At trial, the testimony of defendant's girlfriend

Defendant appealed the judgment of the Superior Court of El Dorado County (California), which entered convictions against him for murder, burglary, robbery, kidnapping, and rape as well as a finding that the alleged felony-murder special circumstances were true. The trial court sentenced defendant to death. In conjunction with this appeal, defendant filed a petition for a writ of habeas corpus.

At trial, the testimony of defendant’s girlfriend implicated him in the victim’s murder. The defense was that defendant’s girlfriend was framing defendant for the murder that she herself had committed. During the penalty phase, defendant testified in a narrative form and asked the jury to impose the death penalty. Defendant also testified about his home life and his artistic ability. The jury found defendant guilty of murder, burglary, robbery, kidnapping, and rape. Orange County ADA Attorney The jury also found true the alleged felony-murder special circumstances and returned a death verdict. On appeal, the court concluded that the vicinage right could be waived by defense counsel over defendant’s objection because the right was not a personal one. The court also rejected defendant’s argument that he was denied effective assistance of counsel by being forced to testify in narrative form. With respect to the penalty phase, the court found that defense counsel was not ineffective for acquiescing in defendant’s wish that additional mitigating evidence not be presented and found that defendant’s testimony that he preferred the death penalty did not require reversal. The court affirmed the judgment.

Defendant’s convictions for murder, burglary, robbery, kidnapping, and rape were affirmed. The court also affirmed the alleged felony-murder special circumstances finding and the imposition of the death penalty. The court concluded that the trial court’s decision to grant defense counsel’s motion for a change of venue based on pretrial publicity did not require defendant’s personal waiver of vicinage.

In retaliation for a minor altercation, two defendants held members of a girl’s family hostage in their home for several hours and killed the girl’s 73-year-old grandmother. A jury of the Superior Court of Santa Clara County, California, found both guilty of the 1991 murder under Pen. Code, § 187, and other crimes, found true lying-in-wait and torture-murder special circumstances, and returned death verdicts. Appeal was automatic.

Defendants entered the family’s residence by ruse, displayed a gun, and shortly thereafter bound and blindfolded the grandmother and isolated her upstairs for several hours before killing her. The court held that the evidence did not support lying-in-wait special-circumstance findings under former Pen. Code, § 190.2, subd. (a)(15), because it did not establish any concealment that was contemporaneous with a substantial period of watching and waiting for an opportune time to act, or that allowed defendants to launch a surprise attack on an unsuspecting victim from a position of advantage. Reversal of the lying-in-wait special-circumstance findings did not require reversal of the death sentences because a valid special-circumstance finding remained for torture murder. Sufficient evidence supported findings of torturous intent in part because the victim was bound and gagged and suffered a number of nonlethal wounds before she was strangled and her throat slashed. The court also held that one defendant was eligible for the death penalty, despite expert testimony that he suffered from mental illness that impaired his judgment and prevented him from forming the required mental state.

The court reversed the lying-in-wait special-circumstance findings as to both defendants and ordered that the firearm use enhancements found true as to one defendant be struck and replaced with deadly or dangerous weapon use enhancements. The court affirmed the death judgments in all other respects.

Orange County ADA Attorney