People v. Freeman (8 Cal. 4th 450, 1994)

Opinion

ARABIAN, J.

—In January 1984, Donald Koger was killed during the robbery of a bar in Berkeley. Following trial of defendant and a coparticipant, Paul Gutierrez, the jury convicted defendant of several crimes arising out of the incident, including murder, five counts of robbery and three counts of attempted robbery, all with the personal use of a firearm. The jury also found true the special circumstance that the murder was committed in the commission of robbery. Outside the presence of the jury, defendant admitted three prior felony convictions. After the penalty trial, the jury imposed the death penalty. The court denied defendant’s automatic motion to modify the verdict, and sentenced defendant to death. This appeal is automatic. We affirm.

I. Facts

A. Guilt Phase

1. Prosecution Evidence

The Gilman Street Exit, a neighborhood bar in Berkeley, was open for business as usual the evening of January 11, 1984. Paul Urone was the bartender, and Julie Gray was in charge of the kitchen. Most of the patrons were regulars. That night they included the victim, Donald Koger, a gardener nicknamed “Cowboy.” Seated next to Koger was a psychiatrist, Darol Rice. Also in the bar were Dottie Hansen, a friend of Drone’s, and, seated next to her, Norwood Square. At one end of the bar were Verna Ratterman, Bob Rideout and Jean Lipari.

Around 11 p.m., a man identified as the codefendant at trial, Paul Gutierrez, entered the bar wearing a baseball cap, and sat down about three stools away from Koger. Gutierrez ordered a beer. About 10 or 15 minutes later, 2 other men entered and sat down at the far end of the bar. One, identified as defendant, ordered a beer. The other, who has never been identified, went to the men’s room, then returned and also ordered a beer. After serving these two, Urone continued his bartending duties, and walked in front of Gutierrez.

Suddenly, Gutierrez stood up and “put a gun” on Urone. Urone understood that it was a “hold up.” He told the others to be “cool,” and told Gutierrez not to hurt anyone. He then saw the two men who had just entered the bar also stand up wielding guns and realized that “it was a party of three.” He started to go to the cash register to get the money, but Gutierrez said, “Not yet, freeze.”

Defendant approached Koger. Rice and Ratterman heard Koger say, “Fuck you.” Defendant shot Koger in the left side of the head, killing him. Koger “keeled over” onto the floor.

Just before or just after defendant shot Koger, Gutierrez fired a shot into the bar. Gutierrez then demanded that Urone put the money from the cash register into a shoulder bag. Urone complied. Gutierrez and the unidentified gunman then left.

Defendant remained behind. He stepped over Roger’s prone body and took a wallet out of Roger’s pocket. Then, one by one, he stole property, generally wallets, from other patrons at gunpoint, placing it into a small plastic garbage bag. He took $1,500 from Norwood Square. When he finished, he too left the bar. As he was leaving, Ratterman heard him say, “Anybody move, you’re dead.” After defendant left, Urone called the police.

Carmen Maria Horton testified after being granted immunity that as of January 1984, she had known Gutierrez a long time and defendant a few months. The night of the robbery, she saw both defendant and Gutierrez in her motel room in Richmond. Defendant told her that they went to the bar to “rob” it. He said he shot the victim, and showed her the gun he used. Horton later sold the gun. Gutierrez and Horton were together in a motel room when Gutierrez was arrested.

Paul Urone, the bartender, worked with the police to prepare an “IdentiKit” composite of the suspects, and later helped a police artist sketch them. He made no selection from a photographic lineup that did not include either Gutierrez or defendant. About a month after the crime, Urone selected Gutierrez’s photograph from a lineup as that of the gunman wearing the baseball cap. A few days later, he chose defendant’s photograph as that of the “shooter.” The next day, he identified defendant from a physical lineup. He put a question mark on the card because, he explained at trial, “I just felt that at the time, the seriousness of the crime, I didn’t know, he might have had a look alike, a twin, so I just put a question mark . . . .” Urone later attended another physical lineup that included Gutierrez. He initially identified a person other than Gutierrez, but then felt he had made a mistake, and changed his identification to Gutierrez. He identified both Gutierrez and defendant at trial.

Julie Gray told police that one photograph in a lineup that did not include Gutierrez or defendant resembled, but was not, the shooter. Later she identified defendant from a physical lineup as the one who shot Koger. She placed an “X” and a question mark by her identification, the latter because defendant wore a hearing aid at the lineup and his hair appeared darker at the time of the shooting. She also placed a question mark by another person (not one of the suspects) as similar to the gunman with the baseball cap. Later she identified Gutierrez from another lineup. She also identified defendant and Gutierrez at trial.

Verna Ratterman, who was a security manager at the time of the crime, helped the police prepare the artist’s sketch of the suspects. At the first physical lineup that included defendant, all the suspects wore hats. Because of this, Ratterman assumed they were looking for the gunman who wore a hat, not the shooter. She chose a person other than defendant with an “X” and a question mark as looking like Gutierrez. Later, she positively identified Gutierrez from another lineup. She identified Gutierrez and defendant at trial.

Norwood Square could not identify anyone at trial, but his memory had been adversely affected by illness and surgery that postdated the robbery. He attended a physical lineup that included defendant, and placed question marks by two positions, including that of defendant. Right after the lineup, he made the following statement to the police explaining his selections: “I’m 95 percent sure that number four [defendant] in the lineup was the one of the two robbers that I saw at The Gilman Street Exit and possibly the one that got my wallet. In parenthesis, not sure. This is based on his facial features, coloring of his hair, his physical size, but particularly his face. [^Q I placed a question mark on number three because he appeared to be the right size and complexion for one of the robbers, possibly the one with the hat. He had the same general demeanor. His face seemed similar, but I am less certain about him being one of the robbers than I am about number four.”

No one else in the bar the night of the robbery identified either defendant or Gutierrez.

Berkeley Police Officer Alec Boga investigated the crime. At one point a warrant had issued for the arrest of Gutierrez, but the police did not know who the other two gunmen were. While searching for Gutierrez, Officer Boga spoke with defendant at a home in Richmond. Defendant said he had met Gutierrez about a month earlier and had helped bail “him out of the Martinez jail.” During the interview, Officer Boga noticed a black holster. Defendant said “the holster was his, but he no longer owned the gun.” After defendant’s arrest, and possessing a search warrant, Officer Boga searched a car parked in front of a residence where defendant said he stayed part of the time. Horton testified the car belonged to defendant. Inside the car, Officer Boga found a white plastic garbage bag.

2. Defense Evidence

Counsel for defendant elicited on cross-examination of Horton that defendant told her he did not intend to shoot the person at the bar during the robbery; the shooting was an accident.

Defendant called two witnesses. Jean Lipari viewed the lineup that included defendant. She placed question marks after the numbers of two of the subjects, neither of them defendant. She testified that she “didn’t put a X on anybody because I wasn’t sure and they said if there was anybody who looked something like them, you thought it reminded you of him, to put a question mark on them.” During the robbery, she saw only the hand of one of the persons with a weapon.

Carol Mickey testified that she had lived with Koger from time to time. Koger often got into bar fights. When he drank, Koger would “get mad or angry at the slightest little thing. He misinterpreted somebody’s talking with him and punch him out.”

The codefendant, Gutierrez, also called several witnesses, including David McGuire, who testified among other things that he was with defendant at a Mexican restaurant at the time of the robbery, and Dr. Elizabeth Loftus, who testified about factors affecting the reliability of eyewitness identifications.

B. Penalty Phase

James Peters testified for the prosecution that in 1961, defendant and another person robbed him at gunpoint while he worked as a gas station attendant in Berkeley. The prosecution introduced records showing that defendant was convicted of robbing Peters and that defendant was also convicted of another armed robbery in 1968.

The defense called four witnesses. Sharon Freeman, defendant’s former wife, introduced their two daughters to the jury. Mary Freeman, defendant’s mother, identified some paintings by defendant. He was trying to make a living by painting, and had business cards labeled “Freeman’s Art Studio.” In 1979, defendant received a certificate and a trophy for taking a “mechanics course.” Defendant was bom in 1939, the second of seven children.

Alta Ruark, defendant’s sister, testified that their father had voiced doubts about defendant’s parentage. When defendant was about five or six years old, their house was damaged by fire, and they lived with an uncle and aunt for awhile. Once the uncle beat defendant and Ruark for eating a lemon pie. Defendant’s father often beat defendant with a belt and once forced him to stand on one leg for an hour. Defendant has difficulty hearing, as do other members of the family. Defendant lived in a foster home for about three years beginning when he was about twelve years old. He was once hit in the ear with a stick, requiring surgery.

Alan Glasscoe, the director of the Berkeley Chess Club, testified that defendant used to play chess at the club. At the time of trial, defendant’s name appeared on the mailing list of the California Chess Journal. Defendant once wrote Glasscoe a letter asking about playing correspondence chess.

II. Discussion

A. Guilt Phase

1. Defendant’s Hearing

Defendant contends he is “functionally deaf,” and that this “impairment compromised his right to participate in his defense and to hear and be personally present at all stages of the proceedings.” As the record does not support the contention, we disagree.

(a) The Record

In August 1984, near the end of the preliminary hearing, defense counsel Spencer Strellis, one of the defense attorneys who represented defendant throughout the trial, stated, “I have heard from my client . . . that his hearing aid batteries, the batteries in his hearing aid have died, and I wonder if the Court would order the sheriff to provide him with new batteries so he once again can hear and partake in whatever.” (Italics added.) The court responded, “Can I do that through a [Penal Code section] 4011.5?” An off-the-record discussion ensued, and the matter was not again referred to at the preliminary hearing.

On October 31, 1984, at a hearing in superior court, Strellis stated that defendant “has a severe hearing problem,” and, although defendant had been provided with a hearing aid, he needed a new battery. “Otherwise,” counsel stated, “he is in a position where he cannot hear the judicial proceedings and I think he has a Constitutional Right to hear them.” The court agreed and ordered a new battery for defendant.

The question next arose on April 19, 1985, during another hearing in superior court. A different attorney representing defendant stated that defendant “has a hearing problem” and requested batteries. The court noted the problem, and stated a belief that defendant simply had to ask for batteries. The problem was apparently not resolved that easily, for it came up again at a hearing a week later, on April 26, 1985. Strellis stated that defendant had not gotten a new battery in the last two weeks, and that when defendant does not have a battery for his hearing aid, “he is unable to confer with counsel and it reaches Constitutional dimensions.” The court stated that they “should buy a supply of batteries,” and ordered the bailiff to “check that out.”

At the beginning of a hearing on May 16, 1985, the bailiff told the court, “He can’t hear.” The court asked defendant, “You can’t hear me, Mr. Freeman?” Defendant responded, “I can hear you now.” During the short hearing, defendant responded to questions posed by the court, and nothing more appears in the record of that hearing relevant to defendant’s hearing.

On August 22, 1985, the superior court issued a written order, “Defendant to be taken to the hearing clinic or be provided with batteries.”

Despite periodic hearings in court, the record reflects no further problems about defendant’s hearing until October 1986. During that time, on May 16, 1986, defendant filed three pro se lawsuits in federal court, all of which were subsequently dismissed. Pursuant to defendant’s request, we have judicially noticed those records. In the pleadings, defendant voiced numerous and detailed complaints about his representation and his treatment by the authorities. The only reference to hearing difficulties in any of the pleadings is this statement in the middle of a lengthy complaint about his treatment in jail: “Defendants [i.e., the ones sued in the pro se lawsuit] deny pre-trial detainees the opportunity to personally consult with their attorneys in private at North County Jail, and I have a hearing problem and everybody else can hear my lawyer before I can.”

During this time, defendant filed various pro se pleadings in state court complaining about his attorneys and other matters. One, filed October 14, 1986, contained detailed complaints about defendant’s medical and dental care. None mentioned a hearing problem.

On October 24,1986, defendant signed a declaration in which he stated, “I am deaf and have grave difficulty hearing. It is important that I hear in order to confer with my counsel. I would like to see an ear specialist to remove the build up of wax in my ear, because at the present time I am not able to confer and participate in my own defense.” This was attached to a “motion for medical treatment” filed on November 14, 1986, by Strellis. Among other things, the motion requested defendant be provided with an “Ear, Nose and Throat specialist.”

On November 26, 1986, the court ordered defendant referred for medical examination and treatment for “Eye ear nose & throat (teeth) also for Hearing problem.” Defendant received treatment that day and was “sent to Ear-Nose-Throat specialist for audiogram to place hearing aid in right ear.” The medical notes indicate defendant already had a hearing aid in his left ear.

In December 1986, the case was assigned for trial to Judge Golde. At the first hearing before Judge Golde, on December 15, 1986, Strellis stated he could not “even talk to my client, and he can’t hear what we’re saying.” The court ordered batteries for defendant’s hearing aid. On January 15, 1987, a hearing was held on a peremptory challenge to Judge Golde that defendant filed pro se. Strellis stated the defense wished to withdraw the challenge. Defendant personally agreed. When the court indicated it would grant the challenge unless it was withdrawn, defendant personally stated, “Yes I would like to withdraw it, please.” The same day, defendant moved for medical treatment. The court signed an order requiring that defendant be transported to Highland Hospital, “where he shall be seen by an ear doctor; first to have his ears cleaned and secondly to determine whether a second hearing aid would be helpful in allowing Mr. Freeman to hear.”

On January 21, 1987, the court asked if “They take care of the doctor?” Defendant personally stated, “Not yet.” The court ordered the bailiff to “see this guy gets to the doctor for that ear examination.” They discussed how best to proceed. When asked what had to be done for his ears, defendant personally responded, “Clean them, and they have to fit it for hearing on this ear here.” At one point the court stated, “I’ll go with you to the doctor.”

The next day, January 22, the court postponed a hearing from the next Monday to Tuesday so defendant could receive his medical treatment. It ordered that “defendant be seen by an Otolaryngologist for his ears. Further Court orders that his ears be cleaned and a determination be made whether defendant needs a second hearing aid for right ear and that the hearing aid for the left ear be checked and have batteries replaced, if necessary.” The same day, a doctor from the Alameda County Health Care Services examined defendant and scheduled him for an appointment the next day. A notation on the paper work indicates the doctor spoke with Judge Golde.

On January 23, 1987, defendant signed a declaration stating, “My hearing is impaired in both ears. I used to wear two hearing-aids. My hearing is even worse than it was then, 1983, while living in Las Vegas, Nev. My hearing-aid for my right ear went out. I was never able to replace it.” The problem had apparently not been resolved by January 27, and Strellis requested another order. The next day, January 28, the court issued a written order that defendant be transferred to a hospital by the morning of January 30 for a “hearing test” conducted by a specified person in a specified room. “If it is determined,” the order continued, “as a result of these tests, that Mr. Freeman needs a hearing aid, the appointment for the next step should be made on Monday, February 2nd or Friday, February 6th, and the sheriff shall report back to Department 9 of Alameda County Superior Court on Monday, February 2nd, the date of the next appointment.”

Pretrial hearings motions were also heard on January 28. At one point, Strellis stated, “We’re going to have a daily on this; is that correct?” The court shook its head. It then said, “You can have a daily on the trial.” An unreported bench conference followed at Strellis’s request. Immediately after the conference, Strellis stated: “For the record, Your Honor, the discussion we just had, the Court Reporter will create a transcript, not on a daily at this stage, though, later. [‘JD If we can have one extra copy of that made so I can give it to Mr. Freeman because of his hearing problem. We will at least let him read and make sure that he heard what was going on.” The court ordered the extra copy. The settled statement for the unreported conference states that this “conference related to the defendant’s hearing problem. Previously, the Court had ordered that he be fitted with two hearing aids. Because of continuing auditory problems, the Court ordered that Mr. Freeman be provided with a daily transcript.”

After the bench conference on January 28, defendant stated he could hear the district attorney but not the particular witness. Strellis suggested the witness speak louder, and the bailiff apparently adjusted the microphone. The hearing continued with no further hearing difficulties apparent from the record. Prior to adjourning, the court stated it needed the defendants the following Monday, and said to “make sure the hearing thing came through.” Strellis stated they would only have the test on Friday, so it would not “come through,” but thought that by Monday they would know if he had had the test.

At a hearing on February 3, 1987, defendant personally admitted three prior convictions and denied one, with no apparent difficulty understanding the court.

At the end of the court day on February 5, 1987, Strellis stated that defendant’s “batteries are run down” and requested new ones. Defendant personally expressed difficulty obtaining them. An off-the-record discussion ensued. The settled record states, “The defendant was having continued difficulty hearing all of the proceedings. It was assumed that this was because of the batteries in his two hearing aids. In an effort to rectify this, the Court directed the bailiff to maintain extra hearing aid batteries in his courtroom desk drawer.”

During jury selection, on February 9 and March 12, 1987, the court twice issued written orders for defendant to be transported for appointments, the first “for the fitting of a hearing aid,” and the second “to get his hearing aid adjusted.” At one point near the end of the day on February 24, 1987, the court commented outside the presence of prospective jurors, “Even Freeman heard that, Quatman.” Defendant responded, “I heard that.” During trial, defendant filed additional pro se pleadings in the superior court and federal court voicing many complaints, none related to his hearing. One time, shortly before the penalty phase, defendant personally stated in court that he wanted the transcript of the day’s proceeding. It appeared he generally did not receive the daily transcripts for at least a day.

Nothing more relating to defendant’s hearing appears on the trial record.

Long after trial, during hearings to settle the record and to determine whether there had been unreported discussions relating to defendant’s hearing, Strellis stated he “would be the last one to say that [defendant] could hear all the proceedings.” The district attorney said defendant “got a daily, so he wouldn’t miss out on what had gone on.” Strellis added, “We got a hearing aid. I replaced the batteries every time he needed them, and we had his ears cleaned. [*][] To answer your precise question, I was fairly careful I think to put on record everything that related to his hearing because it was an ongoing struggle as to who was going to pay for batteries and things like that.” The court said, “Everything is on the record because we were not getting an enormous amount of cooperation from the sheriff,” and that, “There are no chamber conversations other than just kidding around.”

At a hearing to settle the record of the unreported bench conference of January 28, 1987, the court stated, “The conference concerned obtaining an extra copy of the daily transcripts for Mr. Freeman, who had a hearing loss, and we felt it would be necessary to make certain he could comprehend exactly what was said in case he had some difficulty hearing the voir dire of prospective jurors . . . and testimony of witnesses.” The court and Strellis also agreed that the daily transcript had been provided because of a concern that defendant “might not be able to hear because of his hearing loss.”

In discussing the availability of medical records of defendant’s treatment, the court stated, “There is no medical record. ... All they do is fill out like a half sheet of paper saying cleaned his ears, malingering, didn’t do anything, did do something. It’s a form . . . kind of like a printed form.” Strellis said, “The problem is they don’t always send a form. They may have flushed his ears and sent him back a verbal message, we don’t think two hearing aids will be better than one . . . .” The court added, “As a practical matter . . . they test, they examine, the guy cleans his ears, and they tell you. They don’t give him a—that good a test. It’s not very good medical service. You only get that which they did. I’d be shocked if they gave them a test. But it’s possible."

(b) Analysis

Defendant contends that although he was physically present during trial and pretrial proceedings, he was effectively not present because he could not hear what was going on and therefore could not participate.

A similar contention was presented in People v. Guillory (1960) 178 Cal.App.2d 854 [3 Cal.Rptr. 415, 80 A.L.R.2d 1077]. There, on the day of trial, the defendant, who had been released from custody on bail, complained he could not hear what was being said. He did not bring a battery for his hearing aid. At defense request, the court allowed defendant to stand next to the witness to hear. At the afternoon session, defendant indicated he had a hearing aid and could hear some things and not hear others. The trial proceeded. “No objection was made to proceeding further or effort made to change the seating arrangements in any manner. Nor did defendant appear to have any difficulty in following the proceedings.” (Id. at p. 859.)

The Court of Appeal recognized that the trial court “should afford to a defendant who is handicapped by deafness, blindness or other affliction, such reasonable facilities for confronting and cross-examining the witnesses as the circumstances will permit.” (People v. Guillory, supra, 178 Cal.App.2d at p. 861.) We agree. Indeed, the Legislature has taken steps to protect the deaf or hearing impaired. (Evid. Code, § 754; Civ. Code, § 54.8.)

Nevertheless, the Guillory court held that the “record does not support the claim [that defendant was denied due process because he could not hear] factually or legally.” (People v. Guillory, supra, 178 Cal.App.2d at p. 858.) “The trial judge showed the appellant every reasonable consideration. No objection to the adopted procedure was made in the trial court. When equipped with his hearing aid appellant seems to have had no difficulty in following what was said. When he came to court without live batteries in the hearing device any handicap he may have suffered was self-imposed, and hence gave no ground for complaint. The record leaves no doubt that defendant had a fair and considerate trial and that he is guilty beyond a peradventure.” (Id. at p. 862.)

The record here also does not support defendant’s contention. It shows, indeed, that defendant had hearing difficulties, and that not all attempts to solve them were immediately successful. But it also shows that defense counsel and the court were solicitous of the problem, and took repeated steps to resolve it. The court ordered medical treatment when and as defendant requested. If multiple orders were needed, the court issued them. When defendant needed new batteries for his hearing aids, the court made sure he got them. In light of the repeated motions and requests regarding defendant’s hearing up to that point, by counsel and defendant personally, which consistently met with action by the court, defendant’s silence thereafter is significant. Moreover, except for a few scattered early occasions, whenever defendant was spoken to he responded with no apparent hearing difficulty. To the extent defendant argues his counsel acted incompetently regarding his hearing difficulties, the record similarly does not support the contention.

Defendant argues that providing a daily transcript to defendant was not a sufficient remedy, and that a “qualified interpreter” or “preferable visual substitutes, such as real-time transcription or CAT (computer assisted transcription),” should have been provided. However, no such action was requested; nor does the record demonstrate it was necessary. As Strellis stated when the court ordered the daily transcript, the purpose was to “make sure that he heard what was going on.” The transcript augmented other steps taken to ease the problem, and supplemented defendant’s own ability to hear; it was never intended to be a remedy for a defendant who could hear nothing.

Even if we assume that defendant occasionally failed to hear something, there is no reason to further assume that anything of significance was missed, or that defendant’s ability effectively to participate in the proceedings or assist his attorney was compromised. Even total physical absence from a hearing is not reversible unless the defendant’s presence bears a reasonably substantial relation to the fullness of the defendant’s opportunity to defend against the charges. (People v. Medina (1990) 51 Cal.3d 870, 902-903 [274 Cal.Rptr. 849, 799 P.2d 1282].) Nothing in the record indicates that the hearing difficulties adversely affected the defense, or prejudiced defendant in any way. Because he fails to demonstrate how he was prejudiced or denied a fair trial, we reject his claim of constitutional error. (Id. at p. 903.)

2. “Marsden” Claim

On August 7, 1986, a few months before the case was assigned to Judge Golde for trial, defendant filed one of his several pro se pleadings, a “Petition for Writ of Habeas Corpus,” on a standard form approved by the Judicial Council. Defendant stated the following grounds upon which he based his allegation that his “imprisonment or detention is illegal”: “I have a [sic] attorney I do not trust and conflict of interest. [