported in. They brought me in and out, and they are supposed to be bringing me this way. [¶] And then there’s the verdict that was contrary to the law or evidence that did not sustain a guilty verdict of murder for financial gain. The court erred in manner of law when it denied the defendant testimony of an expert witness.
“The Court: Those matters have been covered by [defense counsel]
“The Defendant: Not thoroughly.
“The Court: --in his motion for new trial.
“The Defendant: Not thoroughly. Please forgive me, sir, but the trial judge engaged in misconduct during the trial and before the jury when he made inappropriate comments during the voir dire process. There are several things
“The Court: It sounds to me like your motion seems to be mirroring pretty much what [defense counsel] states in his motion for new trial, so I don’t think you are stating anything that [defense counsel] hasn’t already stated.
“The Defendant: Well, yes, there is, sir.
“The Court: What is it?
“The Defendant: There’s several things. That’s why I said it would be best for you to look at it briefly. If you can give
“The Court: I think what we’re going to do is we’re going to get a copy of your motion, and attach it as a court exhibit and have the court of appeals review it. I frankly
“The Defendant: But I would like you, sir, if you could. I’m begging you. If you would have the heart, it won’t take that long. It’s not lengthy, because I don’t have the ability
“The Court: I don’t think it’s appropriate. You are not your own attorney.
“The Defendant: I know I’m not, and I’m asking
“The Court: [Defense Counsel] is your attorney of record, and I thought you were going to talk about something else frankly today, but if that’s all you have, then we will proceed to hear -- why don’t you hand your motion to the bailiff, and I’ll attach it as a court exhibit. How many court exhibits do I have? I think I have two court exhibits. This might be number 3.
“The Prosecutor: Can I just have one moment, your honor?
“The Court: Sure. [¶] Ms. Garcia, there’s something that should be clear. This sentencing has been put over I don’t know how many times, at least four or five times for one reason or another. There’s been plenty of time. [¶] When was this verdict reached,
Mr. [Defense Counsel]?
“Defense Counsel: In June.
“The Court: We have July, August, September, October, November. It’s almost half a year ago.
“Defense Counsel: Your Honor, I would ask that if Ms. Garcia wants to proceed this way, that the court ought to at least read this and let her proceed.
“The Defendant: I’m just asking for a few minutes of your time to look at it yourself.
“The Court: Well, I’ll take a look at it, but based on what you have told me, Ms. Garcia, we had numerous hearings, and at the time I refused to allow the expert testimony, my reasons for doing so were amply stated on the record. [¶] I also believe that a copy of the CD music tape has been attached as a court exhibit. The court of appeals is free to listen to it and decide. [¶] Regarding my inappropriate voir dire, I don’t really recall exactly what it was. There’s so many questions, but [Defense Counsel] did object and the objections are noted for the record. I’m not going to -- certainly there was substantial overwhelming evidence in this case to support a conviction. My gosh, you were caught on video shooting this person, and
“The Defendant: But the court has not found me on the video as the prosecutor had described. She said I sat back and sat in a chair and had a pillow and shot right through it. It does not show that on the video, sir.
“The Court: All right. Well, that’s a factual
“The Defendant: It does not show that. I would not lie to anyone like that. I came with the truth.
“The Court: Ms. Garcia, that’s a factual issue, and the attorneys can argue. [Defense Counsel] had an opportunity to argue.
“The Defendant: But see, that’s where the ineffectiveness of counsel. There’s several things in here. There was like an argument between the two here, the D.A. and my attorney.
“The Court: Why don’t you show me your -- although I don’t think I’m obligated to do so, I will do so as a matter of -- I will mark this as a court exhibit. [¶] These are issues that can be properly addressed by an appeal. The failure to investigate, the failure to produce evidence, the failure to call witnesses, all these things are matters that can be appropriately addressed by your appellate counsel. [¶] I will appoint or the court of appeals will appoint appellate counsel for you. So I am not going to grant your motion for a new trial.
“The Defendant: You are not even giving me the chance. You are just flipping through it like that, but okay, sir. That’s okay.
“The Court: I think it’s inappropriate to consider it in-depth at this time. [¶] Madam clerk, I’ve looked it over. [¶] And certainly I will say that you have beautiful handwriting, but [defense counsel’s] motion is much more detailed, and this is for the court of appeals. Your motion for new trial is denied.”
The court then allowed appellant’s brother, mother and sister to speak on her behalf, declined to allow her “reverend” to speak, and completed the sentencing.
B. Analysis
1. Allocution
Appellant claims the trial court’s refusal to consider her personally drafted motion violated her right to allocution. She primarily relies on Penal Code sections 1200 and 1201, as interpreted by In re Shannon B. (1994) 22 Cal.App.4th 1235 (Shannon B). Section 1200 provides: “When the defendant appears for judgment he must be informed by the Court, or by the Clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.” Section 1201 provides, in relevant part, “[The defendant] may show, for cause against the judgment: [¶] (a) That he or she is insane;... [¶] (b) That he or she has good cause to offer, either in arrest of judgment or for a new trial....”
The specific issue in Shannon B. was whether juvenile offenders have a right of allocution at disposition hearings. (Shannon B., supra, 22 Cal.App.4th at p. 1239.) Although the court chose to address the right of allocution of adults and characterized its conclusion as a holding (id. at p. 1238.), it is arguably merely dictum because addressing it was not necessary to resolution of the case. We disagree with appellant’s expansive reading of Shannon B. We understand that case to hold, at most, that a represented defendant has the right to “make a personal statement in mitigation of punishment.” (Id. at pp. 1243 and 1246; but see People v. Sanchez (1977) 72 Cal.App.3d 356, 359 [whether a represented defendant may personally address the court at sentencing is a matter for the court’s discretion, rather than a matter of right].) Shannon B. did not involve an unrepresented defendant or, as here, a represented defendant seeking to file her own new trial motion. Adoption of appellant’s view, that all issues encompassed by section 1201 may be addressed personally by a represented defendant, would invite chaos at sentencing hearings. In our view, statutory allocution does not include a right of a represented defendant to file and argue a new trial motion. Respondent correctly notes that a defendant who is represented by counsel has no right to personally argue motions or file pleadings, except a motion to discharge counsel or a motion for self-representation. A trial court’s discretion to make other exceptions requires a “substantial showing” that granting such a request “will promote justice and judicial efficiency in the particular case.” (People v. Hamilton (1989) 48 Cal.3d 1142, 1162; see also People v Mattson (1959) 51 Cal.2d 777, 797; People v. Harrison (2001) 92 Cal.App.4th 780, 788.)
To the extent the trial court disallowed the filing of appellant’s personally drafted motion for new trial as a supplement to the motion filed by her counsel, there was noerror.
2. Appellant’s attempt to discharge retained counsel
A criminal defendant’s request to discharge retained counsel must be granted unless such a ruling would, under the circumstances of the particular case, significantly prejudice the defendant or unreasonably disrupt the “orderly processes of justice.” (People v. Ortiz (1990) 51 Cal.3d 975, 982 (Ortiz); see also People v. Munoz (2006) 138 Cal.App.4th 860, 869 [Ortiz rule applies in postconviction setting].) A trial court must “balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution.” (People v. Lara (2001) 86 Cal.App.4th 139, 153.) The fact that the defendant may be indigent and may request appointed counsel should not affect the court’s analysis. (Id. at p. 154, citing Ortiz, supra.) Because of the fundamental nature of the right to counsel of choice, the failure to conduct the proper balancing analysis is reversible error. (People v. Hernandez (2006) 139 Cal.App.4th 101, 109; see also People v. Ortiz, supra, 51 Cal.3d at p. 988 [prejudice is presumed when indigent defendant’s timely motion to discharge retained counsel is improperly denied].)
In the present case the trial court erred in failing to allow appellant to be heard as to her request to discharge counsel.
As quoted above, appellant attempted to speak at the start of the hearing on the motion for new trial, but the court declined. Appellant’s comments a short time later included the claims that she drew up her own document because she had been told her trial counsel would not be present at the sentencing hearing, that she “had not seen much of him” and that she had planned to “discharge” him. She alleged “a lot of ineffectiveness of counsel” as well as newly discovered evidence, and described three instances of alleged jury misconduct. She alleged lack of thoroughness by counsel regarding the financial gain evidence and the expert testimony the court had excluded. She made reference to an argument between defense counsel and the prosecutor, and counsel’s ineffectiveness in arguing the content of the video recording of the shooting. She also stated she wished to raise the issue of misconduct by the court during jury selection. Appellant’s counsel joined in her request that the court hear her motion.
The court noted that defense counsel had raised many of the same issues in his motion for new trial, and stated its intent to mark her motion as a court exhibit and “have the court of appeals review it.” The court then mistakenly stated that sentencing had been continued “four or five times.” The court told appellant that her counsel’s alleged failure to investigate and failure to produce evidence or call witnesses could be addressed by the attorney that would be appointed to handle her appeal. After glancing over the motion and declining to file it or allow appellant to argue it, the court concluded by stating, “Your motion for new trial is denied.”
As noted above, there had been only two continuances of the sentencing hearing.
As the trial court promised appellant, this court has reviewed her handwritten motion. The first page prays for a new trial and a continuance. It continues, “I am strongly requesting the appointment of New Counsel to prepare a motion for New Trial because I am indigent and my family have [sic] exhausted their finances.” The third page lists “Ineffectiveness of Counsel” as one of the grounds of her motion. The fourth page cites relevant cases in the area of ineffectiveness of counsel as a ground for new trial. The fifth page contains the following phrase: “Tactical choice to curtail presentation of defense was done without defendant’s knowledge of [sic] consent.” The sixth page of appellant’s motion makes a detailed allegation of a conflict of interest on the part of appellant’s trial counsel based on his efforts to “go after” victim Zweig’s trust, and further alleges that counsel had eventually gained “control” of the trust. Appellant’s motion goes on to make several other references to ineffective representation both in trial and outside the courtroom.
As noted above, the prosecutor claimed that appellant had waived any conflict on the part of her attorney. No such waiver appears in the record before this court.
Appellant’s motion also argued two matters of potential jury misconduct not raised in her counsel’s motion, i.e., the allegation jurors had discussed the case outside the jury room prior to the verdict, and a claim that jurors had seen appellant in jail garb during the trial. As noted earlier in this opinion, appellant’s counsel had raised the former issue at a hearing after the verdict and promised to bring any appropriate motion seeking juror contact information, though he never did so.
When the contents of the written motion are considered along with appellant’s comments in court, it is clear the trial court should have conducted more than a cursory review of her claims as part of the Ortiz analysis. Her concerns were substantive and specific. The conflict of interest allegation is of particular interest, in that the jury heard evidence that appellant’s trial counsel sought money from the trust on appellant’s behalf, which the prosecutor argued strongly supported the financial gain allegation. Although appellant’s motion was raised at the eleventh hour, in light of its content and the seriousness of this case it was an abuse of discretion for the court to find it untimely without a thorough review of her paperwork and further inquiry of appellant herself.
People v. Lara, supra, is instructive. Lara, a third strike burglary defendant, waited until the first day of trial to complain that his retained attorney had not spoken to him for months, was unprepared, and had just revealed trial tactics with which Lara disagreed. The trial court conducted an in camera hearing and declined to relieve counsel, applying the standards of People v. Marsden (1970) 2 Cal.3d 118. The court of appeal held Marsden did not apply because counsel had been retained, then addressed the timeliness issue. (People v. Lara, supra, 86 Cal.App.4th at pp. 155, 158.) It noted that a request to discharge retained counsel on the first day of trial is not necessarily untimely. Factors such as the number of prior continuances, inconvenience to witnesses, whether the defendant raised the issue at the first opportunity, and whether the defendant appeared to be dilatory should have been taken into account. The Lara trial court had not done so, however, because of its misapplication of the Marsden standard. This left the court of appeal with an insufficient record as to timeliness, and Lara’s conviction was reversed. (Id. at pp. 162-164; see also People v. Hernandez, supra, 139 Cal.App.4th at p.109 [failure to make proper inquiry regarding request to discharge retained counsel immediately before the beginning of jury selection was reversible error]; compare People v. Keshishian (2008) 162 Cal.App.4th 425, 429 [murder defendant’s request for indefinite continuance to hire new counsel properly denied where only reason given was loss of confidence in counsel, and request was made on the day the case was called for trial after many earlier continuances]; People v. Turner (1992) 7 Cal.App.4th 913, 919 [request to discharge counsel on day of trial properly denied where court, after inquiring, rejected ineffectiveness claims and impliedly found defendant was attempting to delay the trial].)
This court is at a disadvantage similar to that of the court of appeal in Lara. The trial court failed to “‘balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution....’” (People v. Munoz, supra, 138 Cal.App.4th at p. 870 [citation omitted].) Despite being alerted to appellant’s concerns by her in-court comments, the court improperly concluded her request was untimely without considering her written document or inquiring further into the reasons for her request. Further, the court’s untimeliness finding was tainted by its misimpression that there had been four or five continuances of the hearing instead of just two. The appropriate remedy is a remand for the purpose of allowing appellant to discharge her trial counsel if she still wishes to do so. Appellant will then be free to represent herself, retain new counsel or assert indigence and request an appointed attorney. The trial court shall conduct a de novo hearing on any subsequently filed motion for new trial.
3. Appellant’s ineffectiveness of counsel claims
The trial court also erred by proceeding with the sentencing without making a reasonable inquiry into appellant’s oral and written claims that her trial counsel had a financial conflict of interest and was otherwise ineffective. Such allegations are properly raised and heard in the trial court where that court’s own observations can form a basis for the court to act expeditiously on the motion, potentially avoiding appellate review or habeas proceedings. (People v. Smith (1993) 6 Cal.4th 684, 695; People v. Fosselman (1983) 33 Cal.3d 572, 582; see also People v. Cornwell (2005) 37 Cal.4th 50, 101, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Here, the court delegated the issue to appellant’s counsel on appeal and this court without reading the allegations in full, and without reaching any reasoned conclusion as to whether it could effectively and expeditiously address some or all of appellant’s claims.
On remand, the court shall engage in that analysis as to any ineffectiveness claim raised in a motion filed by appellant or her new counsel. “‘If the court is able to determine [any] effectiveness issue on such motion, it should do so.’” (People v. Cornwell, supra, 37 Cal.4th at p. 101, quoting People v. Fosselman, supra.)
X. No Reversible Error in Limiting Speakers at Sentencing Hearing
Just before the court pronounced sentence appellant and her counsel addressed the court, as did three members of appellant’s family. Two of the three family members sought to engage the court in a discussion of whether appellant had received adequate representation and a fair trial. Appellant then requested that her “reverend” be allowed to speak. The court summarily denied the request, stating, “I don’t think there’s anything further that anybody can say.” Appellant contends the court erred. We disagree.
We see no abuse of discretion in the court placing a limit on the number of unsworn speakers that would be allowed, particularly in light of the content of the remarks by the family members. Further, appellant made no offer of proof regarding the reverend’s expected comments that would have assisted the court in deciding whether to grant the request.
In any event, the court’s comment quoted above was undoubdtedly a reference to the fact that it had no discretion as to the applicable sentence in appellant’s case. Because life without parole was the only sentencing option, any assumed error in the court’s refusal to allow the reverend to address the court was harmless beyond a reasonable doubt.
DISPOSITION
The cause is remanded to the trial court, which shall offer appellant the opportunity to discharge her trial counsel for purposes of a de novo motion for new trial. If appellant accepts that offer, she may represent herself, retain new counsel or assert indigence and request an appointed attorney. Once appellant’s representation status is settled, the trial court shall set a new post-trial motion hearing, and proceed in a manner consistent with this opinion. If appellant declines to pursue another motion for new trial, or if that motion takes place and is denied, the sentence previously imposed shall be reinstated. In all other respects, the proceedings below are affirmed.
We concur: FLIER, Acting P. J., BIGELOW, J.