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People v. Kraft8/10/2000
ense counsel did not seek to remove L. The prosecution did not call Drake as a witness.
To secure reversal of a conviction for ineffective assistance of counsel, a defendant must establish that counsel's performance fell below an objective standard of reasonableness and that, to a reasonable probability, defendant would have obtained a more favorable result absent counsel's shortcomings. (Strickland v. Washington (1984) 466 U.S. 668, 687-694.) If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello (1995) 15 Cal.4th 264, 266-268.) Here the record-reflecting that defense counsel reviewed his notes and L.'s voir dire-hints at the existence of some tactical reason for counsel's decision to retain L. At least, the record fails to eliminate that possibility. Accordingly, defendant's claim must fail for purposes of this appeal.
E. Penalty Phase Issues
1. Refusal To Empanel New Jury for Penalty Phase
Defendant contends the judgment must be reversed because the trial court erred in denying his motion to empanel a second jury to determine penalty. He predicated his motion on the expert opinion of psychology professor Dr. Steven Penrod, who, as noted, had testified previously in connection with the severance motion. Penrod opined in essence that the jury, having already rendered its unanimous verdict on the 16 murder counts and 11 special-circumstance allegations, would be less able than a newly selected jury to give defendant a fair trial on penalty.
Section 190.4, subdivision (c) provides in relevant part that " f the trier of fact which convicted the defendant of a crime for which he may be subject to the death penalty was a jury, the same jury shall consider . . . the truth of any special circumstances which may be alleged, and the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn." More than mere speculation or the desire of counsel is needed to establish good cause. We review the trial court's ruling for abuse of discretion. (People v. Lucas (1995) 12 Cal.4th 415, 482-483.) Defendant acknowledges we have found no abuse of discretion in previous cases raising this issue, but he contends his case is different owing to the existence of the death list and the sheer number of murders the jury was being asked to adjudicate.
We are unpersuaded the trial court abused its discretion in denying defendant's motion for a second jury. Defendant's supporting evidence, i.e., the testimony of Dr. Penrod, was general in nature, applicable to a greater or lesser degree in any capital case in which evidence of other crimes is admitted in the penalty phase, and so does not particularly demonstrate how defendant was prejudiced. As the trial court noted, a second jury would have learned of the circumstances of each of the murder charges of which defendant had been convicted, as well as the Oregon and Michigan murders and the assault on Joseph F., and would have come to its own conclusions about defendant's propensity to commit violent offenses. The Legislature has clearly articulated its preference for a single jury to decide both guilt and penalty (People v. Fauber (1992) 2 Cal.4th 792, 845), and, provided the chosen procedure satisfies basic principles of fairness, we are aware of no rule requiring the Legislature to select the process psychologically designed to render jurors most favorably disposed toward a defendant.
2. Eviden
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