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Name: People v. Box
Case #: S019798
Court: CA Supreme Court
District CalSup
Opinion Date: 08/17/2000
Subsequent History: Rehearing denied 10/3/00
Summary

In this death penalty appeal, the trial court correctly rejected appellant’s claims of violations of his constitutional rights to due process, an impartial jury and a reliable death verdict, which were premised on the trial court’s denial of appellant’s request to permit the defense to conduct sequestered, individual voir dire of prospective jurors who had, or who had spent time with, small children. The trial court here conducted voir dire pursuant to Proposition 115, codified as section 223 of the California Code of Civil Procedure. It conducted most of the voir dire itself and in open court. However, sensitive matters were discussed in chambers and defense counsel was permitted to inquire then. It did not abuse its discretion in so doing as the voir dire inquiry made by the court sought to ascertain improper bias, and was successful in that several jurors did come forward and discuss their strong emotional reaction to the murder of a child. It similarly did not abuse its discretion in preventing the defense from using giving the jury a written questionnaire, particularly in light of the fact that the court used the questionnaires in formulating voir dire questions and invited counsel to submit follow-up questions. The court also rejected appellant’s claims that the trial court erred in failing to permit individualized voir dire on “life-qualification” while it voir-dired the jury on “death-qualification,” citing Hovey v. Superior Court (1980) 28 Cal.3d 1, 80. Where the trial court misspoke during jury instructions, the error was cured when the written instructions were sent to the jury. No error was committed in instructing the jury, on the co-defendant’s request, on the crime of conspiracy to commit burglary. Although the charge was not contained in the information, the information did charge appellant with three murders, burglary, robbery, the special circumstances that the murders were committed in the commission of a burglary and robbery and conspiracy to commit robbery. It is not necessary to separately charge a felony-murder theory or the underlying felony, particularly here were appellant was charged with the burglary and the special circumstance of murder in the commission of the burglary, and was informed during trial that the prosecution intended to proceed on a burglary-murder theory. Moreover, appellant did not object to giving the instruction at trial. Assuming that appellant’s failure to object to the testimony he now claims the prosecution improperly elicited is not waived, the prosecutor committed no misconduct. In this instance the questioning was not conducted in such a way that implied appellant had threatened anyone. The court rejected other miscellaneous claims of prosecutorial misconduct. Where the trial court instructed the jury that the testimony of a single witness, if believed, was sufficient to establish appellant’s guilt, it was error for the trial court to refuse to instruct the jury that an accomplice’s testimony must be corroborated and should be viewed with distrust. However, the error was not prejudicial because the jury was aware that the accomplice had reason to shift the blame to appellant. Substantial evidence supported the trial court’s denial of appellant’s claims of violations of People v. Wheeler (1978) 22 Cal.3d 258 in the prosecution’s use of peremptory challenges to excuse three African-American potential jurors. Moreover, the record established specific non-race-related reasons why a prosecutor might want to excuse these prospective jurors. The court rejected appellant’s claim that the trial court erred in allowing the prosecution’s challenge for cause of one prospective juror who volunteered in chambers that she “couldn’t vote for the death penalty.” The trial court did not abuse its discretion in denying appellant’s severance motion where there were no problems of cross-admissibility under People v. Aranda (1965) 63 Cal.2d 518 and appellant suffered no prejudicial association with the co-defendant. Where the trial court’s factual determinations were supported by substantial evidence, the trial court properly denied appellant’s motion to suppress his statement to the police in which appellant stated he was not represented by counsel and had received the appropriate warnings under Miranda v. Arizona (1966) 384 U.S. 436. The trial court did not abuse its discretion in finding a jury selection expert to be “non-essential” and denying appellant’s request for funds for one. Where photographs of the victims were relevant, not cumulative, and the record demonstrates that the trial court understood its duty to balance the probative value against any prejudicial effect, the trial court did not err in admitting the photos, which were not unduly gruesome or inherently inflammatory. The trial court did not abuse its discretion in admitting evidence that the co-defendant was afraid of appellant and why. The trial court did not err in admitting, pursuant to Evidence Code section 352, evidence of appellant’s uncharged escape in an attempt to show consciousness of guilt where the trial court gave an appropriate limiting instruction. Even if substantial evidence did support giving an imperfect defense instruction here, there was no prejudice in failing to give it because the jury necessarily rejected appellant’s account when it found the felony-murder special-circumstance allegations true. The court rejected the claims of cumulative error because the few errors found were harmless. Because appellant failed to renew his objection to CALJIC 2.62, the claim of error is waived. However, counsel was not ineffective in failing to renew the objection because appellant cannot identify any facts warranting giving the instruction. Where the trial court instructed the jury that the testimony of a single witness, if believed, was sufficient to establish appellant’s guilt, it was error for the trial court to refuse to instruct the jury that an accomplice’s testimony must be corroborated and should be viewed with distrust. However, the error was not prejudicial because the jury was aware that the accomplice had reason to shift the blame to appellant. Because appellant failed to renew his objection to CALJIC 2.62, the claim of error is waived. However, counsel was not ineffective in failing to renew the objection because appellant cannot identify any facts warranting giving the instruction. The trial court properly refused to give appellant’s modified version of CALJIC 2.40. CALJIC 2.40 adequate informs the jury that good character for the traits involved may be sufficient to raise reasonable doubt. There was no error in giving CALJIC 2.90. As People v. Birks (1998) 19 Cal.4th 108, 136, is fully retroactive, appellant’s claim of error in refusing to instruct on the lesser-related offense of assault with a deadly weapon, based on People v. Geiger (1984) 35 Cal.3d 510, which was overruled in Birks, fails. Penalty phase issues are not summarized here.