People v. Horning

Citations: 102 P.3d 228; 22 Cal. Rptr. 3d 305; 34 Cal. 4th 871; 2004 Daily Journal DAR 14997; 2004 Cal. Daily Op. Serv. 11064; 2004 Cal. LEXIS 11890Docket: S044677

Court: California Supreme Court; December 16, 2004; California; State Supreme Court

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Danny Ray Horning was convicted of first-degree murder for the killing of Sammy McCullough, with the court finding that the crime involved special circumstances of robbery and burglary, and that Horning personally used a handgun. Following the conviction, Horning waived his right to a jury trial for further proceedings, leading the court to confirm he had three prior serious felony convictions. After a penalty trial, the court sentenced him to death, which led to an automatic appeal.

The facts of the case revealed that McCullough, a marijuana dealer, was last heard from on the evening of September 19, 1990, after attempting to contact a friend. His dismembered body was discovered in the San Joaquin River Delta over the next few days, with evidence indicating he had been shot in the forehead at close range. A dismemberment tool was found with the body, and his wallet was recovered empty. Witnesses reported seeing a suspicious vehicle near the crime scene, which matched the description of McCullough's Jeep Cherokee, later found clean and containing checks and documents bearing his name. Horning's fingerprints were discovered on some of these documents, while other evidence linked him to the crime scene, including human blood and tissue found at McCullough's home.

A knife set with one missing knife was discovered in the kitchen, along with bags and tape similar to those used for binding body parts. A .22-caliber bullet casing was located outside the front door. On September 21, 1990, Vicki Pease and Shirley Sanders, girlfriends of McCullough, along with Crowley, accessed McCullough's house before police arrived, removing items including legal documents and a Rolex watch. Pease informed Deputy Sheriff Armando Mayoya about their actions and noted that various items were missing, including McCullough's nine-millimeter handgun, which Pease claimed was always with him until at least September 18, 1990. Sanders testified that McCullough had accumulated a significant amount of spare change in a planter, which was absent after his death.

Cynthia Ann Cuevas, the defendant's sister, testified about her brother's employment struggles in the summer of 1990 and described a visit on September 19, when her brothers were supposed to repair her car. They planned to return on September 21, but never did. The parties agreed that defendant lived on their parents' property in a trailer and had expressed a need for money. After an attempt to fix Cuevas's car, the defendant and his brother left unexpectedly; the brother returned, but the defendant did not. The defendant had been released on parole on June 16, 1990, and had last been in contact with his parole agent on September 16, maintaining parole conditions but lacking a full-time job. On October 10, 1990, the parole agent noted him as a "parolee at large" due to his absence.

Ray Van Vleet, sheriff of Caribou County, Idaho, reported on September 23, 1990, about an abandoned 1976 Monte Carlo vehicle linked to the defendant and his brother, which was moved shortly after inspection. John Sharp, a rancher, encountered the defendant on October 20, stating he had walked over the mountains and was camping there indefinitely, despite Sharp's warnings about winter conditions. Wade Carney, a store worker, noted that the defendant frequently paid with heavy bags of coins he saved for hunting. On October 26, 1990, Sheriff Van Vleet found the defendant at an abandoned cabin, where he provided identifying information and claimed to have permission to stay there.

The birth date provided by the defendant did not match records, and he had an outstanding parole violation warrant. Sheriff Van Vleet discovered the defendant had left a cabin, leaving behind a note and a calendar with handwriting that matched the defendant's. The note instructed "John" to let himself in. The defendant was later arrested in Winslow, Arizona, on March 22, 1991, during a bank robbery, with a nine-millimeter SIG Sauer handgun in his possession. The gun's serial number was linked to Joseph Cutrufelli, who purchased it and subsequently gave it to Nicholas Montano, who testified he passed it to the defendant, McCullough. Vicki Pease identified the gun as one McCullough had owned, noting specific scratches she made on it. Shirley Sanders corroborated that the gun resembled McCullough's, which she had fired near his barn, where six nine-millimeter casings were found. Ballistics confirmed the gun had fired those casings but did not fire the bullet found in McCullough's brain.

The defendant's father was expected to testify that he saw the defendant firing a .22-caliber rifle a week before September 20, 1990, on family property where a .22-caliber bullet and parts of a rifle were found. Michael Giusto, a criminalist, determined that the bullets and casing from the crime scene and the defendant's property showed consistencies suggesting they could have come from the same gun, though he could not confirm this definitively. Timothy Horning, the defendant's brother, noted that clothing belonging to the defendant resembled items found at the crime scene, and testified to the defendant's hunting experience, which paralleled how McCullough's body was dismembered. Additionally, Willie Eoff testified that he had driven the defendant to McCullough's area, where they returned with marijuana. After his arrest, the defendant was interviewed by Deputy Mayoya, where he denied killing McCullough.

Deputy Mayoya questioned the defendant about the origin of a nine-millimeter handgun he possessed. The defendant claimed he purchased the gun for $400 at a McDonald's in Salt Lake City while traveling from California to Idaho, shortly after his parole officer's visit. He described a journey through Stockton, Las Vegas, and Utah to Idaho, and when asked about his companion, he declined to provide details but acknowledged Steven Horning's presence. The defendant admitted to using the gun to shoot a moose and mentioned he had left a cabin area after anticipating an encounter with law enforcement.

When discussing a 1988 robbery for which Steven was charged, the defendant denied involvement but noted he would not contradict Steven's claims. He asserted he hadn't touched a .22-caliber rifle since November 1988 and admitted to firing a .38-caliber gun. Deputy Mayoya expressed disbelief regarding the gun's origin and the defendant's statements, to which the defendant acknowledged he was lying but insisted that his story would remain consistent regardless of questioning. He remarked on the improbability of the gun being found at a McDonald's and suggested he would continue to maintain his claims.

Additionally, testimony was presented from Larry Hastings, who would have stated that he sold marijuana to McCullough, who was known to pay substantial amounts in cash and never carried a gun during their transactions. Hastings had sold his marijuana business in 1988 but remained in contact with McCullough.

McCullough communicated with Hastings several times in the week leading up to his death. In early September 1990, he solicited Hastings' assistance in acquiring marijuana for resale and sent Vince Lauricica to Utah to purchase 26 pounds for $70,000, intended for delivery in California. McCullough expressed concerns about being followed and revealed he had considered hiring hit men to eliminate a thief associated with his marijuana dealings but ultimately decided against it. Shortly thereafter, federal authorities seized the assets of Frischknecht, who was subsequently imprisoned for his involvement in the drug operation. Hastings was also arrested and agreed to testify against Gabriel Aguirre in exchange for a reduced sentence. 

Frischknecht and McCullough had collaborated in a marijuana sales operation since early 1989, during which Frischknecht made multiple deliveries totaling approximately 700 pounds to McCullough. McCullough paid Frischknecht between $200,000 and $300,000 in various transactions, and their communications were monitored by federal wiretaps. In the wake of an asset seizure case against Frischknecht, he sought McCullough’s help for information and paid him $7,500, believing it would assist in his legal battle. 

During the penalty phase of the trial, the prosecution established that the defendant had three prior felony convictions, including robbery and a lewd act with a minor. Evidence was presented of further crimes committed after McCullough's murder, including multiple bank robberies across several states, during which the defendant threatened law enforcement. Following his capture after one robbery, he expressed intent to harm an officer if given the chance. He later escaped from prison and engaged in a carjacking at gunpoint.

Defendant threatened Lakritz and Falk with a gun, expressing intentions to kidnap a family for ransom and to secure the release of his imprisoned brother. He forced them to stay overnight in a hotel and subsequently drove them to Williams, Arizona, where he used Lakritz's credit card to withdraw $1,500. While still holding them hostage, he attempted to kidnap a family in a motor home at the Grand Canyon, dictating ransom demands for a million-dollar ransom, his brother's release, and a red truck. He threatened to kill both Lakritz and Falk, as well as the targeted family. After dictating his demands, he brandished his gun at the family, leading to one member escaping and alerting a park ranger. A high-speed chase ensued, during which the defendant shot at law enforcement before fleeing on foot.

On June 29, 1992, he attempted to abduct two individuals in the Grand Canyon, but they escaped. He later stole a car from tourists Sally Edmonds and Caroline Young at gunpoint, threatening to shoot if they resisted. After tying them to a tree and stealing their money, he was pursued by Highway Patrol Officer Stephen Costello, during which he fired at the officer before abandoning the stolen vehicle and escaping on foot.

In his defense during the penalty phase, the defendant presented evidence aimed at creating doubt regarding his guilt in the murder of McCullough and evidence for mitigation. Firearms expert David Butler stated he could not conclusively link the bullet found in McCullough's brain to the defendant's gun, labeling the findings as inconclusive. Pathologist Dr. Louis Daugherty testified that a knife found with the victim could not have caused all the bone injuries reported. Testimonies from the defendant's siblings included claims about the timeline of events and denials of their presence at key locations related to the case.

Jacques Colback testified about the presence of rifles owned by the Hornings' neighbors, while John McFeley noted a lot of garbage on a neighboring property. Officer James Smith recalled confiscating a sawed-off shotgun from a nearby residence around 1990-1991. Shelley Ann Horning, the defendant's wife, described their family life in 1987-1988, portraying her husband as a caring father, despite his past arrest for an incident involving their daughter. She expressed concern for their children if he were sentenced to death, asserting that he possesses inherent goodness and should not be executed.

Vicki Zachary shared her experience of abuse from her father and recounted how the defendant helped her escape at a young age, affirming his kind nature. The defendant testified in his defense, denying the murder of McCullough and claiming ignorance of the sawed-off rifle barrel found on his property. He admitted to firing a .22 caliber bullet but stated it was not from a sawed-off rifle. He denied ever meeting McCullough or being on his property.

The defendant acknowledged possessing a nine-millimeter handgun taken during his arrest in Arizona, explaining its acquisition through a vehicle he rifled through for money. He left California in 1990 out of fear of returning to prison for unemployment. He confessed to committing multiple bank robberies, often keeping his gun holstered and asserting he never intended to harm anyone, despite having military training as an expert marksman.

He admitted to making threats during a robbery, claiming he was bluffing and never intended to act on them. The defendant highlighted his good deeds, including helping friends and family in need, and expressed a desire to maintain a relationship with his children, arguing that a death sentence would exacerbate their stress compared to a life sentence without parole.

Defendant expressed concern about potentially facing the death penalty for a crime he did not commit. The murder of McCullough occurred in September 1990, with a complaint filed against defendant and his brother on December 4, 1990. The charge against the brother was later dismissed. Defendant was arrested in Arizona on unrelated charges in March 1991 and received four consecutive life sentences. A detective informed Arizona authorities in November 1991 about the murder accusation, noting that extradition was not pursued due to defendant's lengthy sentence. In May 1992, defendant escaped custody and committed further crimes, leading to his rearrest in July 1992. An amended complaint charging him with McCullough’s murder was filed on July 22, 1992, but extradition was still undecided. A second amended complaint was filed on May 12, 1993, which included special circumstances, and defendant's first court appearance for this charge was on May 20, 1993. He moved to dismiss the charges based on the delay before his arraignment, which the court denied. Defendant argued that the two-and-a-half-year delay violated his rights under the federal and California Constitutions. However, the court found that the Sixth Amendment right to a speedy trial did not begin until either a formal indictment or actual arrest occurred. The initial complaint did not trigger these protections, nor did the November 1991 letter from the detective. The federal speedy trial protection applied when he was actually restrained on the charges in May 1993, and defendant did not raise concerns about delays occurring after that date.

Defendant's claim for relief based on federal speedy trial protections is unfounded, even if the trial court's finding that these protections attached with Detective Mayoya's November 26, 1991, letter is accepted. The United States Supreme Court has highlighted that unreasonable delays between formal accusation and trial pose risks such as oppressive pretrial incarceration, anxiety, and potential impairment of the defense due to fading memories or lost evidence. To assess relief due to unreasonable prosecution delays, courts consider the four 'Barker' factors: the length of the delay, responsibility for the delay (government or defendant), whether the defendant asserted their right to a speedy trial, and whether the defendant suffered prejudice as a result of the delay.

A threshold must be crossed to trigger a speedy trial analysis, indicating that the delay is not ordinary but "presumptively prejudicial," with delays approaching one year being particularly scrutinized. Presumptive prejudice indicates that the delay is significant enough to warrant judicial examination. While specific proof of prejudice is not essential for a speedy trial claim, excessive delays are presumed to compromise trial reliability, with the significance of such presumptive prejudice increasing with the delay's duration.

The Supreme Court acknowledges that pretrial delays can be justifiable, as the government may require time for gathering evidence or locating witnesses. Different reasons for delays are assessed with varying weights. For relief to be granted, negligence causing delay must exceed that which leads to demonstrable prejudice. In the case cited, the defendant was granted relief due to an extraordinary eight-year delay, with six years attributed to the government's negligence, which was deemed inexcusable and significantly longer than what typically triggers judicial review.

Defendant is not entitled to relief regarding his federal speedy trial rights, even if these protections began in November 1991. Significant delays in the case were justified; the defendant was in hiding and deemed "unavailable for prosecution" in California until May 1991 due to his arrest in Arizona. The district attorney initially decided against extraditing him for prosecution in California, considering the life sentence he received in Arizona. However, after the defendant escaped and committed further crimes, leading to his rearrest in July 1992, the decision to prosecute him in California became reasonable. This delay is viewed as a "more neutral reason," weighing less heavily in the assessment of his speedy trial rights.

The delay from his rearrest to formal charges in May 1993 is less clear but appears to be shorter than the one-year threshold that typically triggers further inquiry into the Barker factors. Even if the initial extradition delay was not fully justified, it was not inexcusable, and the total delay does not significantly exceed what would trigger a Barker inquiry. The defendant’s own actions contributed to the delays, including going into hiding and committing additional crimes, which are more blameworthy than government-caused delays. 

The defendant did not assert his right to a speedy trial, and there is ambiguity regarding whether he had notice of the charges before May 1993, diminishing the weight of this factor. Regarding potential prejudice, the defendant remained either incarcerated for Arizona crimes or at large, negating claims of oppressive pretrial incarceration. His argument about the inability to receive concurrent sentencing is weakened by the life sentences he faced in Arizona and the death penalty in California. Additionally, there is no evidence of significant anxiety or concern on the defendant's part, and while extraordinary delays can presume prejudice, this alone does not guarantee relief. Overall, the nature and context of the delays, as well as the defendant's own conduct, lead to the conclusion that he cannot claim a violation of his speedy trial rights.

The delay in the defendant's case is deemed less significant than the government-induced delay in Doggett and does not warrant relief based solely on presumptive prejudice. The defendant failed to demonstrate particularized prejudice, as he could not prove that the alleged witnesses he sought were relevant to his case. Consequently, no violation of the defendant's federal constitutional speedy trial rights was found. For federal due process rights, substantial prejudice due to pre-indictment delay must be shown, along with evidence that such delay was intentionally tactical. The defendant did not establish either requirement, leading to no violation of federal due process rights.

Regarding state constitutional rights, the protection of the speedy trial right began with the filing of the felony complaint on December 4, 1990. When evaluating dismissal requests based on pre-indictment delays, courts must balance the prejudicial effect against any justifications for the delay. The defendant did not demonstrate prejudice and much of the delay was justified, particularly when he was in hiding, resulting in no violation of state constitutional speedy trial rights.

The defendant also claimed that special circumstance allegations, added in May 1993, should be dismissed. He argued that an earlier arraignment could have allowed him to plead guilty to murder without these allegations. However, special circumstance charges can be added to complaints or information, and the district attorney could have included them at any point before arraignment. Therefore, there is no basis for dismissing these charges due to delays in prosecution.

Additionally, the trial court's refusal to excuse two prospective jurors for cause, who were perceived as biased in favor of the death penalty, was deemed not cognizable on appeal.

To preserve a claim regarding the trial court's denial of a defense challenge for cause, a defendant must demonstrate three elements: (1) utilization of a peremptory challenge to remove the juror in question, (2) exhaustion of all peremptory challenges or justification for not exhausting them, and (3) expression of dissatisfaction with the jury that was ultimately selected. In this case, the defendant peremptorily challenged both jurors and exhausted his challenges but did not express dissatisfaction with the final jury selection. Although the defendant claimed dissatisfaction and suggested he would have challenged other jurors if possible, he did not formally articulate this during the trial. The defendant is required to show that the refusal of his challenges for cause impacted his right to a fair trial, which he failed to do. The trial court has broad discretion regarding juror qualifications, which is rarely overturned on appeal. To establish actual bias, there must be a finding of a state of mind that prevents impartiality. If a juror presents conflicting testimony about their impartiality, the trial court's determination is binding on appeal. For challenges related to a juror's views on the death penalty, the court assesses whether those views would significantly hinder their duties. The standard of review for such rulings parallels that for other bias claims, with the trial court's conclusions upheld if supported by substantial evidence. In this instance, no abuse of discretion was found. The first juror in question initially expressed strong views against life without parole as a death penalty alternative but later assured the court of her ability to decide impartially after being instructed on the law. Although she had previously stated that a lack of testimony implied guilt, she also acknowledged the defendant's opportunity to prove his innocence.

The court confirmed that the juror understood the burden of proof and would find the defendant not guilty if the prosecution failed to meet that burden. Despite concerns about a second juror's impartiality due to her belief that defendants are likely guilty and her inclination to impose the death penalty, she assured the court that she could follow the law. After further questioning by the district attorney, she indicated her willingness to consider both possible verdicts, which led the court to deny the defense's challenge for cause, deferring to the trial court's assessment of her demeanor during questioning.

Regarding evidentiary issues, the court admitted a statement made by the defendant to Deputy Mayoya, which he argued was hearsay. The prosecution used this statement in opening and rebuttal arguments, leading the defendant to seek a mistrial on the grounds of prejudice. The court denied this motion, ruling that the statement fell under the hearsay exception for statements made by a party against their interest. The admissibility of the statement was upheld, as it was offered against the defendant in the current action, aligning with established legal precedents. The reasoning behind the court's ruling was sound, regardless of the specific hearsay exception applied.

Defendant challenges the prosecution's failure to establish the corpus delicti of a 1988 robbery and claims that the admission of certain statements as evidence of other crimes was improper. However, his objection was limited to hearsay, precluding him from raising additional grounds on appeal, as established in *People v. Carpenter*. Without a trial objection, the prosecution could not adequately address the issue, though the statement was relevant to demonstrate defendant's knowledge of McCullough and his home, linking it to his guilt. The applicability of the corpus delicti rule to evidence of other crimes used to prove motives, opportunities, or identities remains ambiguous, but even if it applied, an objection would have allowed the prosecution to address any evidentiary gaps. 

Evidence was presented without objection, including McCullough's claims of being targeted in crimes and identifying Steven Horning as the perpetrator of the robbery, potentially satisfying the corpus delicti requirement, which can be established with slight proof. The court acted within its discretion by denying defendant's mistrial motion after the prosecutor's reference to this evidence. 

Defendant also asserts the prosecutor's jury argument was misleading based on known facts, but this claim cannot be addressed on appeal due to his failure to object during the trial. A hearsay objection differs from one regarding misleading arguments, and defendant did not preserve this point for appeal. Furthermore, any objection would likely have been meritless, as the prosecutor was entitled to discuss the evidence and its implications. While defendant highlights McCullough's identification of Horning as the perpetrator, the prosecutor did not possess definitive knowledge of the events, nor could he ascertain McCullough's accuracy. Overall, this issue was minor in the broader context of the case, and both parties were permitted to present their interpretations of the evidence.

The court allowed Criminalist Michael Giusto to testify that bullets from the case were consistent with being fired from a gun barrel found on the defendant’s parents' property, though he could not definitively link them due to their condition. The defendant argued for exclusion of this evidence, claiming it was irrelevant and prejudicial, but the court upheld its admission, citing the trial court's discretion in evaluating evidence relevance and probative value against prejudicial impact. The court noted that while definitive conclusions would add probative value, inconclusive scientific results remain relevant for the jury. Giusto's testimony was based on scientific examination rather than speculation, and the jury was adequately informed of the limitations of the findings. Exclusion of the evidence could have misled the jury regarding the thoroughness of the investigation. 

Regarding the sufficiency of evidence for the murder conviction, the defendant contended that the evidence did not support the jury's findings of first-degree murder or the special circumstances. The standard for assessing sufficiency requires reviewing the entire record favorably towards the judgment, ensuring there is substantial evidence—reasonable, credible, and solid—allowing a reasonable jury to find the defendant guilty beyond a reasonable doubt. This standard applies equally to circumstantial evidence and special circumstance allegations.

Evidence sufficiently supports the jury's verdict that the defendant was the killer. Key points include the presence of the defendant's thumbprints and fingerprints on car ownership documents found in the victim's car, and his possession of the victim's gun at the time of his arrest. Parts of a .22-caliber rifle and a bullet potentially linked to the murder were discovered on the Horning property, and the defendant's father witnessed him firing a similar rifle shortly before the killing. The defendant's clothing resembled that of items found with the dismembered body, and he had been in proximity to the victim's residence multiple times prior to the incident.

Following the murder, the defendant left California abruptly and retreated to Idaho, where he exhibited unusual behavior regarding his payment for groceries. A significant number of coins were missing from the victim’s home, and the defendant's statements to law enforcement were indicated to be deceptive. A former inmate testified that the defendant claimed to have killed a drug dealer in California.

Despite the defendant's assertion that ballistics evidence was inconclusive, this did not undermine the overall evidence indicating his guilt. The jury was instructed on both premeditated and felony murder, with evidence supporting both theories. The defendant's actions, including binding and blindfolding the victim before executing a close-range shot, illustrated motive and planning. The jury could reasonably infer that premeditation occurred, even if briefly, as suggested by the circumstances of the crime.

The evidence presented indicates a calculated intent to kill rather than a spontaneous act of violence, supporting findings of premeditation and deliberation. The jury could reasonably conclude that the defendant entered the victim's house with the intent to commit theft, as he took the victim's gun and collection of coins and had a motive tied to his financial need. The legal standard requires that the intent to steal must exist before the fatal act; however, the act of killing while taking substantial property allows for a presumption of intent to rob. The presence of a bullet casing outside the house does not negate this, as a murder can be classified as first-degree if committed during the commission of a felony, including burglary, as long as both acts are part of a continuous transaction. Thus, the jury could find the defendant guilty of murder in the commission of burglary, even if the killing occurred outside. Additionally, if the victim had invited the defendant into the house, it would not absolve him of burglary charges if he entered with felonious intent. The evidence sufficiently supported the findings of felony murder and special circumstances related to burglary and robbery.

For the felony-murder special circumstance to apply, the killing must not be incidental to the underlying felony. The defendant claims insufficient evidence to show he killed the victim to further the purpose of robbery, arguing that the motive for the murder was retaliation for the victim identifying his brother as a burglary suspect. However, even if retaliation was a motive, the evidence supports the conclusion that the intent to steal was the primary or at least a concurrent motivation for the murder. The defendant disputes the sufficiency of evidence regarding personal gun use, suggesting he may have only aided another perpetrator. While Detective Mayoya speculated that multiple individuals were involved, no evidence supported this claim at trial. The jury could reasonably conclude that the defendant personally used a handgun in the murder, as he was seen firing the weapon shortly before the incident and had a gun linked to the crime when arrested.

The defendant also argues the court erred by not instructing the jury on second-degree murder as a lesser included offense. Generally, courts must provide such instructions if warranted by the evidence. However, any error in failing to do so in this case is deemed invited and harmless since defense counsel explicitly requested not to include instructions on second-degree murder after discussing it with the defendant, who agreed to follow this advice. As a result, the jury was instructed only on first-degree premeditated and felony murder, along with the associated robbery and burglary special circumstances.

The jury was initially instructed that if it had doubts regarding the murder degree, it should convict the defendant of second degree murder. However, upon the jury's inquiry during deliberations, the court, with both parties' agreement, clarified that the mention of second degree murder was inadvertent and should be disregarded. The defendant's counsel stated that the defendant opposed the instruction on second degree murder, emphasizing that the defense was based on the assertion of non-involvement in the crime. The court advised that if evidence supported a second degree murder finding, it would be required to instruct on it, but acknowledged the defense's position. The defendant affirmed his understanding and acceptance of this explanation.

It was established that a defendant cannot appeal a trial court's failure to instruct on a lesser included offense if the defendant strategically chose not to pursue such an instruction. The record indicated that the defendant's lack of objection was intentional, as he deemed the instructions inconsistent with his defense. Consequently, he could not contest the court's omission of the instruction on appeal.

While the defendant cited Beck v. Alabama, asserting a constitutional requirement for lesser included offense instructions in capital cases, the court held that a defendant can waive such instructions for strategic purposes. Furthermore, the jury was provided a noncapital option of first degree murder without special circumstances, satisfying the principles outlined in Beck. Any error regarding the instruction on the lesser included offense was deemed harmless, as the jury was adequately instructed on first degree murder and related special circumstances. The jury's verdict confirmed that it could convict the defendant of first degree murder without special circumstances if there were doubts about felony murder.

Defendant was found guilty of first degree felony murder, as the jury determined the killing occurred during the commission of robbery and burglary. Despite the jury's inquiries about whether a decision on the degree of the crime was necessary, these questions did not indicate doubt regarding the first degree murder verdict but rather showed the jury was contemplating the specifics of the case. The court had inadvertently instructed that the jury should give the defendant the benefit of any doubt concerning the crime's degree, leading to their questions. 

Defendant also raised concerns about instructional errors. The precedent set in People v. Green established that a murder occurring during the commission of a robbery does not meet felony-murder special circumstance criteria unless the robbery was not merely incidental to the murder. For a felony-murder special circumstance to be valid, there must be an independent purpose for the felony that is distinct from the murder. The jury instructions were modified to reflect this requirement, but at trial, the court failed to fully convey that the murder must be committed to advance the robbery or burglary. However, the court’s instruction that the special circumstance is not applicable if the felony is incidental to the murder was deemed sufficient, and thus, the court's omission was not considered an error.

Green established a single requirement regarding the relationship between a felony and murder in cases where the felony is merely incidental to the murder. In such instances, there is no separate felony-based special circumstance. Various phrasings have been used to explain this requirement, but no specific language is mandated for jury instructions. The phrase "to carry out or advance" the felony is not essential; alternative explanations are acceptable. The court's instruction that the felony must not be merely incidental was sufficient. There is no error in omitting such an instruction if the evidence does not support it. The relevant CALJIC No. 8.81.17 instruction applies when evidence suggests the defendant had an independent intent to commit a felony alongside the murder. The defendant’s claim of acting in retaliation was unsupported by evidence presented at trial. Additionally, the court was not required to define "immediate presence" without a specific request, as the term is commonly understood in a non-technical sense. The defendant's failure to request clarification means the issue is not preserved for appellate review.

Defendant argues that the court erred by not instructing the jury with CALJIC No. 3.20 regarding caution in evaluating the testimony of in-custody informant Jan Biaruta, asserting that such an instruction is necessary when requested. Neither party requested this instruction, so the court had no obligation to provide it. The defendant also noted that the instruction's focus on potential benefits to the witness could have been detrimental to his case, as no substantial evidence of benefits was presented.

Additionally, the defendant claimed that his statement to Deputy Mayoya about not contradicting his brother Steven regarding a 1998 robbery constituted evidence of another crime and that the court should have given a limiting instruction sua sponte. However, there was no duty for the court to provide such an instruction, and the case did not meet the criteria of being "extraordinary" in terms of prejudice versus relevance. The defendant might have preferred not to draw attention to his statement through a limiting instruction.

The defendant also contended that standard instructions on circumstantial evidence undermined the requirement of proof beyond a reasonable doubt, as did the former CALJIC No. 2.90's terms "moral certainty" and "moral evidence." These arguments have been consistently rejected in prior cases.

Regarding jury instructions on credibility, the court omitted references to felony convictions in CALJIC No. 2.20 and did not provide CALJIC No. 2.23, despite the prosecution witness Biaruta having a felony conviction. The omission occurred because the parties believed that no witnesses had felony convictions at the time, and this was never confirmed.

The court decided to omit references to a felony conviction and did not provide CALJIC No. 2.23 during jury instructions. After the instructions, a defense attorney noted that a witness, Mr. Biaruta, had been convicted of a felony, but the court refrained from including this information to avoid emphasizing it. The court and parties mistakenly believed no witness had a felony conviction, resulting in the omission of relevant instructions. The defendant contended that this omission led the jury to view Biaruta's testimony as credible, disregarding his felony conviction, which could have negatively impacted his credibility. However, the court found that any error was harmless since CALJIC No. 2.23 did not offer anything beneficial to the defense; it merely instructed the jury to consider a felony conviction as a factor affecting credibility without necessarily discrediting it. Furthermore, the court had provided most of CALJIC No. 2.20, allowing the jury to consider Biaruta's felony and other convictions when assessing his credibility. The defense effectively cross-examined Biaruta, highlighting his status as a convicted felon, and the prosecution acknowledged Biaruta's questionable credibility. Thus, the record indicated that the jury did not treat Biaruta's testimony as coming from a highly credible source. In the penalty phase, the defendant waived a jury trial, and after a contested trial, the court imposed a death sentence, providing detailed reasons for its decision, which were reiterated when denying the defendant's motion for a new trial.

Prior to sentencing, the defendant was allowed to argue for a life sentence. Following this, a discussion arose regarding a possible motion to modify the sentence under Penal Code section 190.4, subdivision (e). Defense counsel indicated uncertainty about whether a modification was necessary, referencing the court's previous outlines from September 7. The court, citing People v. Diaz, stated it had already provided its reasons for the verdict and deemed further discussion unnecessary. After hearing arguments from both sides, the court imposed a death sentence.

The defendant claimed error for the court's failure to rule on an automatic modification motion, but the defense did not object during the hearing, which occurred after the precedent set in People v. Hill, rendering the issue unappealable. The court noted that although defense counsel expressed a desire not to waive anything, the suggestion to refer to previous rulings constituted a waiver. The court found no error or prejudice, asserting that a ruling on the modification would have been redundant.

The discussion acknowledged the ambiguity in section 190.4 regarding whether a defendant waiving a jury trial is entitled to a modification hearing. While the court's initial ruling provided detailed reasoning, it was not mandated to repeat those reasons during the modification consideration. The defendant had the opportunity to contest the verdict through a new trial motion, which the court considered. 

Additionally, the defendant reiterated previously rejected constitutional challenges against California’s death penalty law, specifically regarding the vagueness of aggravating factors and the statute’s structure concerning mitigating and aggravating factors, which the court found valid and did not reconsider.

The use of "extreme" in section 190.3 does not limit the consideration of mitigating factors by the sentencer. The statute does not require written findings or jury unanimity on aggravating circumstances, nor findings beyond a reasonable doubt except for other crimes. Special circumstances, including felony-based ones, are constitutionally valid. Prosecutors have constitutional discretion to seek the death penalty. The requirement for intercase proportionality or disparate sentence review is not mandated, though intracase proportionality review is available to the defendant, who did not request it but is deemed it would not benefit him given the nature of his crime and prior conduct. The cumulative effect of alleged errors claimed by the defendant is considered non-prejudicial, affirming that he received a fair trial. The judgment is affirmed with concurrence from the Chief Justice and other Justices, except for George, C.J., who did not participate. Additional notes indicate testimony inconsistencies and clarify that the defendant raised only constitutional speedy trial rights, with no statutory violations evidenced. Further, the prosecutor’s commentary during trial is detailed to illustrate the defense’s arguments regarding involvement in a past crime.

Evidence Code section 1220 encompasses all statements made by a party, regardless of whether they qualify as admissions. The court excluded evidence regarding a bullet found in a dog shot by the defendant, determining it was unduly prejudicial, and allowed only that the bullet was located on the Horning property. The defendant did not testify during the guilt phase, and even if the jury had heard his penalty phase testimony, it might have found his account of leaving California coincidentally at the time of the murder and breaking into the victim’s car less credible than his prior claim of obtaining the gun in Utah. The CALJIC instruction does not specifically mention "independent purpose," a term used in prior cases to explain related concepts. CALJIC No. 3.20 advises caution regarding the testimony of in-custody informants, urging jurors to consider potential influences on such testimony without disregarding it arbitrarily.