The Supreme Court today affirms the death sentence in People v. Alvarez for the murders of two children in 1994 and 1996. The sentence was imposed at a second trial; the first also resulted in a death verdict, but the superior court granted a new trial because of jury misconduct.
It’s a 6-2-1 decision. The court is unanimous in upholding the death penalty, but Chief Justice Patricia Guerrero dissents from the majority’s striking of a fine. Also, Justices Goodwin Liu and Kelli Evans write separate concurrences, Justice Liu’s opinion highlighting a racial slur the trial judge used unapologetically and Justice Evans setting the stage for a habeas corpus petition.
The court’s opinion by Justice Joshua Groban rejects a host of appellate claims, including substantial evidence arguments and a change-of-venue claim that the court holds was forfeited by not renewing the claim after the jury voir dire, which revealed additional information supporting the venue change.
The majority also concludes a Kelly hearing — to determine the general acceptance of a new scientific technique — wasn’t necessary for an assessment test used by a clinical psychologist as one basis for his opinion that the mother of one of the murder victims “was not at risk” of physically abusing children in her care. Justice Liu’s concurring opinion finds it “a close issue” whether the witness’s testimony should have been admitted without holding a Kelly hearing about the assessment test, but agrees there was no prejudicial error because some of the witness’s statements “mitigated the aura of infallibility otherwise created by his testimony about [the test].”
The most notable part of Justice Liu’s separate opinion, however, is his commentary on the trial judge’s apology for a delay in the jury selection process. The judge remarked, “as I’ve often said, if this was an easy job, they’d have six hundred million Chinamen over here doing it.” When defense counsel then asked for a dismissal of the jury panel because prospective jurors of Asian descent or with relatives of Asian descent might not want to serve on the jury, the judge played the victim, stating it was “a ridiculous request” and “completely out of line,” and warned the attorney to “be more professional.”
Justice Liu writes that, although neither party raised the issue, which was “not evidently prejudicial to [the defendant],” the judge’s remark “is prejudicial to the administration of justice.” Briefly reciting California’s anti-Chinese history, Liu says “[t]he term ‘Chinaman’ is widely recognized as derogatory” and “the implication that millions of Chinese natives would be assigned the task of serving as a juror ‘if this was an easy job’ trades on a stereotype that people of Chinese descent are especially suited for menial work.” “Avoiding such demeaning language and rejecting the pernicious stereotype it expresses are essential to sustaining public confidence in our system of justice,” he concludes.
Justice Evans’s concurrence is about the defendant’s unsuccessful motion to change the venue for the trial, his second. The purpose of her separate opinion is “to highlight the substantial potential for prejudice in seating jurors aware of a prior verdict, particularly in high-profile capital cases.” Evans says it “is unclear from the record” why defense counsel didn’t “call to the attention of the trial court evidence uncovered in voir dire demonstrating widespread juror bias,” but notes, “Final determination of any such concerns . . . must await habeas corpus, in which the record does not limit our view.”
The only disagreement among the justices concerns the striking of a $200 parole revocation fine. The majority holds that the relevant statute (Penal Code section 1202.45), which requires the fine when a “sentence includes a period of parole,” is applicable to determinate sentences, not to indeterminate sentences with the possibility of parole. (The defendant, in addition to his death sentence, was sentenced to a stayed indeterminate term of 25 years to life for assault on a child causing death.) In dissent, the Chief Justice asserts that there shouldn’t be a distinction between determinate and indeterminate sentences and that the defendant’s “indeterminate sentence includes a possibility of parole — however unlikely to actually occur — and therefore is subject to a parole revocation restitution fine under section 1202.45.”
