Conviction for first degree murder and robbery and sentence of death is affirmed where: 1) the prosecutor did not commit prosecutorial misconduct, and any misconduct that did occur was harmless in light of the evidence of defendant's guilt; 2) defendant failed to show that the testimonies of certain witnesses were unreliable, and thus properly admitted the testimonies; 3) the court did not err in allowing the prosecutor to present the testimony of one of the witnesses' attorneys in rebuttal; 4) defendant was not denied effective assistance of counsel; and 5) defendant's other claims of error in the trial phase are without merit. At defendant's second trial: 1) the court did not err in excusing prospective jurors based on their views concerning the death penalty; 2) the prosecutor did not commit misconduct; 3) the trial court did not err in determining that a witness was unavailable as a witness and admitting his testimony from the first trial; 4) the court did not err in the instructions it did and did not give to the jury; 5) during the penalty phase, the prosecutor did not commit misconduct and there was no error in the admission of challenged evidence; and 6) California's death penalty statute does not violate the state or federal constitution.
APPEAL from Alameda County Super. Ct. No. 81254 A
Filed July 20, 2009
Before BAXTER, J., GEORGE, C.J., WERDEGAR, J., CHIN, J., MORENO, J., CORRIGAN, J., KENNARD, J.
Opinion by BAXTER, J.
For Plaintiff: Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Bruce Ortega, Glenn R. Pruden and Gregg E. Zywicke, Deputy Attorneys General.
For Defendant: Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Denise Anton and Evan Young, Deputy State Public Defenders.